Response to Comment 21: This comment does not address the revisions
to the proposed regulation. In any case, the proposed regula tion does not
directly require the expenditure of any New York State funds . Moreover,
pursuant to ECL § 3-0319, which was added by CRRA, the Legisla ture
directed the Department to adopt a regulation establishing science-based
State sea-level rise projections.
List of Commenters
Name Organization
1 Daniel Zarrilli City of New York
2 Roger Caiazza Environmental Energy Alliance of New
York
3 Marlene Donnelly Friends & Residents of Greater Gowa-
nus
4 Jay Ross NA
5 Julie Noble Kingston Conservation Advisory Coun-
cil
6 Len Lisenbee NA
7 David Hamling New York Construction Materials Asso-
ciation
8 Robert Freudenberg Regional Plan Association
9 Paul Gallay Hudson Riverkeeper et al.*
10 Robert Hutchison NA
11 Jessica Wentz Sabin Center for Climate Change Law
12 Nava Tabak Scenic Hudson
13 Maureen Dunn Seatuck Environmental Association
14 Stuart Gruskin The Nature Conservancy
*Submitted on behalf of Citizens Campaign for the Environment; Hudson
Riverkeeper; Natural Resources Defense Council; New York/New Jersey
Baykeeper; Peconic Baykeeper; Super Law Group, LLC
NOTICE OF ADOPTION
Chemical Bulk Storage (CBS)
I.D. No. ENV-19-16-00006-A
Filing No. 108
Filing Date: 2017-02-01
Effective Date: 30 days after ﬁling
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of Part 597 of Title 6 NYCRR.
Statutory authority: Environmental Conservation Law, sections 1-0101,
3-0301, 3-0303, 17-0301, 17-0303, 17-0501, 17-1743, 27-13 01, 37-0101
through 37-0107 and 40-0101 through 40-0121
Subject: Chemical Bulk Storage (CBS).
Purpose: To amend Part 597 of the CBS regulations.
Text or summary was published in the May 11, 2016 issue of the Register,
I.D. No. ENV-19-16-00006-EP.
Final rule as compared with last published rule: No changes.
Text of rule and any required statements and analyses may be obtained
from: Russ Brauksieck, NYS Department of Environmental Conserva -
tion, 625 Broadway, Albany, NY 12233-7020, (518) 402-9553, email:
derweb@dec.ny.gov
Additional matter required by statute: Negative Declaration, Coastal As-
sessment Form, and Short Environmental Assessment Form hav e been
completed for the proposed rule making.
Summary of Revised Regulatory Impact Statement
Full text of the Revised Regulatory Impact Statement is available on the
New York State Department of Environmental Conservation’s website at
http://www.dec.ny.gov/regulations/104968.html
1. STATUTORY AUTHORITY
The State law authority that empowers the New York State Department
of Environmental Conservation (Department) to create a list of hazardous
substances is found in Title One of Article 37 of the Environmental Con-
servation Law (ECL), sections 37-0101 through 37-0111, ent itled “Sub-
stances Hazardous to the Environment” (Article 37). The Dep artment is
authorized to adopt regulations to implement ECL provision s (ECL sec-
tions 3-0301(2)(a) and (m)). Moreover, section 37-0105 exp licitlyauthorizes the Department to promulgate rules and regulations pertaining
to the storage and prevention of releases of hazardous subst ances to the
environment. Speciﬁcally, section 37-0103 directs the Department to cre-
ate and maintain “a list of substances hazardous to the public health, safety
or the environment,” including substances which, “because of their
quantity, concentration, or physical, chemical or infectious characteristics
cause physical injury or illness when improperly treated, stored, trans-
ported, disposed of, or otherwise managed” or “pose a present or potential
hazard to the environment when improperly treated, stored, transported,
disposed of, or otherwise managed.”
