Part 128 - New York City

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Sections 201(l)(1), 1100; Articles 2 & 11

SubPart 128-1 - General Provisions

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.1 - Preface

Section 128-1.1 Preface.

(a) The health, welfare and economic well-being of nearly nine million residents in the five counties of New York City ("the City"), and of an increasing number of upstate New York communities is inextricably tied to the quality of the source waters in the watersheds of the New York City Water Supply located in Westchester, Putnam, Dutchess, Delaware, Ulster, Greene, Sullivan and Schoharie Counties, and Fairfield County in Connecticut. The high quality of these waters faces a continuing threat from the cumulative and episodic impacts of pollution sources generated by certain land uses and activities in the watersheds. It is the duty of the Commissioner of the New York City Department of Environmental Protection (the "Department") and the New York State Department of Health to protect the high quality of waters from which the City's water supply is drawn and preserve it from degradation for the purpose of protecting the health and general welfare of its consumers.

(b) These rules and regulations repeal in their entirety and supersede the Rules and Regulations for the Department of Water Supply, Gas and Electricity of the City of New York enacted the 11th day of June, 1953.

(c) These rules and regulations are hereby enacted pursuant to the authority vested in the New York State Department of Health and the Commissioner of the Department of Environmental Protection, as set forth in section 128-1.3.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.2 - Purpose and findings

128-1.2 Purpose and findings.

(a) The quality of the drinking water supplied to the City and upstate communities which draw from the New York City water supply depends primarily on the quality of the source waters which feed the reservoirs. The source waters and reservoirs are vulnerable to degradation and contamination from various sources and activities, including, but not limited to:

(1) Wastewater discharges to surface water and groundwater;

(2) Urban, suburban, rural, mining, silvicultural and agricultural land use practices that result in nonpoint source runoff of pollution and/or in adverse changes in the natural rate at which water flows into and through a delineated drainage basin; and

(3) Improper use, handling, storage, transport and/or disposal of substances, including but not limited to, hazardous substances, radioactive materials, pesticides, fertilizers, winter highway maintenance materials, solid wastes, and animal wastes.

(b) The Department finds that such sources and activities, either alone or in conjunction with any other related activities, may constitute a source of contamination to or degradation of the water supply, may cause a contravention of the State water quality standards set forth in 6 NYCRR Parts 701-705, and Subpart 128-4 of these rules and regulations, and may result in the impairment of the use of the water supply for drinking, culinary or food processing purposes.

(c) In response to the Safe Drinking Water Act Amendments of 1986, the United States Environmental Protection Agency has begun implementing a significant expansion of regulatory requirements for public water systems. In order to protect the public health, and to satisfy the legislative mandates of the Safe Drinking Water Act Amendments and the rules and regulations in 40 CFR Parts 141 and 142, the New York State Department of Health has amended the State Sanitary Code, 10 NYCRR Part 5, Subpart 5-1, Public Water Systems, which contains New York State s Surface Water Treatment Rule. Although both Federal and State law propose filtration as a method for water quality treatment for pathogen control, the effectiveness of the filtration process and complexity of plant operation is dependent upon the quality of the water entering the filtration plant. In addition, many contaminants are not removed by conventional filtration. Therefore, it is clear that enhancement of the City's existing watershed rules and regulations would be necessary even if the City were to build filtration plants to filter its entire water supply.

(d) It is the goal and intent of these rules and regulations to protect the public health by averting future contamination to and degradation of the water supply and by remediating existing sources of pollution or degradation of the New York City water supply. These rules and regulations implement the Department's intention to minimize the discharge of pollutants into the source waters from both point and nonpoint sources, minimize the adverse impacts of erosion, limit the discharge of phosphorus to source waters which may accelerate the eutrophication process, and provide notification to the City of ongoing or proposed activities, which either alone or in conjunction with other existing and proposed regulated activities, may cause contamination to or degradation of the water supply.

(e) It is the purpose of these rules and regulations to insure compliance with the Federal and State standards by providing a comprehensive watershed protection program. Furthermore, these rules and regulations articulate an anti-degradation policy for the New York City water supply system. These rules and regulations are promulgated to govern those activities in the watershed that threaten the quality of the water supply of the numerous upstate communities and the City of New York. While bound by its responsibility to protect the public health, the City has also taken the needs of the communities and businesses in the New York City watershed into consideration in drafting and promulgating these rules and regulations.

(f) The City reserves the right to re-examine these rules and regulations periodically to insure that they continue to further the goal and intent referred to in paragraph (d) of this subdivision and the purposes referred to in paragraph (e) of this subdivision. Without limiting the foregoing, and without limiting the City's rights to continue, modify, amend, suspend, waive or revoke any or all of these rules and regulations at any time in accordance with applicable law, the City intends to re-examine these rules and regulations ten (10) years after the effective date hereof to ascertain whether, and to what extent, these rules and regulations should be modified or amended so that they continue to serve their intended purposes.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.3 - Authority

128-1.3 Authority. These rules and regulations are promulgated pursuant to Article 11 of the New York State Public Health Law by the New York State Department of Health. In addition, these rules and regulations were duly promulgated by the Commissioner of the Department of Environmental Protection of the City of New York and became effective on May 1, 1997, pursuant to Article 11 of the New York State Public Health Law and section 24-302 of the the New York City Administrative Code, as approved by the Commissioner of the New York State Department of Health.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.4 - Applicability

128-1.4 Applicability.

(a) These rules and regulations apply to all persons undertaking, or proposing to undertake, the activities in the categories listed below, where such activities are specifically regulated in these rules and regulations and occur in the New York City watershed:

(1) Discharge or storage of pathogenic materials.

(2) Discharge or storage of hazardous substances and hazardous wastes.

(3) Discharge or storage of radioactive materials.

(4) Discharge or storage of petroleum products.

(5) Discharge or transport of human excreta.

(6) Design, construction and operation of wastewater treatment plants.

(7) Design, construction and operation of sewerage systems and service connections.

(8) Design, construction and operation of intermediate sized and individual sewage treatment systems.

(9) Discharge of stormwater and sediment, and preparation and implementation of stormwater pollution prevention plans.

(10) Construction of impervious surfaces.

(11) Discharge from miscellaneous point sources.

(12) Discharge of solid waste, including the siting of junkyards and solid waste management facilities.

(13) Discharge from agricultural activities.

(14) Discharge or storage of pesticides.

(15) Application and storage of fertilizers.

(16) Snow disposal and application and storage of winter highway maintenance materials.

(b) These rules and regulations apply to substantial alterations or modifications of the activities described in subdivision (a) of this section.

(c) These rules and regulations apply to a substantial alteration or modification of any noncomplying regulated activity, as set forth in these rules and regulations.

(d) These rules and regulations apply to noncomplying regulated activities that are required to come into compliance with these rules and regulations as set forth in these rules and regulations.

(e) The boundaries of the New York City watershed have been delineated on United States Geological Survey maps, which are available for inspection at the offices of the local representatives of the Department and the New York State Department of Health listed in section 128-1.5

and the New York State Department of Health listed in section 128-1.5 of this subpart. A map of the watershed is provided in Appendix 128-A of this Part for reference purposes only.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.5 - Local representatives

128.1-5 Local representatives.

(a) Information about these rules and regulations and application and other forms required by these rules and regulations may be obtained from the following offices of the Department. Applications for Department approval of a regulated activity must be submitted to one of the offices of the Department listed in subdivision (b). Petitions appealing from a determination issued by the Department or requesting a hearing on a cease and desist order issued by the Department must be submitted to the offices listed in subdivision (c).

(1) New York City Department of Environmental Protection Chief, Engineering Section 465 Columbus Avenue Valhalla, New York 10595 Telephone:(914) 742-2069

(2) New York City Department of Environmental Protection 5 Jay Street Katonah, New York 10536 Telephone:(914) 232-5171 City Tie-line: (212) 349-4017

(3) New York City Department of Environmental Protection Deputy Chief, Engineering P.O. Box 370 Route 28A Shokan, New York 12481 Telephone:(914) 657-6972

(4) New York City Department of Environmental Protection P.O. Box 358 Grahamsville, New York 12740 Telephone:(914) 985-2275 City Tie-line: (212) 349-1930

(5) New York City Department of Environmental Protection P.O. Box D Downsville, New York 13755 Telephone:(607) 363-7000

(b) Applications for Department approval of a regulated activity must be submitted to one of the following offices of the Department:

(1) New York City Department of Environmental Protection Deputy Chief, Engineering 465 Columbus Avenue Valhalla, New York 10595 Telephone:(914) 773-4418

(2) New York City Department of Environmental Protection Deputy Chief, Engineering P.O. Box 370 Route 28A Shokan, New York 12481 Telephone:(914) 657-6972

(c) Petitions for appeal of a determination issued by the Department in accordance with section 128-2.8 and petitions for a hearing on a cease and desist order issued by the Department in accordance with section 128-2.9 must be submitted to the address listed in paragraph (1), with a copy to the address listed in paragraph (2).

(1) New York City Office of Administrative Trials and Hearings 40 Rector Street New York, New York 10006-1705 Telephone:(212) 442-4900

(2) New York City Department of Environmental Protection General Counsel 59-17 Junction Boulevard 19th Floor Corona, New York 11368-5107 Telephone:(718) 595-6555

(d) For communications with the Department regarding any known or suspected violations of these rules and regulations or notification of potential contamination of the water supply occurring anywhere in the watershed:

New York City Water Supply Watershed Police Telephone: Croton/Kensico (914) 245-6694 Beerston (607) 865-4185

(e) The local representative of the New York State Department of Health is:

New York State Department of Health Office of Regulatory Reform Tower Building, Room 2415 Empire State Plaza Albany, NY 12237-0097 (518)473-7488

(f) Addresses and phone numbers contained herein are informational and persons subject to these rules and regulations shall utilize successor addresses and phone numbers where appropriate.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-1.6 - Definitions

128-1.6 Definitions.

(a) The following terms shall have the stated meanings when used in this Part, except where otherwise specifically provided:

(1) Access road means an impervious private or public road, other than a driveway, which connects a parcel to an existing public or private road and which is necessary in order to enable the parcel to be developed. Access road does not include an internal road within a subdivision or within an area of common development involving two (2) or more parcels.

(2) Affiliate means any agency or person controlled by, controlling, or under common control with an applicant.

(3) Agency means any local, state or federal department, agency, board, public benefit corporation, public authority, commission, district, or governing body, including any city, county, and other political entity of the State.

(4) Agricultural activity means an activity that occurs on land used in agricultural production as that term is defined in section 301(4) of the Agriculture and Markets Law.

(5) Alteration or modification means any change in physical configuration, intensity of use, location, plans, design, site, capacity, treatment standard or method, or other change in a regulated activity or in a noncomplying regulated activity. This term shall not include routine repairs or maintenance of structures and equipment.

(6) Approval means any final decision by an agency to issue a permit, certificate, license, lease, renewal or other entitlement or to otherwise authorize a proposed project or activity.

(7) Area zoned for commercial or industrial uses means a commercial or industrial zoning district, hamlet zoning district, or highway business zoning district. Areas zoned for commercial or industrial uses shall not include agricultural zoning districts.

(8) Base Flow means visible sustained or fair weather runoff of water, including groundwater.

(9) Best management practices (BMPs) means methods, measures or practices determined to be the most practical and effective in preventing or reducing the contamination to or degradation of the water supply. Best management practices include, but are not limited to, structural and nonstructural controls and operations and maintenance procedures, that can be applied before, during or after regulated activities to achieve the purposes stated herein.

(10) Best treatment technology (BTT) means methods, measures or practices determined to be the most practical and effective in reducing amounts of phosphorus in both surface and subsurface point source discharges which occur within the New York City watershed. BTT will vary with the size of the wastewater treatment plant, but is generally understood to consist of secondary treatment and chemical removal (usually accomplished by the addition of aluminum salts, iron salts, polymers, or pH adjustments with lime), with media filtration as a final step if necessary to achieve higher removal rates.

(11) CFR means the Code of Federal Regulations.

(12) City means the City of New York.

(13) Clear cutting means cutting all of the trees, not just selected trees, within a specified boundary designated by the owner of the property.

(14) Coliform restricted basin means the drainage basin of a reservoir or controlled lake in which the coliform standards as set forth in sections 128-4.1(a)(1) or (b)(1) of Subpart 128-4 are exceeded as determined by the Department pursuant to its annual review conducted under section 128-4.1(c) of Subpart 128-4.

(15) Combined sewerage system means a structure used for conveying both sewage and stormwater.

(16) Commissioner means the Commissioner of the New York City Department of Environmental Protection or its successors.

(17) Construction or construction activity means any building, demolition, renovation, replacement, restoration, rehabilitation or alteration of any new or existing structure or road.

(18) Construction and demolition debris means uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of structures and roads; and uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance and seasonal and storm related cleanup.

(19) Contamination means the introduction of any pollutant to the water supply.

(20) Controlled lake means a lake from which the City may withdraw water pursuant to rights acquired by the City or as a right of ownership. The controlled lakes are: Kirk Lake, Lake Gleneida and Lake Gilead.

(21) Croton System means Middle Branch, Bog Brook, East Branch, Croton Falls, Diverting, Titicus, Amawalk, Muscoot, New Croton, and Cross River Reservoirs, Kirk Lake, Lake Gleneida and Lake Gilead, and their respective drainage basins.

(22) Degradation means a process of reduction or deterioration of the water quality of the water supply, including the process of eutrophication.

(23) Department means the New York City Department of Environmental Protection or its successors.

(24) Design capacity means the approved flow limit of the physical apparatus of a wastewater treatment plant as specified in its SPDES permit.

(25) Designated Main Street Area means a defined area of limited size located within the East of Hudson Watershed which is an existing center of commercial, industrial, residential, or mixed use and which has been defined and designated by a local government in the East of Hudson Watershed and approved by the Department pursuant to these rules and regulations.

(26) Designated Village Center means an area in the Croton System described by the metes and bounds of a village center, whether or not located in an incorporated village, designated by a local government(s) in a Comprehensive Croton Water Quality Protection Plan prepared and agreed to in accordance with section 128-8.2 of these rules and regulations by submitting to the Department a description of the metes and bounds of such proposed Designated Village Center, a map of the described area, and a statement of the features which qualify the area as a Designated Village Center. A Designated Village Center must be an existing center of commercial, residential or mixed uses.

(27) Design professional means a professional engineer or a registered architect who is licensed to practice in the State of New York, or a land surveyor with an exemption under section 7208(n) of the Education Law.

(28) Discharge means the intentional or unintentional disposal, deposit, injection, emission, application, dumping, spilling, leaking, washing off, release, running off, draining or placing of any solid, semi-solid, liquid, or any other non-gaseous waste or other substance into or onto any land or water or into any sewerage system so that such waste or other substance may directly or indirectly enter into any watercourse, wetland, reservoir, reservoir stem, controlled lake or groundwater.

(29) Disturbed area means the portion of a site for which the imperviousness of the ground has changed from pre-construction conditions as a result of any land clearing, land grading or construction activity. Disturbed areas may include lawns and landscaped areas.

(30) Drainage basin means the land area which contributes surface water to a reservoir or controlled lake.

(31) Driveway means a route accessible by a motor vehicle between a residential building and a public or private road to provide ingress and egress from the residential building.

(32) East of Hudson Watershed means West Branch, Boyd s Corner, Bog Brook, East Branch, Croton Falls, Diverting, Titicus, Amawalk, Muscoot, New Croton, Cross River, Middle Branch and Kensico Reservoirs, Kirk Lake, Lake Gleneida and Lake Gilead, and their respective drainage basins.

(33) Effective Date means May 1, 1997, the date on which these rules and regulations became effective pursuant to the approval issued by the New York State Department of Health pursuant to section 1100(1) of the Public Health Law; publication of these rules and regulations pursuant to section 1100(2) of the Public Health Law; and completion of the requirements of the New York City Administrative Procedure Act.

(34) Effluent means water or wastewater that flows out from a wastewater treatment plant or other treatment process.

(35) Epilimnion means the uppermost, warmest, well-mixed layer of a lake during thermal stratification.

(36) Erosion means the wearing away or the movement of soil by such physical agents as wind or water, that is exacerbated by such practices as the disturbance of ground cover by stripping or removing vegetation, construction activity, or tilling.

(37) Exfiltration means wastewater that leaks out of a sewerage system into the surrounding environment, through faulty joints, defective pipes, cracks in pipes, connections, or at manholes.

(38) Existing means physically constructed, functioning and operational prior to the effective date of these rules and regulations.

(39) Expansion means an increase in the permitted flow limit for a wastewater treatment plant as specified in the SPDES permit and/or an increase in the design capacity of a wastewater treatment plant.

(40) Facility means a structure, room or other physical feature designed to perform a particular function and that makes possible some activity.

(41) Fertilizer means any commercially produced mixture, generally containing phosphorus, nitrogen and/or potassium, except compost, that is applied to the ground to increase the supply of nutrients to plants.

(42) Galley System means any subsurface system for treating sewage that employs structural chambers in a horizontal or vertical arrangement for the storage of effluent until it can be absorbed into the soil that is utilized following a septic tank as an alternative to a standard absorption field.

(43) Gasoline station means an establishment at which gasoline is sold or offered for sale to the public for use in motor vehicles.

(44) Groundwater means any water beneath the land surface in the zone of saturation. The zone of saturation is where water fills all available pore spaces.

(45) Hamlet means a population center designated as a hamlet by a Town Board in the West of Hudson watershed pursuant to a Water Supply Permit issued by the New York State Department of Environmental Conservation for Project No. 0-9999-00051/00001.

(46) Hazardous substance means any substance defined or listed in 6 NYCRR Part 597 except that hazardous substance does not mean any petroleum product, including those listed in 6 NYCRR Section 597.2, Table 1, and also does not mean any hazardous waste.

(47) Hazardous waste means any solid waste, defined or listed as a hazardous waste in 6 NYCRR Part 371.

(48) Hypolimnion means the lower, cooler layer of a lake during thermal stratification.

(49) Impervious means resistant to penetration by moisture. Impervious materials include, but are not limited to, paving, concrete, asphalt, roofs, or other hard surfacing material. Impervious surfaces do not include dirt, crushed stone or gravel surfaces.

(50) Individual residence means a building consisting of one residential unit.

(51) Individual sewage treatment system means an on-site subsurface sewage treatment system serving residential properties and receiving sewage without the admixture of industrial wastes or other wastes, as defined in the Environmental Conservation Law section 17-0701, in quantities of less than 1,000 gallons per day.

(52) Industrial waste means any liquid, gaseous, solid or waste substance or a combination thereof resulting from any process of industry, manufacturing, trade or business, or from the development or recovery of any natural resources, which may cause or might reasonably be expected to cause contamination to or degradation of the water supply.

(53) Infiltration means water, other than wastewater, that enters a sewerage system, including sewer service connections, from the ground through such means as defective pipes, pipe joints, connections, or manholes. Infiltration does not include, and is distinguished from, inflow.

(54) Inflow means water other than wastewater that enters a sewerage system, including sewer service connections, from sources such as, but not limited to, roof leaders, cellar drains, yard drains, area drains, foundation drains, drains from springs and swampy areas, manhole covers, cross connections between storm sewers and sanitary sewers, catch basins, cooling towers, storm waters, surface runoff, street wash waters, or drainage. Inflow does not include, and is distinguished from, infiltration.

(55) In situ soil means naturally occurring glacial soil; it does not include fill or stabilized fill.

(56) Intake means the points in the New York City water supply located prior to the point of disinfection where the water is no longer subject to surface runoff.

(57) Intermediate sized sewage treatment system means a subsurface sewage treatment system, typically with a treatment process utilizing a septic tank followed by subsurface disposal, treating sewage or other liquid wastes for discharge into the groundwater of the State and where a SPDES permit is required for such a system. Intermediate sized sewage treatment systems shall not include wastewater treatment plants as defined in these rules and regulations.

(58) Intermittent stream means a watercourse that during certain times of the year goes dry or whose lowest annual mean discharge during seven consecutive days with a recurrence interval of ten years (MA7CD/10) is less than 0.1 cubic foot per second and which periodically receives groundwater inflow. A drainage ditch, swale or surface feature that contains water only during and immediately after a rainstorm or a snow melt shall not be considered to be an intermittent stream.

(59) Junkyard means any place of storage or deposit, whether in connection with another business or not, where four or more unregistered, old, or second hand motor vehicles, no longer intended or in condition for legal use on the public highways, are held, whether for the purpose of resale of used parts, for the purpose of reclaiming for use some or all of the materials such as metal, glass, or fabric for the purpose of disposing of the same, or for any other purpose.

(60) Land clearing means the exposure of soil by devegetation or the exposure of soil to the forces of erosion.

(61) Land grading means the removal, addition or alteration of surface or subsurface conditions of land by excavation or filling.

(62) Limiting distance means the shortest horizontal distance from the nearest point of a structure or object to the edge, margin or steep bank forming the ordinary high water mark of a watercourse, wetland, reservoir, reservoir stem or controlled lake or to the contour line coinciding with the reservoir spillway elevation.

(63) Metalimnion means an intermediate zone between the epilimnion and hypolimnion where the water temperature drops rapidly with increasing depth.

(64) Microfiltration means a process in which treated effluent passes through a membrane filter having a molecular weight cutoff rate of 500,000 or less.

(65) Multi-family residence means a building containing three (3) or more residential units.

