Rule making to implement Environmental Conservation Law section 17-0826-a.
Purpose:
To implement the reporting, notification and recordkeeping requirements of Environmental Conservation Law section 17-0826-a.
Substance of proposed rule (Full text is posted at the following State website:http://www.dec.ny.gov/65.html):
The proposed rule would revise provisions of 6 NYCRR Part 750 to implement the reporting, notification and record keeping requirements of ECL section 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK). Under SPRTK, publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (POSSs) are required to report untreated and partially treated sewage discharges to the New York State Department of Environmental Conservation (DEC) and the local health department, or if there is none, the New York State Department of Health, within two hours of discovery of the discharge. However, partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not need to be reported. SPRTK specifies the necessary minimum content of these two hour reports to the extent the information is knowable with existing systems and models. Furthermore, SPRTK requires POTWs and operators of POSSs to notify the chief elected official, or authorized designee, of the municipality in which the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality of untreated and partially treated sewage discharges within four hours of discovery of the discharge. For discharges that may present a threat to public health, the same notification must also be provided to the general public within the same four hour time frame through appropriate electronic media as determined by DEC. The rule making provisions to implement SPRTK are summarized below.
750-1.1
Subdivision (f) of Section 750-1.1 would be amended to reference State Pollutant Discharge Elimination System (SPDES) registrations which would be the new regulatory mechanism for POSSs.
750-1.2
New definitions would be added to Section 750-1.2 to clarify the scope and meaning of the proposed rule. Paragraph (20) of Subdivision (a) would define the term ‘Combined Sewer Overflow (CSO)’ and Paragraph (21) of Subdivision (a) would define the term ‘Combined Sewer System (CSS).’ SPRTK reporting and notification requirements apply to CSO discharges from CSSs to the extent these discharges are knowable with existing systems and models, so it is necessary to define these terms for the regulated community. The term ‘Publicly Owned Sewer System (POSS)’ would be defined in Paragraph (70) of Subdivision (a). Under the proposed definition, a ‘POSS’ would mean “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” The existing definition of ‘municipality’ in current 6 NYCRR section 750-1.2(a)(51) would apply to the new definition of ‘POSS’ and continue to apply to the current definition of ‘POTW’ which would remain unchanged. Thus, both POTWs and POSSs would include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The new definition of ‘POSS,’ however, would distinguish POSSs from POTWs because POTWs are defined to include sewers that discharge to the POTW only if those sewers are owned by the same municipality that owns the POTW. Finally, Paragraphs (63) and (96) of Subdivision (a) would define the terms ‘partially treated sewage’ and ‘untreated sewage’ to specify the type of waste that would be addressed by the proposed rule. The new definition of ‘partially treated sewage’ would replace the existing definition of ‘partially treated’ since Part 750 only uses the term ‘partially treated’ when referring to sewage. The new definition for ‘partially treated sewage’ is at least as stringent as the previous definition of ‘partially treated’ and aligns with the intent of SPRTK to require prompt reporting and notification by POTWs and POSSs of discovered sewage discharges when the discharged sewage has not been fully treated at the treatment plant of a sewage treatment works. Other paragraphs in Subdivision (a) would be renumbered to accommodate the new definitions in this section.
750-1.22
The proposed rule would add a new Section 750-1.22 to establish a SPDES registration program for POSSs and obligate owners and operators of these facilities to comply with specified reporting and notification requirements in amended Section 750-2.7. New Section 750-1.22 would require owners of existing POSSs to register the facility with DEC within 30 days from the effective date of the proposed rule. This section would also obligate owners of POSSs to obtain DEC approval and a new or amended registration before commencing construction of a new or modified POSS. Furthermore, this section would require owners of POSSs to notify DEC 30 days prior to a transfer in ownership or operation of the facility; establish registration procedures regarding POSSs; obligate owners and operators of POSSs to properly operate and maintain their facilities; and provide DEC with express authority to inspect POSSs and their records. Finally, this section would require owners and operators of POSSs to comply with two hour reporting, four hour notification, and five-day written incident reporting obligations set forth in amended Section 750-2.7. Current Section 750-1.22 and subsequent sections of Subpart 750-1 would be renumbered to accommodate this new section.
