This regulatory impact statement, regulatory flexibility analysis, rural area flexibility analysis and/or job impact statement pertain(s) to a notice of Emergency rule making, I.D. No. ENV-07-16-00004-E, printed in the State Register on February 17, 2016.
Summary of Regulatory Impact Statement
Full text of the Regulatory Impact Statement is available on the New York State Department of Environmental Conservation’s website at http://www.dec.ny.gov/regulations/104968.html
1. STATUTORY AUTHORITY
The State law authority that empowers the New York State Department of Environmental Conservation (Department) to create the list of hazardous substances is found in Title one of Article 37 of the Environmental Conservation Law (ECL), sections 37-0101 through 37-0111, entitled “Substances Hazardous to the Environment” (Article 37). The Department is authorized to adopt regulations pursuant to ECL sections 3-0301(2)(a) and (m). Moreover, section 37-0105 explicitly authorizes the Department to promulgate rules and regulations pertaining to the storage and prevention of releases of hazardous substances to the environment. Specifically, section 37-0103 directs the Department to list “substances hazardous to the public health, safety or environment” that “cause or are capable of causing death, serious illness or serious physical injury to any person or persons as a consequence of release into the environment.” The Department’s existing rule with respect to the list of hazardous substances is found at 6 NYCRR Part 597. Section 597.2 provides that a substance is considered hazardous if, among other means, “because of its quantity, concentration, or physical, chemical or infectious characteristics, the substance causes physical injury or illness to humans when improperly treated, stored, transported, disposed or, or otherwise managed.”
2. LEGISLATIVE OBJECTIVES
The legislative objectives underlying Article 37 are directed toward establishing a list of hazardous substances which pose a threat to public health and the environment. The emergency rule meets these legislative objectives by listing perfluorooctanoic acid (PFOA, Chemical Abstracts Service (CAS) No. 335-67-1) as a hazardous substance. As described below, PFOA is a substance that has the potential to cause illness to humans as a consequence of being exposed to PFOA that has been released into the environment.
3. NEEDS AND BENEFITS
The emergency rule added perfluorooctanoic acid (PFOA, CAS No. 335-67-1) to the list of hazardous substances in 6 NYCRR Section 597.3. The Department issued the emergency rule based, in part, upon the conclusion of the New York State Department of Health (NYSDOH) that the environmental presence, persistence, toxicity, improper treatment, storage, transport, and disposal of PFOA pose a threat to public health in New York State (letter dated January 27, 2016).
The United States Environmental Protection Agency (USEPA) has classified this substance as an emerging contaminant that is extremely persistent in the environment and resistant to typical environmental degradation processes. (USEPA document EPA 505-F-14-001, “Emerging Contaminants Fact Sheet – PFOS and PFOA,” March 2014, where PFOS is perfluorooctane sulfonate; http://www.epa.gov/ fedfac/emerging-contaminants-perfluorooctane-sulfonate-pfos-and-perfluorooctanoic-acid-pfoa).
The U.S. Department of Health and Human Services, Public Health Service, Agency for Toxic Substances and Disease Registry, issued toxicological information stating that PFOA exposure may cause liver damage and impaired immune function, and may be the cause of some increases in prostate, kidney, and testicular cancers found in workers living near a facility that manufactured PFOA (“Draft Toxicological Profile for Perfluoroalkyls,” August 2015, http://www.atsdr.cdc.gov/ toxprofiles/tp200.pdf).
To be able to regulate the handling and storage of PFOA and have the authority to remediate sites contaminated with PFOA, it was necessary to list PFOA as a hazardous substance in 6 NYCRR Part 597. In New York State, the “Chemical Bulk Storage (CBS)” regulations (6 NYCRR Parts 596-599) provide standards for the proper handling and storage of bulk quantities of hazardous substances to prevent spills and releases to the environment, prohibit the release of hazardous substances to the environment, and require the reporting of certain releases of hazardous substances to the Department. Certain facilities that store hazardous substances must apply to the Department for a registration certificate to operate. The requirements to register and properly handle and store hazardous substances only apply to materials listed in Part 597.