(66) Municipal solid waste landfill means a landfill, as defined in 6 NYCRR section 360-1.2, which is owned or operated by a municipality.

(67) New means any regulated activity that is not an existing or noncomplying regulated activity, as defined herein.

(68) Noncomplying regulated activity means any regulated activity or existing activity which does not conform to the standards set forth in these rules and regulations, but has obtained all discretionary approvals necessary for construction and operation, prior to the effective date of these rules and regulations.

(69) Nonpoint source pollution means pollution sources which are diffuse and do not have a single point of origin or are not introduced into a receiving stream from a point source.

(70) NYCRR means the Official Compilation of Codes, Rules and Regulations of the State of New York.

(71) Offset means a reduction in the discharge of phosphorus into a drainage basin which is surplus, quantifiable, permanent, and enforceable, as defined herein:

(i) Surplus means that the reduction in phosphorus is not otherwise required by federal, state or local law, including these rules and regulations, or pursuant to the terms of any judgment, decree or order of any court, administrative tribunal or governmental agency, or pursuant to any watershed protection program funded by the Department, except as provided in subparagraphs 128-8.3(a)(3) and 128-8.4(a)(3).

(ii) Quantifiable means that a reasonable basis exists for calculating and verifying the amount of the reduction in phosphorus.

(iii)Permanent means that the reduction in phosphorus is ongoing and of unlimited duration, as opposed to a temporary reduction.

(iv) Enforceable means that the actions and performance standards proposed by the applicant leading to the reduction in phosphorus are incorporated into a legally valid and binding agreement which may be enforced by the City in a court of competent jurisdiction.

(72) One hundred year flood plain means the land susceptible to being inundated by a flood that has a one percent or greater chance of recurring in any given year.

(73) Operator means any person who leases, operates, controls or supervises a facility.

(74) Owner means any person who has legal or equitable title to a facility.

(75) Pathogenic means capable of causing disease from organisms, including but not limited to: bacteria, fungi, viruses, and protozoa (such as Giardia and Cryptosporidium).

(76) Person means any individual, public or private corporation, political entity, agency, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever, except that person shall not mean the State of New York or any State department, agency, board, public benefit corporation, public authority or commission.

(77) Perennial stream means a watercourse that flows throughout the year from source to mouth.

(78) Pesticide means (i) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, weeds, or other forms of plant or animal life or viruses, except viruses on or in living humans, or other animals, which the Commissioner of the New York State Department of Environmental Conservation shall declare to be a pest or (ii) any substance or mixture of substances intended as a plant regulator, defoliant or desiccant.

(79) Petroleum product means oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other wastes and crude oils, gasoline and kerosene.

(80) Phosphorus restricted basin means the drainage basin of a reservoir or controlled lake in which the phosphorus load to the reservoir or controlled lake results in the phosphorus water quality values established by the New York State Department of Environmental Conservation and set forth in its Technical and Operational Guidance Series (TOGS) 1.1.1, Ambient Water Quality and Guidance Values (October 22, 1993) being exceeded as determined by the Department pursuant to its annual review conducted under section 128-4.1 (c) of Subpart 128-4.

(81) Photic zone means the region of a lake that receives light, where photosynthesis takes place. The photic zone extends down to a depth where photosynthetic activity and respiration are balanced due to the available light, or to one percent surface illumination.

(82) Point source means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or other floating craft, or landfill leachate collection system, from which pollutants are or may be discharged.

(83) Pollutant means unpermitted dredged spoil, solid waste, incinerator residue, sewage, effluent, garbage, sewage sludge, munitions, chemical waste, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, and industrial and municipal waste discharged into water.

(84) Principal means an agency or person that owns 10 percent or more of the voting stock or has the ability to control a corporation, partnership or other entity.

(85) Radioactive material means any material in any form that emits radiation spontaneously.

(86) Regulated activity means any activity to which these rules and regulations apply, as described in subdivisions (a)-(d) of section 128-1.4 of Subpart 128-1 of these rules and regulations.

(87) Remediation means the repair or replacement of a subsurface sewage treatment system.

(88) Reservoir means any natural or artificial impoundment of water owned or controlled by the City which is tributary to the City water supply system.

(89) Reservoir stem means any watercourse segment which is tributary to a reservoir and lies within 500 feet or less of the reservoir.

(90) Residential lot(s) means any parcel of land of five acres or less, any point on the boundary line of which is less than one-half mile from any point on the boundary line of another such lot in the same tract, unless any such lot may not legally be used for residential purposes. Without limiting the generality of the foregoing, the term residential shall include temporary, seasonal and permanent residential use.

(91) Sediment means organic or mineral solids or colloids that are transported by the process of hydrologic, hydraulic, or atmospheric transport, including but not limited to erosion.

(92) Sewage means the water-carried human or animal wastes from residences, buildings, industrial establishments or other places, together with such groundwater infiltration and surface water as may be present. The admixture of sewage with industrial waste or any other waste as herein defined, shall also be considered sewage within the meaning of these rules and regulations.

(93) Sewerage system means pipe lines or conduits, pumping stations, and force mains, and all other constructions, devices, and appliances appurtenant thereto, used for conducting sewage, industrial waste or other wastes to a point of ultimate disposal.

(94) Silvicultural activity means the removal of selected trees within a specified boundary designated by the owner of the property so that adequate numbers of trees are left to provide seed and partial shade for the development of new tree seedlings, and when such activity is in accordance with Federal, State and local laws.

(95) Small quantity generator has the meaning set forth in 6 NYCRR section 370.2(b)(154).

(96) Solid waste means all putrescible and non-putrescible materials or substances that are discarded, abandoned, or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection, including but not limited to garbage, refuse, industrial and commercial waste, sludges from air or water treatment facilities, rubbish, tires, ashes, contained gaseous material, incinerator residue, construction and demolition debris, discarded automobiles and offal, except where exempt from compliance with 6 NYCRR Part 360 as described in 6 NYCRR section 360-1.2(a)(4).

(97) Solid waste management facility means any facility employed beyond the initial solid waste collection process and managing solid waste including but not limited to: storage areas or facilities; transfer stations; rail-haul or barge-haul facilities; landfills; construction and demolition processing facilities; disposal facilities; solid waste incinerators; landspreading facilities; composting facilities; surface impoundments; waste oil storage, reprocessing and rerefining facilities; recyclables handling and recovery facilities; and waste tire storage facilities, as defined in 6 NYCRR section 360-1.2.

(98) SPDES flow parameter violation means two or more violations of a permitted State Pollutant Discharge Elimination System (SPDES) flow parameter limit during a consecutive six month period. A facility that operates less than 6 months per year will be deemed to have a SPDES flow parameter violation if the permitted SPDES flow parameter limit is violated one or more times during any consecutive four month period.

(99) State Pollutant Discharge Elimination System (SPDES) permit means a permit issued pursuant to Titles 7 and 8 of Article 17 of the Environmental Conservation Law.

(100) Stormwater means that portion of precipitation that is in excess of the evaporative or infiltrative capacity of soils, or the retentive capacity of surface features, that flows off the land by surface runoff or by subsurface interflow to watercourses, wetlands, reservoirs, reservoir stems and controlled lakes, i.e., that portion of the water supplied to surface drainage that is not groundwater or base flow.

(101) Stormwater Project Review Committee ("Committee") means a Committee formed in each Town or Village in the watershed to assist the Department in implementing subdivisions 128-3.9 (b) and (c) of Subpart 128-3, and consisting of the following four Committee members: a representative of the Department, who shall act as chairperson; a representative of the New York State Department of Environmental Conservation from the region in which the activity requiring a stormwater pollution prevention plan is proposed to be located; a representative of the Town or Village in which the activity requiring a stormwater pollution prevention plan is proposed to be located or if no one is designated by the Town, or if the activity is proposed for a village, the Village, a representative of the appropriate County Planning Department, provided, however, that a Town, or if the activity is proposed for a village, the Village, may at any time designate a representative to replace the one designated by the County Planning Department; and a representative of the County Department of Health from the County in which the activity requiring a stormwater pollution prevention plan is proposed to be located, or in a County without a County Department of Health, a representative of the County Soil and Water Conservation Service.

(102) Stratification means the physical condition caused primarily by temperature-created differences in water density, which results in the formation of a warm, surface layer (epilimnion), a zone of transition (metalimnion), and a cooler, deep layer of water (hypolimnion).

(103) Subdivision means any tract of land which is divided into five or more parcels of five acres or less, along an existing or proposed street, highway, easement or right-of-way, for sale or for rent as residential lots. A tract of land shall constitute a subdivision upon the sale, rental or offer for sale or lease of the fifth residential lot therefrom within any consecutive three year period.

(104) Subsurface discharge means discharge to a seepage unit or an absorption field, i.e., a process designed to allow filtered, treated sewage effluent to be discharged into the ground as a means of ultimate disposal.

(105) Subsurface sewage treatment system means any underground system used for collecting, treating, and disposing of sewage into the ground including, but not limited to, individual and intermediate sized sewage treatment systems, as defined in these rules and regulations.

(106) Terminal reservoir means Kensico, West Branch, New Croton, Ashokan and Rondout Reservoirs.

(107) Two year, twenty-four hour storm means the storm, with a twenty-four hour duration, that has a fifty percent chance of occurring in any given year.

(108) Twenty-five year storm means the storm that has a four percent chance of occurring in any given year.

(109) Ulster County Fill System means a subsurface sewage treatment system used in Ulster County which has been approved by the New York State Department of Health for use in Ulster County and which is built upon two (2) feet of in situ soil that has a percolation rate between 3 to 60 minutes/inch, and which uses at least four (4) feet of fill material, including at least three (3) feet between the bottom of the trench and the in situ soil, that has a percolation rate between 3 and 10 minutes/inch. Ulster County Fill System shall include the Ulster County Fill System when used in a county other than Ulster if the New York State Department of Health has approved the system for use in such other county.

(110) Village means a territory which has been incorporated as a village pursuant to Article 2 of the New York State Village Law.

(111) Village extension means an area immediately adjoining a main road extending a maximum distance of one quarter mile outside an existing village which has been designated as a village extension by the Town Board of the Town in which the village is located in the West of Hudson watershed pursuant to a Water Supply Permit issued by the New York State Department of Environmental Conservation for Project No. 0-9999-00051/00001.

(112) Wastewater treatment plant means any facility which treats sewage or discharges treated effluent in the watershed, and which requires a permit under Titles 7 or 8 of Article 17 of the Environmental Conservation Law, installed for the purpose of treating, neutralizing, stabilizing or disposing of sewage by removal of contaminants accomplished by unit operations or processes or by a combination of such operations and processes, including any combination of the following: preliminary treatment, flow equalization, primary settling, biological treatment, chemical treatment, secondary settling, filtration, aeration, disinfection, sludge processing, or any other processes as may be applicable to a given design for a wastewater treatment plant. Wastewater treatment plants shall not include intermediate sized sewage treatment systems as defined in these rules and regulations.

(113) Water supply means the New York City public water supply system, and includes all watercourses, wetlands, reservoirs, reservoir stems and controlled lakes tributary thereto.

(114) Watercourse means a visible path through which surface water travels on a regular basis, including an intermittent stream, which is tributary to the water supply. A drainage ditch, swale or surface feature that contains water only during and immediately after a rainstorm or a snowmelt shall not be considered to be a watercourse.

(115) Watershed means the land area contributing surface water to the New York City water supply.

(116) West of Hudson watershed means the Ashokan, Cannonsville, Pepacton, Neversink, Rondout, and Schoharie Reservoirs and their drainage basins.

(117) Wetland means any area mapped as a wetland by the New York State Department of Environmental Conservation pursuant to the Environmental Conservation Law, which is at least 12.4 acres in size or has been designated as a wetland of unusual local importance.

(118) Winter highway maintenance materials means the solid compounds or the solutions that are commonly used for traction on, or for the abatement of, winter road ice, including, but not limited to, chloride compounds, mixtures of sand and chloride compounds, sand and coal combustion bottom ash and ash from solid waste incinerators that meet the requirements of 6 NYCRR section 360-3.5(h).

Effective Date: 
Wednesday, April 13, 2005
Doc Status: 
Complete

Section 128-1.7 - References

128.1-7 References. The following laws, guidance documents, regulations or technical material have been incorporated by reference in this Part 128. These references are available for inspection and copying at the Department of Environmental Protection, Bureau of Water Supply, Quality and Protection, 465 Columbus Avenue, Valhalla, New York, 10595, and at the New York State Department of Health, Office of Regulatory Affairs, Tower Building, Room 2415, Empire State Plaza, Albany, New York, 12237, or can be directly obtained from the sources listed for the given reference.

(1) Federal Categorical Pretreatment Standards, 40 CFR Part 403, 1992, Superintendent of Documents, United States Government Printing Office, Washington, D.C., 20402.

(2) USDA Soil Conservation Service Soil Type Boundaries, USDA SCS, Room 771, Federal Building, 100 South Clinton Street, P.O. Box 7248, Syracuse, New York, 13261-7248.

(3) Standard Methods for the Examination of Water and Wastewater, 12th edition, 1965, Table 18, Qualitative Description of Odors, page 306, American Public Health Association, American Water Works Association, and Water Pollution Control Federation, 2626 Pennsylvania Avenue NW, Washington, D.C. 20037.

(4) Standard Methods for the Examination of Water and Wastewater, 18th edition, 1992, American Public Health Association, American Water Works Association, and Water Environment Federation, 2626 Pennsylvania Avenue NW, Washington, D.C. 20037.

(5) Methods for Chemical Analysis of Water and Wastes, 1979, Environmental Protection Agency (EPA), Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(6) State Environmental Quality Review Act, New York State Environmental Conservation Law, Article 8 (ECL section 8-0101 et seq.), Department of State, 162 Washington Avenue, Albany, New York 12231.

(7) New York State Fire Prevention and Building Code, New York State Executive Law (Executive Law section 370 et seq.), Department of State, 162 Washington Avenue, Albany, New York 12231.

(8) Public Water Supplies; Sewerage and Sewage Control, New York State Public Health Law, Article 11 (PHL section 1100 et seq.), Department of State, 162 Washington Avenue, Albany, New York 12231.

(9) Classifications and Standards of Quality and Purity, 6 NYCRR Parts 701 and 703, Department of State, 162 Washington Avenue, Albany, New York 12231.

(10) Standards for Individual Water Supply and Wastewater Treatment Systems, 10 NYCRR Part 75 and Appendix 75-A, Department of State, 162 Washington Avenue, Albany, New York 12231.

(11) New York State Department of Environmental Conservation Technical and Operational Guidance Series (TOGS) 1.1.1, Ambient Water Quality and Guidance Values (October 22, 1993), New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233.

(12) New York State Department of Environmental Conservation Technical and Operational Guidance Series (TOGS) 1.3.1, Total Maximum Daily Loads and Water Quality-Based Effluent Limits (July 8, 1996).

(13) New York State Department of Environmental Conservation Technical and Operational Guidance Series (TOGS) 1.3.1B, Total Maximum Daily Loads and Water Quality-Based Effluent Limits, Amendments-Low and Intermittent Stream Standards (July 8, 1996), New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233.

(14) New York State Environmental Conservation SPDES General Permit for Storm Water Discharges from Construction Activities, Permit No. GP-93-06, Dated July 14, 1993, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233.

(15) Design Standards for Wastewater Treatment Works, Intermediate Sized Sewerage Facilities, 1988, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233.

(16) Recommended Standards for Wastewater Facilities, Great Lakes--Upper Mississippi River, 1990, Board of State Public Health and Environmental Managers, Health Education Services, P.O. Box 7126, Albany, New York 12224.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

SubPart 128-2 - Standards and Procedures for Regulated Activities and Noncomplying Regulated Activities

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-2.1 - Standards for regulated activities

Section 128-2.1 Standards for regulated activities.

(a) The following general standards apply to all regulated activities unless specifically noted otherwise, whether or not the regulated activity also requires the review and approval of the Department. In addition, certain regulated activities must meet additional standards or procedures where specifically set forth in this Subpart or in other

Subparts:
(1) All regulated activities shall be planned, designed, scheduled and conducted in such manner as to not constitute a source of contamination to or degradation of the water supply.

(2) The Department shall base its review and approval of any regulated activity on compliance with these rules and regulations, including the water quality standards set forth in Subpart 128-4, and shall additionally take into consideration the system specific water quality characteristics set forth in Appendix 128-B.

(3) The burden of demonstrating compliance with the requirements of these rules and regulations shall be on the person proposing to engage in a regulated activity. In the event that any person finds that compliance with any standard set forth in these rules and regulations is not possible, then she or he may apply for a variance in accordance with the provisions of Subpart 128-6 of these rules and regulations. Variances may be granted provided that the Department makes
the findings required by Subpart 128-6 of these rules and regulations.

(4) Failure to comply with the conditions of any approval issued by the Department under these rules and regulations shall be a violation of these rules and regulations.

(5) The Department may order that a regulated activity cease, and/or a facility where such regulated activity is taking place be closed or removed, if such regulated activity is causing contamination to or degradation of the water supply, such that the activity is a threat to the life, health, or safety of water supply users that requires immediate corrective action. Any person who receives such an order may request a hearing on such order in the manner provided in Section 128-2.9.

Effective Date: 
Wednesday, July 8, 1998
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Section 128-2.2 - Procedures for notification and/or reporting

128-2.2 Procedures for notification and/or reporting.

Where any notification, application or reporting to the Department required by these rules and regulations is to be made in writing, it shall be sent by certified mail to both the local Department representative in the portion of the watershed in which the regulated activity takes place and to the Engineering Section. Addresses are listed in section 128-1.5 of Subpart 128-1 of these rules and regulations.

Effective Date: 
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Section 128-2.3 - Application procedures and requirements

128-2.3 Application procedures and requirements.

(a) These procedures shall apply to the following:

(1) Applications for review and approval of regulated activities, including renewals of approvals of regulated activities. An application for renewal of an approval of a regulated activity shall be submitted to the Department no less than 180 days prior to the expiration of the approval. This deadline shall apply unless stated otherwise in a special condition of the approval.

(2) Applications for review and approval of a substantial alteration or modification of any regulated activity;

(3) Applications for review and approval of any substantial alteration or modification of a noncomplying regulated activity; and

(4) Applications for variances pursuant to Subpart 128-6 of these rules and regulations.

(b) The applicant shall meet the following requirements:

(1) No person shall undertake any activity listed in section 128-1.4 of Subpart 128-1 of these rules and regulations which requires the review and approval of the Department without first obtaining written approval from the Department, except where a temporary emergency approval has been obtained from the Department pursuant to section 128-2.4 of this Subpart.

(2) Any person proposing to undertake any activity listed in Section 128-1.4 of Subpart 128-1 of these rules and regulations which requires the review and approval of the Department, shall submit to the Department, at the address of the Department representative for the area where the regulated activity is to be undertaken set forth in section 128-1.5 of Subpart 128-1 of these rules and regulations, an application for review and approval which includes a plan of the activity which meets the requirements of this subpart and any additional requirements for the specific activity set forth in these rules and regulations. Failure by the applicant to submit information to the Department or to follow the Department procedures set forth in these rules and regulations is sufficient grounds to deny the approval.

(3) Any person seeking approval of an activity may be subject to such terms and conditions as the Department may require, including time limitations and limitations on transfer of the approval given by the Department.

(4)(i) An applicant shall affirmatively state in the application whether any enforcement action has been commenced during the five

(5) years preceding the application against the applicant, or any principal or affiliate of the applicant, for alleged violations of law related to the specific regulated activity for which the approval is sought, or related to the facility or site at which the activity is located. The applicant shall supply the following information with respect to each enforcement action: the agency or entity commencing the action, the date of commencement, the facility location and address where the alleged violation occurred, and disposition of the action.

(ii) Failure to fully and accurately disclose any material information required to be disclosed pursuant to subparagraph 4(i) shall be a basis for the Department to deny a permit application.

(iii) Failure to cure any adjudicated violation of this Part or any law, rule or regulation enforced by the Department shall be a basis to deny a permit application.

(iv) If the Department or the City has commenced an enforcement action against the applicant for violations of law related to the facility or site at which the activity for which the approval is sought is located, the Department may suspend processing of the application until such alleged violations are cured.

(5) Any property owner may request that the Department perform a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the owner s property. If the property owner supplies the Department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the Department, the Department shall confirm or amend the findings upon the surveyor's map as soon as is practicable. A confirmed survey map shall be binding upon the Department for five years following the date of the confirmation.

(6) If an applicant for Department review and approval of a regulated activity requests that the Department conduct a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the applicant's property the Department shall do so as soon as is practicable. If the applicant supplies the Department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the Department, the Department shall confirm or amend the findings upon the surveyor's map within 20 business days of receipt thereof. A confirmed survey map shall be binding upon the Department for five years following the date of the confirmation. The absence of a Department confirmed surveyor's map will not cause an application to be considered incomplete.

(c) An application shall contain the following information:

(1) An application for the review and approval of any activity listed in Section 128-1.4 of Subpart 128-1 of these rules and regulations shall provide a description of the activity, the location and topography of the area of the activity, identification of any existing structures at the location, and any engineering, construction or other plans which detail the methods to be used in undertaking the activity such that it shall meet the requirements of this subpart and any additional requirements for the specific activity set forth in these rules and regulations.

