ENV-31-14-00006-A Petroleum Bulk Storage (PBS) and Used Oil Management

9/30/15 N.Y. St. Reg. ENV-31-14-00006-A

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 39

September 30, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-31-14-00006-A

Filing No. 782

Filing Date. Sept. 11, 2015

Effective Date. R , 6 NY

Petroleum Bulk Storage (PBS) and Used Oil Management

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Parts 612, 613 and 614; addition of new Part 613; and amendment of section 370.1(e)(2) and Subpart 374-2 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101, 3-0301, 3-0303, 17-0301, 17-0303, 17-0501, 17-1001 through 17-1017 and 17-1743; art. 23, title 23, art. 27, titles 7 and 9; Navigation Law, sections 173, 175, 176, 178 and 191

Subject:

Petroleum Bulk Storage (PBS) and Used Oil Management.

Purpose:

Promulgation of the new Part 613 will harmonize existing State requirements (found at current Parts 612, 613, and 614 which are being repealed with this rule making) with overlapping federal requirements (found at 40 CFR Part 280) so that similar sets of regulatory requirements will govern petroleum bulk storage (PBS) facilities in the State. Additionally, the requirements for all new tank systems will be updated to reflect the technology and practices that are the current state of the art for the manufacture, installation, and maintenance of PBS tank systems.

The provisions of Subpart 374-2 and section 370.1(e)(2) must be revised in order to (1) address changes to definitions and cross-references being made in the new Part 613; and (2) account for changes made to the corresponding federal regulation, 40 CFR Part 279.

Substance of final rule:

The New York State Department of Environmental Conservation (Department) has repealed 6 NYCRR Parts 612 through 614 and replaced them with a new 6 NYCRR Part 613, which regulates the handling and storage of petroleum in underground and aboveground storage tank systems.

To conform to changes in Part 613, corresponding changes to definitions and cross-references were also made to the Standards for the Management of Used Oil, established at 6 NYCRR Subpart 374-2. Amendments to Subpart 374-2 also include corrections, clarifications, and updates to add certain federal provisions. The revisions include federally driven corrections or clarifications, and updates to testing requirements to make it easier and more cost-effective for the regulated community to comply with certain sampling and analysis requirements. Changes were also made 6 NYCRR section 370.1(e)(2) to update references to federal regulations.

The Express Terms are summarized below.

Subpart 613-1: General Provisions

Subpart 613-1 contains provisions covering the purpose of the rule, applicability, definitions, recordkeeping requirements, and standards incorporated by reference. This subpart also contains provisions concerning access to records and facilities, preemption and approval of local laws or ordinances, variances, registration, and severability.

Subpart 613-2: UST Systems Subject to Both Subtitle I and Title 10

Subpart 613-2 addresses underground storage tank (UST) systems that are subject to State regulation pursuant to Title 10 of Environmental Conservation Law Article 17, sections 17-1001 through 1017, entitled “Control of the Bulk Storage of Petroleum” (Title 10), and federal regulation pursuant to Subtitle I of the Resource Conservation and Recovery Act (RCRA), 42 USC sections 6991 through 6991m, entitled “Regulation of Underground Storage Tanks” (Subtitle I). This subpart harmonizes the State’s UST system requirements with the federal requirements found in 40 Code of Federal Regulations (CFR) Part 280, entitled “Technical Standards and Corrective Action for Owners and Operators of Underground Storage Tanks.” This subpart contains requirements concerning: design, construction, and installation; general operating practices; inspection and leak detection; spill reporting, investigation, and confirmation; tank system closure; and operator training.

Subpart 613-3: UST Systems Subject Only to Title 10

Subpart 613-3 addresses UST systems that are only subject to Title 10. The structure of this subpart reflects that of Subpart 613-2 and contains similar requirements. This subpart consolidates the UST system requirements from existing 6 NYCRR Parts 612 through 614, but it does not include requirements from 40 CFR Part 280. The only structural difference between Subparts 613-3 and 613-2 is that 613-3 does not contain requirements for operator training.

Subpart 613-4: AST Systems

Subpart 613-4 addresses aboveground storage tank (AST) systems. Like Subpart 613-3, it has a structure that reflects Subpart 613-2. This subpart consolidates the AST system requirements from existing 6 NYCRR Parts 612 through 614. The substantive provisions are markedly different from Subparts 613-2 and 613-3 because the technologies and practices applicable to AST systems are different from those applicable to UST systems. This Subpart contains requirements concerning: design, construction, and installation; general operating practices; inspection and leak detection; spill reporting, investigation, and confirmation; and tank system closure.

Subpart 613-5: Delivery Prohibition

Subpart 613-5 contains the requirements concerning delivery prohibition. The provisions of this subpart establish the circumstances and process for imposing a delivery prohibition; required notifications; and the process for termination of a delivery prohibition.

Subpart 613-6: Release Response and Corrective Action

This subpart contains requirements concerning initial spill response, initial spill abatement measures; site check; initial site characterization; free product removal; investigations for soil and groundwater cleanup; corrective action plans; and public participation.