The prohibition against releasing a hazardous substance to the environment is in Part 597 (subdivision 597.4(a)). It was necessary to list PFOA as a hazardous substance in Part 597 so that the release prohibition would apply.
ECL Section 27-1301.1 defines Part 597 hazardous substances as hazardous wastes. The Department’s regulations regarding the remediation of sites contaminated with hazardous wastes (Part 597 hazardous substances and hazardous waste as defined in 6 NYCRR Part 371) are included in 6 NYCRR Part 375 (Part 375). The inactive hazardous waste disposal site remedial program requirements, set forth in Part 375-2, apply to contamination associated with the disposal of hazardous wastes.
Therefore, the Department concluded that it was necessary to list PFOA as a hazardous substance in Part 597 to regulate the storage of PFOA in order to prevent and prohibit spills and releases to the environment, and to provide for the remediation of sites contaminated with PFOA under a Department remedial program.
There are at least three benefits of listing PFOA as a hazardous substance in Part 597. First, if a mixture that contains PFOA in concentrations of 1% or more is stored in an aboveground tank of 185 gallons or more or any size underground tank, the tank will be subject to the requirements of the CBS regulations (6 NYCRR Parts 596 – 599) with the express purpose of preventing leaks and spills in order to protect public health and the environment. Second, releases of PFOA to the environment are now prohibited (subdivision 597.4(a)). Third, and most importantly, if PFOA is released into the environment creating contamination and the need for site cleanup, the Department is authorized to pursue clean-up of the contamination under a Department remedial program (Part 375) and may expend funds under the “State Superfund.”
4. COSTS
Costs to Regulated Parties
The production of PFOA has reportedly been discontinued and PFOA is being eliminated from products. Under the federal Toxic Substances Control Act (TSCA), the USEPA has been managing the “2010/2015 PFOA Stewardship Program” to phase out the production and emissions of PFOA by the end of 2015. (http://www.epa.gov/ assessing-and-managing-chemicals-under-tsca/20102015-pfoa-stewardship-program-2014-annual-progress). As part of USEPA’s PFOA stewardship program, eight manufacturers committed to phasing out the use and production of PFOA. The first commitment was to accomplish a 95% reduction (in comparison to 2000 levels) of 1) all PFOA emissions to the environment, 2) the use of precursor chemicals that break down into PFOA, and 3) the levels of PFOA in products. The second commitment was to phase-out the production of PFOA by the end of 2015.
Because the production of PFOA has been phased out and the substantive CBS tank system requirements for handling and storing PFOA do not apply until two years after the date the emergency rule went into effect (January 27, 2016), the Department expects that the compliance costs for meeting the CBS requirements will be minimal. If the facility discontinues storage within the two-year period before the storage and handling standards go into effect, there would be no other substantive costs. If the facility continues to store PFOA, it would be subject to the costs of complying with the handling and storage requirements in Parts 598 and 599.
With one possible exception, the release prohibition should not present unusual compliance costs for small businesses and local governments who may be in possession of PFOA-containing materials. The possible exception is for those in possession of fire-fighting foams that contain PFOA, the use of which may constitute a “release” to the environment, which is now prohibited as a result of the emergency rule. Fire-fighting foams that can no longer be used for its intended use will likely need to be disposed of in accordance with all local, state, and federal requirements and replacement foams purchased. The Department recognizes the important societal interest of ensuring the availability of materials to control fires. The Department is evaluating this issue further and expects to address it in the final regulation.
The costs for complying with the requirements of Part 375 to implement a remedial program where PFOA is the primary contaminant will vary widely as costs depend upon many factors. It is not possible to meaningfully estimate potential costs to small businesses and local governments resulting from the listing of PFOA as a hazardous substance other than to note that remedial program costs for other hazardous substances range from the thousands to millions of dollars on a case-by-case basis.
Costs to the Department, State, and Local Government
The Department will incur costs to administer the CBS program. They will be partially offset through registration application fees. In addition, there will be costs associated with the Department’s oversight of site remediation by responsible parties and, in cases where the responsible party is unwilling or unable to undertake the remediation, the costs of the remediation incurred by the Department.
State and Local Governments will incur costs making a determination regarding whether products containing PFOA at concentrations of more than 1% are stored at their facilities.