2. LEGISLATIVE OBJECTIVES
The legislative objectives of Article 37 include prevention of pollution,
protection of natural resources such as groundwater, and re quiring safe
storage and handling of hazardous substances in order to pro tect public
health and the environment.
3. NEEDS AND BENEFITS
The purpose of this rule is to:
DAdd perﬂuorooctanoic acid (PFOA-acid, Chemical Abstracts Service
(CAS) No. 335-67-1), ammonium perﬂuorooctanoate (PFOA-sa lt, CAS
No. 3825-26-1), perﬂuorooctane sulfonic acid (PFOS-acid, CAS No.
1763-23-1), and perﬂuorooctane sulfonate (PFOS-salt, CAS No. 2795-
39-3) (also collectively referred to within as PFOA and PFOS ) to the list
of hazardous substances at 6 NYCRR Section 597.3 (Section 597.3);
DAllow continued use of ﬁreﬁghting foam that may contain PFOA or
PFOS to ﬁght ﬁres (but not for training or any other purposes) on or before
April 25, 2017 even if such use may result in the release of a re portable
quantity (RQ), which is otherwise prohibited; and
DCorrect the list of hazardous substances by providing units for RQs.
Need for and Beneﬁt of Adding PFOA and PFOS to the List of Hazard-
ous Substances
The Department concluded that these substances meet the deﬁnition of
hazardous substances based upon the conclusion of New York S tate
Department of Health (NYSDOH) that prolonged exposure to signiﬁcantly
elevated levels of these compounds can affect health and, co nsequently,
pose a threat to public health in the State when improperly treated, stored,
transported, disposed of, or otherwise managed. The Depart ment also
concluded that these substances meet the deﬁnition of hazar dous sub-
stances based upon a Department ecotoxicologist’s identiﬁcation of these
compounds as potential hazards to the environment. Proper m anagement
of these compounds is needed to protect public health and the environment.
As documented in NYSDOH’s April 11, 2016 Health Hazard Revie w,
appended to NYSDOH’s April 20, 2016 letter requesting the Department’s
listing of PFOA and PFOS as hazardous substances and attache d to the
full Regulatory Impact Statement, the combined weight of evidence from
human and experimental animal studies indicates that prolonged exposure
to signiﬁcantly elevated levels of these compounds can adve rsely affect
health and, consequently, pose a threat to the public. In add ition, as
documented by Department ecotoxicologist Timothy J. Sinno tt in two
October 7, 2016 evaluations of Environmental Risk, attache d to the full
Regulatory Impact Statement, each of these four compounds (PFOA-acid,
PFOA-salt, PFOS-acid, and PFOS-salt) poses a potential haz ard to the
environment.
There are at least three beneﬁts of listing PFOA and PFOS as hazardous
substances in 6 NYCRR Part 597 (Part 597). First, if a mixture containing
PFOA or PFOS in concentrations of 1% or more is stored in an aboveg-
round tank of 185 gallons or more or any size underground tank, the tank
would be subject to the requirements of the Chemical Bulk Storage (CBS)
regulations (6 NYCRR Parts 596 – 599). Second, this rule proh ibits
releases of an RQ of PFOA or PFOS, subject to the limited exception of 6
NYCRR 597.4(a). Third, if PFOA or PFOS is released into the en viron-
ment, creating contamination that represents a signiﬁcant threat to public
health or the environment, resulting in the need for site cle anup, the
Department is authorized to pursue clean-up of the contamin ation under
one of the Department’s remedial programs (6 NYCRR Part 375) . All of
these beneﬁts enhance protection of public health and the environment.
Need for and Beneﬁt of Allowing Limited Continued Use of PFOA and
PFOS in Fireﬁghting
The release prohibition includes an exception allowing ent ities storing
ﬁreﬁghting foam to use the foam to ﬁght ﬁres, but not for training or other
purposes, on or before April 25, 2017. This exception is necessary in order
to ensure the availability of materials to control ﬁres effectively to beneﬁt
public safety.
