N.Y. Comp. Codes R. & Regs. tit. 21 § 861.13

Current through Register Vol. 46, No. 53, December 31, 2024

Section 861.13 - Allocation of capacity

(a) Basinwide.

Where necessary to maintain stream quality objectives or protect water uses in a given zone, the waste assimilative capacity of the receiving waters shall be allocated by the commission among individual dischargers in accordance with the doctrine of equitable apportionment.

(1) Commission procedure.

(i) Whenever the commission determines that allocations of a stream's waste assimilative capacity are necessary in a zone, the executive director shall find and determine an allocation for each waste discharge in that zone.

(ii) Such determination shall be governed by the Commission's Rules of Practice and Procedure relating to review, hearing and decision of objections thereto.

(2) Allocations not a property right. Allocations are not transferable except upon consent of the commission.

(3) Limitations.

(i) No allocation will exceed the residual after treatment as required in accordance with section 861.9 of this Part.

(ii) No allocation will exceed the residual after treatment necessary to meet any other requirements.

(4) Reserve.

In each zone, as part of the initial allocation, and each subsequent reallocation, a reserve may be set aside by the commission.

(i) The reserve in each zone shall be utilized to accommodate new discharges or major revisions to an allocation, or any reallocation, when appropriate in the judgment of the commission.

(ii) Individual allocations or portions thereof which are no longer needed because use of the facilities to which they are assigned is discontinued or substantially decreased shall be returned to the reserve.

(iii) Where improved waste management practice results in a reduction of the load discharged to less than the allocation, the unused portion of the allocation shall not revert to the reserve.

(5) Reallocations.

(i) Carbonaceous oxygen demand.

(a) All allocations shall be subject to review by the commission and, after such review, the commission may make such reallocation as it deems necessary.

(b) If any factors upon which an individual allocation is based change significantly, application shall be made to the executive director for a revised allocation.

(c) Whenever the reserve in a zone approaches depletion, or when the full use of the assimilative capacity is approached, or when in the judgment of the commission, the allocations existing at that time are no longer equitable, the capacity in the zone, minus a reserve, will be reallocated among the waste dischargers in that zone.

(ii) Toxic Pollutants

(a) All allocations shall be subject to review by the commission and, after such review, the commission may make such reallocation as it deems necessary.

(b) If any factors upon which an individual allocation is based change significantly, application shall be made to the executive director for a revised allocation. The executive director shall provide notice to interested and affected parties prior to establishing the revised allocation.

(c) Allocations shall, as a minimum, be reviewed and, if required, revised every five years, or as directed by the commission.

(6) Regionalization.

Whenever two or more waste dischargers with separate allocations formulate a regional plan for water quality control, allocations may be revised by the commission.

(7) Design streamflow.

For the purpose of determining the waste assimilative capacity of a stream, the following design minimum streamflows will be used:

(i) Unregulated streams. Where streams are unregulated, a minimum consecutive seven-day (average) flow with a 10-year recurrence interval shall be the design flow.

(ii) Regulated streams. Where the pattern of regulation is such as to result in weekly, daily, or hourly variations in flow significantly different from the natural pattern of variation, the above design flow may reflect the effects of these variations.

(iii) Lakes and reservoirs. Wherever waste discharges may affect the protected uses of lakes and reservoirs, the commission, after consultation with the appropriate states, will determine the characteristics upon which to base effluent quality requirements in relation to the special characteristics of the receiving body of water.

(iv) Tidal waters. Wherever waste discharges may affect the protected uses or the water quality criteria of tidal waters, the commission, after consultation with the appropriate states, will determine the characteristics upon which to base effluent quality requirements in relation to the special characteristics of the receiving body of water.

(8) Design effluent flow.

For the purpose of determining the waste assimilative capacity of a stream and the wasteload allocations for discharges of toxic pollutants, the following design effluent flows will be used:

(i) For industrial wastewater treatment plant discharges covered by Effluent Limitations Guidelines (ELG) promulgated by the U.S. EPA, the effluent design flow shall be the average daily flow associated with:

(a) the month having the highest monthly production rate of the previous 12 months or, if greater;

(b) the year having the highest annual production rate of the previous five years.

(ii) If the discharge from an industrial wastewater treatment plant is not covered by Effluent Limitations Guidelines (ELG) promulgated by the U.S. EPA, is mixed with stormwater or cooling water or production data are not available, the effluent design flow shall be the average daily flow associated with:

(a) the month with the highest monthly flow rate of the previous 12 months, or if greater;

(b) the year having the highest annual flow rate of the previous five years.

(iii) For municipal wastewater treatment plant discharges, the effluent design flow shall be the higher of:

(a) the average daily flow of the plant for the previous three years including a growth factor based upon a five-year projection, if available; or

(b) the capacity of the plant that was used to establish effluent limitations for the NPDES permit expressed as the annual average flow.

(b)Delaware River Estuary.

(1) Carbonaceous oxygen demand.

