State Review Framework New York Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act Implementation in Federal Fiscal Year 2016 U.S. Environmental Protection Agency Region 2, New York Final Report December 20,2017 ------- Executive Summary Introduction EPA Region 2 enforcement staff conducted a State Review Framework (SRF) enforcement program oversight review of the New York State Department of Environmental Conservation (NYSDEC). EPA bases SRF findings on data and file review metrics, and conversations with program management and staff. EPA will track recommended actions from the review in the SRF Tracker and publish reports and recommendations on EPA's ECHO web site. Areas of Strong Performance NYSDEC meets its inspection commitments. For all major CWA, CAA, and RCRA inspection categories, NYSDEC met or exceeded its annual inspection commitments for FY'16. NYSDEC also met expectations for nearly all inspection types in its state-specific CWA Compliance Monitoring Strategy Plan. NYSDEC consistently makes accurate compliance determinations. All CAA and RCRA files reviews and all CWA files with sufficient documentation contained accurate compliance determinations. NYSDEC consistently documents collection of penalties. All CWA, CAA and RCRA files reviewed included documentation establishing that the assessed penalty had been paid. Priority Issues to Address The following are the top-priority issues affecting the state program's performance: Some mandatory data requirements are not entered timely or accurately into the national data system. EPA has provided program-specific recommendations to address these issues. NYSDEC does not consistently document economic benefit or the rationale for the difference between initial penalty calculation and final penalty for all three statutory programs. It is recommended that EPA work with NYSDEC to develop or improve a template to be included as part of penalty documentation and that NYSDEC submit an updated SOP addressing the identified issues. EPA will provide training and will review a subset of files at the conclusion of FY' 18. State Review Framework Report | New York | Executive Summary | Page 1 ------- Most Significant CWA-NPDES Program Issues1 Some data were not entered accurately into the national data system and two required elements were not reported at all. NYSDEC does not enter informal actions or application receipt dates into the national data system. It is recommended that NYSDEC evaluate their ability to modernize their computer systems used for data management and submit a plan to ensure all required data elements are entered into the national system in the future. NYSDEC does not identify and report single event violations (SEVs). It is recommended that NYSDEC implement their SEV pilot plan that was developed in response to Round 2. EPA Region 2 recommends that NYSDEC expand use of the pilot plan to include all SEVs beginning in FY' 19. NYSDEC does not always respond to NPDES violations timely. It is recommended that NYSDEC submit a plan for improving timely responses to facilities that are in SNC and implement the plan immediately upon receiving comments from EPA Region 2. Most Significant CAA Stationary Source Program Issues Minimum data requirements (MDRs), including compliance monitoring, stack tests, and enforcement MDRs are not entered timely, and Title V Annual Compliance Certification review dates and deviations are not accurately entered into the national data system. EPA Region 2 will work with NYSDEC to determine how data is being transferred from the state database to ICIS-Air. It is recommended that NYSDEC management issue a memorandum to staff reiterating the importance of timely and accurate data entry and that all discrepancies identified in the report be corrected. NYSDEC did not review all Title V annual compliance certifications for FY' 16. This issue will be addressed through the recommendation for MDRs listed above. EPA will review this metric as part of annual data metrics. If progress is not apparent, EPA will work with NYSDEC to further address this issue. Most Significant RCRA Subtitle C Program Issues MDR data is not accurately and completely reflected in the national data system (RCRAinfo). It is recommended that NYSDEC develop appropriate procedures for accurate MDR entry. NYSDEC did not consistently make timely SNC determinations. It is recommended that NYSDEC develop an SOP to address timely SNC determinations. 1 EPA's "National Strategy for Improving Oversight of State Enforcement Performance" identifies the following as significant recurrent issues: "Widespread and persistent data inaccuracy and incompleteness, which make it hard to identify when serious problems exist or to track state actions; routine failure of states to identify and report significant noncompliance; routine failure of states to take timely or appropriate enforcement actions to return violating facilities to compliance, potentially allowing pollution to continue unabated; failure of states to take appropriate penalty actions, which results in ineffective deterrence for noncompliance and an unlevel playing field for companies that do comply; use of enforcement orders to circumvent standards or to extend permits without appropriate notice and comment; and failure to inspect and enforce in some regulated sectors." State Review Framework Report | New York | Executive Summary | Page 2 ------- Table of Contents I. Background on the State Review Framework 1 II. SRF Review Process 2 III. SRF Findings 4 Clean Water Act Findings 5 Clean Air Act Findings 27 Resource Conservation and Recovery Act Findings 39 Appendix I - Clean Air Act 51 Appendix II - Clean Water Act 53 Appendix III - Resource Conservation and Recovery Act 55 ------- I. Background on the State Review Framework The State Review Framework (SRF) is designed to ensure that EPA conducts nationally consistent oversight. It reviews the following local, state, and EPA compliance and enforcement programs: Clean Water Act National Pollutant Discharge Elimination System Clean Air Act Stationary Sources (Title V) Resource Conservation and Recovery Act Subtitle C Reviews cover: Data completeness, accuracy, and timeliness of data entry into national data systems Inspections meeting inspection and coverage commitments, inspection report quality, and report timeliness Violations identification of violations, determination of significant noncompliance (SNC) for the CWA and RCRA programs and high priority violators (HPV) for the CAA program, and accuracy of compliance determinations Enforcement timeliness and appropriateness, returning facilities to compliance Penalties calculation including gravity and economic benefit components, assessment, and collection EPA conducts SRF reviews in three phases: Analyzing information from the national data systems in the form of data metrics Reviewing facility files and compiling file metrics Development of findings and recommendations EPA builds consultation into the SRF to ensure that EPA and the state understand the causes of issues and agree, to the degree possible, on actions needed to address them. SRF reports capture the agreements developed during the review process in order to facilitate program improvements. EPA also uses the information in the reports to develop a better understanding of enforcement and compliance nationwide, and to identify issues that require a national response. Reports provide factual information. They do not include determinations of overall program adequacy, nor are they used to compare or rank state programs. Each state's programs are reviewed once every five years. The first round of SRF reviews began in FY 2004. The third round of reviews began in FY 2013 and will continue through FY 2017. State Review Framework Report | New York | Page 1 ------- II. SRF Review Process Review period: Fiscal Year 2016 Key dates: Kickoff letter sent to the state: February 18, 2017 Kickoff meeting conducted: March 13, 2017 Data metric analysis sent to state: o Clean Water Act (CWA): April 27, 2017 o Clean Air Act (CAA): March 28, 2017 o Resource Conservation and Recovery Act (RCRA): March 28, 2017 File selection list sent to state: o CWA: April 27,2017 o CAA: April 24, 2017 o RCRA: April 24, 2017 Onsite file reviews conducted: o CWA: May 22-26, 2017 o CAA: June 5-9, 2017 o RCRA: May 23 - 25, 2017 Exit meeting conducted: July 6, 2017 Draft report sent to state: Report finalized: State and EPA key contacts for review: Dore LaPosta, Director, EPA-DECA Barbara McGarry, Chief, EPA-DECA-CAPSB Daniel Teitelbaum, Data Management Team Leader, EPA-DECA-CAPSB Andrea Elizondo, SRF Coordinator, EPA-DECA-CAPSB Robert Buettner, Chief, EPA-DECA-ACB Nancy Rutherford, Air Data Steward, EPA-DECA-ACB Doug McKenna, Chief, EPA-DECA-WCB Christy Arvizu, Environmental Scientist, EPA-DECA-WCB Lenny Voo, Chief, EPA-DECA-RCB Derval Thomas, Section Chief, EPA-DECA-RCB Scott Crisafulli, Deputy Counsel, Office of General Counsel, NYSDEC Peter Casper, Deputy Counsel, Office of General Counsel, NYSDEC Dena Putnick, Division of Water, Office of General Counsel, NYSDEC Stephen Allinger, Division of Air, Office of General Counsel, NYSDEC Colleen McCarthy, Division of Air, Office of General Counsel, NYSDEC Benjamin Conlon, Division of Environmental Remediation, Office of General Counsel, NYSDEC Joseph DiMura, Division of Water, NYSDEC Edward Hampston, Division of Water, NYSDEC State Review Framework Report | New York | Page 2 ------- Meredith Streeter, Division of Water, NYSDEC Robert Stanton, Division of Air Resources, NYSDEC Eric Wade, Division of Air Resources, NYSDEC James Quinn, Division of Environmental Remediation, NYSDEC Kelly Lewandowski, Division of Environmental Remediation, NYSDEC State Review Framework Report | New York | Page 3 ------- III. SRF Findings Findings represent EPA's conclusions regarding state performance and