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Part 651: State Aid For Collection, Treatment and Disposal Of Sewage - Cost Of Operation and Maintenance Of Sewage Treatment Plants

Contents:

Sec.

§651.1 Intent

The intent of comprehensive studies is to develop economical projects for the present and future collection, treatment and disposal of sewage from one or more municipalities or any portion thereof. Comprehensive studies are intended to include areas of present or projected high densities of population, including a natural drainage area covering a major portion of a sub-basin. Such studies are not intended to provide for minor sewer extensions or for sewer plans for small subdivisions or small areas, nor for the preparation of detail design and engineering drawings, specifications and contract documents.

§651.2 Definitions

When used in this Part, the terms comprehensive study and report, municipality, commissioner, governing body and agency shall have the meanings ascribed to them in section 1263-a of article 12 of the Public Health Law. In addition, the following terms shall be interpreted to mean:

(a) Study area. The geographic area which is to be included in the comprehensive study and report.

(b) Sewage. Sewage means the water-carried human or animal wastes from residences, buildings, industrial establishments or other places, together with such ground water infiltration and surface water as may be present. The admixture sewage as above defined of industrial wastes or other wastes, as defined in section 1202 of article 12 of the Public Health Law shall also be considered sewage.

§651.3 Additional Requirements

In addition to the items required to be included in a comprehensive study and report under section 1263-a of article 12 of the Public Health Law, the completed report on such study must include the following:

(a) Development of proposed alternate solutions to the problem of providing for the present and future collection, treatment and disposal of sewage within the study area taking into account established receiving waters classifications.

(b) Each such proposed solution shall be accompanied by basic information and data not limited to, but including: reliable estimates of existing and future sewage flows; estimate of the effect of the proposed sewage effluent discharge on the receiving waters; justifiable estimates of existing and future population of the area projected for at least five decades in the future; justifiable estimates of the volume, type, character and strength of industrial wastes or other wastes that will be permitted to connect to the proposed municipal sewerage system based on consideration of existing industries within the area and possible or proposed new industries to be located within the area, if known: a basic plan showing the location, size and capacity of proposed intercepting sewers, main trunk sewers, subtrunk sewers, pumping stations, force mains, proposed location and size of sewage treatment plant site, preliminary lay-out plan showing location, type, size and capacity of proposed treatment plant structures and effluent outfall; and a description accompanied by adequate illustrations to show how the sewage collection and treatment facilities may be economically altered or enlarged to serve future area and additional populations.

(c) For each proposed solution developed as a result of the comprehensive study of the problem of providing for the collection, treatment and disposal of sewage and wastes within the study area: an estimate of the capital cost of construction, including costs for land acquisition and rights-of-way, engineering, legal and other services; an outline of the proposed method for financing; an estimate of the annual cost for maintenance and operation of the proposed facilities.

(d) The engineer's recommendation as to the best and most economical solution for the collection, treatment and disposal of sewage and wastes within the area accompanied by: an estimate of the annual costs for amortization of indebtedness which would be required to finance construction of the project.

(e) The financial analysis shall be in sufficient detail to enable the applicant to develop an adequate plan for financing.

§651.4 Eligibility

(a) Any county, city, town or village; or any department, bureau, commission, board, division, agency, public benefit corporation, or committee designated by the governing body of such municipality is eligible to apply for a State grant to finance the cost of a comprehensive study and report as defined in section 1263-a of article 12 of the Public Health Law, and these rules and regulations for collection, treatment and disposal of sewage.

(b) Any two or more counties, cities, towns or villages or any combination of two or more such municipalities or any departments, bureaus, commissions, boards, divisions, agencies, public benefit corporations, or committees designated by the governing bodies of each such municipality desiring to participate in a joint comprehensive study and report, as defined in section 1263-a of article 12 of the Public Health Law, and these rules and regulations for the collection, treatment and disposal of sewage may apply for a State grant for such purpose.

§651.5 Applications

(a) All applications shall be on a form furnished by the commissioner.

(b) All applications shall be submitted to the commissioner through the office of the health district, county health department, part-county health department or city health department having jurisdiction over the area proposed to be included in such study area. If the proposed study area includes areas located within the areas of jurisdiction of more than one health district, county health department, part-county health department or city health department, the application shall be submitted through the office of the health district, county health department, part-county health department or city health department having jurisdiction over the largest portion of the proposed study area; and copies of the application shall be furnished to the offices of the other health districts or local health departments included in such study areas.

(c) The application shall delineate the proposed study area, as defined in this Part, and outline in detail the scope of the proposed study.

(d) The application shall give the name of the consulting engineer selected, if any, together with a summary of his experience which will reflect a particular competency in the sewerage works field to engage in a study and report of the scope proposed.

§651.6 Review of Application

Upon receipt of the application, the commissioner will:

(a) Make a determination as to whether the proposed study area is a practical and logical area, taking into consideration both the municipality or municipalities and the natural topography or watersheds in the proposed study area and in the surrounding vicinity.

(b) Make a determination as to whether the scope of the proposed study and report is satisfactory.

(c) Advise the applicant of his determinations within a reasonable length of time.

§651.7 Selection of Consulting Engineer

(a) The applicant or applicants, if more than one municipality is involved with the proposed study and report, shall select and designate the consulting engineer, person or firm to be employed.

(b) Such consulting engineer, person or firm shall be qualified to practice professonal engineering in the State of New York under the Education Law of the State of New York.

(c) Such consulting engineer, person or firm shall have had prior experience which will reflect a particular competency in the sewage works field to engage in a study and report of the scope proposed.