5. LOCAL GOVERNMENT MANDATES
No additional recordkeeping, reporting, or other requirements not already created by statute or described above would be imposed on local governments. This is not a local government mandate.
6. PAPERWORK
The proposed rule contains no substantive changes to existing reporting and recordkeeping requirements, except for those newly subject to this regulation.
7. DUPLICATION
The listing of PFOA as a hazardous substance in Part 597 causes no duplication, overlap or conflict with any other state or federal government programs or rules.
8. ALTERNATIVES
The only alternative to listing PFOA as a hazardous substance considered by the Department was no action. The Department declined to take no action because of the needs and benefits of listing described above. In summary, listing was necessary to prevent further releases of PFOA to the environment by prohibiting releases; requiring PFOA’s safe handling and storage at facilities storing bulk amounts of PFOA, and ensuring that responsible parties take necessary, appropriate, and timely actions to address past releases of PFOA to the environment; and allowing the Department to expend state resources to clean up releases of PFOA in accordance with the requirements of Part 375 when no willing or viable responsible parties undertake cleanup.
9. FEDERAL STANDARDS
Listing PFOA as a hazardous substance exceeds the federal standard as USEPA has not listed PFOA as a hazardous substance under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or under the applicable regulation, 40 CFR Part 302 (“Designation, Reportable Quantities, and Notification”). Under TSCA, EPA has worked with industry to voluntarily phase out the use of PFOA by 2015 and, as discussed above, has proposed a significant new use rule to limit the production and importation of PFOA in anticipation of this 2015 phase-out deadline.
10. COMPLIANCE SCHEDULE
PFOA storage facilities subject to the registration requirements of 6 NYCRR Part 596 must register their tank systems with the Department and pay the registration fee. The registration requirements for PFOA became effective as of the date of the emergency rule (January 27, 2016). If a facility begins storing PFOA subject to the registration requirements, it must obtain a valid registration certificate prior to storing the material. Facilities are not required to comply with the handling and storage requirements for hazardous substances until two years after becoming subject to regulation (6 NYCRR subdivision 598.1(h)).
Part 597 prohibits the unauthorized release of a hazardous substance to the environment (subdivision 597.4(a)). As a result of the emergency rule, the prohibition now also applies to PFOA. Releases of a listed hazardous substance above the reportable quantity (RQ) stated in Part 597 for the substance must be reported to the Department’s Spill Hotline (subdivision 597.4(b)).
The Department is evaluating the emergency rule’s impact on the storage and use of fire-fighting foam containing PFOA.
Listing PFOA as a hazardous substance will result in PFOA sites otherwise meeting regulatory criteria to be subject to the inactive hazardous waste disposal sites regulatory requirements of Part 375. In these cases, compliance requirements are established by Part 375 and by Department orders and agreements. Part 375 sets forth requirements for remediation. Remedial programs for a site tend to take from a few to many years to complete.
Summary of Regulatory Flexibility Analysis
Full text of the Regulatory Flexibility Analysis for Small Businesses and Local Governments is available on the New York State Department of Environmental Conservation’s website at http:// www.dec.ny.gov/regulations/104968.html
1. EFFECT OF RULE
The emergency rule added perfluorooctanoic acid (PFOA, Chemical Abstracts Service No. 335-67-1) to the list of hazardous substances in 6 NYCRR section 597.3. The rule applies statewide in all 62 counties of New York State (State). As further discussed below under “Compliance Requirements,” the listing has three primary effects. First, certain facilities storing PFOA may now be subject to the requirement to register their facilities (6 NYCRR Part 596) with the New York State Department of Environmental Conservation (Department) under the Department’s Chemical Bulk Storage (CBS) program. Facilities newly subject to regulation have two years before they must comply with the applicable handling and storage requirements for hazardous substances (6 NYCRR Parts 598-599).
The production of PFOA has reportedly been discontinued and PFOA is being eliminated from products. Under the federal Toxic Substances Control Act (TSCA), the United States Environmental Protection Agency has been managing the “2010/2015 PFOA Stewardship Program” to phase out the production and emissions of PFOA by the end of 2015. As of the last annual report (2014), United States companies manufacturing PFOA were “on track to reach the program’s goal of phasing out these chemicals by the end of 2015” (http:// www.epa.gov/assessing-and-managing-chemicals-under-tsca/ 20102015-pfoa-stewardship-program-2014-annual-progress).