are based on findings made during the data and/or file reviews and may also be informed by: Annual data metric reviews conducted since the state's last SRF review Follow-up conversations with state agency personnel Review of previous SRF reports, Memoranda of Agreement, or other data sources Additional information collected to determine an issue's severity and root causes There are three categories of findings: Meets or Exceeds Expectations: The SRF was established to define a base level or floor for enforcement program performance. This rating describes a situation where the base level is met and no performance deficiency is identified, or a state performs above national program expectations. Area for State Attention: An activity, process, or policy that one or more SRF metrics show as a minor problem. Where appropriate, the state should correct the issue without additional EPA oversight. EPA may make recommendations to improve performance, but it will not monitor these recommendations for completion between SRF reviews. These areas are not highlighted as significant in an executive summary. Area for State Improvement: An activity, process, or policy that one or more SRF metrics show as a significant problem that the agency is required to address. Recommendations should address root causes. These recommendations must have well-defined timelines and milestones for completion, and EPA will monitor them for completion between SRF reviews in the SRF Tracker. Whenever a metric indicates a major performance issue, EPA will write up a finding of Area for State Improvement, regardless of other metric values pertaining to a particular element. The relevant SRF metrics are listed within each finding. The following information is provided for each metric: Metric ID Number and Description: The metric's SRF identification number and a description of what the metric measures. Natl Goal: The national goal, if applicable, of the metric, or the CMS commitment that the state has made. Natl Avg: The national average across all states, territories, and the District of Columbia. State N: For metrics expressed as percentages, the numerator. State D: The denominator. State % or #: The percentage, or if the metric is expressed as a whole number, the count. State Review Framework Report | New York | Page 4 ------- Clean Water Act Findings CWA Element 1 Data Finding 1-1 Meets or Exceeds Expectations Summary NYSDEC maintains complete discharge monitoring report (DMR) data in the national data system (ICIS-NPDES). Explanation Data entered into ICIS for DMRs is generally complete. Metric lb2 indicates that 99.7% of expected DMRs for major facilities were received and entered into ICIS- NPDES during the fiscal year. This is above the national goal of 95%. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # lb 2 DMR entry rate for major facilities >= 95% 96.8% 14,170 14,213 99.7% State response Noted. Recommendation N/A. State Review Framework Report | New York | Page 5 ------- CWA Element 1 Data Finding 1-2 Area for State Improvement Summary Some data were not entered timely or accurately into the national data system and two required elements were not reported at all. Explanation For metric lb 1, although NYSDEC maintains complete information on permit limits and discharge monitoring reports in ICIS-NPDES, the state is not entering application receipt dates into the data system. As a result, this causes permits to be classified as expired as opposed to being classified as administratively continued after their expiration date, even if an application for renewal was submitted. NPDES authorities are required to enter application receipt dates into the data system so that permit statuses can be accurately maintained. For metric 2b, 27 (67.5%) of 40 files reviewed had data that were accurately reflected in the national data system. The review found that, in many cases, NYSDEC does not enter informal actions such as Notices of Violations for major permittees into the national data system. During the data metric analysis, it was found that NYSDEC had not been loading inspections and enforcement actions into the national data system for a majority of FY' 16. The data were subsequently loaded into the data system after the SRF data freeze date. EPA Region 2 reconstructed the data provided by NYSDEC and recalculated the relevant metrics in order to accurately represent program performance throughout FY' 16. EPA Region 2 is aware via discussions with NYSDEC staff that part of the data management issue relates to NYSDEC's computer system and the challenges of querying separate internal databases that are maintained by different departments. Relevant metrics Metric ID Number and Description Natl Goal Natl State Avg N State D State % or # lbl Permit limit rate for major facilities >= 95% 91.1% 263 317 83.0% 2b Files reviewed where data are accurately reflected in the national data system 100% 27 40 67.5% State response NYSDEC contends that a 100% permit limit rate for major facilities is achieved in ICIS and that permit application receipt dates is not relevant to tracking permit limit rates. NYSDEC maintains reporting and enforcement State Review Framework Report | New York | Page 6 ------- on limit rates using ICIS-NPDES independent of application receipt information. For metric 2b, NYSDEC also notes that changes were required in 2016 to data entry schema by EPA-ICIS staff to allow transfer of inspection batch data during 2016 that delayed entry of some inspection data by NYSDEC. NYSDEC has updated plans for entry of the DOW inspection database to ICIS and is routinely uploading inspections to ICIS-NPDES on a monthly basis. In relation to computer resources and data management and transfer, NYSDEC is undertaking efforts with New York State Office of Information Technology Services (NYSITS) to update several data management and transfer systems and allow collection of inspection records electronically to meet the e-Reporting Rule requirements for submission of inspection data. NYSDEC has a preliminary goal to update this information as of 2020 to comply with e-Reporting Rule requirements. NYSDEC acknowledges that DOW Water Compliance System (WCS) for inspection data tracking is an antiquated system no longer fully supported by NYSITS and requiring significant updates to comply with e-Reporting Rules. Evaluation and modernization of NYSDEC computer systems requires involvement by other NYS agencies and sufficient funding. While projects are on-going to address the items discussed above, NYSDEC lacks control for projects and funds to commit to specific actions and timeframes. See State Response for Finding 3-3. DEC will include provisions for entry of NOVs in the SEV entry pilot subject to similar limitations. Recommendation 1. EPA Region 2 recommends that NYSDEC evaluate and modernize its computer systems used for data management so that it is accessible by relevant departments/staff Within 90 days of finalization of the report, NYSDEC shall inform EPA of any plans for modernizing its computer system if its evaluations support doing so. 2. NYSDEC shall begin reporting application receipt dates for Major facilities to the national data system (ICIS-NPDES) on a quarterly basis beginning in March 2018. 3. Within 180 days of finalization of this report, NYSDEC shall develop and submit a plan for the pilot program focused on the identification and reporting of a subset of informal actions State Review Framework Report | New York | Page 7 ------- generated by the Central Office. NYSDEC shall begin implementation of the pilot program upon receiving EPA comment. Progress will be tracked on a quarterly basis as part of the SNAP process. 4. Within 30 days of completing Recommendations 2 and 3, NYSDEC management shall issue a directive to affected staff describing the new procedures, and share a copy of this directive with EPA Region 2. 5. At the time of FY' 18 data verification, NYSDEC's Director of the Division of Water shall submit a memo to EPA Region 2 certifying that the pilot program has been implemented, that subsequent data were entered in accordance with the plan, and that all verified data are complete. If deemed necessary, this certification process shall be repeated the subsequent year. In addition, EPA Region 2 shall review metric 2b and informal action counts as part of the annual data metrics for FY' 18 to confirm completion of this recommendation. In the event that the data metrics do not show conclusive progress, EPA Region 2 shall request that NYSDEC submit a subset of files to EPA Region 2 for review. State Review Framework Report | New York | Page 8 ------- CWA Element 2 Inspections Finding 2-1 Meets or Exceeds Expectations Summary NYSDEC meets some inspection coverage commitments. Explanation Metrics 5al and 5b 1 show that NYSDEC inspected 245 NPDES majors and 516 NPDES non-majors with individual permits. NYSDEC exceeded the national goal for each of these metrics, as only 168 NPDES majors and 254 NPDES non-majors with individual permits were scheduled for inspection in FY'16 under NYSDEC's Compliance Monitoring Strategy (CMS) plan. Metrics 4a4, 4a5 and 4al0 show that NYSDEC inspected 38 major CSOs, at least 3 SSOs, and 183 medium and large NPDES CAFOs. NYSDEC exceeded the national goal for each of these metrics, as only 12 major CSOs, 3 SSOs and 105 medium and large NPDES CAFOs were scheduled for inspection in FY'16 under NYSDEC's CMS plan. Relevant metrics _ . . iI al , Natl State State State Metric ID Number and Description Natl Goal . ^ Avg N D % or # 5a 1 Inspection coverage of NPDES 100%of state n/ . 