Sec. 598.13. Delivery prohibition

(a) Circumstances and process for imposing a delivery prohibition.

(1) Tier 1 conditions.

(i) When the department finds that a tier 1 condition exists at a facility, the department will affix a tag on the fill pipe of the relevant tank system.

(ii) At the time that it affixes a tag, the department will provide to the facility operator, if one is present, a written notification of the imposition of the delivery prohibition that will include the finding of the relevant condition(s) at the facility. The department will then send the written notification to the facility via certified mail to the correspondence address listed in the current facility registration or license within five business days following the time that the tag is affixed to the tank system.

(iii) The following are tier 1 conditions:

(a) A tank system is known to be releasing a hazardous substance. If the source of the release cannot be determined upon inspection, then all tank systems at the facility that are probable sources of the release will be tagged.

(b) An underground tank system does not have one or more of the following:

(1) secondary containment equipment required under sections 599.4 and 599.14 of this Title;

(2) spill and overfill prevention equipment required under section 599.17 of this Title;

(3) corrosion protection equipment required under section 599.3(d), or 599.13(b) of this Title; or

(4) leak detection equipment required under section 599.5 or 599.15 of this Title.

(2) Tier 2 conditions.

(i) When the department finds that a tier 2 condition exists at a facility, the department may affix a tag on the fill pipe of the relevant tank system.

(ii) Prior to affixing a tag, the department will send a written statement to the facility informing the facility of the relevant condition(s). The department will send the statement via certified mail to the correspondence address listed in the current facility registration.

(iii) At the time that it affixes a tag, the department will provide to the facility operator, if one is present, a written notification of the imposition of the delivery prohibition that will include the finding of the relevant condition(s) at the facility. The department will then send the written notification to the facility via certified mail to the correspondence address listed in the current facility registration or license within five business days following the time that the tag is affixed to the tank system.

(iv) The following are tier 2 conditions:

(a) The results of leak detection required by section 598.6(b) or (c) of this Part indicate that the tank system may be leaking a hazardous substance or would not contain a leak if one were to occur, unless the facility submits, within 10 days after receipt of the department’s statement issued pursuant to section 598.13(a)(2)(ii) of this Part, acceptable documentation to the department that demonstrates that the relevant tank system is not leaking or has been appropriately repaired.

(b) With respect to the operation of an underground tank system, the facility has not demonstrated within 30 days following receipt of the department’s statement issued pursuant to subparagraph (ii) of this paragraph compliance with the following requirements:

(1) hazardous substance transfer requirements under section 598.4 of this Part;

(2) cathodic protection monitoring requirements under section 598.6(a) of this Part; or

(3) leak detection operating requirements under section 598.6(b) or (c) of this Part.

(c) With respect to the operation of an aboveground tank system, one or more of the following is missing and the facility has not documented to the department that the missing component has been put in place within 30 days after receipt of the department’s statement issued pursuant to subparagraph (ii) of this paragraph:

(1) secondary containment equipment required under section 599.9 of this Title;

(2) spill and overfill prevention equipment required under section 599.17(b) of this Title;

(3) corrosion protection equipment required under section 599.8(d) of this Title; or

(4) leak detection equipment required under section 599.10 of this Title.

(3) The department may issue the written finding, consistent with subparagraph (1)(ii) or (2)(iii) of this subdivision, that a tier 1 or tier 2 condition exists, but withhold the imposition of the delivery prohibition for a period that may not exceed 180 days, where there is no evidence that the tank system is leaking and imposing the delivery prohibition would jeopardize public health or safety.

(b) Prohibitions.

(1) Delivery prohibition. No person may deliver or cause the delivery of a hazardous substance to any tank system to which a tag is affixed. No person may accept a delivery of a hazardous substance to any tank system to which a tag is affixed.

(2) Tag tampering and removal prohibition. Unless authorized by the department, no person may tamper with or remove a tag affixed to a tank system or cause such tampering or removal.

(c) Notifications.

(1) Notice of delivery prohibition to facility and carrier. The presence of a tag affixed to the fill pipe of a tank system constitutes notice of the delivery prohibition.

(2) Notification to carrier by facility. After the department affixes a tag to the fill pipe of a tank system, the facility must, prior to the next scheduled delivery of hazardous substance, inform all carriers that normally deliver to the tank system that delivery is prohibited. The facility must retain a record of any correspondence regarding the delivery prohibition.

(d) Termination of delivery prohibition.

(1) A delivery prohibition may be terminated by the department on its own initiative, or following the conclusion of review of compliance submissions or an expedited hearing.

(i) Department initiative. If the department terminates a delivery prohibition on its own initiative, the department will send a written notification to the facility confirming that the prohibition has been terminated. The department will send the notification via certified mail to the correspondence address listed in the current facility registration or license.

(ii) Review of compliance submissions.

(a) A facility may, at any time, submit information to the department demonstrating that the facility is in compliance or has corrected the condition(s) that prompted the department to impose the prohibition.

(b) Upon submission of information to the department, the department will designate an individual to review submissions and provide a written decision as set forth below.

(c) The designated individual will provide a written decision to the facility within five business days after the department receives the facility’s submission. If the designated individual decides to deny termination of the delivery prohibition, the decision will set forth the reasons for the denial including a description of any deficiency in the information supplied by the facility.

(d) The decision of the designated individual will constitute a final agency determination subject to challenge under article 78 of the Civil Practice Law and Rules.

(e) The department will retain the record generated during the staff review process for one year.

(iii) Expedited hearing.

(a) Not later than 15 days after a tag has been affixed to a tank fill port, the department will provide the facility with an opportunity to present proof on the limited issue of whether the department incorrectly determined that any tier 1 or tier 2 conditions existed at the facility. Notice of such hearing will be sent together with the written notification of any delivery prohibition issued pursuant to subparagraph (a)(1)(ii) or (2)(iii) of this section.

(b) The department will bear the burden of proof at the expedited hearing.

(c) The failure of the facility to appear at the time and place scheduled for the expedited hearing will constitute a waiver of the opportunity for an expedited hearing.

(d) The expedited hearing will be held before a department hearing officer. The hearing officer will make a report to the commissioner setting forth the appearances, the arguments presented at the hearing, findings of fact and conclusions of law, and a recommended determination for consideration by the commissioner.

(e) The hearing officer may, to the extent practicable and without prejudice to the facility’s right to have a timely expedited hearing, consolidate the expedited hearing regarding the existence of tier 1 or 2 conditions with any hearing regarding the facility’s violation of other provisions of the Environmental Conservation Law, or any order, rule, or regulation issued or promulgated thereunder.

(f) The hearing officer will have the powers and authority provided to a presiding officer under the State Administrative Procedure Act.

(g) The expedited hearing will be recorded. The hearing officer will cause a typed transcript of the record to be prepared for the department’s files, but will not wait for the preparation of this transcript before making a report to the commissioner, if so requested by the facility or the commissioner.

(h) The hearing officer will issue his or her report within 30 days after the close of the hearing, unless the parties agree to an extension of this time.

(2) Removal of a tag. Within two business days after a decision by the department that all tier 1 and tier 2 conditions at a facility have been resolved, the department will remove, or authorize the removal of, the tag.