(2) An application for review and approval of any activity listed in Section 128-1.4 of Subpart 128-1 of these rules and regulations shall include a copy of any Environmental Assessment Form (EAF), and either a Draft Environmental Impact Statement (DEIS) or a determination of non-significance by the lead agency, where such documents are prepared pursuant to Article 8 of the Environmental Conservation Law and the rules and regulations promulgated thereunder.

(3) When a regulated activity requires a related approval from any other agency or more than one approval from the Department, the application for review and approval shall include a list of such approvals which the applicant knows to be required, and a statement of the status of any required approval at the time of filing of the application with the Department.

(d) Review and approval procedures:

(1) The applicant proposing to engage in any activity listed in section 128-1.4 of Subpart 128-1 of these rules and regulations which requires the review and approval of the Department shall certify in writing that she or he believes that the application is complete and in compliance with the requirements of this subpart and any additional requirements for the specific activity set forth in these rules and regulations.

(2) An application is complete when it is determined by the Department to contain sufficient information for the purpose of commencing review of the application. The Department retains the right to seek additional information in order to enable the Department to make a determination pursuant to these rules and regulations. Within ten (10) days of receiving an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, or within twenty (20) days of receiving any other type of application for review or approval, the Department shall either:

(i) Notify the applicant in writing that the application is complete and that the Department shall commence its review; or

(ii) Notify the applicant in writing that the application is incomplete and specifically request all additional information from the applicant as the Department deems necessary. If additional information is requested or comments are issued by the Department that need to be addressed by the applicant, the twenty (20) day period described in paragraph (d)(4) of this subdivision or the forty-five (45) day period described in paragraph (d)(5) of this subdivision shall not commence to run. The Department shall notify the applicant in writing within ten (10) days of receiving the additional information that has been requested either that the application is complete and that the Department has commenced its review or that further information is required.

(iii) Except in cases where the applicant has submitted false or misleading information or where a change in relevant law has occurred or changes have been proposed for the project, the Department may require further information based only upon the additional information submitted by the applicant or new issues raised by such information. In addition, the Department may also require further information based on a change in ownership of the property, the identity of the applicant, or the identity of the applicant s owners, principals, shareholders, directors, or officers.

(3) If the Department fails to notify an applicant in writing of its determination as to the completeness or incompleteness of the application within the time periods set forth in paragraph (d)(2) of this subdivision, the applicant may notify the Department of its failure by means of certified mail, return receipt requested, to the local Department representative identified in section 128-1.5 who is responsible for processing the application and a copy to the Engineering Section. If the Department fails to notify the applicant of its  determination as to the completeness or incompleteness of the application within ten (10) business days of receiving the notice, the application shall be deemed complete as of the eleventh day.

(4) The Department shall notify the applicant in writing of its determination within twenty (20) days of determining that an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision is complete pursuant to the procedures set forth in paragraph (d)(2) of this subdivision unless the Department and the applicant mutually agree in writing upon an extension of the twenty (20) day review period.

(5) For all applications for review and approval, other than for a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, the Department shall notify an applicant in writing of its determination within forty-five (45) days of notifying the applicant that the application is complete pursuant to the procedures set forth in paragraph (d)(2) of this subdivision unless the Department and the applicant mutually agree in writing upon an extension of the forty-five (45) day review period.

(6) If the Department fails to notify an applicant in writing of its determination within the twenty (20) day time period set forth in paragraph (d)(4) of this subdivision or the forty-five (45) day time period set forth in paragraph (d)(5) of this subdivision, the applicant may notify the Department of its failure by means of certified mail, return receipt requested to the local Department representative identified in section 128-1.5 of Subpart 128-1 of these rules and regulations who is responsible for processing the application and a copy to the Engineering Section. The notice shall contain the applicant s name, location of the proposed project, the office in which the application was filed, and a statement that a decision is sought in accordance with this subdivision. Any notice failing to provide this information will not invoke this provision.

(i) If the Department fails to notify the applicant of its decision within ten (10) business days of the receipt of such notice, the application shall be deemed approved subject to the standard terms and conditions applicable to such an approval.

(7) Notwithstanding the time period for notifying an applicant of the Department's determination specified in paragraphs (d)(4), (d)(5) and (d)(6) of this section, if a lead agency has determined that a project may have a significant effect on the environment for purposes of

the State Environmental Quality Review Act (SEQRA), such time periods shall be suspended pending receipt from the lead agency of either a Final Environmental Impact Statement (FEIS) or a determination of nonsignificance. Upon receipt of either document, the time periods shall resume, provided, however, that the Department shall have at least twenty (20) days to notify an applicant of its determination.

(8) Notwithstanding the time periods for decisions specified in this subdivision, the Department may condition an approval on the applicant providing satisfactory proof of any bonds required by the Department within thirty days of the applicant receiving the conditional approval from the Department.

(9) Any notice required or permitted to be given by the Department under this Subpart shall be given in such manner designed to reach the applicant, as the Department deems appropriate, and may include, but is not limited to, regular mail, certified mail return receipt requested, or telecopier.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-2.4 - Emergency procedures

128-2.4 Emergency procedures.

(a) Notwithstanding any other provision of this subpart, where an expedited review and approval of a regulated activity is necessary to respond to an imminent threat to the health and safety of humans or animals, or to respond to a substantial imminent threat to property, an applicant seeking such review and approval shall notify the Department by telephone at the office of the local representative listed in section 128-1.5 of Subpart 128-1 of these rules and regulations, and shall meet with the Department within 24 hours. At the meeting the applicant shall present to the representative of the Department such available information regarding the regulated activity as would otherwise be required in a written application for review and approval of the regulated activity. Additionally, the applicant shall provide an explanation of the nature of the imminent threat that necessitates the expedited review. The Department shall review the information supplied by the applicant and shall issue a temporary determination to approve or disapprove the application within 24 hours of receipt of the information required by this subdivision.

(1) An applicant shall not be required to notify the Department before undertaking the routine repair and maintenance of a subsurface sewage treatment system, including, but not limited to, the pump-out of a septic tank, the repair of a broken lateral, the leveling of a distribution box, or the removal of a blockage.

(b) An approval granted by the Department pursuant to the emergency expedited review procedure shall be a temporary approval only, and shall not be considered to be a final approval of the Department. The temporary approval may contain conditions and time limitations and shall be limited to whatever actions are necessary to abate the imminent threat. A final approval shall be issued by the Department only after review and approval of a complete written application submitted in accordance with the procedures and standards set forth in subdivision (c) of this section, and any other applicable provisions of this Subpart and these rules and regulations.

(c) An applicant who has received a temporary approval for a regulated activity pursuant to the emergency expedited review procedure shall, within twenty days of such approval, submit a written application to the Department containing all of the information required to be provided by these rules and regulations for the particular regulated activity.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-2.5 - Optional pre-application conference

128-2.5 Optional pre-application conference.

(a) If a proposed regulated activity requires one or more Department reviews or approvals, or the preparation of an Environmental Impact Statement pursuant to the State Environmental Quality Review Act, the prospective applicant may request an optional pre-application conference with the appropriate Department staff as a means of clarifying application procedures to be followed in order to comply with the requirements set forth in these rules and regulations.

(b) The request for a pre-application conference should be made at the earliest possible stage of the applicant s planning process. Such request shall be made in writing to the Department representative for the area where the regulated activity is to be undertaken, as set forth in section 128-1.5 of Subpart 128-1 of these rules and regulations. A mutually agreed upon time and place shall be scheduled for the pre-application conference.

(c) In order to assist the prospective applicant, prior to the pre-application conference, the prospective applicant shall submit to the Department representative the following information: (1) A description of the proposed regulated activity, a site plan or sketch showing the location and topography of the area of the activity, identification of any existing structures at the location, and any engineering, construction or other plans which describe the methods to be used to meet the requirements of these rules and regulations; (2) A statement of the prospective applicant s timetable and financial plans for carrying out the proposed regulated activity, if known; (3) A statement of any governmental financial aid, facilities, or other assistance which the prospective applicant expects to be provided or plans to request for the regulated activity; and (4) Such other information as the Department deems reasonably necessary.

(d) At the pre-application conference, the proposed project will be informally discussed. Based on information provided by the applicant, review and approval requirements will be identified and the applicant will be provided with guidance concerning the application and review process. Participation in the pre-application process shall not relieve an applicant from the requirements of obtaining all approvals otherwise necessary under these rules and regulations or any other law or rules and regulations, prior to commencing the regulated activity.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-2.6 - Modification, suspension or revocation of approvals and variances

128-2.6 Modification, suspension or revocation of approvals and variances.

(a) An approval or variance issued by the Department pursuant to these rules and regulations may be modified, suspended or revoked at any time upon the Department s initiative, on any of the grounds set forth in paragraphs (1) through (5) of this subdivision. The grounds for modification, suspension or revocation include: (1) Materially false or inaccurate statements in the approval or variance application or supporting documents; (2) Failure by the person named in the approval or variance to comply with any terms or conditions of the approval or variance; (3) The scope of the project, as described in the application, is exceeded; (4) Newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or rules and regulations since the issuance of the existing approval or variance; or (5) Noncompliance with previously issued approval or variance conditions, orders of the Commissioner, or with any provisions of the rules and regulations of the Department related to the activity.

(b) The Department shall send a notice of intent to modify, suspend or revoke an approval or variance to the person named in the approval or variance by certified mail, return receipt requested or by personal service. The notice shall state the alleged facts or conduct which appear to warrant the intended action.

(c) Within fifteen calendar days of receipt of a notice of intent, the person named in the approval or variance may submit a written statement to the Department, giving reasons why the approval or variance should not be modified, suspended or revoked, or requesting a hearing, or both. Failure by such person to timely submit a statement shall result in the Department s action becoming effective on the date specified in the notice of intent.

(d) Within fifteen calendar days of receipt of such person's statement, the Department shall either: (1) If a statement without a request for a hearing is submitted, rescind or confirm the notice of intent based on a review of the information provided by such person; or (2) If a statement with a request for a hearing is submitted, notify such person of a date and place for a hearing, to be commenced not later than sixty calendar days from this notification.

(e) In the event such a hearing is held, the Commissioner shall, within thirty calendar days of receipt of the complete record, issue a written decision, stating the findings and reasons therefor, to the person named in the approval or variance. The decision shall: (1) Continue the approval or variance in effect as originally issued; (2) Modify the approval or variance or suspend it for a stated period of time or upon stated conditions; or (3) Revoke the approval or variance, including, where ordered by the Commissioner, removal or modification of all or any portion of a project, whether completed or not.

(f) Where the Department proposes to modify an approval or variance, and the person named in the approval or variance requests a hearing on the proposed modification, the original conditions of the approval or variance shall remain in effect until a decision has been issued by the Commissioner pursuant to subdivision (e) of this section. At such time the modified conditions shall take effect.

(g) Nothing in this section shall preclude or affect the Commissioner s authority to use the remedy of summary abatement or to issue a cease and desist order under these rules and regulations, or any other law or regulation.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-2.7 - Noncomplying regulated activities

128-2.7 Noncomplying regulated activities.
(a) General requirements.
(1) A noncomplying regulated activity may be continued except where specifically prohibited from continuing by these rules and regulations.

(2) A noncomplying regulated activity shall come into compliance with these rules and regulations where specifically required to do so by these rules and  regulations.

(3) Except where otherwise provided in these rules and regulations, no noncomplying regulated activity shall be substantially altered or modified without the prior review and approval of the Department. The Department shall review and approve such an alteration or modification in accordance with the standards and  procedures set forth in Subpart 128-6 (variances). However, a noncomplying regulated activity may be reduced in size or extent without such review and approval provided that such reduction does not cause any increase in any existing discharge or any increase in the potential for contamination to or degradation of the water supply. An application for a regulated activity to be located on a site with a noncomplying regulated activity, which does not involve a substantial alteration or modification of a noncomplying regulated activity, shall be reviewed in accordance with the standards for that regulated activity.

(4) In the event that any noncomplying regulated activity is discontinued for a period of one year or more, it shall permanently desist. However, a noncomplying regulated activity shall not be deemed discontinued in the following situations:
(i) Seasonal use of a residence or business;
(ii) Destruction of 75 percent or more of the market value of a noncomplying regulated activity and its related property, by flood, fire, or other natural disaster,  provided that any replacement of a noncomplying regulated activity shall be identical in capacity, intensity, volume and type to the former noncomplying regulated activity and provided that such replacement shall take place within two years of such destruction, and provided further that such replacement shall comply with these rules and regulations, where possible;
(iii) Transfer, sale, or lease of a residence or business provided further that the noncomplying regulated activity is not changed to a different noncomplying  regulated activity, unless approved by the Department, and provided that such transfer, sale or lease occurs within three years of the offering for sale or lease of  the residence or business.

(5) Should any noncomplying regulated activity cause contamination to or degradation of the water supply, such that the activity is a threat to the life, health, or safety of water supply users, the Commissioner may order that such noncomplying regulated activity conform either in whole or in part to the requirements of these rules and regulations, immediately or within a limited period of time at the Commissioner's discretion, or be discontinued immediately. Any person who
receives such an order may request a hearing on such order in the manner provided in section 128-2.9.

(6) Any owner or operator of a noncomplying regulated activity who was not required by these rules and regulations to notify the Department pursuant to paragraph (1) of subdivision (b) of this section, may request, in writing, a determination from the Department that such property or activity is a noncomplying regulated activity. The written request shall include all of the information required in such paragraph. The Department shall determine, based upon the submission, whether the property or activity is a noncomplying regulated activity, and shall notify the owner or operator of such determination in writing. (b) Commercial, industrial, institutional or governmental noncomplying regulated activities.
(1) Commercial, industrial, institutional or governmental owners or operators of a noncomplying regulated activity shall notify the Department, in writing, of the existence of the noncomplying regulated activity within one (1) year of the effective date of these rules and regulations. The notification shall include a description of the noncomplying regulated activity and its location, and the name and telephone number of a contact person.
(2) The Department shall publish a directory of all commercial, industrial, institutional or governmental noncomplying regulated activities located in the watershed based upon the information submitted pursuant to paragraph (1) of this subdivision, and any additional information available to the Department.
(3) The directory shall be published in a newspaper of general circulation for two consecutive weekdays in each of two consecutive weeks.
(4) Within sixty days of the last date of such publication, any commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity shall notify the Department in writing of any objection to the information set forth in the directory. Furthermore, any owner or operator of a noncomplying regulated activity shall notify the Department in writing of the omission from the directory of his or her noncomplying regulated activity.
(5) Within 120 days of the last date of publication of the directory, the Department shall publish a revised directory, in accordance with the procedures provided for in paragraph (3) of this subdivision.
(6) If, within five years of the effective date of these rules and regulations, a commercial, industrial, institutional or governmental owner or operator of a noncomplying regulated activity discovers that his or her property should have been included in the final directory and was not included, such owner or operator shall write to the Department and request that the property be added to the directory. The request shall include all of the facts surrounding the omission from the
listing and the reason why the property should be designated a noncomplying regulated activity, as well as all supporting documentary evidence, such as title searches, deeds, etc. Based upon the submission, the Department shall determine whether to add the property to the directory and shall notify the petitioner in writing of its decision.
(7) Upon written notification by the Department, a commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity may be required to submit any results of local, state or federally mandated or conducted tests or environmental audits. In addition, such owner or operator may be required to provide to the Department copies of any reports or applications submitted to local, state and federal agencies relating to the noncomplying regulated activity.
(8) Upon written notification by the Department, a commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity may be required to submit, within ninety days of receipt of mailing, for review and approval by the Department, a plan to protect the water supply from the potential for contamination or degradation posed by such activity. Such plan may include, but shall not be limited to, restriction or management of activities, use of best management practices, drainage control, development of procedures to address the potential contamination or degradation (including disposal procedures) and
training of employees.
(i) The decisions whether to require submission of a plan and whether to approve a plan shall be based upon the risk of potential for contamination to or degradation of the water supply based upon such factors as: location, intensity of use, record of adequate maintenance and operation of any existing structure or facility, compliance with existing local, state, and federal laws and rules and regulations, and the burden upon the noncomplying regulated activity.

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Section 128-2.8 - Appeals

128-2.8 Appeals.

(a) An applicant may appeal a final determination issued by

the Department under these rules and regulations by filing a petition in

writing with the Department and with the New York City Office of

Administrative Trials and Hearings ( OATH ) within thirty (30) days of the

date the determination was mailed. The petition shall state the name and

address of the petitioner and shall include a short and plain statement of

the matters to be adjudicated, identifying the approval or variance sought

by the petitioner with citation to the applicable provisions of these rules

and regulations, the regulated activity for which the Department issued the

determination, the proposed location of the activity, and the date of the

Department's determination. The petition should also indicate whether the

petitioner is requesting a hearing. A copy of the determination being

appealed shall be attached to the petition. In addition, a completed OATH

intake sheet shall be included with the petition. Blank intake sheets are

available from the Department.

(b) The following determinations are appealable:

(1) A denial of an application for approval of a regulated

activity.

(2) A denial of an application for a variance.

(3) The imposition of a substantial condition in an

approval of a regulated activity.

(4) The imposition of a substantial condition in a grant of

a variance.

(c) Petitions for appeal shall be referred to a City

administrative law judge (ALJ) for hearing, where allowed by this section,

and determination as defined in subdivision (g).

(d) The following issues are adjudicable on appeal:

(1) Whether the regulated activity proposed by the

petitioner will be in compliance with the requirements of these rules and

regulations.

(2) Whether the imposition of a substantial condition in an

approval of a regulated activity is appropriate to ensure that the

regulated activity will comply with the requirements of these rules and

regulations.

(3) Whether the Commissioner or the First Deputy

Commissioner abused his or her discretion in denying a request for a

variance or in imposing a substantial condition in a grant of a variance.

(4) Except where the Department has acted as lead agency,

the ALJ shall not adjudicate any issues relating to compliance with the

State Environmental Quality Review Act (SEQRA).

(e) Except for appeals from determinations relating to

variances, the petitioner shall have the burden of proving by a

preponderance of the evidence that the proposed regulated activity is in

compliance with the requirements of these rules and regulations. For

appeals from determinations relating to variances, the petitioner shall

have the burden of proving that the Commissioner or First Deputy

Commissioner has abused his or her discretion.

(f)(1) Appeals from determinations relating to individual

sewage treatment systems or variances shall be decided on the record before

the Department in its review of the application and any other written

submissions allowed by the ALJ.

(2) A petitioner may request an adjudicatory hearing on

appeals from all other determinations issued by the Department. If a

petitioner does not request a hearing, the petition shall be decided on the

record before the Department in its review of the application and any other

written submissions allowed by the ALJ.

(i) Unless otherwise agreed to by the parties and the ALJ,

the hearing shall be held in the district of the Department in which the

regulated activity was proposed to be located, except that hearings may be

held at the Department's offices in Valhalla, New York for appeals relating

to regulated activities in the East of Hudson watershed and at the

Department's offices in Kingston, New York for appeals relating to

regulated activities in the West of Hudson watershed.

(g) The ALJ shall submit a report to the Commissioner

within 60 days after the record on appeal is closed with a recommendation

as to whether the determination appealed from should be approved, modified

or rejected. The Commissioner shall issue a final decision approving,

rejecting, or modifying the ALJ s recommendation within 30 days of receipt

of the ALJ's report. If the Commissioner does not act, the ALJ s

recommendation shall be deemed approved.

(h) This section shall not apply to determinations made by

local governments administering provisions of these rules and regulations

pursuant to Subpart 128-7.

(i) An applicant shall have the option whether to file an

administrative appeal under this section and nothing in this section shall

preclude an applicant from challenging a final determination issued by the

Department in a court of competent jurisdiction, including instituting a

proceeding under Article 78 of the Civil Practice Law and Rules, without

first filing a petition for appeal pursuant to this section.

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Section 128-2.9 - Hearings on cease and desist orders

128-2.9 Hearings on cease and desist orders.
(a) Any person who receives a cease and desist order may
request a hearing on the order by submitting a petition in writing to the
Commissioner and to the Office of Administrative Trials and Hearings (OATH]
within seven (7) days of receipt of the cease and desist order. The
petition for a hearing shall state the name and address of the petitioner
and shall include a short and plain statement of the matters to be
adjudicated, identifying the activity that is the subject of the order, the
location of the activity, and the date of the cease and desist order. A
copy of the order shall be attached to the petition. In addition, a
completed OATH intake sheet shall be included with the petition. Blank
intake sheets are available from the Department.
(b) Upon receipt of the petition for a hearing, OATH shall
schedule a hearing promptly in the district of the Department where the
activity that is the subject of the order allegedly occurred, and at a time
and date which shall not exceed fifteen (15) days from the date of receipt
by OATH of the petition for a hearing unless the parties and the ALJ agree
to another location and date, except that hearings may be held at the
Department's offices in Valhalla, New York for petitions relating to
regulated activities in the East of Hudson watershed and at the Department
s offices in Kingston, New York for petitions relating to regulated
activities in the West of Hudson watershed. Notice of such hearing shall
be provided in writing to the petitioner and to the Department.
(c) A petition for a hearing shall not stay compliance with
the cease and desist order, and it shall continue to be the duty of the
petitioner to discontinue the activity pursuant to the terms of the order.
Failure to do so shall be a violation of the order and these rules and
regulations.
(d) At the hearing, the petitioner shall have the burden of
proving that the activity that is the subject of the order does not come
within the provisions of sections 128-2.1(a)(5) and 128-2.7(a)(5) of these
rules and regulations.
(e) The failure of the petitioner to appear at the time,
date and place set forth in the notice of hearing shall constitute a
default of the right to a hearing on the cease and desist order. The
Department shall provide a notice of default in writing to the petitioner
within five (5) days of the petitioner's failure to appear.
(f) The hearing shall be held before an ALJ. The ALJ shall
cause a record of the hearing to be made, and shall make a report to the
Commissioner within ten (10) days of the close of the hearing record,
setting forth the appearances, the relevant facts and arguments presented
at the hearing, findings of fact and conclusions of law, and a
recommendation as to whether the order should be continued, modified or
vacated and the reasons therefor. Transcripts of the record of the hearing
shall be made available at the petitioner's request and expense.
(g) Within ten (10) days of receipt of the recommendation
of the ALJ, the Commissioner may continue, vacate, or modify the order. If
the Commissioner does not act, the ALJ's recommendation shall be deemed
adopted.
(h) The results of the hearing on the cease and desist
order shall be without prejudice to the right of a person to apply for an
approval or variance for a regulated activity under these regulations, and
shall also be without prejudice to the authority of the Department or any
other person to take action on account of any violation of law, rule,
regulation or order arising out of the events, situations or circumstances
which led to the issuance of the order.

