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Part 595: Releases Of Hazardous Substances Reporting, Response and Corrective Action

(Statutory authority: Environmental Conservation Law, Sections 3-0301.1.m, 3-0301.2.m, 17-0303, 37-0105, 40-0111 and 40-0113)

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§595.1 General

(a) Purpose. The purpose of this Part is to set forth requirements for the reporting of releases.

(b) Applicability. This Part applies to the release of hazardous substances listed in Tables 1 and 2 of Part 597 of this Title. This Part does not apply to releases of petroleum or hazardous wastes.

(c) Definitions. The following terms and definitions shall apply to this Part:

(1) "Ancillary equipment" means any device including, but not limited to, piping, fittings, fixtures, gauges, alarms, rupture disks, pressure release valves, flanges, or valves and pumps that are used to distribute, meter or control the flow of hazardous substances to or from a storage tank.

(2) "Authorization" means the possession, where required, of a valid license, permit or certificate issued by an agency of the state of New York or the federal government or an order issued by the commissioner or the administrator of the federal environmental protection agency under applicable statutes, rules or regulations regarding the possession or release of hazardous substances or otherwise engaging in conduct which is exempt under applicable statutes, rules or regulations from the requirements of possessing such a license, permit, certificate or order.

(3) "Continuous" when referring to a release means a release which occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations.

(4) "Department" means the New York State Department of Environmental Conservation (DEC).

(5) "Environment" means any water, water vapor, any land including land surface or subsurface, air, fish, wildlife, biota and all other natural resources.

(6) "Hazardous substance" means any substance listed as a hazardous substance in Part 597 of this Title or a mixture thereof. Petroleum as defined in section 597.1 of this Title and hazardous wastes as identified or listed in Part 371 of this Title are not hazardous substances for the purposes of this Part.

(7) "Mixture" means a heterogenous association of substances where the various individual substances retain their essential original properties. The term "mixture" includes solutions (but does not include alloys or amalgams) where one or more active ingredients are hazardous substances. Mixtures regulated under this Part are mixtures which contain a hazardous substance, or combination thereof, in quantities of one percent or more by volume or weight.

(8) "Operator" means any person who is responsible for the overall daily operation of a storage facility.

(9) "Overfill" means a release or spill that occurs when a storage tank is filled beyond its capacity.

(10) "Owner" means any person who owns a storage tank system.

(11) "Person" means any individual, public or private corporation, political subdivision, state or federal government agency, municipality, copartnership, association, firm, trust, estate or other legal entity.

(12) "Release" means any unauthorized pumping, pouring, emitting, emptying, overfilling, spilling, leaking, leaching or disposing, directly or indirectly, of a hazardous substance or any other substancewhich results in the formation of a hazardous substance upon release so that the substance or any related constituent thereof, or any degradation product of such a substance or of a related consituent thereof, may enter the environment.

(13) "Reportable quantity" means the amount of a hazardous substance that must be reported to the department in the event of a release, spill or overfill. The reportable quantity for mixtures is the amount of the hazardous substance components of a mixture. Reportable quantities are listed in section 597.2 of this Title.

(14) "Secondary containment" means containment which prevents any material released from reaching the land or water outside the containment area before clean-up occurs.

(15) "Site" or "single contiguous site" means an unbroken tract or abutting tracts of land upon which is located one or more storage tank systems. Land under one ownership which is divided only by a highway or right-of-way corridor is considered to be a single contiguous site.

(16) "Spill" or "spillage" means any escape of a substance from the containers employed in the normal course of storage, transfer, processing or use.

(17) "Stable in quantity and rate" means a release which is predictable and regular in the amount and rate of emission.

(18) "Storage facility" or "facility" means a site which has one or more storage tank systems.

(19) "Storage tank system" or "storage tank" means an aboveground tank, an underground tank or a non-stationary tank, and any associated piping, lines, dikes, curbs, transfer stations, and ancillary equipment.

(20) "Tank" means a container or other holding vessel designed to store a hazardous substance which is constructed of non-earthen materials (e.g., concrete, steel, plastic) which provide structural support.

(21) "Unavoidable accident" means an accident that occurs notwithstanding the exercise of due care and reasonable diligence, and which could not have been prevented by the due exercise of such care and diligence.

(22) "Waters" or "waters of the state" shall include lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State of New York and all other bodies of surface or underground waters, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the State or within its jurisdiction.

(d) Severability. If any provision of this Part or its application to any person or circumstance is held to be invalid, the remainder of the Part and the application of that provision to other persons or circumstances shall not be affected.

(e) References. The citation used in this part refers to Title 40 of the Code of Federal Regulations, Section 302.8 of Part 302 entitled "Designation, Reportable Quantities And Notification", July 1, 1991. This publication is available for inspection at:

The Department of Environmental Conservation,
50 Wolf Road, Albany,
New York 12233-3520.

§595.2 Prohibition of Releases

(a) The release of a hazardous substance which is required to be reported pursuant to §595.3(a) of this Part is prohibited unless such release is pursuant to a valid state or federal permit or authorization.

