Assessment of Public Comments 6 NYCRR Parts 219 and 200
Comments received from December 14, 2011 through 5:00 P.M., January 26, 2012
1) Comment: Erie County Division of Sewerage Management (DSM) recognizes that the NYSDEC may be required by 40 CFR Part 60, Subpart MMMM to develop a "State Plan" to implement the Federal regulations. Please be advised that the National Association of Clean Water Agencies (NACWA) has issued a legal challenge on 40 CFR Part 60, Subpart MMMM. Therefore, DSM requests that NYSDEC ensure that sufficient flexibility be provided in the proposed Part 219 sewage sludge incineration (SSI) unit regulations to allow for changes should NACWA's legal challenge of the Federal regulations be successful, or if a stay is granted on the Federal rule. (Commentor 1)
Response to Comment 1: The Department is aware of the legal challenges brought by NACWA and will take whatever actions are necessary and appropriate should the need arise. The State Administrative Procedure Act (SAPA) and other state laws set forth the State's rulemaking requirements.
2) Comment: Again recognizing that NYSDEC may be required to implement the Federal regulations, the proposed Part 219 SSI unit regulations will likely result in a substantial cost impact for Erie County Sewer District No.3. Erie County is subject to the recently enacted New York State Property Tax Cap and this SSI unit regulation would be an unfunded mandate. The NYSDEC has documented a need of $36.2 billion in investment for wastewater infrastructure in New York State over the next 20 years ("Wastewater Infrastructure Needs of New York State" (NYSDEC, March 2008)) and even considering this sizable sum, that estimate does not likely include monies for the work necessary to comply with this proposed regulation. With increasing regulatory pressures, a tremendous need to devote capital monies to wastewater facilities perhaps above and beyond the $36.2 billion estimate, and the fact that virtually all funding is to be shouldered by the local ratepayers, the State must provide a method to fund mandated projects that adversely affect a community's ability to meet the New York State Property Tax Cap. (Commentor 1)
Response to Comment 2: As indicated in the proposed rule's Regulatory Impact Statement (RIS), the Department recognizes that these requirements, mandated under the federal Guidelines, may necessitate additional costs for owners of SSI units. As stated in the RIS, it is estimated that 11 of the 18 SSI units located in the State would not need any additional control equipment to comply with the Guidelines. For these, only monitoring, record keeping and reporting requirements are considered added costs, with a total capital investment estimated to be $61,250 per SSI unit, and an annual cost of $31,000 per SSI unit. The remaining seven SSI units are expected to need added air emission controls, with cost estimates ranging from approximately $375,000 to $4,700,000 per SSI unit, and annual costs ranging from $89,000 to $1,000,000 per SSI unit. While the costs for individual facilities in New York will vary, the proposed rule requires facilities to assess the continued feasibility of utilizing SSI units, as opposed to other forms of sewage sludge disposal. The Department will continue to work with owners of SSI units as they assess the regulatory requirements. The New York State Property Tax Cap, recently enacted by the State legislature, and the need for additional wastewater infrastructure funding, is generally beyond the scope of this rulemaking.
3) Comment: The DEC took the public by surprise on this one, and it doesn't inspire confidence that the DEC truly cares about public input. In the future, please give more advanced notice of public hearings. (Commenter 2)
Response to Comment 3: The proposed revisions to Part 219 and the notice of public hearings were published in the official New York State Register, as well as the Environmental Notice Bulletin, on December 14, 2011 in accordance with State law. The public comment period ended on January 26, 2012 at 5:00 p.m., thereby allowing adequate notice and time to submit comments to the Department. In addition, written comments are given the same consideration as comments taken during public hearings.
List of Commentors
1. Joseph L. Fiegl, PE, Deputy Commissioner, Erie County Department of Environment & Planning
2. Marilyn Stern