Need for and Beneﬁt of Correction of the List of Hazardous Substances
After the 2015 rule making pertaining to 6 NYCRR Parts 596-59 9, it
was determined that the units for RQs were inadvertently lef t out of the
table causing some uncertainty regarding when a release would need to be
reported. This rule adds units back to the column heading of t he table so
that it is clear that RQs are measured in pounds.
4. COSTS
Costs to Regulated PartiesNYS Register/February 22, 2017 Rule Making Activities
3Although the production of PFOA and PFOS has been largely pha sed
out, PFOA- and PFOS-related substances continue to be store d and used
in the State.
Costs Relating Primarily to Storage
The initial costs of complying with this rule are twofold: de termining
whether products containing PFOA or PFOS at concentrations of 1 percent
or more are stored at each facility, and registering each facility with one or
more regulated storage tanks that store these hazardous substances. Infor-
mation regarding the presence and concentration of PFOA or PFOS in par-
ticular substances may be available free of charge through S afety Data
Sheets prepared by chemical manufacturers, distributors, and importers or
access to results of analysis undertaken by business consortiums or others.
In the event laboratory analysis is necessary, the Department’s experience
is that the cost to analyze a sample to determine the presence and
concentration of PFOA or PFOS is expected to be in the several hundred
dollar range. Registration fees, set forth at 6 NYCRR Section 596.3(a), are
determined by the number of regulated tanks and the capacity of each
tank. The fees range from $50 per tank for tanks with capacities less than
550 gallons to $125 per tank for tanks with capacities greate r than 1,100
gallons. Under 6 NYCRR Section 596.2(c), these registratio n costs recur
every two years for as long as the entity continues to store hazardous sub-
stances listed in Section 597.3.
Non-registration storage-related costs of initial and con tinued compli-
ance are expected to vary primarily based on quantity of haza rdous sub-
stances stored at each facility. If a facility discontinues storage by April
25, 2018, when the storage and handling standards go into eff ect, there
will be no regulatory costs associated with storage of these substances be-
yond the payment of the initial registration fee. If a facili ty continues to
store these hazardous substances after April 25, 2018, cost s associated
with continued compliance will include costs of annual spil l prevention
reports and inspection of storage equipment every ﬁve years . The
Department’s experience with other CBS facilities suggest s that these
costs may range from hundreds to thousands of dollars. The Department is
unable to provide a more complete estimate of costs because it is unknown
how many facilities store these hazardous substances and co sts will vary
greatly by facility depending on quantity of hazardous subs tances stored
and whether professional services are utilized.
Costs Relating Primarily to Release Prohibition
Although not a cost of complying with this rule, some entities will likely
incur costs to determine if stored ﬁreﬁghting foam contains one or more of
these hazardous substances and/or to replace the foam if the use of the
foam could result in the release of an RQ of a hazardous substa nce. The
cost to replace ﬁreﬁghting foam, based on information gathe red from
ﬁreﬁghting foam suppliers, ranges from $16 to $32 per gallon.
Avoiding releases is not expected to present signiﬁcant com pliance
costs because normal operations should not include releases of reportable
quantities of hazardous substances.
Costs Relating to Remediation
Remediation costs are not costs of complying with this rule. However,
as noted above, where PFOA or PFOS has been released into the environ-
ment, regulated entities may be subject to costs associated with remedia-
tion of these hazardous substances under Part 375.
Costs to the Department, State, and Local Government
Aside from potential costs as regulated parties, government entities are
not expected to incur any costs associated with implementat ion or
continued administration of this rule.
Department Costs for Implementation and Continued Administration
This rule is not expected to create signiﬁcant new costs associated with
implementation or continued administration of the CBS program because
this rule making adds only four substances to the list of haza rdous sub-
stances regulated by the CBS program. The Department is unab le to
provide a more complete estimate of costs because the number of facilities
that may enter and remain in the CBS program as a result of this rule is
unknown.