Section 370.1(e)(2): Reference to the Code of Federal Regulations

Section 370.1(e)(2) lists standards incorporated by reference. Revisions were made to update references to 40 CFR Parts 112, 279, 280 and 761 for the purposes of Subparts 360-14 and 374-2.

Subpart 374-2: Standards for the Management of Used Oil

Subpart 374-2 was amended to (1) implement amendments to Title 10, which expressly subjects used oil tanks to PBS; (2) revise definitions based upon and cross-references pertaining to revisions in the proposed Part 613; and (3) incorporate amendments to 40 CFR Part 279, entitled, “Standards for the Management of Used Oil,” promulgated between July 30, 2003 and July 14, 2006. Revisions to adopt significant federal amendments are provided below.

Clarifications and corrections were made to adopt EPA’s July 30, 2003 rule (68 FR 44659-44665) with respect to mixtures of used oil and polychlorinated biphenyls (PCBs) and their applicability to the federal Toxic Substances Control Act and its implementing regulations, 40 CFR 761. The regulation of mixtures of used oil and hazardous waste from conditionally exempt small quantity generator hazardous waste are also clarified. Changes were also made to the recordkeeping requirements for used oil marketers.

Testing and monitoring requirements are amended, in order to allow more flexibility when conducting RCRA related sampling & analysis by providing appropriate analytical methods for RCRA applications. These changes were made to conform with EPA’s June 14, 2005 rule as amended on August 1, 2005 (70 FR 34548-34592, and 70 FR 44150-44151). Corrections to the used oil regulations, including spelling, printing omissions, typographical errors, and incorrect cross-references were made to conform with EPA’s July 14, 2006 rule (71 FR 40254-40280).

In addition, typographical errors and inconsistencies between State and federal regulations have been corrected, along with some modifications to areas where the State is different from federal requirements. These changes are summarized below.

Provisions were added to the used oil regulations, pertaining to used oil acceptance requirements for “service establishments” and “retail establishments.” Part 613, which is independently applicable to many used oil tanks, contains a provision that a tank that does not meet certain minimal standards may be “tagged,” which means that delivery of used oil into the tank would be prohibited. Subpart 374-2 was amended to clarify that if the used oil tank at a service or retail establishment is tagged, then the owner or operator must provide alternate container or tank storage to receive used oil from household do-it-yourselfers. Such temporary storage must be designed and operated in compliance with all applicable used oil storage requirements.

Most of the Department‘s used oil regulations are contained within 6 NYCRR Subparts 374-2 and 360-14. Part 613 includes registration and management standards for PBS tanks that are also applicable to used oil tanks.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 374-2.2, 374-2.3, 374-2.5—374-2.8, 613-1.2—613-1.10, 613-2.1—613-2.6, 613-3.1—613-3.5, 613-4.1—613-4.5, 613-5.1, 613-5.2, 613-5.4, 613-6.2—613-6.8.

Text of rule and any required statements and analyses may be obtained from:

Russ Brauksieck, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-7020, [phone], email: [e-mail]

Additional matter required by statute:

Negative Declaration, Coastal Assessment Form, and Short Environmental Assessment Form have been completed for this rule making.

Summary of Revised Regulatory Impact Statement

1. STATUTORY AUTHORITY

Petroleum Bulk Storage

The State law authority that empowers the Department of Environmental Conservation (Department) to regulate the storage, handling, and cleanup of petroleum is found in Article 12 of the Navigation Law (NL), sections 170 through 197 (Article 12) and Title 10 of Environmental Conservation Law (ECL) Article 17, sections 17-1001 through 17-1017 (Title 10). The Department is authorized to adopt regulations to implement the provisions of the ECL and the NL under ECL sections 3-0301(2)(a) and (m) and NL section 191, respectively. ECL Articles 3 and 17 provide authority regarding access to facilities, premises, and records. The Department’s existing rules with respect to petroleum bulk storage (PBS) are found at 6 NYCRR Parts 612 through 614.

Under Subtitle I of the Resource Conservation and Recovery Act (RCRA), 42 USC sections 6991 through 6991m (Subtitle I), the U.S. Environmental Protection Agency (EPA) is authorized to regulate PBS underground storage tanks (USTs). EPA’s implementing rule is found at 40 Code of Federal Regulations (CFR) Part 280.

Used Oil Management

Article 3, Title 3; Article 17, Title 10; Article 23, Title 23; Article 27, Titles 7 and 9; Article 70; and Article 71, Titles 27 and 35 of the ECL authorize the proposed changes to 6 NYCRR Part 370 and Subpart 374-2. The Department is authorized to promulgate regulations and standards applicable to the generation, storage, transportation, treatment and disposal of hazardous waste, as necessary to protect public health and the environment. Pursuant to ECL section 27-0900, these regulations and standards must be at least as stringent as those established by EPA under RCRA, Subtitle C (42 USC sections 6921 through 6939e).

