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Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments Summary - 6 NYCRR Part 597

Amendments to:
6 NYCRR Part 597 - Hazardous Substances Identification, Release Prohibition, and Release Reporting

1. Effect Of Rule

This rule applies statewide in all 62 counties of New York State (State). In total, there are over 1,400 registered facilities in the Department's Chemical Bulk Storage (CBS) database. These facilities store a wide variety of hazardous substances.
The Department is presently unable to estimate how many small businesses and local governments will be newly subject to regulation as a result of this rule, or to identify the size of businesses that are or may be affected by the rule. The Department is aware of approximately 1,800 local government agencies (fire departments) that may maintain stocks of firefighting foam which could be subject to the registration requirement. Although the rule applies to all small businesses and local governments in the State, the number of facilities that would be required to register as a CBS facility or report a release of a hazardous substance as a result of this rule making is expected to be small.

2. Compliance Requirements

This rule makes no changes to reporting, recordkeeping, or other compliance requirements for CBS facilities other than to place perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1), perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), and perfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) (also collectively referred to within as PFOA and PFOS) on the list of hazardous substances in 6 NYCRR Section 597.3 (Section 597.3). This rule requires that CBS facilities storing PFOA or PFOS: register each facility with one or more regulated storage tanks that store listed hazardous substances, display the registration certificate issued by the Department, maintain appropriate storage tank systems as explained in 6 NYCRR Parts 598 and 599, complete annual spill prevention reports, and inspect storage equipment every five years.

6 NYCRR Part 597 prohibits releases of a reportable (RQ) of a hazardous substance. As a result of this rule, any release of an RQ of PFOA or PFOS is required to be reported to the Department's Spill Hotline.

3. Professional Services

Small businesses and local governments that continue to store PFOA or PFOS after April 25, 2018, when the storage and handling standards go into effect for existing facilities, may need professional services to assist them in meeting the handling and storage requirements for hazardous substances. Professional services that may be needed for compliance with this rule could include professional engineers or qualified environmental professionals to complete annual spill prevention reports and inspection of storage equipment.

If a small business or local government becomes a remedial party subject to requirements to implement a remedial program under 6 NYCRR Part 375 (Part 375), it would likely require consulting and contractual services to assist in carrying out the remedial program. This could include professional engineers or qualified environmental professionals as defined in Part 375 and contractual services needed to undertake site investigation field work, analyses of environmental samples, or other specialized services.

4. Compliance Costs

Although the production of PFOA and PFOS has been largely phased out, these substances have not been completely eliminated from the marketplace. PFOA- and PFOS-related substances continue to be stored and used in the State.

Costs Relating Primarily to Storage

The initial costs of complying with this rule are twofold: determining whether products containing PFOA or PFOS at concentrations of 1 percent or more are stored at each facility, and registering each facility with one or more regulated storage tanks that store these hazardous substances. Information regarding the presence and concentration of PFOA or PFOS in particular substances may be available free of charge through Safety Data Sheets prepared by chemical manufacturers, distributors, and importers or access to results of analysis undertaken by business consortiums or others. In the event laboratory analysis is necessary, the Department's experience is that the cost to analyze a sample to determine the presence and concentration of PFOA or PFOS is expected to be in the several hundred dollar range. Registration fees, set forth at 6 NYCRR Section 596.3(a), are determined by the number of regulated tanks and the capacity of each tank. The fees range from $50 per tank for tanks with capacities less than 550 gallons to $125 per tank for tanks with capacities greater than 1,100 gallons. Under 6 NYCRR Section 596.2(c), these registration costs recur every two years for as long as the entity continues to store hazardous substances listed in Section 597.3.

Non-registration storage-related costs of initial and continued compliance are expected to vary primarily based on quantity of hazardous substances stored at each facility. If a facility discontinues storage by April 25, 2018, when the storage and handling standards go into effect, there will be no continued compliance costs associated with storage of these substances. If a facility continues to store these hazardous substances after April 25, 2018, costs of compliant tank systems could include costs for design, construction, and ongoing maintenance of these tank systems to ensure they are capable of meeting the technical requirements for release prevention, release detection, and containment of any spills that may occur. Additional costs associated with continued compliance will include costs of annual spill prevention reports and inspection of storage equipment every five years; these costs are expected to range from hundreds to thousands of dollars, but will vary greatly by facility depending on quantity of hazardous substances stored and whether professional services are utilized.

