NYSDEC Adopts Revised Petroleum and Hazardous Substance Bulk Storage Regulations

The New York State Department of Environmental Conservation (NYSDEC) has made extensive changes to its regulations pertaining to the handling and storage of petroleum and hazardous substances. Specificially, the revisions were made to the Petroleum Bulk Storage (PBS) regulations (6 NYCRR Parts 612-614), the Chemical Bulk Storage regulations (6 NYCRR Parts 596-599), the Used Oil program (6 NYCRR Subpart 374-2) and 6 NYCRR 370.1(e)(2) of the Hazardous Waste regulations.

NYSDEC embarked on the rulemaking to reflect changes made to state and federal laws since the PBS regulations were last revised in 1994. The rulemaking is intended to enable NYSDEC to obtain full delegation of the RCRA Subtitle I program. The agency is currently operating on a memorandum of agreement with EPA. This post is limited to the changes to the PBS regulations.

Former Parts 612-614 of the PBS regulation have been repealed and consolidated into a single new Part 613 which governs both underground storage tanks (USTs). Under the revised structure, Subpart 2 covers UST Systems that are subject to both the federal UST program (Subtitle I) and Title 10 of the Environmental Conservation law (Title 10 tanks). Subpart 3 only pertains to Title 10 tanks (mainly heating oil tanks or motor fuel for non-commercial purposes). Subpart 4 pertains to ASTs. Revised spill reporting, investigation and corrective action requirements are set forth in subpart 6.  Among key changes to the PBS regulations are:

  • New definitions of facility, UST and petroleum;
  • New Categories of USTs;
  • Secondary Containment for piping and dispensers and clarify AST secondary containment requirements;
  • Changing testing frequency for USTs;
  • Changes to Spill Requirements, Investigation, and Remediation Rules;
  • Potential Delivery Prohibition;
  • Operator training requirements;

The particular requirements depend on if the tank system is subject to the federal Subtitle I program or only Title 10 tanks as well as the tank category which is based on installation date. Category 1 tanks are tanks installed prior to December 27, 1986. Category 2 tanks were installed between December 27, 1986 through October 11, 2015. Category 3 tanks means any tank system was installed after October 11, 2015.

NYSDEC plans a second round of rulemaking that will address additional EPA requirements that became effective in October 2015 as well as Changes to Part 611(Spill Response and Corrective Action).

Key Definitional Changes-

Facility– this term is now defined as a single property, or contiguous or adjacent properties (as opposed to tanks) that are used for a common purpose that are owned or operated by the same person or persons Regulated facilities are those with (a) one or more tanks with a combined capacity of 1100 or more gallons or (b) a single UST with a capacity of 110 or more gallons. Heating oil tanks with a design capacity of less than 1100 gallons that are used for on-site consumption are not regulated unless there are other tanks at the property with a combined storage capacity of 1100 gallons.  Note that operational tanks that store petroleum which is not consumed such as transformers and hydraulic lift tanks are exempt.

Operator– is now defined as any person any person who leases, operates, controls, or supervises a facility

Owner– An owner is defined as any person who has legal or equitable title to the real property of a facility.

Petroleum– The definition of “petroleum” has been amended to match the federal definition. The term now includes synthetic forms of certain oils, including lubricating, dielectric, insulating, hydraulic, and cutting oils, as well as complex blends of hydrocarbons and petroleum mixtures.  Animal and vegetable oils and substances that are normally gases are excluded from the definition.

Petroleum Mixture– A new definition of petroleum mixture was added to clarify when a mixture will be regulated as petroleum or a hazardous substance. If the mixture contains one percent or more petroleum and no hazardous substance, then it is regulated as petroleum. If the mixture contains at least 70% petroleum and less than 30% hazardous substance containing no hazardous waste, then the mixture is regulated as petroleum. If the mixture does not contain any petroleum and less than one percent of one or more hazardous substances, it is unregulated.

UST Tank system– The definition of USTs was amended to conform to the federal definition. A UST system is now one or more tanks whose volume is at least 10% beneath the ground. In calculating the volume of the system that is beneath ground, piping must be included. What about the numerous tanks located in basements? DEC has clarified in comments to the new regulations that tanks located in concrete vaults that are not accessible for inspection are considered USTs and subject to the full panoply of UST requirements. If a tank is located in a concrete vault that has weepholes that can be monitored weekly for leaks, the tank will be considered an AST and not subject to tightness testing

Registration Requirements-

The owner of property where tanks are located is required to register the USTs even the total volume of tanks at the property is 1100 gallons or more. The owner obligation applies even where the tanks are owner or operated by multiple tenants (e.g., USTs for emergency backup generators). The NYSDEC contemplates one registration per property for all regulated tanks.  The agency did indicate in its responsive summary that it will allow more than one registration based on a number of factors.

If ownership of the real property on which a facility is located is transferred, the new facility owner must submit an application to initially register the facility with the Department within 30 days after the transfer. The application for an initial registration or transfer of facility ownership must be accompanied by a copy of the current deed for the property at which the facility is located. If the facility is located on multiple properties, deeds for each property must be submitted with the application.