§651.8 Compensation for Engineering Services

(a) The engineer selected by the applicant, in making a proposal to the applicant and the commissioner to furnish engineering services required for the proposed comprehensive study and report, shall propose a total fee for his services. The basis for the fee shall be stated.

(b) The proposed fee for engineering services shall be based on:

(1) a lump sum taking into account reasonable engineering costs for similar studies and reports, or

(2) an estimated engineering payroll cost required to perform the work, plus a reasonable percentage of such costs to cover overhead and profit, and as agreed to between the engineer, the applicant, and the Commissioner of Environmental Conservation, or

(3) a combination of (1) and (2), above.

(c) Any municipality subject to approval of the commissioner which maintains its own engineering department to perform such engineering services may base its estimate of the cost for making such a comprehensive study and report on the audited costs of performing similar services for similar previous studies made by such municipality proportioned according to relative size and scope of past studies in relation to those of the proposed study. It shall not include payment for indirect administrative, legislative or overhead costs.

(d) Such proposal for total engineering fees shall include the estimated costs for test borings and other special services which may be required. Such cost shall be listed separately in detail.

(e) The commissioner has the final responsibility to determine that the fees proposed are reasonable and conform to good practice.

§651.9 Contracts for Engineering Services

(a) Contract to make a comprehensive study and report for the purposes stated in section 651.1 shall be prepared by the office of counsel of the State Department of Environmental Conservation in consultation with the attorney or attorneys employed by the applicant.

(b) All copies of the contract so prepared shall be submitted to the applicant for execution by the applicant and the contracting engineer. After execution by the applicant and the contracting engineer, all copies of the partially executed contract shall be returned to the commissioner.

(c) After the commissioner's approval thereof, copies of the duly executed contract shall be furnished to the applicant and to the contracting engineer and thereafter shall be in full force and effect.

(d) Such contracts shall be written in such form and in such detail as is reasonably calculated to clearly define the obligations, duties and requirements imposed upon each of the contracting parties and shall specify the manner and terms under which vouchers shall be prepared and submitted to the commissioner for payment for the engineering services rendered. Such contracts may provide for partial payments.

(e) The contract shall provide that the contracting engineer shall keep the commissioner and the applicant periodically informed as to the progress of the study.

(f) The contract shall also provide that any engineering studies shall be coordinated with those carried out pursuant to provisions of part V of article V of the Conservation Law.

(g) The contract shall provide that 10 per cent of each partial payment be withheld by the State pending faithful performance of the contract. Final payment, including retained percentages, shall not be made to the contracting engineer until the report has been submitted to and approved by the commissioner and the applicant.

(h) In the case of a joint contract, the contract shall provide for designation of one of the municipalities to receive payments for State assistance and to make payments to contracting engineer.

(i) A municipality utilizing its own engineering personnel to do the work, either partially or completely, may enter into a separate contract with the commissioner, covering such services.

§651.10 Approval of Vouchers

(a) All payments of State assistance shall be made after audit and upon warrant of the Comptroller on vouchers approved by the commissioner.

(b) Moneys received pursuant to section 1263-a of article 12 of the Public Health Law, shall be expended only for purposes consistent with the provisions of such section.

§651.11 State Aid Payments

All payments of State assistance shall be made to the applicant with the stipulation that the applicant make prompt payment to the contracting engineer.

§651.12 Submission of Final Report and Administrative Review

(a) Upon completion of the report of the comprehensive study, the contracting engineer shall submit copies thereof to the applicant and to the commissioner for review. Copies submitted to the commissioner shall be through the office of the health district, county or part-county health department or city health department which have jurisdiction over any portion of the study area.

(b) Upon approval by the applicant that the report is in satisfactory fulfillment of the contract, the commissioner will:

(1) Review the report and ascertain that it fulfills all legal and technical requirements.

(2) Review the report to ascertain if it has been co-ordinated with studies carried out pursuant to provisions of part V of article V of the Conservation Law.

(3) Approve or disapprove the report as soon as practicable.

(i) If disapproved, notify the engineer and applicant in writing of the reasons for such disapproval, with suggestions on action needed to meet the objections raised.

(ii) If approved, notify the engineer and applicant in writing, and certify for final payment of State grant.

§651.15 Definitions

(a) Applicant means any municipality, district corporation, county or town improvement district, sewer authority now existing in a city or any two or more of the foregoing acting jointly which file an application for a grant pursuant to section 1263-b of the Public Health Law.

(b) Commissioner means the Commissioner of Environmental Conservation of the State of New York, or his authorized representative.

§651.16 Applications

Applications for grants shall be submitted on forms furnished by the commissioner.

§651.17 Limitations

(a) The estimated reasonable cost or actual cost, as the case may be, of an eligible project as defined in section 1263-b of the Public Health Law shall be calculated only with respect to that portion of the erection, building, acquisition, alteration, reconstruction, improvement or extension of the sewage treatment works as defined in section 1263-b of the Public Health Law which is undertaken after May 12, 1965, and before March 31, 1972.

(b) The estimate of reasonable cost of a project by the commissioner shall be determined by consideration of costs of similar projects, together with an engineering evaluation of the degree of construction difficulty involved in the project.

(c) A grant will be made only for construction of a project for new or additional water pollution control.

(d) A grant will not be made to an applicant unless it demonstrates to the satisfaction of the commissioner its ability to pay the municipal share of the project.

(e) In order to insure effective water pollution control, economy of capital cost and operation, each project before approval will be evaluated in terms of the overall treatment and collection needs of the area in which it is located. The commissioner reserves the right to disapprove any application if it does not contribute to the overall objectives of effective water quality management or may become a deterrent to area-wide solutions at a later date.

(f) Over-design without justification will be reason for rejection of an application. All engineering plans submitted with an application will reflect professional responsibility with regard to developing maximum economy in design and construction.

