PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 570 to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, art. 23, title 17, section 3-0301(2)(a) and (m)
Subject:
Liquefied Natural Gas (LNG).
Purpose:
To establish criteria for the siting of and to require DEC permits for LNG facilities per ECL Article 23, Title 17.
Substance of final rule:
In this rulemaking the New York State Department of Environmental Conservation (DEC) adopts 6 NYCRR Part 570 to implement safe siting, operating, and transportation requirements in New York State (the State) for Liquefied Natural Gas (LNG) facilities, in accordance with Article 23, Title 17 of the Environmental Conservation Law (ECL). Adoption of Part 570 allows DEC to permit the siting, construction, and operation of LNG facilities in response to the renewed interest in locating LNG facilities (particularly heavy-duty truck fueling facilities) in the State. Part 570 also addresses the transportation of LNG and the statutory requirement that intrastate transportation occur only along approved routes. The following summarizes 6 NYCRR Part 570.
Section 570.1: INTRODUCTION
Section 570.1 sets out the general purpose, applicability, definitions, exemptions, severability, and enforcement provisions of Part 570. The purpose of this section is to ensure the orderly and efficient administration of ECL Article 23, Title 17 at LNG facilities throughout the State. Consistent with Title 17, this Part does not regulate compressed natural gas or liquefied petroleum gas. These regulations do not require permits for vehicles or vessels that are fueled by LNG but do regulate dispensing facilities (fueling stations) that store LNG.
Section 570.2: PERMIT REQUIREMENTS and APPLICATION PROCEDURES
Section 570.2 applies to the permit requirements and application procedures for LNG facilities, including an explanation of the permit application process; contents of an application; criteria for siting; permit issuance, duration and renewal; public participation guidelines; modification of permit and change of ownership; permit suspension or revocation; and permit application fees and costs. This section also outlines the required procedures to obtain a permit. This section includes an upper limit of 70,000 gallons on the total amount of LNG that will be allowed to be stored at a permitted facility.
Section 570.3: SITE INSPECTIONS, RECORDKEEPING, and TRAINING of LOCAL FIRE DEPARTMENT PERSONNEL
Section 570.3 applies to site inspections, recordkeeping, and training of local fire department personnel. Applicants for permits shall offer emergency training for local fire department staff, and such equipment and personnel as may be required. Compliance with these requirements can either be determined by DEC’s personnel or third parties contracted by DEC who are qualified to monitor compliance. This section also specifies which records must be maintained at all LNG facilities, and which must be either maintained at the facility or provided to DEC within three business days of DEC’s request.
Section 570.4: TRANSPORTATION of LNG
Section 570.4 explains the intrastate and interstate transportation requirements of LNG within the State. The regulations prohibit the intrastate transportation of LNG unless the intrastate transportation route has been certified as set forth in subdivision 570.4(a). In reviewing the requirement within the ECL for certified routes (ECL section 23-1713), the State Department of Transportation has determined that since certified routes are not established for other hazardous materials, it would be impracticable to establish certified routes for LNG from sources within the State. For that reason, intrastate transportation of LNG would not be allowed under Part 570. Consistent with ECL Article 23, Title 17, these regulations do not require certification of routes from out-of-state sources of LNG.
Section 570.5: PRE-EXISTING FACILITIES
Section 570.5 sets forth the requirement for pre-existing facilities to comply with the rules and regulations of this Part and the procedures outlined in the ECL Article 23, Title 17. There are three facilities which fit this situation: National Grid’s Holtsville and Greenpoint facilities, and Con-Edison’s Astoria plant. These facilities operate pursuant to DEC Orders issued in 1979.
Section 570.6: PERMANENT CLOSURE of OUT-OF-SERVICE LNG STORAGE TANKS
Section 570.6 establishes the requirements for the permanent closure of out-of-service LNG storage tanks, referring to engineering guidelines and procedures that must be complied with to ensure proper closure.
Section 570.7: FINANCIAL ASSURANCE
Section 570.7 states that financial assurance, the form and amount of which will be established by DEC, may be required to ensure proper closure of LNG facilities.