A PFOA product likely still in circulation that could be subject to the CBS registration requirement is older stocks of fire-fighting foam that contain PFOA. Small businesses are not likely to store these foams in quantities that would be subject to the CBS registration requirement (explained below). Large local government agencies (fire departments, fire districts) may still maintain stocks of fire-fighting foam that could be subject to the registration requirement.
The Department does not collect data with respect to the number of the persons employed by the owner or operator of any subject CBS facility or on the industrial classification of a registered facility. Due to this lack of data, the Department is unable to make an estimate of how many small businesses comply with the existing CBS rules (6 NYCRR Parts 596 through 599) or will be required to comply with the emergency rule.
The second main effect of the promulgation of the emergency rule is the prohibition of the release of PFOA to the environment (subdivision 597.4(a)). The release prohibition now applies to any quantity of PFOA, including any older stocks of fire-fighting foams and any other material containing PFOA in the possession of small businesses or local governments. The Department recognizes the important societal interest of ensuring the availability of materials to control fires, and is evaluating the issue of regulating PFOA-containing fire-fighting foams, and expects to address it in the final regulation.
The third main result of the listing of PFOA as a hazardous substance in Part 597 is the potential applicability of the requirements of 6 NYCRR Part 375. If PFOA is or has been released into the environment in such a way that the site of the release meets the definition of an “inactive hazardous waste disposal site” and other regulatory criteria, then such sites would be subject to the investigation and remediation requirements of Part 375. Inactive hazardous waste disposal sites are regulated under subpart 375-2. The Department intends to evaluate the implications of PFOA’s listing as a hazardous substance on the Brownfield Cleanup Program, regulated pursuant to subpart 375-3, and the municipal Environmental Restoration Programs, regulated pursuant to subpart 375-4. It is not known how many small businesses or local governments may own properties that are contaminated by PFOA in a way that would make them subject to the regulatory requirements of Part 375.
2. COMPLIANCE REQUIREMENTS
Facilities that store PFOA in amounts and in certain tanks that make them subject to the registration requirements of 6 NYCRR Part 596 must register tank systems with the Department and pay the registration fee associated with the CBS program.
If the facility is already storing PFOA subject to the registration requirements, then the registration requirement became effective as of the date of the emergency rule (January 27, 2016). A facility planning to start storing PFOA subject to the registration requirement must obtain a valid registration certificate prior to storing the material. Facilities are not required to comply with the handling and storage requirements for hazardous substances until two years after becoming subject to regulation (6 NYCRR subdivision 598.1(h)). The Department anticipates that facilities that currently store PFOA will phase out their storage of the substance prior to the end of the two-year period and therefore will not have substantive CBS compliance requirements beyond the registration requirement.
Part 597 prohibits the unauthorized release of a hazardous substances to the environment (subdivision 597.4(a)). As a result of the emergency rule, this prohibition applies to PFOA. Releases of a listed hazardous substance above the reportable quantity (RQ) set forth in Part 597 for the substance must be reported to the Department’s Spill Hotline (subdivision 597.4(b)). Releases of more than one pound (the RQ established for PFOA) to the environment must be reported.
Listing PFOA as a hazardous substance will result in PFOA sites otherwise meeting regulatory criteria being subject to the inactive hazardous waste disposal sites regulatory requirements of Part 375. In these cases, compliance requirements are established by Part 375 and by Department orders and agreements with regulated entities. Remedial programs for a site tend to be complex, multi-phased, and take from a few to many years to complete.
The Department intends to evaluate the implications of the PFOA listing on the Brownfield Cleanup and Environmental Restoration Programs.
3. PROFESSIONAL SERVICES
No new or additional professional services would likely be needed by facilities owned by small businesses or local governments to comply with the emergency rule regarding the CBS requirements if they discontinue storing PFOA before the handling and storage requirements take effect (two years after a facility becomes subject to the registration requirement for existing stocks being stored). If facilities continue to store after the two-year period, small businesses and local governments may need professional services to assist them in meeting the handling and storage requirements for hazardous substances.