2. LEGISLATIVE OBJECTIVES

Petroleum Bulk Storage

The legislative objectives inherent in the statutory authority are the safe storage and handling of petroleum to minimize the threats to public health and the environment that come from the release of petroleum to the environment. The repeal of the existing rules and the adoption of proposed Part 613 would meet these legislative objectives and reflect statutory changes that were made to Title 10 in 2008 (see Ch. 334, L. 2008), which allow for State consistency with new federal requirements enacted as revisions to RCRA Subtitle I during 2005.

Used Oil Management

ECL Articles 3, 23 and 27 authorize the Department to promote resource recovery and preserve and enhance the State’s air, water and land resources. Article 23 authorizes the Department to implement regulations governing used oil collectors, re-refiners and retention facilities, in conformance with ECL Article 27. Article 27 requires the promulgation of regulations governing the operation of solid waste management and hazardous waste management facilities. Pursuant to ECL section 27-0900, the hazardous waste management regulations must be at least as broad and as stringent as those established by EPA under RCRA.

3. NEEDS AND BENEFITS

Petroleum Bulk Storage

The adoption of this proposed rule would ensure that the Department continues to receive grant funds which are vital to implementation and enforcement of the State’s PBS program.

Many regulated entities with UST systems should find it easier and less expensive to comply with State regulatory requirements because they would be more consistent with federal regulatory requirements. The Department anticipates that this would result in increased compliance.

Some important definitions are added or clarified in the proposed rule, including: “UST system,” (essentially equivalent to 40 CFR Part 280); classes of operators; various forms of tank capacity; “facility;” “farm” (same as “farm tank” in 40 CFR Part 280); “petroleum” (incorporates federal concept of a complex blend of hydrocarbons); and “petroleum mixture.”

Under proposed Subpart 613-2, operators and tank system owners must designate operators for every UST system or group of UST systems. There are three operator classes (A, B and C) to enable training to be focused on the particular level of knowledge required.

Consistent with federal requirements, there would be three key components to the operator training program: training, assessment of knowledge, and verification. Under proposed section 613-2.5, training could be accomplished by any method selected by the operator (self-study, online, or in-person classes). The Department will develop a test to allow operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of UST systems.

The new requirements of proposed Subpart 613-5 would allow the Department to prohibit deliveries of petroleum to tank systems that are in significant non-compliance with the proposed rule.

Used Oil Management

Most of the Department’s used oil regulations are contained in 6 NYCRR Subparts 374-2 and 360-14. Proposed Part 613 includes standards for PBS tank systems that are applicable to tanks storing used oil.

The provisions of section 370.1(e)(2) and Subpart 374-2 are revised to address changes to definitions and cross-references related to proposed Part 613. In addition, revisions are proposed to account for changes to 40 CFR Part 279.

The proposed rule incorporates into State regulations revisions made to federal regulations between July 30, 2003 and April 13, 2012.

4. COSTS

Petroleum Bulk Storage

There would be costs incurred by facilities subject to the operator training requirements of proposed section 613-2.5. Within 30 days of being designated, every Class A and B operator must adequately perform on an assessment of knowledge of regulatory requirements applicable to the relevant operator class. Before being designated, every Class C operator must be trained and tested by the Class A or B operator. Operators of tank systems that are not regulated under 40 CFR Part 280 are exempt from this requirement. The Department will develop tests for Class A and B operators and training materials, for which there will be no charge. Costs for Class A and B operators would be limited to costs associated with the time to prepare and take the test. Retesting or new operator designation would be required within 30 days of a Department determination that the relevant underground tank system is significantly out of compliance.

The proposed rule would eliminate or reduce costs incurred by certain facilities under existing rules, due to: (1) elimination of the requirement to perform inventory monitoring for tank systems which store motor fuel or kerosene that will not be sold; (2) introduction of a uniform records retention schedule with three time periods (three years, five years, or the life of the facility) depending upon the record type; and (3) elimination of periodic tank testing for UST systems subject to regulation under 40 CFR Part 280.

The Department would incur costs to develop and administer the operator training and delivery prohibition. Approximately $5,000 would be needed to procure tags and associated materials to implement the delivery prohibition requirements. The amount of staff time needed to accomplish these tasks cannot be determined until the implementation details have been finalized. This will be accomplished while the rule making process is being completed. The Department would continue to partially cover its personal and non-personal costs through registration application fees. The proposed rule does not impose any costs on state agencies or local governments.

Used Oil Management

These proposed amendments would not result in any additional costs to the regulated community. Actual requirements for used oil handlers based upon the revised definitions would remain the same. EPA’s cost analyses of these regulatory amendments noted no added expenses to the regulated community (68 FR 44663 – 44665, 70 FR 34552 -34553, 71 FR 40257).

Implementation of the proposed revisions to the used oil regulations would not result in additional costs to the Department, because they do not create new regulatory programs, expand existing regulatory programs, or increase the universe of the regulated community.

Conformance with these amendments would not impose additional costs on other State agencies or local governments.

5. LOCAL GOVERNMENT MANDATES

No additional recordkeeping, reporting, or other requirements would be imposed on local governments.

6. PAPERWORK

The proposed rules contain no substantive changes to existing reporting and record keeping requirements. Facilities would be required to retain records of operator training once the requirement for training goes into effect.