Section 570.8: REPORTING OF LNG SPILLS
Section 570.8 explains the requirements for reporting a spill of LNG at a permitted facility. Spills of one gallon or more, or lesser amounts that result in a fire or explosion, must be reported.
Section 570.9: EFFECT ON MORATORIUM
Section 570.9 pertains to the existence of a moratorium on the siting of LNG facilities in cities with populations of one million or more. It emphasizes that the LNG regulations will not affect any statutory moratorium. In May 2013, the moratorium was extended to April 1, 2015.
Section 570.10: REFERENCES
Section 570.10 provides a listing of reference materials that are cited in 6 NYCRR Part 570, including those that are incorporated by reference, and explains how they can be obtained for inspection and/or purchasing.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 570.1(c)(9), (d)(5), 570.2(d)(1), 570.3(a) and 570.5.
Revised rule making(s) were previously published in the State Register on
November 12, 2014.
Text of rule and any required statements and analyses may be obtained from:
Andrew English, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-7020, (518) 402-9553, email: derweb@dec.ny.gov
Additional matter required by statute:
Negative Declaration, Coastal Assessment Form, and Short Environmental Assessment Form have been completed for this rule making.
Revised Regulatory Impact Statement
Changes made to the Express Terms published with the Notice of Adoption do not require revisions to the Revised Summary of Regulatory Impact Statement that was previously published in the November 12, 2014 issue of the State Register.
Revised Regulatory Flexibility Analysis
1. Effect of Rule
The LNG regulations will apply statewide except where new facilities are prohibited by law (currently in New York City). They provide opportunities for small businesses and local governments to construct and operate LNG facilities. The result will be to allow LNG to be stored and used across New York State (the State) at a time when economic conditions are creating significant demand for this alternative fuel. The primary anticipated uses of LNG are in the transportation sector (long-haul trucks) and as a source of heating fuel (space heating, steam production, and industrial uses). Construction and operation of new LNG facilities, without a permit provided by the revised proposed regulations, is prohibited under Environmental Conservation Law, Article 23, Title 17 (the LNG statute).
2. Compliance Requirements
The implementation of these regulations will not adversely affect small businesses or local governments since there are no substantive reporting or record keeping requirements for small businesses or local governments as a result of the proposed rule making. The reporting obligations contained in the regulations are derived from the LNG statute.
3. Professional Services
Professional services will be required by applicants to prepare applications for facility permits, design facility structures, ensure that all aspects of the facility are in compliance with applicable building, fire, and safety requirements, maintain the facility, and eventually close the facility. Through outreach efforts, the New York State Department of Environmental Conservation (DEC) will make information available on DEC’s web site, including answers to questions about the new regulations. Future public workshops (meetings) are anticipated to be scheduled as needed.
4. Compliance Costs
Small businesses and local governments should not incur any additional costs, either initial capital costs or annual compliance costs to comply with the proposed rulemaking beyond what are required for obtaining a permit to construct/operate and normal business costs. It is estimated that the cost to obtain a permit under these regulations would be approximately $10,000 in addition to the cost to provide specialized training to local fire departments, if needed. Permit application fees would range between $100 and $1,000. In addition DEC is authorized to recover costs from the facility to implement the program. Facilities with more than 70,000 gallons capacity would not be allowed under the revised proposed regulations.
5. Economic and Technological Feasibility
The proposed rulemaking enacts into regulation State statutory requirements. It is expected to increase economic growth throughout the State. The proposed rulemaking causes no added economic burdens and requires no additional sophisticated environmental control technology, other than that which may be required by statute and for the facility to be in compliance with existing building and fire safety standards. Accordingly, implementation of these rules will be economically and technologically feasible for small businesses and local governments.
6. Minimizing Adverse Impact
It is DEC's belief that the proposed regulations will not cause a significant economic burden to the small business community or local governments. Promulgating regulations that will establish criteria for the siting and storage of LNG facilities will enhance the State’s ability to attract the LNG industry and corporations to provide the public and business communities with an alternative (clean) fueling source. This will provide an economic growth opportunity for the State. In addition, LNG is a cleaner burning fuel, providing significant environmental benefits, and is less expensive than other fuels for uses such as space heating and steam production.
