Sunday, August 26, 2007

A Consent Order Primer, Part 4: Dissecting What Happened

Part 1 of this series focused on sewage systems; Part 2 on how laws are developed to control water pollution; and Part 3 on the roles of the federal, state and local governments. This post examines the Consent Order and other documentation of the local situation to understand the nature of the County's violations. At the end is an analysis of what went wrong and what is going wrong.

The County's SPDES permit allows discharges to the Mohawk River from 2 places (1) at the sewage treatment plant in Utica and (2) at the Sauquoit Creek Pump Station in Yorkville. The latter, which receives sewage mainly from New Hartford and Whitestown, was permitted as a Combined Sewer Overflow (CSO), recognizing that sewers in older developed areas combined storm water with sanitary waste; that it would be burdensome and financially unreasonable to make older areas put in separate lines for sanitary waste; and that if an overflow point were not provided, the wastewater would back up into people's basements.

However, new developments all have separate sanitary sewage collection systems, and New Hartford and Whitestown both have a lot of new developments. These have been allowed to connect to the County's System via the line leading to the Sauquoit Creek Pump Station.

During early February, 2006, the US EPA conducted an inspection and notified the County and DEC that separate sanitary sewer systems were feeding the Sauquoit Creek Pump Station, and that the discharge from the SCPS should be regulated as a Sanitary Sewer Overflow (SSO). DEC agreed, and notified the County a few days later that its CSO would be considered an SSO, its SPDES permit would be modified to reflect the change, that the County also appeared to be exceeding the capacity of its sewage treatment plant, that to address the excess it needed to submit a flow management plan (6NYCRR§750-2.9(c)) within 120 days, and that it needed to participate with the City of Utica in the CSO Long Term Control Plan.

Oneida County responded with resistance.

The County argued that the discharge point was a CSO based on a 1982 study, data on the quality of the discharge, and the combined nature of the collection systems built in the villages 70-80 years ago. The County argued that it should not be held responsible for the actions of the communities sending it sewage, claiming that it had no legal authority to regulate what went on in those communities. The County alleged that the DEC was causing a financial hardship to the County and the satellite communities. The County also resisted certain aspects of participating with the City of Utica in the CSO Long Term Control Plan essentially contending that evaluation of how County facilities would interact with Utica's CSOs would be expensive and should be Utica's responsibility. The County further took the position that Utica should be exploring other alternatives for treating Utica's CSOs rather than sending them to the treatment plant.

DEC did not accept the County's argument that it was not operating an SSO, and followed it up with an enforcement action that charged the County with illegally operating an SSO, illegally discharging sewage without secondary treatment, not submitting a flow management plan, and not having an effective sewer use ordinance in all parts of its service area.

Ultimately last month, the DEC and Oneida County entered into the Consent Order to get DEC to lift its ban on new sewer hookups.


Certainly, at the time the County's treatment works and collection system were built, "CSO" would have been the proper classification for the discharge from the Sauquoit Creek Pump Station. Again, CSOs were allowed in recognition that it would have been financially prohibitive to require areas previously developed to conform to new standards, and the old sections of the Villages of New Hartford, Whitesboro, Yorkville and NY Mills could be expected to fall into this category.

But the 1982 study the County attempted to rely upon could not have addressed the new developments of the 1990s and later that we have seen in New Hartford and Whitestown -- all of which were required to have separated sanitary sewer systems. The County did not have to let the new developments connect to its system on the same pipe that carried combined sewage and storm water. The fact that the County allowed this defeated the purpose of requiring separated systems for new developments because, at times of high flow, the waste from the separated systems would be discharged directly to the river untreated -- which is a clear violation of the law. The County could have required a second line for separated waste that would have avoided the CSO, but it did not.

The County's arguing that it should not be held responsible for the actions of the communities sending it sewage because it had no legal authority to regulate what went on in those communities was actually an admission of another violation. The US EPA has long required that the owners of treatment works have the legal authority to control the use of their facilities. This is done through ownership of the facilities themselves, the passing of a local ordinance governing use of the facilities, and then preventing connections by (or cutting connections from) any municipalities who do not cooperate by passing their own ordinances or devising some other method to ensure that the owner's requirements would be met.

The DEC enforcing its requirements is not the cause of financial hardships to the County and the satellite communities. Any hardships are the result of (1) the County allowing hook ups that caused separated waste to pass through its over flow untreated and (2) the individual municipalities' failure to recognize that this was happening to the waste from the developments that they not only authorized but encouraged (i.e., the environmental reviews of the developments were inadequate).

Instead of protecting the CSO which was intended to relieve established communities from a monumental burden, the County abused the CSO as a way to reduce the cost of new developments.
Now that the abuse has been stopped, the County is going to cause what the CSOs were supposed to prevent: visiting additional costs on old established communities. The County will use its authority over sewer usage fees to make ALL users of the system pay for the solution, including the residents of the established communities that received no increases to their tax bases.

The County's approach to Utica is especially reprehensible.
"It is the County's position that the City of Utica and the NYSDEC should be exploring other alternatives for treating CSO's rather than sending them to the WPCP. The capacity of the WPCP should be reserved for treating sanitary wastes rather than combined wastes"

The treatment works were originally designed to accommodate the flows from Utica's old CSOs. Utica residents have been paying into this system for years, not only the County charges, but separate City sewer charges. Uticans have already paid for the treatment works to be adequately sized to meet their CSO needs. But the County now has signaled an intent to deprive Uticans of the use of the treatment plant for their CSOs which they have paid for. This would be a County requirement, not EPA's or DEC's.

It is amazing that Utica leaders and Utica legislators are not screaming in anger over this, but it is unlikely that they are even aware that this is being done to them . . . Things are rushed through the County legislature at the request of political bosses who appear to be answering to the desires of developers . . . And it is possible that even the County level bosses don't understand that this is happening.

Perhaps ultimately having everyone sharing the costs makes the most sense, but if this is going to happen, everyone needs to share in the benefits as well.

The innocent should not be made to pay for the violations of the guilty.

[Note: Articles in this series may be revised from time to time to provide additional detail and explanation as time allows, and as current events warrant.]

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