Pursuant to the provisions of section 860.4(e) of this Title, the commission determines that the 1964 carbonaceous oxygen demand of the effluent load to zones 2, 3, 4 and 5 exceeded the waste assimilative capacity of those zones to meet the stream quality objectives. Accordingly, the total carbonaceous oxygen demand exerted by the sum of all waste discharges to each of these zones shall be reduced to the following:

Zone 2	18,600 pounds per day
Zone 3	144,800 pounds per day
Zone 4	91,000 pounds per day
Zone 5	67,600 pounds per day

(i) Reserve. In zones 2, 3, 4 and 5, as a part of the initial allocation, and each subsequent reallocation, a reserve of about 10 percent of the total permissible load to the zone may be set aside by the commission.

(ii) Allocation to individual dischargers.

(a) Within zones 2, 3, 4 and 5, the pounds of carbonaceous oxygen demand prescribed above, minus the reserve, will be allocated among individual dischargers.

(b) Allocations will be based upon the concept of uniform reduction of raw waste in a zone.

(c) Upon application, in special cases, for dilute industrial process wastewater, an allocation may be assigned consistent with section 861.9(b)(3) of this Part.

(iii) Allowable variations.

(a) The number of pounds in the discharge permitted by the allocation will be determined by an average of samples taken over each period of 30 consecutive days of the year.

(b) It is recognized that optimum efficiency may not be achieved with certain secondary treatment facilities during the colder months. A discharge exceeding the allocation may be permitted by the commission when it results from reduced plant efficiency caused by temperatures below 59°F (15°C), provided that the pounds discharged by any individual discharger shall not exceed its allocation by more than an average of two-thirds over any consecutive 10 days.

(iv) Allocations from the reserve. Allocations from the reserve will be made upon the same principles as provided in subparagraph (ii) of this paragraph, based upon the concept of uniform raw waste reduction in a zone at the time the allocation is made.

(v) Reallocations. Reallocations will be made upon the same principles as provided by subparagraph (ii) of this paragraph, provided that where the waste reduction by any discharger results in lower poundage input than it has been allocated such poundage differential will not be returned to the reserve in the absence of conditions requiring a reallocation for the zone.

(vi) Tidal tributaries.

(a) Wastes discharged to the portions of tributaries of the Delaware River Estuary affected by tidal action are included in the total permissible load in each zone, and poundage allocations will be assigned to these dischargers on the same basis as effluents discharged directly to the estuary.

(b) However, additional requirements may be imposed if any one or group of waste dischargers complying with estuary load allocations exceeds the waste assimilative capacity of the tidal tributary.

(2) Toxic pollutants.

Pursuant to section 860.4(e) of this Title and section 861.13(a) of this Part, the commission shall establish wasteload allocations and other effluent requirements that may be necessary to meet the stream quality objectives for toxic pollutants contained in section 860.26 -860.31 of this Title.

(i) Reserve. A reserve allocation of five percent of the total maximum daily load (TMDL) shall be established as a part of an allocation or reallocation, by increasing the effluent design flow by five percent.

(ii) Margin of safety. As part of an allocation or reallocation, a proportion of the total maximum daily load shall be established as a margin of safety. The proportion established shall reflect the degree of uncertainty in the data and resulting water quality-based controls.

(iii) Allocation to discharges.

(a) Wasteload allocations shall be established for Phase 1 continuous point source discharges to address acute aquatic life protection, chronic aquatic life protection and both carcinogenic and systemic toxicants.

(1) The water quality objective for the establishment of any allocation or reallocation shall be the stream quality objectives contained in section 860.26 -860.31 of this Title. If the background concentration of a toxic pollutant at the appropriate criteria duration exceeds the stream quality objective as a result of loadings from sources not subject to control, then the water quality objective shall be the background concentration of the pollutant.

(2) The minimum flows for aquatic life protection and to protect the taste and odor of ingested water and fish are based on a minimum consecutive 7-day flow with a 10-year recurrence interval for all tributaries; and for the Delaware River, a flow of 2500 cfs at Trenton. For the protection of human health, the harmonic mean flow shall be used for carcinogens, and the minimum consecutive 30-day flow with a 5-year recurrence interval shall be used for systemic toxicants.

(b) Allocations shall be determined by the executive director using the procedure described in clause (d) of this subparagraph or alternative procedures that are consistent with the doctrine of equitable apportionment, and achieve the following:

(1) assure compliance with applicable stream quality objectives;

(2) provide maximum equity among competing discharges; and

(3) minimize the overall cost of compliance.

(c) The loadings of toxic pollutants identified in this subparagraph shall be allocated among individual phase 1 continuous point source discharges which meet any of the following criteria:

(1) the discharge has an existing permit limit for the parameter;

(2) effluent data indicates the presence of the parameter; or

(3) the reasonable potential exists for the parameter to occur in the discharge.

(d) Allocations for phase 1 continuous point source discharges will be based upon the equal marginal percent reduction procedure which has been determined to be consistent with the requirements of clause (b) of this subparagraph. This procedure requires all dischargers, whether they are part of a multiple discharge wasteload allocation scenario or not, to provide treatment of their wastewater to achieve the applicable water quality standard; and in addition, requires some dischargers to provide additional treatment due to the cumulative impact of all discharges.

