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Revised Proposed Express Terms (Full Text) - 6 NYCRR Part 570

Liquefied Natural Gas

A new Part 570 is proposed to be added to 6 NYCRR to read as follows:

6 NYCRR Part 570
Liquefied Natural Gas

Sec.
570.1 Introduction
570.2 Permit requirements and application procedures
570.3 Site inspections, recordkeeping, and training of local fire department personnel
570.4 Transportation of LNG
570.5 Pre-existing facilities
570.6 Permanent closure of out-of-service LNG storage tanks
570.7 Financial assurance
570.8 Reporting of LNG spills
570.9 Effect on Moratorium
570.10 References

§ 570.1 Introduction

(a) Purpose. The purpose of this Part is to establish criteria for the siting of liquefied natural gas (LNG) facilities and to require that such facilities obtain a permit from the Department pursuant to Article 23, Title 17 of the Environmental Conservation Law to protect the public health and the environment of New York State (the State).

(b) Applicability. This Part applies throughout the State subject to the restrictions identified in section 570.9 of this Part. Unless specifically exempted pursuant to subdivision (d) of this section, owners and operators of LNG facilities must comply with this Part. LNG transportation activities do not require a permit issued under this Part; however, except for transportation by navigable waterways, intrastate transportation of LNG is prohibited unless the intrastate transportation route has been certified as set forth in section 570.4(a) of this Part. Storage or transportation of natural gas in the vapor state, under pressure or not, is not subject to this Part.

(c) Definitions. For the purposes of this Part, the following definitions apply:

(1) "Aboveground storage tank" or "AST" means any tank that is not an underground storage tank.
(2) "Authority having jurisdiction" means the local government, county government, or State agency responsible for the administration and enforcement of applicable regulation or law.
(3) "Department" means the New York State Department of Environmental Conservation.
(4) "Facility capacity" means the sum of the design capacities for each tank or other storage device (e.g., a tank trailer used for storage and not for an LNG transportation activity) at the LNG facility.
(5) "Interstate transport of LNG" means the transportation of LNG between a point in New York State and a point in another state or a foreign country, in either direction; or between points in New York State through another state or foreign country; or between points in other states or foreign countries through New York State.
(6) "Intrastate transport of LNG" means the transportation of LNG other than as described in the definition of "interstate transport of LNG."
(7) "L/CNG," also known as "liquefied to compressed natural gas," means LNG which may be dispensed from its container as either a liquid (LNG) or as compressed natural gas (CNG).
(8) "Liquefied natural gas," or "LNG," means natural gas or synthetic gas composed primarily of methane (CH4) cooled to its liquid state. For the purposes of this Part, LNG shall not mean liquefied petroleum gas.
(9) "Liquefied natural gas facility" or "LNG facility" means any structure or facility used to store LNG in a tank system, or other storage device or to convert LNG into natural gas.
(10) "Liquefied natural gas transportation activity" or "LNG transportation activity" means the loading, unloading, or transportation, by whatever means, of LNG.
(11) "NFPA" means the National Fire Protection Association, or its successor.
(12) "Natural gas" means a fuel consisting of a mixture of mostly methane (CH4) gas, other hydrocarbon gases, and trace amounts of non-hydrocarbon gases, which is stored and transported in a vapor state and under a wide range of pressures.
(13) "Operator" means any person who operates, controls, or supervises an LNG facility or who is responsible for the operation.
(14) "Out-of-service," in relation to an LNG facility or portion thereof, means no longer receiving or dispensing LNG.
(15) "Owner" means any person who owns or has legal or equitable title to an LNG facility.
(16) "Permit" means an "environmental safety permit" issued by the Department pursuant to Article 23, Title 17 of the Environmental Conservation Law and this Part.
(17) "Person" means any individual, corporation, partnership, association, cooperative or otherwise, trust or estate, governmental agency, authority, public benefit corporation, municipality or agency thereof, board or commission, or other public or private legal entity.
(18) "Pre-existing facility" means an LNG facility in actual use and operation on September 1, 1976 that is exempt from the permit requirements of this Part and operates pursuant to a Department order.
(19) "SEQRA" means the State Environmental Quality Review Act set forth in Article 8 of the Environmental Conservation Law, and implemented by Part 617 of this Title.
(20) "Spill" or "spillage" means any escape of LNG in liquid form from the containers employed in the normal course of storage, transfer, processing, or use of LNG.
(21) "Statement of compliance" means a two-part document containing the following components. In part one, a State-licensed Professional Engineer authorized to practice engineering in the State pursuant to Article 145 the State Education Law, on behalf of an applicant for a permit, attests by signature and seal that the design of the proposed LNG facility meets the applicable provisions of Federal Pipeline Safety standards, applicable provisions of the Public Service Commission's regulations in 16 NYCRR, and the Uniform Fire Prevention and Building Code of the State. In part two, the owner of the facility attests that the facility will be operated in accordance with all applicable law, regulations, standards, and requirements.
(22) "Tank" means the main storage container of a tank system. Each section of a compartmented tank will be treated as an individual tank.
(23) "Tank design capacity" means the nominal amount of LNG that a tank is designed to hold as determined by the tank manufacturer. If a certain portion of a tank is unable to store LNG (for example, electrical equipment or other interior components take up space), the design capacity of the tank is thereby reduced.
(24) "Tank system" means a stationary device designed to store LNG that is constructed of non-earthen materials that provide structural support. This term includes all associated piping and ancillary equipment.
(25) "Underground storage tank" or "UST" means a tank for which ten percent or more of the tank design capacity is beneath the surface of the ground. This term does not include a tank situated in an underground vault or other area making the tank fully available for inspection.