(g) Engineering fees must be consistent with the schedules recommended by the American Society of Civil Engineers.

(h) A grant will not be made to an applicant unless construction specifications provide for alternate equipment or materials which can provide a satisfactory operating unit.

(i) A grant will not be made to an applicant unless it provides the commissioner with assurances that:

(1) Sufficient qualified operating personnel will be retained and that required operational tests and measurements will be performed to insure proper and efficient operation and maintenance of the sewage treatment works from the time of completion of construction or commencement of operation, whichever is earlier, until such time as the commissioner may approve discontinuance of operation or disposal of the works.

(2) The sewage received by the sewage treatment works will be from a sewage system or systems operated and maintained in accordance with a sewer use ordinance acceptable to the commissioner.

(3) Actual construction work will be performed by the lump sum (fixed price) or unit price contract method or combination thereof.

(4) The contract and specifications will be consistent with applicable sections of the "State Architect's Standard Specifications".

(5) Where required by law, competitive bidding will be employed prior to contract awards and that the contract award will be made to the responsible bidder submitting the lowest acceptable bid.

(6) The project will not be advertised or placed on the market for bidding until final plans and specifications have been approved by the commissioner, a permit therefor has been issued pursuant to section 1230 of the Public Health Law, and the applicant has been notified that advertising and receipt of bids may commence.

(7) Every construction contract will require the contractor to provide performance and payment bonds in amounts not less than the contract price and to maintain during the life of the contract adequate fire and extended coverage, workmen's compensation, public liability, and property damage insurance.

(8) Construction contracts will not be awarded without approval of the bid tabulations and the intent of the applicant to award contracts to specific bidders.

(9) Any change or changes in a construction contract in excess of five per cent of the contract price or any change or changes regardless of cost which substantially modify the treatment processes proposed will be submitted to the commissioner for prior approval; provided, however, that work of an emergency nature may be ordered by the engineer engaged by the applicant pursuant to paragraph (13) below without prior approval, if so reported to the commissioner within 48 hours of the time of the ordered change or changes.

(10) Notification of all change orders not requiring prior approval of the commissioner will be submitted to the commissioner within one month of the time at which they are ordered by the engineer; grant payments associated with such change orders may be made by the commissioner at his discretion following engineering review of the change order and inspection.

(11) The construction of the project, including the letting of contracts in connection therewith, will conform to applicable requirements of Federal, State and local laws, ordinances, rules and regulations.

(12) Representatives of the commissioner shall have access to the work wherever it is in preparation or progress; proper facilities will be furnished for such access and inspection and all construction contracts will so provide.

(13) The applicant will at all times provide and maintain competent and adequate resident supervision and inspection under the direction of a licensed professional engineer who will have the responsibility of insuring that the construction conforms with the approved plans and specifications and certifying to the applicant and the commissioner at the completion of construction that the construction is in accordance with the approved plans and specifications or approved amendments thereto.

(14) Adequate accounting and fiscal records will be maintained so as to reflect the receipt and expenditure of funds for the purpose of the eligible project, and all funds, however provided for the payment of the cost of the project, will be credited promptly upon receipt thereof to a separate construction account or accounts.

(15) The construction contract or contracts will be so prepared that eligible items can be readily segregated from noneligible items and so that materials and equipment sold to the applicant may be readily itemized.

(16) The applicant will submit to the commissioner such documents and information as he may require.

(17) The applicant has a fee simple title or such other estate or interest in the site of the project, including necessary easements and rights-of-way, as the commissioner finds sufficient to assure undisturbed use and possession for the purposes of construction and operation for the estimated life of the project.

(18) The applicant will construct the project or cause it to be constructed to the final completion in accordance with the application, plans and specifications or amendments thereto approved by the commissioner and the permit issued therefor.

§651.18 Payments

(a) Installment payments of the State grant will be made at the request of the municipality. Payments will be based on the cost of work performed, materials and equipment supplied and incorporated in, and services rendered in connection with an approved project.

(b) The department will retain five percent from each payment except the final payment.

(c) If the municipality fails to comply with any of the requirements of the Environmental Conservation Law, the State Sanitary Code or regulations of the department applicable to water quality improvement projects, the department may withhold all or part of further payments pending compliance.

(d) Upon notification from the municipality that the project is complete, the department will conduct a final inspection to determine if the project is operating in accordance with applicable laws and regulations. The cost of any work completed after the final inspection, or after a date established by the department at the final inspection, will not be considered part of the project cost.

(e) A final payment, which brings the total of State grant payments to 100 percent of the State share of the project cost, will be released upon determination by the department that the project is complete and is operating satisfactorily, and that all grant requirements have been met. If the project is complete but not operating satisfactorily, the department may withhold from the final payment an amount sufficient, in the judgment of the department, to ensure correction of deficiencies. The amount withheld will be released when deficiencies are corrected.

(f) Total grant payments may not exceed the State share of either the estimated reasonable cost or the actual project cost, whichever is lower.

§651.19 Execution of Grant Contract

The grant contract will be executed only after the receipt of bids on construction contracts and prior to the awarding of such contracts.

§651.20 Approval of Discontinuance of Operation or Disposal of Sewage Treatment Works

(a) The recipient of a grant pursuant to section 1263-b of the Public Health Law shall not discontinue operation or dispose of a sewage treatment works until an application to do so has been approved by the commissioner.

(b) Such an application will not be granted by the commissioner unless he is satisfied that such discontinuance or disposal will not result in new or additional pollution of waters of the State. The commissioner may, in his discretion, conduct or cause to be conducted a hearing in connection with his consideration of such an application.