(1) Alternative wasteload allocation procedures may be considered by the Commission if they provide timely compliance with clause (b) of this subparagraph and include the consent of all dischargers affected by the alternative procedure.

(2) Discharges meeting any of the requirements of clause (c) of this subparagraph will be assigned an initial loading based upon the following information in order of preference:

(i) the average monthly limit obtained from effluent guideline limitations promulgated by the U.S. Environmental Protection Agency for the point source category applicable to the discharge;

(ii) any average monthly limitation for the parameter in the current discharge permit;

(iii) monitoring data of sufficient quantity and quality, as determined by the executive director, to characterize the concentration of the parameter in the discharge; or

(iv) minimum performance standards established by the executive director for industrial and municipal wastewater treatment plants discharging to the tidal Delaware River.

In assigning the initial loading, the average loading at the appropriate criteria duration will be calculated using the coefficient of variation (CV) calculated from monitoring data or a default value of 0.6 in the absence of data of sufficient quantity and quality, as determined by the executive director.

(3) Discharges contributing to an exceedance of a stream quality objective due to the cumulative effect of all discharges may not be required to provide additional treatment or loading reduction if the discharge does not represent a significant proportion of the marginal loading.

(e) Allocations established by the executive director and reallocations required under clause (a)(5)(ii)(b) of this section shall be published in a document containing the specific procedures, tools and assumptions used to derive the allocations.

(f) Wasteload allocations established under subparagraph (iii) of this paragraph shall be referred to the appropriate agency of the signatory parties, respectively, for use, as appropriate, in developing effluent limitations, schedules of compliance, and other requirements in permits.

(iv) Adjustment for pollutants in intake water. Wasteload allocations established for an industrial discharge may be adjusted by the executive director, in consultation with the appropriate agency of the signatory parties, to account for pollutants present in water withdrawn for use by the facility from the receiving water provided that the following conditions are met:

(a) in the absence of pollutants in the water withdrawn, there would be no exceedance of the stream quality objectives for toxic pollutants;

(b) pollutants in the discharge resulting from any other activity, operation or materials used or produced at the facility do not significantly contribute to an exceedance of the stream quality objectives for toxic pollutants contained in sections 860.26 -860.31 of this Title;

(c) no statistically significant difference can be detected between the intake and effluent concentrations and loadings of a toxic pollutant based upon a rigorous analysis of data representative of operating and ambient conditions at the facility; and

(d) no practicable alternative source of intake water is available.

(c)Definitions.

(1)Wasteload allocation. The portion of the total maximum daily load of a body of water or section thereof that is allocated to an existing or future point source of pollution. Or, any limitation on the loading and/or concentration of a pollutant discharged from a point source required to ensure that stream quality objectives are not exceeded.

(2)Total maximum daily load (TMDL). The maximum daily loading of a pollutant from all sources which still ensures that water quality objectives are met.

(3)Margin of safety. A factor that takes into account any uncertainty or lack of knowledge about the relationship between pollutant loadings and the quality of the receiving water.

(4)Marginal load. The portion of the loading of a pollutant that contributes to an exceedance of a stream quality objective when the cumulative loading from all point sources is considered.

(5)Effluent limitations guidelines. Effluent limitations for pollutants for categories and classes of point sources promulgated by the U.S. Environmental Protection Agency under section 301 of the Clean Water Act which reflect the best available treatment technology.

(6)Harmonic mean flow. The flow value corresponding to the number of daily flow measurements divided by the sum of the reciprocals of the flows.

(7)Background concentration. The concentration of a toxic pollutant at any point in the Estuary that results from loadings from tributaries, sediments (if applicable), and any point or non-point sources not subject to control in the current allocation or reallocation.

(8)Phase 1 continuous point source discharge. A discharge of wastewater other than non-contact cooling water, permitted under the National Pollutant Discharge Elimination System (NPDES) which occurs without interruption during the operating hours of a facility except for infrequent shutdowns. and is not primarily dependent on precipitation-induced flows.

(9)Long-term average concentration. The mean concentration of a toxic pollutant in the effluent that represents the desired performance of a wastewater treatment plant.

(10)Minimum performance standards. The long-term average concentration for a parameter for which stream quality objectives have been established under section 860.3(c) or (d) of this Title.

(i) For volatile and non-volatile organic chemicals, the standard is the maximum for a monthly average specified in the effluent guideline limitations for the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) industrial category, or the highest reported effluent value for activated sludge treatment specified in the U.S. EPA's Water Engineering Research Laboratory data base.

(ii) For chlorinated pesticides and polychlorinated biphenyls, the standard is the practical quantitation limit (PQL) for the compound.

(iii) For metals and indicator parameters, the standard is the average concentration of the parameter in industrial or municipal treatment plant discharges to the estuary.

(11)Initial loading. The concentration or mass of a pollutant that is initially assigned to a discharge that meets the criteria specified in clause (b)(2)(iii)(c) of this section during the baseline analysis portion of a wasteload allocation exercise.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 861.13