If a small business or local government becomes a remedial party subject to requirements to implement a remedial program under Part 375, it would likely require consulting and contractual services to assist in carrying out the remedial program. This could include professional engineers or qualified environmental professionals as defined in Part 375 and contractual services needed to complete site investigation field work, analyses of environmental samples, or other specialized services.
4. COMPLIANCE COSTS
Because the production of PFOA has been phased out and the substantive CBS tank system requirements for handling and storing PFOA will not apply until two years after the date the emergency rule went into effect (January 27, 2016), the Department expects that the compliance costs for meeting the CBS requirements will be minimal. The registration fees range from $50 per tank for tanks less than 550 gallons capacity to $125 per tank for capacities greater than 1,100 gallons. If the facility discontinues storage within the two-year period before the tank system standards go into effect, there would be no other substantive costs.
Other than for fire-fighting foam, which is being further evaluated, the release prohibition should not present significant compliance costs for small businesses and local governments.
The costs of complying with the requirements of Part 375 to implement a remedial program where PFOA is the primary contaminant will vary widely as the costs depend upon many factors. Because of the wide variety of scenarios, it is not possible to meaningfully estimate the potential costs to small businesses and local governments resulting from the listing of PFOA as a hazardous substance other than to note that remedial program costs for other hazardous substances can range from the thousands to millions of dollars on a case-by-case basis.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY
If a small business or local government is required to comply with only the CBS registration requirements, no significant impediments would be faced. If a person decides to store PFOA subject to the CBS handling and storage requirements beyond the two-year period, costs for these requirements would be incurred. Costs could include those for the design, construction, and ongoing maintenance of tank systems capable of meeting the technical requirements for release prevention, release detection, and containment of any spills that may occur. They would present no technological feasibility issues, but costs would be incurred commensurate with the amounts to be stored.
The economic and technical feasibility of complying with the requirements to remediate a PFOA-contaminated site for a small business or local government will depend upon the circumstances. If contamination is extensive, there will be both economic and technical obstacles for a small business or local government. Costs can easily extend into the millions of dollars for a complicated site.
6. MINIMIZING ADVERSE IMPACT
The Department issued the emergency rule based upon the conclusion of the New York State Department of Health that the environmental presence, persistence, toxicity, improper treatment, storage, transport, and disposal of PFOA pose a threat to public health in New York State (letter dated January 27, 2016). The emergency rule itself was limited to the inclusion of PFOA in the list of hazardous substances in Part 597. This emergency action does not lend itself to the mitigating measures listed in State Administrative Procedure Act section 202-b(1), but there are existing requirements established in the regulations that help to minimize adverse impacts. For example, the CBS regulations allow a two-year period after a new chemical is added to the list of hazardous substances before the handling and storage requirements of Part 598 apply (subdivision 598.1(h)). The Department has previously determined through other rule making actions that the remaining regulatory compliance provisions, including storage, handling, release prohibition, and disposal, appropriately apply to small businesses and local governments.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION
The Department provides statewide outreach to persons who will be subject to proposed rules, including small businesses and local governments. When the Department proposes the final rule to list PFOA in Part 597, the Department will ensure public notice and input by issuing public notices issued in the State Register and newspapers, publication in the Department’s Environmental Notice Bulletin, holding a comment period of at least 45 days, and holding public hearings. Interested parties, including small businesses and local governments, will have the opportunity to submit comments and participate in the public hearings. The Department will post relevant rule making documents on the Department’s website.
8. CURE PERIOD OR OTHER OPPORTUNITY FOR AMELIORATIVE ACTION
There can be no ameliorative actions or cure period regarding the prohibition against releasing PFOA to the environment because the prohibition is absolute and intended to prevent the harm that would come to public health or the environment from a release. If there has been a release to the environment that requires remediation under a Department remedial program, the timing and content of the remediation is developed on a case-by-case basis. This allows the Department to consider and apply appropriate ameliorative actions. The concept of a cure period does not apply in the case of a remedial program.
