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Part 610: Certification Of Onshore Major Facilities

(Statutory authority: Navigation Law, § 191)

[page 1 of 1]

Contents:

Sec.

§610.1 Authority, purpose and policy

(a) This Part is adopted pursuant to section 191 of the Navigation Law to implement the responsibilities of the Department of Environmental Conservation under the provisions of article 12 of the Navigation Law, which prohibits the discharge of petroleum, provides for the licensing of major facilities, provides for the cleanup and removal of any petroleum discharge, giving first priority to minimizing environmental damage, and establishes an environmental protection and spill compensation fund.

(b) The provisions of this Part apply to the certification by the Department of Environmental Conservation that an applicant to the Department of Transportation for a license, or the renewal of a license, to operate or cause to be operated an onshore major facility has implemented or is in the process of implementing State and Federal plans and regulations for the control of discharges of petroleum and the containment and removal thereof when such a discharge occurs.

(c) It is the purpose of article 12 of the Navigation Law to ensure a clean environment and healthy economy for the State by preventing the unregulated discharge of petroleum which may result in damage to lands, waters or natural resources of the State, by authorizing the Department of Transportation and the Department of Environmental Conservation to control the transfer and storage of petroleum and to respond quickly to unregulated discharges and effect prompt cleanup and removal of such discharges, giving first priority to minimizing environmental damage, and by providing for the payment of all cleanup and removal costs and all direct and indirect damages resulting from such discharges through the New York environmental protection and spill compensation fund supervised by the State Comptroller.

§610.2 Definitions

Unless the context otherwise requires, the definitions contained in section 172 of the Navigation Law shall be applicable to this Part. The following additional definitions and clarifications shall be applicable to this Part:

(a) Area of environmental value means an area used for waterfowl nesting and feeding, fish spawning and migration, shellfish beds, or wetlands, or significant habitats as determined by the department.

(b) Coast Guard plan means an operations manual prepared with the intent of complying with the requirements of 33 CFR part 154, subpart B, effective July 1, 1977, and which does comply with the requirements of 33 CFR part 154, subpart B (see section 610.6 of this Part).

(c) Commissioner shall mean the commissioner of the Department of Environmental Conservation.

(d) To contain or containment means all actions to limit or prevent the spread of a petroleum discharge.

(e) Department shall mean the Department of Environmental Conservation.

(f) Discharge means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum into the waters of the State or onto lands from which it might flow or drain into said waters, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State, excepting discharges pursuant to and in compliance with the conditions of a valid State or Federal permit.

(g) Major facility includes, but is not limited to any refinery, storage or transfer terminal, pipeline, deep water port, drilling platform or any appurtenance related to any of the preceding that is used or is capable of being used to refine, produce, store, handle, transfer, process or transport petroleum. A vessel shall be considered a major facility only when petroleum is transferred between vessels in the waters of the State of New York. Fueling operations and the like, between vessels, shall not be considered petroleum transfers between vessels for the purposes of this definition. Facilities with total combined aboveground or buried storage capacity of less than 400,000 gallons are not major facilities for the purposes of this Part.

(h) Onshore major facility means a major facility which is not a vessel or a drilling platform, which is located on or under any land within the State of New York and which, if partially or totally located on submerged land, is physically connected to the shore by permanent structures located above the mean high-water level.

(i) Spill or spillage means any escape of petroleum from the ordinary containers employed in the normal course of storage, transfer, processing or use. A spill becomes a discharge only when petroleum reaches waters of the State or lands from which they might flow or drain into said waters.

(j) Spill prevention control and countermeasure plan or SPCC plan means a plan which has been prepared for the purpose of complying with 40 CFR part 112, effective April 1, 1978, and which does comply with the requirements of 40 CFR part 112, effective April 1, 1978 (see section 610.6 of this Part).

§610.3 Application procedure for letter of certification

(a) Any existing or proposed onshore major facility which is required to obtain a letter of certification from the department as a precondition to the issuance of a license by the Department of Transportation shall make application for such letter of certification in the manner prescribed in this Part.

(b) Existing onshore major facilities. Initial applications and supporting documents for onshore major facilities which will be in operation on July 1, 1978 shall be submitted by June 1, 1978.

(c) Proposed onshore major facilities or proposed substantial changes to existing onshore major facilities.

(1) Applications for proposed onshore major facilities or proposed substantial changes to existing onshore major facilities shall be filed as soon as possible in advance of the date on which construction of the proposed onshore major facility or substantial changes to existing onshore major facilities will commence.

(2) Applicants for a proposed onshore major facility or proposed substantial changes to an existing onshore major facility shall also comply with all the requirements of the Environmental Conservation Law, especially article 8 (State environmental quality review act), if applicable.

(3) The uniform procedures act (article 70 of the Environmental Conservation Law, and Part 621 of this Title) shall govern the processing of the application insofar as it can be applied to this procedure.

(d) Applications for letters of certification shall be submitted 90 days prior to the expiration of the license for which certification is required.

