Testimony of Leslie Lipton
Chief, Division of Pollution Control and Monitoring
Bureau of Wastewater Treatment
New York City Department of Environmental Protection

New York City Council Committees on Waterfronts and Sanitation and Solid Waste Management Oversight

April 29, 2011

Keeping the NYC Waterfront Clean

Good afternoon, Chairs Nelson and James, and members of the Committees on Waterfronts and Sanitation and Solid Waste Management. I am Leslie Lipton, Chief of the Division of Pollution Control and Monitoring in the Bureau of Wastewater Treatment at the Department of Environmental Protection. I am here today with Chief Todd Kuznitz, Director of Enforcement at the Department of Sanitation, and Andrew Schwartz, First Deputy Commissioner at the Department of Small Business Services. Thank you for the opportunity to testify today regarding the City’s enforcement efforts to keep our waterfronts clean.

Before I describe my own agency’s efforts, I would first like to briefly describe the work of my sister agencies. As you know, the Department of Sanitation (Sanitation) takes an active role with respect to those who illegally dump throughout the City. In order to be issued a violation under §16-119 of the New York City Administrative Code, the illegal dumping must occur on a public place or other area whether publicly or privately owned which includes property located along the waterfront, and such dumping must occur from a dump truck or other vehicle. Sanitation also has the authority to issue violations under §16-130 of the Administrative Code to those entities that illegally fill lands underwater to established grades without the proper permits. Sanitation continually monitors for the illegal dumping of materials by conducting surveillance of known dump locations, including along waterfront properties, and by following suspicious vehicles.

Sanitation also has both a Tip program and a citizen affidavit program. If staff observes someone dumping out of a vehicle into the waterway, they impound the vehicle and notify the New York State Department of Environmental Conservation (DEC) for further enforcement action. Two years ago, Sanitation notified DEC after observing a business pushing material into a waterway in Brooklyn.

Small Business Services (SBS) also plays an active role in respect to the waterfront. As a successor agency to some of the functions of the former Department of Ports & Trade, SBS has jurisdiction for waterfront permitting and inspection of waterfront property.In this context, SBS inspects waterfront properties for hazardous conditions, monitors properties for compliance with construction permits, issues notices of violation and criminal court summonses for violations, assists in the abatement of hazardous conditions through fencing and interagency coordination, and maintains waterfront permit and property records. Violations have been issued for unpermitted work and hazardous conditions and the agency has consolidated and organized several decades of the City’s waterfront permit records.

SBS works closely with other property management agencies, notably the Economic Development Corporation (EDC) and the Department of City-Wide Administrative Services.  SBS also works with the Department of Buildings on permitting issues and potential structural hazards. EDC’s property management arm manages and maintains waterfront property under SBS jurisdiction.

Turning now to my own agency’s work, the Department of Environmental Protection (DEP) plays a critical role in safeguarding the waterways. On a broad scale, the components of the sewer system — the catch basins, the wastewater treatment plants, the combined sewer outfalls — all have a role in keeping litter and debris from becoming what is known as floatables. Second, DEP’s mandate pursuant to Section 24-523 of the NYC

Administrative Code is to enforce against illegal “discharging of a toxic substance directly or indirectly into the sewer system or into any private sewer or drain emptying into the sewer system...”

Before I discuss floatables I would like to describe DEP’s enforcement programs, which are focused on preventing and reducing the entry of pollutants into the Harbor via discharges into the sewer system: the Industrial Pretreatment Program, which includes the Emergency Response Unit and the Grease Remediation Unit; and the Shoreline Survey.

DEP inspectors in the Emergency Response Unit respond to reports and complaints of spills, and illegal discharges of toxic substances, obstructive substances, and any other substances other than storm water runoff, that have the potential to enter the sewer system. The inspectors take enforcement action when necessary which may include ordering cleanups, issuing summonses, and submission of reports.

The Industrial Pretreatment Program (IPP) is a federally mandated and authorized program that works to control industrial commercial discharges by requiring industries targeted by federal and local pretreatment regulations to remove specific pollutants from their wastewater before it is released into the City's sewer system. IPP helps to protect the sewers, the wastewater treatment plants and the City's receiving waters. Since 1987 when DEP was given approval by USEPA to implement the IPP, the amount of heavy metals being discharged by regulated businesses fell from over 2,000 lbs. per day to 17 lbs. per day. In addition, in order to help minimize the impact of CSOs, a provision has been included in Industrial Wastewater Discharge Permits requiring establishments to hold their process wastewater and non-contact cooling water to the maximum extent practicable during heavy rainfall. 