The revised proposed rulemaking does not place any additional burdens on the small business community or local governments or increase the universe of regulatory requirements applicable to the small business community or local governments beyond that which is required by the LNG statute.
Safe production, storage, utilization and transportation of LNG throughout the State will very likely produce substantial economic, environmental, and energy benefits for the entire State with the implementation of statutory requirements of the LNG statute via the promulgation of 6 NYCRR Part 570.
7. Small Business and Local Government Participation
DEC will continue to provide a statewide outreach program to regulated communities and interested parties, including small businesses and local governments. An invitation only Stakeholders Meeting was held on Wednesday, February 27, 2013 at the DEC office in Albany, New York. Persons invited to this meeting represented a broad cross section of industry representatives, public/environmental advocacy groups, utilities, and government personnel. Comments received were considered as the rulemaking documents were revised. DEC also made a presentation regarding the draft regulations at the May 22, 2013 “LNG-CNG-NGV Technical Conference,” sponsored by the New York State Department of Public Service. The conference was attended by a variety of business representatives from large and small companies.
During the proposed rule making, outreach efforts included electronic mailings to environmental groups, statewide organizations, regulated community, and other interested parties, including small businesses and local governments. In October 2013, DEC held public meetings at two locations in the State and a public hearing in Albany. During the revised proposed rule making in November 2014, DEC received comments from the public during an additional 30-day public comment period and sent electronic mailings to environmental groups, statewide organizations, regulated community, and other interested parties. DEC also posted and will continue to post relevant information about the LNG regulations, as well as the permit application process, on its website. Future DEC outreach will include contacting fire emergency response personnel regarding their time associated with training for LNG facilities.
Subdivision 570.2(h), Public Participation, states: “Any hearings, comments, or participation by federal, State or local government bodies or members of the public, relative to any permit proceedings, will be conducted in accordance with procedures established in Parts 621 and 624 of this Title.” This subdivision ensures that any hearings in connection with LNG permit applications will be conducted close to locations where proposed LNG facilities will be sited in the State.
Revised Rural Area Flexibility Analysis
1. Types and Estimated Number of Rural Areas:
This rule will apply statewide to all 44 rural counties and 71 additional rural towns.
2. Reporting, Recordkeeping, Other Compliance Requirements, and Need for Professional Services:
Professional services will be required by applicants to prepare applications for facility permits, design facility structures, ensure that all aspects of the facility are in compliance with applicable building, fire, and safety requirements, maintain the facility, and eventually close the facility. Reporting and recordkeeping requirements of the regulations are minimal, and include reporting spills at the facility and maintaining documents produced in the normal course of business.
3. Costs:
The applicant for a permit is required to offer an emergency response training program for appropriate municipal response personnel. As needed, this training will be held annually and comply with guidance provided by the New York State Fire Administrator within the Office of Fire Prevention and Control of the New York State Division of Homeland Security and Emergency Services. Costs of the initial training of firefighters will range from $1,000 to $5,000 per firefighter, depending on the number and the level of experience of the firefighters. Subsequent yearly refresher classes or training costs will range from $200 to $500, depending on the number of participants. These costs include a trainer, room, supplies, etc. Releases (i.e., vapor clouds) are addressed with fire fighting techniques. Shorter training courses use simulations to illustrate the behaviors of LNG and explain how to respond to such releases.
The 2011 New York State Energy Research and Development Authority LNG report (available on New York State Department of Environmental Conservation’s (DEC) web site) estimates that the applicant’s cost to complete the application process to apply for and receive a facility permit would be approximately $10,000. Permit application fees would range between $100 and $1,000. In addition DEC is authorized to recover costs from the facility to implement the program. Facilities with more than 70,000 gallons capacity would not be allowed under the revised proposed regulations.
