DEE-22: Petroleum Bulk Storage Inspection Enforcement Policy
DEC Program Policy
Issuing Authority: James H. Ferreira, Deputy Commissioner and General Counsel
Date Issued: May 21, 2003
Latest Date Revised:
Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:
- The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
- Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
- Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
- The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.
This enforcement guidance memorandum establishes 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.
In order to enhance compliance with the PBS regulations, the Department has developed standardized enforcement documents and procedures for use by Department program staff and attorneys. These standardized documents include a PBS Inspection Report, 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. This policy also includes a suggested penalty range for each PBS requirement that is violated.
III. Purpose and Background
This enforcement guidance memorandum establishes a policy for addressing violations of the Environmental Conservation Law ("ECL"), the Navigation Law ("NL") and the PBS regulations identified by Department staff in the course of conducting compliance inspections of regulated facilities. Compliance with these requirements is necessary to protect the public health, welfare, and the lands and waters of the State against discharges of petroleum. This policy establishes guidance, which is applicable statewide, for resolving violations of the ECL, the NL and the PBS regulations. This guidance will foster consistent enforcement for PBS facility owners and operators.
Chapter 613 of the Laws of 1983 (Article 17, Title 10 of the ECL) directed the Department to promulgate rules and regulations establishing a State petroleum bulk storage code. Regulations implementing Chapter 613 became effective on December 27, 1985, and are contained in 6 NYCRR Parts 612-614. In general, the PBS Program regulates the storage and handling of petroleum at facilities having a combined storage capacity of more than 1,100 gallons. These regulations subject owners and operators of PBS facilities to registration, record keeping, testing, and various operational and technical requirements. ECL §71-1929 authorizes penalties of up to $25,000 per day for violations of ECL Article 17, Title 10 or the regulations adopted thereunder.
On March 15, 1991, the Department issued the "Bulk Storage and Spill Response Guidance Memorandum" (DEE-4). This document sets forth the objectives of the Department's bulk storage and spill response programs, in particular the crucial role of enforcement in achieving those goals. These goals include, among other objectives, specific and general deterrence of violations and strict compliance.
To facilitate the resolution of certain PBS violations, the Department developed the "Short Form Enforcement -- Petroleum Bulk Storage" guidance document (dated March 4, 1993). The objective of this initiative was to allow regional program staff "to commence and resolve an enforcement action, collect a penalty and establish corrective action in a timely and effective manner." The initiative was limited to violations of the following PBS regulations: §612.2, §613.3(b), §613.3(c), §613.4, and §613.5. The guidance included model enforcement documents (a Notice of Violation and a short form Order on Consent) and a suggested schedule of penalties.
In response to a growing number violations of the PBS registration requirement (§612.2) and tightness testing requirement (§613.5), the Department issued the December 12,1997, "Petroleum Bulk Storage Enforcement Guidance Memorandum" (the "PBS - EGM") (DEE-20). This enforcement initiative was aimed at 7,500 PBS facilities that had failed to renew their registration and/or conducted tightness tests of their tank systems as of September 30, 1997. The objective of this initiative was to improve compliance across the State and to advance the goal of protecting the environment from petroleum contamination and additives, such as MTBE. The PBS - EGM included three progressive enforcement steps, beginning with penalty amnesty for facility owners who voluntarily cured the violation within 60 days of receiving notice from the Department. Those who failed to come into compliance within the 60 day period were given the opportunity to settle the violation by signing a Consent Order and paying a penalty of $1,000 per facility for registration violations and $1,000 per tank for tightness test violations. For facility owners who failed to settle, the Department commenced formal enforcement proceedings seeking higher penalties. The PBS - EGM expired February 9, 2000.
The PBS Program is a well established regulatory program. It has been in existence more than 17 years and, as evidenced by the more than 48,000 registered facilities, is known to the regulated community. In addition, over that 17 year period, the Department has expended considerable time and resources providing education and outreach to the regulated community. Despite these facts and the above enforcement efforts, Department inspectors report continued noncompliance with a wide array of the PBS regulations. The Department believes that the establishment of standardized PBS enforcement documents and procedures, applicable on a statewide basis, will facilitate fair, consistent enforcement efforts and thereby improve compliance.
The Department's regional technical staff have primary responsibility for implementing this enforcement program guidance with respect to the issuance of a Notice of Violation.(1) The Department's regional legal staff have responsibility for implementing this enforcement program guidance beginning with the issuance of an Order on Consent and, if necessary, including the commencement and prosecution of a formal administrative enforcement proceeding. The Division of Environmental Remediation and the Division of Environmental Enforcement will provide training and ongoing advice and assistance to the regional technical and legal staff.
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). The Order on Consent will include penalties for violations of PBS requirements and may include penalties for violations of applicable Navigation Law provisions, pursuant to N.L. §200.1. 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. Except as expressly set forth herein, 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 (DEE-1).
The "Short Form Enforcement -- Petroleum Bulk Storage" guidance document, dated March 4, 1993, is hereby rescinded in its entirety.
Related References: Article 17, Title 10 of the Environmental Conservation Law ("ECL") and 6 NYCRR Parts 612-614 contain provisions relating to the bulk storage of petroleum. Relevant enforcement provisions are contained in ECL Article 71, Title 19. Article 12 of the Navigation Law ("NL") prohibits the discharge of petroleum and contains related provisions concerning the reporting of petroleum discharges, liability for cleanup and removal, and enforcement. 6 NYCRR Part 611 establishes environmental priorities and procedures for the cleanup and removal of petroleum discharges.
1. The Department delegated authority to administer the PBS Program to five counties - Nassau, Suffolk, Westchester, Rockland, and Cortland. These delegated counties may, but are not required to, follow this Policy.