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Revised Rural Area Flexibility Analysis - 6 NYCRR Part 597

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

1. Types And Estimated Number of Rural Areas

This rule:

• Adds 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) to 6 NYCRR Section 597.3 (Section 597.3);

• Allows continued use of firefighting foam that may contain PFOA or PFOS to fight fires (but not for training or any other purposes) on or before April 25, 2017 even if such use may result in the release of a reportable quantity (RQ), which is otherwise prohibited; and

• Corrects the list of hazardous substances by providing units for RQs.

There are 44 counties in New York State (State) that have populations of less than 200,000 people and 71 towns in non-rural counties where the population density is less than 150 people per square mile. Since this rule applies statewide, it applies to all rural as well as non-rural areas of the State. There is no reason to believe that the actions under this rule will disproportionately impact rural areas.

2. Reporting, Recordkeeping, Other Compliance Requirements, and Need for Professional Services

This rule makes no changes to reporting, recordkeeping, or other compliance requirements for Chemical Bulk Storage (CBS) facilities other than to place PFOA and PFOS on the list of hazardous substances in Section 597.3.
Facilities that store PFOA or PFOS in specified quantities and use certain tanks that make them subject to the registration requirements of 6 NYCRR Part 596 must include these tank systems on their facility registration with the New York State Department of Environmental Conservation (Department), and pay a registration fee associated with the CBS program. Facilities regulated under 6 NYCRR Parts 596-599 most commonly store hazardous substances in stationary aboveground tank systems with a capacity greater than 185 gallons.

A facility that stores PFOA or PFOS that is subject to the CBS registration requirements, as explained above, must submit its registration application to the Department and pay the commensurate fee at the time it becomes subject to regulation. If a facility is already storing PFOA or PFOS subject to the registration requirements, the registration requirements became effective on April 25, 2016. If a facility plans to start storing PFOA or PFOS, and is subject to the registration requirement, it must obtain a valid registration certificate prior to storing the material. Facilities with existing storage of PFOA or PFOS have until April 25, 2018 before they must comply with the applicable handling and storage requirements for these hazardous substances (6 NYCRR 598.1(h)). Since the Department anticipates that most facilities currently storing PFOA or PFOS will phase out storage of these substances prior to April 25, 2018, few facilities are expected to have substantive CBS compliance requirements regarding these chemicals beyond the registration requirement.

Existing 6 NYCRR Part 597 (Part 597) prohibits the release of an RQ of a hazardous substance to the environment unless a release is authorized or is continuous and stable and has been reported to the Department (6 NYCRR 597.4(a)). This rule allows entities with firefighting foam to use foam to fight fires on or before April 25, 2017 while they determine if the stored foam contains one or more of these hazardous substances and replace the foam if its use would result in the release of an RQ of a hazardous substance. Replacement foam may not contain a hazardous substance at a concentration that would result in the release of the RQ (one pound) or more when used as a firefighting foam. However, if foam is used to fight a fire and there is a release of a hazardous substance at or above the RQ stated in Part 597 for the substance, the release must be reported to the Department's spill hotline to allow the Department to determine if remediation of the release is appropriate (6 NYCRR 597.4(b)).

No new or additional professional services are anticipated to be needed by facilities located in rural areas to comply with this rule regarding the CBS requirements if they discontinue storing PFOA and PFOS before the handling and storage requirements for existing facilities take effect on April 25, 2018. If facilities continue to store these substances, facility owners/operators 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.

Beyond any costs associated with complying with this rule making, regulated entities may be subject to costs associated with remediation of PFOA and PFOS where these hazardous substances have been released into the environment, creating contamination that represents a significant threat to public health or the environment. For example, listing PFOA and PFOS as hazardous substances under Part 597 results in sites contaminated with PFOA or PFOS being subject to the inactive hazardous waste disposal sites regulatory requirements of 6 NYCRR Part 375 (Part 375). Requirements for investigation and cleanup of contaminated sites are established by Part 375 and by Department orders and agreements with regulated entities. Part 375 sets forth requirements for the investigation of site conditions to determine the nature and extent of environmental contamination, evaluate remedial alternatives, design and construct a remedy, complete the operation and maintenance activities required to achieve the remedial action objectives for the site, and maintain any institutional or engineering controls needed to maintain the effectiveness of the remedy.