(e) The department shall determine whether an application is complete or requires additional information to evaluate the plans. Any application deemed incomplete shall be returned within 15 days of receipt by the department with a statement of why it is incomplete or what additional information is necessary. If such an application is incomplete or otherwise deficient, processing of the application shall not be commenced until such time as the applicant has supplied the missing information or otherwise corrected the deficiency. However, a determination of completeness by the department shall not be a determination that the information submitted demonstrates the applicant's ability to meet the standards and requirements for a letter of certification.

(f) All applications for a letter of certification shall be on forms provided by the department at the central office or any regional office and shall be submitted along with supporting documentation, in duplicate, to the department at the following address:

Onshore Major Facility Certification
Room 306, Division of Pure Waters
Department of Environmental Conservation
50 Wolf Road
Albany, New York 12233

(g) The date of submittal of an application shall be the date of receipt by the department.

(h) Signature and verification.

(1) Any application or additional data submitted to the department shall be signed as follows:

(i) in the case of corporations, by a principal executive officer of at least the level of vice-president, or his duly authorized representative if such representative is responsible for the overall operation of the onshore major facility;

(ii) in the case of a partnership, by a general partner;

(iii) in the case of a sole proprietorship, by the proprietor;

(iv) in the case of a municipal, State or other public facility, by a principal executive officer, ranking elected official or other duly authorized employee; and

(v) in any other case, by the individual duly authorized to act, as evidenced by documentation acceptable to the department.

(2) All applications, reports or notifications required or authorized to be made or filed by or on behalf of a licensee, applicant for a letter of certification or person subject to the requirement of a letter of certification shall be sworn to in respect to all statements of fact therein or shall bear an executed statement as provided in section 210.45 of the Penal Law to the effect that false statements made therein are made under penalty of perjury.

(i) Issuance of letters of certification. Letters of certification for onshore major facilities which will be in operation on July 1, 1978, or which will commence operation between July 1, 1978 and July 31, 1978, will be issued or denied within 60 days of receipt of a completed application by the department. All other letters of certification for onshore major facilities will be issued or denied within 90 days of receipt of a completed application by the department.

§610.4 Contents of application

(a) The following information is to be contained in the annual application for a letter of certification:

(1) the number of barrels or another measurement of the capacity of the onshore major facility;

(2) average daily throughput of the onshore major facility;

(3) a cleanup or removal plan which includes:

(i) the storage and transfer capacity of the onshore major facility;

(ii) the containment and removal equipment, including but not limited to vehicles, vessels, pumps, skimmers, booms, chemicals and communication devices, to which the onshore major facility has access through direct ownership or by contract or membership in a discharge cleanup organization recognized by the Department of Environmental Conservation and the Department of Transportation, as well as the time lapse following a discharge which precedes such availability;

(iii) the trained personnel which are required and available to operate such containment and removal equipment, and the expected time lapse following a discharge which precedes such availability;

(iv) all equipment and trained personnel used or employed in a capacity at the onshore major facility to prevent discharges of petroleum;

(v) the terms of agreement and the operation plan of any discharge cleanup organization to which the owner or operator of the onshore major facility belongs, which requirement shall be satisfied by attaching a copy of such agreement and plan;

(vi) the type and amount of petroleum transferred, refined, processed or stored at the onshore major facility; and

(vii) if the plan calls for facilities, procedures, methods or equipment not yet fully operational, a schedule for installation and operation along with a statement of projected costs;

(4) the steps taken to insure prevention of a discharge, which shall be shown by preparation of a spill prevention and containment plan which:

(i) complies with all the specific guidelines of an SPCC plan and a Coast Guard plan to protect surface waters;

(ii) generally describes how the onshore major facility meets the additional goal of protecting groundwater;

(iii) contains a general site plan of the onshore major facility, if not already included as part of the Coast Guard plan;

(iv) contains a brief description of each spill and discharge occurring during the previous year, the cause, corrective action taken, and plans for preventing the recurrence of such a spill or discharge, except that on the initial application for a letter of certification for an existing onshore major facility, such description shall cover the spills or discharges occurring during the previous five years; and

(v) if the plan calls for facilities, procedures, methods or equipment not yet fully operational, includes a schedule for installation and operation, along with a statement of projected costs;

(vi) contains information necessary to show compliance with sections 613.2 through 613.9, inclusive, and 614.2 through 614.14, inclusive, of this Title, as applicable, including, but not limited to tank types, leak detection equipment and method of secondary containment;

(5) such further information as the department may now or in the future deem appropriate, given the specific conditions, including environmental setting, at each onshore major facility.

(b) In his responses on the application form, the applicant shall make reference to the applicable sections or pages of the prevention and containment plan, and cleanup and removal plan, which relate to or more fully discuss the response.