(d) Exemptions. For the purposes of this Part, the following exemptions apply:

(1) An on-board LNG fuel tank used to power an LNG-fueled vehicle or vessel shall not constitute an LNG facility.
(2) LNG delivery tank trucks, when attached to a natural gas pipeline for the purpose of short-term pipeline-pressure regulation, shall not constitute LNG facilities if such tank trucks remain connected to the pipeline for less than 72 hours per event, and no more frequently than one such event during any thirty (30) day period.
(3) The movement of LNG within the boundaries of an LNG facility shall not constitute intrastate transport of LNG.
(4) The movement of an LNG-fueled vehicle or vessel with an on-board LNG fuel tank used to power such vehicle or vessel shall not constitute intrastate transport of LNG.
(5) A pre-existing facility may continue to operate, without the need to obtain a permit, provided that:

i) there is no reconstruction or increase in the on-site LNG facility capacity within the boundaries of the facility;
ii) the owner submits a statement of compliance to the Department within one year of the effective date of this Part, and every five years thereafter; and
iii) the facility remains in compliance with the terms of the LNG-related Department orders issued January 19, 1979, and any subsequent orders that supersede the 1979 orders.

(6) The delivery of LNG to alleviate an emergency, as defined in section 621.2(j) of this Title, shall not constitute intrastate transport of LNG, if the Department has issued an emergency authorization pursuant to section 621.12 of this Title. For the duration of such emergency, the equipment used to convert LNG into natural gas shall not constitute an LNG facility, unless such equipment is already an LNG facility under this Part. In an emergency, the requirements of section 621.12 of this Title must be met.

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

(f) Enforcement. Any person, who violates any of the provisions of this Part, or any order issued by the Commissioner, shall be liable for civil, administrative and criminal penalties as provided by law.

§ 570.2 Permit Requirements and Application Procedures

(a) Permit Requirements. A permit issued pursuant to this Part must be obtained prior to the preparation of a site for, construction of, or operation of an LNG facility. Every permit issued pursuant to this Part shall specify the facility capacity, which shall not exceed 70,000 gallons. Facilities with valid permits must be operated in conformance with the permit and any terms, limitations, and conditions therein. Nothing in this Part exempts a facility from compliance with any other applicable State, federal, or local requirements.

(b) Permit Application Contents. A complete application for a permit must conform to the format provided by the Department and must include, at a minimum:

(1) the location of the proposed facility;
(2) a description of reasonable alternative locations for the proposed facility, if any, and whether the facility, if located at such alternative location(s) would be compatible with the surrounding environment and with the safety of neighboring populations while still meeting the needs, business purposes, or intentions of the applicant;
(3) the need for the proposed facility;
(4) specification of the tank manufacturing design standard and design capacity for each tank, any LNG conversion units, and any other storage device;
(5) the facility capacity, which shall not exceed 70,000 gallons;
(6) the expected sources of natural gas or LNG for the facility;
(7) a written summary and maps showing the routes to be used to supply the facility with LNG;
(8) a description of the possible environmental impacts of the proposed facility and the facility features or procedures to mitigate those impacts;
(9) a statement of compliance;
(10) a report, prepared by an independent qualified person, that evaluates the capability and preparedness, or lack thereof, of fire departments in the vicinity of the proposed facility who would respond to a release of LNG or fire involving LNG. If this report concludes that any additional training, personnel, or equipment would be needed for local fire departments to effectively respond to a release or fire involving LNG, the report shall detail the deficiencies and provide a detailed cost estimate and schedule for remedying any deficiencies;
(11) proof of liability insurance carried by the applicant which covers the proposed LNG operations;
(12) a written listing of the NFPA requirements that would apply to the LNG facility in accordance with paragraph (d)(1) of this section and an explanation of how the LNG facility would be in compliance with those requirements;
(13) for the proposed facility property and for surrounding properties within one-half mile of the facility property boundaries, floodplains within areas impacted by floods equal to or greater than the 100-year/base flood defined in Part 500 of this Title, the current zoning classifications, actual land use, and population data (from most recent census); and
(14) such other information as the Department shall determine to be necessary to render a decision about issuing a permit for the facility.