§651.50 Intent

The intent of granting State aid to municipalities for operation and maintenance of sewage treatment works is to assist municipalities in protecting the quality of the State's waters thereby increasing their availability for use by requiring efficient operation and preventive maintenance of such treatment works.

§651.51 Eligibility

A municipal corporation which owns and operates or owns a sewage treatment plant is eligible to apply for a grant. An application for a grant is to be made for each sewage treatment plant. Eligible works, including but not limited to outlet sewers, overflow structures and diversion chambers, on the sewerage system contributing flow to such plant must be included in the application. Pumping stations which have replaced a municipally owned sewage treatment plant are eligible for reimbursement for municipalities whose fiscal year begins on or after June 1, 1982.

§651.52 Advance Estimates

A municipality shall file with the commissioner, not later than May 1st of each year, an estimate or future total eligible costs for the fiscal year specified by the commissioner. Failure to submit such advance estimate may disqualify the municipality for State assistance for said municipal fiscal year.

§651.53 Qualifications for State Assistance to Municipalities

To qualify for State assistance, a municipality must submit evidence of the following:

(a) Audited costs. An audited statement of all direct costs for operation and maintenance of the sewage treatment plant, as specified in section 17- 1905 of the Environmental Conservation Law, certified by the finance officer of the municipality, shall be filed with the commissioner. The audited statement must indicate all expenses on forms provided by or satisfactory to the commissioner. Personal services shall be broken down by title and annual salary paid for each title. All expenses, other than personal services expenses, shall be broken down by object or purpose of expense. Items listed as nonreimbursable in section 651.58 of this Part are not to be included.

(b) Standard operating reports.

(1) Such reports shall be made on forms provided by or satisfactory to the commissioner at such intervals as he may prescribe.

(2) Such reports shall include, but not be limited to, the results of all tests made in a laboratory certified by the State, by the municipality or its contractor to characterize raw waste, control the treatment process, determine treatment efficiencies, and measure the effect on the receiving water as required by the commissioner.

(c) Qualified operator.

(1) Such evidence shall consist of a copy of the certificate issued by the commissioner or his representative or proof of exemption by reason of date of employment.

(2) For subsequent applications for assistance, municipalities need not submit such evidence unless there has been a change in certified operator(s) or a position has been vacated.

(d) Collection of wastes.

(1) Such evidence shall consist of a report indicating the location of all pumping stations, bypass lines, overflow regulators and such other places, points, devices and pipes which allow the continued or intermittent discharge of untreated wastes to the waters of the State. The report shall be submitted by the chief administrator of the sewage treatment plants and shall further state that these overflow points have been personally inspected by him or a designated representative in charge of that operation and found not to be discharging or bypassing untreated wastes to the waters of the State under conditions of maximum dry-weather flow.

(2) Such overflow places, points, regulators, pipes and devices shall be fixed so as to limit discharge only to flows in excess of maximum dry-weather flow.

(e) Plant construction in substantial accordance with approved plans.

(1) Such evidence shall consist of a certification by the licensed professional engineer who supervised the construction of the sewage treatment plant in accordance with the requirements of the valid permit issued by the commissioner or his designated representative. Such certification need be submitted only once for each plant and each permitted modification or alteration of each plant.

(2) If the licensed professional engineer who supervised construction is not available, the certification may be made by the municipal engineer or the chief administrator of the sewage treatment plant.

(f) Sewer use ordinance.

(1) Evidence that the applicant municipality has enacted and is enforcing appropriate ordinances or regulations acceptable to the commissioner. This ordinance or regulation should control and regulate the use of all tributary sewer collection systems and sewage treatment works to insure that water quality, the treatment plant's performance and level of treatment, or treatment work appurtenances will not be adversely affected nor permit the the sewage sludge from becoming contaminated with deleterious compounds and substances.

(2) A copy of such ordinance or regulation shall be submitted with the initial application for State assistance and any subsequent amendments shall be filed with the application for the fiscal year in which they occurred.

(g) Verification of qualifications.

(1) In every instance, information and documents submitted to support qualifications are subject to field audit and inspection of actual costs, operating conditions and results, including but not limited to the collection of flow and analytical data and review of records.

(2) An annual inspection will be made, by a representative of the commissioner, of operating conditions of the sewage treatment plant and the results of treatment and may include, when deemed necessary, the collection of flow and analytical data.

(3) Certification by the representative of the commissioner will be based on satisfactory operation and maintenance of the sewage treatment works as determined by his inspection and compliance with the standards of operating efficiency stated in section 651.55 of this Part.

(4) From time to time, the commissioner will supplement municipal studies of the effect of discharges of wastes to receiving waters with studies conducted under his direction and auspices. The results and interpretation of such studies will be furnished to the municipalities included in the studies.

§651.54 Applications

(a) Applications shall be submitted to the commissioner through the Department of Environmental Conservation's regional office having jurisdiction of the area in which the sewage treatment works is located.

(b) A municipality shall furnish the audited statement specified in section 651.53(a) of this Part and submit its application and claim for State assistance on forms provided by or satisfactory to the commissioner within 60 days of the termination of such municipality's fiscal year. The following table is illustrative of the dates by which such applications shall be filed:

If municipality's fiscal year is: Application for State assistance will cover the period of: Application for State assistance must be submitted not later than:
June 1, 1985 to May 31, 1986 June 1, 1985 to May 31, 1986 July 30, 1985
July 1, 1985 to June 30, 1986 July 1, 1985 to June 30, 1986 August 29, 1985
January 1, 1986 to December 31, 1986 January 1, 1986 to December 31, 1986 February 28, 1986
April 1, 1986 to March 31, 1987 April 1, 1986 to March 31, 1987 May 30, 1986

§651.55 Standards of operating efficiency of sewage treatment works

(a) Staffing of the sewage treatment plant shall be commensurate with its operation and maintenance needs as determined by the commissioner.