Costs of responding to releases of PFOA and PFOS, including costs of
determining whether remediation is required and costs of ov erseeing
and/or conducting any required remediation of these hazardous substances,
may be signiﬁcant. The Department is unable to provide a more complete
estimate of costs expected as a result of remediation of thes e hazardous
substances.
5. LOCAL GOVERNMENT MANDATES
This is not a local government mandate.
6. PAPERWORK
Existing reporting and record keeping requirements includ e: registra-
tion forms, spill prevention reports, reporting of releases above an RQ or
other standard, and record keeping for inspection of storage equipment.
7. DUPLICATION
The listing of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-s alt as
hazardous substances in Part 597 causes no duplication, ove rlap, or
conﬂict with Toxic Substances Control Act, the Safe Drinkin g Water Act
or any other state or federal government programs or rules.8. ALTERNATIVES
The Department declined to take no action because, as determ ined by
NYSDOH and the Department, the combined weight of evidence from hu-
man and experimental animal studies indicates that prolonged exposure to
signiﬁcantly elevated levels of these compounds can affect health and,
consequently, pose a threat to public health in the State when improperly
treated, stored, transported, disposed of, or otherwise ma naged, and
because each of these substances poses a potential hazard to the environ-
ment when improperly treated, stored, transported, dispos ed of, or
otherwise managed.
9. FEDERAL STANDARDS
Listing PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as hazard-
ous substances exceeds the current federal approach, as USE PA has not
listed PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt as hazardous sub-
stances under the federal Comprehensive Environmental Res ponse,
Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq., or under
the applicable regulation, 40 CFR Part 302 (“Designation, R eportable
Quantities, and Notiﬁcation”).
10. COMPLIANCE SCHEDULE
Registration
The Department estimates that it should take approximately one hour of
effort for an applicant to complete the registration applic ation and ap-
proximately one week after submission of the registration application for
the applicant to receive the registration certiﬁcate from the Department.
Handling and Storage Requirements
For those facilities that continue to store PFOA or PFOS after April 25,
2018, achieving compliance with the storage and handling re quirements
may take up to several months.
Release Prohibition
The Department estimates that it may take up to one month or longer to
determine whether foam contains PFOA or PFOS, depending upon labora-
tory availability.
Summary of Revised Regulatory Flexibility Analysis
Full text of the Revised Regulatory Flexibility Analysis for Small Busi-
nesses & Local Governments is available on the New York State Depart-
ment of Environmental Conservation’s (Department) websit e at http://
www.dec.ny.gov/regulations/104968.html
1. EFFECT OF RULE
This rule applies statewide in all 62 counties of New York State (State).
In total, there are over 1,400 registered facilities in the D epartment’s
Chemical Bulk Storage (CBS) database. These facilities store a wide vari-
ety of hazardous substances.
The Department is presently unable to estimate how many smal l busi-
nesses and local governments will be newly subject to regula tion as a
result of this rule, or to identify the size of businesses tha t are or may be
affected by the rule. The Department is aware of approximately 1,800 lo-
cal government agencies (ﬁre departments) that may maintai n stocks of
ﬁreﬁghting foam which could be subject to the registration r equirement.
Although the rule applies to all small businesses and local governments in
the State, the number of facilities that would be required to register as a
CBS facility or report a release of a hazardous substance as a result of this
rule making is expected to be small.
2. COMPLIANCE REQUIREMENTS
This rule makes no changes to reporting, recordkeeping, or o ther
compliance requirements for CBS facilities other than to place perﬂuo-
rooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-
67-1), ammonium perﬂuorooctanoate (PFOA-salt, CAS No. 382 5-26-1),
perﬂuorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23- 1), and
perﬂuorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) ( also collec-
tively referred to within as PFOA and PFOS) on the list of hazardous sub-
stances in 6 NYCRR Section 597.3 (Section 597.3). This rule requires that
CBS facilities storing PFOA or PFOS: register each facility with one or
more regulated storage tanks that store listed hazardous su bstances,
display the registration certiﬁcate issued by the Department, maintain ap-
propriate storage tank systems as explained in 6 NYCRR Parts 598 and
599, complete annual spill prevention reports, and inspect storage equip-
ment every ﬁve years.
