N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-1.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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 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 section 128- 4.1(a)(1) or (b)(1) of this Part are exceeded as determined by the department pursuant to its annual review conducted under section 128-4.1(c) of this Part.

(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 this Part 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 Part 597 of Title 6 NYCRR except that hazardous substance does not mean any petroleum product, including those listed in section 597.2, Table 1 of Title 6 NYCRR, and also does not mean any hazardous waste.

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

(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 10 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 or more residential units.

(66) Municipal solid waste landfill means a landfill, as defined in section 360-1.2 of Title 6 NYCRR, 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 sections 128-8.3(a)(3) and 128-8.4(a)(3) of this Part.

(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 this Part.

(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 section 128-1.4(a)-(d) of this Subpart.

(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 section 370.2(b)(154) of Title 6 NYCRR.

(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 Part 360 of Title 6 NYCRR as described in section 360-1.2(a)(4) of Title 6 NYCRR.

(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 section 360-1.2 of Title 6 NYCRR.

(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 six 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 section 128-3.9(b) and (c) of this Part, 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 24-hour duration, that has a 50 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 feet of in situ soil that has a percolation rate between 3 to 60 minutes/inch, and which uses at least four feet of fill material, including at least three 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 title 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 section 360-3.5(h) of Title 6 NYCRR.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-1.6