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Section 128-2.10 - State Environmental Quality Review Act (SEQRA)

128-2.10 State Environmental Quality Review Act (SEQRA).

(a) The following activities are deemed by the Department to be Type II actions under SEQRA and its implementing regulations, and the Department shall not require an environmental impact statement or any other determination or procedure under SEQRA for these activities:

(1) Installation of a new individual sewage treatment system on an individual lot which is not within a subdivision, or within a subdivision which has been approved as of the effective date of these rules and regulations.

(2) Any alteration or modification of an existing individual sewage treatment system.

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SubPart 128-3 - Regulated Activities

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Section 128-3.1 - Pathogenic materials

Section 128-3.1 Pathogenic materials.

Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of pathogenic materials into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this section that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

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Section 128-3.2 - Hazardous substances and hazardous wastes

128-3.2 Hazardous substances and hazardous wastes.
(a) Unless otherwise permitted by these rules and
regulations, a discharge, or storage which is reasonably likely to lead to
a discharge, of hazardous substances or hazardous wastes into the
environment (including into groundwater), and which is reasonably likely to
cause degradation of surface water quality or of the water supply, is
prohibited. It shall be an affirmative defense under this subsection that
such discharge, or storage likely to lead to a discharge, is either
permitted or not prohibited under federal law, and is either permitted or
not prohibited under state law.
(b) New storage facilities or new tanks at an existing
facility for the storage of hazardous substances regulated under 6 NYCRR
Part 596, and new process tanks, as defined in 6 NYCRR section
596.1(c)(35), which would be regulated under 6 NYCRR Part 596 if not for
the exemption of process tanks under 6 NYCRR section 596.1(b)(3)(i), are
prohibited within the limiting distance of 100 feet of a watercourse or
wetland, or within the limiting distance of 500 feet of a reservoir,
reservoir stem, or controlled lake, except as provided in subdivision (d)
of this section.
(c) The owner or operator of a new facility, or a new or
substantially modified tank at an existing facility, for the storage of
hazardous substances which is regulated under 6 NYCRR Part 596 and which is
located between the limiting distance of 100 and 250 feet of a watercourse
or wetland, must comply with the following conditions:
(1) The owner or operator shall submit to the Department a
copy of any registration forms required by 6 NYCRR sections 596.2(d) and
(e) and any notification forms required by 6 NYCRR section 596.2(f) at the
time such forms are submitted to the New York State Department of
Environmental Conservation. When, on an emergency basis, new storage tanks
are installed or existing storage tanks are substantially modified in order
to protect public health, safety or the environment, the owner or operator
shall notify the Department no later than two hours after the decision is
made by the owner or operator to install or substantially modify the tank.
(2) The owner or operator shall submit to the Department a
copy of any spill prevention report required to be prepared or updated by 6
NYCRR section 598.1(k), within thirty (30) days of preparing or updating
such report.
(3) Failure to comply with the provisions of 6 NYCRR
section 596.6 (spill response, investigation and corrective action) is a
violation of these rules and regulations.
(4) Failure to comply with 6 NYCRR Part 599 (Standards for
New or Modified Hazardous Substance Storage Facilities) is a violation of
these rules and regulations.
(d) Subdivision (b) of this section shall not apply to:
(1) The storage of any hazardous substance that is a
noncomplying regulated activity, including the replacement in kind of an
existing storage tank provided that the replacement tank is designed and
installed in compliance with Federal, State and local law. To the extent
practicable, the new tank shall be located outside of the limiting
distances of 100 feet of a watercourse or wetland, or outside of the
limiting distance of 500 feet of a reservoir, reservoir stem, or controlled
lake;
(2) The storage of hazardous substances where such storage
is necessary to operate a wastewater treatment plant approved by the
Department; and
(3) The storage of hazardous substances where such storage
is made necessary by construction of a new facility or the alteration or
modification of an existing facility used in connection with the operation
of a public water supply system.

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Section 128-3.3 - Radioactive materials

128-3.3 Radioactive materials. Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of radioactive materials into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this section that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

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Section 128-3.4 - Petroleum products

128-3.4 Petroleum products.

(a) Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of petroleum products into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this subsection that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

(b) New aboveground and underground petroleum storage facilities, which require registration under 6 NYCRR Part 612, or new tanks which expand the capacity of existing facilities which require registration under 6 NYCRR Part 612, are prohibited within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 500 feet of a reservoir, reservoir stem, or controlled lake. Notwithstanding this prohibition, the expansion of an existing aboveground or underground petroleum storage facility shall be allowed within the aforesaid limiting distances provided that the owner or operator of such facility demonstrates to the Department that the application of the limiting distances would preclude the continuation of an existing business.

(c) New home heating oil tanks not requiring registration under 6 NYCRR Part 612, within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 500 feet of a reservoir, reservoir stem, or controlled lake are prohibited from being installed underground and shall be located either aboveground or contained in a basement with a concrete or other impervious floor.

(d) New aboveground and underground petroleum storage tanks of 185 gallons or more which are neither home heating oil tanks regulated under subdivision (c) of this section nor located at facilities requiring registration under 6 NYCRR Part 612, are prohibited within the limiting distance of 25 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem, or controlled lake, except that such new tanks may be allowed within the aforesaid limiting distances provided that the applicant demonstrates to the Department that application of the limiting distances would preclude the continuation of an existing business or the continued identical use of the existing facility.

(e) Subdivisions (b), (c), and (d) shall not apply to: (1) The storage of any petroleum products that is a noncomplying regulated activity; (2) The storage of petroleum products for agricultural purposes; (3) The replacement in kind of existing petroleum storage facilities or tanks; (4) The storage of petroleum products where such storage is necessary to operate a wastewater treatment plant approved by the Department; and (5) The storage of petroleum products where such storage is made necessary by construction of a new facility or the alteration or modification of an existing facility used in connection with the operation of a public water supply system.

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Section 128-3.5 - Human excreta

128-3.5 Human excreta.

(a) Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of human excreta into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this subsection that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

(b) Emptying, discharging or transferring the contents of a sewage vault or other sewage receptacle into any watercourse, wetland, reservoir, reservoir stem, or controlled lake is prohibited.

(c) Transportable sewage receptacles shall have tightly fitting covers which shall be securely fastened during transport.

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Section 128-3.6 - Wastewater treatment plants

128-3.6 Wastewater treatment plants.
(a) Minimum requirements:
(1) Unless otherwise permitted by these rules and
regulations, the design, construction, or operation of a wastewater
treatment plant is prohibited where such design, construction, or operation
causes a discharge, or storage which is reasonably likely to lead to a
discharge, of sewage or sewage effluent into the environment (including
into groundwater), and which is reasonably likely to cause degradation of
surface water quality or of the water supply. It shall be an affirmative
defense under this subsection that such discharge, or storage likely to
lead to a discharge, is either permitted or not prohibited under federal
law, and is either permitted or not prohibited under state law.
(2) The design of new wastewater treatment plants, and the
plans and specifications resulting from that design, require the review and
approval of the Department. The construction of new wastewater treatment
plants shall be in conformance with the plans and specifications approved
by the Department.
(3) The design for an expansion or an alteration or
modification of new or existing wastewater treatment plants, and the plans
and specifications resulting from that design, require the review and
approval of the Department. The construction of the expansion or
alteration or modification shall be in accordance with the plans and
specifications approved by the Department.
(4) The owner or operator of a new or existing wastewater
treatment plant shall operate and maintain the wastewater treatment plant
in accordance with the operations and maintenance manual for the plant.
Such manual shall be prepared by the owner and approved by the Department.
(5) No new wastewater treatment plants with a surface
discharge, or expansion or alteration or modification of new or existing
wastewater treatment plants, shall cause a contravention of the water
quality standards set forth in Subpart 128-4 of these rules and regulations
or the phosphorus water quality values set forth in the New York State
Department of Environmental Conservation Technical and Operational Guidance
Series (TOGS) 1.1.1, Ambient Water Quality Standards and Guidance Values
(October 22, 1993).
(6) No part of any seepage unit or absorption field for a
subsurface discharge from a wastewater treatment plant shall be located
within the limiting distance of 100 feet of a watercourse or wetland or
within the limiting distance of 500 feet of a reservoir, reservoir stem, or
controlled lake.
(7) Wastewater treatment plants with surface discharges
into the watershed shall be capable of achieving 99.9 percent removal
and/or inactivation of Giardia lamblia cysts and 99.99 percent removal
and/or inactivation of enteric viruses.
(8) Wastewater treatment plants with either surface or
subsurface discharges within the watershed shall provide phosphorus removal
using the best treatment technology so that the wastewater treatment plant
is designed to be operated and maintained to meet the following
requirements:

SPDES Permitted Total
Total Flow Phosphorus Limit
(gallons/day) (mg/l)

<50,000 1.0
>50,000 and <500,000 0.5
>500,000 0.2

(9) Wastewater treatment plants with surface discharges to
intermittent streams in the watershed shall be operated and maintained to
meet the intermittent stream effluent limits set forth in the New York
State Department of Environmental Conservation Technical and Operational
Guidance Series (TOGS) 1.3.1, Total Maximum Daily Loads and Water
Quality-Based Effluent Limits (July 8, 1996) and New York State Department
of Environmental Conservation Technical and Operational Guidance Series
(TOGS) 1.3.1B, Total Maximum Daily Loads and Water Quality-Based Effluent
Limits, Amendments-Low and Intermittent Stream Standards (July 8, 1996),
provided however, that the effluent limit for a discharge of a pollutant to
an intermittent stream shall in no case be less stringent than the effluent
limit which would apply to the same discharge of the pollutant to the first
downstream perennial stream.
(10) Within one year of the effective date of these rules
and regulations, the owners of all existing wastewater treatment plants
shall submit to the Department for review and approval an operations and
maintenance plan and a schedule setting forth a plan for bringing the
wastewater treatment plant into compliance with all of the requirements of
this section. Any such plan that is disapproved by the Department shall be
revised and resubmitted to the Department for review and approval within
ninety (90) days after the initial disapproval. Owners of existing
wastewater treatment plants must secure final Department approval of such
operation and maintenance plans and such a schedule setting forth a plan
for bringing the plant into compliance by no later than eighteen (18)
months from the effective date of these rules and regulations, and must
complete all work in order for such plants to be brought into compliance
with the requirements of this section by no later than five (5) years from
the effective date of these rules and regulations or any extended period of
time approved by the Department upon good cause shown.
(11) Existing wastewater treatment plants with surface
discharges are prohibited from expanding if they are located in an area
where new wastewater treatment plants with surface discharges are
prohibited by these rules and regulations. This paragraph shall not apply
to existing wastewater treatment plants which discharge subsurface or the
expansion of existing wastewater treatment plants where the expanded
portion discharges subsurface.
(12) Existing wastewater treatment plants with surface
discharges may expand if they are located in an area where new wastewater
treatment plants with surface discharges are allowed by these rules and
regulations. The plans submitted to expand the wastewater treatment plant
shall meet all of the requirements of this section.
(13) Existing wastewater treatment plants with subsurface
discharges may expand. The expanded portion of such wastewater treatment
plants shall meet all of the design standards and other requirements of
this section.
(14) Any approval of a new or expanded wastewater treatment
plant issued by the Department shall expire and thereafter be null and void
unless construction is completed within five (5) years of the date of
issuance of such approval or any extended period of time approved by the
Department upon good cause shown. Following expiration of the approval,
the plans for the wastewater treatment plants may be resubmitted to the
Department for consideration for a new approval.
(b) Requirements for wastewater treatment plants located
within phosphorus restricted basins. No new wastewater treatment plants
with surface discharges, or expansions of existing wastewater treatment
plants with surface discharges, shall be allowed in a phosphorus restricted
basin. A variance from this provision may be sought in accordance with the
requirements set forth in section 128-6.1(d) of Subpart 128-6.
(c) Requirements for wastewater treatment plants located in
coliform restricted basins. No new wastewater treatment plants with
surface discharges, or expansions of existing wastewater treatment plants
with surface discharges, shall be allowed in a coliform restricted basin.
A variance from this provision may be sought in accordance with the
requirements set forth in section 128-6.1(d)(1) of Subpart 128-6.
(d) Treatment requirements for wastewater treatment plants
located within the 60 day travel time to intake.
(1) The map indicating the demarcation line for the
watershed areas that are located within the 60 day travel time to intake
appears in Appendix 128-A. Large detailed maps of such areas are available
to be reviewed by the public during business hours at the regional offices
listed in section 128-1.5 of Subpart 128-1.
(2) Within the 60 day travel time to the intake the
following requirements are applicable:
(i) New wastewater treatment plants with surface
discharges, or expansions of existing wastewater treatment plants with
surface discharges, are prohibited;
(ii) Existing wastewater treatment plants with SPDES
permitted surface discharges may continue to operate provided the treated
effluent is also subject to sand filtration, disinfection, phosphorus
removal, and microfiltration or a Department-approved equivalent technology
to microfiltration, as required by these rules and regulations;
(iii)New and existing wastewater treatment plants with
subsurface discharges may commence or continue to operate provided that the
treated effluent is also subject to sand filtration and phosphorus removal,
and for SPDES permitted discharges greater than 30,000 gallons per day
(gpd), disinfection, as required by these rules and regulations.
(e) Treatment requirements for wastewater treatment plants
located in the watershed and beyond the 60 day travel time to intake.
(1) The map indicating the demarcation line for the
watershed areas that are located beyond the 60 day travel time to intake
appears in Appendix 128-A. Large detailed maps of such areas are available
to be reviewed by the public during business hours at the regional offices
listed in section 128-1.5 of Subpart 128-1.
(2) Beyond the 60 day travel time to the intake the
following requirements are applicable: (i) New wastewater treatment
plants with surface discharges into a reservoir, reservoir stem, controlled
lake, or wetland are prohibited;
(ii) All new surface discharges into a watercourse, and any
existing wastewater treatment plants with SPDES permitted surface
discharges may commence or continue to operate, provided that the treated
effluent is also subject to sand filtration, disinfection, phosphorus
removal, and microfiltration or a Department-approved equivalent technology
to microfiltration, as required by these rules and regulations;
(iii) New and existing wastewater treatment plants with
subsurface discharges may commence or continue to operate, provided that
the treated effluent is also subject to sand filtration and phosphorus
removal, and for SPDES permitted discharges greater than 30,000 gallons per
day (gpd), disinfection, as required by these rules and regulations.
(f) Design, Operation and Maintenance Requirements
(1) This subdivision (f) shall apply to new and existing
wastewater treatment plants.
(2) The criteria used by the Department to approve the
design for any new wastewater treatment plant or the portion of any new or
existing wastewater treatment plant which is being expanded or altered or
modified shall be all applicable requirements of law, including the
standards set forth in the following documents:
(i) "Design Standards for Wastewater Treatment Works,
Intermediate Sized Sewerage Facilities", New York State Department of
Environmental Conservation (1988); and
(ii) "Recommended Standards for Wastewater Facilities",
Great Lakes--Upper Mississippi River Board of State Public Health and
Environmental Managers (1990).
(3) The Department shall not approve a wastewater treatment
plant, or any proposed expansion of a wastewater treatment plant, which
discharges within the watershed, if there is inflow or infiltration into a
sewerage system connected to such wastewater treatment plant which causes
either:
(i) The State authorized flow limit of the wastewater
treatment plant to be exceeded; or
(ii) The strength of the sewage influent to the wastewater
treatment plant to be diluted to a level that adversely affects the
efficacy of the State permitted and Department approved treatment process.
(4) The Department shall not approve a wastewater treatment
plant, or any proposed expansion of a wastewater treatment plant, if there
is an indication of exfiltration from a sewerage system connected to such
wastewater treatment plant.
(5) All wastewater treatment plants shall meet the
following requirements to insure uninterrupted reliable operation:
(i) All wastewater treatment plants shall provide standby
power units sufficient to run the entire plant in order to ensure
uninterrupted reliable operation in the event of utility power failure and
these units shall be equipped with an alarm and automatic start-up
capability;

(ii) All vital plant structures, mechanical and electrical
equipment of new or existing wastewater treatment plants located or
designed within the 100-year flood plain shall be protected from damage
from a 100-year flood that may affect or disrupt its function or general
performance. Such structures and equipment shall remain fully operational
in a 25-year flood.
(iii) The disinfection system shall be provided with backup
units, an alarm and equipment that will insure processing of the plant flow
without interruption and the backup electrical and/or mechanical equipment
shall be equipped with automatic start-up capability.
(iv) In wastewater treatment plants with a SPDES permitted
surface discharge of 50,000 gpd or less, there shall be a minimum of two
(2) sand filters, each rated to handle the full plant flow. In wastewater
treatment plants with a SPDES permitted surface discharge greater than
50,000 gpd, there shall be a minimum of three (3) sand filters, each rated
to handle one-half (1/2) of the full plant flow;
(v) All wastewater treatment plants must be equipped with
a flow meter that includes a recording device; and
(vi) All alarm systems shall require telemetering to a
central location with around the clock operator presence or, in the
alternative, to an operator's residence so that a response shall be
initiated immediately.
(6) The following requirements shall apply to all
wastewater treatment plants with subsurface discharges or absorption fields
located in the watershed:
(i) The loading rate to the absorption trench may be 25
percent greater than that required under the design standards listed in
subdivision (f)(2) of this section;
(ii) An additional area of at least 50 percent of the
absorption field area shall be set aside as a reserve field area;
(iii) At a minimum, one percolation and one deep hole test
shall be performed in both the primary absorption field area and in the
reserve absorption field area. An applicant shall notify the Department in
writing at least 7 business days prior to performance of such tests, and
specify the location and the time of the tests. At the option of the
Department, a Department representative may witness these tests; and
(iv) The use of pumping, mechanical dosing or other
mechanical devices requires a pump chamber equipped with an alarm to
indicate malfunction, a backup pump, and any other safety features required
by the Department to prevent overflow.
(7)(i) All owners or operators of Department approved
wastewater treatment plants in the watershed shall, prior to commencement
of construction of such wastewater treatment plants, deposit with the
Department a performance bond for the completion of the construction of the
wastewater treatment plant and an additional bond or other guaranty for the
payment of labor and material furnished in the course of such construction.
Upon completion of construction and payment of labor and materials, such
bonds or other guaranties shall be released. Additionally, prior to
commencement of operation of the approved wastewater treatment plant, the
owners or operators of the approved wastewater treatment plant shall
provide a surety bond, or a reasonable guaranty, that they shall continue
to maintain and operate the system for a period of five years. The surety
bond or guaranty shall be in an amount sufficient to insure the full and
faithful performance by the owners or operators of the wastewater treatment
plants, and their successors and assigns, with regard to their obligation
to properly maintain and operate the wastewater treatment plants in
accordance with all requirements of law and according to the conditions set
by the Department in its approval; provided, however, that such surety bond
or guaranty shall not be required by the Department where the owners or
operators of the wastewater treatment plant have provided a surety bond or
guaranty for the maintenance and operation of the wastewater treatment
plant to the local governing body, in an amount necessary to insure the
full and faithful performance of the operation and maintenance of the
wastewater treatment plant; provided further, that such surety bond or
guaranty shall not be required where the owner or operator of the
wastewater treatment plant is a village, town, county or city. The
Commissioner may, at his or her discretion, increase the amount of such
surety bond or guaranty, but not to exceed an amount necessary to insure
the full and faithful performance of the operation of the wastewater
treatment plant. All such bonds shall be prepared on the forms of bonds
authorized by the City of New York and shall have as a surety such company
or companies that shall be approved by the City of New York and are
authorized to do business in the State of New York.
(ii) The Commissioner may authorize the provision of other
security, including cash, if the Commissioner finds that compliance with
the bond requirement is not reasonably possible and the public interest
would be served by such authorization. The alternative security shall be
deposited with the Comptroller of the City of New York.
(iii) Whenever an owner or operator of a wastewater
treatment plant deposits securities or other obligations with the City of
New York, in lieu of a performance bond, it shall be with the understanding
that the Comptroller of the City of New York, or his or her successors, may
sell and use the proceeds thereof for any purpose for which the principal
or surety on such bond would be liable under the terms of the approval. If
money is deposited with the Comptroller, the owner or operator of the
wastewater treatment plant shall not be entitled to receive interest on
such money from the City of New York.
(8) The transfer of any approval or permit issued by the
Department for the construction and/or operation of any wastewater
treatment plant shall require Department approval. The Department shall
approve such transfer provided that the transferee demonstrates sufficient
financial, technical, and professional capability to construct, operate
and/or maintain the subject wastewater treatment plant in compliance with
applicable laws, as cited in section 128-3.6(a)(1), the provisions of these
rules and regulations, and the terms and conditions of any approval or
permit granted by the Department.
(g) Application requirements.
(1) An application for review and approval of a new
wastewater treatment plant shall include the following information:
(i) A Department application form and an Environmental
Assessment Form (EAF Long Form);
(ii) A facility plan which shall include: a description of
the project, flow and waste load estimations, site characteristics,
evaluation of existing system, if applicable, and existing local or related
facilities, including any related water quality problems, examination of
the project service area, estimation of growth, examination of alternative

