Background for Proposed Regulations:
Bulk Storage of Petroleum and Chemicals; Management of Used Oil
6 NYCRR Parts 595-599, 612-614, 370, 374-2
The New York State Department of Environmental Conservation (DEC) has proposed revisions to regulations for the bulk storage of petroleum (Petroleum Bulk Storage (PBS)) and chemicals (Chemical Bulk Storage (CBS)) and for the management of used oil. DEC is revising these regulations to reflect changes in State laws and federal laws and regulations. The comment period ended November 4, 2014.
Petroleum Bulk Storage
In 1983, the State Legislature enacted Article 17, Title 10 of the Environmental Conservation Law (ECL), entitled "Control of the Bulk Storage of Petroleum." The law applies both to Underground Storage Tanks (USTs) and Aboveground Storage Tanks (ASTs) storing petroleum.
Regulations for the PBS program (Title 6 New York Codes Rules & Regulations (NYCRR) Parts 612-614) were promulgated in 1985. These regulations require owners to register storage facilities with DEC and comply with requirements for the safe storage and handling of petroleum. The PBS regulations have not been substantively revised since 1985.
Used Oil Management
Articles 3, 23 and 27 of the ECL authorize DEC to promote resource recovery and to preserve and enhance the quality of air, water and land resources within the State. Article 23 allows the Department to implement regulations governing used oil collectors, re-refiners and retention facilities, in conformance with Article 27 of the ECL. Article 27 requires the promulgation of regulations governing the operation of solid waste management and hazardous waste management facilities. Pursuant to ECL section 27-0900, the hazardous waste management regulations must be at least as broad and as stringent as those established by EPA under authority of the federal Resource Conservation and Recovery Act (RCRA) Thus, State regulations governing used oil management must be at least as broad and as stringent as the federal regulations. It was also the intent of the Legislature for DEC to adopt into the State's regulations any new and amended federal standards concerning used oil in order to maintain federal authorization of New York State's used oil management program.
Chemical Bulk Storage
Two New York State laws addressing the bulk storage of chemicals were passed in 1986. The first law, Article 37 of the ECL, requires that the DEC regulate all hazardous substances covered by the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the federal Toxic Substances Control Act (FTSCA). DEC may also regulate other chemicals known to be hazardous as defined in Article 37.
A second law in the ECL, entitled Article 40, "Hazardous Substances Bulk Storage Act," regulates the storage and handling of hazardous substances. These two state laws were among the first of their kind in the nation designed to prevent chemical spills and leaks from tanks and containers. The DEC enacted the CBS regulations (6 NYCRR Parts 595-599) in 1994 which set forth requirements for the safe handling and storage of over 1,000 hazardous substances (listed in Part 597).
Federal UST Laws and Regulations
In 1984, Congress added Subtitle I to RCRA requiring EPA to regulate USTs storing certain forms of petroleum (mostly motor fuels) and hazardous substances. In 1988, EPA passed federal UST regulations (40 CFR 280 and 281) laying out a comprehensive program for the monitoring and upgrading of USTs in the United States. Because the regulations were developed after the New York regulations, they have differed from New York's in five major ways:
- the federal regulations have a different definition of petroleum than NYS regulations and provide an exemption for certain tanks storing heating oil used consumptively on-premises and certain tanks storing motor fuels at farms and residences;
- the federal regulations cover underground tanks over 110 gallons rather than facilities with over 1,100 gallons;
- the requirements for UST leak detection are different;
- the federal regulations required USTs to be upgraded by December 22, 1998 to satisfy leak detection and corrosion protection requirements; and
- site assessments must be performed when a tank is permanently taken out of service.
DEC has been implementing the federal requirements under an agreement with EPA. The proposed regulations will make the state and federal requirements mostly consistent.
2005 Energy Policy Act
In 2005, Congress passed the Energy Policy Act. The major features of the Energy Policy Act that impact these regulations include: 1) requirements for ensuring that facility operators have been trained; 2) authority to prohibit delivery of petroleum and chemicals to tanks that are leaking, may be leaking, or are being operated in significant non-compliance; and 3) requirements for piping and dispenser secondary containment. In New York, several statutory changes were required before the regulations could be updated. These changes were passed into law in 2008 (see below). Both the DEC and EPA have been drafting regulations to implement the requirements of the Energy Policy Act. DEC has decided to complete this process in two phases so that the changes being proposed now by EPA to 40 CFR Part 280 will be incorporated into the next phase of the NYS rule making. This two step approach allows the requirements of the Energy Policy Act to be implemented earlier than if all changes were made in a single step after the changes to Part 280 were completed.
New York 2008 Law Change
The revisions to the state regulations will include the changes made to the ECL in 2008. Many of these changes were adopted from the federal Energy Policy Act of 2005. In summary, the main revisions to the ECL in 2008 included:
- change the definition of petroleum to be consistent with the federal definition;
- incorporate requirements for operator training;
- incorporate the federal requirements for prohibiting deliveries of petroleum and chemicals to tanks with significant violations of the regulations;
- change the definition of "facility" to be based upon the location (property) of the tanks rather than upon the tanks themselves (also, the threshold for regulating USTs was reduced to match the federal requirement of a tank capacity of 110 gallons or more); and
- incorporate requirements for secondary containment of piping and dispensers (also known as under-dispenser containment or UDC). For more information on the 2008 law change, see Spring 2009 Issue of Tank News Bulletins Part 2 (PDF) (4.4 MB).
USEPA Proposed Revisions to 40 CFR Part 280
In November 2011, EPA proposed revisions to 40 CFR Part 280 to strengthen the 1988 federal underground storage tank (UST) regulations by increasing the emphasis on properly operating and maintaining UST equipment. These proposed revisions were offered to help improve the prevention and detection of UST releases, which are one of the leading sources of groundwater contamination. If finalized, these revisions will also help ensure that all regulated USTs in the United States meet the same minimum standards. This is the first time EPA has proposed significant revisions to the federal UST regulations since they were first promulgated in 1988. The public comment period closed April 16, 2012. EPA's proposal would revise the UST technical regulation in 40 CFR Part 280 by:
- adding secondary containment requirements for new and replaced tanks and piping;
- adding operator training requirements for UST system owners and operators;
- adding periodic operation and maintenance requirements for UST systems;
- removing certain deferrals;
- adding new release prevention and detection technologies;
- updating codes of practice; and
- making editorial and technical corrections.