Revised Regulatory Impact Statement Summary - 6 NYCRR Part 597
Amendments to:
Part 597 - Hazardous Substances Identification, Release Prohibition, and Release Reporting
1. Statutory Authority
The State law authority that empowers the New York State Department of Environmental Conservation (Department) to create a 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 to implement ECL provisions (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 create and maintain "a list of substances hazardous to the public health, safety or the environment," including substances which, "because of their quantity, concentration, or physical, chemical or infectious characteristics cause physical injury or illness when improperly treated, stored, transported, disposed of, or otherwise managed" or "pose a present or potential hazard to the environment when improperly treated, stored, transported, disposed of, or otherwise managed."
2. Legislative Objectives
The legislative objectives of Article 37 include prevention of pollution, protection of natural resources such as groundwater, and requiring safe storage and handling of hazardous substances in order to protect public health and the environment.
3. Needs And Benefits
The purpose of this rule is to:
• Add perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1), perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), and perfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) (also collectively referred to within as PFOA and PFOS) to the list of hazardous substances at 6 NYCRR Section 597.3 (Section 597.3);
• Allow continued use of firefighting foam that may contain PFOA or PFOS to fight fires (but not for training or any other purposes) on or before April 25, 2017 even if such use may result in the release of a reportable quantity (RQ), which is otherwise prohibited; and
• Correct the list of hazardous substances by providing units for RQs
Needs and Benefits of Adding PFOA and PFOS to the List of Hazardous Substances
The Department concluded that these substances meet the definition of hazardous substances based upon the conclusion of New York State Department of Health (NYSDOH) that prolonged exposure to significantly elevated levels of these compounds can affect health and, consequently, pose a threat to public health in the State when improperly treated, stored, transported, disposed of, or otherwise managed. The Department also concluded that these substances meet the definition of hazardous substances based upon a Department ecotoxicologist's identification of these compounds as potential hazards to the environment. Proper management of these compounds is needed to protect public health and the environment.
As documented in NYSDOH's April 11, 2016 Health Hazard Review, appended to NYSDOH's April 20, 2016 letter requesting the Department's listing of PFOA and PFOS as hazardous substances and attached to the full Regulatory Impact Statement, the combined weight of evidence from human and experimental animal studies indicates that prolonged exposure to significantly elevated levels of these compounds can adversely affect health and, consequently, pose a threat to the public. In addition, as documented by Department ecotoxicologist Timothy J. Sinnott in two October 7, 2016 evaluations of Environmental Risk, attached to the full Regulatory Impact Statement, each of these four compounds (PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt) poses a potential hazard to the environment.
There are at least three benefits of listing PFOA and PFOS as hazardous substances in 6 NYCRR Part 597 (Part 597). First, if a mixture containing PFOA or PFOS in concentrations of 1% or more is stored in an aboveground tank of 185 gallons or more or any size underground tank, the tank would be subject to the requirements of the Chemical Bulk Storage (CBS) regulations (6 NYCRR Parts 596 - 599). Second, this rule prohibits releases of an RQ of PFOA or PFOS, subject to the limited exception of 6 NYCRR 597.4(a). Third, if PFOA or PFOS is released into the environment, creating contamination that represents a significant threat to public health or the environment, resulting in the need for site cleanup, the Department is authorized to pursue clean-up of the contamination under one of the Department's remedial programs (6 NYCRR Part 375). All of these benefits enhance protection of public health and the environment.
Need and Benefit of Allowing Limited Continued Use of PFOA and PFOS in Firefighting
The release prohibition includes an exception allowing entities storing firefighting foam to use the foam to fight fires, but not for training or other purposes, on or before April 25, 2017. This exception is necessary in order to ensure the availability of materials to control fires effectively to benefit public safety.
Need for Correction of the List of Hazardous Substances
After the 2015 rule making pertaining to 6 NYCRR Parts 596-599, it was determined that the units for RQs were inadvertently left out of the table causing some uncertainty regarding when a release would need to be reported. This rule adds units back to the column heading of the table so that it is clear that RQs are measured in pounds.
4. Costs
Costs to Regulated Parties
Although the production of PFOA and PFOS has been largely phased out, PFOA- and PFOS-related substances continue to be stored and used in the State.
