Subchapter E: Enforcement

§ 18-51 Enforcement.

   (a)   The City shall enforce the rules and regulations set forth herein, in a manner consistent with applicable Federal, State and local laws.

   (b)   The City may, in enforcing the rules and regulations set forth herein, exercise all of its rights and remedies under applicable Federal, State and local laws, including, but not limited to: inspecting facilities engaging in regulated activities and sources of the water supply in accordance with applicable federal and State constitutional requirements; issuing notices of violation or of intention to sue; instituting civil or criminal actions; seeking injunctive relief and legal damages; imposing penalties in accordance with Public Health Law § 1103; and entering into consent orders and agreements.

   (c)   Nothing contained in these rules and regulations shall be construed as limiting the City's ability to exercise any of its rights and remedies under any other law, statute, rule, regulation, or order, including, but not limited to, the Federal Water Pollution Control Act (aka the Clean Water Act), 33 U.S.C. § 1251 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Oil Pollution Act, 33 U.S.C. §§ 2701 et seq.; Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; New York State Public Health Law; New York State Environmental Conservation Law; New York State Navigation Law; New York State Department of Health septic system requirements (10 NYCRR Appendix 75-A); New York State Real Property Actions and Proceedings Law; and New York State Penal Law.

   (d)   Upon completion of the requirements of the State Administrative Procedure Act (SAPA) and the promulgation of these rules and regulations by the New York State Department of Health as State rules and regulations, the requirements of these rules and regulations may also be enforced by the Commissioner of the New York State Department of Health.

Subchapter F: Variances

§ 18-61 Variances.

   (a)   The Commissioner may, in his or her discretion, upon written application from the applicant, grant a variance from the requirements of these rules and regulations for a regulated activity and for the alteration or modification of a noncomplying regulated activity.

      (1)   An application for a variance for a regulated activity or for an alteration or modification of a noncomplying regulated activity shall:

         (i)   Identify the specific provision of the rules and regulations from which the variance is sought or identify the nature and extent of the alteration or modification of the noncomplying regulated activity;

         (ii)   Demonstrate that the variance requested is the minimum necessary to afford relief; and

         (iii)   Demonstrate that the activity as proposed includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are at least as protective of the water supply as the standards for regulated activities set forth in these rules and regulations.

      (2)   In granting variances the Commissioner may impose specific conditions, including evidence of financial security, time limitations and limitations on any transfer of the variance granted. In addition, the Commissioner may grant a lesser variance than that applied for.

      (3)   Any proposed substantial alteration or modification of an activity that has been granted a variance under this subchapter shall require the review and approval of the Department and shall comply with the provisions of this subchapter.

      (4)   The burden of proof for a variance shall be on the applicant.

      (5)   Except for a variance granted for an alteration or modification of a noncomplying regulated activity, a grant of a variance for a regulated activity shall not be deemed to make such activity a noncomplying regulated activity under these rules and regulations.

   (b)   An appeal of a denial of a variance for a regulated activity or a denial of a variance for an alteration or modification of a noncomplying regulated activity may be made in the manner specified in 15 RCNY § 18-28.

   (c)   Failure to comply with any condition of a variance for a regulated activity, or for a variance for an alteration or modification of a noncomplying regulated activity shall be a violation of these rules and regulations. The Department shall review the terms and conditions of each variance granted at least once every five years to determine whether the terms and conditions of the variance have been complied with.

   (d)   Variances within coliform and phosphorus restricted basins.

      (1)   The Department may grant a variance from the prohibition of locating a new wastewater treatment plant or expanding an existing wastewater treatment plant in a coliform restricted basin, or in a phosphorus restricted basin, where the Department determines that conditions in the area to be served by the new or expanded wastewater treatment plant are resulting in the release or discharge of inadequately treated sewage into the water supply, and that there is no other feasible method of correcting such release or discharge of inadequately treated sewage except to provide a variance from such prohibition. Provided, however, that in such cases, the additional treatment capacity of the new or expanded wastewater treatment plant may only be of a size sufficient to service the area identified as the source of contamination and any immediate area of concern as limited or delineated by the Department.