(c) Permit Application Forms.

(1) Facility owners must submit an application for a permit on application forms provided by the Department unless an alternative means of application is approved by the Department. Forms are available at http://www.dec.ny.gov/, all Department offices, or by writing the New York State Department of Environmental Conservation, Division of Environmental Remediation, 625 Broadway, Albany, New York, 12233-7020.
(2) A permit application submitted by a corporation must be signed by a principal executive officer of at least the level of vice-president or by a duly authorized representative. A permit application submitted by a partnership or a sole proprietorship must be signed by a general partner or proprietor. An application submitted by a municipal, state, or other public entity must be signed by either a principal executive officer, ranking elected official, or other duly authorized employee, and must be accompanied by a copy of the ordinance, resolution or order authorizing the individual to act on the public entity's behalf.
(3) Applications that do not conform to the requirements of this Part will be determined to be incomplete pursuant to Part 621 of this Title.

(d) Criteria for Siting and Operation of Facilities.

(1) All LNG facilities must comply with all applicable provisions of the August 29, 2012 (2013 edition) of NFPA 59A, "Standard for the Production, Storage, and Handling of Liquefied Natural Gas." In addition, LNG facilities that store and dispense LNG or L/CNG for use by vehicles must comply with all applicable provisions of the December 17, 2012 (2013 edition) of NFPA 52, "Vehicular Gaseous Fuel Systems Code."
(2) Transfers of LNG to trucks or rail cars must also comply with the applicable provisions of the October 1, 2013 edition of the United States Department of Transportation's Pipeline Safety Regulations, 49 CFR Part 193, Subchapter D. The installation, operation, and maintenance of facilities that transfer LNG to and from marine vessels shall be designed, built and operated in accordance with 49 CFR Part 193, Subchapter D and/or the July 1, 2013 edition of the United States Coast Guard's Navigation and Navigable Waters Regulations, 33 CFR Part 127, as applicable.
(3) The Department will determine if the information provided in the facility permit application required by subdivision (b) of this section indicates the need for additional training, personnel, or equipment to enable local fire departments to respond effectively to any release or fire involving LNG at the facility. If the Department concludes that additional training, personnel, or equipment is needed, it shall be provided by the applicant before beginning operation of the facility.
(4) When determining whether to issue a permit under this Part, the Department shall consider the physical, flammability, and explosivity characteristics of LNG and the following factors:

(i) compliance with the requirements of paragraphs one through three of this subdivision;
(ii) risks to persons and property in the area neighboring the facility; and
(iii) risks from transportation accidents.

(e) Permit Issuance. The procedures and processes identified in Part 621 of this Title govern the issuance of permits to LNG facilities. A permit issued pursuant to this Part is issued to the facility owner, and includes the names of the facility owner and facility operator. A permit is valid only for the facility's specified owner and operator, and the specific conditions stated in the application and permit.

(f) Duration of Permit. The date of expiration of any permit issued pursuant to this Part will be five (5) years from the date the permit is issued unless the Department determines that a shorter period is appropriate.

(g) Renewal of Permit. A permit issued pursuant to this Part may be renewed by the Department for additional five-year terms, or a shorter period if appropriate, in accordance with Part 621 of this Title, upon a written request on a form approved by the Department, and filed with the Department at least thirty (30) days prior to the permit expiration date. A request for a renewal must include a statement of compliance.

(h) Public Participation. Any hearings, comments, or participation by federal, State or local government bodies or members of the public, relative to any permit proceedings, shall be conducted in accordance with procedures established in Parts 621 and 624 of this Title.

(i) Modifications of Permits and Change of Ownership.