750-2.6
Subdivisions (a) and (b) of Section 750-2.6 would be amended to specify that this section applies to SPDES permittees that are not POTWs. POSSs are only required to obtain SPDES registrations, not permits. Thus, the revisions would make clear that the special reporting requirements in Section 750-2.6 continue to apply to non-POTW SPDES permittees (such as commercial and industrial facilities), but that this section does not address POTWs or POSSs.
750-2.7
Subdivision (b) of Section 750-2.7 would be amended to implement the new reporting and notification obligations that apply to owners and operators of POTWs and POSSs.
Amended Subdivision (b), Paragraph (1) would continue to limit the two hour reporting obligation for non-POTW SPDES permitees to discharges that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes. A small number of minor revisions would be made to this paragraph and Subparagraphs (i) through (v) to eliminate obsolete language and to clarify that the content of two hour reports filed by non-POTW SPDES permittees would be the same as that for POTWs and POSSs.
Amended Subdivision (b), Subparagraph (2)(i) would require owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and the local health department, or if there is none, the New York State Department of Health, within two hours of discovery of the discharge. However, the proposed rule would not require that partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit be reported. This provision would also require owners and operators of POTWs and POSSs to make a report for each day that the discharge continues after the date the initial report is made, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the discharge report. Clauses (a) through (e) of this subparagraph would set forth the necessary content of the reports to the extent the information is knowable with existing systems and models.
Amended Subdivision (b), Clause (2)(ii)(a) would implement SPRTK’s four hour notification requirement with respect to municipalities. This provision would require owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality in which the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality of untreated and partially treated sewage discharges within four hours of discovery of the discharge. However, this notification would not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. Owners and operators of POTWs and POSSs would also be required to continue notifying these municipalities each day that the discharge continues after the date the initial notification is made until the discharge terminates, except that on the day the discharge ceases, a notification that the discharge has terminated may be made in lieu of the discharge notification for that day. For purposes of this clause, a ‘municipality’ would mean “a city, town or village” and an ‘adjoining municipality’ would mean “any municipality that is directly adjacent to the municipality in which the discharge occurred.”
Amended Subdivision (b), Clause (2)(ii)(b) would implement SPRTK’s four hour notification requirement for the general public. This provision would obligate owners and operators of POTWs and POSSs to notify the general public within four hours of discovery of discharges of untreated and partially treated sewage to surface water by using appropriate electronic media as determined by DEC, except that this notification would not be required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. Like municipal notifications, owners and operators of POTWs and POSSs would be required to make notifications to the general public for each day that the discharge continues and a termination notice may be made in lieu of a discharge notification on the day the discharge concludes. However, as with the initial notification to the general public, the daily public notifications would be limited to surface water discharges in contrast to municipal notifications which would apply to all untreated and partially treated sewage discharges.
Amended Subdivision (b), Subparagraph (2)(iii) would provide that “[f]or combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, owners and operators of POTWs and POSSs shall make reasonable efforts to expeditiously issue advisories through appropriate electronic media to the general public when, based on actual rainfall data and predictive models, enough rain has fallen that combined sewer overflows are likely of enough volume to cause potential health concerns for people who may come in contact with the water.” Under this subparagraph, these advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Subdivision (c) would be amended to eliminate 24 hour oral reporting by POTW SPDES permittees of those discharges that would now be covered by the new two hour reporting. The other existing 24 hour oral reporting requirements for POTWs that are not affected by SPRTK would be left unchanged. Furthermore, the current 24 hour oral reporting requirements for non-POTW SPDES permittees are not impacted by SPRTK and would remain the same.
Subdivision (d) would be amended to extend the requirement to file a five-day written incident report to owners and operators of POSSs; provide that these reports must be submitted to DEC (rather than the regional water engineer); and require that such reports be submitted on a form prescribed by DEC. Furthermore, this subdivision would now provide that DEC may waive the requirement for a five-day written incident report for both SPDES permittees and POSSs in situations where applicable reporting requirements have been satisfied.
750-2.10
New Subdivision (j) would be added to Section 750-2.10 to provide that owners of new or modified POSSs must comply with the registration requirements of section 750.1.22 before construction and connection to any existing POTW or POSS.