7. DUPLICATION

Petroleum Bulk Storage

One of the main goals of this proposed rule is to reduce duplication. The proposed rule represents a harmonization of existing State PBS and federal UST program requirements which use inconsistent terminology.

Used Oil Management

The proposed amendments would not result in a duplication of State regulations. Changes to cross-references and definitions would better align the used oil regulations with the State PBS regulations, by correcting cross-references to the PBS regulations and reducing conflicting requirements. By adopting the recent federal regulations, New York would not only retain authorization, but also reduce duplicative State and federal regulation of used oil in the State.

8. ALTERNATIVES

Petroleum Bulk Storage

The Department considered three alternatives when developing proposed Part 613: (1) no action, (2) a single-phase revision of all PBS regulatory requirements, and (3) a two-phase revision.

The Department declines to take no action because: (1) existing rules should, with respect to new tank systems, be updated to reflect the state of the art technologies and practices for the installation and operation of facilities; (2) existing rules do not adhere to the 2008 revisions to Title 10; (3) the rule making should increase compliance because many facilities with UST systems would find it easier and less expensive to comply with State and federal regulatory requirements that are more consistent and (4) the rule making would ensure the Department does not lose crucial federal funding.

The Department’s second alternative was to propose a rule that includes more stringent requirements, including a requirement that all existing facilities (Category 1 and Category 2 tank systems in proposed rule) be upgraded to new tank system standards or be closed. The Department declined to pursue this alternative for a number of reasons, including the high likelihood that the Department will be obligated to undertake a second rule making to incorporate the revisions found in the newly revised federal regulations.

Used Oil Management

For the federal changes which increase stringency, amending Subpart 374-2 is the only viable alternative available for assuring that the Department’s regulations remain at least as stringent as the federal rules. The no-action alternative would result in the State’s loss of authorization to administer the used oil program in lieu of EPA’s implementation of the federal program. If this were to occur, the regulated community would need to satisfy two sets of regulations (i.e., federal and pre-existing State) and the Department would suffer a loss of federal grant monies.

9. FEDERAL STANDARDS

Petroleum Bulk Storage

The proposed rule might be viewed as exceeding the requirements of 40 CFR Part 280 because it incorporates technology and operating standards that were only proposed as compliance options in the then proposed federal rule making. However, because the Part 280 compliance options incorporated into proposed Part 613 are actually widely-followed industry standards for new tank systems, the Department believes these standards do not exceed minimum federal standards.

Used Oil Management

The proposed changes would increase consistency between state and federal regulations and between the State’s PBS and used oil regulations.

10. COMPLIANCE SCHEDULE

Petroleum Bulk Storage

Operators of certain UST systems would need to complete operator training and testing requirements within one year of the effective date of the rule. With regard to all other requirements, the regulated community would be required to comply upon adoption of the proposed rule.

Used Oil Management

The regulated community would be required to comply upon adoption of the proposed rule.

Revised Regulatory Flexibility Analysis

1. EFFECT OF RULE

The proposed rules would apply statewide in all 62 counties of New York State (State). Proposed Part 613 represents a consolidation of existing State and federal requirements. None of the revisions to the proposed rules include any substantive changes to existing requirements concerning petroleum bulk storage (PBS) or used oil.

The New York State Department of Environmental Conservation (Department) does not collect data with respect to the number of the persons employed by the owner or operator of any subject facility. The Department does not presently collect data on the industrial classification of a registered facility. The Department does not have data on the corporate structures that may exist for a particular facility owner or operator which may have a bearing on determining how many persons are employed by the owner or operator. The Department only collects information regarding the name, address, and contact information for the owner and operator of each 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 PBS rules (6 NYCRR Parts 612 through 614) or would be required to comply with proposed Part 613.

The most common types of subject facilities are apartment/office buildings, retail gasoline sales, vehicle repair shops, schools, trucking or fleet operations, and municipalities. There are approximately 38,500 registered facilities in the Department’s PBS database. The Department believes that the great majority of the owners and operators of these facilities would likely be properly categorized as small businesses.

The Department does collect data on whether registered facilities are owned by local governments. There are approximately 4,435 PBS facilities identified as registered by local governments. The Department believes that the types of facilities registered by local governments tend to be vehicle fleet fueling locations for municipal vehicle pools and school district transportation departments.

2. COMPLIANCE REQUIREMENTS

The proposed rules contain no substantive changes to requirements that are imposed on subject facilities under existing statutory and regulatory authorities.

3. PROFESSIONAL SERVICES

No new or additional professional services are likely to be needed by facilities owned by small businesses or local governments to comply with the proposed rules.

4. COMPLIANCE COSTS

Under proposed Part 613, operators and tank system owners must designate operators for every underground storage tank (UST) system or group of UST systems that is subject to the requirements of Subpart 613-2. There would be three operator classes (A, B and C) to enable training to be focused on the particular level of knowledge required.

