Revised Summary Of Regulatory Impact Statement - 6 NYCRR Parts 595-599
Repeal of:
6 NYCRR Part 595, Releases of Hazardous Substances
6 NYCRR Part 596, Hazardous Substance Bulk Storage Regulations
6 NYCRR Part 597, List of Hazardous Substances
Addition of:
6 NYCRR Part 596, Hazardous Substance Bulk Storage Facility Registration
6 NYCRR Part 597, Hazardous Substances Identification, Release Prohibition, and Release Reporting
Amendments to:
6 NYCRR Part 598, Handling and Storage of Hazardous Substances
6 NYCRR Part 599, Standards for New Hazardous Substance Tank Systems (formerly Standards for New or Modified Hazardous Substance Storage Facilities)
1. Statutory Authority
The State law authority that empowers the Department of Environmental Conservation (Department) to regulate the storage and handling of hazardous substances is found in Title 1 of Article 37 of the Environmental Conservation law (ECL), sections 37-0101 through 37-0111, entitled "Substances Hazardous to the Environment" (Article 37), and ECL Article 40, sections 40-0101 through 40-0121, entitled "Hazardous Substances Bulk Storage Act" (Article 40). The Department is authorized to adopt regulations to implement the provisions of the ECL under ECL sections 3-0301(2)(a) and (m). ECL Articles 3 and 17 provide authority regarding access to facilities, premises, and records. The Department's existing rules with respect to chemical bulk storage (CBS) are found at 6 NYCRR Parts 595 through 599.
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 CBS underground storage tanks (USTs). The EPA implementing rule is found at 40 Code of Federal Regulations (CFR) Part 280.
2. Legislative Objectives
The legislative objectives inherent in the statutory authority are the safe storage and handling of hazardous substances to minimize the threats to public health and the environment that come from their release to the environment. The repeal and replacement of, or revisions to, the existing rules to be accomplished through the proposed rules would meet these legislative objectives and reflect the statutory changes that were made to Articles 37 and 40 in 2008 (see Ch. 334, L. 2008). Adoption of the proposed rules would ensure that the environmental and public health protections afforded by the existing Parts 595 through 599 and 40 CFR Part 280 are continued and enhanced. The 2008 statutory changes were made principally in order to allow State consistency with new federal requirements enacted as revisions to RCRA Subtitle I during 2005..
3. Needs and Benefits
The adoption of these proposed rules would ensure that the Department continues to receive grant funds which are vital to implementation and enforcement of the State's CBS program.
Many regulated entities with underground tank 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 definitions are added or clarified in the proposed rule. The definition of "underground tank system" under the proposed rule would be essentially equivalent to the definition of "underground storage tank" that is found in 40 CFR Part 280. Different classes of operators are defined for the purposes of operator training. The definition of "tank system" is essentially substituted for the terms "tank" and "storage tank system." The definitions of "underground tank system" and "aboveground tank system" make usage of these terms consistent with the operation of 40 CFR Part 280. The definition of "tank system" includes exclusionary text that currently is found in the "applicability" section of existing Part 596 (section 596.1(b)(3)). The term "farm" would be added to clarify one of the exemptions and would be consistent with the same term in 6 NYCRR Part 613. The terms "stationary tank" and non-stationary tank" are replaced by the terms "tank system," "stationary device," and "container." In order to be consistent with 40 CFR Part 280 and ECL Articles 37 and 40, the definitions of "hazardous substance" found in the existing Parts 596 and 597 would be revised and clarified. The definition of "hazardous substance mixture" is added to address the issue of petroleum additives (that is, petroleum mixed with hazardous substances) and to clarify the threshold at which the proposed rules would not be applicable.
Pursuant to ECL section 37-0103(2)(c), the Department is required to update the Part 597 tables to include all substances defined as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 USC sections 9601 through 9675, as it may be amended from time to time. EPA maintains its CERCLA list of hazardous substances at 40 CFR Part 302. In order to be consistent with changes to 40 CFR Part 302 made since Part 597 was last promulgated, 19 substances would be added (36 names added including synonyms) and four substances would be deleted (three names deleted) from the two tables listing hazardous substances in Part 597.
Under the proposed Part 598, operators and tank system owners must designate operators for every underground tank system or group of underground tank 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 598.12, 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 for operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of underground tank systems.
The new requirements of proposed section 598.13 would allow the Department to prohibit deliveries of hazardous substances to tank systems that are in significant non-compliance with the proposed rule.
The requirements concerning release reporting, and spill response, investigation, and corrective action, found in existing Parts 595 and 596, would be moved to proposed Part 598. Public participation provisions would be added to Part 598.
4. Costs
There would be costs incurred by facilities subject to the operator training requirements of proposed section 598.12. Within 30 days of assuming his or her duties, every Class A and B operator must adequately perform on an assessment of knowledge of regulatory requirements applicable to the relevant operator class. Before assuming his or her duties, 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 Department would incur costs to develop and administer the operator training and delivery prohibition requirements. Approximately $5,000 will 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 service costs through registration application fees. The proposed rules would not impose any additional costs on state agencies or local governments that own or operate facilities.
5. Local Government Mandates
No additional recordkeeping, reporting, or other requirements not already created by statute would be imposed on local governments.
6. Paperwork
The proposed rule contains 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
One of the main goals of these proposed rules is to reduce duplication. The proposed rules represent a harmonization of existing State CBS and federal UST program requirements which use inconsistent terminology.
8. Alternatives
The Department considered three alternatives when developing the proposed Parts 596-599: (1) no action, (2) a single-phase revision of all regulatory requirements that affect CBS including a new structure, and (3) a two-phase revision.
The Department declines to take no action for four interrelated reasons. First, the tables that list hazardous substances must be updated to reflect the changes to the listing of hazardous substances found in 40 CFR Part 302. Second, the existing rules do not adhere to the 2008 revisions to Article 40, including the implementation of the major changes to RCRA Subtitle I enacted during 2005. The major changes were the new requirements for operator training and the authority to prohibit the delivery of hazardous substances to facilities that are in significant non-compliance with the requirements of the CBS program. Third, compliance by facilities having underground tank systems should increase by taking the proposed action because the Department anticipates that these facilities would find it easier and less expensive if they have only one regulatory program to follow. Fourth, under the no-action alternative, the Department would lose crucial federal funding that supports implementation and enforcement of its CBS program.
The Department's second alternative was to propose a rule that would adopt the structure of 40 CFR Part 280 and include more stringent requirements, such as what EPA included in their proposed revision to 40 CFR Part 280. For two reasons, the Department declined to pursue the second alternative and instead chose to make changes to its CBS program through two separate rule makings, of which this rule making constitutes the first phase. The reasons are: (1) the high likelihood that the Department will be obligated to undertake a second rule making to incorporate the presently uncertain revisions to the applicable federal requirements once the currently pending federal rule making is completed, and (2) the amount of time required for staff to modify the structure of the State regulations to mirror the structure of 40 CFR Part 280.
9. Federal Standards
No federal standards will be exceeded by promulgating the proposed rules.
10. Compliance Schedule
Operators of underground tanks 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 rules.