6 NYCRR Part 597 prohibits releases of a reportable (RQ) of a hazard-
ous substance. As a result of this rule, any release of an RQ of PFOA or
PFOS is required to be reported to the Department’s Spill Hotline.
3. PROFESSIONAL SERVICES
Small businesses and local governments that continue to store PFOA or
PFOS after April 25, 2018, when the storage and handling stan dards go
into effect for existing facilities, may need professional services to assist
them in meeting the handling and storage requirements for ha zardous
substances. Professional services that may be needed for compliance with
this rule could include professional engineers or qualiﬁed environmental
professionals to complete annual spill prevention reports and inspection of
storage equipment.
If a small business or local government becomes a remedial pa rtyNYS Register/February 22, 2017 Rule Making Activities
4subject to requirements to implement a remedial program under 6 NYCRR
Part 375 (Part 375), it would likely require consulting and contractual ser-
vices to assist in carrying out the remedial program. This co uld include
professional engineers or qualiﬁed environmental professionals as deﬁned
in Part 375 and contractual services needed to undertake site investigation
ﬁeld work, analyses of environmental samples, or other spec ialized
services.
4. COMPLIANCE COSTS
Although the production of PFOA and PFOS has been largely pha sed
out, these substances have not been completely eliminated f rom the
marketplace. PFOA- and PFOS-related substances continue t o be stored
and used in the State.
Costs Relating Primarily to Storage
The initial costs of complying with this rule are twofold: de termining
whether products containing PFOA or PFOS at concentrations of 1 percent
or more are stored at each facility, and registering each facility with one or
more regulated storage tanks that store these hazardous substances. Infor-
mation regarding the presence and concentration of PFOA or PFOS in par-
ticular substances may be available free of charge through S afety Data
Sheets prepared by chemical manufacturers, distributors, and importers or
access to results of analysis undertaken by business consortiums or others.
In the event laboratory analysis is necessary, the Department’s experience
is that the cost to analyze a sample to determine the presence and
concentration of PFOA or PFOS is expected to be in the several hundred
dollar range. Registration fees, set forth at 6 NYCRR Section 596.3(a), are
determined by the number of regulated tanks and the capacity of each
tank. The fees range from $50 per tank for tanks with capacities less than
550 gallons to $125 per tank for tanks with capacities greate r than 1,100
gallons. Under 6 NYCRR Section 596.2(c), these registratio n costs recur
every two years for as long as the entity continues to store hazardous sub-
stances listed in Section 597.3.
Non-registration storage-related costs of initial and con tinued compli-
ance are expected to vary primarily based on quantity of haza rdous sub-
stances stored at each facility. If a facility discontinues storage by April
25, 2018, when the storage and handling standards go into eff ect, there
will be no continued compliance costs associated with stora ge of these
substances. If a facility continues to store these hazardous substances after
April 25, 2018, costs of compliant tank systems could includ e costs for
design, construction, and ongoing maintenance of these tan k systems to
ensure they are capable of meeting the technical requirements for release
prevention, release detection, and containment of any spills that may occur.
Additional costs associated with continued compliance wil l include costs
of annual spill prevention reports and inspection of storag e equipment
every ﬁve years; these costs are expected to range from hundr eds to
thousands of dollars, but will vary greatly by facility depe nding on
quantity of hazardous substances stored and whether professional services
are utilized.
