ENB - STATEWIDE NOTICES

Completed Applications
Consolidated SPDES Renewals

Public Meeting

The next meeting for the New York State Trails Council Meeting will be on June 14, 2003 at Peebles Island State Park in the Conference Room on Delaware Avenue, Cohoes, NY.

Contact: Robert W. Reinhardt, NYS OPRHP, Robert.Reinhardt@oprhp.state.ny.us

Notice for the Tenth Annual NYS Governor's Award for Pollution Prevention

Applications are now available for the New York State Tenth Annual Governor's Award for Pollution Prevention. The awards program was established to recognize pollution prevention efforts by NYS organizations.

Applicants can compete in one of the following three categories:

1) facilities generating waste and pollution: this category is for industrial, commercial or institutional facilities; federal, state and local governments; and educational institutions that generate waste and pollution; small (100 or fewer employees), mid-size (more than 100 and fewer than 500 employees), large (more than 500 employees)

2) technical assistance providers: this category is for environmental, community and civic organizations; trade associations or other business/industry groups; federal, state and local governments, and educational institutions; and other public or private entities; and

3) organizations committed to continuous improvement: this category is for organizations that demonstrate a longer term commitment to pollution prevention and continue to develop and implement pollution prevention programs and achieve results.

Nominations for awards will be made to Governor Pataki by the Department of Environmental Conservation based on recommendations from a selection committee.

Criteria to be considered for the applicants include: waste volume/toxicity reduction, overall environmental benefits, environmental justice, overall economic benefits, improvement in worker safety, innovations in technology, process or education program, level of management commitment, and transferability.

IMPORTANT NOTICE: Presentation of the awards are scheduled to be presented at the NYS Recycling and Pollution Prevention Conference to be held in October, 2003 in Albany. The winners will be notified a week prior to the presentation of the awards. The deadline to apply for the awards is June 30, 2003. The application package is available through the DEC’s website: www.dec.state.ny.us/website/ppu/p2gov.html

Anyone interested in obtaining more information regarding the application and criteria for the awards should contact Mr. Carlos Montes at the Department of Environmental Conservation, Division of Environmental Permits, 625 Broadway, Albany, NY 12233-1750, telephone (518) 402-9476, Fax (518) 402-9168, email clmontes@gw.dec.state.ny.us

Public Notice

Under 6 NYCRR Part 232, the New York State Department of Environmental Conservation (Department) regulates dry cleaning facilities that use the solvent perchloroethylene. Perchloroethylene is a hazardous air pollutant. The primary goal of this regulation is to reduce public exposure to perchloroethylene. This goal is largely achieved through implementation of technology standards that require dry cleaners to switch, pursuant to a detailed phase-in schedule, from older, more polluting dry cleaning equipment to newer, less polluting dry cleaning equipment.

Since May 15, 1997, the effective date of 6 NYCRR Part 232, all new mixed-use facilities have been required to install only new fourth generation equipment. With a few minor exceptions detailed in 6 NYCRR §232.6, all existing dry cleaning facilities that replace their equipment must install only new fourth generation dry cleaning equipment.

The Department anticipates a surge in equipment installations in the near future. This is due to impending regulatory deadlines. Under 6 NYCRR §232.13, the Department was required to establish dry cleaning equipment testing and certification programs. On February 13, 2001, the Department announced that it would exercise its enforcement discretion and not enforce the 6 NYCRR §232.13(a)(1) prohibition against the installation of non-certified equipment until nine months after the first new fourth generation machine was certified. The Department first certified a fourth generation dry cleaning machine on September 26, 2002. Thus, beginning on June 26, 2003, the Department will enforce the requirement that only new certified fourth generation equipment may be sold to or installed in any dry cleaning facility. The Department has compiled a list of certified equipment. The list may be found on the Department’s website at www.dec.state.ny.us/website/dar/boss/dccertequip.html

Until the date of this public notice, in cases where 6 NYCRR Part 232 required the installation of new fourth generation equipment, Department staff have allowed the installation of fourth generation equipment that had been previously operated but which had undergone refurbishing by the manufacturer of the equipment. This practice stemmed from the text of a March 3, 1998 letter issued by a staff member of the Division of Air Resources in response to a query from an industry trade organization.

After careful deliberation, the Department has concluded that the practice of allowing the installation of refurbished fourth generation equipment instead of new fourth generation equipment does not comply with the mandate of the 6 NYCRR Part 232. The Department now concludes that the requirement for new equipment means equipment that has not been operated since manufacture. Such equipment will still qualify as new if it has been operated by the manufacturer or distributor for testing purposes only.