Consistent with federal requirements, there would be three key components of the operator training program: training, assessment of knowledge, and verification. Under proposed section 613-2.5, training could be accomplished by any method selected by the operator (self-study, online, or in-person classes). The New York State Department of Environmental Conservation will develop training materials and an examination to allow for operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of UST systems. It is anticipated that the exam would primarily be administered online. The Department recognizes that online testing may not be a viable option for some operators and therefore proposes to provide in-person exam options.

There would be costs incurred by facilities subject to the operator training requirements of proposed section 613-2.5. Within 30 days of being designated, every Class A and B operator must adequately perform on an assessment of knowledge of regulatory requirements applicable to the relevant operator class. Before being designated, every Class C operator must be trained and tested by the Class A or B operator. Operators of heating oil tank systems (and other tank systems that are not regulated under 40 CFR Part 280) are exempt from this requirement. Self-study can be conducted at no cost and training courses are optional. The Department will develop tests for Class A and B operators. The Department will also develop training materials and make them publicly available. There will be no charge for the training materials or for an operator to take the test. Costs for Class A and B operators would be limited to costs associated with the time to prepare and take the test. Retesting or new operator designation would be required within 30 days of a Department determination that the relevant UST system is significantly out of compliance.

The proposed rule would eliminate or reduce costs that are incurred under the existing rules by certain facilities. These cost reductions are attributable to the following features of the proposed rule: (1) the elimination of the requirement to perform inventory monitoring for tank systems which store motor fuel or kerosene that will not be sold; (2) the introduction of a uniform records retention schedule with three time periods (three years, five years, or the life of the facility) depending upon the record type; and (3) the elimination of periodic tank testing for UST systems that were upgraded in accordance with 40 CFR Part 280.

Small businesses and local governments would not incur any additional costs, either initial capital costs or annual compliance costs, to comply with the changes to section 370.1(e)(2) or Subpart 374-2 affecting used oil management. Some changes would make the State regulations consistent with federal regulations.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY

The proposed rules contain no substantive changes to requirements that are imposed on subject facilities under existing statutory and regulatory authorities. Implementation of the proposed rules would be economically and technologically feasible for small businesses and local governments.

6. MINIMIZING ADVERSE IMPACT

Because proposed Part 613 represents a harmonization of existing State and federal requirements involving PBS, the Department does not believe that the proposed rule would have an adverse economic impact on small businesses or local governments. Since changes to section 370.1(e)(2) or Subpart 374-2 pertaining to used oil management would make State regulations consistent with federal regulations, this proposed rule would also not have an adverse economic impact on small businesses or local governments.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION

The Department continues to provide statewide outreach to regulated parties and interested persons, including small businesses and local governments. In 2011, 2012, and 2013, the Department made presentations to various petroleum associations (for example, Empire State Petroleum Association, New York State Conference of Mayors and Municipal Officials (NYCOM), and New York State Automobile Dealers Association) at conference venues. The Department also continues to post relevant information on its website to assist the owners and operators of subject facilities with understanding and implementing the requirements of the PBS Program. And, the Department maintains listservs to which persons may subscribe so that they can receive information about new developments regarding the PBS, hazardous waste and used oil management programs.

Pursuant to ECL section 17-1013, a State Petroleum Bulk Storage Advisory Council (Council) was created within the Department to advise the Department on the proposal, preparation, and revision of the regulations written to implement necessary requirements for PBS facilities. Included in the Council’s membership are small business owners and local governments (through NYCOM). Council members have professional training or experience to analyze and interpret content of the PBS regulations. As drafts of proposed Part 613 were prepared, the Department shared the drafts with the Council and convened meetings or conference calls to discuss the Council’s comments and answer any questions.

The Department has an ongoing education program for vehicle maintenance shops subject to the requirements of Subpart 374-2. As part of this program, workshops are conducted with trade associations throughout the State upon request. In addition, the Department has a guidance manual available that explains the regulatory requirements for vehicle maintenance shops and an accompanying self-audit checklist. The Department also maintains information on its website.

8. CURE PERIOD OR OTHER OPPORTUNITY FOR AMELIORATIVE ACTION

State Administrative Procedure Act (SAPA) section 202-b(1-a) provides as follows:

In developing a rule for which a regulatory flexibility analysis is required and which involves the establishment or modification of a violation or of penalties associated with a violation, the agency shall: (a) include a cure period or other opportunity for ameliorative action, the successful completion of which will prevent the imposition of penalties on the party or parties subject to enforcement; or (b) include in the regulatory flexibility analysis an explanation of why no such cure period was included in the rule.

Proposed Subpart 613-5 would provide for the possible imposition of a delivery prohibition on any tank system for which the Department finds a Tier 1 or Tier 2 condition exists. The statutory basis for imposition of a delivery prohibition is found in ECL section 17-1007(4) as amended during 2008. The Department considers a delivery prohibition to be a penalty within the meaning of SAPA section 202-b(1-a).