§610.5 Letter of certification

(a) The department shall issue a letter of certification for an onshore major facility when:

(1) the applicant has adequate plans, or is in the process of drafting adequate plans, for the prevention and control of discharges, and the containment and removal thereof when a discharge occurs, while giving first priority to minimizing environmental damage;

(2) the applicant has implemented or is in the process of implementing the plans. The factors to be considered by the department in evaluating the implementation of the plans include, but are not limited to, the length of time the plans have been in existence, when the plans are expected to be fully implemented, and the past and future expenses in implementation of the plans;

(3) the applicant can provide the necessary equipment to prevent, contain and remove discharges of petroleum; and

(4) the applicant has implemented, is in the process of implementing, or is in compliance with the requirements of sections 613.2 through 613.9, inclusive, and sections 614.2 through 614.14, inclusive, of this Title, for the storage and control of petroleum, as applicable to the particular facility.

(b) Any denial of a letter of certification for an onshore major facility shall be accompanied by a statement of the reason or reasons for such denial.

(c) Conditions to the issuance of a letter of certification may include:

(1) a statement that the owner or operator shall at all times maintain in good repair any facilities for the prevention and control of discharges and the containment and removal thereof when a discharge occurs;

(2) a statement that no major addition, major changes or major rehabilitation in the structures or equipment of the onshore major facility, which would materially affect the potential for a petroleum discharge, shall occur except in accordance with plans approved in advance of construction by the department;

(3) a schedule for implementing the plans within a reasonable period of time consistent with the goals of the act;

(4) a statement that the department shall promptly be furnished with any amendments or changes to any plan submitted with, or referred to in, the application for a letter of certification; and

(5) such other conditions as the department determines are necessary to giving first priority to minimizing environmental damage.

(d) Contents of letter of certification. A letter of certification issued by the department shall include, but not be limited to, the following:

(1) the name and address of the applicant; (2) a statement that the department has received a completed application; and:

(i) plans for the control, containment and removal of discharges, or a schedule of when such plan or plans is/are to be submitted; or

(ii) plans for the control, containment and removal of discharges; and has examined them and bases the letter of certification, with or without conditions, upon an evaluation of the information contained in such application, plans, subsequent written communications, if any, and the environmental setting of the onshore major facility; or

(iii) in addition to subparagraph (ii) of this paragraph, has made onsite inspections of the onshore major facility (or relies upon reports from the inspection of the onshore major facility by others);

(3) a statement, and the grounds for the statement, that the onshore major facility has implemented, or is in the process of implementing, State and Federal plans and regulations for the control of discharges, and the containment and removal thereof when a discharge occurs;

(4) a statement, and the grounds for the statement, that the onshore major facility has implemented, is in the process of implementing, or is in compliance with the requirements of sections 613.2 through 613.9, inclusive, and sections 614.2 through 614.14, inclusive, of this Title, for the storage and control of petroleum, as applicable;

(5) a statement, and the grounds for the statement, that the onshore major facility can provide necessary equipment to prevent, contain and remove discharges;

(6) a statement of any conditions that the department has requested that the Department of Transportation insert in the license; and

(7) a statement that future letters of certification needed for incense renewals will be based on, among other factors, the history of spills and discharges at the onshore major facility, the history of compliance with the applicable provisions of Parts 613 and 614 of this Title as set for above, a review of submitted plans, inspections of the onshore major facility, and additional guidelines subsequently issued.

(e) Appeals.

(1) An applicant may appeal the denial of a letter of certification or any condition to the incense inserted on the request of the Department of Environmental Conservation.

(2) In the case of all denials of letters of certification to existing onshore major facilities, or refusals to renew a letter of certification, for which application or reapplication has been timely made, or, in the case of the insertion of any special conditions or requirements in a license at the request of the Department of Environmental Conservation, and where the applicant properly appeals to the commissioner, the letter of certification shall be deemed issued or renewed or the special condition or requirement shall not be valid, as the case may be, during the appeal period until the final determination by the commissioner.

(3) In all other cases, the letter of certification shall be deemed denied during the appeal period.

(4) The method of appeal shall be as follows:

(i) a notice stating that the applicant appeals the determination of the department, along with a statement of the facts or reasons why the applicant feels the department's determination was not warranted, shall be sent to the commissioner by certified or registered mail; and

(ii) the notice and statement of reasons shall be posted within 30 days of receipt by the applicant of the department's determination.

(5) Upon receipt of such notice of appeal, the commissioner shall appoint a hearing officer who shall conduct a hearing in accordance with the provisions of the State Administrative Procedure Act and shall provide the commissioner with findings of fact and a recommended determination.

(6) The hearing shall be held within 60 days of receipt of the notice of appeal by the commissioner.

(7) The hearing officer's report and recommendation shall be transmitted to the commissioner within 30 days of the completion of the record of hearing, including a full transcript.

(8) The commissioner's final determination shall be made within 30 days of receipt of the hearing officer's findings of fact and recommendations.

§610.6 References

(a) The following materials have been referenced in this Part:

(1) 33 CFR means title 33, Code of Federal Regulations (Navigation and Navigable Waters), effective July 1, 1977.

(2) 40 CFR means title 40, Code of Federal Regulations (Protection of the Environment), effective April 1, 1978.

(3) All U.S. documents referenced in this Part are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(b) All materials referenced in this Part are available for copying and inspection at the Department of Environmental Conservation, Division of Water, 50 Wolf Road, Albany, NY 12233.