solutions and explanation of why the proposed option was chosen, analysis
of potential impacts, analysis of hydraulic and organic capacities
(including Waste Assimilation Capacity analysis), description of unit
processes and explanation of sizing, operation under emergency conditions,
and sludge processing, storage and disposal methods, estimation of costs,
proposed financing methods and anticipated user fees, outline of operation
and maintenance requirements (including cost projections), and regulatory
review and permitting requirements;
(iii)An engineering plan which shall include: location plan,
site plan, schematic of plant hydraulic profile, piping schematic,
location, dimension and elevations of plant process units and
appurtenances, mechanical system layout, electrical system layout, and
erosion and sediment control and stormwater management plan.
(iv) Construction specifications, including material and
equipment specifications;
(v) Construction schedule;
(vi) In cases where a draft environmental impact statement
("DEIS") is to be prepared for an activity and the DEIS complies with the
requirements of Article 8 of the Environmental Conservation Law and the
regulations promulgated thereunder, and includes the information required
in this part, the DEIS may constitute all or part of the application for
review and approval under this part. In such case the applicant will
provide the Department with notice and a copy of the DEIS; however, no
approval shall be issued by the Department prior to review of the FEIS and
issuance of a finding to approve; and
(vii) A copy of the draft SPDES permit, if any, and, when
issued, a copy of the final SPDES permit. Copies of any revisions to the
draft SPDES permit shall also be provided to the Department as they become
available to the applicant.
(2) An application for review and approval of an expansion
or of an alteration or modification of a new or existing wastewater
treatment plant shall include all of the information required in
subdivision (g)(1) of this section where applicable, and shall either:
(i) Certify that the wastewater treatment plant is in
compliance with all of the requirements of this section, and all
requirements of its SPDES permit; or
(ii) Certify that a schedule for the wastewater treatment
plant to come into compliance with the requirements of this section and
with the requirements of its SPDES permit has been submitted to the
Department for approval. A copy of such compliance schedule shall be
attached to the application.
(3) An application for review and approval of a plan for
bringing an existing wastewater treatment plant into compliance with the
requirements of this section shall include the operation and maintenance
manual for the wastewater treatment plant.
(4) All approvals for new or expansion of existing
wastewater treatment plants are conditioned on the applicant s submission
of record drawings and an operation and maintenance manual once
construction is complete.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-3.7 - Sewerage systems, service connections and discharges to sewerage systems

128-3.7 Sewerage systems, service connections and discharges to sewerage
systems.
(a) Combined sewerage systems are prohibited from
discharging within the watershed.
(b) A new service connection to a sewerage system is
prohibited where the wastewater treatment plant to which the sewerage
system has been connected and which discharges within the watershed has had
a SPDES flow parameter violation in the prior twelve months, or where the
additional flow from the new service connection will cause or can be
expected to cause such wastewater treatment plant to have a SPDES flow
parameter violation.
(c) All new service connections shall be tested as required
by and in accordance with the standards set forth in "Design Standards for
Wastewater Treatment Works, Intermediate Sized Sewerage Facilities", New
York State Department of Environmental Conservation (1988), and the
standards in "Recommended Standards for Wastewater Facilities", the Great
Lakes--Upper Mississippi River Board of State Public Health and
Environmental Managers, Sections 33.92-33.94 (1990). A copy of the results
of the tests shall be forwarded to the Department as soon as they are
available.
(d) Except for the owner of an individual or two family
residence, the owner of any property which will be served by a new service
connection to a sewerage system, or by any alteration or modification of a
service connection to a sewerage system, shall submit all plans or designs
for such service connection or such alteration or modification to the
Department prior to or simultaneously with the delivery of the notice to
the Department required under paragraph (d)(1) below. The owner of an
individual or two family residence to be served by a new service
connection to a sewerage system, or by an alteration or modification of a
service connection to a sewerage system, shall not be required to submit
the plans or designs for such service connection or such alteration or
modification to the Department, unless specifically requested by the
Department. If so requested, such owner shall submit such plans or designs
to the Department prior to or simultaneously with the delivery of the
notice to the Department required under paragraph (d)(1) below or, if the
request is made by the Department after such notice has been given, within
ten (10) days after such request has been made.
(1) The owner of any property which will be served by a new
service connection to a sewerage system, or by an alteration or
modification of a service connection to a sewerage system, shall notify the
Department 48 hours prior to the installation of such service connection or
of such alteration or modification, and provide an opportunity to the
Department to observe the work. If required or requested pursuant to
subdivision 128-3.7(d), the owner shall submit to the Department all plans
or designs for such service connection or for such alteration or
modification prior to or simultaneously with the delivery of the such
notice to the Department.
(e) The design, construction and plans for a new sewerage
system shall require the review and approval of the Department. Any
proposed alteration or modification of a sewerage system, including a
sewerage system that is a noncomplying regulated activity, shall require
the review and approval of the Department.
(1) The Department may require an engineering report,
construction plans and specifications, and any environmental assessments
and determinations in compliance with Article 8 of the Environmental
Conservation Law when reviewing any application pursuant to this
subdivision for a new sewerage system, or a proposed alteration or
modification of a sewerage system.
(f) The criteria used by the Department to approve any new
sewerage system or the portion of any sewerage system which is being
altered or modified, shall be all applicable requirements of law, including
the standards set forth in the following documents:
(1) "Design Standards for Wastewater Treatment Works,
Intermediate Sized Sewerage Facilities", New York State Department of
Environmental Conservation (1988);
(2) "Recommended Standards for Wastewater Facilities", the
Great Lakes--Upper Mississippi River Board of State Public Health and
Environmental Managers (1990).
(g) All sewerage systems connected to a wastewater
treatment plant which discharges within the watershed shall be designed,
operated and maintained in such manner as to prevent inflow or infiltration
which causes either:
(1) The SPDES authorized flow limit of the wastewater
treatment plant to be exceeded; or
(2) The strength of the sewage influent to the wastewater
treatment plant to be diluted to a level that adversely affects the
efficacy of the SPDES permitted and Department approved treatment process.
(h) All sewerage systems shall be designed, operated and
maintained to prevent exfiltration from such systems.
(i) The owner or operator of a facility which disposes of
wastes regulated pursuant to the Federal Categorical Pretreatment
Standards, 40 CFR Part 403, shall submit three copies of the engineering
report, plans and specifications, prepared by a licensed design
professional, in compliance with 40 CFR Parts 403, 406-471 and any
applicable local regulations, to the Department for its review and
approval.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-3.8 - Subsurface sewage treatment systems

128-3.8 Subsurface sewage treatment systems.

(a) Minimum requirements:

(1) The design, treatment, construction, maintenance and operation of new subsurface sewage treatment systems, and the plans therefor, require the review and approval of the Department, provided that the requirements of this section shall not apply to subsurface sewage treatment systems necessary for an agricultural activity that are designed, provide treatment and are constructed, maintained and operated in
compliance with State and Federal law.

(2) All new individual sewage treatment systems shall comply with the requirements of 10 NYCRR Part 75 and Appendix 75-A except where a local government or agency has enacted, or these rules and regulations specify, more stringent standards, in which case, the more stringent standards shall apply.

(3) All new intermediate sized sewage treatment systems shall comply with the requirements set forth in Design Standards for Wastewater Treatment Works, Intermediate Sized Sewerage Facilities, New York State Department of Environmental Conservation (1988), except where a local government or agency has enacted, or these rules and regulations specify, more stringent standards, in which case, the more stringent
standards shall apply.

(i) As a condition of approval the Department may require evidence of financial security prior to construction, from any owner or operator of a new intermediate sized sewage treatment system or a substantial alteration or modification to an existing intermediate sized sewage treatment system. Such financial security shall consist of a bond,
or an equivalent guaranty, to be deposited with the Department, covering the full cost of the construction of such facility and an additional bond or an equivalent guaranty for the payment of labor and material furnished in the course of such construction. Upon completion of construction and payment of labor and materials, such bonds or other guaranties shall be
released. Additionally, a bond or equivalent guaranty may be required for the maintenance and operation of the facility for a period of five years post-construction. No bond or guaranty is required where the owner or operator of such a facility is a village, town, county or city.

(4) All new subsurface sewage treatment systems, other than
those covered by paragraphs (2) and (3) of this subdivision, shall comply
with the applicable requirements of 10 NYCRR Part 75 and Appendix 75-A or
the applicable published standards of the Design Standards for Wastewater
Treatment Works, Intermediate Sized Sewerage Facilities, New York State
Department of Environmental Conservation (1988), except where a local
government or agency has enacted, or these rules and regulations specify,
more stringent standards, in which case, the more stringent standards shall
apply.

(i) As a condition of approval the Department may require evidence of financial security prior to construction, from any owner or operator of a new subsurface sewage treatment system or a substantial alteration or modification to an existing subsurface sewage treatment system. Such financial security shall consist of a bond, or an equivalent guaranty, to be deposited with the Department, covering the full cost of the construction of such facility and an additional bond or an equivalent guaranty for the payment of labor and material furnished in the course of such construction. Upon completion of construction and payment of labor and materials, such bonds or other guaranties shall be released. Additionally, a bond or equivalent guaranty may be required for the maintenance and operation of the facility for a period of five years post-construction. No bond or guaranty is required where the owner or
operator of such a facility is a village, town, county or city.

(5) No part of any absorption field for a new conventional individual subsurface sewage treatment system, as described in Appendix 75-A of 10 NYCRR Part 75, or for the types of sewage treatment systems described in paragraphs (3) and (4) of this subdivision, or for an Ulster County Fill System, shall be located within the limiting distance of 100
feet of a watercourse or wetland or 300 feet of a reservoir, reservoir stem or controlled lake. For a new conventional individual subsurface sewage treatment system or for a new Ulster County Fill System the Department may recommend a greater limiting distance from an absorption field to a watercourse, wetland, reservoir, reservoir stem or controlled lake.

(6) Raised systems, as described in 10 NYCRR Part 75 and Appendix 75-A, are allowed on undeveloped lots not located in a subdivision or on undeveloped residential lots located in a subdivision which was approved prior to the effective date of these rules and regulations, where site conditions are not suitable for a conventional system provided that:

(i) The system shall be located at least 250 feet from any watercourse or wetland and 500 feet from any reservoir, reservoir stem or
controlled lake provided that the greater limiting distance for raised
systems does not preclude construction on the subject lot or lots of the
use proposed by the applicant, and further provided that the site
conditions and the subsurface sewage treatment system comply with the other
provisions of these rules and regulations and other applicable federal,
State and local laws, as cited in section 128-3.8(a)(1); or

(ii) Raised systems which cannot meet the limiting distances set forth in subparagraph (i) due to size or location of the lot shall be located at the greatest limiting distance possible within the property lines and at least 100 feet from any watercourse or wetland and 300 feet from any reservoir, reservoir stem or controlled lake.

(7) Where a watershed county has adopted a subdivision code that allows a raised system, as described in 10 NYCRR Part 75 and Appendix 75-A, or where any system that has been modified from the standards outlined in Appendix 75-A has been approved by the New York State Department of Health as an alternative system, or where the New York State
Department of Health approved such raised or modified alternative systems for use in subdivisions located in the watershed, such raised or alternative systems are allowed in subdivisions that are approved subsequent to the effective date of these rules and regulations, provided that no part of such systems shall be located within 250 feet of a
watercourse or wetland or 500 feet of a reservoir, reservoir stem or controlled lake.

(8) Any proposed alteration or modification of any subsurface sewage treatment system, including a noncomplying regulated activity, requires the review and approval of the Department, and shall also be subject to the following, where applicable:

(i) Any proposed alteration or modification of any individual sewage treatment system or any other kind of subsurface sewage treatment system described in paragraphs (3) and (4) of this subdivision located within the limiting distances set forth in this section shall be performed in accordance with the New York State Fire Prevention and Building Code, Executive Law Section 370 et seq.

(ii) Any proposed alteration or modification of any intermediate sized sewage treatment system is prohibited unless such alteration or modification complies with the requirements of this section.

(9) All existing subsurface sewage treatment systems, which are operating in accordance with their Federal, State, and local approvals on the effective date of these rules and regulations, but which do not comply with the additional requirements set forth in this section, shall be allowed to continue to operate and shall be considered noncomplying
regulated activities. However, if at any time after the effective date of these rules and regulations such subsurface sewage treatment system fails or needs remediation, the owner or operator of the subsurface sewage treatment system shall comply with the following:

(i) Any proposed remediation of any part of such existing subsurface sewage treatment system shall require the prior review and approval of the Department, and if approved, shall be completed as soon as possible in accordance with a schedule approved by the Department;

(ii) Upon the failure of any subsurface sewage treatment system, it shall be remediated, to the extent possible, in accordance with the design standards set forth in this section, and shall require the prior review and approval of the Department. However, if the Department determines, based upon the application submitted by the owner or operator
of the subsurface sewage treatment system, that such system cannot comply with this section, the owner or operator of the subsurface sewage treatment system shall cooperate with the Department to determine the most suitable location and design for the system on the specific site. The Department may require the owner to agree to a regular schedule for the pump-out of any failed subsurface sewage treatment system; and

(iii) The provisions of this paragraph shall not apply to the routine repair and maintenance of a subsurface sewage treatment system, including, but not limited to, the pump-out of a septic tank, the repair of a broken lateral, the leveling of a distribution box, or the removal of a blockage.

(10) Any approval of a subsurface sewage treatment system issued by the Department shall expire and thereafter be null and void unless construction is commenced within five (5) years of the date of issuance for systems located within approved subdivisions, or within two (2) years of the date of issuance for all other subsurface sewage treatment
systems. Following expiration of the approval, the plans for the subsurface sewage treatment system may be resubmitted to the Department for consideration for a new approval.

(b) Design, operation, treatment, and maintenance requirements.

(1) All subsurface sewage treatment systems shall be designed, operated and maintained to prevent the exposure of sewage to the surface of the ground or the discharge of sewage to groundwater.

(2) Mound systems, intermittent sand filters, evapotranspiration/absorption systems and galley systems that did not have all discretionary approvals before June 30, 2002, are prohibited from use in the watershed.

(3) An additional area of at least 100 percent of the primary absorption field area shall be set aside as a reserve absorption field area for any subsurface sewage treatment system.

(4) Primary and reserve absorption fields may not be built under pavement or other impervious surfaces, and pavement and other impervious surfaces may not be built over such absorption fields after installation.

(5) At least one percolation test and at least one deep hole test shall be performed in the primary absorption field. At least one percolation test and at least one deep hole test shall be performed in the reserve absorption field area. An applicant shall notify the department in writing at least seven (7) days prior to performance of such tests, and specify the location and the time of the tests. At the option of the Department, a Department representative may witness such tests.

(6) Proposed sites with soil percolation rates faster than 3 minutes per inch or slower than 60 minutes per inch shall not be approved by the Department for locating a subsurface sewage treatment system.

(7) Whenever possible, gravity flow systems shall be used for subsurface sewage treatment systems. The use of pumping, mechanical dosing or other mechanical devices shall require a pump chamber equipped with an alarm to indicate malfunction and any other safety features required by the Department to prevent sewage overflow. An intermediate
sized sewage treatment system or any other kind of subsurface sewage treatment system as described in paragraphs (3) and (4) of subdivision (a) of this section is required to have either a backup pump or a backup storage tank capable of holding two days flow. An individual sewage treatment system shall have a backup storage tank capable of holding one day's flow.

(c) Application requirements.

(1) An application for review and approval of any subsurface sewage treatment systems shall include the following information:

(i) Soil investigation report including:

(a) percolation test results;

(b) deep hole test pit results or boring analysis;

(c) indication of surface water or ledge rock observed;

(d) design rate of flow; and

(e) delineation of United States Department of Agriculture Soil Conservation Service soil type boundaries.

(ii) Building permit number and tax map number where available.

(iii) Four (4) sets of plans showing:

(a) site location, including distances to wells, watercourses, rock outcroppings, wetlands, controlled lakes and reservoirs;

(b) site/system plans;

(c) system profile;

(d) details of system components; and

(e) a report containing:

(1) a description of the project characteristics; and

(2) a detailing of the design process.

(2) An application for review and approval of an intermediate sized sewage treatment system and for any other subsurface sewage treatment system as described in paragraph (4) of subdivision (a) of this section, shall include all of the information in subdivision (c) of this section, and additionally shall contain:

(i) An Environmental Assessment form and State Environmental Quality Review Act determination, if applicable; and

(ii) A SPDES permit, if applicable.

Effective Date: 
Wednesday, April 13, 2005
Doc Status: 
Complete

Section 128-3.9 - Stormwater pollution prevention plans and impervious surfaces

128-3.9 Stormwater pollution prevention plans and impervious surfaces.
(a) Impervious surfaces.
(1) The construction of an impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, or within the
limiting distance of 300 feet of a reservoir, reservoir stem, or controlled
lake, is prohibited.
(2) Paragraph (1) shall not apply to the following
activities:
(i) Construction of a new individual residence, which shall
comply with paragraph (5) of this subdivision, or non-commercial ancillary
improvements or additions to an individual residence;
(ii) Agricultural activities;
(iii) Construction of bridges or crossings of watercourses
or wetlands constructed pursuant to a valid permit from the appropriate
regulatory agencies. If a permit from a regulatory agency other than the
Department is not required, the applicant shall comply with paragraph (9)
of this subdivision;