If an owner/operator in a rural area becomes a remedial party subject to requirements to implement a remedial program under 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 complete site investigation field work, analyses of environmental samples, or other specialized services.

3. Costs

The Department does not anticipate a variation in compliance costs for different types of public and private entities in rural areas. Since PFOS-acid, PFOS-salt, and PFOS-related substances were restricted beginning in 2002 and, under the EPA's Stewardship Program addressing PFOA-related substances, eight companies voluntarily removed PFOA-acid, PFOA-salt, and PFOA-related substances from new products by December 2015, and because the substantive CBS tank system requirements for handling and storing PFOA or PFOS will not apply to existing facilities until April 25, 2018, the Department expects that the compliance costs for meeting the CBS requirements will be minimal. Hazardous substances regulated under Parts 596-599 are most commonly stored in stationary aboveground tank systems with a capacity greater than 185 gallons. Registration fees apply to each regulated tank and depend upon 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. If the regulated party were to discontinue storage of PFOA and PFOS by April 25, 2018, when the storage and handling standards go into effect, there would be no substantive costs associated with storage of these substances beyond payment of the registration fee. If the regulated party were to continue to store PFOA or PFOS, it would be subject to the costs of complying with the handling and storage requirements in 6 NYCRR Parts 598 and 599.

The prohibition of releases of an RQ of hazardous substances is not expected to present significant compliance costs for public or private entities in rural areas, with the possible exception of entities in possession of firefighting foams that may contain PFOA- or PFOS-related substances, such as Class B foams. 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. Replacement foam may not contain a hazardous substance at a concentration that would result in the release of the RQ (one pound) or more when used as a firefighting foam. The cost to replace the foam ranges from $16 to $32 per gallon, dependent on the amount and type of foam that is being replaced. Since PFOA and PFOS have not been classified as hazardous wastes under the federal Resource Conservation and Recovery Act, older foams may be disposed of as a solid waste after solidifying the firefighting foam (i.e., mix with concrete) as follows:

• Individuals and institutions may dispose of the solidified foam in a permitted landfill.

• Generators of industrial wastes (e.g., factories and major oil storage facilities) must have a specific Department authorization to dispose of solidified foam in a permitted landfill and must contact the Department's Division of Materials Management prior to disposal.

As noted above, 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 may be subject to costs beyond the costs of complying with this rule making. The costs of complying with the requirements of Part 375 to implement a remedial program where PFOA or PFOS is a primary contaminant will vary widely as the costs depend upon many factors. These factors include the quantity released to the environment; media contaminated (e.g., soil, groundwater, surface water, sediment); horizontal and vertical extent of contamination for each medium; accessibility of the contamination; whether there are human or environmental receptors to be protected while a remedial program is being undertaken; difficulty of removing PFOA and PFOS from the contaminated environmental media; future anticipated use of the area of contamination; and other factors. Because of the wide variety of scenarios, it is not possible to meaningfully estimate the potential costs to persons managing PFOA or PFOS resulting from the listing of PFOA and PFOS as hazardous substances other than to note that remedial program costs for other hazardous substances can range from the thousands to millions of dollars on a case-by-case basis.

4. Minimizing Adverse Impact

This action does not lend itself to the mitigating measures listed in State Administrative Procedure Act section 202-bb(2), but there are requirements established in the regulations to minimize adverse impacts on all regulated entities, including those in rural areas. 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 facilities with existing storage of the chemical (6 NYCRR 598.1(h)). Similarly, 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 hazardous substances and replace if necessary.

5. Rural Area Participation

The Department provided and continues to provide statewide outreach, including outreach to public and private interests in rural areas. The Department ensured public notice and input for this rule by issuing public notices of the proposed rulemaking 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 those from rural areas, had the opportunity to submit written comments and participate in the public hearings. The Department maintains a listserv to which persons/entities may subscribe so that they can receive information about this rule. The Department also continues to post relevant rule making documents on its website.

6. 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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