Sec. 598.14. Release reporting, investigation, confirmation and corrective action

(a) Reporting of releases.

(1) The reporting requirements of this section apply to the following persons:

(i) an owner or operator;

(ii) any person in a contractual relationship with an owner or operator who inspects, tests or repairs any portion of a facility which is or was used for the storage of hazardous substances; and

(iii) any employee, agent or representative of any of the persons listed in subparagraph (i) or (ii) of this paragraph who has knowledge of a release.

(2) Any person required to report under paragraph (1) of this subdivision must report the release in accordance with section 597.4 of this Title.

(3) Notwithstanding the provisions of paragraph (1) of this subdivision, employees of an owner or operator may report releases pursuant to a facility-specific centralized reporting protocol, provided that such reporting protocol is in writing and has been incorporated into the facility's spill prevention report prepared pursuant to section 598.1(k) of this Part. Independent consultants and contractors are not considered to be employees of the facility for the purposes of this section.

(4) A person is not required to report a spill of a reportable quantity to secondary containment pursuant to paragraph (2) of this subdivision if all of the following conditions are met:

(i) the secondary containment system meets the requirements of sections 599.9 and 599.17 of this Title;

(ii) there is control over the spill or overfill, and it is completely contained within 24 hours;

(iii) the total volume of the spill or overfill is recovered or accounted for; and

(iv) the spill will not result in any of the conditions listed in section 597.4(b)(1)(ii) of this Title.

However, in the event that such a spill or overfill is not completely contained within 24 hours after it occurs, or its total volume is not accounted for within that time, such spill or overfill must then be reported within 24 hours after its occurrence. If the secondary containment system does not prevent a reportable quantity of the hazardous substance from reaching the environment, the spill or overfill must be reported as soon as the substance reaches the environment.

(b) Reporting of suspected or probable spills.

(1) The owner or operator of a facility shall notify the department of a suspected or probable release of a hazardous substance unless an investigation shows that a release has not occurred or does not need to be reported under subdivision (a) of this section. Reports must be made to the DEC hotline within 24 hours after discovery of any of the following conditions:

(i) test, sampling, or monitoring results from a release detection method that indicate a release may have occurred;

(ii) unusual operating conditions such as the erratic behavior of product dispensing equipment, the sudden loss of product from a tank system, an unexpected presence of water in a tank, or the physical presence of a hazardous substance or an unusual level of vapors on a site that are of unknown origin;

(iii) impacts in the surrounding area, such as evidence of hazardous substances or resulting vapors in soils, basements, sewer or utility lines, or nearby surface waters; or

(iv) any other conditions or indications of a suspected release.

(2) If within 24 hours after discovery of a suspected release it is confirmed that a release has not occurred, then such release is not required to be reported.

(c) Emergency response.

(1) In addition to the requirements of paragraph (2) of this subdivision, the owner or operator must take immediate action upon discovery of a release to protect human health, safety and the environment. Immediate actions which may be necessary include, but are not limited to, signaling alarms, mitigation of fire and safety hazards, contacting emergency response officials, evacuation of personnel from the site, isolation of the impact zone, preventing the migration of the release and stopping, plugging or containing the release. Corrective action as specified in subdivision (e) of this section must also be undertaken to clean up and remove the released material and restore the site to protect public health, safety or the environment.

(2) It is unlawful to continue operation of a tank system where a release is occurring. If the owner or operator cannot expeditiously and permanently stop the release or further releases cannot be prevented while repairs are being made, the tank system must be emptied and the contents promptly removed to a secure tank system.

(d) Release or spill investigation and confirmation.

(1) All actual, probable or suspected releases or spills requiring reporting must be immediately investigated to determine the quantity of the release or spill and the extent of contamination and any threat to public health, safety or the environment. The investigation shall be performed at a sufficient level of detail to determine immediate and long-term steps needed for corrective action and emergency response. The owner or operator must investigate the release by one or more of the following procedures:

(i) a visual inspection to initiate immediate response;

(ii) a physical investigation which may include sampling of the soil, air or water to determine on-site and off-site impacts, hydrogeologic and atmospheric investigations, mapping of contamination, and evaluation of potential impacts on plant life, wildlife, nearby water supplies and surrounding population;

(iii) monitoring of the interstitial area between the tank and secondary system;

(iv) an inspection to determine if the tank system is tight. This may include an internal inspection, testing for structural soundness, nondestructive testing, inspection/testing of ancillary equipment or tightness testing of the tank or piping;

(v) a check of inventory records to detect discrepancies;

(vi) monitoring of observation wells; or

(vii) any other additional and further investigation which may be required by the department in order to adequately determine the cause of the release and to assess the impact of the release or spill on public health, safety and the environment.

(2) The results of the investigation must be submitted to the department within 14 days unless an alternative schedule is established by the department. Upon review of this information the department may require the collection, evaluation and submission of additional information and preparation of a response and corrective action plan.

(3) Where a release of any hazardous substance has occurred, is suspected or appears probable, the department may order the owner to inspect any tank system, location and/or associated equipment which might be the source of the actual, suspected or probable release and to test for tightness and structural soundness. If the owner fails to conduct such tests within 10 days of notification of such an order, the department may do so. The reasonable expenses of conducting such tests incurred by the department shall be paid by the owner.

(e) Corrective action.

(1) Upon completion of an investigation of an actual, probable or suspected release, the owner or operator must initiate corrective action and take other spill response actions as may be required by the department. This may include one or more of the following:

(i) removal and proper disposal of contaminated soil;

(ii) removal and recovery of free floating and dissolved hazardous substances in ground and surface waters;

(iii) removal, venting, dispersing or recovery of vapors from the soil or air;

(iv) repair or replacement of leaking equipment;

(v) improvement of storage and handling practices;

(vi) improvements to secondary containment systems;

(vii) installation of temporary or permanent water supply systems;

(viii) relocation of residents;

(ix) development of a corrective action plan; and

(x) other actions which the department may require to remediate the site in order to protect the public health, safety or environment.

(2) The owner or operator must report to the department progress on implementing the response and corrective action plan in accordance with a schedule for reporting established by the department.

(3) The requirements of this subdivision do not apply to releases from underground tank systems:

(i) identified as solid waste management units at facilities subject to corrective action pursuant to ECL article 27, title 9; or

(ii) constituting hazardous waste at a site subject to a remedial program pursuant to ECL article 27, title 13.

(f) Public participation.

(1) For each confirmed release that requires a corrective action plan, the department will provide an opportunity for public involvement by those members of the public directly affected by the release and the planned corrective action. This notice may include public notice in local newspapers, block advertisements, public service announcements, e-mail, publication in a state register, letters to individual households, or personal contacts by field staff.

(2) The department will ensure that site release information and decisions concerning the corrective action plan are made available to the public for inspection upon request.

(3) Before approving a corrective action plan, the department may hold a public meeting to consider comments on the proposed corrective action plan if there is sufficient public interest, or for any other reason.

(4) The department will provide public notice that complies with paragraph (1) of this subdivision if implementation of an approved corrective action plan does not achieve the established cleanup levels in the plan and termination of that plan is under consideration by the department.

(g) Best management practices (BMPs).

The department may require that the owner or operator of a facility prepare, submit for approval, and implement a BMP plan in the event of the following:

(1) a release which results in significant environmental impacts, including but not limited to, a violation of ambient air or water quality standards, fish kills, or damage to sensitive environmental areas; or

(2) a series of releases which indicate that a facility is not employing generally accepted engineering practices that would prevent the recurrence of such releases.