To properly maintain compliance with the requirement that only new equipment may be installed, the Department must be able to clearly determine what is new as opposed to what is not new. Used equipment, even if refurbished, is not new equipment. New equipment means (with the exception of manufacturer or distributor testing) equipment that has not been previously operated. This bright-line distinction comports with the common meaning of the word "new" and is supported in 6 NYCRR 232.6(b)(4) which states, "New mixed-use facilities--new equipment. Only new dry-to-dry fourth generation equipment is allowed in new mixed-use facilities. No used or retrofitted equipment is allowed." Of thirteen usages of the word "new" that are listed in The American Heritage College Dictionary, 918 (3rd ed. 2000), the four most common are "1. Having been made or come into being only a short time ago; recent. 2.a. Still fresh. b. Never used or worn before now. 3. Just found, discovered, or learned. 4. Not previously experienced or encountered; novel or unfamiliar." By adhering to this clear distinction between new and previously operated equipment, the Department is able to eliminate any confusion as to what constitutes new equipment that may be installed in compliance with the regulation. The term "refurbished equipment" is not found in the regulation. The common meaning of the word "refurbish" shows that refurbished equipment would not be new equipment. "Refurbish" is defined as "To make clean, bright, or fresh again; renovate." See id. at 1148. "Renovate" means "1. To restore to an earlier condition, as by repairing or remodeling. 2. To impart new vigor to; revive." Id. at 1156.

Since the Department understands that there may be owners or operators of dry cleaning facilities that have installed previously operated equipment in reliance on the language of the March 3, 1998 letter, the Department will allow such facility owners or operators an additional 18 months (until December 27, 2004) to replace that equipment with new fourth generation equipment. The Department notes that these owners and operators may seek additional time to come into compliance by applying for a variance pursuant to 6 NYCRR §232.3.

For questions or comments, please contact Stanley Byer at the NYS Department of Environmental Conservation, 626 Broadway, Division of Air Resources, 2nd Floor, Albany, NY 12233-3254 or by calling 518-402-8403.

Notice of Availability of Draft Enforcement Guidance Memorandum Concerning Petroleum Bulk Storage

STATEWIDE - The Department has prepared a draft Enforcement Guidance Memorandum (EGM) to establish standardized enforcement documents and procedures for use by Department program staff and attorneys to address violations of the Petroleum Bulk Storage ("PBS") regulations (6 NYCRR Parts 612-614). This policy also includes a suggested penalty range for each PBS requirement that is violated.

Standardized documents include a PBS Inspection Report, a Notice of Violation, and an Order on Consent. The Notice of Violation describes the regulatory violations, contains standard time frames for curing the violations, and specifies the documentation needed to demonstrate compliance. Likewise, the Order on Consent describes the regulatory violations, contains standard time frames for curing the violations and specifies the documentation needed to demonstrating compliance, but also includes civil penalties for the violations.

Pursuant to the draft EGM, where an inspection reveals a PBS violation(s), the facility owner or operator will be served with a Notice of Violation and a copy of the PBS Inspection Report. In addition, the Department may serve the owner or operator with an Order on Consent to settle the violation(s). Any violation(s) that are the addressed in an Order on Consent will be subject to penalties. In setting a penalty amount, Department attorneys may be guided by the suggested penalty ranges included in this Policy. However, Department attorneys shall have the discretion to increase, decrease or suspend a civil penalty assessed pursuant to this Policy in accordance with the Civil Penalty Policy. The suggested penalty ranges included in this Policy shall not apply to the resolution of violations after a Notice of Hearing and Complaint has been served. This Policy does not relieve any PBS facility owner or operator of its legal obligations under the Navigation Law and the Environmental Conservation Law to remove and clean up a spill, leak or discharge as required by law and to execute, if required, a Stipulation or Order on Consent as directed by the Department. Any penalties that may attach to an owner as a result of a spill, leak or discharge are unaffected by this Policy and those penalties will be based on the Department's Civil Penalty Policy.

In accordance with NYS Environmental Conservation Law §3-0301, written comments regarding the Draft Policy will be accepted through the close of business at 5:00 p.m., on June 27, 2003.

The Draft Policy and attachments can be obtained by writing or calling Lisa Cerniglia, New York State Department of Environmental Conservation, Division of Environmental Enforcement, 625 Broadway, Albany, New York 12233-5500, phone (518) 402-9512. The Draft Policy with attachments also is available on the Department’s website at: www.dec.state.ny.us/website/ogc/pbsiep.pdf. Comments should be submitted to Philip Lodico, Senior Attorney, at the above address.

Notice of Revised Rulemaking

Proposed Amendments to 6 NYCRR Part 325
Relating to Commercial Lawn Pesticide Application

Notice is hereby given that the New York State Department of Environmental Conservation (Department), pursuant to the Environmental Conservation Law, is revising the Department’s proposal to amend Part 325 of Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) of the State of New York.

The rulemaking addresses certain contractual and notification requirements relating to commercial lawn care application of pesticides.

Summary of Revised Rulemaking and Statutory Authority: This rulemaking provides regulations to implement Title 10 (Special Requirements for Commercial and Residential Lawn Applications) of Article 33 of the Environmental Conservation Law. Substantial revisions from the proposed regulations were made in subdivisions 325.40(a), (b) and (c). The commercial lawn application requirements were established by Chapter 559 of the Laws of 1987, effective on April 25, 1988, which added Article 33, Title 10, to the Environmental Conservation Law.

Written statements may be filed until close of business, 30 days from the date of this publication, with Mary A. Roy, NYSDEC, Division of Solid & Hazardous Materials, 625 Broadway, Albany, NY 1223-7254, and can be faxed to Ms. Roy at 518-402-9024. To obtain additional information, please contact Mary Roy at (518) 402-8781.