Costs Relating Primarily to Release Prohibition
Most of the PFOA- and PFOS-related substances that continue to be
used or stored in the State are ﬁreﬁghting foams that were produced prior
to 2016. Although not a cost of complying with this rule, some entities,
including some small businesses or local government entiti es, will likely
incur costs to determine if stored foam contains one or more of these haz-
ardous substances and/or to replace the foam if the use of the foam could
result in the release of an RQ of a hazardous substance. The cost of labora-
tory analysis of a sample to determine its concentration of PFOA or PFOS
is expected to be in the several hundred dollar range. The cos t to replace
ﬁreﬁghting foam ranges from $16 to $32 per gallon.
Avoiding releases is not expected to present signiﬁcant com pliance
costs because normal operations should not include releases of reportable
quantities of hazardous substances.
Costs Relating to Remediation
Remediation costs are not costs of complying with this rule. However,
where PFOA or PFOS has been released into the environment cre ating
contamination that represents a signiﬁcant threat to publi c health or the
environment, regulated entities including small business es and local
governments may be subject to costs associated with remediation of these
hazardous substances under Part 375.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY
Compliance with this rule is technologically feasible for a ll entities,
including small businesses and local governments. The stor age tank
systems required by this rule are readily available and commonly used for
storage of other hazardous substances. The technology requ ired for
compliance with this rule is no different than the technology already in use
by entities storing other hazardous substances.
The economic feasibility for small businesses or local gove rnments to
comply with this rule depends upon whether, and to what exten t, these
entities are storing or using PFOA or PFOS. The Department expects that
most small businesses and local governments are not storing or using sig-
niﬁcant quantities of these hazardous substances, with the possible excep-tion of entities storing ﬁreﬁghting foam (such as ﬁre depart ments). For
entities that do not store or use signiﬁcant quantities of PFOA or PFOS, it
should be economically feasible to achieve and maintain compliance with
this rule. For entities storing or using signiﬁcant quantit ies of these haz-
ardous substances, particularly entities storing large qu antities of old
ﬁreﬁghting foams, initial compliance with this rule may pre sent some
challenges in terms of economic feasibility if there is a nee d to replace
stockpiled foam. Economic feasibility of compliance for en tities using
ﬁreﬁghting foams is improved due to the rule’s provision all owing such
entities until April 25, 2017 to use foams to ﬁght ﬁres, but no t for other
purposes, allowing time to replace foams, if necessary. Continued compli-
ance with this rule should be economically feasible for all entities.
Although separate from compliance with this rule, regulate d entities,
including small businesses and local governments, may be su bject to the
requirements of Part 375 where releases of PFOA or PFOS have occurred.
The economic and technological feasibility for such entities to remediate a
PFOA- or PFOS-contaminated site will depend upon the circumstances.
6. MINIMIZING ADVERSE IMPACT
This action does not lend itself to the mitigating measures listed in State
Administrative Procedure Act section 202-b(1), speciﬁc to small busi-
nesses and local governments. The timing of the applicabili ty of an ele-
ment of the rule allows entities with ﬁreﬁghting foams until April 25, 2017
to continue to use foams to ﬁght ﬁres, but not for other purposes, allowing
time to determine whether the foams contain one of these newl y listed
hazardous substances and replace foams if necessary. Addit ionally, there
are existing requirements established in the regulations t hat are intended
to minimize adverse economic impacts on regulated entities , including
small businesses and local governments. For example, the CB S regula-
tions allow a two-year period after a new chemical is added to the list of
hazardous substances before the handling and storage requi rements of 6
NYCRR Part 598 apply to existing tanks storing one of these su bstances
(subdivision 598.1(h)).