(1) A change in ownership of a facility requires the new owner to submit an application for permit transfer at least thirty (30) days prior to transfer pursuant to section 621.11 of this Title, and payment of the applicable fee under subdivision (k) of this section. A permit transfer is treated as a new permit.
(2) A change in facility operator requires written notice to the Department at least 30 days prior to the change in operator. No payment of a fee is required for a permit modification to reflect a change in facility operator.
(3) Permit modifications, including physical or operational changes to an existing LNG facility, are subject to procedures established in Part 621 of this Title. In addition:

(i) any proposed changes at an LNG facility subject to this Part involving any increase in on-site LNG facility capacity, modifications to the site boundaries of the facility, or requiring a material change to any permit terms or conditions will be treated as a new application pursuant to Part 621 of this Title.
(ii) the upgrading and maintenance of mechanical systems and other equipment, conducted during the term of a valid permit, that will not increase the on-site facility capacity, and is conducted within the previously approved site boundaries, does not require a permit modification.

(j) Permit Suspension or Revocation.

Permits issued to LNG facilities may be suspended or revoked by the Department, pursuant to Part 621 of this Title. For matters involving the potential endangerment of public safety, nothing in this section restricts any authority having jurisdiction from taking any action it might otherwise be empowered to take.

(k) Permit Application Fees; Costs.

The facility owner must submit with each application for a permit, permit renewal, or permit transfer, a permit application fee as follows:


Facility Capacity Fee
(1) less than 1,100 gallons $100.
(2) 1,100 gallons to 10,000 gallons $500.
(3) greater than 10,000 gallons to 70,000 gallons $1,000.

In addition to the permit application fee, the Department is authorized to recover costs associated with the State Environmental Quality Review Act process, and, on an allocated basis, all other costs incurred by the Department in the administration and enforcement of this Part and Article 23, Title 17 of the Environmental Conservation Law.

§ 570.3 Site Inspections, Recordkeeping, and Training of Local Fire Department Personnel

(a) Any designated employee or agent of the Department may enter and inspect an LNG facility to determine its compliance with this Part and any permits issued pursuant to this Part.

(b) The following records must be maintained at all LNG facilities subject to this Part and available for Department inspection at any time during normal business hours for the facility:

(1) a copy of the current facility permit issued by the Department; and
(2) a current site plan (to scale with north arrow) showing the location of all active LNG tanks, any LNG conversion units, any other storage devices, piping, firefighting equipment, facility boundaries, fencing, and adjacent roads.

(c) The following items must be maintained at the facility or provided to the Department within three business days of the Department's request:

(1) records of training provided to local emergency responders;
(2) records of any LNG tank closures;
(3) documentation of any financial assurance required by the Department;
(4) records of all reportable spills and reports provided to the Department regarding those spills and;
(5) any records required by NFPA standards 52 or 59A applicable to the facility.

(d) Each applicant for a permit shall offer an emergency response training program (and, as may be required under 570.2(d)(3), necessary personnel and/or equipment) for local enforcement, fire, and hazardous material response personnel of the authority having jurisdiction. The applicant shall offer, at applicant's cost, relevant training (and, as may be required under 570.2(d)(3), necessary personnel and/or equipment) prior to commencing operation of the LNG facility and annually thereafter using an appropriate training program approved by the New York State Fire Administrator within the New York State Division of Homeland Security and Emergency Services.

(e) The Department may evaluate facility compliance either with its own personnel or by contract with one or more persons qualified to monitor compliance and certify with respect thereto or by a combination of the foregoing means as deemed necessary by the Department. Costs for any contractual inspection services shall be paid by the permittee as a condition of the permit.

§ 570.4 Transportation of LNG

(a) The intrastate transportation of LNG is prohibited unless the route has been certified by the New York State Department of Transportation.

(b) Transportation of LNG within the State shall be conducted in accordance with all applicable State and federal requirements for the transport of hazardous materials, including the requirements of the New York State Department of Transportation and the New York State Department of Motor Vehicles. The interstate transportation route of LNG within the State does not require certification by the New York State Department of Transportation.

§ 570.5 Pre-existing Facilities.

All pre-existing LNG facilities may continue to operate pursuant to LNG-related Department orders issued January 19, 1979, and any subsequent orders that supersede the 1979 orders. However, any reconstruction or increase in capacity at a pre-existing facility requires a permit issued pursuant to this Part.

§ 570.6 Permanent Closure of Out-of-Service LNG Storage Tanks.