4. Minimizing Adverse Impact:
It is DEC’s belief that the revised proposed regulations will not cause a significant economic burden, place any additional burdens on rural areas, or increase the universe of regulatory requirements applicable to such rural areas beyond those required by the LNG statute, Environmental Conservation Law Article 23 Title 17. In fact, safe transportation, storage and utilization of LNG throughout the State will most likely result in substantial economic, environmental, and energy benefits for the entire New York State.
5. Rural Area Participation:
DEC will continue to provide a statewide outreach program to regulated communities and interested parties, including public and private interests in rural areas. An invitation only Stakeholders Meeting was held on Wednesday, February 27, 2013 at the DEC office in Albany, New York. Persons invited to this meeting represented a broad cross section of industry representatives, public/environmental advocacy groups, utilities, and government personnel. Comments received were considered as the rulemaking documents were revised. DEC also made a presentation regarding the draft regulations at the May 22, 2013 “LNG-CNG-NGV Technical Conference,” which was sponsored by the New York State Department of Public Service. The conference was attended by a variety of business representatives from large and small companies.
During the proposed rule making, outreach efforts included electronic mailings to environmental groups, statewide organizations, regulated community, and other interested parties, including those located in rural areas. In October 2013, DEC held public meetings at two locations in the State and a public hearing in Albany. During the revised proposed rule making in November 2014, DEC received comments from the public during an additional 30-day public comment period and sent electronic mailings to environmental groups, statewide organizations, regulated community, and other interested parties, including those located in rural areas. DEC also posted and will continue to post relevant information about the LNG regulations, as well as the permit application process, on its website. Future DEC outreach will include contacting fire emergency response personnel regarding their time associated with training for LNG facilities.
Subdivision 570.2(h), Public Participation, states: “Any hearings, comments, or participation by federal, State or local government bodies or members of the public, relative to any permit proceedings, will be conducted in accordance with procedures established in Parts 621 and 624 of this Title.” This subdivision ensures that any hearings in connection with LNG permit applications will be conducted close to locations where proposed LNG facilities will be sited in the State, including any sited in rural areas.
Revised Job Impact Statement
Changes made to the Express Terms published with the Notice of Adoption do not require revisions to the Revised Job Impact Exemption Statement that was previously published in the November 12, 2014 issue of the State Register.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Introduction
On September 11, 2013, the New York State Department of Environmental Conservation (DEC) proposed the adoption of a new regulation (Part 570, “Liquefied Natural Gas,” in Title 6 of the New York Codes, Rules and Regulations (NYCRR)) to establish a permitting program for the safe siting, construction, and operation of liquefied natural gas (LNG) facilities and transportation of LNG in New York State (State). On November 12, 2014, DEC issued a revised proposed Part 570, and responses to comments received on the initial proposal. This assessment of public comments addresses comments received regarding the revisions made to the proposed regulation. Comments were also received on other general issues similar to comments received regarding the first proposal. These are not included in this assessment since they were addressed previously. Approximately 60 comment submittals were received by DEC on the revised proposal. Similar comments were combined and are addressed below. The promulgation of this regulation by DEC is authorized and required by Article 23, Title 17 of the Environmental Conservation Law (herein referred to as the “LNG law”).
Background
One of the most frequent comments received during the initial public comment period was that an upper limit should be set on the volume of LNG that can be stored at facilities. After careful consideration of the issue, DEC revised the proposed regulation to include an upper limit of 70,000 gallons as an allowable total facility capacity. As DEC gains experience with the permitting of LNG facilities, DEC may reconsider the capacity limit in subsequent revisions to Part 570.
Comments and Responses on Revisions to the Proposed Regulation
1. Multiple commenters offered support for DEC’s revised proposed regulations, which now includes a limit on total facility storage capacity of 70,000 gallons. Commenters stated their opinion that the revised regulation would put in place appropriate health and environmental safety criteria for LNG, and would enable those entities looking to build and operate LNG dispensing facilities in New York State to do so.
Response: Comment noted.
2. Multiple commenters stated their opinion that a facility storage capacity limit of 70,000 gallons is a reasonable limit for refueling stations.