(b) The sewage treatment plant shall be provided with services of a laboratory, certified by the State, to perform laboratory tests and physical measurements as required by the commissioner.

(c) The sewage treatment plant shall be operated in accordance with the valid State Pollutant Discharge Elimination System permit issued to the municipality by the commissioner.

(d) The sewage treatment plant shall be so operated and maintained as to produce, within practical limitations, the degree of treatment which the process is designed to produce under conditions of design flow and loading.

(e) A municipality operating a sewage treatment plant producing an effluent that will not meet stream standards established for the receiving waters because of inadequacy of existing facilities will not be denied State assistance provided the existing facilities are properly and satisfactorily operated in the judgment of the commissioner and provided that such municipality has agreed in a consent order or other binding agreement to a definite time schedule of improvements satisfactory to the commissioner. Failure to meet such schedule shall be cause for subsequent disapproval of State aid under this program.

§651.56 Inspections and Certification

The municipality shall provide facilities and personnel to assist representatives of the commissioner in making their inspections and investigations.

§651.57 Granting of State Aid

State aid will be paid on eligible direct operation and maintenance costs. Where State aid, applied for by one municipality, is not reimbursed on an equitable basis to those entities outside its geographical boundaries which contribute flow to its sewage treatment plant (contracting municipalities, individual residents, school districts, Federal and State facilities, and private, commercial, institutional and industrial enterprises, etc.), all such revenues will be deducted from the total direct operation and maintenance costs before State aid is computed. Examples of eligible items for State aid reimbursement are:

(a) salaries paid for labor and direct supervision of personnel necessary to operate and maintain the sewage treatment works;

(b) the municipality's share of retirement, social security, workers' compensation and insurance costs for the above personnel;

(c) costs of materials and supplies, including fuel, chemicals, lubricants, power and similar expenditures;

(d) costs of insurance premiums on sewage treatment plant structures and equipment;

(e) prorated insurance costs of self-insured municipalities if the self-insurance plan is submitted to and approved by the commissioner;

(f) costs of operating and maintaining vehicles, vessels and other equipment, and for the replacement of vehicles, vessels and other equipment that are used exclusively or are an integral part of the treatment and/or disposal process;

(g) real property taxes assessed by a municipal corporation on eligible sewage treatment works located outside of the corporate limits of the applicant municipality; and

(h) such other costs as in the judgment of the commissioner are necessary for effective operation.

§651.58 Exclusions

The following items are excluded from State aid reimbursement:

(a) administrative, legislative and overhead costs other than those specified in section 651.57 of this Part;

(b) costs of indirect supervision (positions not required for the actual operation of a treatment plant);

(c) costs of capital improvements, including debt amortization and depreciation, acquisition of land and/or structures, and new construction; and

(d) any equipment that is not essential to the effective operation of the sewage treatment plant.

§651.59 Grant payments

A two-payment reimbursement procedure will be applied by the commissioner to all applicants who qualify for State assistance. The first payment will be awarded after approval of each application by the commissioner. The second payment will not be awarded until completion of the first payment procedure for all municipalities applying for operation and maintenance aid in that fiscal year.

(a) First payment. The first payment will be determined by applying a uniform rate of reimbursement to the total eligible costs of each qualified applicant. The uniform rate of reimbursement will be established each State fiscal year by the commissioner and will be the same for all applicants. The first payment will be approved or denied, in total, contingent upon the applicant's demonstrated ability to comply with all grant requirements and conditions. Funding for the first payment will be obtained from the portion of the State appropriation for operation and maintenance aid awards appropriated for that purpose.

(b) Second payment. The second payment will be made using funds from two sources:

(1) The remaining amount of the funds appropriated for a uniform rate of reimbursement will be approved or denied using the same criteria as subdivision (a) of this section. The percentage rate of reimbursement for this second payment will be set at a rate which will fully expend the funds appropriated for a uniform rate of reimbursement. This rate will be the same for all applicants.

(2) The performance portion of each operation and maintenance aid grant will be approved in total or in part, or denied, based on a performance factor to be determined for each applicant. The performance factor will be calculated by comparing selected parameter concentrations, limits, or loadings allowed by the applicant's State Pollutant Discharge Elimination System (SPDES) permit with the actual annual average concentrations or loadings of the respective parameters in each sewage treatment plant's discharge. A mathematical formula will be established by the commissioner for determining the performance factor, which will be a proportion determined by dividing the permitted effluent limit for each selected parameter by the actual annual average concentration or loading for that parameter and then taking the arithmetic mean of those values. If the proportion thus determined exceeds 1.0, a value of 1.0 will be used as the performance factor. The performance payment will be made from funds appropriated for that purpose.

(c) If the first payment is denied in total, then the second payment (the uniform rate and the performance rate) will also be denied in total.

§651.60 Denial reconsideration

An applicant may request that the determination to reduce or deny State aid be reconsidered according to the following procedure:

(a) A request for reconsideration must be filed in writing with the Department of Environmental Conservation within 20 days after the date of receipt of the department's letter reducing or denying aid and must be signed by the chief executive officer of the applicant and include statements:

(1) supporting the applicant's claim of errors of fact or misapplication of laws and/or rules and regulations in the department's determination; and

(2) specifying the relief sought by the applicant.

(b) This reconsideration is an optional step and is not a condition precedent to the applicant's right to petition the commissioner for a hearing pursuant to section 17-0907 of the Environmental Conservation Law.