DEP regulates industrial users of the public sewers in a variety of categories such as electroplating, metal finishing, organic chemical and pharmaceutical manufacturing. As part of the IPP, DEP issue permits setting forth applicable pollutant limits as well as wastewater sampling and reporting requirements. DEP also regularly inspects IPP facilities and performs its own wastewater monitoring to ensure that the regulated facilities are in compliance with pretreatment standards. Whenever it is determined that a facility is not meeting its permit limits due to a failure in operating and maintaining its pretreatment system, or not installing the proper equipment, DEP will require, through Notice of Violation (NOV) and/or Commissioner's Order, that remedial action be taken.

IPP issued a total of 208 NOVs in fiscal year 2009/10 for discharge to the sewer or catch basin or for violating federal or local pollutant discharge limits. An additional 434 NOVs were issued for failure to comply with a Commissioner’s Order or violation of the terms of a permit.

In some cases NOVs are issued against threatened discharges (discharges to the street or sidewalk with eventual, but not actual, impact to the sewer) or to enforce cleanup orders, including the submission of proper receipts or manifests.

The Shoreline Survey Program identifies and characterizes contaminated dry-weather discharges to City waters from City-owned outfalls. The program aggressively pursues field investigations necessary to locate and abate illegal contaminated discharge. The cornerstone of DEP's Shoreline Survey Program is a vessel which is operated and managed by DEP's Marine Section.

If in the course of its work a crew witnesses debris that has been dumped along the shoreline, it will contact SBS’s Dock Master, who will oversee removal, attempt to identify a responsible party and notify the NYPD Harbor Unit, the Coast Guard and the Army Corps of Engineers, which is responsible for the maintenance of the navigability of the waterways.

Finally, grease prevention focuses on the proper installation, sizing and maintenance of grease interceptors in restaurants and food service establishments in order to reduce sewer backups from congealed grease that accumulates in the sewer system, as well as the discharge of grease into the Harbor.

Returning to floatables, they can be discharged into the surrounding waters during certain rain events when water flow into the treatment plants exceeds treatment capacity. When it rains, litter in the street can be washed into the City's storm drains (catch basins). Catch basins are equipped with hoods, which are designed to trap debris before it enters the sewer system. Street-corner catch basins play a major role in preventing litter from reaching our waterways. Each of the City's 144,000 catch basins has been inspected and electronically mapped, and DEP operates a catch-basin inspection program based on a 36-month inspection cycle for all of New York City, so that every catch basin is programmatically inspected once in every three years. In addition, DEP responds to complaints of clogged and broken catch basins, and DEP service yards in the boroughs target certain hotspots in their district where problems tend to occur.

Inspections are conducted to ensure proper basic maintenance and hooding, if required. Hooding refers to a device hung by means of two iron hangers inserted into the back wall of the catch basin that prevents litter from entering the sewer pipe that connects the basin to the sewer system. Hoods have been installed on all catch basins that do not require reconstruction. (Some catch basins need to be enlarged or the walls

replaced so the hangers won’t fall out from weathering and aging of the masonry.)

Citizens sometimes complain that the catch basin is full because they see litter floating in the water inside it. This is actually a good thing, because floatables should remain in the catch basin and will not affect its functioning until they are cleaned out in the course of the cleaning cycle. Catch basins normally contain about three feet of water, called the sump, and when solid matter fills about half the sump, it is time to clean it. DEP also responds to complaints of clogged catch basins by dispatching to clear and clean it even if it is not scheduled for inspection and maintenance.

As mentioned above, during heavy rainstorms floatables can be discharged into the surrounding waters if water flow into treatment plants exceeds treatment capacity, resulting in combined sewer overflows (CSOs). When this occurs, the mix of excess storm water and untreated sewage flows directly into the City's waterways.

The outlet structures that connect the City's sewers with the surrounding waters are known as combined sewer outfalls. Each one has a unique Outfall Identification Number and is marked by a green sign. There are approximately 447 Citywide. The signs identify all New York State Department of Environmental Conservation permitted wet-weather discharge points throughout the City.