If a facility subject to the PFOA CBS facility registration requirement fails to register its facility in accordance with Part 596, the facility owner/operator will be subject to penalties that have been in place and exercised by the Department for all types of parties for decades, including small businesses and local governments. Therefore, no additional ameliorative actions or cure period are established for the emergency rule regarding CBS registration or handling and storage requirements.
9. INITIAL REVIEW OF THE RULE
The Department will conduct an initial review of the rule within three years of the promulgation of the final rule.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS
There are 44 counties in New York State (State) that have populations of less than 200,000 people and 71 towns in non-rural counties where the population densities are less than 150 people per square mile. The emergency rule applies statewide so it applies to all rural areas of the State. The emergency rule listed perfluorooctance (PFOA, Chemical Abstracts Service No. 335-67-1) as a hazardous substance in 6 NYCRR section 597.3 and there is no reason to believe that this will disproportionally impact rural areas.
2. REPORTING, RECORDKEEPING, OTHER COMPLIANCE REQUIREMENTS; AND NEED FOR PROFESSIONAL SERVICES
The emergency rule made no changes to any reporting, recordkeeping, or other compliance requirements requirement for Chemical Bulk Storage (CBS) facilities other than to place PFOA on the list of hazardous substances in section 597.3.
Facilities that store PFOA in specified quantities and use certain tanks that make them subject to the registration requirements of 6 NYCRR Part 596 must register tank systems with the Department and pay a registration fee associated with the CBS program. Facilities regulated under 6 NYCRR Parts 596-599 most commonly store hazardous substances in stationary aboveground tank systems with a capacity greater than 185 gallons.
If facilities are currently storing PFOA subject to the registration requirement, then the registration requirement became effective as of the date of the emergency rule (January 27, 2016). If facilities plan to start storing PFOA subject to the registration requirement, then they must obtain a valid registration certificate prior to storing the material. Facilities are not required to comply with the handling and storage requirements for hazardous substances until two years after becoming subject to regulation (subdivision 598.1(h)). Since the Department expects that facilities that currently store PFOA will phase out storage of the substance prior to the end of the two-year period, they will not have substantive CBS compliance requirements regarding PFOA beyond the registration requirement.
Part 597 prohibits the unauthorized release of a hazardous substance to the environment (subdivision 597.4(a)). As a result of the emergency rule, the prohibition now also applies to PFOA. Releases of a listed hazardous substance above the reportable quantity (RQ) stated in Part 597 for the substance must be reported to the Department’s Spill Hotline (subdivision 597.4(b)). With PFOA listed as a hazardous substance, releases that are not “authorized” (paragraph 597.4(a)(1)) or qualify as “continuous and stable” (paragraph 597.4(a)(2)) are prohibited. “Authorized” releases are typically those subject to a permitted air or water discharge permit. ”Continuous and stable” releases are typically associated with normal operating processes (e.g., releases from a storage tank vent that occur upon filling of the tank). These releases are subject to the requirements and reporting procedures of 40 CFR section 302.8. All other releases are prohibited. Releases of more than one pound (the RQ established for PFOA) to the environment must be reported to the Department.
The Department is evaluating the emergency rule’s impact on the storage and use of fire-fighting foam containing PFOA.
Listing PFOA as a hazardous substance will result in PFOA sites otherwise meeting regulatory criteria being subject to the inactive hazardous waste disposal sites regulatory requirements of Part 375. In these cases, compliance requirements are established by Part 375 and by Department orders and agreements with regulated entities. Part 375 sets forth requirements for the investigation of site conditions to determine the nature and extent of environmental contamination, evaluate remedial alternatives, design and construct a remedy, complete the operation and maintenance activities required to achieve the remedial action objectives for the site, and maintain any institutional or engineering controls needed to maintain the effectiveness of the remedy. Remedial programs for a site tend to be complex, multi-phased, and take from a few to many years to complete.
No new or additional professional services would likely be needed by facilities owned in rural areas to comply with the emergency rule regarding the CBS requirements if they discontinue storing PFOA before the handling and storage requirements take effect (two years after a facility becomes subject to the registration requirement for existing stocks being stored). If facilities continue to store after the two-year period, facility owner/operators may need professional services to assist them in meeting the handling and storage requirements for hazardous substances.
