NYSDEC Issues Revised Bulk Storage Rules

In July 2023, DEC published notice of a final rule making to revise 6 NYCRR Parts 596-599 (Chemical Bulk Storage, or “CBS”) and Part 613 (Petroleum Bulk Storage, or “PBS”). According to DEC’s regulatory impact statements for these newly promulgated rulemakings, the revisions are principally intended to bring New York’s bulk storage rules into better alignment with existing federal requirements applicable to bulk chemical and bulk petroleum storage, respectively.

Importantly, the revised rules generally do not purport to create any new applicable requirements “that would change the manner in which regulated entities operate under existing industry practices and applicable federal and State laws and regulations.” Rather, the newly revised rules achieve, according to DEC, two interrelated tasks: (1) making New York’s CBS and PBS requirements consistent with EPA’s similar requirements; and (2) consolidating many of the CBS and PBS rules in order to make them consistent with one another, given that the two sets of rules share many of the same requirements and both sets of rules may apply to the same facility in many instances. Thus, as a general matter, many of the requirements under the revised rules are requirements that were already applied to CBS and PBS facilities under Federal law. For example, the rules set forth revised definitions to key terminology, bringing those definitions into consonance with federal law. Importantly, DEC has clarified the definitions of “spill” and “release” in an attempt to bring the distinction between those two concepts into stark relief.   

Perhaps the most important revisions to the PBS and CBS rules are the periodic testing requirements. The revised rules have incorporated federal requirements for periodic testing, monitoring, and inspection, set forth at 40 CFR Part 280. Those requirements apply not only to underground storage tanks, but also to overfill prevention equipment and leak detection equipment. Of particular note, the revised rules now expressly incorporate DEC’s prior position that a failed monitoring result constitutes a reportable suspected spill. Relatedly, the revised rules also updated the spill reporting requirements in the CBS and PBS rules as a means of achieving greater internal consistency and clarity, and, with respect to the CBS rules, have added a new requirement that suspected spills be reported to DEC within two hours of discovery, which is the same timeframe applied to actual spills and releases. For facilities regulated under the PBS rules, new criteria imported to the rules from the EPA regulations render some suspected spills as non-reportable, and facility owners and operators will want to carefully review those criteria for future reference.

Significantly, the revised rules also added respective “Financial Responsibility” sections, which appears, in form and function, to be nothing more than a requirement that owners or operators of regulated facilities post financial assurance. Under the new iteration of the rules, an owner or operator of a regulated facility must provide evidence of financial responsibility upon request by DEC for operations, closures, maintenances, and any corrective actions. Financial responsibility can be demonstrated in a number of ways, including insurance coverage, surety, letters of credit, or, under some circumstances, self-insurance. These requirements are due to take effect October 17, 2023.