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Revised Regulatory Flexibility Analysis for SPRTK

for Small Businesses and Local Governments

1. 'Effect of Rule.' All counties, towns, cities, villages, district corporations, special improvement districts, sewer authorities and agencies thereof in the state that own or operate a publicly owned treatment works (POTW) or a publicly owned sewer system (POSS) will be subject to the requirements of this rule. There are approximately 620 POTWs that will be affected, and the Department of Environmental Conservation (DEC) estimates that there are approximately 300 POSSs that will be affected. The rule extends regulatory oversight to POSSs as DEC does not currently regulate POSSs through its SPDES program. Cities, towns and villages that have POTWs or POSSs or that adjoin these entities will be beneficially affected by the rule as they will benefit from the notification requirements imposed by the rule. No small businesses will be affected by this rule.

2. 'Compliance Requirements.' The rule requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to the DEC and the local health department, or if there is none, the New York State Department of Health immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not have to be reported. Owners and operators of POTWs and POSSs will also be required to continue reporting for each day after the initial report is made until the discharge terminates, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the daily report. The definition of 'municipality' in the current regulations (6 NYCRR 750-1.2 (a) (51)) will apply to the rule's definition of 'POSS' and continue to apply to the existing definition of 'POTW' which has been left unchanged. Thus, both POTWs and POSSs will include systems that are owned by a "county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof." The rule, however, distinguishes a POSS from a POTW by defining a POSS as "a sewer system owned by a municipality and which discharges to a POTW owned by another municipality." In contrast, a POTW does not include a municipally owned sewer system unless the sewer system that discharges to the POTW is owned by the same municipality. The rule also describes the necessary content of two hour reports to the extent knowable with existing systems and models as prescribed by Environmental Conservation Law (ECL) 17-0826-a (1) (a)-(f).

Furthermore, the rule obligates owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. The municipal notification requirement does not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification requirement, a 'municipality' is limited to mean "a city, town or village" and an 'adjoining municipality' means "a municipality that is adjacent to the municipality in which the discharge occurred."

In addition, the rule requires owners and operators of POTWs and POSSs to notify the general public as soon as possible, but no later than four hours from discovery of discharges of untreated and partially treated sewage to surface water, except that no notification is required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit.

The rule does not require POTWs or POSSs to upgrade their infrastructure or install monitoring equipment. However, for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, the rule requires owners and operators of POTWs and POSSs to expeditiously issue advisories to the general public through appropriate electronic media as determined by the department when, based on actual rainfall data or predictive models, enough rain has fallen that combined sewer overflows may discharge. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.

Under the rule, owners of POSSs need to obtain registrations for these facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs are required to properly operate and maintain their facilities; file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); and allow DEC to conduct inspections and copy records.

3. 'Professional Services.' Municipalities that own POTWs and POSSs may need to employ professional services to comply with the rule if existing employees are not sufficient to handle these duties. The services needed under the rule consist of two hour reporting and four hour notification of untreated and partially treated sewage discharges by owners and operators of POTWs and POSSs; continued reporting by owners and operators of POTWs and POSSs for each day after the initial report is made until the discharge terminates; expeditious advisories to the public by owners and operators of POTWs and POSSs regarding certain combined sewer overflows; filing five day written incident reports by owners and operators of POSSs (as currently required for POTW SPDES permittees and other SPDES permittees); registering of POSSs; and notifying DEC of a change in ownership or operation of POSSs.

4. 'Compliance costs.' There may be some initial capital costs to municipalities (or their contractors) to comply with the rule. These costs would consist of upgrades to computer systems to meet the rule's electronic reporting and notification requirements if existing computer systems are not adequate. It is estimated that the cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule would be a single expenditure of about $1,000. Approximately 140 smaller municipalities in rural areas (or their contractors) will need to upgrade their computer systems to comply with the rule. It may also be necessary for some municipalities to hire additional employees or to extend the work hours of current employees on an annual basis to comply with the rule if existing staff are unable to handle these duties during current work hours. The pay rate of a qualified employee to handle the duties associated with the rule is estimated to be $34.80 to $60.85 per hour. Some local health departments are also expected to incur expenses of approximately $1,000 to upgrade their computer systems as well as minimal annual expenses associated with employee services.

There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable sanitary sewer overflow events per year at a de minimis cost for reporting and record keeping and that 570 of these POTWs and POSSs will be located in smaller rural municipalities. Some communities, however, are expected to have a considerable number of combined sewer overflow events each year. The rule, however, imposes no cost on POTWs and POSSs to develop CSO reporting systems. DEC based the above labor costs on use of the department approved alert system that will notify DEC, NYSDOH, local health departments, elected officials, adjoining municipalities, and the general public. The rule requires that POTWs and POSSs use the department approved form of electronic media (currently NY-ALERT) to carry out all of the rule's electronic reporting and notification requirements. The department acknowledges that initial capital costs and annual costs will vary depending on the municipality and the circumstances regarding each sewage release event.

5. 'Economic and technological feasibility.' Compliance with the rule is expected to be feasible for local governments both economically and technologically. It is expected that local governments will have the ability to finance the costs associated with the rule. Two hour reporting to DEC and health authorities under the rule (as well as daily and termination reports) will be accomplished by electronic entry of information into the NY-ALERT system which will forward the entered information to DEC and health authorities. The NY-ALERT system will also accommodate four hour notification to the chief elected official of the municipality where the discharge occurred, adjoining municipalities that may be affected and the general public. The NY-ALERT system will not be technologically complex to use and will not require substantial upgrades to the existing computer systems of local governments. If DEC switches to a system other than NY-ALERT in the future, it will seek a system that provides similar attributes.

6. 'Minimizing adverse impact.' The rule is designed to minimize adverse economic impacts to local governments within the context of the statutory mandate. The timeframes for two hour reporting and four hour notification in the rule match the timeframes set forth in the enabling statute (Environmental Conservation Law (ECL) section 17-0826-a). There are not expected to be any significant costs to local governments to comply with the rule. It is expected that local governments will be able to use existing computer systems to comply with the rule without needing substantial upgrades to these systems. The approaches for minimizing adverse economic impact suggested in SAPA 202-b (1) and other similar approaches were considered, but ECL 17-0826-a does not provide for exemptions from coverage, or for differing compliance or reporting requirements or timetables, based upon the resources of the local government. Therefore, no such approaches are contained in the rule. Nevertheless, the rule is written and will be implemented in a manner that minimizes adverse economic impacts to local governments within the parameters of the statutory authority.

7. 'Small business and local government participation.' DEC has complied with SAPA 202 (b) (6) by assuring that small businesses and local governments have had an opportunity to participate in the rule making process. This occurred through posting notice of the proposed rule making on the DEC website; maintaining a public website informing public and private interests of the impact of the rule; and through interaction with owners and operators of POTWs and POSSs, environmental groups, and others. DEC also held Water Management Advisory Committee (WMAC) meetings on the rule which were attended by various stakeholders. Furthermore, the proposed rule was published in the State Register and the public was provided with an opportunity to comment on the proposed rule. The Department has reviewed the comments received and has completed an Assessment of Public Comments.

8. 'For rules that either establish or modify a violation or penalties associated with a violation.' The entities regulated by the rule will have the ability to satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the rule is necessary to provide regulated entities with the ability to immediately comply with the rule.


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