Other Revisions
Various United States Environmental Protection Agency guidance documents and federal regulations are listed as references in current Section 750-1.24. The proposed rule would renumber this section to be Section 750-1.25. Consequently, the proposed rule would also amend the various provisions throughout Subpart 750-1, Subpart 750-2, and Part 621 that cross reference this section to denote the proper renumbered section. In addition, the Table of Contents for Subpart 750-1 would be amended to reflect the addition of new Section 750-1.22 and renumbering of subsequent sections of this subpart. Furthermore, the Table of Contents for Subpart 750-2 would be amended to modify the heading language for Sections 750-2.6 and 750-2.7 to clarify the scope of the rule making. This heading language would also be amended at the locations where these sections appear in the regulations.
Text of proposed rule and any required statements and analyses may be obtained from:
Robert J. Simson, New York State Department of Environmental Conservation, 625 Broadway, 4th Floor, Albany, N.Y. 12233-3505, (518) 402-8271, email: sprtkcomments@dec.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Summary of Regulatory Impact Statement
1. ‘Statutory authority.’ The rule is authorized by Environmental Conservation Law (ECL) section 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK), which took effect on May 1, 2013 and expressly directs the Department of Environmental Conservation (DEC) to promulgate regulations that are necessary to implement this statute (ECL section 17-0826-a (2), (4)).
SPRTK requires publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (POSSs) to report untreated and partially treated sewage discharges to DEC and the local health department, or if there is none, the New York State Department of Health (NYSDOH) within two hours of discovery. However, partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not have to be reported. Under existing regulations, two hour reporting is limited to discharges by State Pollutant Discharge Elimination System (SPDES) permittees (consisting primarily of POTWs, commercial businesses and industrial facilities) that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes. Therefore, it is necessary to revise the regulations to be consistent with the new expansive two hour reporting obligation. SPRTK also requires POTWs and operators of POSSs to notify the chief elected official of the municipality where the discharge occurred and adjoining municipalities of untreated and partially treated sewage discharges within four hours of discovering the discharge. The general public must also be notified within the same four hour time frame of any discharges that may present a public health threat. The proposed rule would implement these new four hour notification obligations through language that aligns with the statute.
A ‘POSS’ would be defined as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality” because under current regulations those sewer systems that discharge to a POTW owned by the same municipality are considered part of the POTW and are covered by the SPDES permit for the POTW. The proposed rule would require owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs would be obligated to properly operate and maintain their facilities; file five day written incident reports; and allow DEC to conduct inspections and copy records. In addition to the specific statutory authority for the rule contained in SPRTK, DEC has general rule making authority pursuant to ECL section 3-0301(2)(m) to effectuate the purposes of the ECL and authority to promulgate regulations with respect to the SPDES program in ECL sections 17-0303(3), 17-0803 and 17-0804.
2. ‘Legislative objectives.’ The proposed rule accords with the public policy objectives that the Legislature sought to advance by enacting SPRTK. One public policy objective of the Legislature was to protect the public health and the environment. Untreated and partially treated sewage contains pathogens that can cause acute illnesses. The proposed rule would help protect the public health and environment by obligating owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities within two hours of discovery and for each day until the discharge terminates, irrespective of the area impacted by the discharge. The proposed rule would also require that within four hours of discovery, owners and operators of POTWs and POSSs notify affected municipalities of these discharges and further notify the general public of any such discharges to surface water through appropriate electronic media as determined by DEC. These notifications would continue each day until the discharge terminates, so that municipalities may respond and the public may avoid exposure. Furthermore, the proposed rule accords with the legislative objective to bring POSSs into the SPDES regulatory program by requiring SPDES registrations for POSSs.
The proposed rule does not obligate municipalities to upgrade the infrastructure of POTWs and POSSs or install monitoring equipment because SPRTK expressly limits reporting and notification requirements to discharges that are “knowable with existing systems and models” (ECL section 17-0826-a (1)). The proposed rule, however, does require owners and operators of POTWs and POSSs in specified situations to make reasonable efforts to expeditiously issue CSO advisories to the general public through appropriate electronic media on a waterbody basis.