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPA-
TION
The Department provided and continues to provide statewide outreach,
including outreach to small businesses and local governments. The Depart-
ment ensured public notice and input for this rule by issuing public notices
of the proposed rule making in the State Register, newspaper s, and the
Department’s Environmental Notice Bulletin. The Departme nt held three
public hearings in June 2016 during the public comment period. Informa-
tion was made available to the public on the Department’s website and, in
print, immediately prior to each hearing. Interested parties, including small
businesses and local governments, had the opportunity to su bmit written
comments and participate in the public hearings. The Depart ment
maintains a listserv to which persons/entities, including small businesses
and local governments, may subscribe so that they can receiv e informa-
tion about this rule. The Department also continues to post r elevant rule
making documents on its website.
8. CURE PERIOD OR OTHER OPPORTUNITY FOR AMELIORA-
TIVE ACTION
If a facility is subject to the CBS facility registration requirement due to
storage of PFOA or PFOS, and fails to register in accordance w ith 6
NYCRR Part 596, the facility owner/operator would be subjec t to penal-
ties that have been in place and imposed by the Department for decades.
Facilities with existing tank systems storing PFOA or PFOS h ave until
April 25, 2018 to come into compliance with existing requirements. Viola-
tions of these compliance requirements have well-establis hed and
exercised enforcement procedures including imposition of monetary
penalties when appropriate. These penalties are applicabl e to all types of
entities, including small businesses and local governments.
As discussed above, this rule provides ﬁreﬁghting entities until April
25, 2017 to continue to use foams that contain a concentration of PFOA or
PFOS that would result in the release of an RQ when used, to ﬁgh t ﬁres,
but not for other purposes. There can be no other ameliorativ e actions or
cure period regarding the prohibition against releasing an RQ of PFOA or
PFOS to the environment. If there has been a release to the env ironment
that requires remediation under a Department remedial program, the tim-
ing and content of the remediation is developed on a case-by-case basis.
9. INITIAL REVIEW OF THE RULE
The Department will conduct an initial review of the rule wit hin three
years of the promulgation of the ﬁnal rule.
Revised Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS
This rule:
DAdds perﬂuorooctanoic acid (PFOA-acid, Chemical Abstracts Service
(CAS) No. 335-67-1), ammonium perﬂuorooctanoate (PFOA-sa lt, CAS
No. 3825-26-1), perﬂuorooctane sulfonic acid (PFOS-acid, CAS No.
1763-23-1), and perﬂuorooctane sulfonate (PFOS-salt, CAS No. 2795-
39-3) (also collectively referred to within as PFOA and PFOS ) to 6
NYCRR Section 597.3 (Section 597.3);NYS Register/February 22, 2017 Rule Making Activities
5DAllows continued use of ﬁreﬁghting foam that may contain PFOA or
PFOS to ﬁght ﬁres (but not for training or any other purposes) on or before
April 25, 2017 even if such use may result in the release of a re portable
quantity (RQ), which is otherwise prohibited; and
DCorrects the list of hazardous substances by providing units for RQs.
There are 44 counties in New York State (State) that have popu lations
of less than 200,000 people and 71 towns in non-rural counties where the
population density is less than 150 people per square mile. Since this rule
applies statewide, it applies to all rural as well as non-rur al areas of the
State. There is no reason to believe that the actions under th is rule will
disproportionately impact rural areas.
2. REPORTING, RECORDKEEPING, OTHER COMPLIANCE RE-
QUIREMENTS, AND NEED FOR PROFESSIONAL SERVICES
This rule makes no changes to reporting, recordkeeping, or o ther
compliance requirements for Chemical Bulk Storage (CBS) facilities other
than to place PFOA and PFOS on the list of hazardous substances in Sec-
tion 597.3.
Facilities that store PFOA or PFOS in speciﬁed quantities an d use
certain tanks that make them subject to the registration requirements of 6
NYCRR Part 596 must include these tank systems on their facility registra-
tion with the New York State Department of Environmental Conservation
(Department), and pay a registration fee associated with the CBS program.
Facilities regulated under 6 NYCRR Parts 596-599 most commonly store
hazardous substances in stationary aboveground tank systems with a capa-
city greater than 185 gallons.