Response: Comment noted.
3. Some commenters stated their opinion that there is no justification for limiting the size of the facilities and urged DEC to fulfill its obligations under Article 23, Title 17 of the Environmental Conservation Law by initiating a new rulemaking applicable to all LNG facilities including those designed to store more than 70,000 gallons.
Response: While DEC believes LNG facilities of any size can be operated safely, the revised regulation imposes a 70,000 gallon limit to recognize this volume as the point at which different requirements for large tanks/facilities are set forth in the national standard. DEC will consider modification to the facility capacity limit in a future rule making.
4. Commenters stated that the 70,000 gallon regulatory limit would be an exceedingly conservative approach representing, for example, just one day's worth of storage to meet the energy needs of a large paper mill or a cogeneration facility. One commenter pointed out that NFPA 59A provides for a 280,000 gallon maximum aggregate storage capacity for American Society of Mechanical Engineers (ASME) containers. DEC was urged to reconsider the limit so as not to hinder the development of a level playing field for diverse energy options, through which LNG can provide yet another powerful tool to help New York businesses thrive.
Response: Based on currently available information, the facilities likely to be proposed in the first five years will generally be LNG storage facilities used for vehicle fueling. Capacities of up to 70,000 gallons would be sufficient for this type of application. DEC will consider modification of the facility capacity limit in a future rule making.
5. Commenters stated that the revised proposed regulation fails to comply with the LNG statute because the 70,000 gallon facility capacity cap does not establish criteria to meet the maximum safety standard.
Response: To comply with the statutory requirement to develop a regulation for the storage of LNG, DEC has taken into account the various hazards presented by LNG, reasonable worst case scenarios, the need to establish clear and feasible permitting and operational requirements for those seeking permits, and the various options for balancing each of these sometimes competing factors. DEC believes that the NFPA standards in conjunction DEC’s permitting program and the facility capacity limit allows for facilities to safely store LNG and meet the maximum safety standard.
6. A commenter stated that the exemption in § 570.l(d)(5) should be clarified to eliminate confusing references. The commenter recommends that the exemption in § 570.1(d)(5) be rewritten as follows:
(5) A pre-existing facility may continue to operate, without the need to obtain a permit, provided that:
i. there are no design changes or operational modifications that lead to an increase in the on-site LNG facility capacity within the boundaries of the facility;
ii. a corporate officer of the owner with overall responsibility for the operation of the facility signs and submits part two of a statement of compliance (as defined in § 570.l(c)(21)) to the Department within one year of the effective date of this Part, and every five years thereafter; and
iii. the Department receives copies of any reports filed by the owner under the provisions of 16 NYCRR 259.5.
Response: DEC agrees generally with these concerns and has made appropriate modifications in the final regulation.
7. A commenter stated that the revised § 570.2(b)(13) requires applicants to submit information pertaining to property boundaries, land use, flood and population data, and current zoning classification to ensure consistency with local land-use laws. The commenter suggested that the amount, quality, and relevance of land-use data vary by municipality, county, and region. Many municipalities do not have zoning regulations, lack baseline land-use data, and/or lack the technical expertise associated with conducting the adequate level of review that the siting of a new LNG facility would entail. Therefore, the commenter recommended that DEC establish accompanying technical resources and siting criteria to allow municipalities to perform a thorough, rigorous review of proposed LNG facilities.
Response: DEC’s evaluation of whether a proposed location would be suitable for a specific LNG facility will not be dependent upon the quality or quantity of land-use data available from a municipality. DEC will determine if the siting of a proposed LNG facility would be consistent with any existing land-use requirements established by the municipality and will review any input from the municipality.
8. A commenter noted that although the revised wording of revised § 570.1(c)(4) seems to clarify that a tank trailer used for the dispensing of LNG at a refueling station would in fact constitute an LNG facility, it is not clear from DEC’s response that this applies to tank trailers that are temporarily immobile. For example, in Response 3.5.2 of the DEC’s assessment of public comment from the initial proposal, DEC seems to suggest that LNG operations that liquefy and then immediately transport LNG would not require a Part 570 permit. This ambiguity should be resolved and this potential loophole closed.
