The New York State Department of Environmental Conservation (“NYSDEC”) is proposing to revise its regulations on petroleum bulk storage. The last revision occurred in 2015. The stated purpose of the proposed revisions is to harmonize existing State regulations with Federal regulations.
The proposed regulations seek to modify existing terms, some major and some minor, and add new terms, including the following: “Accessible area,” “Ancillary equipment,” “Carrier,” “Category 1,” “Category 2,” “Category 3,” “Change-in-service,” “Class B Operator,” “Containment sump,” “Corrosion expert,” “Discovery, ” “Dispenser system,” “Facility,” “Field-constructed tank,” “Fill port catch basin,” “Flow-through process tank system,” “Gathering lines,” “Hazardous substance mixture,” “Heating oil,” “Hydrant system,” “In contact with the ground,” “Inaccessible area,” “Install or Installation,” “Leak, spill, or spillage,” “Lining,” “Operating day,” “Overfill,” “Petroleum mixture,” “Pipe,” “Primary containment,” “Release,” “Repair,” “Replaced,” “Tank,” “Tank system,” “Tightness test,” “Under-dispenser containment,” and “Underground storage tank system.”
The proposed regulations add a new paragraph to Section 613-2.4 entitled “Reporting Responsibilities,” and provide the following list of persons responsible for reporting “suspected leaks” and “spills”: “the facility owner; the tank system owner; the operator; the carrier; any contractor in a contractual relationship with the facility owner, tank system owner, or operator; any other party and its contractors who have been retained as part of a business transaction relating to the facility; any person who causes a spill at the facility.”
A new Section 613-1.11 has been added entitled “Use of Equivalent Technology.” NYSDEC is encouraging the use of superior technology, for example, in leak detection methods. The proposed regulations provide a process for which a person can seek permission from NYSDEC to use superior technology, in an effort to keep up with continuing technological advances.
The proposed regulations added a new Section 613-1.13 entitled “Enforcement,” which states that “any person who violates any of the provisions of this Part, any directive by the Department, or any order issued by the Department, shall be liable for the civil, administrative, and criminal penalties set forth in Article 71 of the Environmental Conservation Law.” Environmental Conservation Law § 17-1743 allows for fines of up to $1,000 for every violation.
This proposed section also specifically provides that when a spill has occurred, the facility may be ordered to inspect or test any tank system. If the facility fails to do so, NYSDEC will step in and conduct the inspection/testing. NYSDEC will then seek the costs for conducting the inspection/testing.
Future Climate Risk
The proposed regulations added a new Section 613-1.15 entitled “Future climate risk.” This section directs one to Environmental Conservation Law Section 17-1015, which states that NYSDEC shall promulgate rules establishing standards for existing and new PBS facilities that consider “the future physical climate risk due to sea level rise, and/or storm surges and/or flooding, based on available data predicting the likelihood of future extreme weather events, including hazard risk analysis data if applicable.”
The proposed regulations added a new Section 613-1.16 entitled “Financial Responsibility.” Upon the request of NYSDEC, an owner/operator must provide evidence of financial responsibility for corrective action and for operating, maintaining, or closing tanks. Financial responsibility may be evidenced by one or a combination of insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer or other evidence acceptable to NYSDEC.
The proposed regulations also add a new Section 613-8 entitled “Financial Responsibility,” which has more details surrounding this requirement. These requirements have been adopted from the federal regulations found in 40 CFR Part 280. The proposed regulations ensure that tank owners/operators have the necessary financial mechanisms to clean up spills that occur at their facilities and address resulting environmental and/or third-party damage caused by the spills.
50,000 Gallon Tank Facilities
The proposed regulations amend Section 613-2.1, now entitled “UST systems: design, construction, and equipment.” This section incorporates alternative tanks/piping standards/requirements for tank systems with (field-constructed) tanks greater than 50,000 gallons in design capacity, since technical and logistical issues often arise when tank systems surpass 50,000 gallons.
Transporting and Dispensing Petroleum
Proposed regulation Section 613-2.2(d)(4) outlines the different responsibilities between the operator and carrier when petroleum is delivered, providing that “[t]he operator, when on the premises or when in control of the delivery, is responsible for transfer activities. If the operator is not on the premises and is not in control of a delivery, the carrier is responsible for transfer activities.” The proposed regulations also seek to clarify what the person responsible for the transfer must do before, during, and after the delivery to minimize the risk of spills/overfills. Additionally, the proposed regulations amend the term “Carrier” to mean “a person who transports petroleum to or from a tank system. Transporting petroleum does not include dispensing petroleum from a tank system.”
Training for Operators
The proposed regulations repeal Section 613-2.5 entitled “Operator Training,” and adopt a new Section 2.5. The proposed regulations include numerous changes to operator training, including that prospective operators will no longer be able to request reciprocity for out-of-state credentials issued by another state/territory.
The proposed regulations repeal certain sections of 613-2.6 entitled “Out-of-service UST systems and closure,” and replace with new subsections. NYSDEC admits that the existing Part 613 has a somewhat conflicting view on the concept of ‘out of service,’ serving as both a status and an action that facilities can take. To resolve this, the proposed regulations detail that a tank system is out of service:
(1) when, after submitting an application to NYSDEC, a facility takes the tank system out of service; or
(2) when the tank is no longer receiving or dispensing petroleum. In both cases, the facility owner must update the tank registration with DEC to indicate that the tank system is out of service. The proposed regulations also provide that when a tank is out of service for more than 12 months, it must be permanently closed.
The proposed regulations also revise the permanent closure requirements, by clarifying the actions that must be taken for permanent closure, and providing specific methods for tank removal, in-place closure, and change-in-service. For any UST system out of service since 1986, and has not been permanently closed, the system must now be permanently closed and the excavation zone must be assessed for releases.
Revisions to General Regulations of UST Systems
There are numerous proposed revisions to Sections 613-2.1, 2.2, and 2.3 that are too numerous to detail in this blog. Additionally, similar revisions have been proposed for Part 613-3 (UST systems subject only to Title 10). The only structural difference between Subparts 613-3 and 613-2 is that Subpart 613-3 does not contain requirements for Operator Training.
The proposed regulations added a new Section 613-5 entitled “Hydrant Systems.” Hydrant systems are tank systems that fuel aircraft, watercraft, or rail vehicles, and characteristically operate under high pressure through large diameter piping, often terminating into one or more hydrants. NYSDEC created this new section due to the increased risk associated with such massive tank systems, and to help hydrant system owners/operators understand the requirements applicable to their tank systems.
Release Response and Corrective Action
The proposed regulations renumber Section 613-6 to Section 613-7 entitled “Release Response and Corrective Action.” The proposed regulations amend the applicability of this section to include “the facility owner; the tank system owner; the operator; the carrier, if the carrier is a discharger; and any person who is a discharger.” The proposed regulations make various amendments to the subsections, and outline the required initial response action, initial abatement measures and site check, initial site characterization, free product removal, investigations for soil and groundwater cleanup, corrective action plans, and public participation.
The proposed regulations include amendments to Section 613-4 regarding above-ground storage tank systems. The structure of this Section is similar to 613-2, but given the differences between a UST and AST system, the revisions to Section 613-4 are unique.