      (2)   A request for a variance from the prohibition of expanding an existing wastewater treatment plant located in a phosphorus restricted basin which does not meet the criteria set forth in subdivision (d)(1) may be granted only if the applicant demonstrates that subsurface discharge is impossible and that every one (1) kilogram of projected increase in the phosphorus load resulting from the expansion of the existing wastewater treatment plant and accompanying non-point source runoff, is offset by two (2) kilograms of reductions in phosphorus loading within such basin provided by enhanced treatment, basin-wide phosphorus trading, and/or a watershed protection plan developed pursuant to Subchapter H.

   (e)   Variances Within the 60 Day Travel Time to Intake in the Croton System.

      (1)   The Department may grant a variance from the prohibition set forth in 15 RCNY § 18-36(d)(2)(i) against locating a new wastewater treatment plant or expanding an existing wastewater treatment plant in the Croton System, within the 60 day travel time to intake, where the Department has made the following determinations:

         (i)   One of the following situations is present:

            (a)   conditions in the area to be served by the new or expanded wastewater treatment plant, including failed subsurface sewage treatment systems, are resulting in the release or discharge of inadequately treated sewage into the water supply; or

            (b)   influent flow rates to an existing wastewater treatment plant exceed the permitted flow limit for the wastewater treatment plant as specified in its SPDES permit and/or the design capacity of the wastewater treatment plant and have caused, or can reasonably be expected to cause, the release of inadequately treated sewage.

         (ii)   There is no other feasible method of correcting such release or discharge of inadequately treated sewage except by locating a new or expanding an existing surface-discharging wastewater treatment plant within the 60 day travel time to intake; and

         (iii)   The applicant has demonstrated that there are no sources of inflow or infiltration to the sewer system of the new or expanded wastewater treatment plant, other than sources that are to be eliminated pursuant to a consent order or other commitment binding on the applicant, that can practicably be eliminated.

      (2)   The applicant must demonstrate to the Department, that the total flow to the new or expanded wastewater treatment plant authorized pursuant to this subdivision will be limited as follows:

         (i)   if the applicant seeks to expand a wastewater treatment plant serving a sewer district, the flow to the expanded wastewater treatment plant may include only:

            (a)   flow from facilities within the sewer district that are connected to the wastewater treatment plant as of the date of the application for a variance (based on the flows reported by the wastewater treatment plant pursuant to its SPDES permit in the year preceding the application for the variance); and

            (b)   flow from facilities within the sewer district that are served by subsurface sewage treatment systems as of the date of the application for a variance; and

            (c)   additional flow of no more than ten percent (10%) of the average of the flows reported by the wastewater treatment plant pursuant to its SPDES permit in the year preceding the application for the variance to be allocated within the sewer district; and

            (d)   reasonably anticipated flows from any area(s) outside the sewer district identified as source(s) of contamination pursuant to clause (a) of subparagraph (i) of paragraph (1) of subdivision (e) of this section.

         (ii)   if the applicant seeks to expand a wastewater treatment plant without a sewer district, the flow to the expanded wastewater treatment plant may include only:

            (a)   flows to the wastewater treatment plant as of the date of the application for a variance;

            (b)   reasonably anticipated flows from any area(s) identified as source(s) of contamination pursuant to clause (a) of subparagraph (i) of paragraph (1) of subdivision (e) of this section.

         (iii)   if the applicant seeks to construct a new wastewater treatment plant, the flow to the new wastewater treatment plant may include only reasonably anticipated flows from the area(s) identified as source(s) of contamination pursuant to clause (a) of subparagraph (i) of paragraph (1) of subdivision (e) of this section.