3. ‘Needs and benefits.’ The purpose of the rule is to implement ECL section 17-0826-a which is intended to facilitate prompt responses to untreated and partially treated sewage discharges by state and local authorities and inform the public of these discharges so that they may avoid exposure. Sewage discharge reports may be used by DEC to make decisions regarding the closing of shellfish lands and prohibiting shellfish activities. DEC may also use reported information to take enforcement action against wastewater utilities, seeking penalties and permanent corrective measures. Furthermore, NYSDOH and local health departments may use reported information to assess the potential impact on public and private water supplies and to make determinations about regulating bathing beaches.
The rule is necessary to implement SPRTK’s two hour reporting and four hour notification requirements and to establish a SPDES registration program for POSSs. The proposed rule would benefit the public health and the environment by obligating owners and operators of POTWs and POSSs to report and disclose untreated and partially treated sewage discharges.
4. ‘Costs.’ Some municipalities that have POTWs or POSSs (or their contractors) may need to upgrade their computer systems at a cost of approximately $1,000 to comply with the proposed rule’s two hour reporting and four hour notification provisions. Moreover, some municipalities may need to spend a de minimis amount for employee services to comply with the rule. Local health departments are expected to bear similar expenses to those associated with reporting of discharges. Furthermore, DEC will need to incur expenses to develop the electronic media to be used by owners and operators of POTWs and POSSs to notify the general public of untreated and partially treated sewage discharges. DEC has selected the NY-ALERT system maintained by the State Office of Emergency Management (SOEM) to implement the reporting and notification requirements of the proposed rule. The necessary upgrade to the NY-ALERT system is expected to cost DEC approximately $50,000. This estimate was supplied by Buffalo Computer Graphics, the NY-ALERT consultant for SOEM. Moreover, NYS Information Technology Services estimates that DEC will need to spend approximately $125,000 to upgrade its own computer systems so that it may post reported information expeditiously to its website as required by SPRTK.
5. ‘Local government mandates.’ The proposed rule would require owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities within two hours of discovery, irrespective of the area impacted by the discharge, except partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. POTWs and POSSs would include systems that are owned by “a county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.”
The proposed rule would also obligate owners and operators of POTWs and POSSs to notify the chief elected official of the municipality where the discharge occurred and adjoining municipalities of untreated and partially treated sewage discharges within four hours of discovery and provide that these entities must also notify the general public of any such discharges to surface water within the same four hour time frame through appropriate electronic media as determined by DEC. As with the two hour reporting requirement, these four hour notifications would not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification provision, the proposed rule would define ‘municipality’ to mean “a city, town or village,” and define an ‘adjoining municipality’ to be “any municipality that is directly adjacent to the municipality in which the discharge occurred.” Furthermore, the proposed rule would require owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Finally, owners and operators of POSSs would be obligated to file five day written incident reports; properly operate and maintain their facilities; and allow DEC to conduct inspections and copy records.
6. ‘Paperwork.’ It is anticipated that the NY-ALERT system or another suitable electronic system will be used by owners and operators of POTWs and POSSs to satisfy both the two hour reporting and four hour notification requirements of the proposed rule. SPDES registrations for POSSs, five day written incident reports, and notifications of a change in POSS ownership or operation would need to be completed on forms prescribed by or acceptable to DEC. The reporting, notification and paperwork requirements of the proposed rule are necessary to implement SPRTK which expressly mandates two hour reporting and four hour notification requirements and establishes POSSs as a new group of regulated entities.
7. ‘Duplication.’ Under existing regulations, SPDES permittees are only required to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery if the discharge would affect a bathing area during the bathing season, shellfishing or a public drinking water intake, whereas untreated and partially treated sewage discharges affecting other areas must be reported to DEC, in most instances, within twenty-four hours of discovery (6 NYCRR section 750-2.7(b), (c)). Under the proposed rule, two hour reporting by owners and operators of POTWs and POSSs generally applies to all untreated and partially treated sewage discharges that have been discovered, irrespective of the area impacted by the discharge. The proposed rule would prevent duplication by eliminating 24 hour reporting by POTW SPDES permittees of those discharges currently described in 6 NYCRR section 750-2.7(c) that would now be covered by the new two hour reporting.