The delivery prohibition would only be imposed without prior notice and opportunity for hearing when the Department finds that a Tier 1 condition exists with respect to a tank system. Tier 1 conditions would be regulatory violations that constitute imminent and serious threats to public health and the environment. Tier 1 conditions would include: (1) a tank system is known to be releasing petroleum, and (2) a UST system covered under section 613-2.1(a), 613-3.1(a)(2), or 613-3.1(a)(4) lacks infrastructure or equipment needed to meet secondary containment, spill and overfill prevention, corrosion protection, or leak detection requirements. The severity of the threat generally posed by Tier 1 conditions militates against the provision of any cure period that would allow the threat to continue.

The designation of a tank system that is releasing petroleum as a Tier 1 condition is supported by the existing prohibition on the operation of any leaking tank system. ECL section 17-1007(3) (enacted during 1983) provides that the operation of any leaking tank system and associated equipment is unlawful and the contents of any leaking tank system must be promptly removed. To allow for the continued operation of a tank system that is releasing petroleum during a cure period would be in direct contravention of ECL section 17-1007(3).

With respect to the other Tier 1 conditions involving equipment deficiencies at a UST system, the violations are generally of a kind that is not quickly ameliorated. The absence of required equipment, such as corrosion protection, usually requires substantial installation work that involves the excavation of soil around the UST system.

When the Department finds that a Tier 2 condition exists, imposition of a delivery prohibition would not occur until after a cure period occurs. The cure period that follows a Department finding of a Tier 2 condition would last either ten or 30 days depending on the circumstances. See section 613-5.1(b)(4).

There is some similarity between the circumstances described as a Tier 1 condition at section 613-5.1(a)(3)(ii) (regarding tank systems covered under sections 613-2.1(a), 613-3.1(a)(2), or 613-3.1(a)(4)) and the Tier 2 condition described at section 613-5.1(b)(4)(iii)(regarding tank systems covered under sections 613-3.1(a)(1) or 613-3.1(a)(3)). Both circumstances include the lack of essential infrastructure or equipment needed to meet secondary containment, spill and overfill prevention, corrosion protection, and leak detection requirements for UST systems. However, the Department determined that only the circumstances described at section 613-5.1(a)(3)(ii) warrant the allowance of a cure period before the delivery prohibition is imposed. The reason for the different treatment of USTs under these provisions is due to the different characteristics of the facilities being covered. The facilities subject to section 613-5.1(b)(4)(iii) are generally critical to public health and safety. These facilities include heating oil used for on-premises consumption (most often apartment buildings) and emergency generators at nuclear power plants. If these facilities were invariably ordered to cease operating while equipment is put in place, apartment dwellers may lose all heat during the winter or nuclear facilities could lose essential backup power capacity.

Revised Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS

For purposes of this Rural Area Flexibility Analysis, “rural area” means those portions of the state so defined by Executive Law section 481(7). State Administrative Procedure Act section 102(10). Under Executive Law section 481(7), rural areas are defined as “counties within the state having less than two hundred thousand population, and the municipalities, individuals, institutions, communities, programs and such other entities or resources as are found therein. In counties of two hundred thousand or greater population, “rural areas” means towns with population densities of one hundred fifty persons or less per square mile, and the villages, individuals, institutions, communities, programs and such other entities or resources as are found therein.” 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 proposed rules would apply statewide so they would apply to all rural areas of the State.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES

The proposed rule contains no substantive changes to requirements that are imposed on subject facilities under existing statutory and regulatory authorities. The proposed rule would not impose requirements on facilities located in rural areas in a manner different from those imposed on facilities in non-rural areas. No different or additional professional services would likely be needed by facilities in rural areas by virtue of their rural location.

3. COSTS

Under proposed Part 613, operators and tank system owners must designate operators for every underground storage tank (UST) system or group of UST systems that is subject to the requirements of Subpart 613-2. There would be three operator classes (A, B and C) to enable training to be focused on the particular level of knowledge required.

Consistent with federal requirements, there would be three key components of the operator training program: training, assessment of knowledge, and verification. Under proposed section 613-2.5, training could be accomplished by any method selected by the operator (self-study, online, or in-person classes). The New York State Department of Environmental Conservation (Department) will develop training materials and an examination to allow for operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of UST systems. It is anticipated that the exam would primarily be administered online. The Department recognizes that online testing may not be a viable option for some operators and therefore proposes to provide in-person exam options.

There would be costs incurred by facilities subject to the operator training requirements of proposed section 613-2.5. Within 30 days of being designated, every Class A and B operator must adequately perform on an assessment of knowledge of regulatory requirements applicable to the relevant operator class. Before being designated, every Class C operator must be trained and tested by the Class A or B operator. Operators of heating oil tank systems (and other tank systems that are not regulated under 40 CFR Part 280) are exempt from this requirement. Self-study can be conducted at no cost and training courses are optional. The Department will develop tests for Class A and B operators. The Department will also develop training materials and make them publicly available. There will be no charge for the training materials or for an operator to take the test. Costs for Class A and B operators would be limited to costs associated with the time to prepare and take the test. Retesting or new operator designation would be required within 30 days of a Department determination that the relevant UST system is significantly out of compliance.