Costs Relating Primarily to Release Prohibition

Most of the PFOA- and PFOS-related substances that continue to be used or stored in the State are firefighting foams that were produced prior to 2016. Although not a cost of complying with this rule, some entities, including some small businesses or local government entities, will likely incur costs to determine if stored foam contains one or more of these hazardous substances and/or to replace the foam if the use of the foam could result in the release of an RQ of a hazardous substance. The cost of laboratory analysis of a sample to determine its concentration of PFOA or PFOS is expected to be in the several hundred dollar range. The cost to replace firefighting foam ranges from $16 to $32 per gallon.

Avoiding releases is not expected to present significant compliance costs because normal operations should not include releases of reportable quantities of hazardous substances.

Costs Relating to Remediation

Remediation costs are not costs of complying with this rule. However, where PFOA or PFOS has been released into the environment creating contamination that represents a significant threat to public health or the environment, regulated entities including small businesses and local governments may be subject to costs associated with remediation of these hazardous substances under Part 375.

5. Economic And Technological Feasibility

Compliance with this rule is technologically feasible for all entities, including small businesses and local governments. The storage tank systems required by this rule are readily available and commonly used for storage of other hazardous substances. The technology required for compliance with this rule is no different than the technology already in use by entities storing other hazardous substances.

The economic feasibility for small businesses or local governments to comply with this rule depends upon whether, and to what extent, these entities are storing or using PFOA or PFOS. The Department expects that most small businesses and local governments are not storing or using significant quantities of these hazardous substances, with the possible exception of entities storing firefighting foam (such as fire departments). For entities that do not store or use significant quantities of PFOA or PFOS, it should be economically feasible to achieve and maintain compliance with this rule. For entities storing or using significant quantities of these hazardous substances, particularly entities storing large quantities of old firefighting foams, initial compliance with this rule may present some challenges in terms of economic feasibility if there is a need to replace stockpiled foam. Economic feasibility of compliance for entities using firefighting foams is improved due to the rule's provision allowing such entities until April 25, 2017 to use foams to fight fires, but not for other purposes, allowing time to replace foams, if necessary. Continued compliance with this rule should be economically feasible for all entities.

Although separate from compliance with this rule, regulated entities, including small businesses and local governments, may be subject to the requirements of Part 375 where releases of PFOA or PFOS have occurred. The economic and technological feasibility for such entities to remediate a PFOA- or PFOS-contaminated site will depend upon the circumstances.

6. Minimizing Adverse Impact

This action does not lend itself to the mitigating measures listed in State Administrative Procedure Act section 202-b(1), specific to small businesses and local governments. The timing of the applicability of an element of the rule allows entities with firefighting foams until April 25, 2017 to continue to use foams to fight fires, but not for other purposes, allowing time to determine whether the foams contain one of these newly listed hazardous substances and replace foams if necessary. Additionally, there are existing requirements established in the regulations that are intended to minimize adverse economic impacts on regulated entities, including small businesses and local governments. For example, the CBS regulations allow a two-year period after a new chemical is added to the list of hazardous substances before the handling and storage requirements of 6 NYCRR Part 598 apply to existing tanks storing one of these substances (subdivision 598.1(h)).

7. Small Business And Local Government Participation

The Department provided and continues to provide statewide outreach, including outreach to small businesses and local governments. The Department ensured public notice and input for this rule by issuing public notices of the proposed rule making in the State Register, newspapers, and the Department's Environmental Notice Bulletin. The Department held three public hearings in June 2016 during the public comment period. Information was made available to the public on the Department's website and, in print, immediately prior to each hearing. Interested parties, including small businesses and local governments, had the opportunity to submit written comments and participate in the public hearings. The Department maintains a listserv to which persons/entities, including small businesses and local governments, may subscribe so that they can receive information about this rule. The Department also continues to post relevant rule making documents on its website.

8. Cure Period Or Other Opportunity For Ameliorative Action

If a facility is subject to the CBS facility registration requirement due to storage of PFOA or PFOS, and fails to register in accordance with 6 NYCRR Part 596, the facility owner/operator would be subject to penalties that have been in place and imposed by the Department for decades. Facilities with existing tank systems storing PFOA or PFOS have until April 25, 2018 to come into compliance with existing requirements. Violations of these compliance requirements have well-established and exercised enforcement procedures including imposition of monetary penalties when appropriate. These penalties are applicable to all types of entities, including small businesses and local governments.

As discussed above, this rule provides firefighting entities until April 25, 2017 to continue to use foams that contain a concentration of PFOA or PFOS that would result in the release of an RQ when used, to fight fires, but not for other purposes. There can be no other ameliorative actions or cure period regarding the prohibition against releasing an RQ of PFOA or PFOS to the environment. If there has been a release to the environment that requires remediation under a Department remedial program, the timing and content of the remediation is developed on a case-by-case basis.

9. Initial Review Of The Rule

The Department will conduct an initial review of the rule within three years of the promulgation of the final rule.


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