8. ‘Alternatives.’ DEC considered requiring owners of POSSs to obtain SPDES permits rather than registrations for their facilities. This alternative was rejected because SPDES registrations are sufficient to implement SPRTK’s reporting and notification requirements for POSSs. DEC also considered requiring municipalities to develop their own systems to comply with SPRTK. This alternative was also rejected due to the many benefits of NY-ALERT. NY-ALERT will be easy for owners and operators of POTWs and POSSs to use and will allow them to satisfy all of SPRTK’s reporting and notification obligations for an incident as the same time through a common system. By using NY-ALERT, DEC will be able to track discharges, control computer system security, maintain data quality and satisfy its statutory obligations efficiently. NY-ALERT will also save municipalities the expense of developing their own systems. If DEC switches from NY-ALERT to another electronic system in the future, it will seek a system that provides similar attributes.
9. ‘Federal standards.’ The proposed rule would exceed federal standards for the same or similar subject areas. The proposed rule would extend the requirement to file five day written incident reports to owners and operators of POSSs which are not currently subject to federal or state five day reporting obligations (40 CFR section 122.41(l)(6); 6 NYCRR section 750-2.7(d)). Furthermore, there is no requirement under federal law that owners and operators of POTWs and POSSs report untreated and partially treated sewage discharges to the government within two hours of discovery or that they notify the municipality where the discharge occurred, adjoining municipalities, or the general public of discharges within four hours of discovery. Federal law also does not provide for expeditious issuance of CSO advisories by owners and operators of POTWs and POSSs. Finally, owners of POSSs are not required by federal law to obtain SPDES registrations for POSSs or inform the government of a change in facility ownership or operation. The rule exceeds federal standards because SPRTK mandates the specific reporting and notification requirements imposed by this rule.
10. ‘Compliance schedule.’ The rule takes effect upon filing of the rule with the secretary of state and publication of the notice of adoption in the State Register. Regulated entities will be able to comply with the rule as soon as it takes effect.
Regulatory Flexibility Analysis
1. ‘Effect of Rule.’ All counties, towns, cities, villages, district corporations, special improvement districts, sewer authorities and agencies thereof in the state that own or operate a publicly owned treatment works (POTW) or a publicly owned sewer system (POSS) would be subject to the requirements of this rule. There are approximately 620 POTWs that would be affected, and the Department of Environmental Conservation (DEC) estimates that there are approximately 300 POSSs that would be affected. The rule would extend regulatory oversight to POSSs as DEC does not currently regulate POSSs through its SPDES program. Cities, towns and villages that have POTWs or POSSs or that adjoin these entities would be beneficially affected by the rule as they would benefit from the notification requirements imposed by the rule. No small businesses would be affected by this rule.
2. ‘Compliance Requirements.’ The rule would require owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to the DEC and the local health department, or if there is none, the New York State Department of Health within two hours of discovery. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit would not have to be reported. Owners and operators of POTWs and POSSs would also be required to continue reporting for each day after the initial report is made until the discharge terminates, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the discharge report. The current definition of ‘municipality’ in the existing regulations (6 NYCRR section 750-1.2(a)(51)) would apply to the proposed definition of ‘POSS’ and continue to apply to the definition of ‘POTW’ which would be left unchanged. Thus, both POTWs and POSSs would include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The proposed rule, however, would distinguish a POSS from a POTW by defining a POSS as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” In contrast, a POTW does not include a municipally owned sewer system unless the sewer system that discharges to the POTW is owned by the same municipality. The proposed rule would also describe the necessary content of two hour reports to the extent knowable with existing systems and models as prescribed by Environmental Conservation Law (ECL) section 17-0826-a(1), (a)–(f).
Furthermore, the proposed rule would obligate owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality of untreated and partially treated sewage discharges within four hours of discovery. Owners and operators of POTWs and POSSs would also be required to continue notifying these municipalities each day that the discharge continues after the date the initial notification is made until the discharge terminates, except that on the day the discharge terminates, a notification that the discharge has terminated may be made in lieu of the discharge notification for that day. The municipal notification requirement would not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification requirement, a ‘municipality’ would be limited to mean “a city, town or village” and an ‘adjoining municipality’ would mean “a municipality (i.e., city, town or village) that is directly adjacent to the municipality in which the discharge occurred.”