6 , 51.9% 245 168 146.0% majors* CMS plan 5b 1 Inspection coverage of NPDES non- 100% of state majors with individual permits* CMS plan Z J' /o 4a4 Major CSO inspections 100% of state 0 _0/ /-ta fp i " jo 12 J16. t/o CMS plan 4a5 S SO inspections 100% of state 0 /-^TV rr*\ -t ~ J-"- *5 IUU /O CMS plan 4al0 Medium and large NPDES CAFO 100% of state 1C, ln. inspections CMS plan " 183 105 174 3/o * calculated using data updated after the SRF data freeze date State response Noted. Recommendation N/A. State Review Framework Report | New York | Page 9 ------- CWA Element 2 Inspections Finding 2-2 Area for State Attention Summary NYSDEC did not meet inspection coverage commitments for Phase I and IIMS4 inspections, stormwater construction inspections or industrial stormwater inspections. Explanation Metrics 4a7, 4a8 and 4a9 show that NYSDEC conducted 30 (37.5%) of 80 Phase I & IIMS4 audits or inspections, 71 (42.8%) of 166 industrial stormwater inspections, and 214 (25.5%) of 839 Phase I and II stormwater construction inspections. NYSDEC did not meet the national goal for each of these metrics, as these metrics did not meet 100% of the CMS plan requirements for FY' 16. Shortfalls are acknowledged on an annual basis as NYSDEC makes commitments to meet state priorities while making efforts to meeting CMS goal. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 4a7 Phase I & IIMS4 audits or 100% of state 30 80 37.5% inspections CMS plan 4a8 Industrial stormwater inspections 100% of state CMS plan - 71 166 42.8% 4a9 Phase I and II stormwater 100% of state 214 839 25.5% construction inspections CMS plan State response NYSDEC inspection work planning continues to prioritize municipal infrastructure, sewage discharge from wet weather events, and Major facilities. New York State has allocated record amounts of grants to deal with municipal infrastructure and wet weather issues that will leverage additional municipal funds in these areas. NYSDEC has the responsibility to monitor and carefully direct these funds in the core areas which will continue to require an emphasis on identified priorities over storm water facilities. As part of EPA/NYSDEC Performance Partnership Grants (PPG) planning, DEC will re-examine if CMS flexibilities can be utilized to address CMS goals and will further clarify details our CMS reporting to discuss and clarify differences in the state's goals from CMS guidance. In addition, DEC will continue to work with EPA thru work sharing inspection planning to have EPA target areas that don't fit DEC priorities and compliance CMS goals. State Review Framework Report | New York | Page 10 ------- Recommendation During the 2018 CMS process, NYSDEC shall propose a plan for meeting all of the goals of the 2018 CMS by December 31, 2017. State Review Framework Report | New York | Page 11 ------- CWA Element 2 Inspections Finding 2-3 Area for State Attention Summary Inspection reports sometimes lack information sufficient to determine compliance and are not consistently completed in a timely manner. Explanation Metric 6a shows that 54 (88.5%) of the 61 inspection reports reviewed were complete and sufficient to determine compliance. During the review it was found that some inspection reports contain only short narrative descriptions that lack sufficient detail to substantiate violations. Agencies are allowed to establish their own methods for completing inspection reports, but the quality and content of the written inspection reports must meet the requirements listed in the NPDES Compliance Inspection Manual. In Round 2, EPA Region 2 required that NYSDEC inspectors substantiate their inspection reports with justification for their ratings and follow the Technical & Operational Guidance Series 1.4.2. In order to improve inspection quality, NYSDEC should reference Chapter 2 Section G of the NPDES Compliance Inspection Manual, Interim Revised Version, January 2017. Metric 6b shows that 39 (84.8%) of the 46 inspection reports reviewed were finalized and transmitted within the prescribed 30-day timeframe. The timeframes for finalization and transmission of the reports reviewed by EPA ranged from 0 days to 585 days. Due to state policy, a number of reconnaissance inspection reports and site visit and/or complaint responses remain internal and are not transmitted to the facilities. The inspection reports that fell within this category were considered timely. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 6a Inspection reports complete and sufficient to determine compliance at the facility 100% - 54 61 88.5% 6b Inspection reports completed within prescribed timeframe 100% - 39 46 84.8% State response NYSDEC will review recommendations and guidance on completeness and timeliness with staff including issuance of a memo on the importance of timely inspection entry and response. NYSDEC has entered into a 5-year contract with SUNY Morrisville to provide inspector training with an emphasis on treatment technology and operations skills. Furthermore, the Certification of Compliance (CCF) was State Review Framework Report | New York | Page 12 ------- developed following the previous SRF and has improved completeness of inspection response and follow-up but has not been in use for entire SRF period. NYSDEC is expanding use of the CCF to address additional compliance items beyond inspections. These items coupled with an updated municipal inspection form will improve completeness and timeliness of inspection reporting. Recommendation N/A. State Review Framework Report | New York | Page 13 ------- CWA Element 3 Violations Finding 3-1 Meets or Exceeds Expectations Summary Compliance determinations made by NYSDEC are generally accurate in cases where there is sufficient documentation. Explanation Metric 7e shows that 53 (86.9%) of 61 files reviewed had accurate compliance determinations. While this is below the national goal of 100%, EPA Region 2 determined that in cases where there was sufficient supporting documentation, NYSDEC's compliance determinations were generally accurate. Issues with documentation and descriptive information is covered by Finding 2-2. As such, this metric meets or exceeds expectations. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State State N D % or # 7e Inspection reports reviewed that led to an accurate compliance determination 100% - 53 61 86.9% State response Noted. Recommendation N/A. State Review Framework Report | New York | Page 14 ------- CWA Element 3 Violations Finding 3-2 Area for State Attention Summary NYSDEC's non-compliance and SNC rates are among the highest in the nation. Explanation Metric 7dl shows that 280 (88.3%) of 317 major facilities were reported to have DMR violations. This is above the national average of 73.3%. Metric 8a2 shows that 79 (24.0%) of 329 major NPDES facilities were in SNC during the review year. This is above the national average of 20.3%. NYSDEC falls in the top 30% of states with the highest non-compliance and SNC rates. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 7dl Major facilities in noncompliance - 73..3% 280 317 88.3% 8a2 Percentage of major facilities in SNC - 20.3% 79 329 24.0% State response This metric strictly examines non-compliance and SNC instances while failing to account for response or weighting of significance for data points examined. NYSDEC is the leading or one of the leading users of ICIS for data entry and SPDES covered facilities in ICIS-NPDES which provides for increased data collection to register non-compliance. In addition, the metric does not reflect some of non-compliance resolution or subsequent error correction. As shown in the NYSDEC SPDES Compliance and Enforcement Annual Report (dated October 1, 2016) for SFY 2015/16 and documented annually in this report prepared under the PPG, NYSDEC collects over 500,000 data points on discharge monitoring reports (DMRs). This data often reflects multiple sampling events as only one data point so represents even more total measures of compliance. This report documents an overall compliance rate of this data around 97% which is similar to other recent years. Over the past 18 months, NYSDEC has aggressively implemented NetDMR for electronic data reporting and approximately 85% of individual SPDES facilities are now using NetDMR for data submittal. NYSDEC is continuing to push implementation and will expand reporting to general permit facilities as well. With use of NetDMR, NYSDEC has noted more timely reporting and a significant reduction in keypunch error. State Review Framework Report | New York | Page 15 ------- The tools of NetDMR that can flag errors for permittees during entry will also reduce false SNC as errors in reporting are immediately corrected. NYSDEC believes the transition from paper submittal, multiple handlers, and keypunch data entry to direct submittal reduced false noncompliance beginning at the end of 2016 and has since improved completeness and quality of DMR data significantly. NYSDEC agrees that identification of SNC and noncompliance is an important metric to allow for appropriate follow-up. Recommendation N/A. State Review Framework Report | New York | Page 16 ------- CWA Element 3 Violations Finding 3-3 Area for State Improvement Summary NYSDEC does not identify SEVs. Explanation During the review, EPA Region 2 identified 8 SEVs in the files that should have been entered into ICIS-NPDES. Because NYSDEC does not identify and report SEVs, there are no data available to determine accuracy or timeliness of SNC identification and reporting at major facilities. EPA Region 2 recognizes that NYSDEC had a plan to start entering SEVs in response to Round 2, but was not able to implement the pilot due to implementation challenges with the Sewage Pollution Right to Know Act. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 8b Single-event violations accurately identified 0/ 0/ ' lUU/o - U o U/o as SNC or non-SNC 8c Percentage of SEVs identified as SNC 0/ 0/ , i 1 , ¦ f 'i'+' A 00 /o ~ 000 /o reported timely at major facilities 7a 1 Number of major facilities with single event ^ violations State response The entry of SEV and NOV (Finding 1-2) information represents a significant increase of data entry and management resources that have not been included in program development. While accessibility of this data is a worthy goal for transparency, the re-direction of resources targeted for other compliance and enforcement activities to meet this goal will significantly impact other efforts. NYSDEC will include measures during PPG work plan development and reporting to begin to address this finding. DEC efforts to complete a pilot project for SEV entry has been impacted by the State's implementation of our Sewage Pollution Right to Know Act (SPRTK) which requires expeditious reporting of sewage discharges to NYSDEC and the public and utilizes staff and skills necessary for SEV entry. Pending resolution of an update to SPRTK in 2018 and the PPG work planning process, DEC include efforts to advance a pilot for SEV entry. State Review Framework Report | New York | Page 17 ------- During implementation of a pilot SEV, NYSDEC will assess a finite number of appropriate SEVs to target but will limit overall pilot scope and full implementation to a limited, target set of SEVs. Any pilot will target identification and entry of some SEVs but will not include follow-up activities such as resolution and reporting while the resource impact of entry, follow-up, and reporting is considered. To address areas for improvement on NOV (Finding 1-2) and SEV entry, DEC proposes a meeting with EPA ICIS staff to determine if data entry schema can be developed to allow DEC to develop batch entry and updating of NOV and SEV information. Pending the ability to develop batch entry schema, the proposed meeting, and PPG work planning, DEC will develop a proposal to utilize batch entry to further a pilot project on NOV and SEV entry. Recommendation 1) Within 180 days of finalization of the report, NYSDEC shall develop and submit a plan for a pilot program focused on the identification and timely reporting of SEVs that NYSDEC has identified as high priority into ICIS.NYSDEC shall begin implementation upon receiving EPA comment. 2) SEV data entry will be added as a discussion item during quarterly SNAP meetings and EPA Region 2 will provide SEV data management training if requested. 3) EPA shall work with NYSDEC following the conclusion of the pilot program to ensure that reporting is extended to include all SEVs in the future. 4) EPA Region 2 will verify data entry as part of the annual data metrics for FY' 18 and FY' 19 to confirm completion of this metric. State Review Framework Report | New York | Page 18 ------- CWA Element 4 Enforcement Finding 4-1 Meets or Exceeds Expectations Summary Enforcement responses typically return violators to compliance. Explanation Metric 9a shows that a significant majority (38 of 38, or 94.7%) of enforcement responses returned or will return facilities in violation to compliance. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State State N D % or # 9a Percentage of enforcement responses that return or will return source in violation to compliance 100% - 36 38 94.7% State response Noted. Recommendation N/A. State Review Framework Report | New York | Page 19 ------- CWA Element 4 Enforcement Finding 4-2 Area for State Attention Summary Enforcement responses do not always address violations in an appropriate manner. Explanation Metric 10b shows that 35 (87.5%) of the 40 enforcement responses reviewed addressed violations in an appropriate manner. During the review, EPA Region 2 identified several instances where informal responses were taken where a formal response was warranted. All SNC violations should be addressed in an appropriate manner with an enforcement response that reflects the nature and severity of the violation. Unless there is a supportable justification, enforcement responses should be formal actions which return permittees to compliance. When formal enforcement action is not taken, there should be a written record that clearly justifies why the alternative action is more appropriate. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 10b responses reviewed that address violations in 1AA0/ 1A , lUU/o - 3.5 4U o/.D/o an appropriate manner State response New York, like the other Northeastern states has some of the oldest infrastructure in the country. The SNC rate can be dominated by municipal facilities reflecting this infrastructure. Addressing SNC through formal enforcement is a complex and time consuming process including identifying funding, obtaining municipal government approval, and entry into Orders on Consent in conjunction with project planning and design. While DEC strives to resolve SNC within EPA guidelines, this can often not be routinely done in a timely and appropriate manner when major municipal infrastructure is involved. Over the last few years, New York State and municipalities in the State have spent or designated billions of dollars for municipal projects to improve compliance and will continue to address this historical issue. NYSDEC will review TOGS 1.4.2 SPDES Compliance and Enforcement to emphasize violation and response guidance with DOW and OGC staff via an updated compliance/enforcement training. NYSDEC will develop a plan to update past Compliance Training Programs and will complete training for staff. During the PPG work planning and reporting process, NYSDEC will include details on these efforts. State Review Framework Report | New York | Page 20 ------- Recommendation N/A. State Review Framework Report | New York | Page 21 ------- CWA Element 4 Enforcement Finding 4-3 Area for State Attention Summary NYSDEC does not always respond to NPDES violations timely. Explanation For metric lOal, ICIS-NPDES indicated that action was taken to address SNC in only 8 (50%) of 16 cases. Per the NPDES Enforcement Management System (EMS), formal enforcement should occur at facilities in SNC prior to the second official QNCR unless there is supportable justification for an alternative action. EPA Region 2 recognizes that all of the facilities that did not have actions taken in a timely manner were facilities that have been discussed on the quarterly Significant Noncompliance Action Program (SNAP) meetings. All of the facilities have had a complex history which require local government review as well as identification of procurement and funding to allow the local government to enter into an enforcement agreement. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 10a 1 Major facilities with timely action as 0/ .. .... . . a. /o Iz.O/o o 16 3U.U/0 appropriate* * calculated using data updated after the SRF data freeze date State response See response to finding 4-2. This continues to be a problem Nationally for timely action. NYSDEC and EPA have entered into a Memorandum of Understanding for the Significant Noncompliance Action Program (SNAP) meetings to address Major facilities in SNC. The SNAP process is successful in tracking status of SNC and assisting in timely action to address SNC. As part of the PPG planning and reporting, NYSDEC will continue to emphasize the use of SNAP to address Major facility SNC. As a follow-up to quarterly SNAP meetings, NYSDEC routinely provides an update to DOW and OGC staff on required actions and timeframe via a summary memo. NYSDEC will expand the use of the enforcement summary memo to include direct contact with OGC and DOW staff as another follow-up to emphasize commitments to timely and appropriate action. State Review Framework Report | New York | Page 22 ------- Recommendation EPA Region 2 will continue to work with NYSDEC through the SNAP process to support and enhance timely responses to SNC at Major facilities. State Review Framework Report | New York | Page 23 ------- CWA Element 5 Penalties Finding 5-1 Meets or Exceeds Expectations Summary NYSDEC documents payment of penalty in the case files. Explanation In all 16 enforcement files reviewed, EPA Region 2 found verification of penalty collection. In almost all instances, evidence of penalty collection was available via cancelled check, receipt, and/or reference to payment of the check in the transmittal letter. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 12b Penalties collected 100% - 16 16 100% State response Noted. Recommendation N/A. State Review Framework Report | New York | Page 24 ------- CWA Element 5 - Penalties Finding 5-2 Area for State Improvement Summary NYSDEC does not consistently document economic benefit or the rationale for the difference between initial penalty calculation and final penalty. Explanation For metric 11a, only 2 (12.5%) of the 16 penalty calculations reviewed included economic benefit. Violators of the CWA are likely to have obtained an economic benefit as a result of delayed or avoided pollution control expenditures during the period of non-compliance. The objective of the economic benefit calculation is to deter non-compliance by placing violators in the same financial position as they would have been if they had complied on time. For metric 12a, the initial penalty differed from the final in 7 files, but only 2 (28.6%) included documentation of the rationale for the difference. After review of the penalty documentation, it does not appear that NYSDEC is implementing the March 2014 memo titled "Instructions: DEC Penalty Calculation and Adjustment Form for Delegated / Approved Federal Programs." Typically, penalties were calculated in accordance with Technical and Operational Guidance Series (TOGS) 1.4.2 and documentation is available, except where expedited enforcement occurs (e.g. short form orders for DMR non-submittal, CAFO BMP Initiative, MSGPs). Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , _T n. Goal Avg N D % or # 11a Penalty calculations reviewed that consider 1AA0/ , ., .. .0/ . . . ., . . . lUU/o - 2 16 Iz.j/o and include gravity and economic benefit 12a Documentation of the difference between _ ,n/ initial and final penalty and rationale 0 0 State response The Office of General Counsel has conducted additional training on penalty calculations and appropriate use of penalty calculation sheets. Trainings were conducted with an emphasis on the March 2014 memo from then General Counsel, Ed McTiernan. The Office of General Counsel is also training new attorneys, on the need to utilize the penalty calculation sheets and factors to use, including policies developed by DEC. With staff all over the state, it is hard to have a centralized State Review Framework Report New York Page 25 ------- location or person able to review all penalties to ensure compliance with all guidance, policies, facts and the life for all enforcement matters. The Office of General Counsel will continue with trainings and updating policies as needed. NYSDEC will review TOGS 1.4.2 penalty guidance with DOW staff to provide clarification on calculating a penalty for case referral and addressing economic benefit calculation requirements. NYSECL and TOGS guidance typically allow a sufficient penalty to deter noncompliance without inclusion of economic benefit calculations by DOW staff. In the interest of settling the case and considering ability to collect penalties, effort to calculate economic benefit is not always a worthwhile use of resources. DOW will provide guidance and language to utilize by DOW staff to address consideration of economic benefit in preparing a penalty calculation to accompany case referral. Recommendation 1) Within 90 days of finalization of this report, EPA Region 2 will work with NYSDEC to improve the existing penalty calculation sheets to provide for documentation of the appropriate consideration of economic benefit. These penalty calculation sheets are to be included as a mandatory portion of the penalty documentation. 2) Within 120 days of the finalization of this report, NYSDEC shall submit an updated SOP to EPA Region 2 providing for (a) the appropriate documentation of economic benefit calculations (b) documentation of the rationale for excluding economic benefit where applicable and (c) appropriate documentation of the rationale for any difference between the initial and final penalty. NYSDEC will finalize and begin to implement the SOP within 30 days of receipt of Region 2's comments. 3) Following the conclusion of FY' 19, EPA Region 2 shall select a random subset of penalty files to be submitted by NYSDEC for review. EPA Region 2 will review the files to ensure that the SOP has been implemented and that subsequent penalty actions have been completed in accordance with the SOP. State Review Framework Report | New York | Page 26 ------- Clean Air Act Findings CAA Element 1 Data Finding 1-1 Area for State Improvement Summary Minimum data requirements (MDRs) are not entered timely and MDRs for TVACCs are not entered accurately. Explanation Timeliness of MDR entry Metric3a2shows that just 2 (25%) of 8 HPV determinations were reported timely. Metric 3b 1 shows that 362 (48%) of 754 compliance monitoring MDRs were reported timely in ICIS-Air. Metric 3b2 shows that 62 (57.9%) of the 107 stack tests reviewed were reported timely. Metric 3b3 shows that 16 (25.4%) of 63 enforcement MDRs were reported timely, compared to the national goal of 100% Accuracy of MDR entry Metric 2b shows that just 12 (32.4%) of the 37 files reviewed had accurate MDR data in ICIS-Air. These accuracy issues were largely related to Title V Annual Compliance Certification Reviews. EPA Region 2 found that the TVACC review dates entered into ICIS-Air matched the TVACC due date in the NYSDEC database rather than the day that the TVACC was reviewed by NYSDEC in 15 of 21 cases. Additionally, there were 12 cases in the selected files in which TVACCs were reported to have no deviations, although deviations were clearly marked on the reports. CAA section 503(b)(2) requires permittees to periodically (but no less than annually) certify that the facility is in compliance with applicable requirements of the permit, and to promptly report any deviations from permit requirements to the permitting authority. These deviations are then required to be reported in the national data system. "Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 2b Accurate MDR data in ICIS-Air 100% - 12 37 32.4% 3a2 Timely reporting of HPV determinations 100% 7.8% 2 8 25.0% State Review Framework Report | New York | Page 27 ------- 3b 1 Timely reporting of compliance monitoring MDRs 100% 80.9% ;<.: "4 4X 3b2 Timely reporting of stack test dates and results 100% 77.1% (¦: lo" 3b3 Timely reporting of enforcement MDRs 100% 77.2% l<> 25 4"., State response NYSDEC acknowledges the Title V Annual Compliance Certification 'review date' is a data reporting option that is currently unavailable to field staff in our AFS system. DAR will request programming changes be made to correct the issue. Recommendation 1) Within 30 days of finalization of this report, EPA Region 2 shall work with NYSDEC to clarify the MDRs, and determine how the MDR data flows from the NYSDEC database into ICIS-Air. 2) Within 90 days of finalization of this report, NYSDEC will develop procedures to ensure that TVACC reviews and deviations are accurately entered into the national data system and share a copy with EPA Region 2. NYSDEC shall begin to implement these procedures immediately after receiving comment from EPA Region 2. 3) Within 120 days of finalization of this report, NYSDEC shall issue a memorandum to staff reiterating the importance of timely and accurate data entry, citing the appropriate policies and procedures for the specific areas cited in this report and share a copy with EPA Region 2 to confirm resolution of the action item. 4) Within 120 days of finalization of this report, NYSDEC will correct the MDR data discrepancies identified in the FY' 16 data and shall inform EPA Region 2 when it has been completed. 5) Following the conclusion of FY' 18, EPA Region 2 will review a subset of files to assure that MDR data are accurately reflected in the national data system, with a focus on TVACC reviews. 6) EPA Region 2 will review the data metrics for timely reporting as part of the annual data metrics for FY' 18 to confirm completion of this recommendation and discuss additional remedies with NYSDEC if timeliness remains a concern. State Review Framework Report | New York | Page 28 ------- CAA Element 2 Inspections Finding 2-1 Meets or Exceeds Expectations Summary NYSDEC meets its Full Compliance Evaluation (FCE) commitments. Explanation Metric 5a and 5b show that NYSDEC inspected 258 (99.6%) of 259 majors and mega-sites scheduled for inspection in FY'16 and 129 (97.0%) of 133 SM-80s. In all cases, these results are in line with the National Goals and far exceed the National Averages. Relevant metrics _ . . iI al , Natl State State State Metric ID Number and Description Natl Goal . __ . Avg N D % or # 5a FCE coverage: majors and mega-sites 100% of 84 -% 258 259 (J(J 6% commitment 5b FCE coverage: SM-80s 100% of J% m ,33 ,7 0% commitment State response Development of our yearly CMS plan and continued commitment to meeting FCE goals remains a priority for NYSDEC. Recommendation N/A. State Review Framework Report | New York | Page 29 ------- CAA Element 2 Inspections Finding 2-2 Meets or Exceeds Expectations Summary Inspection report documentation is complete and sufficient to determine compliance. Explanation Metrics 6a and 6b indicate FCE elements were documented and sufficient documentation was provided to determine compliance in all 33 (100%) files reviewed. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 6a Documentation of FCE elements 100% - 33 33 100% 6b Compliance monitoring reports (CMRs) or facility files reviewed that provide sufficient documentation to determine compliance of the facility 100% - 33 33 100% State response NYSDEC believes inspections and a consistent field presence is the best way to maintain compliance with Title V and SM80 sources. Recommendation N/A. State Review Framework Report | New York | Page 30 ------- CAA Element 2 Inspections Finding 2-3 Area for State Improvement Summary Title V annual compliance certifications (TVACCs) are not always reviewed. Explanation For metric 5e, 323 (82.34%) of 392 TVACCs were reported as reviewed by NYSDEC during FY' 16, as compared to the national goal of 100%. However, the file review revealed that there is no data entry field available in the state data system for review dates, and file documentation does not indicate if and when TVACCs are reviewed. Relevant metrics As indicated in Finding 1-1, EPA Region 2 determined that TVACC review dates are not being accurately entered into ICIS. Due to this discovery, it is not possible to confidently determine NYSDEC's performance for metric 5e. Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 5e Review of Title V annual compliance certifications 100% 69.6% 323 392 82.3% State response NYSDEC has reviewed and made determinations for 100% of our TVACC's. We agree that data entry and current system limitations need to be improved to reflect our compliance achievements. Recommendation Following the conclusion of FY' 18 and implementation of the procedures recommended in Finding 1-1, EPA Region 2 will review the annual data metrics to verify that NYSDEC is following proper procedures for TVACC reviews. If corrected data do not indicate that TVACC reviews are being completed as required, EPA Region 2 and NYSDEC will discuss a resolution mechanism at that time. State Review Framework Report | New York | Page 31 ------- CAA Element 3 Violations Finding 3-1 Meets or Exceeds Expectations Summary NYSDEC makes accurate compliance and HPV determinations Explanation Metrics 7a and 8c show that NYSDEC made accurate compliance and HPV determinations in all cases reviewed. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 7a Accuracy of compliance determinations 100% - 36 36 100% 8c Accuracy of HPV determinations 100% - 13 13 100% State response NYSDEC continues to give priority to returning major sources to compliance. Recommendation N/A. State Review Framework Report | New York | Page 32 ------- CAA Element 3 Violations Finding 3-2 Area for State Attention Summary HPVs are not always identified timely Explanation For metric 13, 6 (75%) of 8 HPVs were identified timely. The Timely and Appropriate Enforcement Response to High Priority Violations Policy revised in 2014 requires that HPVs be identified within 90 days of the compliance monitoring activity or discovery action that first provides reasonable information indicating a violation of federally-enforceable requirements. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 13 Timeliness of HPV determinations 100% 83.6% 6 8 75.0% State response NYSDEC will continue to strive to report HPV's to ICIS within the specified timeframe. We will also provide training for new staff in HPV policy implementation. Recommendation Based on the recommendations set forth in Finding 1-1, EPA Region 2 will review this metric as part of the annual data metrics following the conclusion of FY'18. State Review Framework Report | New York | Page 33 ------- CAA Element 4 Enforcement Finding 4-1 Meets or Exceeds Expectations Summary Enforcement responses are timely and appropriate Explanation For metric 10a, EPA Region 2 found that all 9 formal enforcement responses reviewed were timely in addressing HPVs or having a case development and resolution timeline in place. For metric 10b, 7 (100%) of enforcement responses taken on HPVs reviewed were appropriate and consistent with HPV policy. Relevant metrics Natl Natl Metric ID Number and Description _ , . Goal Avg State State State N D % or # 10a Timeliness of addressing HPVs or alternatively having a case development and 100% - resolution timeline in place. 9 9 100% 10b Percent of HPVs that have been have been addressed or removed consistent with the HPV 100% - Policy. 7 7 100% 14 HPV Case Development and Resolution Timeline In Place When Required that 100% Contains Required Policy Elements 6 6 100% State response NYSDEC understands the importance of addressing and resolving HPV violations in a timely manner. Recommendation N/A. State Review Framework Report | New York | Page 34 ------- CAA Element 4 Enforcement Finding 4-2 Area for State Attention Summary Enforcement responses generally return facilities to compliance. Explanation For metric 9a, EPA Region 2 found that 13 (81.3%) of 16 formal enforcement responses reviewed included required corrective action that would return facilities to compliance in a specified time frame. This is below the national goal of 100%. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ . Goal Avg N D % or # 9a Formal enforcement responses that include required corrective action that will return the facility to compliance in a specified time frame 100% - 13 16 81.3% or the facility fixed the problem without a compliance schedule. State response DEC takes appropriate corrective action with all facilities that have violations in NYS. We will continue to ensure compliance requirements are up to date in the future. We thank EPA for bringing this issue to our attention. Recommendation N/A. State Review Framework Report | New York | Page 35 ------- CAA Element 5 Penalties Finding 5-1 Meets or Exceeds Expectations Summary NYSDEC consistently documents collection of all penalties. Explanation For metric 12b, all 9 files reviewed included documentation establishing that the assessed penalty had been paid. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State N D State % or # 12b Penalties collected 100% _ 9 9 100% State response NYSDEC recognizes the importance of accurately recording penalties and resolutions for violations. We will continue training new staff in these areas Recommendation N/A. State Review Framework Report | New York | Page 36 ------- CAA Element 5 Penalties Finding 5-2 Area for State Improvement Summary NYSDEC does not consistently document economic benefit or the rationale for the difference between initial penalty calculation and final penalty. Explanation For metrics 11a and 12a, 2 (18.2%) of 11 penalty calculations reviewed included economic benefit and 4 (44.4%) of 9 documented the rationale for penalty reduction. Three of the 11 penalty calculations reviewed identified the economic benefit as "unknown." Violators of the CAA are likely to have obtained an economic benefit as a result of delayed or avoided pollution control expenditures during the period of non- compliance. The objective of the economic benefit calculation is to deter non-compliance by placing violators in the same financial position as they would have been if they had complied on time. According to the Revisions to the Policy Framework for State EPA Enforcement Agreements (1993), agencies should document penalties sought, including the calculation of gravity and economic benefit where appropriate. The CAA Stationary Source Civil Penalty Policy (1991) also specified that to achieve deterrence, a penalty should not only recover any economic benefit of noncompliance, but also include an amount reflecting the seriousness of the violation, which is the gravity component. A number of penalty documents were missing during the file review, leaving EPA Region 2 unable to review the documents. This finding continues from Round 2 and was previously addressed with a memo to staff reaffirming the state penalty policy requirements, including gravity and economic benefit calculations, appropriate documentation of initial and final penalties and using the BEN model or other method that produces results consistent with national policy. This recommendation does not appear to have resolved the finding. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State D State % or # 11a Penalty calculations reviewed that document gravity and economic benefit 100% - 2 11 18.2% 12a Documentation of rationale for difference between initial penalty calculation and final 100% - 4 9 44.4% penalty State Review Framework Report | New York | Page 37 ------- State response NYSDEC agrees that documentation of penalty calculations could be improved in our files. We will continue to do our best to instruct and train field staff to promote accurate documentation of enforcement determinations. Recommendation 1) Within 90 days of finalization of this report, EPA Region 2 will work with DEC to develop or improve a template to be included as part of the penalty documentation that will provide for the appropriate consideration of gravity and economic benefit. 2) Within 120 days of the finalization of this report, NYSDEC shall submit an updated SOP to EPA Region 2 providing for (a) the appropriate documentation of economic benefit calculations (b) documentation of the rationale for excluding economic benefit where applicable and (c) appropriate documentation of the rationale for any difference between the initial and final penalty. NYSDEC will finalize and begin to implement the SOP within 30 days of receipt of Region 2's comments. 3) EPA shall provide economic benefit training by September 30, 2018. NYSDEC shall ensure that all appropriate staff have been required to attend, and shall provide EPA Region 2 with a list of attendees following the conclusion of the training. 4) Following the conclusion of FY' 19, EPA Region 2 shall select a random subset of penalty files to be submitted by NYSDEC for review. EPA Region 2 will review the files to ensure that the SOP has been implemented and that subsequent penalty actions have been completed in accordance with the SOP. State Review Framework Report | New York | Page 38 ------- Resource Conservation and Recovery Act Findings RCRA Element 1 Data Finding 1-1 Area for State Improvement Summary NYSDEC does not always maintain complete and accurate data in the national system (RCRAinfo). Explanation Metric 2b shows that mandatory data were accurate and complete for 29 (82.9%) of 35 files reviewed. This is below the national goal of 100%. The review found that one (1) file was missing the SV, SNC, informal and formal enforcement action and penalty dates; three (3) facility names in the national system did not match the enforcement file names; one (1) NOV date was not entered; and one (1) NOV was entered as a letter notifying the facility of pending enforcement. 118 long standing secondary violators were identified. This finding continues from Round 2 and had previously been addressed through a memo to staff reaffirming RCRAinfo data entry and quality control requirements and training on RCRAinfo. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State State N D % or # 2b Complete and accurate entry of mandatory data 100% - 29 35 82.9% 2a Long-standing secondary violators 118 State response NYSDEC acknowledges that continued attention in this area is needed. However, NYSDEC believes the existing procedures put in place statewide pursuant to SRF Round 2 were quite comprehensive and continue to be appropriate. NYSDEC will reaffirm these procedures with staff and provide enhancements to assure more accurate MDR data entry including a strategy for closing longstanding open violations. Recommendation 1) Within 90 days of finalization of the report, NYSDEC shall update their existing SOP on MDR data entry to ensure accuracy of data entered. The updated SOP shall include a strategy for closing long-standing secondary violators. At this time, NYSDEC will provide a copy of these procedures to EPA Region 2 and will reissue and implement the updated procedures after receiving comments from EPA Region 2 State Review Framework Report | New York | Page 39 ------- 2) EPA Region 2 will send NYSDEC a list of long standing secondary violators from RCRAinfo and NYSDEC will close them out as appropriate by September 30, 2018. Following the conclusion of FY' 18, EPA Region 2 will review the annual data metrics to determine resolution of this finding. State Review Framework Report | New York | Page 40 ------- RCRA Element 2 Inspections Finding 2-1 Meets or Exceeds Expectations Summary NYSDEC meets two year TSDF and annual LQG inspection commitments and inspection reports are timely and sufficient to determine compliance. Explanation For metric 5a, NYSDEC and EPA jointly inspected all 25 (100%) operating TSDFs within a two-year period as required. Metric 5b shows that NYSDEC also exceeded the 20% annual inspection coverage requirement for LQGs by conducting compliance evaluation inspections (CEIs) at 172 (21.29%) of 808 facilities identified as LQGs during the 2015 report cycle. Metrics 6a and 6b show that 32 (94.1%) of 34 inspection reports reviewed were complete and sufficient to determine compliance and were completed within the 150-day policy prescribed by the Hazardous Waste Civil Enforcement Response Policy (2003). Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description (ia| Ayg N 5:t^ear inspection coverage of operating ^ TSDFs (combined with EPA) 5b Annual inspection coverage of LQGs (with 2() ()% n 1% m 8()8 n 3% EPA) 6a Inspection reports complete and sufficient to 1AA0/ 10/ , . ,. lUU/o - j2 34 V4.I /o determine compliance 6b Timeliness of inspection report completion 100% - 32 34 94.1% State response Finding noted. Recommendation N/A. State Review Framework Report | New York | Page 41 ------- RCRA Element 2 Inspections Finding 2-2 Area for State Attention Summary NYSDEC has not inspected all LQGs in the past five years. Explanation Metric 5c shows that NYSDEC conducted CEIs at 626 (77.5%) of 808 facilities identified as LQGs during the 2015 state report cycle. While the figure falls well short of the National Goal of 100% for this metric, a closer examination of the list of LQGs that were not inspected reveals that a large number of the LQGs were not consistently classified as LQGs over the five-year period. Given that the CMS requirement is to inspect each LQG once every five years, it is unreasonable to expect NYSDEC to have inspected all generators that have only been LQGs for a short time. Considering these fluctuations in the LQG universe, NYSDEC is still performing above the national average of 54.8%. While EPA understands that the LQG list is constantly changing, there were a number of LQGs that were consistently classified as such that were not inspected. To the extent that there are generators that remain LQGs over the long-term and are not inspected every five years, the issue can be addressed through close coordination between EPA Region 2 and NYSDEC. By reviewing the list of LQGs that have not been inspected in the past four years on an annual basis, the two agencies can ensure that each facility that should be inspected in the upcoming year is inspected by either EPA Region 2 or NYSDEC. Metrics 5d and 5el-5e4 are not considered in this review because NYSDEC does not have an alternative CMS for RCRA. They are included below for informational purposes and demonstrate that NYSDEC conducts a substantial number of inspections beyond TSDFs and LQGs. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State N State State D % or # 5c Five-year inspection coverage of LQGs 100% 54.8% 626 808 77.5% 5d Five-year inspection coverage of active SQGs - 9.9% 802 5,912 13.60% 5el Five-year inspection coverage of active conditionally exempt SQGs 912 5e2 Five-year inspection coverage of active transporters 53 State Review Framework Report | New York | Page 42 ------- 5e3 Five-year inspection coverage of active non-notifiers 5e4 Five-year inspection coverage of active sites not covered by metrics 2c through 2f3 State response NYSDEC acknowledges the tracking difficulties presented by a fluctuating universe of LQGs. DEC looks forward to close coordination between EPA Region 2 to ensure that each facility that should be inspected in the upcoming year is inspected by either EPA Region 2 or NYSDEC. Recommendation N/A. State Review Framework Report | New York | Page 43 ------- RCRA Element 3 Violations Finding 3-1 Meets or Exceeds Expectations Summary NYSDEC generally makes accurate compliance and SNC determinations. Explanation Metric 7a shows that NYSDEC made accurate compliance determinations in 32 (94.1%) of the 34 files reviewed. EPA Region 2 found that there were two instances in which SNC determinations were warranted but not made. Metric 8c shows that all 15 SNC determinations reviewed were appropriate. Relevant metrics . Irv.. . _ . . Natl Natl State State State Metric ID Number and Description _ , . __ Goal Avg N D % or # 7a Accurate compliance determinations 100% - 32 34 94.1% 8c Appropriate SNC determinations 100% - 15 15 100% State response Finding noted. Recommendation N/A. State Review Framework Report | New York | Page 44 ------- RCRA Element 3 Violations Finding 3-2 Area for State Improvement Summary NYSDEC does not make SNC determinations timely. Explanation Metric 8b shows that 27 (67.5%) of 40 SNC determinations made by NYSDEC in FY' 16 were timely. Per the Hazardous Waste Civil Enforcement Response Policy, state agencies should make and report SNC designations within 150 days of the first day of the inspection. While this metric has improved since the Round 2 SRF review, it continues to be well below both the National Goal and National Average. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State N D State % or # 8b Timeliness of SNC determinations 100% 84.2% 27 40 67.5% State response NYSDEC acknowledges this metric has improved since the Round 2 SRF review, yet accepts the review finding of timely SNC determinations below the National Goal. NYSDEC believes the cause is not systemic but the result of personnel challenges during the review period. NYSDEC believes the SOP defined in the April 26, 2013 memo to NYSDEC Regional RCRA Managers and RCRA Inspectors, shared with EPA, will be sufficient to achieve compliance with the National Goal for this metric over the next review period. NYSDEC will reaffirm these procedures with staff. Recommendation 1) Within 90 days of finalization of the report, NYSDEC shall submit a copy of the SOP defined in the April 2013 memo to NYSDEC Regional RCRA Managers and RCRA Inspectors for EPA review and comment. NYSDEC shall finalize, reissue and implement the SOP within 30 days of receipt of Region 2's comments. 2) Following the conclusion of FY' 18, EPA Region 2 will review the annual data metrics to determine resolution of this finding. In the event that timeliness does not improve, EPA Region 2 will work with NYSDEC to identify additional steps that should be taken in order to meet this goal. State Review Framework Report | New York | Page 45 ------- RCRA Element 4 Enforcement Finding 4-1 Meets or Exceeds Expectations Summary NYSDEC makes timely and appropriate enforcement actions and enforcement actions return violators to compliance. Explanation For metric 9a, EPA Region 2 reviewed 24 enforcement responses that addressed violations and found that all of them (100%) returned violators to compliance. For metric 10b, EPA Region 2 found 24 facilities with violations and NYSDEC took appropriate action to address violations in 95.8% (23) of all cases. Overall, the national data system indicated that NYSDEC took timely enforcement to address SNC in 22 (81.5%) of 27 cases in FY' 16, exceeding the National Goal of 80% for metric 10a. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State N D State % or # 9a Enforcement that returns violators to 100% 24 24 100% compliance 10a Timely enforcement taken to address SNC 80% 86.4% 22 27 81.5% 10b Appropriate enforcement taken to address violations 100% - 23 24 95.8% State response Finding noted. Recommendation N/A. State Review Framework Report | New York | Page 46 ------- RCRA Element 5 Penalties Finding 5-1 Meets or Exceeds Expectations Summary NYSDEC consistently documents collection of all penalties. Explanation For metric 12b, all 13 files reviewed included documentation establishing that the assessed penalty had been paid. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State N D State % or # 12b Penalties collected 100% - 13 13 100% State response Finding noted. Recommendation N/A. State Review Framework Report | New York | Page 47 ------- RCRA Element 5 Penalties Finding 5-2 Area for State Improvement Summary Penalty calculations do not always consider gravity and economic benefit, and provided rationales for differences between initial penalty calculation and final penalty do not always follow guidance. Explanation For metric 1 la, 7 (46.7%) of 15 penalty calculations reviewed included gravity and economic benefit. Violators of RCRA are likely to have obtained an economic benefit as a result of delayed or avoided pollution control expenditures during the period of non-compliance. The objective of the economic benefit calculation is to deter non-compliance by placing violators in the same financial position as they would have been if they had complied on time. For metric 12a, EPA Region 2 found that 12 (92.3%) of 13 penalties reviewed provided a rationale for difference between initial penalty calculation and final penalty. While the majority of penalty files included rationales, EPA Region 2 found that a number of the rationales were not within the guidelines established in the RCRA Civil Penalty Policy. Per the State Enforcement Agreement between EPA and NYSDEC, it is required that the state document any increase or decrease in penalty collected from the penalty assessed, and states that NYSDEC agrees to use the penalty policy as stated in the RCRA Civil Penalty Policy and the subsequent amendment. This finding continues from Round 2 and was previously addressed with a memo to staff reaffirming the RCRA Civil Penalty Policy requirements. This recommendation