(iv) Creation of an impervious surface to alter or modify a
wastewater treatment plant approved by the Department;
(v) Creation of an impervious surface that is made
necessary by the construction of a new facility or alteration or
modification of an existing facility used in connection with the operation
of a public water supply system; or
(vi) Creation of an impervious surface, such as a culvert,
needed as an integral component of diversion or piping of a watercourse,
but only with the review and approval of the Department and only if the
Department determines that such impervious surface will not have an adverse
impact on water quality.
(3) Paragraph (1) shall not apply to creation of an
impervious surface in the West of Hudson watershed within a village,
hamlet, village extension, or area zoned for commercial or industrial uses,
which complies with paragraph (8) of this subdivision or to the creation of
an impervious surface in the East of Hudson watershed within a Designated
Main Street Area, which complies with paragraph (11) of this subdivision.
(4) Paragraph (1) shall not apply to the creation of an
impervious surface in connection with the following activities occurring in
the East of Hudson watershed outside a Designated Main Street Area or in
the West of Hudson watershed outside a village, hamlet, village extension,
or an area zoned for commercial or industrial uses:
(i) Construction of a new road or driveway, or widening of
an existing road, which shall comply with paragraph (6) of this
subdivision;
(ii) Creation of an impervious surface within a designated
village center, which shall comply with paragraph (7) of this subdivision;
or
(iii) Expansion of an existing impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, at an existing
commercial or industrial facility, provided that the total area of all
expanded impervious surfaces does not exceed 25 percent of the area of the
existing impervious surface at that commercial or industrial facility,
which shall comply with subdivisions (b), (c) and (d) of this section.
(5) The following requirements are applicable to
construction of a new individual residence:
(i) Whether or not a new individual residence will be
located in a subdivision, construction of a new individual residence within
the limiting distance of 300 feet of a reservoir, reservoir stem, or
controlled lake is prohibited;
(ii) Construction of a new individual residence in a
subdivision within the limiting distance of 100 feet of a watercourse or
wetland is prohibited where:
(a) The subdivision plat received preliminary approval on
or after October 16, 1995; or
(b) The subdivision plat received preliminary approval
before October 16, 1995, the person who owned the subdivision on October
16, 1995 was the same person, or a principal or affiliate of the person,
who owned the subdivision at the time the subdivision plat received
preliminary approval, and construction activity related to infrastructure
improvements for the subdivision had not begun as of October 16, 1995;
(iii) Construction of a new individual residence not in a
subdivision, or in a subdivision approved before October 16, 1995 and not
prohibited by paragraph (a)(5)(ii)(b) of this subdivision, within the
limiting distance of 100 feet of a perennial stream or wetland requires an
individual residential stormwater permit from the Department, pursuant to
subdivision (e) of this section.
(6) The following requirements are applicable to
construction of an impervious surface for a new road or driveway or the
widening of an existing road:
(i) Construction of an impervious surface for a new road or
driveway within the limiting distance of 300 feet of a reservoir, reservoir
stem or controlled lake is prohibited, except paving an existing dirt or
gravel road is permitted. Construction of a new impervious surface by
paving an existing dirt or gravel road requires a stormwater pollution
prevention plan which complies with subdivisions (b), (c) and (d) of this
section.
(ii) Construction of an impervious surface for a new road
within the limiting distance of 50 feet of an intermittent stream or
wetland, or within the limiting distance of 100 feet of a perennial stream
is prohibited, except for paving an existing dirt or gravel road or where
necessary to provide an access road to two or more parcels or to a
subdivision. Construction of an impervious surface for paving such
existing dirt or gravel road or for such a new access road requires a
stormwater pollution prevention plan which complies with the requirements
of subdivisions (b), (c) and (d) of this section. Any access road
constructed pursuant to this paragraph shall be constructed as far as
practicable from all watercourses and wetlands.
(iii) Construction of an impervious surface for a new road
between the limiting distances of 50 feet and 100 feet of an intermittent
stream or wetland requires a stormwater pollution prevention plan which
complies with the requirements of subdivisions (b), (c) and (d) of this
section.
(iv) Construction of an impervious surface for a driveway
within the limiting distance of 50 feet of an intermittent stream or
wetland, or within the limiting distance of 100 feet of a perennial stream
is prohibited except where necessary to provide access to an existing home
or a new individual residence allowed to be constructed within such
limiting distances pursuant to paragraph (5) above. If construction of the
individual residence served by the driveway would require a stormwater
pollution prevention plan or an individual residential stormwater permit,
construction of the impervious surface for the driveway shall also require
a stormwater pollution prevention plan or an individual residential
stormwater permit, respectively.
(v) Widening of an existing road located within the
limiting distance of 50 feet of an intermittent stream or wetland, within
the limiting distance of 100 feet of a perennial stream, or within the
limiting distance of 300 feet of a reservoir, reservoir stem or controlled
lake shall be performed on the side of such existing road furthest from the
watercourse, wetland, reservoir, reservoir stem or controlled lake, to the
extent practical.
(7) The following requirements are applicable to creation
of an impervious surface within a designated village center:
(i) A local government in the Croton System may delineate
an area within the local government's boundaries to be a designated village
center in a Comprehensive Croton Water Quality Protection Plan prepared and
agreed to in accordance with section 128-8.2 of these rules and
regulations. Such designated village center shall comply with the
requirements of this paragraph with regard to the construction of
impervious surfaces.
(ii) Within a designated village center the construction of
a new impervious surface within the limiting distance of 100 feet of a
watercourse or wetland, or within the limiting distance of 300 feet of a
reservoir, reservoir stem, or controlled lake requires the review and
approval of the Department. An approval issued by the Department pursuant
to this subparagraph shall contain a determination by the Department that
there is no reasonable alternative to the creation of the proposed new
impervious surface within the applicable limiting distance and that the
best available measures have been taken to prevent adverse impacts on the
quality of the drinking water supply.
(8) The following requirements are applicable to creation
of an impervious surface in the West of Hudson watershed within a village,
hamlet, village extension or area zoned for commercial or industrial uses:
(i) Creation of any new impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, or within the
limiting distance of 300 feet of a reservoir, reservoir stem or controlled
lake, within a village, hamlet, village extension or area zoned for
commercial or industrial uses as of the effective date of these rules and
regulations, requires a stormwater pollution prevention plan which complies
with the requirements of subdivisions (b), (c) and (d) of this section,
except that the foregoing requirements of this subparagraph shall not apply
to the creation of a new impervious surface for an activity set forth in
paragraph (2) of this subdivision which complies with the provisions of
paragraph (2).
(ii) If a local government in the West of Hudson watershed
adopts a zoning ordinance designating additional areas for commercial or
industrial use after the effective date of these rules and regulations, it
may apply to the Department to allow construction of new impervious
surfaces in the newly zoned commercial or industrial areas located within
the limiting distance of 100 feet of a watercourse or wetland, or within
the limiting distance of 300 feet of a reservoir, reservoir stem, or
controlled lake. The Department shall approve such application if the
Department determines that allowing new impervious surfaces in such newly
zoned commercial or industrial area is consistent with the objectives of
these rules and regulations and with previously approved zoning ordinances.
If approved by the Department, creation of new impervious surfaces within
such newly zoned commercial or industrial areas within the aforesaid
limiting distances shall be allowed subject to the requirements of
subparagraph (8)(i) above.
(9) Construction of a bridge or crossing of a watercourse
or wetland which does not require a permit from a regulatory agency other
than the Department shall require the review and approval of the
Department. Such bridge or crossing shall be constructed to prevent
adverse impacts on the quality of the water supply.
(10) Maintenance of an existing impervious surface that is a
noncomplying regulated activity shall not require the review and approval
of the Department.
(11) The following requirements are applicable to creation
of an impervious surface in the East of Hudson watershed within a
Designated Main Street Area:
(i) Creation of any new impervious surface within a
Designated Main Street Area requires a stormwater pollution prevention plan
which complies with the requirements of subdivisions (b), (c), and (d) of
this section, except that the foregoing requirements of this subparagraph
shall not apply to the creation of a new impervious surface for an activity
set forth in paragraph (2) of this subdivision which complies with the
provisions of paragraph (2).
(ii) Within thirty (30) days of the effective date of these
rules and regulations, a local government may define by metes and bounds,
tax maps or other geographic boundaries a proposed Designated Main Street
Area within its boundaries, and apply to the Department for approval of
such proposal. Within thirty (30) days of such application the Department
may approve, disapprove, or approve with modifications, such Designated
Main Street Area. If the Department disapproves the application, the local
government shall have an additional thirty (30) days in which to submit a
revised application for approval of the proposed Designated Main Street
Area, and the Department shall approve or disapprove the application within
thirty (30) days of receipt of such revised application. The Department
will approve only a limited number of Designated Main Street Areas and
local governments may not designate all areas of population concentrations
in the East of Hudson watershed as Designated Main Street Areas. The
approved boundary description of a Designated Main Street Area shall be
made available by the Department for public inspection at its field offices
in the East of Hudson watershed.
(b) Stormwater pollution prevention plans.
(1) Stormwater pollution prevention plans shall not be
required to be prepared pursuant to this section for agricultural and
silvicultural activities.
(2) Stormwater pollution prevention plans shall not be
required to be prepared pursuant to this section for clear cutting and
mining activities, provided, however, that such activities shall be subject
to the requirements set forth in the applicable New York State Department
of Environmental Conservation SPDES Permit which may be required pursuant
to Environmental Conservation Law section 17-0808.
(3) Stormwater pollution prevention plans shall be
prepared for the activities listed in this paragraph. Such plans shall be
prepared and implemented in accordance with the requirements of Part III of
the New York State Department of Environmental Conservation General Permit
No. GP-93-06. Such plans shall also be subject to the prior review and
approval of the Department. The activities are:
(i) Plans for development or sale of land that will result
in the disturbance of five (5) or more acres of total land area as
described in General Permit No. GP-93-06;
(ii) Construction of a subdivision;
(iii)Construction of a new industrial, municipal,
commercial, or multi-family residential project that will result in
creation of an impervious surface totaling over 40,000 square feet in size;
(iv) A land clearing or land grading project, involving two
or more acres, located at least in part within the limiting distance of 100
feet of a watercourse or wetland, or within the limiting distance of 300
feet of a reservoir, reservoir stem or controlled lake or on a slope
exceeding 15 percent;
(v) Construction of a new solid waste management facility
or alteration or modification of an existing solid waste management
facility within 300 feet of a watercourse or wetland or 500 feet of a
reservoir, reservoir stem or controlled lake;
(vi) Construction of a gasoline station;
(vii)Construction of an impervious surface for a new road,
as required by paragraph (a)(6) of this section;
(viii) Construction of an impervious surface in the West of
Hudson watershed within a village, hamlet, village extension or area zoned
for commercial or industrial uses, as required by paragraph (a)(8) of this
section;
(ix) Up to a 25 percent expansion of an existing impervious
surface at an existing commercial or industrial facility which is within
the limiting distance of 100 feet of a watercourse or wetland, as required
in subdivision (a) (4)(iii) of this section; or
(x) Construction of an impervious surface in the East of
Hudson Watershed in a Designated Main Street Area.
(4) If the owner or operator of any activity which is
subject to a Stormwater Pollution Prevention Plan pursuant to subsection
(b)(3), alters or modifies such activity in a manner which would require an
amended stormwater pollution prevention plan pursuant to Part III.C of the
New York State Department of Environmental Conservation General Permit No.
GP-93-06, if such activity were governed by General Permit No. GP-93-06,
such amended stormwater pollution prevention plan shall be submitted to the
Department for prior review and approval and shall comply with the
requirements of this section.
(5) Any approval of a stormwater pollution prevention plan
issued by the Department shall expire and thereafter be null and void
unless construction is completed within five (5) years of the date of
issuance or within any extended period of time approved by the Department
upon good cause shown. Following expiration of the approval, the
application for the stormwater pollution prevention plan may be resubmitted
to the Department for consideration for a new approval.
(6) As a condition of approval the Department may require
evidence of financial security prior to construction from any owner or
operator of a stormwater management system pursuant to a stormwater
pollution prevention plan. Such financial security shall consist of a bond,
or an equivalent guaranty, to be deposited with the Department, covering
the full cost of the construction of such facility and an additional bond
or an equivalent guaranty for the payment of labor and material furnished
in the course of such construction. Upon completion of construction and
payment of labor and materials, such bonds or other guaranties shall be
released. Additionally, a bond or equivalent guaranty may be required for
the maintenance and operation of the facility for a period of five years
post-construction. No bond or guaranty is required where the owner or
operator of such a facility is a village, town, county or city.
(c) Additional requirements for stormwater pollution
prevention plans.
(1) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in a
phosphorus restricted basin, the stormwater pollution prevention plan shall
include an analysis of phosphorus runoff, before and after the land
disturbance activity. Such plan shall require measures to capture and
treat the 2- year, 24-hour storm runoff from the disturbed area created by
such activity.
(2) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in the
drainage basin of a terminal reservoir, as identified on the watershed maps
in Appendix 128-A, the stormwater pollution prevention plan shall include
analysis of coliform runoff, before and after the land disturbance
activity.
(i) If such proposed activity causes or contributes to the
contravention of the coliform standard set forth in Section 128-4.1(b)(1)
of Subpart 128-4, the stormwater pollution prevention plan shall not be
approved by the Department, unless the measures required by the stormwater
pollution prevention plan in conjunction with any other controls to be
imposed that limit future land disturbance at the site, including but not
limited to property easements, restrictive covenants, zoning laws and
development by-laws, will prevent the contribution of additional coliform.
(3) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in a coliform
restricted reservoir basin, the stormwater pollution prevention plan shall
include an analysis of coliform runoff, before and after the land
disturbance activity. Such plan shall require measures to capture and
treat the 2-year, 24-hour storm runoff from the disturbed area created by
such activity.
(4) All stormwater pollution prevention plans prepared
pursuant to this section shall include an analysis of the 25-year storm.
(d) Application Requirements and Procedures
(1) An application for approval of a stormwater pollution
prevention plan shall include:
(i) The pollution prevention plan;
(ii) The information required in a Notice of Intent under
New York State Department of Environmental Conservation SPDES General
Permit No. GP-93-06; and
(iii) A phosphorus and/or coliform analysis when required by
this section.
(2) When the Department notifies an applicant that an
application for approval of a stormwater pollution prevention plan is
complete pursuant to subdivision 128-2.3(d)(2) and (3) of Subpart 128-2,
the Department shall also issue a written notification to the Stormwater
Project Review Committee ( Committee ) for the Town(s) or Village in which
the activity requiring preparation of the stormwater pollution prevention
plan is proposed to be located, of the Department s receipt of a complete
application.
(i) If requested by one or more members of the Committee,
the Department shall submit a copy of the complete application to the
Committee for its review and shall convene a meeting, in person or by
telephone, of the Committee.
(ii) The Department shall not be required to meet with or
otherwise further consult with a member of the Committee concerning an
application where the Committee member declines to review the application
or fails to attend a meeting of the Committee convened to consider the
application.

(3) Upon completion of their review of the application, and
upon a majority vote of the Committee members, including the Department s
Committee member, who reviewed the application, the Committee may recommend
to the Department that an application for approval of a stormwater
pollution prevention plan be approved, approved with conditions or
disapproved.
(i) If the Department s Committee member agrees with the
majority recommendation of the Committee, the Department may proceed to
issue its determination to the applicant.
(ii) If the Department s Committee member disagrees with the
majority recommendation of the Committee, the application, together with
the written recommendation of the Committee, shall be submitted to the
First Deputy Commissioner of the Department for review and a determination.
The First Deputy Commissioner shall issue a written record of decision
setting forth the basis for the determination and responding to any
contrary written recommendations submitted by any member of the Committee.
(iii) If the Committee fails to make a recommendation to the
Department at least fifteen (15) days prior to the date the Department is
required to notify an applicant in writing of its determination pursuant to
subdivision 128-2.3(d)(5) of Subpart 128-2, the Department may proceed to
issue its determination and the Department shall not be required by these
rules and regulations to further consult with or consider the comments of
the Committee or any member of the Committee.
(4) Failure of any Committee member, other than the
Department Committee member, to act in accordance with the procedures or
within the time frames set forth in these rules and regulations, shall
relieve the Department of any obligation to consult with or consider the
comments of the Committee member. Failure of any Committee member, other
than the Department Committee member, to act in accordance with the
procedures or within the time frames set forth in these rules and
regulations, shall not invalidate any determination issued by the
Department.
(5) A Committee may only make recommendations to the
Department and shall have no authority to make decisions on behalf of the
Department. For purposes of SEQRA, the Department s determination on an
application, not the Committee s recommendation to the Department, shall be
considered a final decision.
(e) Individual residential stormwater permits.
(1) An individual residential stormwater permit is required
for:
(i) Construction of a new individual residence, not located
within a subdivision, and located within the limiting distance of 100 feet
of a perennial stream or wetland;
(ii) Construction of a new individual residence located
within a subdivision approved before October 16, 1995, and not prohibited
by paragraph (a)(5)(ii)(b) of this section, and located within the limiting
distance of 100 feet of a perennial stream or wetland; and
(iii) Construction of an impervious surface for a driveway
located within the limiting distances of 50 feet of an intermittent stream
or wetland or within 100 feet of a perennial stream, provided that the
driveway is necessary for access to an individual residence which is not
located within a subdivision and where the individual residence accessed by
the driveway would be required to obtain an individual residential
stormwater permit pursuant to this section.
(2) Application requirements. An application for issuance
of an individual residential stormwater permit shall include:
(i) A plan of the proposed individual residence and/or
driveway;
(ii) A plan or map identifying the location of any
watercourses, wetlands, reservoirs, reservoir stems or controlled lakes on
or adjacent to the property;
(iii)A plan showing the approximate area of site
disturbance;
(iv) A description and depiction of proposed erosion
controls sufficient to prevent sedimentation of the receiving watercourse
or wetland during construction. Erosion controls typically consist of
sediment barriers, such as hay bales and silt fencing, and temporary
stormwater diversions;
(v) A schedule for construction, including grading and site
stabilization; and
(vi) A description and depiction of proposed stormwater best
management practices designed to filter, detain, or filtrate runoff from
the individual residence or driveway, thereby minimizing the
post-construction increase in pollutant loading to the receiving perennial
stream or wetland.
(3) An individual residential stormwater permit issued by
the Department shall expire and thereafter be null and void unless
construction is completed within two (2) years of the date of issuance of
the permit, or within any extended period of time approved by the
Department upon good cause shown. Following expiration of the permit, the
application for the individual residential stormwater permit may be
resubmitted to the Department for consideration for a new permit.

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Section 128-3.10 - Miscellaneous point sources

128-3.10 Miscellaneous point sources.

(a) Unless otherwise permitted by the rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge into the environment (including into groundwater), from industrial facilities, including vehicle washing facilities, and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this subsection that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

(b) Any new point source, excluding point sources otherwise regulated pursuant to these rules and regulations, is prohibited from discharging into a reservoir or controlled lake, reservoir stem, or wetland.

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Section 128-3.11 - Solid waste

128-3.11 Solid waste.

(a) Siting or horizontal expansion of a junkyard or a municipal solid waste landfill, within the limiting distance of 250 feet of a watercourse or wetland, or the siting or horizontal expansion of a junkyard or a solid waste management facility within the limiting distance of 1000 feet of a reservoir, reservoir stem or controlled lake is prohibited except for:

(1) Recyclable handling and recovery facilities that handle non-putrescible solid waste, such as newspapers, magazines, corrugated boxes, glass, cans and plastic, but not non-putrescible solid waste such as batteries, car batteries, and waste oil;

(2) Composting facilities for individual households for personal use; or (3) Expansion of the existing permitted municipal solid waste landfill located within Delaware County.

(b) Discharge of solid waste directly into any watercourse, wetland, reservoir, reservoir stem or controlled lake is prohibited. For purposes of this subdivision, solid waste includes materials that are otherwise exempt from compliance with 6 NYCRR Part 360, as described in 6 NYCRR subdivision 360-1.2(a)(4). This subdivision shall notapply to discharge of treated leachate in accordance with the requirements of these rules and regulations and a valid SPDES permit.

(c) Only construction and demolition debris that is recognizable uncontaminated concrete, asphalt pavement, brick, soil, stone, trees or stumps, wood chips, or yard waste may be used as fill in the watershed.

(d) All new solid waste management facilities, or altered or modified existing solid waste management facilities within the limiting distance of 300 feet of a watercourse or wetland, or within the limiting distance of 500 feet of a reservoir, reservoir stem, or controlled lake, are required to submit stormwater pollution prevention plans to the Department for review and approval, in accordance with Section 128-3.9(b)(3)(v) of these rules and regulations.

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Section 128-3.12 - Agricultural activities

128-3.12 Agricultural activities. Any intentional, knowing or reckless act or omission that in the course of an agricultural activity significantly increases pollutants in the water supply is prohibited.

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Section 128-3.13 - Pesticides

128-3.13 Pesticides. Unless otherwise permitted by these rules and regulations, the discharge or use, or storage of pesticides which is reasonably likely to lead to a discharge, of pesticides into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this subsection that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.

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Section 128-3.14 - Fertilizers

128-3.14 Fertilizers.

(a) The requirements of this section shall not apply to the application or storage of fertilizers for: (1) An agricultural activity performed in compliance with State or Federal law; and (2) Non-commercial application by an individual on residential premises.

(b) No fertilizer activity shall be considered to be a noncomplying regulated activity.

(c) Discharge from the washing of fertilizer application equipment into any watercourse, wetland, reservoir, reservoir stem or controlled lake is prohibited.

(d) Use of water directly from a reservoir, reservoir stem or controlled lake for fertilizer make-up is prohibited.

(e) Use of water directly from a watercourse for fertilizer make-up without the use of an anti-siphon device is prohibited.

(f) Open storage of fertilizer is prohibited.

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Section 128-3.15 - Snow disposal and storage and use of winter highway maintenance materials

128-3.15 Snow disposal and storage and use of winter highway maintenance materials.

(a) Whenever feasible removed snow shall not be disposed of directly into a watercourse, wetland, reservoir, reservoir stem or controlled lake. However, this subdivision shall not be construed to require an owner or operator to transport the removed snow in a vehicle for offsite disposal.

(b) No snow disposal activity shall be considered to be a noncomplying regulated activity.

(c) Commercial, industrial, governmental, or institutional entities shall be restricted to the use of the substances defined in these rules and regulations as winter highway maintenance materials and to the use of the minimum amount needed of such substances in order to protect the public safety. In determining the minimum amount needed for public safety, such entities should consider best management practices developed by the New York State Department of Transportation.

(d)(1) Commercial, industrial, governmental, or institutional entities that store winter highway maintenance materials in quantities of 1000 pounds or more that contain greater than eight percent chloride compounds shall store such materials in structures constructed on low permeability storage pads. (2) Any outdoor areas used for loading, handling or mixing of winter highway maintenance materials shall be constructed and maintained to prevent seepage and runoff from entering any watercourse, wetland, reservoir, reservoir stem or controlled lake.

(e) All commercial, industrial, governmental, or institutional entities that store winter highway maintenance materials in quantities and composition not otherwise subject to paragraph (1) of subdivision (d) of this section, shall store such materials in a manner that minimizes runoff into any watercourse, wetland, reservoir, reservoir stem, or controlled lake. Runoff may be controlled by use of control measures such as berms and covers.

(f) A winter highway maintenance material storage facility may be enlarged provided that the enlarged facility is in compliance with the storage requirements set forth in this section, and any other applicable requirements of these rules and regulations.

(g) Winter highway maintenance material storage facilities that are noncomplying regulated activities shall come into compliance with this section no later than two years from the effective date of these rules and regulations.