Response: Consistent with the LNG law, Part 570 distinguishes between “storage” and “LNG transportation activities.” The LNG law makes it clear that the transportation of LNG does not require a Part 570 permit but the storage of LNG or conversion back to a gas does. The revision makes it clear that a tank trailer normally used for transportation cannot be used as a de facto storage tank without a permit. This would occur if a trailer were parked (“temporarily immobile”) but used to periodically dispense LNG, rather than to continuously load or unload. If natural gas is liquefied and continuously loaded onto a trailer which is subsequently transported, an LNG facility permit is not needed, even if the loading process takes a relatively long time (e.g., more than a day). If, however, LNG was intermittently dispensed from the trailer to vehicles, a permit would be required because the trailer is being used for storage.
9. A commenter stated that the use of the words "permit" and "permittee" in § 570.3 creates confusion for owners of pre-existing facilities. To avoid this confusion, the commenter recommends a new sentence numbered as 570.3(f): "The provisions outlined in 570.3(a) through 570.3(e) do not apply to facilities that meet the definition of "pre-existing facilities" in 570.l(d)(5)."
Response: Pre-existing facilities are not permitted facilities and hence the requirements in §§ 570.3(a) through 570.3(e) do not directly apply. However, several of the substantive requirements of these provisions do currently apply to the pre-existing facilities. DEC will continue to work with pre-existing facilities to ensure that there is no duplication or conflicts between regulatory requirements and those in current or subsequent orders.
10. A commenter stated that § 570.5 (“pre-existing facilities”) should be consistent with the permitting exemption in § 570.1(d)(5) for pre-existing facilities or deleted as redundant. It appears that the provisions of 570.5 may be duplicative of the language in 570.l(d)(5); however, if DEC is intending to convey the message that DEC will consider an expansion of a pre-existing facility as long as that facility applies for a permit in advance, the commenter recommends the following modifications to the text:
§ 570.5 Pre-existing Facilities.
All pre-existing LNG facilities may continue to operate without a permit so long as the facility remains in compliance with the three provisions of § 570.l(d)(5). Any proposed design changes or operational modifications that could lead to an increase in the on-site LNG facility capacity must be authorized in advance by a permit applied for and issued pursuant to this Part.
Response: DEC has made an appropriate change in the final regulation.
11. A commenter stated that the revised draft definition of “LNG facility” should be strengthened to prevent industry attempts to avoid the 70,000 gallon storage volume limit by modifying the proposed regulation in the following manner:
“Liquefied natural gas facility” or “LNG facility” means any structure or facility group [sic] of structures that are located on one or more contiguous or adjacent properties under common control that is used to store LNG in a tank system, or other storage device or group of storage devices or to convert LNG into natural gas.”
Response: DEC has clarified the definition of LNG facility to address this concern in the final regulations.
12. A commenter recommended that § 570.1(d)(1) and § 570.1(d)(4) be further revised to state that only on-board LNG fuel tanks “used solely to power” or “used exclusively to power” an LNG-fueled vehicle or vessel are exempt. The concern was raised that DEC states in Response 4.1.2 in the initial response to comments that the exemptions provided by § 570.1(d)(1) cover the special case of vehicles or vessels that use boiled-off gas or LNG for propulsion from tanks that are otherwise intended for storage. Using boil-off gas to fuel a vessel or vehicle to transport LNG should require a permit.
Response: DEC has not made this suggested change, because the activity described would be, if ever developed and used, a transportation activity, which is excluded from permitting under the law.
13. A commenter stated that without a sufficient and reliable funding source to administer a new LNG program, and in light of findings by Comptroller DiNapoli that the DEC is already seriously underfunded, it is apparent that DEC will not be equipped to regulate the expanded development of LNG facilities in New York State. Until significant additional staff and funding is provided through fees imposed on the industry or through the State, the LNG regulatory program is illusory. In the absence of funding for enforcement, the public cannot be protected.