If an owner/operator in a rural area becomes a remedial party subject to requirements to implement a remedial program under Part 375, it would likely require consulting and contractual services to assist in carrying out the remedial program. This could include professional engineers or qualified environmental professionals as defined in Part 375 and contractual services needed to complete site investigation field work, analyses of environmental samples, or other specialized services.
3. COSTS
The Department does not expect any likely variation in compliance costs for different types of public and private entities in rural areas. Because the production of PFOA has reportedly been phased out and the substantive CBS tank system requirements for handling and storing PFOA would not apply until two years after the emergency rule went into effect (January 27, 2016), the Department expects that the compliance costs for meeting the CBS requirements will be minimal. Hazardous substances regulated under Parts 596-599 are most commonly stored in stationary aboveground tank systems with a capacity greater than 185 gallons. Registration fees apply to each regulated tank and depend upon the capacity of each tank. The fees range from $50 per tank for tanks less than 550 gallons capacity to $125 per tank for capacities greater than 1,100 gallons. If the facility discontinues storage within the two-year period before the storage and handling standards go into effect, there would be no other substantive costs.
Other than for fire-fighting foams, which is being further evaluated, the release prohibition should not present significant compliance costs for small businesses and local governments.
The costs of complying with the requirements of Part 375 to implement a remedial program where PFOA is the primary contaminant will vary widely as the costs depend upon many factors. These include the quantity released to the environment, the media contaminated (e.g., soil, groundwater, surface water, sediment, bedrock), the horizontal and vertical extent of contamination for each medium, the accessibility of the contamination, whether there are human or environmental receptors that must be protected while a remedial program is being undertaken, the difficulty of removing PFOA from the contaminated environmental media, the future anticipated use of the area of contamination, and other factors. Because of the wide variety of scenarios, it is not possible to meaningfully estimate the potential costs to persons managing PFOA in rural areas resulting from the listing of PFOA as a hazardous substance other than to note that remedial program costs for other hazardous substances can range from the thousands to millions of dollars on a case-by-case basis.
4. MINIMIZING ADVERSE IMPACT
The Department issued the emergency rule based upon the conclusion of the New York State Department of Health that the environmental presence, persistence, toxicity, improper treatment, storage, transport, and disposal of PFOA pose a threat to public health in New York State (letter dated January 27, 2016). The emergency rule itself was limited to the inclusion of PFOA in the list of hazardous substances in Part 597. This action does not lend itself to the mitigating measures listed in State Administrative Procedure Act section 202-bb(2) but there are existing requirements established in the regulations that help to minimize adverse impacts. For example, the CBS regulations allow a two-year period after a new chemical is added to the list of hazardous substances before the handling and storage requirements of Part 598 apply (subdivision 598.1(h)). The Department has previously determined through other rule making actions that the remaining regulatory compliance provisions including storage, handling, release prohibition, and disposal appropriately apply to persons managing hazardous substances in rural areas.
5. RURAL AREA PARTICIPATION
The Department provides statewide outreach to persons who will be subject to the proposed rules, including those in rural areas. When the Department proposes the final rule to list PFOA in Part 597, the Department will ensure public notice and input by issuing public notices in the State Register and newspapers, publication in the Department’s Environmental Notice Bulletin, holding a comment period of at least 45 days, and holding public hearings. Interested parties will have the opportunity to submit comments and participate in the public hearings. The Department will post relevant rule making documents on the Department’s website.
6. INITIAL REVIEW OF THE RULE
DEC will conduct an initial review of the rule within three years of the promulgation of the final rule.
Job Impact Statement
1. NATURE OF IMPACT
Through the emergency rule, the New York State Department of Environmental Conservation (Department) added perfluorooctanoic acid (PFOA, Chemical Abstracts Service No. 335-67-1) to the list of hazardous substances in 6 NYCRR section 597.3. The substantive effects of the listing are to (1) make the handling and storage of PFOA subject to the registration and other regulatory standards for Chemical Bulk Storage (CBS) facilities (6 NYCRR Parts 596-599); (2) prohibit the unauthorized release of PFOA to the environment (subdivision 597.4(a)) and require that any releases above the reportable quantity (one pound) be reported to the Department (subdivision 597.4(b)); and (3) make the investigation and remediation of releases of PFOA to the environment subject to the Department’s remedial program requirements (6 NYCRR Part 375).
