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Declaratory Ruling 40-01: Paxar Corporation

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Petition of

Paxar Corporation

for a Declaratory Ruling

DEC #40-01 Declaratory Ruling

Mr. Tony Harb
Director of Plant Operations
Paxar Corporation
524 Route 303
Orangeburg, New York 10962

Dear Mr. Harb:

This replies to your petition for a Declaratory Ruling submitted on behalf of Paxar Corporation ("Paxar") on or about December 11, 2002. Paxar seeks a determination that Article XVIII of the Rockland County Sanitary Code ("Article XVIII"), which purports to regulate chemical bulk storage facilities located within Rockland County, is preempted by the State's program regulating the storage of hazardous substances. Paxar's request follows its receipt of a letter from Rockland County directing the company to submit a registration application, fee and site plan. Paxar asserts that Article XVIII subjects it and other facilities to inconsistent regulations and duplicative fees.

Paxar's request is governed by State Administrative Procedures Act §204 and Part 619 of Title 6 of the New York Codes, Rules and Regulations (NYCRR).

For purposes of this Declaratory Ruling only, the New York State Department of Environmental Conservation (the "Department") will assume that the facts alleged in the petition are true. The Department may take official notice of any fact not subject to reasonable dispute if it either is generally known or can be accurately and readily verified. 6 NYCRR 619.2(b). Hence, this Declaratory Ruling is based on the assumed facts provided by the petitioner and any other readily verifiable facts which are pertinent to this matter. The Department will engage in no fact finding for purposes of this Declaratory Ruling and the binding effect of this ruling is limited by the assumed fact predicate. See Power Authority of the State of New York v. New York State Department of Environmental Conservation, 58 NY2d 427, 434; 461 NYS2d 769, 772 (1983). The Department will not assume the truth of statements which are legal conclusions.

Statement of Facts and Applicable Law

The "Hazardous Substances Bulk Storage Act" became law in 1986. (ECL Article 40). As directed by ECL 40-0113, the Department adopted regulations implementing Article 40. Those regulations, which are set forth in Parts 595 - 599 of Title 6 of New York Codes, Rules and Regulations (6 NYCRR), establish requirements for reporting releases of hazardous substances, the registration of regulated facilities, and the storage and handling of hazardous substances.1 Parts 595 - 597 were adopted on June 15, 1988 and became effective July 15, 1988. On July 12, 1994, the Department added Parts 598 and 599 (effective August 11, 1994). Together, the foregoing requirements constitute the State's Chemical Bulk Storage (CBS) Program. The Department administers and enforces the CBS Program statewide.2

ECL 40-0121.1 declares that "[A]ny local law or ordinance which is inconsistent with any provision of this article or any rule or regulation promulgated thereunder shall be preempted." Notwithstanding such declaration, subdivision two of that section authorizes the Department to approve and formally delegate the administration and enforcement of Article 40 to any county or to any city with a population of one million or more having a local law or ordinance that provides "an equal or greater level of environmental protection" than the State's program.3 6 NYCRR 598.2 sets forth the process for obtaining delegation.

In 1998, Rockland County requested the Department to delegate authority to administer the CBS Program within the County.4 By letter dated December 3, 1998, the Department declined to delegate such authority to the County at that time.5 Rockland County presently does not have a subsequent request pending for delegation of the CBS Program.

On September 1, 2002, Rockland County enacted Article XVIII of its Sanitary Code, entitled "Chemical Bulk Storage." The declared policy of Article XVIII is "to regulate the storage of hazardous substances and hazardous bulk storage facilities in order to protect the public health, safety and welfare and the lands, waters, air and environment of the County of Rockland."6 Among other things, Article XVIII includes requirements for reporting releases of hazardous substances, the registration of facilities, and the storage and handling of hazardous substances. In addition, Article XVIII subjects facility owners and operators to fees for permits, certifications, variances, review and training, as established by the Commissioner of the Rockland County Department of Health.

Paxar owns and operates a manufacturing facility located in Orangeburg, Rockland County. The Orangeburg facility includes chemical bulk storage tanks which are registered with the Department under CBS Registration Number 3-000101.

In a letter dated October 11, 2002, the Rockland County Department of Health notified Paxar about the recently adopted Article XVIII and directed the company to submit a registration application, fee and site plan by December 31, 2002. By letter dated December 11, 2002, Paxar requested a Declaratory Ruling on the validity of Rockland County's efforts to regulate hazardous substances.

Summary of Ruling

Rockland County's efforts to regulate hazardous substances within the County are preempted by the express terms of ECL 40-0121.1. In addition, the comprehensive and detailed regulatory scheme created by ECL Article 40 evidences the State's intent to occupy the entire field of regulating the storage of hazardous substances and thereby impliedly preempt local laws.

Discussion

Local governments have broad powers to enact legislation concerning the health and safety of their residents. See New York Constitution, Article IX, §2; and Municipal Home Rule Law §10. However, despite such authority, "the overriding limitation of the preemption doctrine embodies 'the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern.'" Albany Area Builders Association v. Town of Guilderland, 74 NY 2d 372, 377 (1989). In that case, the Court of Appeals held that preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field.

"Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a Statewide statute. Such local laws, 'were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns' . . . Moreover, the Legislature need not express its intent to preempt . . . that intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area . . . A comprehensive, detailed statutory scheme, for example, may evidence an intent to preempt." Id. at 377. (Internal citations omitted.)

Such holding is "consistent with the principle of statutory construction that a court should not find that the Legislature intended two separate agencies to exercise concurrent jurisdiction unless no other reading of the statute is possible." Ardizzone v. Elliott, 75 NY2d 152, 157 (1989).

A case that is closely analogous to the instant matter is Oil Heat Institute of Long Island, Inc. v. Town of Babylon, 548 NYS2d 305, 156 AD2d 352 (2d Dept. 1989), in which the Court examined ECL 17-1017.1, relating to the Petroleum Bulk Storage (PBS) Program. That section provides "[E]xcept as provided in subdivision two of this section, any local law or ordinance which is inconsistent with any provision of this title or any rule and regulation promulgated hereunder shall be preempted." The Court held that such language constituted an express preemption. The Court also held that, even if the Legislature had not expressly preempted the field, "its enactment of a comprehensive and detailed regulatory scheme with regard to the installation, maintenance and abandonment of fuel oil storage tanks would permit the finding that local laws in the same field were impliedly preempted." Id. at 306-307.

The express preemption language of ECL 17-1017.1, construed in the Oil Heat Institute case, is almost identical to ECL 40-0121.1. Specifically, ECL 40-0121.1 expressly provides that "[A]ny local law or ordinance which is inconsistent with any provision of this article or any rule or regulation promulgated thereunder shall be preempted." Given the near identity of those provisions, it is reasonable to conclude that ECL 40-0121.1 constitutes an express preemption. Accordingly, a local law regulating the storage of hazardous substances, such as Article XVIII, is deemed to be inconsistent with the State's CBS Program, "whether or not the terms of the local law actually conflict" with the statewide program. Albany Area Builders Association v. Town of Guilderland, 74 NY2d at 377.7

Even if the Legislature had not expressly preempted inconsistent local laws, the enactment of ECL Article 40 evidenced the State's intent to occupy the entire field of regulating facilities that store hazardous substances. ECL Article 40 created a statewide, comprehensive and detailed scheme with regard to the registration, installation, maintenance and abandonment of hazardous substance storage facilities. Such scheme is so comprehensive as to leave no room for competing regulation and impliedly preempts local laws in the same field.

Finally, ECL 40-0121.2, which clearly establishes the delegation process as the sole means by which a county may acquire authority to administer its own chemical bulk storage program, supports the conclusion that ECL Article 40 preempts inconsistent local laws, both expressly and impliedly.

Conclusion

Given that ECL 40-0121.1 expressly preempts Article XVIII of the Rockland County Sanitary Code, and since the statewide, comprehensive and detailed scheme created by ECL Article 40 evidences a clear intent by the State to occupy the entire field of regulating facilities that store hazardous substances, Rockland County is preempted from administering and enforcing Article XVIII. This determination does not preclude Rockland County from submitting a new request for delegation, pursuant to ECL 40-0121.2 and 6 NYCRR 598.2.

Sincerely,

James H. Ferreira

James H. Ferreira
Deputy Commissioner and General Counsel

Dated: Albany, New York
August 1, 2003

1 These regulations also implemented ECL Article 37, Title 1, entitled "Substances Hazardous to the Environment."

2 Persons who violate any provision of ECL Article 40 or the CBS regulations are liable for the civil, administrative and criminal penalties set forth in ECL Article 71.

3 Additional authority to delegate "functions of review, approval of plans, issuance of permits, licenses, certificates or approvals" required under the Environmental Conservation Law is found in ECL 3-0301.2(p).

4 Rockland County previously received a delegation of authority to administer and enforce the Petroleum Bulk Storage Program in an Order dated December 15, 1986.

5 The Department had not established sufficiently policies and procedures that were considered a necessary predicate to any delegation.

6 A copy of Article XVIII is attached hereto as Exhibit 1 (.pdf file).

7 Several provisions of Article XVIII actually conflict with the CBS regulations. Examples of conflicting provisions include, but are not limited to, the following: the definition of "non-stationary tank" at Section 18.2.13 is not limited to vessels which have stored a hazardous substance for at least 90 days or more, in contrast with the CBS definition in 6 NYCRR 596.1(c)(25); the County regulation at Section 18.2.16 defines "operator" to include a lessee, which is broader than the definition of such term in 6 NYCRR 596.1(c)(27); and Section 18.2.9 of the County regulation specifically includes hazardous waste in the definition of "hazardous substance," whereas the definition of "hazardous substance" in 6 NYCRR 596.1(c)(19) excludes hazardous waste for purposes of the CBS Program. (Although the CBS requirements do not apply to hazardous waste, 6 NYCRR Part 597 - "List of Hazardous Substances" - defines "hazardous substance" to include hazardous waste. This is because ECL 37-0103.2(c) required that list to include, among other substances, those substances defined as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, and the term "hazardous substances" under that act includes hazardous waste. The Department regulates the storage of hazardous waste in New York State pursuant to ECL Article 27, Title 9.)

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