In addition, the rule would require owners and operators of POTWs and POSSs to notify the general public within four hours of discovery of discharges of untreated and partially treated sewage to surface water through appropriate electronic media as determined by DEC, except that no notification is required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. Like municipal notifications, owners and operators of POTWs and POSSs would be required to make notifications to the general public for each day that the discharge continues and a termination notice may be made in lieu of a discharge notification on the day the discharge concludes. However, as with the initial public notification, the daily public notifications would be limited to surface water discharges unlike the municipal notifications which would apply to all untreated and partially treated sewage discharges.
The proposed rule does not require POTWs or POSS to upgrade their infrastructure or install monitoring equipment. However, for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, the proposed rule would require owners and operators of POTWs and POSSs to make reasonable efforts to expeditiously issue advisories through appropriate electronic media to the general public when, based on actual rainfall data and predictive models, enough rain has fallen that combined sewer overflows are likely of enough volume to cause potential health concerns for people who may come in contact with the water. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Under the proposed rule, owners of POSSs would need to obtain State Pollutant Discharge Elimination System (SPDES) registrations for these facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs would be required to properly operate and maintain their facilities; file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); and allow DEC to conduct inspections and copy records.
3. ‘Professional Services.’ Municipalities that own POTWs and POSSs may need to employ professional services to comply with the rule if existing employees are not sufficient to handle these duties. The services needed under the proposed rule would consist of two hour reporting and four hour notification of untreated and partially treated sewage discharges by owners and operators of POTWs and POSSs; continued reporting and notification by owners and operators of POTWs and POSSs for each day after the initial report or notification is made until the discharge terminates; expeditious advisories to the public by owners and operators of POTWs and POSSs regarding certain combined sewer overflows; filing five day written incident reports by owners and operators of POSSs (as currently required for POTW SPDES permittees and other SPDES permittees); registering of POSSs; and notifying DEC of a change in ownership or operation of POSSs.
4. ‘Compliance Costs.’ There may be some initial capital costs to municipalities (or their contractors) to comply with the rule. These costs would consist of upgrades to computer systems to meet the two hour reporting and four hour notification requirements if existing computer systems are not adequate. It is estimated that the cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule would be a single expenditure of about $1,000. Approximately 140 smaller municipalities in rural areas (or their contractors) would need to upgrade their computer systems to comply with the rule. It may also be necessary for some municipalities to hire additional employees or to extend the work hours of current employees on an annual basis to comply with the rule if existing staff are unable to handle these duties during current work hours. The pay rate of a qualified employee to handle the duties associated with the rule is estimated to be $34.80 to $60.85 per hour.
There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable events per year at a de minimis cost for reporting and record keeping and that 570 of these POTWs and POSSs will be located in smaller rural municipalities. DEC based the above labor costs on use of an alert system that will notify DEC, NYSDOH, local health departments, elected officials, adjoining municipalities, and the general public. The Sewage Pollution Right to Know Act (ECL § 17-0826-a), however, only mandates use of the alert system selected by DEC to satisfy the four hour public notification requirement. Labor costs will be higher if the facility contacts the other necessary parties individually or if the facility experiences a significantly higher number of reportable events. The initial capital costs and continuing compliance costs described above are not expected to vary based upon the type and/or size of the local government bearing these costs.
5. ‘Economic and Technological Feasibility.’ Compliance with the rule is expected to be feasible for local governments both economically and technologically. It is expected that local governments will have the ability to finance the costs associated with the rule. Two hour reporting to DEC and health authorities under the proposed rule would be accomplished by electronic entry of information into the NY-ALERT system which will forward the entered information to DEC and health authorities. The NY-ALERT system will also accommodate four hour notification to the chief elected official of the municipality where the discharge occurred, adjoining municipalities and the general public. The NY-ALERT system will not be technologically complex to use and will not require substantial upgrades to the existing computer systems of local governments. If DEC switches to a system other than NY-ALERT in the future, it will seek a system that provides similar attributes.
