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

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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.
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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."
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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

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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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

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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

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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

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Recommendation N/A.
State Review Framework Report | New York | Page 21

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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