Under the federal Toxic Substances Control Act (TSCA), the United States Environmental Protection Agency (USEPA) has been managing the “2010/2015 PFOA Stewardship Program” to phase out the production and emissions of PFOA by the end of 2015. As of the last annual report (2014), United States companies manufacturing PFOA were “on track to reach the program’s goal of phasing out these chemicals by the end of 2015” (http://www.epa.gov/assessing-and- managing-chemicals-under-tsca/20102015-pfoa-stewardship- program-2014-annual-progress). In addition, EPA has proposed a significant new use rule to limit the production and importation of PFOA (80 FR 2885; January 21, 2015). If this rule is finalized by USEPA, persons subject to the rule would be required to notify EPA at least 90 days before commencing such manufacture, processing, or importation. The required notifications would provide EPA with the opportunity to evaluate the intended use and, if necessary, an opportunity to protect against potential unreasonable risks from that activity before it occurs. Since production of PFOA has reportedly already been phased out and alternative substances have been developed to take the place of PFOA, the Department does not expect the emergency rule to have a significant impact on jobs and employment either in terms of lost jobs or the creation of new jobs. Employment opportunities should remain the same or may increase somewhat due to remediation activities.
2. CATEGORIES AND NUMBERS AFFECTED
Since PFOA is reportedly no longer being produced in the United States, the CBS regulations would only apply to PFOA-containing materials produced before the phase-out that are still in storage. Since replacement materials are already in place and the number of facilities storing PFOA in quantities large enough to be subject to the CBS regulations is expected to be small, the number of jobs affected is expected to be small. Existing employees may be required to arrange for the disposal of older stocks of PFOA-containing materials, but this should not require the creation of new jobs or the loss of existing jobs.
Where PFOA has previously been released to the environment in ways that make the resulting contamination subject to a 6 NYCRR Part 375 remedial program, a limited number of jobs may be created in order to complete the necessary investigations and remediation of the sites. Job categories would include, for example, drilling contractors and other heavy equipment operators, field investigation technicians, hydrogeologists, engineers, analytical chemists and technicians, and others with training and experience related to site remediation.
The number of sites that may become remedial sites because of the addition of PFOA to Part 597 is unknown. The Department has placed one site on the Registry of Inactive Hazardous Waste Disposal Sites (Registry) as a result of adding PFOA to Part 597 (Site Registry ID No. 442046). The Department expects that other sites that used PFOA in commercial or industrial processes may be found to have PFOA environmental contamination. Locations where PFOA disposal occurred or where PFOA was a component of materials that were released to the environment may become remedial sites subject to the requirements of Part 375. Nationally, research by the United States Department of Defense (DoD) found that approximately 600 DoD sites are categorized as fire/crash/training areas and thus have the potential for contamination with perfluoroalkyl compounds (PFCs) due to historical use of aqueous film-forming foams (AFFF) [Strategic Environmental Research and Development Program (SERDP), FY 2014 Statement of Need (SON), Environmental Restoration (ER) Program Area, “In Situ Remediation of Perfluoroalkyl Contaminated Groundwater,” SON Number: ERSON-14-02, October 25, 2012]. It is possible that the Department will list additional Registry sites. The work needed to investigate and remediate these sites may be accomplished by existing staff or new jobs may be added depending upon the number and complexity of sites.
3. REGIONS OF ADVERSE IMPACT
There are no regions of the State expected to be disproportionately impacted by the emergency rule to list PFOA as a hazardous substance. The rule applies statewide and there is no reason to expect that PFOA issues will be concentrated in one area over another to any significant degree.
4. MINIMIZING ADVERSE IMPACT
For the reasons described above, the emergency rule is not expected to have a significant adverse impact on jobs and employment.
5. SELF-EMPLOYMENT OPPORTUNITIES
The emergency rule is not expected to impact self-employment opportunities.
6. INITIAL REVIEW OF RULE
The Department will conduct an initial review of the rule within three years of the promulgation of the final rule.