      (3)   A new or expanded wastewater treatment plant authorized pursuant to a variance under this subdivision, and its sewer system, shall meet the following conditions:

         (i)   The wastewater treatment plant shall provide sand filtration or a Department-approved alternative technology to sand filtration, disinfection, phosphorus removal, and microfiltration or a Department-approved equivalent technology to microfiltration, as required by these rules and regulations; and

         (ii)   The wastewater treatment plant shall be designed, operated, and maintained to meet a total phosphorus limit of 0.1 mg/l, and the applicant shall seek to have such limit included in the wastewater treatment plant's SPDES permit; and

         (iii)   The applicant shall develop and implement a Department-approved Capacity, Management, Operation and Maintenance (CMOM) plan for the entire sewer system serving the wastewater treatment plant, and shall seek to have such plan incorporated into the wastewater treatment plant's SPDES permit. At a minimum, such CMOM plan shall include:

            (a)   a map of the entire collection system;

            (b)   an assessment of the current capacity of the collection system;

            (c)   a program and schedule for routine inspections and testing, and preventive operation and maintenance activities;

            (d)   a list of any structural deficiencies identified in the system and a schedule for short- and long-term rehabilitation measures to address each identified deficiency;

            (e)   an inflow study, and a plan and implementation schedule, to control and eliminate, to the maximum extent practicable, stormwater contributions from sources such as catch basins, downspouts, and sump pumps; and

            (f)   a program for training appropriate personnel on collection system operation and maintenance; and

         (iv)   All wastewater pumping stations in the sewer system serving the new or expanded wastewater treatment plant shall meet the alarm systems and emergency operation requirements applicable to new wastewater pumping stations as set forth in "Recommended Standards for Wastewater Facilities," Great Lakes - Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers (2014); and

         (v)   The applicant shall seek to have included in the wastewater treatment plant's SPDES permit a condition providing that in the event that the SPDES permitted flow limit is violated, the owner will investigate the violation and prepare a corrective action plan.

(Amended City Record 10/30/2019, eff. 11/29/2019)

Subchapter G: Administration and Enforcement by Local Governments

§ 18-71 Certification of Administrative Programs.

   (a)   The local government of a town, city, village or county may apply to the Department, care of the Engineering Section (see 15 RCNY § 18-15), for certification of a program to administer specific provisions of these rules and regulations.

   (b)   A local government's proposed program for administration of specific provisions of these rules and regulations may include processing and review of, and determinations on, applications for approval of specific regulated activities.

   (c)   An application for certification of a local government's administrative program shall include the following information:

      (1)   Identification of the specific substantive and procedural provisions of the rules and regulations that the local government is requesting to administer;

      (2)   Number, technical expertise and experience of personnel and identification of other resources that will be dedicated to administration of the program;

      (3)   Identification of funding or revenue sources for implementation of the program, including a commitment of such funding for the next fiscal year;

      (4)   Identification of the specific department, unit or officials who will be designated to administer these rules and regulations;

      (5)   Identification of information management capability to insure efficient administration and adequate record keeping;

      (6)   Identification of applicable existing local laws and rules and regulations and plans for coordination of such laws and rules and regulations with the requirements of these rules and regulations; and

      (7)   Any other information requested by the Department.

   (d)   (1)   The Department shall review an application for certification of an administrative program and make a preliminary determination to certify or deny certification of a program within 60 business days of receipt of such application. A determination to certify shall be based upon a finding by the Department that the resources, funding and administrative program proposed by the applicant will provide a level of efficiency and effective protection of the water supply equal to that which would otherwise be provided by the Department under these rules and regulations. Notice of the preliminary determination shall be provided in writing by the Department to the designated representative of the local government submitting the application for certification.

      (2)   Within 60 business days of the Department's preliminary certification of the administrative program, the Department and the local government shall commence negotiating and writing a draft memorandum of understanding setting forth the requirements and conditions of the program.

      (3)   A governmental agency or unit of a town, city, village or county that has a program for administration and/or enforcement that has been certified by the Department pursuant to this subchapter shall be referred to as a "certified local government."

§ 18-72 Administrative Determinations.

   (a)   Each administrative program submitted by a local government under this subchapter shall contain provisions governing the extent and frequency of Department review and approval of administrative determinations made by the local government, as the Department shall agree upon.

   (b)   Pursuant to each administrative program submitted by a local government under this subchapter, the local government shall provide the Department (Attention: Chief, Sources Division) with a copy of each administrative determination made by such local government, at the same time that the determination is made available to the applicant.