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Revised Summary of Regulatory Impact Statement - 6 NYCRR Parts 613, 370, and 374-2

Repeal of:

6 NYCRR Part 612, Registration of Petroleum Storage Facilities
6 NYCRR Part 613, Handling and Storage of Petroleum
6 NYCRR Part 614, Standards for New and Substantially Modified Petroleum Storage Facilities

Addition of:

6 NYCRR Part 613, Petroleum Bulk Storage

Amendments to:

6 NYCRR section 370.1(e)(2), Hazardous Waste Management System - General
6 NYCRR Subpart 374-2, Standards for the Management of Used Oil

1. Statutory Authority

Petroleum Bulk Storage
The State law authority that empowers the Department of Environmental Conservation (Department) to regulate the storage, handling, and cleanup of petroleum is found in Article 12 of the Navigation Law (NL), sections 170 through 197 (Article 12) and Title 10 of Environmental Conservation Law (ECL) Article 17, sections 17-1001 through 17-1017 (Title 10). The Department is authorized to adopt regulations to implement the provisions of the ECL and the NL under ECL sections 3-0301(2)(a) and (m) and NL section 191, respectively. ECL Articles 3 and 17 provide authority regarding access to facilities, premises, and records. The Department's existing rules with respect to petroleum bulk storage (PBS) are found at 6 NYCRR Parts 612 through 614.

Under Subtitle I of the Resource Conservation and Recovery Act (RCRA), 42 USC sections 6991 through 6991m (Subtitle I), the U.S. Environmental Protection Agency (EPA) is authorized to regulate PBS underground storage tanks (USTs). EPA's implementing rule is found at 40 Code of Federal Regulations (CFR) Part 280.

Used Oil Management
Article 3, Title 3; Article 17, Title 10; Article 23, Title 23; Article 27, Titles 7 and 9; Article 70; and Article 71, Titles 27 and 35 of the ECL authorize the proposed changes to 6 NYCRR Part 370 and Subpart 374-2. The Department is authorized to promulgate regulations and standards applicable to the generation, storage, transportation, treatment and disposal of hazardous waste, as necessary to protect public health and the environment. Pursuant to ECL section 27-0900, these regulations and standards must be at least as stringent as those established by EPA under RCRA, Subtitle C (42 USC sections 6921 through 6939e).

2. Legislative Objectives

Petroleum Bulk Storage
The legislative objectives inherent in the statutory authority are the safe storage and handling of petroleum to minimize the threats to public health and the environment that come from the release of petroleum to the environment. The repeal of the existing rules and the adoption of proposed Part 613 would meet these legislative objectives and reflect statutory changes that were made to Title 10 in 2008 (see Ch. 334, L. 2008), which allow for State consistency with new federal requirements enacted as revisions to RCRA Subtitle I during 2005.

Used Oil Management
ECL Articles 3, 23 and 27 authorize the Department to promote resource recovery and preserve and enhance the State's air, water and land resources. Article 23 authorizes the Department to implement regulations governing used oil collectors, re-refiners and retention facilities, in conformance with ECL Article 27. Article 27 requires the promulgation of regulations governing the operation of solid waste management and hazardous waste management facilities. Pursuant to ECL section 27-0900, the hazardous waste management regulations must be at least as broad and as stringent as those established by EPA under RCRA.

3. Needs And Benefits

Petroleum Bulk Storage
The adoption of this proposed rule would ensure that the Department continues to receive grant funds which are vital to implementation and enforcement of the State's PBS program.

Many regulated entities with UST systems should find it easier and less expensive to comply with State regulatory requirements because they would be more consistent with federal regulatory requirements. The Department anticipates that this would result in increased compliance.

Some important definitions are added or clarified in the proposed rule, including: "UST system," (essentially equivalent to 40 CFR Part 280); classes of operators; various forms of tank capacity; "facility;" "farm" (same as "farm tank" in 40 CFR Part 280); "petroleum" (incorporates federal concept of a complex blend of hydrocarbons); and "petroleum mixture."

Under proposed Subpart 613-2, operators and tank system owners must designate operators for every UST system or group of UST systems. There are 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 613-2.5, training could be accomplished by any method selected by the operator (self-study, online, or in-person classes). The Department will develop a test to allow operators to demonstrate their understanding of the equipment and practices necessary for the safe operation of UST systems.

The new requirements of proposed Subpart 613-5 would allow the Department to prohibit deliveries of petroleum to tank systems that are in significant non-compliance with the proposed rule.

Used Oil Management
Most of the Department's used oil regulations are contained in 6 NYCRR Subparts 374-2 and 360-14. Proposed Part 613 includes standards for PBS tank systems that are applicable to tanks storing used oil.

The provisions of section 370.1(e)(2) and Subpart 374-2 are revised to address changes to definitions and cross-references related to proposed Part 613. In addition, revisions are proposed to account for changes to 40 CFR Part 279.