Equipment and Operating Requirements

Federally regulated tanks must have secondary containment and Interstitial monitoring. For new UST systems (category 3), double-walled tanks and piping are now the only acceptable method of secondary containment. Under-dispenser containment is required for new dispenser systems.

All UST systems must be monitored for leaks weekly, and a monthly operability check of the leak detection system is required. 10-day reconciliation inventory monitoring is now only required for retail motor fuel UST systems storing motor fuel or kerosene. NYSDEC cautioned that the NYS Fire Code Section 3404.2.11.5.1 (inventory control) provides that daily inventory records shall be maintained for underground storage tank systems.

Annual line testing required for suction piping that is part of Title 10 Category 1 UST system. However, no leak detection required for suction piping that is part of Title 10 UST Category 2 or 3 system. Entire piping run must be replaced when 50% or more of piping run is replaced unless piping has been constructed in accordance with section 613-2.1(b)(2).

Federal leak investigation requirements are incorporated. For Title 10 USTs, category 1 UST systems must be tightness tested annually. USTs storing #5/6 oil or have acceptable leak detection are exempt.

UST owners or operations must ensure that the last 30 days of leak detection records are always available for inspection. Cathodic protection monitoring records must be maintained for 3 years

Operator training requirements are also being added to comply with federal requirements. Operators of UST systems regulated by Part 613 will be required to undergo training and pass an exam within one yea by October 11, 2016.

Financial Responsibility-

The revised PBS rules now incorporate the federal financial responsible (FR) requirements. The Oil Spill Fund may be used to satisfy the FR requirement for corrective action / third-party property damage requirements. For third-party bodily injury, acceptable mechanisms include self‐insurance, guarantee, insurance and risk retention group, standby trust fund, local government bond rating test, local government financial test, local government guarantee, and local government fund. However, surety bond, letter of credit are not acceptable.

Spill Reporting, Investigation and Corrective Action

The new DEC regulations incorporate the federal requirements of 40 CFR Part 280 Subparts E, F, and G. Effective October 11, 2015, a “facility” must report a “suspected” leak to the DEC’s Spill Hotline (518-457-7362) within two hours after discovery (The old PBSA regulations had imposed reporting obligations on “any person with knowledge of a spill leak or discharge”). Conditions suggestive of a leak include the presence of petroleum in secondary containment structure of the tank system or in the surrounding area (e.g., product or vapors in basements, sewers, utilities, etc.), unusual operating conditions and results of inventory monitoring.

The facility must commence an investigation with 48 hours of discovery of the suspect leak and complete the investigation within one week.  If a leak is confirmed, the facility must then implement corrective actions.

A facility must report any spill within two hours of discovery unless the spill meets the following conditions: (a) the spill is less than five gallons; (b) the spill is contained and under control; (c) the spill has not reached and will not reach the land or waters of the State; and (d) it is cleaned up within two hours after discovery.

Closure

USTs that are out of service for more than 30 days must undergo temporary closure. The facility must continue with certain monitoring and other operating requirements while the UST tank system is temporarily closed.  USTs out of service for more than one year must be removed or permanently closed in place.  DEC must be provided with 30 days advance notice when tank systems are permanently closed or when there is a change in service. Closure report due no more than 90 days after permanent closure.

The rulemaking does not make changes to NY’s quirky rules for closure of heating oil tanks. No closure site assessments are required for Title 10 USTs (heating oil tanks used for on-site consumption). However, NYSDEC strongly recommends performing site assessments when closing heating oil tanks.

ASTs-

The AST standards are now consolidated into one section. The new tank construction standards (UL 80, UL 2258) have been adopted to allow for new technologies. Annual monitoring for adequacy of cathodic protection is now required. Impressed current systems must be monitored every 60 days for operation. Cathodic protection monitoring records must be maintained for 3 years. Tightness testing of ASTs as opposed to 10-year inspections is permitted. While there are no changes to the leak detection requirements, the federal leak investigation requirements now apply.

The revised rules clarify when ASTs must be equipped with secondary containment requirements are clarified. AST systems installed after December 27, 1986 with a design capacity of 10,000 gallons or more must have secondary containment. Smaller ASTs must also be equipped with secondary equipment if they are located within 500 feet of wetlands; a perennial or intermittent stream; a storm drain; a public or private well; lake, pond, estuary, or other similar surface water body or a primary or principal aquifer. Depending on the facility, a standard double-wall tank may not meet the secondary containment requirements.

Note that ASTs that are out-of-service for more than 12 months at an active site do not have to be permanently closed. An active site is where there are one or more other tanks being used.

A handful of counties (Cortland, Nassau, Suffolk, Rockland, and Westchester) have received delegation from NYSDEC to administer the PBS regulations under their local rules.  These counties must adopt the revised rule within 6 months to maintain their delegation. Some of the country UST programs have been stricter than the NYSDEC PBS program. As a result, owners and operators of USTs need to ensure that they comply with any local requirements.