Costs Relating Primarily to Storage
The initial costs of complying with this rule are twofold: determining whether products containing PFOA or PFOS at concentrations of 1 percent or more are stored at each facility, and registering each facility with one or more regulated storage tanks that store these hazardous substances. Information regarding the presence and concentration of PFOA or PFOS in particular substances may be available free of charge through Safety Data Sheets prepared by chemical manufacturers, distributors, and importers or access to results of analysis undertaken by business consortiums or others. In the event laboratory analysis is necessary, the Department's experience is that the cost to analyze a sample to determine the presence and concentration of PFOA or PFOS is expected to be in the several hundred dollar range. Registration fees, set forth at 6 NYCRR Section 596.3(a), are determined by the number of regulated tanks and the capacity of each tank. The fees range from $50 per tank for tanks with capacities less than 550 gallons to $125 per tank for tanks with capacities greater than 1,100 gallons. Under 6 NYCRR Section 596.2(c), these registration costs recur every two years for as long as the entity continues to store hazardous substances listed in Section 597.3.
Non-registration storage-related costs of initial and continued compliance are expected to vary primarily based on quantity of hazardous substances stored at each facility. If a facility discontinues storage by April 25, 2018, when the storage and handling standards go into effect, there will be no regulatory costs associated with storage of these substances beyond the payment of the initial registration fee. If a facility continues to store these hazardous substances after April 25, 2018, costs associated with continued compliance will include costs of annual spill prevention reports and inspection of storage equipment every five years. The Department's experience with other CBS facilities suggests that these costs may range from hundreds to thousands of dollars. The Department is unable to provide a more complete estimate of costs because it is unknown how many facilities store these hazardous substances and costs will vary greatly by facility depending on quantity of hazardous substances stored and whether professional services are utilized.
Costs Relating Primarily to Release Prohibition
Although not a cost of complying with this rule, some entities will likely incur costs to determine if stored firefighting foam contains one or more of these hazardous substances and/or to replace the foam if the use of the foam could result in the release of an RQ of a hazardous substance. The cost to replace firefighting foam, based on information gathered from firefighting foam suppliers, ranges from $16 to $32 per gallon.
Avoiding releases is not expected to present significant compliance costs because normal operations should not include releases of reportable quantities of hazardous substances.
Costs Relating to Remediation
Remediation costs are not costs of complying with this rule. However, as noted above, where PFOA or PFOS has been released into the environment, regulated entities may be subject to costs associated with remediation of these hazardous substances under Part 375.
Costs to the Department, State, and Local Government
Aside from potential costs as regulated parties, government entities are not expected to incur any costs associated with implementation or continued administration of this rule.
Department Costs for Implementation and Continued Administration
This rule is not expected to create significant new costs associated with implementation or continued administration of the CBS program because this rule making adds only four substances to the list of hazardous substances regulated by the CBS program. The Department is unable to provide a more complete estimate of costs because the number of facilities that may enter and remain in the CBS program as a result of this rule is unknown.
Costs of responding to releases of PFOA and PFOS, including costs of determining whether remediation is required and costs of overseeing and/or conducting any required remediation of these hazardous substances, may be significant. The Department is unable to provide a more complete estimate of costs expected as a result of remediation of these hazardous substances.
5. Local Government Mandates
This is not a local government mandate.
6. Paperwork
Existing reporting and record keeping requirements include: registration forms, spill prevention reports, reporting of releases above an RQ or other standard, and record keeping for inspection of storage equipment.
7. Duplication
The listing of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as hazardous substances in Part 597 causes no duplication, overlap, or conflict with Toxic Substances Control Act, the Safe Drinking Water Act or any other state or federal government programs or rules.
8. Alternatives
The Department declined to take no action because, as determined by NYSDOH and the Department, the combined weight of evidence from human and experimental animal studies indicates that prolonged exposure to significantly elevated levels of these compounds can affect health and, consequently, pose a threat to public health in the State when improperly treated, stored, transported, disposed of, or otherwise managed, and because each of these substances poses a potential hazard to the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
9. Federal Standards
Listing PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as hazardous substances exceeds the current federal approach, as USEPA has not listed PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq., or under the applicable regulation, 40 CFR Part 302 ("Designation, Reportable Quantities, and Notification").
10. Compliance Schedule
Registration:
The Department estimates that it should take approximately one hour of effort for an applicant to complete the registration application and approximately one week after submission of the registration application for the applicant to receive the registration certificate from the Department.
Handling and Storage Requirements:
For those facilities that continue to store PFOA or PFOS after April 25, 2018, achieving compliance with the storage and handling requirements may take up to several months.
Release Prohibition:
The Department estimates that it may take up to one month or longer to determine whether foam contains PFOA or PFOS, depending upon laboratory availability.
