Rosendale dodges EPA bullet by changing wastewater plant project designation

What do you do if you’re a municipality trying over a period of years to get funding for a major infrastructure project, and a regulatory agency changes the rules in the middle of the game, then sends you a letter chastising you for your lack of compliance? Well, maybe that’s when you need to do a little goalpost-moving of your own.

The Town of Rosendale recently found that out as it moved closer to its longtime target of completing the update of its aging wastewater treatment plant (WWTP). The town’s Water and Sewer Department identified the need for the project a long time ago and began consulting with engineers to come up with a scope of work. It was back in 2011 that the town board got itself designated Lead Agency for State Environmental Quality Review (SEQR) of the project. In its standard Environmental Assessment Form review procedure, the board made a determination that the proposed project would not have a significant adverse effect on the environment. In SEQR-speak, that means that it’s categorized as a Type II Action.

But grant monies were slow in coming, despite the devastation caused in Ulster County by Hurricane Irene and Tropical Storm Lee later that same year. It wasn’t until Superstorm Sandy ravaged New York City in late 2012 that the state government began to get its act together with regard to creating a storm relief and damage prevention program. The Governor’s Office of Storm Recovery was established in June 2013, and the New York Rising Community Reconstruction Program in April of that year. By September, the Town of Rosendale had been declared eligible to receive $3 million in NY Rising money.

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By the time Rosendale could apply for some of that funding to replace some of the antiquated equipment in the WWTP, the clock on the original plan had run out, and it had to go through the environmental assessment process all over again. On February 1 of this year, according to a resolution passed unanimously at the April 5 Town Board meeting, “the Town Board reestablished itself as Lead Agency for the Project and the Project was determined to not have a significant adverse effect on the environment.”

But in the meantime, some rules and definitions within New York State’s Environmental Conservation Law seem to have gotten “amended,” and somehow, at some level of the regulatory bureaucracy, the WWTP project got reinterpreted as an Unlisted Action – which means that the town must conduct a full long-form SEQR, with work on the renovation project already well underway. One week after the Lead Agency reiteration, the town received an Administrative Compliance Order from the federal Environmental Protection Agency alleging that the town had violated the Clean Water Act “due to inability to comply with the conditions and limitations of its New York State Department of Environmental Conservation (NYSDEC) State Pollutant Discharge Elimination System (SPDES) Permit.”

“We got advice from our attorney saying that we can change it from Unlisted to Type II,” town supervisor Jeanne Walsh explained at the Town Board meeting. “It will not significantly impact the environment.” Such an action would, with the stroke of a pen, bring the town back into compliance with the terms of its SPDES permit. So the board voted to change the classification back to Type II, with a resolution that says, “this determination supersedes all previous projects under SEQR.”

Canny maneuver, Rosendale. If only we could all make our problems go away by redefining them. As the political pundits sitting in their think tanks are fond of observing, “Framing is everything.”

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