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SubPart 128-4 - Water Quality Standards for Reservoirs and Controlled Lakes

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Section 128-4.1 - Water quality standards

Section 128-4.1 Water quality standards.
(a) The water in all reservoirs, Lake Gilead, and Lake
Gleneida, shall meet the following standards of quality:
(1) 6 NYCRR Parts 701 (narrative standards) and 703
(standards applicable to Class AA waters):
(i) For purposes of determining compliance with this
subpart, the Department shall take water samples from the reservoirs; and
(ii) Where total coliform standards exceed the standards set
forth in 6 NYCRR Parts 701 and 703, and are determined by the Department to
be due to a non-perennial, non-anthropogenic source, such exceedances shall
not be included in calculating whether a violation of these rules and
regulations has occurred.
(2) The New York State Department of Environmental
Conservation Technical and Operational Guidance Series (TOGS) 1.1.1,
Ambient Water Quality Standards and Guidance Values (October 22, 1993)
which sets forth the ambient water quality standards and guidance values
for principal organic chemicals and synthetic organic chemicals.
(b) The water within 500 feet of the aqueduct effluent
chamber located at a terminal reservoir (Kensico, West Branch, New Croton,
Ashokan and Rondout) shall meet the following coliform standard:
(1) Raw water fecal coliform concentrations shall be equal
to or less than 20 colonies per 100 milliliters or total coliform
concentration shall be equal to or less than 100 colonies per 100
milliliters in at least 90 percent of the measurements made over any
consecutive six month period. For purposes of determining compliance with
this subpart, a minimum of five samples per week will be taken from each
reservoir. If both fecal and total coliform analyses are performed, the
fecal coliform results shall take precedence over the total coliform
analysis.
(i) Where fecal coliform standards exceed the above
standards, and are determined by the Department to be due to non-perennial,
non- anthropogenic sources, such exceedances shall not be included in
calculating whether a violation of these rules and regulations has
occurred.
(c) The Department shall, on an annual basis, conduct a
review of all reservoirs and controlled lakes for the purpose of
determining whether each reservoir and controlled lake meets or fails to
meet the water quality standards set forth in subdivisions (a) and (b) of
this section, as applicable. The results of the Department's review,
together with the calculations used in arriving at the results for each
reservoir, shall be published in a report which shall be made available to
the public upon request.

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SubPart 128-5 - Enforcement

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Section 128-5.1 - Enforcement

Section 128-5.1 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 section 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 (a/k/a the Clean Water Act), 33 U.S.C. sections 1251 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. sections 6901 et seq.; the Oil Pollution Act, 33 U.S.C. sections 2701 et seq.; Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. sections 136 et seq.; Toxic Substances Control Act, 15 U.S.C. sections 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.

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SubPart 128-6 - Variances

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Section 128-6.1 - Variances

Section 128-6.1 Variances.

(a) The Commissioner or the First Deputy 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;

(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; and

(iv) Demonstrate that for the proposed use or activity for which the variance is requested, compliance with the identified provision of the rules and regulations would create a substantial hardship due to site conditions or limitations.

(2) In granting variances the Commissioner or the First Deputy 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 or the First Deputy 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 subpart shall require the review and approval of the Department and shall comply with the provisions of this subpart.

(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 section 128-2.8 of Subpart 128-2 of these rules and regulations.

(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 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 Subpart 128-8.

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SubPart 128-7 - Administration and Enforcement by Local Governments

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Section 128-7.1 - Certification of administrative programs

Section 128-7.1 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 Section 128-1.5), 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 subpart shall be referred to as a "certified local government."

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-7.2 - Administrative determinations

Section 128-7.2 Administrative determinations.

(a) Each administrative program submitted by a local government under this subpart 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 subpart, 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.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-7.3 - Annual review of administrative programs

Section 128-7.3 Annual review of administrative programs.

(a) The administrative program of a certified local government shall be reviewed annually by the Department. Such review shall be based upon records that demonstrate the effectiveness of the program which include objective criteria such as:

(1) A review of determinations on applications for approval of regulated activities;

(2) A review of the adequacy of financial, personnel and other resources for the previous year, and evidence of future commitment of adequate financial, personnel, and other resources to continue the administrative program; and (3) A review of such other records as the certified local government may be required to keep.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
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Section 128-7.4 - Decertification or modification of administrative programs

Section 128-7.4 Decertification or modification of administrative programs.

(a) The administrative program of a certified local government shall be continued unless decertified or modified by the Commissioner. A preliminary determination to decertify or modify shall be made at any time if the Commissioner determines that the local government s administration of any element of the program is inadequate to protect the water supply.

(b) Where the Commissioner has made a preliminary determination to decertify or modify a local government's administrative program pursuant to subdivision (a) of this section, a notice of proposed decertification or modification, and the reasons therefor, shall be sent by certified mail, to the designated representative of the certified local government. The certified local government may, within ten business days of the sending of such notice, submit information addressing the reasons for decertification or modification stated in the notice. The Commissioner, after receipt and consideration of any information submitted by the certified local government, shall make a final determination to continue, modify, or decertify the program within thirty business days of sending of the notice of proposed decertification or modification. Upon decertification of an administrative program the administration of the rules and regulations set forth herein shall revert to the Department.

(c) A local government which has received a determination of decertification may reapply for certification after one year.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
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Section 128-7.5 - Certification of enforcement programs

Section 128-7.5 Certification of enforcement programs.

(a) The local government of a town, city, village or county may apply to the Department, care of the Engineering Section (see section 128-1.5) for certification of a program to enforce specific provisions of these rules and regulations.

(b) A local government s proposed program for enforcement of specific provisions of these rules and regulations may include the following:

(1) Inspection of premises for potential violations of these rules and regulations and the preparation of written reports detailing the results of each such inspection; and (2) Issuance of notices of violation of specific provisions of these rules and regulations.

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

(1) Identification of the specific provisions of the rules and regulations that the local government intends to enforce;

(2) Number, technical expertise and experience of personnel and identification of other resources that will be dedicated to the enforcement 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 enforce the rules and regulations;

(5) Identification of information management capability to insure efficient administration and adequate record keeping; and (6) Any other information requested by the Department.

(d) The Department shall review an application for certification in accordance with the procedures set forth in subdivision (d) of section 128-7.1. A determination to certify shall be based upon a finding by the Department that the resources, funding and enforcement 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. Any memorandum of understanding for an enforcement program shall provide that the designated enforcement personnel of the local government shall be agents of the Department for purposes of enforcement of specific provisions of these rules and regulations, and provided further, that such memorandum of understanding shall state that the Department shall retain the authority to enforce these rules and regulations in addition to any enforcement by the local government.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-7.6 - Annual review of enforcement programs

Section 128-7.6 Annual review of enforcement programs.

(a) The enforcement program of a certified local government shall be reviewed annually by the Department. Such review shall be based upon records that demonstrate the effectiveness of the program which include objective criteria, such as:

(1) A review of notices of violation issued by the certified local government;

(2) A review of inspection reports prepared by the certified local government;

(3) A review of the determinations made by courts or administrative tribunals on notices of violation issued by the certified local government;

(4) A review of compliance with notices of violation issued by the certified local government;

(5) A review of the adequacy of financial, personnel and other resources for the previous year, and evidence of future commitment of adequate financial, personnel and other resources to continue the enforcement program in accordance with any requirements of a memorandum of understanding; and (6) A review of such other records as the certified local government may be required to keep in accordance with a memorandum of understanding.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-7.7 - Decertification or modification of enforcement programs

Section 128-7.7 Decertification or modification of enforcement programs.

(a) The enforcement program of a certified local government shall be continued unless decertified or modified by the Commissioner. A preliminary determination to decertify or modify shall be made at any time if the Commissioner determines that the local government s administration of any element of the program is inadequate to protect the water supply.

(b) Where the Commissioner has made a preliminary decision to decertify or modify a local government s enforcement program pursuant to subdivision (a) of this section, a notice of proposed decertification or modification, and the reasons therefor, shall be sent by certified mail to the designated representative of the certified local government. The certified local government may, within ten business days of the sending of such notice, submit information addressing the reasons for decertification or modification stated in the notice. After receipt and consideration of any information submitted by the certified local government, the Commissioner shall make a final determination to continue, modify, or decertify the program within thirty business days of sending of the notice of proposed decertification or modification. Upon decertification of an enforcement program, the enforcement of the rules and regulations set forth herein shall be the sole responsibility of the Department.

(c) A local government which has received a determination of decertification may reapply for certification after one year.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-7.8 - Consent of the City

Section 128-7.8 Consent of the City.

Nothing in this subpart shall be construed to allow the designated administrative or enforcement personnel of a certified local government, or any representative or attorney of a certified local government, to appear in any court proceeding or before any administrative tribunal on behalf of the City or the Department, for the purpose of enforcing violations of these rules and regulations or defending against any claim or action arising from these rules and regulations without the written consent of the City.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

SubPart 128-8 - Watershed Protection Plans

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-8.1 - Local government stormwater protection plans

Section 128-8.1 Local government stormwater protection plans.

(a) A local government of a town, village, or county in the
watershed may submit to the Department for review and approval a proposed
local government stormwater protection plan ("Stormwater Plan") to
undertake all or some aspects of watershed protection as set forth in
section 128-3.9 of these rules and regulations. The Stormwater Plan may be
submitted individually by a local government or jointly with one or more
adjoining local government(s) in accordance with the requirements of this
Subpart.

(1) Within 90 days of receipt by the Department of a
proposed Stormwater Plan, the Department shall review the proposed
Stormwater Plan to determine whether it meets the requirements of this
Section and notify the local government, in writing, whether the proposed
Stormwater Plan is approved;

(2) If the Department fails to notify the local
government(s) in writing of its determination within the 90 day period set
forth in paragraph (a)(1) of this subdivision, the local government(s) may
notify the Department of its failure by means of certified mail, return
receipt requested to the local Department representative who is responsible
for processing the Stormwater Plan;

(3) If the Department fails to notify the local
government(s) within ten (10) business days of the receipt of such notice
the Stormwater Plan shall be deemed approved subject to the terms and
conditions set forth in the most recent submission by the local
government(s).

(b) Pursuant to the terms and conditions of an approved
Stormwater Plan, the Department may issue a waiver from specific provisions
of section 128-3.9 of these rules and regulations, including the
prohibition of construction of an impervious surface within the limiting
distance of 100 feet of a watercourse or wetland or within the limiting
distance of 300 feet of a reservoir, reservoir stem or controlled lake, for
all applicants of projects located within some or all of the geographical
area of the local government(s). The Department may issue such waivers
after a local government(s) has an approved Stormwater Plan.

(c) An approvable Stormwater Plan shall include:

(1) The specific provision(s) of section 128-3.9 of these
rules and regulations from which the waiver is sought;

(2) A description of the metes and bounds of the
geographical area (town, village, county, or part thereof) for which the
waiver is sought, including a map of the described area;

(3) Mechanisms to be established by the local government
that are at least as protective of the watershed reservoir drainage basin
in which the waiver will be effective as the specific provisions of Section
128-3.9 of these rules and regulations from which the waiver is sought;

(4) A commitment by the local government(s) to implement
each element of the Stormwater Plan in accordance with the terms of the
Stormwater Plan and a schedule for implementation of all elements of the
Stormwater Plan;

(5) An agreement by the local government(s) to coordinate
with the Department any review by the local government(s) required under
the State Environmental Quality Review Act for regulated activities, as
defined in these rules and regulations;

(6) The rights, obligations and roles of the local
government(s) and the Department under the Stormwater Plan; and

(7) Identification of the approximate number, technical
expertise and experience of personnel and all other resources that will be
dedicated to carrying out such plan.

(d) The mechanisms to be established pursuant to paragraph
(c)(3) of this subdivision may include:

(1) Stormwater control structures, or best management
practices, that capture and treat stormwater from existing non-point
pollution sources such as areas of concentrated impervious surfaces;

(2) Mechanisms or programs that address the capture and
treatment of stormwater from future non-point pollution sources on a
community-wide basis such as the creation of a stormwater district;

(3) Land use controls, zoning, and other local laws,
ordinances and rules and regulations that will protect the quality of the
water supply, including but not limited to laws and rules and regulations
concerning wetland protection, protection of hydrologically sensitive
areas, and control of runoff from nonpoint pollution sources; or

(4) Educational programs providing information to residents
of the town, village, or county whose local government is involved in the
watershed protection plan process concerning:

(i) The challenges of protecting water quality and the
Federal, State and local requirements for watershed protection;

(ii) The water supply system as a natural resource and
source of drinking water; and

(iii) Actions that can be taken by residents and the local
government to enhance water quality protection.

(e) An annual report shall be submitted by the local
government to the Department on each anniversary of the date of the signing
of the approved Stormwater Plan. The annual report shall include, but need
not be limited to the following information:

(1) A statement by the local government of its compliance
with the terms and conditions of the approved Stormwater Plan; and

(2) A statement of future commitment of adequate financial,
personnel and other resources to continue compliance with the terms and
conditions of the approved Stormwater Plan.

(f) Once the Stormwater Plan is approved by the Department,
the Stormwater Plan shall be considered valid and effective.

(1) The local governments proposing the Stormwater Plan
may, upon written notice to the City, modify the plan at any time after it
has been agreed upon. If the Stormwater Plan is proposed to be modified,
the Department shall make a determination within 60 days of notice of the
proposed modification, whether the Stormwater Plan as modified shall
continue to be valid and effective. In making such a determination, the
Department shall consider whether the Stormwater Plan as modified, taken as
a whole, continues to be at least as protective of the watershed as the
specific provisions of Section 128-3.9 of these rules and regulations from
which the waiver applies. The Stormwater Plan shall continue to be valid
and effective during the period of the Department s review of any proposed
modification. If the Department determines that the proposed modification
would cause the stormwater plan to be not as protective as the provisions
of section 128-3.9 of these rules and regulations which are being waived,
the Department shall so notify the local government(s). The existing and
approved Stormwater Plan will then remain valid and effective until and
unless the local government(s) implemented the proposed changes to the
Stormwater Plan.

(2) If at any time the Department determines that the local
government s administration of all or part of the Stormwater Plan is not as
protective as the provisions of section 128-3.9 of these rules and
regulations which are being waived, the Department may revoke or modify the
Stormwater Plan after notice has been given to the local government and an
opportunity to meet and discuss the problem has been provided.

(3) Upon a final determination to revoke the Stormwater
Plan the waivers issued thereunder shall be void and the watershed rules
and regulations contained herein shall be applicable in the area of the
watershed that was previously exempt pursuant to the waivers issued under
the Stormwater Plan.

(4) Any Stormwater Plan agreed to shall be reviewed by the
parties agreeing to such plan fifteen (15) years after such plan becomes
effective in order to determine whether such plan has met and will continue
to meet its goals.

Effective Date: 
Wednesday, July 8, 1998
Doc Status: 
Complete

Section 128-8.2 - Watershed planning in the Croton System

Section 128-8.2 Watershed planning in the Croton System.

(a) Notwithstanding the prohibitions set forth in section
128-3.6 on new or expanded wastewater treatment plants with surface
discharges within the sixty day travel time to intake or within phosphorus
restricted basins, the Department shall allow for the preparation and
implementation of a Comprehensive Croton System Water Quality Protection
Plan ("Croton Plan") and an accompanying phosphorus offset program and
diversion credit program in accordance with this section 128-8.2. Section
128-8.2 is independent of, does not govern, and is not governed by, section
128-8.1.

(b)(1) At the request of Dutchess, Putnam or Westchester
County, and in partnership with Dutchess, Putnam or Westchester County, and
the municipalities located in the Croton system watershed, the Department
shall prepare or assist in the preparation of a Croton Plan only in a
participating County or Counties which:

(i) Identifies significant sources of pollution to the
Croton system;

(ii) Recommends measures to be taken by the Department, the
Counties, and the municipalities which, in conjunction with other federal,
State, local and Department water quality protection programs, will prevent
degradation to, and improve, water quality, with the long term goal of
attaining water quality standards in the Croton system; and

(iii) Recommends measures to be taken to protect the
character and special needs of communities located within the watershed.

(2) A County wishing to do so may, when joined by a
majority of municipalities located within the County's watershed, choose to
prepare the Croton Plan for the portion of the watershed located within the
County. Such Croton Plan shall be prepared in partnership with the
Department.

(3) The Croton Plan shall be developed in the manner set
forth in subdivisions (c), (d) and (e) below and may allow for new
wastewater treatment plants with a surface discharge or for the expansion
of existing wastewater treatment plants with a surface discharge, provided
the additional flow is either offset by a diversion of wastewater off of
the watershed pursuant to subparagraph (e)(4)(i), or the additional
phosphorus load is offset pursuant to subparagraph (e)(4)(ii).

(4) Any data that would benefit the Croton Planning process
that is in the possession of the Department or one of the Counties or
municipalities participating in the development of a Croton Plan shall be
shared among the participants and appropriately considered in developing a
Croton Plan.

(c) The Croton Plan shall consist of the following three
elements:

(1) Identification of water quality problems and community
character needs. Such identification shall include the following elements:

(i) An identification of growth or development projected to
occur under existing municipal zoning and master plans and allowed under
existing land use controls, other than these rules and regulations, and
including development necessary to maintain community character, public
facilities and institutions and to serve local, regional or special needs;

(ii) An identification of specific existing water quality
problem areas and specific sources of pollution to the Croton system,
including areas of existing or imminent subsurface sewage treatment system
failures, areas of concentrated point source discharges and substantial
non-point source pollution, and areas in need of streambank stabilization.

(iii) An assessment of future water quality impacts related
to growth or development identified in paragraph (i) above.

(iv) An identification of areas identified in paragraph (i)
above where site constraints may prevent the siting of new subsurface
sewage treatment systems in accordance with the requirements set forth in
these rules and regulations.

(v) An identification of areas identified in paragraph (i)
above where these rules and regulations prohibit new surface discharges
from wastewater treatment plants and site constraints prevent the siting of
a new wastewater treatment plant with a subsurface discharge.

(2) Identification of investments to correct existing water
quality problems in accordance with developed priorities. Such
identification shall include the following elements:

(i) The identified investments may include investments
(i.e., capital projects and best management practices) implemented during
the development of the Croton Plan, investments that the participating
Counties and municipalities commit to implement, and an identification of
priorities for future investments, without any commitment on the part of
the Counties and municipalities to implement such investments.

(ii) Proposed measures to address water quality problems
identified in paragraph (c)(1)(ii) above. Such measures may include
subsurface sewage treatment system maintenance, rehabilitation and
replacement programs, installation of community septic systems, the
construction of sewer extensions or new sewerage systems, stormwater
controls, and the permanent diversion of wastewater to a discharge point
outside of the watershed.

(3) Strategies for prevention of future water quality
problems and the consideration of future community character needs in
conjunction with the water quality goals of the Croton Plan. Such
strategies shall include the following:

(i) An assessment of the economic, water quality, community
character, and special needs impacts of directing growth away from areas
identified in paragraphs (c)(1)(iv) and (v) above;

(ii) An identification of the economic, water quality and
community character impacts of allowing growth within those areas
identified in paragraphs (c)(1)(i), (iv) and (v) above, if directing growth
in accordance with paragraph (c)(3)(i) above is not feasible or practical;

(iii) An identification of potential areas for the
construction of new or expanded wastewater treatment plants, as provided
for in (e) below, either under a future permanent phosphorus offset program
or utilizing the 10 percent credit provision for an implemented diversion
project and a statement of the reasoning for the selection of such
potential areas;

(iv) An identification of land use and local laws and
regulations that the participating Counties and municipalities have already
implemented and/or agree to implement in the future which are intended, in
combination with other measures in the Croton Plan, to mitigate the water
quality impacts identified in subsection (c)(1)(iii) above;

(v) With respect to future land use issues, identification
of mechanisms to ensure the improvement and protection of water quality is
taken into consideration by the local government and that the local
government agrees to use best efforts to implement such mechanisms; and

(vi) At the option of the local government, designation of
village centers as provided for in Section 128-3.9(a)(7)(i) of these rules
and regulations.

(d)(1) If a County requests, pursuant to section 128-8.2(b),
that a Croton Plan be developed within five (5) years of the effective date
of these rules and regulations, the Department, in partnership with the
participating Counties and municipalities, and in consultation with the New
York State Department of Health, shall complete a draft Croton Plan and
release such draft Croton Plan for public review and comment. If a Croton
Plan has been prepared by a County and its municipalities, the County and
municipalities, in partnership with the Department and in consultation with
the New York State Department of Health, shall complete a draft Croton Plan
within five (5) years of the effective date of these rules and regulations
and release such draft Croton Plan for public review and comment. The
Department, the participating Counties and municipalities shall consider
and respond to comments received from the public in preparing the final
Croton Plan.

(2) Within six (6) months after the release of the draft
Croton Plan, the final Croton Plan shall be agreed to by the Department and
the Counties and municipalities which participated in the preparation of
the Croton Plan, and in consultation with the New York State Department of
Health. In determining whether to agree to the Croton Plan, the Department
will consider the Croton Plan, including the level of commitments therein,
taken as a whole and consistent with subsection (d) of this section, meets
the overall goals of the Croton Plan, set forth in subsection (b) of this
section. The Department will not approve or disapprove individual
components of the Croton Plan. The Department and the participating
Counties and municipalities shall make a reasonable effort to resolve any
and all issues which preclude their agreement to the Croton Plan. The five
(5) year period referred to in paragraph (1) above, and/or the six (6)
month period referred to in this paragraph (2) may be extended by agreement
of the Department and the participating Counties and municipalities. In
addition, the participating Counties and municipalities may, at any time,
agree to discontinue the development of the Croton Plan.

(3) A failure of any participating County or municipality
to agree to the Croton Plan shall not affect the ability of another
participating County or municipality to agree to the Croton Plan and to
site new wastewater treatment plants or to expand existing wastewater
treatment plants with a surface discharge in accordance with subdivision
(e).