DEP’s Ten-Year Capital Investment Strategy calls for continued upgrades to key wastewater treatment facilities, storm sewer expansions and a $1.8 billion program for the construction of several large CSO retention tanks to further mitigate this chronic source of pollution. Existing infrastructure developments have increased DEP’s standardized CSO capture rate from about 30% in 1980 to over 72% today. On CSOs alone, the City has spent over $1.5 billion on sewer, regulator, and pumping station improvements as well as an upgrade of the CSO storage facility at Spring Creek and the construction of new CSO storage tanks at Flushing Creek, Alley Creek, and Paerdegat Basin. The planned investments include approximately $2 billion for additional CSO control measures. Through these measures, the City is projected to reduce its CSOs by over 8.3 billion gallons per year compared to the baseline case.

While water quality is and must remain the touchstone for DEP’s investments, the alternatives it considers must also meet the City’s sustainability goals. PlaNYC provides a holistic framework for meeting the City’s housing, open space, energy, transportation, and environmental infrastructure needs over the next 20 years. The PlaNYC framework gives greater weight to those CSO reduction alternatives that make the City more sustainable. These are contained in Mayor Bloomberg’s Green Infrastructure Plan, which proposes a hybrid approach that includes certain cost-effective grey infrastructure projects, conservation, green infrastructure, and measures to optimize the existing system to control CSOs.

The Green Infrastructure Plan will achieve better water quality and sustainability benefits than the all-grey strategy that is mandated or is currently under consideration by: Reducing CSO volume by an additional 3.8 billion gallons per year (bgy), or approximately 2 bgy more than the all-grey strategy; and capturing rainfall from 10% of impervious surfaces in CSO areas through green infrastructure.

With regard to the litter that does get discharged with stormwater into the receiving waters, DEP has been implementing a Floatables Containment Program since 1994 designed to collect and reduce litter. This program involves containing litter at 23 CSO locations identified in 1995 as strategic in most effectively reducing floatables, by means of booms, or booms and nets. The captured floatables are removed with skimmer boats.

The inspection schedule ensures that each site is inspected once a week during dry weather. When there is rainfall of an intensity of one-half inch for an hour, inspections are conducted according to three zones: upper harbor, lower harbor and Jamaica Bay, so that every site is inspected. DEP skimmer vessels are used to remove floatables from boomed sites. A camera pilot is under way at the Flushing Bay boom site. The pilot is intended to conserve staff and material resources by eliminating unnecessary visits to sites.

And in open waters like New York Harbor, floating debris is removed by the Skimmer Vessel Cormorant, DEP's largest vessel in the floatables fleet. Harbor floatables have diminished significantly in the past ten years, and the Cormorant remains at the ready but goes out only infrequently, as there are fewer large floatables such as broken-off pier piles or refrigerators and other large objects to retrieve.

New York Harbor is at its cleanest level in 100 years. To maintain this degree of water quality, most of New York’s marine and inland waters are designated as No Discharge Areas (NDAs). It is illegal for boaters to discharge sewage within these waters. The illegal disposal of sewage elevates pollutant levels in New York’s waterways and threatens vital aquatic habitats. Instead, boaters must use one of 12 New York City pump out stations to dispose of their waste. Nearly all stations are free, making proper disposal of sewage especially convenient. Pumping stations are open most days during boating season, which typically runs from April to November.

Under the leadership of Chairman Nelson and Speaker Quinn, the Council last year approved Local Law 4 of 2010, which added a civil penalty section to Title 22 of the New York City Administrative Code with substantial civil penalties to be recovered in proceedings before the Environmental Control Board. Historically, SBS violations have been pursued in criminal court proceedings. Jurisdiction to seek penalties through the ECB could provide for a more expedited process in the notice and enforcement of violations. Additionally, Local Law 4 expanded the scope of public places that illegal dumping may occur to include wharf, pier, dock, bulkhead, slip and navigable waterway, and gave SBS and DEP, in addition to DSNY, the authority to enforce with respect to at least some of these areas under §16-119 of the Administrative Code. Thus far, however, enforcement agents from all of these agencies — DEP included — have not had the opportunity to issue violations for these infractions. Despite our enforcement efforts throughout the City’s waterfront, we have not in the past year witnessed anyone violating these provisions of law. We hope that the increased penalties have served as a deterrent to potential violators, and we will continue our efforts to enforce these provisions, as well as our collaboration with property owners, environmental organizations, and members of the public to enforce these provisions of law and keep our waterfronts clean.

At this time, we will be happy to answer any questions.