NYSDEC To Receive Full Delegation from EPA for RCRA Program

EPA proposed to approve final authorization to the New York Department of Environmental Conservation (NYSDEC) to administer the state hazardous waste program in lieu of the federal RCRA program. 78 FR 15299 (3/11/13). The authorization will become effective on May 10, 2013 unless EPA receives adverse written comment by April 10, 2013. The NYSDEC hazardous waste regulations are at 6 NYCRR Part 364.

Once New York receives final authorization, NYSDEC will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits still in effect that were issued prior to the effective date of this authorization, and also process permit modification requests for facilities with existing permits.

New York used oil regulations are more stringent than the corresponding Federal regulations in a number of different areas. The more stringent provisions are being recognized as a part of the Federally-authorized program and are Federally enforceable.

  • New York requires that laboratory tests or sample analyses, including rebuttable presumption analyses, be performed by a State-certified laboratory;
  • New York does not accept reliance upon generator knowledge of the halogen content;
  • Used oil collection centers are subject to the more stringent transfer facility standards;
  • Used oil transfer facilities are subject to a number of additional requirements including the general facility standards for processing and re-refining facilities, additional testing, reporting and emergency procedures, and closure requirements;
  • Aboveground and underground used oil tanks must also be in compliance with more stringent installation, closure, inspection and repair standards, and registration requirements in New York’s Petroleum Bulk Storage (PBS) rules, 6 NYCRR Parts 612, 613, and 614;
  • the state subjects used oil burners to the more stringent management standards in the state Air Quality regulations of 6 NYCRR Part 225;
  • New York prohibits the use of used oil as a dust suppressant;
  • Storage of used oil must also be in compliance with local and state fire and building codes, including NFPA-30;
  • Spills are subject to requirements in Article 12 of the Navigation Law, its implementing regulations, and related provisions in the Environmental Conservation Law and the PBS regulations, in addition to the federal standards;
  • New York requires additional labeling of units associated with used oil storage;
  • New York requires additional notification, recordkeeping and increased periods of record retention for several aspects of used oil management;
  • New York prohibits the storage of used oil in pits, ponds and lagoons;
  • New York requires that processors/re-refiners must submit to the department’s Central Office and Regional Office, an annual report instead of a biennial letter, as required in the federal regulations;
  • New York prohibits the disposal of recyclable used oil by means of absorbents, except to clean up spills;
  • Owners and operators of used oil transfer facilities must test all incoming loads of used oil for total halogen content, in accordance with a written quality control plan;

New York’s hazardous waste program also has some components that are broader than RCRA.  EPA cannot enforce broader-in-scope requirements though these requirements are enforceable by NYSDEC. The following state requirements are not part of the EA authorization:

  • New York regulates used oil containing greater than 50 ppm of PCB wastes as hazardous waste, unless the PCBs were derived solely from small capacitors; however, these wastes are not considered hazardous wastes under the Federal RCRA program. PCB wastes are regulated under the Federal Toxic Substances Control Act (TSCA) at 40 CFR part 761;
  • New York has not adopted the federal exclusion for oil re-refining distillation bottoms that allows these materials to be  used as feedstock to manufacture asphalt products.