§651.61 Contract-Operated Facilities

State aid will be considered for a municipal corporation which contracts with a second party to operate and/or maintain a municipally owned sewage treatment works, if the following conditions are met:

(a) the municipality remains responsible for proper and timely submission of the appropriate operation and maintenance grant application forms;

(b) the basic requirements for State operation and maintenance aid are applied regardless of any administrative arrangements or agreements which may be made between the municipality and the contractor;

(c) if the municipality furnishes a documentable breakdown of eligible costs, reimbursement will be based on the submitted eligible cost statement. If the municipality is unable to provide the documentable breakdown of eligible costs, and is otherwise found to meet all other eligibility requirements, reimbursement will be based on whichever of the following results in the lesser amount:

(1) the eligible costs of the last full year of operation by the municipality, increased by the statewide rate of escalation of total eligible costs of operating and maintaining public sewage treatment plants between that year and the year of application; or

(2) the amount of the contract.

§651.70 Intent

The intent of these rules and regulations, sections 651.70-651.77, inclusive, is to implement article 12 of the Public Health Law, section 1263-d, as amended.

§651.71 Authority

Authority for issuance of the rules and regulations set forth herein, sections 651.70-651.77, inclusive, is contained in section 1210 of the Public Health Law and in chapter 1162, Laws of 1971.

§651.72 Applications

Applications for State aid for sewage collection systems shall be submitted on forms furnished by the commissioner.

§651.73 Limitation

The rules and regulations set forth herein, sections 651.70-651.77, inclusive, are limited to those projects or major parts thereof which at the time of construction, are located in:

(a) a town which has a total population of 17,000 or less; or

(b) a town outside of village area which has a population density per square mile of less than 100 persons.

§651.74 Definitions

(a) Construction. The building, installation or extension of a sewer system; the inspection and supervision thereof; the engineering, legal, fiscal and economic investigation; studies, surveys, designs, plants, contract drawings, specifications, procedures; and other actions necessary thereto.

(b) Under construction. Work actually in progress at the project site after execution of the construction contract.

(c) Sewer system. Pipelines or conduits, pumping stations, force mains, and all other constructions, devices and appliances appurtenant thereto, used for conducting sewage (the water-carried human, animal or other treatable wastes from residences, buildings, industrial and commercial establishments or other places) to a point of connection to the sewage treatment works.

(d) Sewage treatment works. A facility for the purpose of treating, neutralizing or stabilizing sewage, including treatment or disposal plants, the necessary intercepting, outfall and outlet sewers, pumping stations integral to such plants or sewers, equipment and furnishings thereof and their appurtenances.

(e) Sewer connection. A connection between a building, residence or other structure and a public sewer.

(f) Public sewer. A sewer owned by a municipality entirely within a public right-of-way or easement acquired for a sewer line, that serves the public.

(g) House connection. That portion of a sewer connection extending from the closest public right-of-way or easement boundary to the residence. House connections are not eligible for State aid.

(h) Residence. A building or structure which is occupied principally as the home of one or more persons; provided, however, that such building or structure contain not more than two dwelling units. A dwelling unit is any room or group of rooms located within a dwelling and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating. Residences containing more than two dwelling units, including multi-family dwellings, apartment houses, condominiums, motels, hotels, and such other facilities as trailer and mobile home parks, migrant labor camps, combined store and owner's dwelling unit, etc., are deemed commercial buildings. As an exception, mobile homes on isolated lots not part of a mobile home park, may be considered as residences.

(i) Municipality. Any county, town, village, district corporation, county or town improvement district, or any two or more of the foregoing which are acting jointly in connection with an eligible project. For purposes of these rules and regulations only, an indian reservation located partly or wholly within New York State shall be construed as a "municipality". However, only that part of the project located wholly within New York State is eligible for State aid.

(j) Applicant. Any municipality, as defined above, that files an application for State aid pursuant to section 1263-d of the Public Health Law.

(k) Local governing body.

(1) in a county, the county board of supervisors or the county legislature;

(2) in a town, the town board;

(3) in a village, the board of trustees;

(4) in a district corporation or an improvement district, the governing board;

(5) in an indian reservation, the proper tribal officials.

(l) Indian reservation. Lands validly set apart for use of indians.

(m) Town outside village. The area of the town outside of the villages.

(n) Commissioner. The Commissioner of Environmental Conservation of the State of New York, or his authorized representative.

(o) Federal assistance. Funds available, other than by loan, from the Federal government to a municipality, either directly or through allocation by the State, for construction of a sewer system or which are used for such construction, pursuant to any other Federal law or program.

(p) Project. The construction of the whole or connected portion of a sewage collection system. Where the construction of a sewage collection system is phased over a period of years, each phase may be considered as a project.

(q) Eligible project. A project which in the judgment of the commissioner meets all of the following requirements:

(1) It is in accord with applicable comprehensive studies and reports made pursuant to section 1263-a, article 12 of the Public Health Law,

(2) It conforms to applicable rules and regulations of the commissioner and, in his opinion, reflects a reasonable effort to develop maximum economy in planning, design and construction, with an acceptable ratio between costs and benefits,

(3) It is necessary for the accomplishment of the State water pollution control program,

(4) It is under construction in the period between April 1, 1965 and March 31, 1973,

(5) No portion of the project aided herein is eligible to receive assistance pursuant to section 1263-b of the Public Health Law,

(6) It serves inhabited residences in existence prior to July 6, 1971,

(7) It serves the public by providing for the collection of sewage (house connections and pipes collecting exclusively industrial, commercial and other nonresidential waste are ineligible).

(r) Capital cost. The actual cost of construction of an eligible project, not to include the cost of securing financing or interest on funds borrowed to finance such construction, and representing that part of the cost of the eligible project that is not paid by the Federal government.