does not appear to have resolved the finding. Relevant metrics Metric ID Number and Description Natl Goal Natl Avg State State N D State % or # 11a Penalty calculations include gravity and economic benefit 100% - 7 15 46.7% 12a Documentation on difference between initial and final penalty 100% - 12 13 92.3% State response For metric 11a, NYSDEC partially accepts this finding. Gravity is always considered. Economic benefit has not been included in some penalty calculations, for example, where relatively small penalty State Review Framework Report | New York | Page 48 ------- amounts were sought, which would not indicate a need to include economic benefit. In addition, properly evaluating this factor is extremely complex, and it brings limited benefit for deterrence and bringing facilities into compliance. Given tight resources and overall prioritization, NYSDEC believes that calculating economic benefit is not warranted in most cases. Where economic benefit considerations would generate a significantly different result through the enforcement process, NYSDEC would be willing to undertake the process and assess the related penalties. EPA has offered to work with the DEC to develop a template which may allow the economic benefit calculation to be more efficiently performed, and DEC welcomes this assistance. For metric 12a, NYSDEC accepts this finding. Management had previously directed NYSDEC staff to complete a final penalty calculation worksheet in cases where there is any significant difference between initial and final penalties. As these cases relate to legal settlements, NYSDEC attorneys working on RCRA enforcement were again sent the prior issued memo on October 20, 2017, and the issue was also addressed in person by the General Counsel in a Fall 2017 Office of General Counsel training conference. NYSDEC Office of General Counsel will continue to review staffs compliance with this requirement. Recommendation 1) Within 60 days of finalization of this report, EPA Region 2's RCRA program manager will set up a meeting with NYSDEC to provide examples of appropriate consideration of economic benefit, and documentation of rationales for any differences between initial and final penalty calculation. This will include examples applicable to the penalty files that were included in this review. 2) Within 90 days of finalization of this report, EPA Region 2 will work with DEC to create a template to be included as part of the penalty documentation and will provide for the appropriate consideration of gravity and economic benefit. 3) Within 120 days of the finalization of this report, NYSDEC shall submit an updated SOP to EPA Region 2 providing for the use of the template which will focus on (a) the appropriate documentation of economic benefit calculations (b) documentation of the rationale for excluding economic benefit where applicable and (c) appropriate documentation of the rationale for any difference between the initial and final penalty. NYSDEC will finalize and begin to implement the SOP within 30 days of receipt of Region 2's comments. 4) EPA shall provide economic benefit training by September 30, 2018. NYSDEC shall ensure that all appropriate staff have been State Review Framework Report | New York | Page 49 ------- required to attend, and shall provide EPA Region 2 with a list of attendees following the conclusion of the training. 5) Following the conclusion of FY' 19, EPA Region 2 shall select a random subset of penalty files to be submitted by NYSDEC for review. EPA Region 2 will review the files to ensure that the SOP has been implemented and that subsequent penalty actions have been completed in accordance with the SOP. State Review Framework Report | New York | Page 50 ------- Appendix I - Clean Air Act File Selection File Selection Process In order to assess whether FRVs and HPVs were being missed during FCEs, a majority of the selected files included at least one FCE. Steps were taken to ensure a mix of CMS classifications and NY Regions with a minimum number of stack tests, informal actions, formal actions, penalties and FCEs with no subsequent enforcement. File Selection Table ICIS-Air # City Universe FCE Stack Tests Failed Stack Test Completed FRV HPV Informal Enforcement Actions Formal Enforcement Actions Civil Penalties NY0000005094200106 PLATTSBURGH Major X X NY0000001472800185 RONKONKOMA Major X X NY0000007315600030 WARNERS Major X NY0000002630100005 LONG ISLAND CITY Major X NY0000002610300158 BROOKLYN Major X X NY0000006215600018 WEST WINFIELD Major X X NY0000009291200059 NORTH TONAWANDA Major X NY0000006223000004 WEST CARTHAGE Minor X NY0000008261400205 ROCHESTER Mega-Site X NY0000007355800084 FULTON Minor X NY0000003334200271 MONTGOMERY Minor X NY0000007313600002 BALDWINSVILLE Major X NY0000002630600067 JAMAICA Major X X X X NY0000009143000122 CHEEKTOWAGA Minor X X NY0000008462400159 BATH Major X X NY0000005534400001 HUDSON FALLS Major X X X X NY0000005414000235 BALLSTON SPA Minor X NY0000003334600011 NEWBURGH Major X X X X 18,000.00 NY0000001282000553 ISLAND PARK Major X X X X X 200.00 NY0000002620401499 NEW YORK Minor X X X NY0000002620300047 NEW YORK Major X X X X NY0000003551200041 PEEKSKILL Major X X 5,000.00 NY0000001472600130 NORTHPORT Major X X X X X 100.00 NY0000001472200107 PORT JEFFERSON Major X X X X 1,700.00 NY0000002630401496 LONG ISLAND CITY Minor X X X NY0000003392400173 ORANGEBURG Major X X 5,000.00 NY0000003134600019 POUGHKEEPSIE Major X X X X X 5,000.00 NY0000002620300001 NEW YORK Major X X X X NY0000002620400694 NEW YORK Minor X X State Review Framework Report | New York | Page 51 ------- NY0000001472203647 YAPHANK Minor X NY0000009291100113 NIAGARA FALLS Major X NY0000001479900082 FARMINGDALE Minor X NY0000005169900003 CONSTABLE Major X NY0000005520500005 GLENS FALLS Major X X X 25,700.00 NY0000005533400006 CENTER FALLS Major X X X 18,000.00 NY0000002620200106 NEW YORK Minor X X X X 7,500.00 NY0000002610100391 BROOKLYN Minor X X NY0000004010100070 ALBANY Major X X X X 30,000.00 NY0000006301600048 UTICA Major X X X State Review Framework Report | New York | Page 52 ------- Appendix II - Clean Water Act File Selection File Selection Process Files were randomly selected using procedures that ensure a minimum number of inspections, violations, SEV, SNC, informal actions, formal actions, penalties and inspections with no subsequent action. Steps were taken to ensure a mix of facility and permit types and NY Regions. File Selection Table Permit ID City Universe Inspections Violation Informal Formal Penalties Identified SEV SNC Actions Actions NY0023523 ATLANTIC BEACH Major X X NY0024449 AVON Major X X NY0024414 VESTAL Major 6 X X X NY0028410 BUFFALO Major X X X NY0029807 CANASTOTA Major X X NY0020389 CATSKILL Major X X X NY0200867 STATEN ISLAND (SUBDIVISION) Major X X X NY0003344 FULTON Major X X NY0005037 RAVENA Major X X X X 118,000.00 NY0020354 LAWRENCE Major X NY0027766 LEWISTON Major X X NY0008605 WATERFORD Major X X X X NY0026174 STATEN ISLAND Major X X X 350,000.00 NY0021822 OYSTER BAY Major X X X 16,573.75 NY0001643 ROCHESTER Major X X NY0007226 SOUTH GLENS FALLS Major X X 1,000.00 NY0002330 WATKINS GLEN Major X X X 27,500.00 NY0025984 WATERTOWN Major X X X NY0261254 WATERVLIET Minor X NYAE00357 LANSING Minor X NYR10Z659 STATEN ISLAND (SUBDIVISION) Minor X 6,000.00 NY0007161 ROCK CITY FALLS Minor X X NYA000290 SYRACUSE Minor X X 9,000.00 NYR20A235 DEPEW Minor X NYA000626 FORT ANN Minor X 14,000.00 NYR00E840 GREENWOOD LAKE Minor X X 2,000.00 NYU900473 CONCORD, TOWN OF Minor X 250.00 NY0247189 LEROY Minor X NY0030261 LIBERTY Minor X X X NY0004588 MOUNT VERNON Minor X NYR20A240 NEWBURGH Minor X 22,100.00 State Review Framework Report | New York | Page 53 ------- NY0002810 BATAVIA Minor X X NYU200321 BRONX Minor X 10,000.00 NY0023922 PATCHOGUE Minor X X NY0033588 SHARON SPRINGS Minor X X X 20,000.00 NY0022110 SHERRILL Minor X X NYR10T509 MONROE Minor X 2,000.00 NYAE01563 LOWVILLE Minor X X 1,250.00 NYR00F744 ALBANY Minor X 3,750.00 NY0000850 ROME Minor X X X State Review Framework Report | New York | Page 54 ------- Appendix III - Resource Conservation and Recovery Act File Selection File Selection Process Files were randomly selected using procedures that ensure a minimum number of inspections, violations, SNC, informal actions, formal actions, penalties, and inspections with no subsequent action. Steps were taken to ensure a mix of facility types and NY Regions. File Selection Table RCRAID City Universe Inspections Violations SNC Informal Actions Formal Actions Penalties Reported NYD986893600 AMITYVILLE Transporter X X 22,500 NYD012969796 CHESTER LQG X X X 10,000 NYD986872869 COHOES TSDFLQG Transporter X X X X NYD002234003 MCCONNELLSVILLE LQG X X X X X 4,800 NYD059647412 ROCHESTER SQG X X X X NYR000145672 JAMESTOWN LQG X X X X X 15,249 NYR000151613 WARWICK LQG X X X X X 12,000 NYD000379248 BUFFALO Other X X X X X 34,498 NYD002080034 WATERFORD TSDF LQG X X X X X 562,500 NYD095587655 SYRACUSE CESQG X NYD033800301 LIVERPOOL CESQG X NYR000202515 LARCHMONT CESQG X NY0214020281 FORT DRUM LQG X NYD981182215 BROOKLYN LQG X NYR000103093 EDGEWOOD CESQG X NYD063654271 SANBORN LQG X NYD987036290 PAINTED POST LQG X NYD987024213 ALBANY LQG X NYD980779540 WEST VALLEY TSDF LQG X NYD986899045 JOHNSTOWN LQG X NYN008008955 ROCHESTER CESQG X 17,679 NYD002083954 WATERVLIET LQG X 7,500 NYR000209361 ROCHESTER LQG X 18,000 NYD057381535 BROOKLYN LQG X 29,149 NYD075814202 WHITESBORO LQG X NYR000209387 BLAUVELT Other X NYR000012294 QUEENSBURY SQG X X X NYD986869675 AUBURN SQG X X X NYD986911998 ARCADE SQG X X X NYD981182223 WYANDANCH Other X X X State Review Framework Report | New York | Page 55 ------- NYR000105668 FLUSHING LQG X X X NYR000015974 FLUSHING SQG X X X NYN008028839 CHAMPLAIN CESQG X X X NYD068296839 BROOKLYN LQG X 20,000 NYD982535809 SUFFERN CESQG X X 500 State Review Framework Report | New York | Page 56 ------- |