The proposed rule would eliminate or reduce costs that are incurred under the existing rules by certain facilities. These cost reductions are attributable to the following features of the proposed rule: (1) the elimination of the requirement to perform inventory monitoring for tank systems which store motor fuel or kerosene that will not be sold; (2) the introduction of a uniform records retention schedule with three time periods (three years, five years, or the life of the facility) depending upon the record type; and (3) the elimination of periodic tank testing for UST systems that were upgraded in accordance with 40 CFR Part 280.

The proposed rules would not impose costs on facilities in rural areas that are different or additional to those incurred by facilities in non-rural areas. There would be no likely variation in costs incurred by public and private entities in rural areas.

4. MINIMIZING ADVERSE IMPACT

Since this rule making is a harmonization of existing State and federal requirements, the Department believes that the proposed rules would not cause an adverse impact on any rural area.

5. RURAL AREA PARTICIPATION

The Department continues to provide statewide outreach to regulated communities and interested parties, including those in rural areas of the State. In 2011, 2012 and 2013, the Department made presentations to various petroleum associations (for example, Empire State Petroleum Association, New York State Conference of Mayors and Municipal Officials, and New York State Automobile Dealers Association) at conference venues. The Department also continues to post relevant information on its website to assist the owners and operators of subject facilities, including those located in rural areas, with understanding and implementing the requirements of the Petroleum Bulk Storage (PBS), hazardous waste and used oil management programs. And, the Department maintains listservs to which persons may subscribe so that they can receive information about new developments regarding the PBS, hazardous waste and used oil management programs.

Revised Job Impact Statement

Changes made to the Express Terms published with the Notice of Adoption do not require revisions to the Job Impact Exemption Statement that was previously published in the August 6, 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

This summary reflects the responses of the New York State Department of Environmental Conservation (DEC) to the main comments submitted by the public regarding the newly adopted Part 613 (the petroleum bulk storage (PBS) rule) and revisions to Subpart 374-2 and section 370.1(e)(2) (the used oil regulations). This rule making was proposed on August 6, 2014 and included an extended 90-day comment period that ended on November 4, 2014. A statewide webinar with nearly 500 participants was held on August 26, 2014 to explain the proposed rules and answer questions from the public. Six public information meetings/hearings were held across the state to further explain the proposed rules and receive comments. Approximately 221 comments were received on the PBS regulations and one comment on used oil.

Main Themes (where lists of issues are provided, the summary of DEC responses is in brackets)

Applicability/Definitions (section 613-1.2, 1.3; e.g., comment 4.1.2): Many comments were received asking for clarifications or interpretations of the various definitions in section 613-1.3. Examples include the definition of “operational tank system” [DEC clarified that lubricating oil system reservoirs are also operational tanks]; the status of trailer-mounted tanks serving emergency generators [non-stationary/mobile tanks are not regulated]; the status of tank systems storing asphaltic emulsions [regulated]; whether tank systems covered with “materials” (e.g., earth, concrete) are underground storage tank (UST) systems [if they cannot be inspected for condition/leaks or are not otherwise explicitly excluded from the definition, they are USTs]; whether airport hydrant systems are UST systems [generally not]; and whether an AST system that has been out of service for more than 12 months must be permanently closed [not if there are other tank systems in-service at the facility].

Unannounced Inspections (section 613-1.4; e.g., comment 4.1.29): Several commenters expressed their opinion that all DEC facility compliance inspections should be preannounced so that facility representatives can be prepared and inspections can focus more on compliance assistance rather than strict enforcement. Although the great majority of DEC’s inspections are preannounced, some are unannounced. Concern was raised that the regulatory language is inconsistent with the law. The response explained that the text of Part 613 represents no change in DEC’s inspection authority. In addition, DEC revised the proposed version of Part 613 to more closely conform to the statutory language regarding the provision of reasonable notice of an inspection. Reasonable notice does not necessarily require that an inspection be announced days in advance. Reasonable notice may consist of going to the facility and asking the operator for permission to inspect the facility. There is nothing unreasonable about unannounced inspections. Inspections that are not announced in advance allow the opportunity for inspectors to see how the facility is usually operated and limit the facility’s ability to hide deficiencies in equipment and operations.

Registration of Facilities (section 613-1.9; e.g., comment 4.1.13): Several questions were asked about how to interpret the “new” definition of “facility” (changed under the law in 2008 and implemented through Part 613) for the purposes of registering a facility. The owner of the property where the tanks are located (or its authorized representative) is required to register a facility. However, at a single facility there sometimes are multiple property owners, multiple tank owners, and the tank systems may be used for different purposes. Therefore, it is not always clear who should register the individual tank systems and when it is appropriate to have multiple independent facilities located on a single property. The response explained that DEC recognizes that there are situations involving multiple tank owners who are operationally independent with tank systems that are co-located on a single property. An example is when multiple independent telecommunication companies have emergency power generation systems with fuel tanks on a single property. In certain limited situations, DEC may allow more than one registration for a site. DEC will take into account the property and tank ownership issues, whether the operators are independent from each other, the feasibility of having all tanks listed under one registration, and whether tank systems are being used for a “common purpose” when deciding whether multiple tank systems on a single property should be registered as one or more facilities. When there is a single tank operator with multiple tank owners, the facility registration must include all tanks that are under the control of the tank operator.