6. ‘Minimizing Adverse Impact.’ The rule is designed to minimize adverse economic impacts to local governments within the context of the statutory mandate. The time frames for two hour reporting and four hour notification in the rule match the time frames set forth in the enabling statute (Environmental Conservation Law (ECL) section 17-0826-a). There are not expected to be any significant costs to local governments to comply with the rule. It is expected that local governments will be able to use existing computer systems to comply with the rule without needing substantial upgrades to these systems. The approaches for minimizing adverse economic impact suggested in SAPA section 202-b(1) and other similar approaches were considered, but ECL section 17-0826-a does not provide for exemptions from coverage, or for differing compliance or reporting requirements or timetables, based upon the resources of the local government. Therefore, no such approaches are contained in the proposed rule. Nevertheless, the rule is written and will be implemented in a manner that minimizes adverse economic impacts to local governments within the parameters of the statutory authority.
7. ‘Small Business and Local Government Participation.’ DEC has complied with SAPA section 202(b)(6) by assuring that small businesses and local governments have had an opportunity to participate in the rule making process. This occurred through posting notice of the proposed rule making on the DEC website; maintaining a public website informing public and private interests of the impact of the rule; and through interaction with owners and operators of POTWs and POSSs, environmental groups, and others. DEC also held Water Management Advisory Committee (WMAC) meetings on the rule which were attended by various stakeholders. Furthermore, the proposed rule will be published in the State Register and the public will be provided with an opportunity to comment on the proposed rule.
8. ‘For Rules That Either Establish or Modify a Violation or Penalties Associated With a Violation.’ The entities regulated by the proposed rule will have the ability to satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the proposed rule is necessary to provide regulated entities with the ability to immediately comply with the rule.
Rural Area Flexibility Analysis
1. ‘Types and estimated numbers of rural areas.’ The rule would apply to all towns and villages in rural areas throughout the state that have publicly owned treatment works (POTWs) or publicly owned sewer systems (POSSs) or that adjoin communities that have POTWs or POSSs.
2. ‘Reporting, recordkeeping and other compliance requirements; and professional services.’ The rule would require owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to the New York State Department of Environmental Conservation (DEC) and the local health department, or if there is none, the New York State Department of Health within two hours of discovery, except partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit would not have to be reported. Owners and operators of POTWs and POSSs would also need to continue reporting for each day after the initial report is made until the discharge terminates, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the discharge report. The definition of ‘municipality’ in the existing regulations (6 NYCRR section 750-1.2(a)(51)) would apply to the proposed definition of ‘POSS’ and continue to apply to the definition of ‘POTW’ which would be left unchanged. Thus, both POTWs and POSSs would include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The proposed rule, however, would distinguish a POSS from a POTW by defining a POSS as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” In contrast, a POTW does not include a municipally owned sewer system unless the sewer system that discharges to the POTW is owned by the same municipality. The proposed rule would also describe the necessary content of two hour reports to the extent knowable with existing systems and models as prescribed by Environmental Conservation Law (ECL) section 17-0826-a(1), (a)–(f).
Furthermore, the proposed rule would obligate owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality of untreated and partially treated sewage discharges within four hours of discovery. Owners and operators of POTWs and POSSs would also be required to continue notifying these municipalities each day that the discharge continues after the date the initial notification is made until the discharge terminates, except that on the day the discharge terminates, a notification that the discharge has terminated may be made in lieu of the discharge notification for that day. The municipal notification requirement would not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification requirement, a ‘municipality’ would be limited to mean “a city, town or village” and an ‘adjoining municipality’ would mean “a municipality (i.e., city, town or village) that is directly adjacent to the municipality in which the discharge occurred.”
In addition, the rule would require owners and operators of POTWs and POSSs to notify the general public within four hours of discovery of discharges of untreated and partially treated sewage to surface water through appropriate electronic media as determined by DEC, except that no notification is required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. Like municipal notifications, owners and operators of POTWs and POSSs would be required to make notifications to the general public for each day that the discharge continues and a termination notice may be made in lieu of a discharge notification on the day the discharge concludes. However, as with the initial public notification, the daily public notifications would be limited to surface water discharges unlike the municipal notifications which would apply to all untreated and partially treated sewage discharges.