(4) Once the Croton Plan is agreed to by the Department and
the participating Counties and municipalities, the Croton Plan shall be
considered valid and effective. The participating Counties and
municipalities agreeing to the Croton Plan may, upon 60 days written notice
to the City, modify the Plan at any time after it has been agreed upon. If
the Croton Plan is proposed to be modified, the Department shall make a
determination within sixty (60) days of notice of the proposed
modification, whether the Croton Plan, as modified, shall continue to be
valid and effective. In making such a determination, the Department shall
consider whether the Croton Plan, as modified and taken as a whole, is
consistent with subsection (d) of this section and meets the overall goals
of the Croton Plan set forth in subsection (b) of this section. Any
approved Croton Plan remains in effect pending any determination on a
proposed modification and shall remain in effect until and unless either
the Department agrees to a modification or a local government modifies it
without the Department's approval or ceases to implement it.

(5) Any Croton Plan agreed to shall be reviewed by the
participants to the plan fifteen (15) years after the Croton Plan becomes
effective in order to determine whether the Croton Plan has met and will
continue to meet its goals, and to determine whether new goals are
appropriate.

(6) The Counties and the municipalities agreeing to the
Croton Plan shall submit to the Department an annual report each year the
Croton Plan is in effect. The annual report shall be submitted on the
anniversary of the date the Croton Plan became effective and shall include:

(i) A statement of the status of the development or
implementation of measures proposed in the Croton Plan;

(ii) A statement of expenditures incurred by the Counties
and municipalities in implementing, and administering measures proposed in
the Croton Plan; and

(iii) An identification of the financial, personnel and
other resources needed to continue implementation and administration of the
measures proposed in the Croton Plan.

(e) The Croton Plan may allow for the siting of a new
wastewater treatment plant with a surface discharge or the expansion of an
existing wastewater treatment plant with a surface discharge in the Croton
System within a phosphorus restricted basin or a basin located within the
60 day travel time, but not within a coliform restricted basin, pursuant to
the following conditions:

(1) Site constraints prevent the proposed new wastewater
treatment plant or the expanded existing wastewater treatment plant from
discharging subsurface;

(2) The municipal government and the County in which the
wastewater treatment plant would be sited, confirms in writing that the
proposed new wastewater treatment plant or the expansion of an existing
wastewater treatment plant is consistent with the Croton Plan;

(3) The Department, in consultation with the New York State
Department of Health, determines that the proposed new wastewater treatment
plant or expansion of an existing wastewater treatment plant is consistent
with the water quality objectives of the Croton Plan; and

(4) The discharge from the new wastewater treatment plant
or the expansion of an existing wastewater treatment plant complies with
one of the following conditions:

(i) The total volume (or flow) of surface discharge from
such new wastewater treatment plant or expansion of an existing wastewater
treatment plant, together with the total volume of surface discharges from
all other new wastewater treatment plants and expansions of wastewater
treatment plants which have been permitted in the subject County pursuant
to this subparagraph (i), shall not, in the aggregate, exceed 10 percent of
the total volume (or flow) of surface discharge from wastewater treatment
plants located in the Croton system, within the subject County, which
previously discharged into the Croton System but have been permanently
diverted, since the effective date of these rules and regulations, to a
discharge point outside of the Watershed. The Department may approve
applications to construct new wastewater treatment plants with surface
discharges pursuant to this subdivision prior to the permanent diversion of
wastewater, and allow construction to begin on such new wastewater
treatment plants, provided that the wastewater treatment plant may not
commence operation until the diversion for which the credit is received has
actually occurred; or

(ii) In phosphorus restricted basins located outside of the
sixty day travel time, provided that the Department has determined pursuant
to section 128-8.4, based upon the results of the pilot programs set forth
in sections 128-8.2(g) and 128-8.3(a), or of other studies conducted within
the watershed, that the phosphorus offsets sought by the pilot programs
have been achieved, the Department may require that each one (1) kilogram
of projected increase in the phosphorus load resulting from the proposed
new wastewater treatment plant, together with any accompanying nonpoint
source runoff, is actually offset by at least three (3) kilograms of
reductions in phosphorus loading within the basin within which the proposed
project is located, including reductions from measures identified in and
implemented in accordance with the Croton Plan pursuant to paragraph (c)(8)
above, and otherwise eligible for an offset hereunder, whether the source
of the offsets is in the same basin or within an upstream, hydrologically
connected phosphorus restricted basin.

(5) With respect to any new or expanded wastewater
treatment plant allowed pursuant to this subdivision (e), the Department
will not impose additional requirements on the siting of such new or
expanded wastewater treatment plant other than the requirements
specifically set forth in these rules and regulations applicable to all
wastewater treatment plants, the requirements of this subdivision (e), and,
with respect to new or expanded wastewater treatment plants in phosphorus
restricted basins relying on phosphorus offsets, the requirements of any
phosphorus offset program pursuant to sections 128-8.2(g), 128-8.3(a) and
128-8.4.

(f)(1) A County or municipality wishing to participate in
the preparation of the Croton Plan shall indicate its intention to
participate by written notice to the Department given within one year of
the effective date of these rules and regulations. Such notice shall
include a commitment by the subject County or municipality to cooperate
with the Department in generating and analyzing the data and information
reasonably necessary to address the Croton Plan elements identified in
subdivision (c) above, and an agreement to minimize the use of offsets as a
basis for new wastewater treatment plants or expansions of existing
wastewater treatment plants pursuant to subdivision (e), to the extent that
the economic and social needs of such County or municipality can be
reasonably addressed without the use of such offsets.

(2) Within thirty (30) days after receipt of a notice as
described in subdivision (f)(1) above, the Department shall notify a County
or municipality of its inclusion in the preparation of a Croton Plan.

(3) If a County and its municipalities wish to prepare a
Croton Plan, in accordance with subdivision (b)(2) above, the Department
shall, within thirty (30) days of receipt of a notice as described in
subdivision (f)(1) above, authorize the County and municipalities to begin
preparation of such a Croton Plan. Such authorization shall include a
commitment by the Department to cooperate with the County and
municipalities in generating the data and information reasonably necessary
to address the Croton Plan elements identified in subdivision (c) above.

(4) The provisions of subdivision (e) above shall not apply
in any County or municipality which fails to participate in the preparation
of the Croton Plan, fails to cooperate with the Department in the manner
described in paragraph (f)(1) above in preparing the Croton Plan; fails or
ceases to implement any water quality protection measures which such County
or municipality has committed to implement as part of the final Croton Plan
agreed upon by the County, municipality and the Department; or where a
previously agreed upon Croton Plan is no longer valid and effective.

(g) In Putnam County, provided that Putnam County has
committed in writing to participate in the development of the Croton Plan
pursuant to subdivision (d) above, the Department shall allow for a pilot
program to evaluate the effectiveness of phosphorus offsets as a potential
basis for allowing construction of new wastewater treatment plants within
phosphorus restricted basins in the Croton system. Such pilot program
shall be limited to a term of five (5) years, commencing on the effective
date of these rules and regulations and expiring on the fifth anniversary
thereof. During the term of the pilot program, the Department may approve
within a Putnam County municipality which has committed in writing to
participate in development of the Croton Plan, the construction of a new
wastewater treatment plant with a surface discharge within a phosphorus
restricted basin in the Croton system provided that the following
conditions are met:

(1) The applicant proposing a new wastewater treatment
plant demonstrates that the County or municipality agrees to the plant s
inclusion in the pilot program;

(2) The applicant demonstrates, and commits to take action
to insure, that for every one (1) kilogram of projected increase in the
phosphorus load resulting from the new wastewater treatment plant and
accompanying non-point source runoff, there will be an offset which
achieves at least three (3) kilograms of reduction in phosphorus within the
basin in which the new wastewater treatment plant is located, whether the
source of the offset is in the same basin or within an upstream
hydrologically connected phosphorus restricted basin;

(3) All new wastewater treatment plants proposed to be
constructed pursuant to this pilot program shall be reviewed and approved
by the Department in accordance with section 128-3.6 of these rules and
regulations;

(4) No more than three (3) wastewater treatment plants with
surface discharges may be located in the Croton system in Putnam County
pursuant to this pilot program. The total capacity, as constructed, for
the three (3) proposed wastewater treatment plants shall not exceed a
maximum of 150,000 gpd aggregate surface discharge; and

(5) Any wastewater treatment plant constructed pursuant to
this pilot program shall be designed and operated to meet a total
phosphorus effluent limit of .2 mg/l.

(h) Nothing in this subpart is intended to constrain, limit
or preclude an applicant from seeking, or the Department from issuing,
approval of or a variance for a proposed regulated activity under any other
applicable provision of these rules and regulations.

(i) Nothing in this section or in the Croton Plan is
intended to constrain or limit the authority of local governments under
State law to make local land use and zoning decisions, and nothing in this
section or the Croton Plan should be construed to have the effect of
transferring such local land use and zoning authority from the
participating local governments to the Department or any other entity.

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Section 128-8.3 - Watershed planning in the West of Hudson watershed

Section 128-8.3 Watershed planning in the West of Hudson watershed.
(a) The Department shall establish a pilot program to
evaluate the effectiveness of phosphorus offsets as a potential basis for
allowing the construction of new wastewater treatment plants, or the
expansion of existing plants, with a surface discharge in a phosphorus
restricted basin located in the West of Hudson watershed. Such pilot
program shall be limited to a term of five (5) years, commencing on the
effective date of these rules and regulations and expiring on the fifth
anniversary thereof. During the term of the pilot program, the Department
may approve the siting of a new wastewater treatment plant, or the
expansion of an existing plant, with a surface discharge in a phosphorus
restricted basin located in the West of Hudson watershed, provided that the
following conditions are met:

(1) The County in which the new wastewater treatment plant,
or the expansion of an existing plant, is proposed to be sited has
prepared, or is in the process of preparing, a Comprehensive Strategy, in
partnership with the Department and with the local governments located
within the County and affected by the Comprehensive Strategy. The
Comprehensive Strategy should identify existing economic resources, water
quality problems, potential remedies for such problems and potential
strategies and recommendations of economic development initiatives that
could be undertaken to sustain local economies while remaining protective
of the water supply.

(2) The applicant demonstrates that the new wastewater
treatment plant, or the expansion of an existing plant, together with the
offsets the applicant is proposing to make under paragraph (3) below, is
consistent with the Comprehensive Strategy.

(3) The applicant demonstrates, and commits to take action
to insure, that every one (1) kilogram of projected increase in the
phosphorus load resulting from the new wastewater treatment plant or the
expansion of an existing plant, and the accompanying non-point source
runoff will be actually offset by at least three (3) kilograms of
reductions in phosphorus loading within the basin in which such new
wastewater treatment plant, or the expansion of an existing plant, is
located. For purposes of this subdivision, the applicant may use as an
offset any phosphorus reduction funded by the Catskill Fund for the Future
or achieved from stormwater pollution prevention measures installed on
existing structures or impervious surfaces in a village center or hamlet
and funded by the Department.

(4) All new wastewater treatment plants, or expansions of
existing plants, proposed to be constructed pursuant to this pilot program
shall be reviewed and approved by the Department;

(5) No more than three (3) new wastewater treatment plants,
or expansions of existing plants, with surface discharge shall be allowed
into any phosphorus restricted basin pursuant to this pilot program. The
total capacity, as constructed, of the three (3) plants shall not exceed a
maximum of 100,000 gpd aggregate surface discharge.

(6) Any wastewater treatment plant, or expansion of an
existing plant, constructed pursuant to this pilot program shall be
designed and operated to meet the total phosphorus effluent limit of .2
mg/l.

(b) Nothing in this subpart is intended to constrain, limit
or preclude an applicant from seeking, or the Department from issuing,
approval of or a variance for a proposed regulated activity under any other
applicable provision of these rules and regulations.

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Section 128-8.4 - Permanent phosphorus offset programs

Section 128-8.4 Permanent phosphorus offset program.

(a) Upon completion of the pilot programs set forth in
sections 128-8.2(g) and 128-8.3(a), the Department may determine, based on
the results of the pilot program or of other studies conducted in the
Watershed that:

(1) Phosphorus offsets sought pursuant to sections
128-8.2(g) and 128-8.3(a) have been achieved and that a permanent
phosphorus offset program should be established, with such conditions as
may be appropriate based on the results of the pilot program or other
studies conducted in the Watershed.

(i) Pending completion of any necessary rulemaking for the
continuation of a permanent phosphorus offset program, including any
appropriate modifications thereto, the Department may allow the
construction of new wastewater treatment plants with surface discharges
into phosphorus restricted basins located outside of the sixty day travel
time on a case-by-case basis pursuant to the standards set forth in section
128-6.1 of Subpart 128-6 and subject to such conditions as may be
appropriate based upon the results of the pilot program and other studies
conducted in the watershed; or

(2) There is insufficient data on which to make a
determination that phosphorus offsets have been achieved; therefore, the
time frame for the pilot programs shall be extended for a period not to
exceed five years to allow for the acquisition of further data. Nothing
contained in this subdivision shall allow for an increase in the number or
size of the wastewater treatment plants allowed pursuant to the pilot
programs as set forth in sections 128-8.2(g) and 128-8.3(a).

(3) In the West of Hudson watershed, in any permanent
phosphorus offset program, provided the applicant demonstrates, and commits
to take action to insure, that every one (1) kilogram of projected increase
in the phosphorus load resulting from the new wastewater treatment plant or
the expansion of an existing plant, and the accompanying non-point source
runoff will be actually offset by at least three (3) kilograms of
reductions in phosphorus loading within the basin in which such new
wastewater treatment plant, or the expansion of an existing plant, is
located, the applicant may use as an offset any phosphorus reduction funded
by the Catskill Fund for the Future or achieved from stormwater pollution
prevention measures installed on existing structures or impervious surfaces
in a village center or hamlet and funded by the Department.

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SubPart 128-9 - Severability

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Section 128-9.1 - Severability

Section 128-9.1 Severability.

The provisions of these rules and regulations shall be severable, and if any item, subclause, clause, sentence, subparagraph, paragraph, subdivision, section or Subpart of these rules and regulations, or the applicability thereof to any person or circumstances, shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, and the application thereof, but shall be confined in its operation to the item, subclause, clause, sentence, subparagraph, paragraph, subdivision, section or Subpart thereof, or to the person or circumstance directly involved in the controversy in which such judgment shall have been rendered.

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SubPart 128-10 - Appendices

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Section 128-10.1 - Watershed Maps

Section 128-10.1 Watershed maps.

(a) The watershed area for the New York City water supply
lies in the parts of the following counties and towns that are delineated
on Map 128-A.1:

(1) Delaware County: In the towns of Andes, Bovina,
Colchester, Delhi, Deposit, Franklin, Hamden, Harpersfield, Kortright,
Masonville, Meredith, Middletown, Roxbury, Sidney, Stamford, Tompkins,
Walton.

(2) Dutchess County: In the towns of Beekman, East
Fishkill, Pawling.

(3) Fairfield County (Connecticut): In the towns of
Danbury, Greenwich, New Fairfield, Ridgefield, Sherman.

(4) Greene County: In the towns of Ashland, Halcott,
Hunter, Jewett, Lexington, Prattsville, Windham.

(5) Putnam County: In the towns of Carmel, Kent, Patterson,
Putnam Valley, Southeast.

(6) Schoharie County: In the towns of Broome, Conesville,
Gilboa, Jefferson.

(7) Sullivan County: In the towns of Fallsburg, Liberty,
Neversink.

(8) Ulster County: In the towns of Denning, Hardenburgh,
Hurley, Kingston, Marbletown, Olive, Rochester, Shandaken, Wawarsing,
Woodstock.

(9) Westchester County: In the towns of Bedford, Cortlandt,
Harrison, Lewisboro, Mount Kisco, Mount Pleasant, New Castle, North Castle,
North Salem, Pound Ridge, Somers, Yorktown.

(b) The watershed areas for the New York City water supply
that lie within the 60 day travel time to intake are delineated on Map
128-A.2

(1) In the East-of-Hudson System, the entire reservoir and
controlled lake drainage basins of Boyds Corner, Croton, Kensico, Lake
Gleneida, Muscoot, West Branch, and parts of the reservoir drainage basins
of Amawalk, Cross River, Croton Falls, and Titicus are within the 60 day
travel time to intake.

(2) In the West-of-Hudson System, the entire reservoir
drainage basin of Rondout, and parts of the reservoir drainage basins of
Ashokan, Cannonsville, Neversink and Pepacton are within the 60 day travel
time to intake.

(c) The reservoir drainage basins for each reservoir are
delineated on Map 128-A.3.

(d) Detailed maps of each area within the 60 day travel
time to intake are available at the New York State Department of Health and
the regional offices listed in section 128-1.5 of Subpart 128-1.

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Section 128-10.2 - System Specific Water Quality Characteristics

Section 128-10.2 System Specific Water Quality Characteristics

The system specific water quality characteristics of the reservoirs and reservoir stems, as of September 1990, are set forth in Tables 1 and 2 of this Appendix. It is the intention of the Department that the system specific characteristics be maintained at the stated levels by implementation and enforcement of these rules and regulations.

 

TABLE 1

 

System Specific Characteristics: Reservoir Standards (mg/L)
 
 
      Catskill/Delaware
      System
  Croton System (including Kensico)
  Annual   Annual  
  Mean S/S/M* Mean S/S/M*
         
Alkalinity        
(mg CaCo(3)/L) ≥40.00   ≥10.00  
Ammonia Nitrogen 0.05 0.10 0.05 0.10
Chloride 30.00 40.00 8.00 12.00
Nitrite+        
Nitrite - N 0.30 0.50 0.30 0.50
Organic Nitrogen 0.50 0.70 0.50 0.70
Sodium 15.00 20.00 3.00 16.00
Sulfate 15.00 25.00 10.00 15.00
Total Diss. Solids 150.00 175.00 40.00 50.00
Total Organic Carbon 6.00 7.00 3.00 4.00
Total Susp. Solids 5.00 8.00 5.00 8.00
Chlorophyll-a 0.01 0.015 0.007 0.012
*S/S/M means Single Sample Maximum

 

TABLE 2

 

System specific characteristics: Reservoir Stem Standards (mg/L)
 
 
      Catskill/Delaware
      System
  Croton System (including Kensico)
  Annual   Annual  
  Mean S/S/M* Mean S/S/M*
         
Alkalinity        
(mg CaC03/L) ≥40.00   ≥10.00  
Ammonia Nitrogen 0.10 0.2 0.05 0.25
Chloride 35.00 100.00 10.00 50.00
Nitrite +        
Nitrate - N 0.35 1.50 0.40 1.50
Organic Nitrogen 0.50 1.50 0.50 1.50
Sodium 15.00 20.00 5.00 10.00
Sulfate 15.00 25.00 10.00 15.00
Total Diss. Solids 150.00 175.00 40.00 50.00
Total Organic Carbon 9.00 25.00 9.00 25.00
Total Susp. Solids 5.00 8.0 5.00 8.00
*S/S/M means Single Sample Maximum

 

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Section 128-10.3 - Tests for Analytical Determination of Concentrations of Elements

Section 128-10.3 Tests for Analytical Determination of Concentrations of Elements.

The following tests and methods are used by the Department in assessing the impacts of a regulated activity on a reservoir, reservoir stem or controlled lake. An applicant may conduct sampling in waters owned by the City as set forth herein with prior authorization by the Department.

(a) Collection of Samples and Assessment of Impacts (1) In conducting tests or making analytical determinations to ascertain conformity or nonconformity with the standards set forth in Subpart 128-4, samples should be collected from locations which are representative of the general quality of water in the watercourse, reservoir, reservoir stem or controlled lake.

(2) In assessing the impact of a proposed regulated activity on a watercourse, reservoir, reservoir stem, or controlled lake, or in determining compliance with the standards set forth in Subpart 128-4, the Department will examine the impacts of the proposed activity throughout the year and the impacts on the photic, metalimnion and hypolimnion zones of the reservoir, reservoir stem or controlled lake.

(3) Impacts on reservoirs will be determined on the basis of samples taken on a schedule which is sufficient to reflect temporal variability and to meet regulatory requirements.

(4) Sampling locations in reservoirs will include: dams, intakes, mid-pool stations, and main tributaries into each reservoir. At every station, an integrated sample of the photic zone shall be taken. At deeper stations, samples will be collected from the metalimnion and hypolimnion.

(5) Reservoir stem samples should be collected in the section of the reservoir stem that is free-flowing and unimpeded by the reservoir when the impoundment is at full pool elevation.

(b) Tests and Analytical Determinations. Tests or analytical determinations to determine compliance or noncompliance with the water quality standards in Subpart 128-4 should be made in accordance with:

(1) Standard Methods for the Examination of Water and Wastewater, 12th edition, l965, Table 18, Qualitative Description of Odors, page 306. American Public Health Association , American Water Works Association, and Water Pollution Control Federation, 2626 Pennsylvania Avenue NW, Washington, D.C. 20037.

(2) Standard Methods for the Examination of Water and Wastewater, 18th edition, 1992, American Public Health Association, American Water Works Association, and Water Environment Federation, 2626 Pennsylvania Avenue NW, Washington, D.C. 20037.

(3) Methods for Chemical Analysis of Water and Wastes, 1979, Environmental Protection Agency (EPA), Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402; and (4) By other methods approved by the Commissioner as giving results equal or superior to methods listed in any of the above documents.

(c) All materials referenced in this Appendix are available for inspection and copying at the New York State Department of Health, Office of Regulatory Affairs, Tower Building, Room 2415, Empire State Plaza, Albany, New York, 12237, and the Department of Environmental Protection, 465 Columbus Avenue, Valhalla, N.Y.

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