Technical Standards for Tank System Design, Construction, and Installation (section 613-1.10; e.g., comment 4.3.2): Several commenters requested that additional standards for the design, construction, and installation of tank systems be included in the regulation. DEC explained that the inclusion of additional standards will be considered in the second phase of rulemaking that is to begin after Part 613 is promulgated.

As-Built Drawings of Tank Systems (section 613-2.1; e.g., comment 4.2.6): Part 613 requires that when an UST tank system is installed, the owner must keep and provide to DEC upon request a drawing showing the location of the tank(s) and piping and details about the size and various components of the tank system. This information is needed to verify that the facility has the proper equipment and that if a leak occurs, the drawings and details can be used to expedite an investigation and remediation of the problem. Owners of older systems submitted comments expressing concern that the original as-built information was either not provided to the owner or is no longer available and that it will be very expensive to create new documents. DEC responded that an accurate diagram showing the approximate (not surveyed) locations of the tank systems is sufficient.

Operator Training (section 613-2.5; e.g., comment 4.2.26): Several commenters requested details about how the operator training program will work. When Part 613 goes into effect, tank system operators will have one year to become trained on topics specified in section 613-2.5 and to pass an exam approved by DEC, or obtain a credential issued by another state with a program acceptable to DEC. Anticipating these comments, DEC released a proposed program policy (DER-40, “Operator Training”) which was made available for public comment at the same time as Part 613 was proposed. In addition, since the release of the proposed regulations and policy, DEC has developed and made available to the public a draft operator training manual (“Tank IQ”) which addresses all of the topics required by Part 613, and has developed an online exam which will be used to determine which operators are competent to be authorized to operate tank systems.

An extensive pilot program to test the online exam was completed in April, 2015. Over 200 volunteers from the regulated community took the pilot exam in 13 proctored locations across the state. The pilot exam included effectively all of the questions that will be used in the live/formal exam (over 300 questions; the live exam will have between 50-85 questions depending upon operator class). With the assistance of an expert in giving competency exams (psychometric expert), the results of the pilot exam were evaluated, adjustments were made, and difficulty ratings were assigned to all questions. The results of a survey regarding the exam and the guidance material provided positive feedback and good suggestions for fine tuning the guidance and exam. DEC believes that the provision of the guidance, the program policy, and the experience from the pilot exam substantially address the issues raised in the public comments. There was a comment that DEC should provide more than one year for operators to pass the exam but DEC maintains that one year is sufficient.

Secondary Containment for AST Systems (section 613-4.1; e.g., comment 4.4.6): Several comments were received expressing concern about a proposed revision that clarifies when smaller ASTs require secondary containment. The existing and proposed regulations require that ASTs with a design capacity of more than 10,000 gallons must have secondary containment and that smaller ASTs require secondary containment if a release from the smaller AST would threaten nearby waters of the state or sensitive resources. The existing regulation required secondary containment for smaller ASTs if a release from the tank “could reasonably be expected to discharge petroleum to the waters of the state.” Since any discharge could theoretically result in an impact to the “waters of the state,” DEC issued guidance in 1990 (TOGS 4.1.10) that limited which ASTs need secondary containment. These limitations were reaffirmed in 2011 when DEC issued DER-25, “Petroleum Bulk Storage (PBS) Inspection Handbook.” Commenters were concerned that incorporating the guidance into Part 613 gives it more weight and that DEC inspectors will be requiring many more tanks to be provided with secondary containment. DEC’s response explained that the approach to AST secondary containment requirements in Part 613 represents no change from how the existing requirements are implemented through the existing regulation and supplemental guidance. Part 613 clarifies that smaller ASTs “in close proximity to sensitive receptors [are] required to either have secondary containment. . . or utilize a design/technology such that a release is not reasonably expected to occur” (section 613-4.1(b)(1)(v)(b)).

Delivery Prohibition (Subpart 613-5; e.g., comment 4.5.1): Several comments were submitted expressing concern about the process DEC will use when it is necessary to prohibit the delivery of petroleum to a tank system because the system is either leaking, may be leaking, or the equipment/procedures are not in place to determine if the system is leaking. Most of the concerns relate to the time needed to resolve the issue and remove the delivery prohibition tag on the fill pipe of the tank system. DEC’s response explained that Part 613 includes many features designed to ensure that prohibitions are not indiscriminately applied, an opportunity for a hearing is automatically provided, and that the process is completed expeditiously. There was a comment that utilities should be exempt from the process because a disruption of service would threaten public health and safety. DEC explained that it has the authority to terminate the prohibition on its own initiative. If the situation calls for imposing a delivery prohibition, DEC’s opinion is that it is reasonable for the violator to fix or replace the tank system or equipment within 180 days or to come into compliance with the terms of a consent order that includes an appropriate schedule and any needed remedial measures. If warranted, DEC could seek a summary abatement order, negating the need for a delivery prohibition. The law (ECL section 17-1007(3)) forbids the operation of tank systems that are leaking petroleum. There are no exceptions to this mandate.