The proposed rule does not require POTWs or POSS to upgrade their infrastructure or install monitoring equipment. However, for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, the proposed rule would require owners and operators of POTWs and POSSs to make reasonable efforts to expeditiously issue advisories through appropriate electronic media to the general public when, based on actual rainfall data and predictive models, enough rain has fallen that combined sewer overflows are likely of enough volume to cause potential health concerns for people who may come in contact with the water. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Finally, the proposed rule would establish a State Pollutant Discharge Elimination System (SPDES) registration program for POSSs; require owners and operators of POSSs to properly operate and maintain their facilities; obligate owners and operators of POSSs to file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); direct owners of POSSs to notify DEC of a change in ownership or operation of their facilities; and provide that DEC has authority to inspect POSSs and copy records. It may be necessary for municipalities in rural areas to employ professional services to carry out the responsibilities associated with the proposed rule if existing staff are insufficient to handle these duties.
3. ‘Costs.’ There may be some initial capital costs to municipalities or their contractors (including those in rural areas) to comply with the rule. These costs would consist of upgrades to computer systems to comply with two hour reporting and four hour notification requirements if existing computer systems are not adequate. It is estimated that the cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule would be a single expenditure of about $1,000. Approximately 140 municipalities (or their contractors) will need to upgrade their computer systems to comply with the rule, all of which are located in rural areas. It may also be necessary for some municipalities to hire additional employees or to extend the work hours of current employees on an annual basis to comply with the rule if existing staff are unable to handle these duties during current work hours. The proposed rule would impose two hour reporting and four hour notification requirements on owners and operators of POTWs and POSSs; establish a State Pollutant Discharge Elimination System (SPDES) registration program for POSSs; and obligate owners of POSSs to notify DEC of a change in ownership or operation of the facility. The pay rate of an employee to handle the duties associated with the rule is estimated to be $34.80 to $60.85 per hour.
There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable events per year at a de minimis cost for reporting and record keeping and that 570 of these POTWs and POSSs will be located in rural areas. DEC based the above labor costs on use of an alert system that will notify DEC, NYSDOH, local health departments, elected officials, adjoining municipalities, and the general public. The Sewage Pollution Right to Know Act (ECL § 17-0826-a), however, only mandates use of the alert system selected by DEC to satisfy the four hour public notification requirement. Labor costs will be higher if the facility contacts the other necessary parties individually or if the facility experiences a significantly higher number of reportable events. There are not expected to be any significant variations in initial capital costs and annual costs for municipalities in rural areas.
4. ‘Minimizing adverse impact.’ There are no adverse environmental, public health or other impacts to rural areas associated with the rule. The rule would impose the same compliance, reporting and notification requirements (and associated time frames) upon all owners and operators of POTWs and POSSs statewide. The rule is being carried out in this manner because the enabling legislation, ECL section 17-0826-a, does not distinguish between POTWs and POSSs located in rural areas and those located elsewhere. The approaches suggested by SAPA section 202-bb(2) and other similar approaches were considered, but the statutory authority does not provide for exemptions and imposes the same requirements and timetables on all POTWs and POSSs throughout the state irrespective of their location.
5. ‘Rural area participation.’ DEC complied with SAPA section 202-bb(7) by providing public and private interests in rural areas with the opportunity to participate in the rule making process. This occurred through posting notice of the proposed rulemaking on the DEC website; maintaining a public website informing public and private interests of the impact of the rule; and through interaction with owners and operators of POTWs and POSSs, environmental groups, and others. The Department also held Water Management Advisory Committee (WMAC) meetings on the rule which were attended by various stakeholders. Furthermore, notice of the proposed rule will be published in the State Register and the public will be provided with an opportunity to comment on the proposed rule.
Job Impact Statement
The rule will not have any substantial adverse impact on jobs or employment opportunities as apparent from the rule’s nature and purpose. The rule reiterates and implements the requirements set forth in ECL section 17-0826-a (the Sewage Pollution Right to Know Act) and establishes a SPDES registration program for publicly owned sewer systems. As evident from its subject matter, the rule will not have any adverse impact on jobs or employment opportunities as the new requirements will not hinder jobs or employment opportunities, but rather could necessitate the hiring of additional personnel or the extension of work hours for current employees to meet the requirements of the rule.
