Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments - 6 NYCRR Parts 595-599 - NYS Dept. of Environmental Conservation

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Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments - 6 NYCRR Parts 595-599

Repeal of:

6 NYCRR Part 595, Releases of Hazardous Substances
6 NYCRR Part 596, Hazardous Substance Bulk Storage Regulations
6 NYCRR Part 597, List of Hazardous Substances

Addition of:

6 NYCRR Part 596, Hazardous Substance Bulk Storage Facility Registration
6 NYCRR Part 597, Hazardous Substances Identification, Release Prohibition, and Release Reporting

Amendments to:

6 NYCRR Part 598, Handling and Storage of Hazardous Substances
6 NYCRR Part 599, Standards for New Hazardous Substance Tank Systems (formerly Standards for New or Modified Hazardous Substance Storage Facilities)

1. Effect of Rule

The proposed rules would apply statewide in all 62 counties of New York State (State). The proposed rules represent a consolidation of existing State and federal requirements and therefore do not include any substantive changes to existing requirements concerning chemical bulk storage (CBS) or the identification of hazardous substances.

The New York State Department of Environmental Conservation (Department) does not collect data with respect to the number of the persons employed by the owner or operator of any subject facility or on the industrial classification of a registered facility. The Department does not have data on the corporate structures that may exist for a particular facility owner or operator which may have a bearing on determining how many persons are employed by the owner or operator. The Department only collects information regarding the name, address, and contact information for the owner and operator of each registered facility. Due to this lack of data, the Department is unable to make an estimate of how many small businesses comply with the existing CBS rules (6 NYCRR Parts 595 through 599) or would be required to comply with the proposed rules.

The most common types of subject facilities are municipal facilities, manufacturing facilities and utilities. There are over 1,400 registered facilities in the Department's CBS database. The Department believes that the great majority of the owners and operators of these facilities would likely be properly categorized as small businesses.

The Department does collect data on whether registered facilities are owned by local governments. Local governments have registered over 580 facilities. The Department believes that the types of facilities registered by local governments tend to be water and wastewater treatment facilities.

2. Compliance Requirements

The proposed rules contain no substantive changes to requirements that are imposed on subject facilities under existing statutory and regulatory authorities.

3. Professional Services

No new or additional professional services would likely be needed by facilities owned by small businesses or local governments to comply with the proposed rules.

4. Compliance Costs

Under proposed section 598.12, operators and tank system owners must designate operators for every underground tank system or group of underground tank systems. There would be three operator classes (A, B and C) to enable training to be focused on the particular level of knowledge required.

Consistent with federal requirements, there would be three key components to the operator training program: training, assessment of knowledge, and verification. Under proposed section 598.12, training could be accomplished by any method selected by the operator (self-study, online, or in-person classes). The Department will develop training materials and an examination to allow operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of underground tank systems. It is anticipated that the exam would primarily be administered online. The Department recognizes that online testing may not be a viable option for some operators and therefore proposes to provide in-person exam options.

There would be costs incurred by facilities subject to the operator training requirements of proposed section 598.12. Within 30 days of being designated, every Class A and B operator must adequately perform on an assessment of knowledge of regulatory requirements applicable to the relevant operator class. Before being designated, every Class C operator must be trained and tested by the Class A or B operator. Operators of tank systems that are not regulated under 40 CFR Part 280 are exempt from this requirement. Self-study can be conducted at no cost and training courses are optional. The Department will develop tests for Class A and B operators. The Department will also develop training materials and make them publicly available. There will be no charge for the training materials or for an operator to take the test. Costs for Class A and B operators would be limited to costs associated with the time to prepare and take the test. Retesting or new operator designation would be required within 30 days of a Department determination that the underground tank system is significantly out of compliance.

5. Economic and Technological Feasibility

The proposed rules contain no substantive changes to requirements that are imposed on subject facilities under existing statutory and regulatory authorities. Implementation of the proposed rules would be economically and technologically feasible for small businesses and local governments.

6. Minimizing Adverse Impact

Because the proposed rules represent a consolidation of existing State and federal requirements involving CBS and hazardous substance identification, the Department does not believe that the proposed rules would have an adverse economic impact on small businesses or local governments.

7. Small Business and Local Government Participation

The Department provides statewide outreach to persons who will be subject to the proposed rules, including small businesses and local government, by posting relevant information on the Department's website. The website provides these persons with information regarding implementation of the existing rules for the CBS program, and provides copies of the proposed rules and explanatory material. The Department also maintains a listserv to which persons may subscribe so that they can receive information about new developments regarding the CBS program.

8. Cure Period or Other Opportunity for Ameliorative Action

State Administrative Procedure Act (SAPA) section 202-b(1-a) provides as follows:

In developing a rule for which a regulatory flexibility analysis is required and which involves the establishment or modification of a violation or of penalties associated with a violation, the agency shall: (a) include a cure period or other opportunity for ameliorative action, the successful completion of which will prevent the imposition of penalties on the party or parties subject to enforcement; or (b) include in the regulatory flexibility analysis an explanation of why no such cure period was included in the rule.

Proposed section 598.13 would provide for the possible imposition of a delivery prohibition on any tank system for which the Department finds a Tier 1 or Tier 2 condition exists. The statutory basis for imposition of a delivery prohibition is found in Environmental Conservation Law (ECL) section 40-0111(2) as amended during 2008. The Department considers a delivery prohibition to be a penalty within the meaning of SAPA section 202-b (1-a).

The delivery prohibition would only be imposed without prior notice and opportunity for hearing when the Department finds that a Tier 1 condition exists with respect to a tank system. Tier 1 conditions would be regulatory violations that constitute imminent and serious threats to public health and the environment. Tier 1 conditions would include: (1) a tank system is known to be releasing a hazardous substance, and (2) an underground tank system lacks infrastructure or equipment needed to meet secondary containment, spill and overfill prevention, corrosion protection, or leak detection requirements. The severity of the threat generally posed by Tier 1 conditions militates against the provision of any cure period that would allow the threat to continue.

The designation of a tank system that is releasing hazardous substances as a Tier 1 condition is supported by the existing prohibition on the operation of any leaking tank system. ECL section 40-0111(2) (since it was originally enacted during 1986) provides that the operation of any leaking tank system and associated equipment is unlawful and the contents of any leaking tank system must be promptly removed. To allow for the continued operation of a tank system that is releasing hazardous substance during a cure period would be in direct contravention of ECL section 40-0111(2).

With respect to the other Tier 1 conditions involving equipment deficiencies at an underground system, the violations are generally of a kind that is not quickly ameliorated. The absence of required equipment, such as corrosion protection, usually requires substantial installation work that involves the excavation of soil around the underground tank system.

When the Department finds that a Tier 2 condition exists, imposition of a delivery prohibition would not occur until after a cure period occurs. The cure period that follows a Department finding of a Tier 2 condition would last either ten or 30 days depending on the circumstances. See proposed section 598.13(a)(2)(iv).


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