(b) This section shall not apply to releases that were the result of an unavoidable accident or to releases to the air that are continuous and stable and which have been reported pursuant to §595.3(a)(5) of this Part.

(c) In any enforcement proceeding brought pursuant to this section, the respondent shall have the burden of establishing that a release was the result of an unavoidable accident.

(d) Any person who violates the provisions of subdivision 595.2 shall be liable for the civil and administrative penalties set forth in ECL § 71-3703 and the criminal penalties set forth in ECL § 71-4001 and Article 71, Title 27.

§595.3 Release Reporting

(a) Reporting of releases.

(1) The reporting requirements of this section apply to the following persons:

(i) an owner or operator;

(ii) any person in a contractual relationship with an owner or operator who inspects, tests or repairs any portion of a storage facility which is or was used for the storage of hazardous substances;

(iii) any person in actual or constructive control or possession of a hazardous substance prior to its release; and

(iv) any employee, agent or representative of (i) through (iii) above who has knowledge of a release.

(2) The persons listed in paragraph (1) of this section must report the release of a reportable quantity of a hazardous substance, or, if any of the following conditions exist, the release of a lesser quantity of a hazardous substance:

(i) such release results, or may reasonably be expected to result, in a fire with potential off-site impacts;

(ii) such release causes, or may reasonably be expected to cause, an explosion;

(iii) such release causes, or may reasonably be expected to cause, a contravention of air quality standards;

(iv) such release results, or may reasonably be expected to result, in vapors, dust and/or gases that may cause illness or injury to persons, not including persons in a building at the facility where a release originates; or

(v) runoff from fire control or dilution waters may cause or contribute to a contravention of water quality standards.

All reports of releases must be made to the DEC hotline (800- 457-7362; outside New York State: 518-457-7362) within two hours of the release.

(3) Notwithstanding the provisions of paragraphs 1 and 2, employees of storage facilities may report releases pursuant to a facility-specific centralized reporting protocol, provided that such reporting protocol is in writing and has been incorporated into the facility's spill prevention report prepared pursuant to Section 598.1(k) of this Title. Independent consultants and contractors are not considered to be employees of the facility for the purposes of this section.

(4) Notwithstanding the provisions of paragraph (1), a spill or overfill of a reportable quantity of a hazardous substance to a secondary containment system does not have to be reported within 2 hours if all the following conditions are met:

(i) the secondary containment system meets the requirements of sections 599.9 and 599.17 of this title;

(ii) there is control over the spill or overfill, and it is completely contained within 24 hours; and

(iii) the total volume of the spill or overfill is recovered or accounted for.

In the event that the spill or overfill is not completely contained within 24 hours, or its total volume is not accounted for within that time, such spill or overfill must be reported within 24 hours of its occurrence. If the secondary containment system does not prevent a reportable quantity of the hazardous substance from reaching the environment, the spill or overfill must be reported at the time the substance reaches the environment, but in no event later than 24 hours from the time of the spill or overfill.

Spills or overfills to a secondary containment system that result in any of the conditions listed in paragraph (2) must be reported within 2 hours as provided in paragraph (2).

(5) Reporting is not required for a release that is continuous and stable in quantity and rate, provided that written notification which meets the requirements of 40 CFR Section 302.8 has been provided to the department. (See 598.1(k) of this Title.)

(b) Reporting of suspected or probable spills.

(1) The owner or operator of a storage facility shall notify the Department of a suspected or probable release of a hazardous substance unless an investigation shows that a release has not occurred or does not need to be reported under subdivision (a) of this section. Reports must be made to the DEC hotline within 24 hours of discovery of any of the following conditions:

(i) test, sampling, or monitoring results from a release detection method that indicate a release may have occurred;

(ii) unusual operating conditions such as the erratic behavior of product dispensing equipment, the sudden loss of product from a storage tank, an unexpected presence of water in a tank, or the physical presence of a hazardous substance or an unusual level of vapors on a site that are of unknown origin;

(iii) impacts in the surrounding area, such as evidence of hazardous substances or resulting vapors in soils, basements, sewer and utility lines, and nearby surface waters; or

(iv) any other conditions or indications of a suspected release.

(2) If within 24 hours of the discovery of a suspected release it is confirmed that a release has not occurred, then such release does not have to be reported.

(c) The provisions of subdivision (a) above do not apply to carriers and transporters as that term is defined in 17 NYCRR Section 507.4. Carriers and transporters must report incidents required to be reported under 17 NYCRR Section 507.4 to the Department as well within the timeframes set forth in 17 NYCRR Section 507.4

§595.4 Enforcement of Section 595.3

(a) For facilities regulated pursuant to Part 596 of this Title, failure to report a release of a reportable quantity of a hazardous substance is punishable by the civil, administrative and criminal penalties set forth in ECL § 71-4303. Failure to report a release of less than a reportable quantity is punishable by the civil and administrative penalties set forth in ECL § 71-3703 and by the criminal penalties set forth in ECL §§ 71-1943 and 71-4001.

(b) For all other facilities and persons, failure to report a release is punishable by the civil and administrative penalties set forth in ECL § 71-3703 and the criminal penalties set forth in ECL §§ 71-1943 and 71- 4001.