The holder of a permit for any LNG facility at which any LNG storage tank, or the entire facility, is to be permanently closed must submit plans to the Department at least thirty (30) days prior to permanent closure of the tank or facility. LNG storage tanks that are out of service for more than 12 months must be permanently closed. Permanent closure of an LNG storage tank shall comply with the container purging procedures of NFPA 59A and the following requirements:

(a) material removed from tanks must be disposed of in accordance with all applicable State and federal requirements;

(b) tanks must be protected from flotation in accordance with good engineering practices;

(c) all gauge openings or connecting lines must be capped, plugged or disconnected to prevent unauthorized use or tampering;

(d) aboveground storage tanks must be vented to the atmosphere and stenciled with the date of closure;

(e) underground storage tanks must be filled to capacity with a solid inert material or removed; and

(f) compliance with the requirements for permit relinquishment in section 621.11(d) of this Title.

§ 570.7 Financial Assurance.

Financial assurance, which may take the form of trust funds, surety bonds, letters of credit, insurance, documentation of financial capability, or other acceptable financial assurance, may be required by the Department to ensure proper closure of facilities. The form and amount of such financial assurance, if any, will be established by the Department.

§ 570.8 Reporting of LNG Spills.

Spills of one gallon or more of LNG at an LNG facility, or lesser amounts that result in a fire or an explosion, must be reported to the Department as follows:

(a) Spills of LNG must be reported to the Department as described in subdivision (b) of this section within two (2) hours of discovery. Notification must be made by calling the telephone hotline (518) 457-7362 for calls from out of State or (800) 457-7362 for calls from within the State. Only one report is required for each spill. The owner or operator of an LNG facility where a spill of LNG has occurred must also submit a written report to the Department within 10 calendar days of the incident or discovery thereof, or as otherwise directed by the Department documenting the cause of the spill, the amount of LNG spilled, and the curative measures to prevent future spills.

(b) The reporting requirements of this section apply to any of the following persons who are aware of a spill:

(1) a facility owner or operator;
(2) any employee, agent, or representative of a facility owner or operator; and
(3) any person in a contractual or agency relationship with an owner or operator of a facility who delivers LNG, inspects, tests or repairs any portion of a facility, or who otherwise has responsibility for the handling or management of the LNG, and/or its spillage.

§ 570.9 Effect on Moratorium.

The provisions of this Part shall not affect any statutory moratorium imposed restricting the issuance of permits under this Part.

§ 570.10 References.

Citations used in this Part refer to the publications listed below and copies may be purchased directly from the publishers at the addresses shown. These publications are available for inspection at the New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-7020; at the New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001; at the New York Legislative Library, Capitol, Room 337, Albany, NY 12224; and at the following law libraries:

Supreme Court Law Library/Civil Branch
851 Grand Concourse
Bronx, NY 10451
(First Judicial Department)

Supreme Court Law Library
360 Adams Street
Brooklyn, NY 11201
(Second Judicial Department)

Supreme Court Law Library
72 Clinton Street
Plattsburgh, NY 12901
(Third Judicial Department)

Supreme Court Law Library
Steuben County Courthouse
Bath, NY 14810
(Fourth Judicial Department)

The provisions of the Code of Federal Regulations which have been incorporated by reference in this Part have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the booklet entitled: Code of Federal Regulations, Title 49, Part 193 and Title 33, Part 127, revised as stated in subdivisions (c) and (d) of this section, published by the Office of the Federal Register, National Archives and Records Administration. Copies of the Code of Federal Regulations are also available at many public libraries and bar association libraries.

(a) "NFPA 52" means National Fire Protection Association, "Vehicular Gaseous Fuel Systems Code," December 17, 2012 (2013 Edition), NFPA, 1 Batterymarch Park, Quincy, MA 02269-9101, and at the following internet address: http://www.nfpa.org/categoryList.asp?categoryID=124.

(b) "NFPA 59A" means National Fire Protection Association, "Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)," August 29, 2012 (2013 Edition), NFPA, 1 Batterymarch Park, Quincy, MA 02269-9101, and at the following internet address: http://www.nfpa.org/categoryList.asp?categoryID=124.

(c) "49 CFR 193" means Part 193 of Title 49 of the Code of Federal Regulations, United States Department of Transportation Pipeline Safety Regulations, Subchapter D, entitled, "Liquefied Natural Gas Facilities: Federal Safety Standards," October 1, 2013, Superintendent of Documents, U.S. Government Printing Office, 732 N. Capitol Street, NW, Washington, D.C. 20401 or http://www.gpoaccess.gov/.

(d) "33 CFR 127" means Part 127 of Title 33 of the Code of Federal Regulations, United States Coast Guard's Navigation and Navigable Waters Regulations entitled, "Waterfront Facilities Handling Liquefied Natural Gas and Liquefied Hazardous Gas," July 1, 2013, Superintendent of Documents, U.S. Government Printing Office, 732 N. Capitol Street, NW, Washington, D.C. 20401 or http://www.gpoaccess.gov/.

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