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New York State Department of Environmental Conservation Revises Regulations Governing Bulk Storage Tanks

The New York State Department of Environmental Conservation (NYSDEC) issued revised regulations, effective October 11, 2015, governing the management and bulk storage of petroleum and hazardous substances. Corresponding revisions to used oil management regulations will be effective on November 10, 2015, and operator training requirements must be implemented by October 11, 2016

Petroleum Bulk Storage and Used Oil. Prior to these revisions, NYSDEC’s Petroleum Bulk Storage (PBS) regulations were distributed across three different regulatory parts. They did not include changes made in 2008 to New York’s Environmental Conservation Law and did not correspond to federal regulations at 40 C.F.R. Part 280 governing underground storage tanks (USTs).

The revised PBS regulations are assembled in one part (6 N.Y.C.R.R. Part 613), and clarify requirements pertaining to state- and federally-regulated USTs and above-ground storage tanks (ASTs). The new regulations include new or more detailed requirements relating to:

  • Reporting and investigation of known or suspected releases;

  • Operator training (for UST systems subject to the federal Part 280 regulations);

  • The prohibition of deliveries of petroleum to leaking or apparently leaking tanks;

  • Release response and corrective actions; and

  • Standards for tank systems storing used oil.

The new regulations also amended 6 N.Y.C.R.R. Subpart 374-2, which, with existing regulations at Part 360-14, govern the management of used oil.

The former PBS regulations applied to USTs and ASTs with a combined storage capacity of more than 1,100 gallons. However, the revised regulations are now consistent with the federal Part 280 UST regulations and the ECL, so they also  govern certain USTs with a capacity of more than 110 gallons. Tanks not regulated under the PBS program include temporary tanks, “operational” tanks (e.g., hydraulic fluid tanks), and certain tanks for heating oil and motor fuel.

Local Implementation of PBS Rules. Several counties in New York have implemented the PBS program under local law. If those counties wish to continue to implement the PBS program, the counties must apply by April 8, 2016 for NYSDEC’s approval of a local law that is at least as stringent as the State’s program. Other counties or New York City may also apply to enact and implement a new local PBS program.

Chemical Bulk Storage. NYSDEC also revised the Chemical Bulk Storage (CBS) program, which regulates the bulk storage of hazardous substances. The revised regulations consolidate the CBS regulations in fewer Parts and include new or more detailed requirements relating to:

  • Prohibition of releases of hazardous substances;

  • Requirements to remediate releases;

  • Reporting requirement for releases of reportable quantities of regulated substances within any 24-hour period;

  • Updated list of regulated hazardous substances (adding 19 and deleting four substances), to be consistent with the federal list at 40 C.F.R. Part 302;

  • Operator training requirements;

  • Prohibition on delivery of chemicals to tank systems with known or suspected leaks, or tank systems lacking certain equipment or protections; and

  • Public notice to people directly affected by a release or a planned corrective action and a potential public meeting in cases of sufficient public interest.

Operator Training Guidance. On October 28, 2015, NYSDEC issued a new program policy, DER-40, that provides guidance for training and testing of operators of PBS facilities governed by both NYSDEC and federal rules, and for operators of all NYSDEC-regulated CBS facilities. Facilities subject to the operator training requirements must ensure that operators are designated and authorized by October 11, 2016.

© 2020 Beveridge & Diamond PC National Law Review, Volume V, Number 302

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About this Author

John H. Paul Environmental & Energy Attorney Beveridge & Diamond New York, NY
Principal

John's practice focuses on environmental and energy law, project development, and environmental quality review of project proposals.

He assists clients in permitting, regulatory compliance, and enforcement matters involving waste management and disposal, hazardous wastes, bulk storage, wastewater, and air emissions. He advises clients with regard to remediation of contaminated properties and brownfield development, particularly on properties involving multiple ownership interests and complicated histories. He also advises and represents property owners and...

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Stephen L. Gordon Environment & Land Use Attorney Beveridge & Diamond New York, NY
Principal

Steve’s practice includes providing legal services to local government, energy, real estate development, natural resource, manufacturing and waste management companies in all aspects of environment and land use law.

Representative matters during the past several years include numerous administrative and judicial proceedings relating to hazardous waste and sanitary landfill issues, environmental impact statements and public hearings for the siting of major electric generating facilities, large commercial and industrial real estate developments, major industrial waste disposal facilities, harbor development projects, and research and development laboratories.

His experience includes:

  • Securing all required local, State, and Federal approvals for a 1250 MW electric generating facility in Dover, NY, which will provide replacement power to the when the Indian Point nuclear facility closes.
  • Counseling independent power producers on significant cogeneration, repowering, transmission and new electric generating facilities that ranged from 40 MW to 800 MW while the new generating facilities comprised 350 MW to 1,000 MW.
  • Serving as lead counsel in state litigation contesting the denial of a permit to develop a regional commercial project, which was ultimately settled by selling hundreds of acres of prime tidal wetlands to the federal government, revising the municipal coastal zoning code, securing all state and federal permits, and developing the uplands.
  • Representing a municipality bifurcated by a major road network where the state DOT would not pledge to replace five bridges connecting the municipality subsequent to a major roadway construction project;
  • Securing state and federal permits for the continued operation of the largest hazardous waste treatment facility in the region with the action affirmed on appeal.
  • Securing the necessary state and federal authorizations, along with the purchase of the state property rights, in order for the client to build the largest oil tanker off-loading facility in New York harbor.
  • Representing County in the environmental reviews of a major upgrading of athletic facilities to accommodate the Goodwill Games and successfully defending the County in a suit attempting to block the Goodwill Games.

Steve previously served as a Deputy Attorney General in the State of New Jersey, representing the New Jersey Department of Environmental Protection. Steve then served as Enforcement Counsel, Deputy Commissioner, and First Deputy Commissioner of the New York State Department of Environmental Conservation. He has been involved in all aspects of environmental and land use law and has lectured extensively before professional organizations concerning environmental law and litigation.

212-702-5410
Michael G. Murphy Energy & Land Use Attorney Beveridge & Diamond New York, NY
Principal

Michael provides concrete, pragmatic advice that helps clients solve problems and achieve their goals in matters involving energy, land use, permitting, compliance, contracts, and litigation.

He worked for several years in construction before earning his undergraduate degree in Environmental Science and making a decision to enter the practice of environmental law. Today, he follows a similar non-traditional path in advising his clients—eschewing cookie-cutter approaches. He dives into the factual and legal issues, learning what is unique about his client, and tailors his advice to...

212-702-5436