(s) Annual debt service. Such amounts as shall be required to be paid annually to amortize obligations (both principal and interest) issued in order to finance the capital cost of an eligible project; provided, however, that for the purposes of State aid, such annual debt service shall be computed on a debt amortization schedule of not less than 30 years nor more than 40 years, as the commissioner shall determine, and shall not include any other debt service (whether principal or interest) on obligations of or on behalf of a municipality, other capital costs, or expenditures for a purpose as to which State reimbursement is claimed under any provision of law other than section 1263-d of the Public Health Law. Where the eligible portion of the sewage collection system serves nonresidential users as well as residences, the amount of annual debt service to be used in computing State aid shall be reduced as determined by the commissioner, to compensate for the benefits received by the nonresidential users from such system. Benefits shall be based on proportion of the volume of flow contributed to the sewage collection system, or other means acceptable to the commissioner.

(1) Where the municipality issues bonds to amortize the capital costs of the project over a period of 30 to 40 years, the annual debt service to be used in determining State aid shall be in accordance with the actual bond maturity schedule with the annual debt service adjusted in the same proportion as the eligible capital cost for the project as determined by the commissioner is to the principal amount of the bonds as issued.

(2) Where the municipality issues bonds to amortize the capital cost of the project over a period less than 30 years, the debt service requirement to be used in determining State aid shall be based upon the assumptions and criteria as shown below:

(i) Principal amount to be the eligible capital costs as determined by the commissioner,

(ii) Term of schedule to be 30 years for eligible capital costs where the actual maturity was 30 years or less,

(iii) Interest rate to be the interest rate paid on obligations of 30 year maturities as approved by the commissioner after consultation with the State Comptroller,

(iv) Annual payments to be based on varying annual payments in accordance with section 20.00-d of the Local Finance Law which provides that no annual installment of serial bonds shall be more than 50 percent in excess of the smallest prior installment,

(v) Administration date to be the date coinciding with the date of the permanent financing arrangements.

(t) State aid. Financial support made available to a municipality by way of State participation in annual debt service, through contracts entered into between the commissioner and the municipality, upon such terms and conditions as the commissioner shall deem appropriate, which shall be based on the number of residences served by the eligible project and computed as follows:

(1) The amount of annual debt service, as defined above, minus the municipality's share of the expense for construction of the sewage collection system.

(2) The municipality's share shall be the product of the number of residential sewer connections served by the project multiplied by an adjusted rate. The adjusted rate shall be determined by applying a valuation correction from the sum of $125.

(3) Valuation correction shall consist of minus one dollar for each $1000 or part thereof that the project area per capita full value is less than the average per capita full value for the State excluding all cities. For projects wholly located within a village or town the project area per capita full value shall be the per capita full value for the village, or for the town outside the village area respectively. For other projects, per capita full value shall be per capita full value of the town or village within which the major portion of the project is located. Per capita full value shall mean the full value of such municipality or area divided by the population thereof. Population shall be based on the latest regular or special census or such other determination as acceptable to the commissioner.

(4) The amount of such State aid shall be recomputed each year, on the basis of data reported by the local governing body as accepted by the commissioner.

(5) State aid shall commence in the State fiscal year beginning April 1, 1971. No State-aid payments shall be made on the basis of any portion of the debt service of eligible projects which was due and payable prior to April 1, 1971.

§651.75 Contracts

(a) For the purpose of meeting the State responsibility as provided herein, with respect to the protection and promotion of the health of the inhabitants of the State by the provision of sewer systems, the commissioner, in the name of the State, may enter into contracts with municipalities having power to construct, operate and maintain sewer systems, and any such municipality may enter into a contract with the commissioner, concerning eligible projects.

(b) Any such contract may include such provisions as may be agreed upon by the parties thereto, and shall include, in substance, the following provisions:

(1) The cost of the eligible project as determined by the commissioner.

(2) The method by which the eligible project shall be financed.

(3) An agreement between the commissioner and the municipality to provide State aid to the municipality each year, during the progress of construction or following completion of construction as may be agreed upon by the parties. The time of payment will depend on the time payment of annual debt service by the municipality is due. This agreement shall be deemed executory to the extent of the monies available to the State and no liability on account thereof shall be incurred by the State beyond monies available for the purpose thereof.

(4) An agreement by the municipality

(i) to proceed expeditiously with, and complete, the project in accordance with plans approved pursuant to section 1230, article 12 of the Public Health Law.

(ii) to commence operation of the sewer system on completion of the project, and not to discontinue operation of the sewer system without the approval of the commissioner.

(iii) to operate and maintain the sewer system in accordance with applicable provisions of article 12 of the Public Health Law, the State sanitary code and rules and regulations of the commissioner.

(iv) to apply for and make reasonable efforts to secure Federal assistance for the project.

(v) to secure the approval of the commissioner before applying for Federal assistance, in order to maximize the amounts of such assistance received or to be received for all projects in New York State.

(vi) to provide for the payment of the municipality's share of the cost of the project, or annual debt service.

(vii) to execute a contract or agreement with the owner of the sewage treatment plant, if other than the municipality itself, to accept sewage from the sewage collection system aided under the rules and regulations, set forth herein, and,

(viii) to promulgate a municipal sewer use ordinance acceptable to the commissioner.

(c) A provision that, in the event that Federal assistance which was not included in the calculation of the capital cost becomes available to the municipality, the amount of the State payment shall be recalculated by deducting the amount of such Federal assistance from the eligible capital cost, and adjustment shall be made either

(1) by the municipality paying to the State the amount by which the State payments actually made exceed the State payments determined by the recalculation, or

(2) by deducting the excess paid from subsequent payments to be made by the State.

