During the summer, NYSDEC issued draft revised regulations to its Petroleum Bulk Storage (PBS), the Major Oil Storage Facility (MOSF) program and the Chemical Bulk Storage (CBS) program. The revisions are intended to make the PBS and CBS regulations consistent with the federal underground storage (UST) regulations codified at 40 CFR Part 280 so that these program may qualify for delegation under 40 CFR Part 281.
Proposed PBS Revisions
The New York “Control of the Bulk Storage of Petroleum Act” (PBSA) regulates USTs and aboveground storage tanks (ASTs) that are used to store petroleum and have a combined storage capacity (either individually or collectively) of more than 1,100 gallons. Note there are slightly different threshold rules for heating oil tanks which are discussed in our companion piece on NY’s Quirky Heating Oil Tank regulations here.
The New York State Department of Environmental Conservation (NYSDEC) issued regulations implementing the PBS program in 1985 that are currently codified at 6 NYCRR 612-614. Under the draft revised regulations, NYSDEC proposes to replace at 6 NYCRR 612-614 with a new Part 613. The revised Part 613 will establish separate requirements for tanks that are regulated by the federal UST program as well as those that are only subject to the PBS program such as heating oil tanks. See our companion post on New York’s quirky heating oil regulations here.
The revisions will include requirements mandated by the federal Energy Policy Act of 2005 including ensuring that facility operators have been trained, authority to prohibit delivery of petroleum and hazardous substances to tanks that are or may be leaking, tanks operated in significant non-compliance, and requirements for piping and dispenser secondary containment. The proposed changes will also changes to the definition of “petroleum” and of “facility that were made by the 2008 amendments to PBSA.
NYSDEC has issued a number of guidance documents and policies governing USTs and ASTs that are subject to the PBS program. These documents are available here.
It should be noted that Nassau, Suffolk, Rockland, Westchester and Cortland Counties administer the program in these localities, pursuant to delegation from DEC. Because these counties may have more stringent requirements than the PBS program, owners and operators with tanks in these jurisdictions should be familiar with the specific local requirements. In particular, some of these delegated counties have adopted regulations that apply to smaller heating oil tanks than the NYSDEC PBS program.
It is important to remember that the PBS closure and corrective action requirements are not the only source of liability for owners or operators of property contaminated with petroleum. Article 12 of the Navigation Law imposes strict and joint liability on dischargers who are defined as persons who are “in any way responsible” for petroleum discharges. While mere ownership of property that is contaminated with petroleum discharges may not automatically result in liability for a property owner, state courts have broadly construed this phrase so that owners who had the ability to control storage tanks such as landlord have been found liable under the Navigation Law. Moreover, purchasers of property contaminated by abandoned petroleum tanks have often been found to be ineligible for reimbursement from the Oil Spill Fund on the grounds that they owned the abandoned tanks. Thus, it is important for purchasers to determine if abandoned tanks, in particular abandoned heating oil tanks, are present at the property prior to taking title. If tanks are discovered, they should be removed prior to the closing or before the purchaser assumes control of the property.
Proposed CBS Revisions
NYSDEC is also proposing changes to its CBS program which implements Articles 37 (Substances Hazardous to the Environment) and 40 (Hazardous Substances Bulk Storage Act). Article 37 requires the NYSDEC to regulate all substances covered by CERCLA, FIFRA, and TSCA along with other chemicals that NYSDEC determines to be hazardous. Article 40 regulates the sale, storage and handling of hazardous substances.
NYSDEC proposes to consolidate and amend its CBS regulations as follows:
- Repeal Part 595 (Releases of Hazardous Substances) and move these requirements in Parts 597 ((general requirements for spill reporting) and 598 (facility specific reporting requirements).
- Replace Part 596 with a new Part 596 titles Hazardous Substance Bulk Storage Facility Registration. Significant changes include:
-This section modifies the definition of hazardous substances so that the term is not limited to those listed on the table in Part 597.
-The definition of owner is to clarify that the property owner will be responsible for registration and that the tank owner will be responsible for all other “owner” requirements designated in the rule.
-The definition of UST is also modified to conform to the federal definition.
- Replace current Part 597 (List of Hazardous Substances) with a new Part 597 (Hazardous Substance Identification, Release Prohibition and Release Reporting). Among the key changes:
-The definition of hazardous substance is being clarified to include listed substances, substances meeting certain characteristics, certain mixtures, and hazardous waste.
-The list of hazardous substances is being updated to be consistent with CERCLA. The existing definition of hazardous substance had included petroleum but this was deleted to avoid conflicts with the PBS program.
-The persons required to comply with reporting obligations have been changed to any person in actual or constructive control or possession of the hazardous substance when it is released or any employee, agent, or representative of such person who has knowledge of the release.
-The reportable quantity is also being changed to conform to the federal definition that refers to a 24-hour period. Because the existing requirement did not have a time period, the proposed change will narrow the reporting obligations;
-elimination of the exemption for releases that were the result of an unavoidable accident
-elimination of the exemption to the spill reporting requirements for carries and transporters;
- Amend Part 598 (Handling and Storage of Hazardous Substances). This section now includes the release reporting, investigation, confirmation, and corrective action requirements previously contained in Parts 595 and 596. In addition, the federal public participation requirements for corrective action plan have been added;
- Amend Part 599 (Standards for New Hazardous Substance Tank Systems).