Response: In accordance with § 570.2(k), DEC will be able to recover all costs associated with the administration and enforcement of this Part.
14. A commenter recommends that DEC revise the current proposal’s reference to the NFPA 59A standards. While the NFPA 52 standards apply to LNG vehicle fueling systems, the NFPA 59A standards do not. As currently drafted, the proposed regulations state that all LNG facilities would be subject to applicable provisions of both the NFPA 52 and the NFPA 59A standards. This may create confusion as to which standards apply to LNG vehicle fueling systems, including potential rail and maritime fueling infrastructure.
Response: In order to eliminate any confusion, DEC has clarified the requirements of this provision in the final regulation.
15. A commenter suggests that confusion is caused for pre-existing facilities by DEC's reference to the 2013 edition NFPA 59A. The revised proposed § 570.2(d)(1) states that "All LNG facilities must comply with all applicable provisions of the August 29, 2012 (2013 edition) of NFPA 59A, "Standard for the Production, Storage, and Handling of Liquefied Natural Gas." This statement appears within revised proposed § 570.2 which is entitled "Permit Requirements and Application Procedures" - if DEC does not intend to include pre-existing facilities in this statement then the sentence should be rewritten, "All LNG facilities (except pre-existing facilities) must comply with... " to eliminate any confusion. If DEC intends that all facilities, including pre-existing facilities, must comply with the 2013 edition of the NFPA 59A standard, it must resolve the conflicts that the revised proposed rule sets up with Federal regulations. In fact, 49 CFR 1932 - the standard which the commenter’s facility is audited against by the annual Department of Public Service inspection, requires operators to comply with portions of two specific editions of NFPA 59A: 2001 and 2006. If DEC fails to include a mechanism for resolving any differences that may arise in these various versions of NFPA standards, it may be almost impossible for an owner to file an accurate "statement of compliance" attesting that the facility will be operated in accordance with all applicable law, regulations, standards, and requirements.
Response: DEC has clarified in the final rule that the requirement to comply with the 2013 edition of the NFPA standard does not apply to pre-existing facilities. DEC will evaluate the differences between the NFPA editions to determine if there are any substantive changes that should be applied to the pre-existing facilities. If so, these changes will be addressed in modifications of the existing orders that authorize these facilities to operate.
16. A commenter stated that with respect to emergency preparedness, DEC has added a requirement that records of training be maintained. However no clarity has been provided as to the scope of training, whether it is mandatory, or what measures must be in place to ensure that local responders actually have the training, equipment, and staff needed to effectively respond to emergencies. The commenter goes on to state that in Response 4.3.2 from the initial response to comments, DEC elaborates on various measures that it claims would be employed by OFPC and DEC, but none of those measures are actually identified in the Regulations. As such there is no assurance that they would in fact be carried out. These necessary details should be included in any final regulations.
Response: It would be inappropriate to provide this level of detail in the regulation. DEC will be issuing guidance to address these issues. DEC is consulting with NYS Office of Fire Prevention and Control (OFPC) to define the personnel, training, and equipment necessary for each LNG facility.
17. A commenter stated that only limited improvements have been made with respect to record keeping. No requirements for maintaining records relating to equipment monitoring and replacement, safety inspections, accident reports or other aspects of operations are identified. Improvements have been made to ensure that LNG spills in excess of one gallon are reported. However the requirement for submitting a written report has been inappropriately extended from 48 hours to ten days, and the exempting phrase “or as otherwise directed by the Department” has been inserted which suggests this requirement could in fact be waived.
Response: Records relating to the issues identified in the comment are required by the NFPA standards and the revised proposed regulation requires that these records be kept. DEC modified the requirement for the written report to allow up to 10 days to ensure that the report is thorough and complete which is not always possible within 48 hours. In addition, the phrase “or otherwise as directed by the Department” allows the DEC to require submission of the report in less time, if appropriate.
18. A commenter noted that DEC should retain authority to perform unannounced inspections.
Response: The final regulation includes a clear statement that DEC may conduct inspections at LNG facilities without prior notice to the operator.