The proposed rule incorporates into State regulations revisions made to federal regulations between July 30, 2003 and April 13, 2012.

4. Costs

Petroleum Bulk Storage
There would be costs incurred by facilities subject to the operator training requirements of proposed section 613-2.5. 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. The Department will develop tests for Class A and B operators and training materials, for which there will be no charge. 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 relevant underground tank system is significantly out of compliance.

The proposed rule would eliminate or reduce costs incurred by certain facilities under existing rules, due to: (1) elimination of the requirement to perform inventory monitoring for tank systems which store motor fuel or kerosene that will not be sold; (2) introduction of a uniform records retention schedule with three time periods (three years, five years, or the life of the facility) depending upon the record type; and (3) elimination of periodic tank testing for UST systems subject to regulation under 40 CFR Part 280.

The Department would incur costs to develop and administer the operator training and delivery prohibition. Approximately $5,000 would be needed to procure tags and associated materials to implement the delivery prohibition requirements. The amount of staff time needed to accomplish these tasks cannot be determined until the implementation details have been finalized. This will be accomplished while the rule making process is being completed. The Department would continue to partially cover its personal and non-personal costs through registration application fees. The proposed rule does not impose any costs on state agencies or local governments.

Used Oil Management
These proposed amendments would not result in any additional costs to the regulated community. Actual requirements for used oil handlers based upon the revised definitions would remain the same. EPA's cost analyses of these regulatory amendments noted no added expenses to the regulated community (68 FR 44663 - 44665, 70 FR 34552 -34553, 71 FR 40257).

Implementation of the proposed revisions to the used oil regulations would not result in additional costs to the Department, because they do not create new regulatory programs, expand existing regulatory programs, or increase the universe of the regulated community.

Conformance with these amendments would not impose additional costs on other State agencies or local governments.

5. Local Government Mandates

No additional recordkeeping, reporting, or other requirements would be imposed on local governments.

6. Paperwork

The proposed rules contain no substantive changes to existing reporting and record keeping requirements. Facilities would be required to retain records of operator training once the requirement for training goes into effect.

7. Duplication

Petroleum Bulk Storage
One of the main goals of this proposed rule is to reduce duplication. The proposed rule represents a harmonization of existing State PBS and federal UST program requirements which use inconsistent terminology.

Used Oil Management
The proposed amendments would not result in a duplication of State regulations. Changes to cross-references and definitions would better align the used oil regulations with the State PBS regulations, by correcting cross-references to the PBS regulations and reducing conflicting requirements. By adopting the recent federal regulations, New York would not only retain authorization, but also reduce duplicative State and federal regulation of used oil in the State.

8. Alternatives

Petroleum Bulk Storage
The Department considered three alternatives when developing proposed Part 613: (1) no action, (2) a single-phase revision of all PBS regulatory requirements, and (3) a two-phase revision.

The Department declines to take no action because: (1) existing rules should, with respect to new tank systems, be updated to reflect the state of the art technologies and practices for the installation and operation of facilities; (2) existing rules do not adhere to the 2008 revisions to Title 10; (3) the rule making should increase compliance because many facilities with UST systems would find it easier and less expensive to comply with State and federal regulatory requirements that are more consistent and (4) the rule making would ensure the Department does not lose crucial federal funding.

The Department's second alternative was to propose a rule that includes more stringent requirements, including a requirement that all existing facilities (Category 1 and Category 2 tank systems in proposed rule) be upgraded to new tank system standards or be closed. The Department declined to pursue this alternative for a number of reasons, including the high likelihood that the Department will be obligated to undertake a second rule making to incorporate the revisions found in the newly revised federal regulations.

Used Oil Management
For the federal changes which increase stringency, amending Subpart 374-2 is the only viable alternative available for assuring that the Department's regulations remain at least as stringent as the federal rules. The no-action alternative would result in the State's loss of authorization to administer the used oil program in lieu of EPA's implementation of the federal program. If this were to occur, the regulated community would need to satisfy two sets of regulations (i.e., federal and pre-existing State) and the Department would suffer a loss of federal grant monies.

9. Federal Standards

Petroleum Bulk Storage
The proposed rule might be viewed as exceeding the requirements of 40 CFR Part 280 because it incorporates technology and operating standards that are proposed as compliance options in the pending federal rule making. 40 CFR Part 280 includes additional standards for new tank systems but they are presented only as guidance. However, because the standards incorporated into the proposed rule are widely-followed standards for new tank systems, the Department believes these standards do not exceed minimum federal standards.

Used Oil Management
The proposed changes would increase consistency between state and federal regulations and between the State's PBS and used oil regulations.

10. Compliance Schedule

Petroleum Bulk Storage
Operators of certain underground tanks would need to complete operator training and testing requirements within one year of the effective date of the rule. With regard to all other requirements, the regulated community would be required to comply upon adoption of the proposed rule.

Used Oil Management
The regulated community would be required to comply upon adoption of the proposed rule.

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