(d) The contract will be executed only after permanent financing for the project has been arranged.

(e) All contracts entered into pursuant to section 1263-d, Public Health Law, shall be subject to approval by the State Comptroller, and by the Attorney General as to form.

§651.76 Payments

(a) All payments by the State pursuant to such contracts shall be made after audit by and upon the warrant of the State Comptroller on vouchers approved by the commissioner.

(b) Payments will be made annually as prescribed in the State contract, except that no payments will be made for annual debt service, either actual or hypothetical, scheduled to be due and payable prior to April 1, 1971.

(c) In the event that the applicant fails to comply with any of the requirements of the Public Health Law or the State sanitary code, or rules and regulations of any State agency or department applicable to the project, the commissioner may upon reasonable notice withhold annual payments to the applicant until compliance is effected.

(d) Once State aid is extended to a municipality by means of a contract between the State and the municipality, annual payments will be continued until the State's obligation is completed, subject to availability of annual appropriated funds. New projects will be considered subject to availability of annual appropriated funds.

§651.77 Conditions

(a) In order to insure effective water pollution control, economy of capital cost and operation, each project before approval will be evaluated in terms of the over-all treatment and collection need of the area in which it is located. The commissioner reserves the right to disapprove any application if it does not contribute to the over-all objectives of environmental quality management, or may become deterrent to area-wide solutions at a later date;

(b) The sewage received by the sewer system will be in accordance with a sewer use ordinance acceptable to the commissioner;

(c) The sewage conveyed by the sewer system shall be discharged, either directly or through connecting interceptors, to a sewage treatment plant having adequate capacity for the added hydraulic and solids load, and where, after treatment the plant effluent will meet all Federal, State and interstate requirements, including approved water quality standards assigned to the receiving stream or body of water;

(d) The applicant has a fee simple title or such other estate or interest in the site of the project, including necessary easements and rights of way, as the commissioner finds sufficient to assure undisturbed use and possession for the purposes of construction and operation for the estimated life of the project;

(e) The applicant will submit to the commissioner such documents and information as he may require;

(f) Over-design without justification will be reason for rejection of an application. All engineering reports and plans submitted will reflect professional responsibility with regard to developing maximum economy in planning, design and construction;

(g) The contract and specifications will be consistent with applicable portions of part I, standard documents, of the "State Architect's Standard Specifications";

(h) The construction contract or contracts will be so prepared that eligible items can be readily segregated from noneligible items;

(i) Actual construction work will be performed by the unit price contract method, unless exception is justified and acceptable to the commissioner;

(j) The construction of the project, including the letting of contracts in connection therewith, will conform to applicable requirements of Federal, State and local laws, ordinances, rules and regulations;

(k) Construction specifications shall provide for alternate equipment or materials which can provide a satisfactory operating unit, where such alternative is available;

(l) The construction contract will require the contractor to provide performance and payment bonds in amounts not less than the contract price and to maintain during the life of the contract adequate fire and extended coverage, workmen's compensation, public liability, and property damage insurance;

(m) The construction contract will provide that representatives of the commissioner shall have access to the work wherever it is in preparation or progress and that the contractor shall furnish proper facilities for such access and inspection;

(n) New projects will not be advertised or placed on the market for bidding until final plans and specifications have been approved by the commissioner, and the applicant has been notified by the commissioner that advertising and receipt of bids may commence;

(o) Adequate methods of obtaining competitive bidding will be employed prior to contract awards and the contract award will be made to the responsible bidder submitting the lowest acceptable bid;

(p) Construction contracts will not be awarded without approval of the commissioner. Bid tabulations shall be submitted with a letter signifying the intent of the applicant to award contracts to a specific bidder;

(q) Construction shall not commence until a permit therefor has been issued pursuant to section 1230 of the Public Health Law;

(r) The applicant will at all times provide and maintain competent and adequate resident supervision and inspection under the direction of a licensed professional engineer of the State of New York who will have the responsibility of insuring that the construction conforms with the approved plans and specifications and certifying to the applicant and the commissioner at the completion of construction that the construction is in accordance with the approved plans and specifications or approved amendments thereto;

(s) Engineering fees must be consistent with the current schedules recommended by the American Society of Civil Engineers;

(t) Notification of all change orders not requiring prior approval of the commissioner will be submitted to the commissioner within one month of the time at which they are ordered by the engineer; adjustment in capital cost resulting from such change orders may be made by the commissioner at his discretion following engineering review of the change order and inspection;

(u) Any change or changes in the contract in excess of five percent of the contract price or any change or changes regardless of cost which substantially modify the sewer system proposed will be submitted to the commissioner for prior approval; provided, however, that work of an emergency nature may be ordered by the engineer engaged by the applicant pursuant to subdivision (r) above without prior approval if so reported to the commissioner; and provided further that the change or changes in the contract do not cause the cost of the improvement to exceed the maximum amount proposed to be expended for such improvement. In the latter case, approval of the State Comptroller is required in accordance with section 202-d, article 12, section 209-h, article 12-A and section 209-q, article 12-C of the Town Law;

(v) Adequate accounting and fiscal records will be maintained during the construction period so as to reflect the receipt and expenditure of funds for the purpose of the eligible project, and all funds, however provided for the payment of the cost of the project, will be credited promptly upon receipt thereof, to separate construction account or accounts. These accounts shall be subject to audit by the State.

(w) Sufficient qualified personnel will be employed, and required operational tests, measurements, cleaning and repairs will be performed to insure proper and efficient operation and maintenance of the sewer system from the time of completion of construction until such time as the commissioner may approve discontinuance of operation.