A facility that stores PFOA or PFOS that is subject to the CBS registra-
tion requirements, as explained above, must submit its regi stration ap-
plication to the Department and pay the commensurate fee at t he time it
becomes subject to regulation. If a facility is already stor ing PFOA or
PFOS subject to the registration requirements, the registr ation require-
ments became effective on April 25, 2016. If a facility plans to start stor-
ing PFOA or PFOS, and is subject to the registration requirement, it must
obtain a valid registration certiﬁcate prior to storing the material. Facilities
with existing storage of PFOA or PFOS have until April 25, 201 8 before
they must comply with the applicable handling and storage re quirements
for these hazardous substances (6 NYCRR 598.1(h)). Since th e Depart-
ment anticipates that most facilities currently storing PFOA or PFOS will
phase out storage of these substances prior to April 25, 2018, few facilities
are expected to have substantive CBS compliance requirements regarding
these chemicals beyond the registration requirement.
Existing 6 NYCRR Part 597 (Part 597) prohibits the release of an RQ
of a hazardous substance to the environment unless a release is authorized
or is continuous and stable and has been reported to the Depar tment (6
NYCRR 597.4(a)). This rule allows entities with ﬁreﬁghting foam to use
foam to ﬁght ﬁres on or before April 25, 2017 while they determine if the
stored foam contains one or more of these hazardous substanc es and
replace the foam if its use would result in the release of an RQ of a hazard-
ous substance. Replacement foam may not contain a hazardous substance
at a concentration that would result in the release of the RQ (one pound) or
more when used as a ﬁreﬁghting foam. However, if foam is used to ﬁght a
ﬁre and there is a release of a hazardous substance at or above the RQ
stated in Part 597 for the substance, the release must be repo rted to the
Department’s spill hotline to allow the Department to deter mine if
remediation of the release is appropriate (6 NYCRR 597.4(b)).
No new or additional professional services are anticipated to be needed
by facilities located in rural areas to comply with this rule regarding the
CBS requirements if they discontinue storing PFOA and PFOS before the
handling and storage requirements for existing facilities take effect on
April 25, 2018. If facilities continue to store these substa nces, facility
owners/operators may need professional services to assist them in meeting
the handling and storage requirements for hazardous substa nces. Profes-
sional services that may be needed for compliance with this r ule could
include professional engineers or qualiﬁed environmental professionals to
complete annual spill prevention reports and inspection of storage
equipment.
Beyond any costs associated with complying with this rule ma king,
regulated entities may be subject to costs associated with r emediation of
PFOA and PFOS where these hazardous substances have been rel eased
into the environment, creating contamination that represe nts a signiﬁcant
threat to public health or the environment. For example, listing PFOA and
PFOS as hazardous substances under Part 597 results in sites contami-
nated with PFOA or PFOS being subject to the inactive hazardo us waste
disposal sites regulatory requirements of 6 NYCRR Part 375 ( Part 375).
Requirements for investigation and cleanup of contaminate d sites are
established by Part 375 and by Department orders and agreeme nts with
regulated entities. Part 375 sets forth requirements for the investigation of
site conditions to determine the nature and extent of enviro nmental
contamination, evaluate remedial alternatives, design and construct a rem-
edy, complete the operation and maintenance activities required to achieve
the remedial action objectives for the site, and maintain an y institutional
or engineering controls needed to maintain the effectiveness of the remedy.If an owner/operator in a rural area becomes a remedial party subject to
requirements to implement a remedial program under Part 375 , it would
likely require consulting and contractual services to assist in carrying out
the remedial program. This could include professional engineers or quali-
ﬁed environmental professionals, as deﬁned in Part 375, and contractual
services needed to complete site investigation ﬁeld work, a nalyses of
environmental samples, or other specialized services.
3. COSTS
The Department does not anticipate a variation in compliance costs for
different types of public and private entities in rural area s. Since PFOS-
acid, PFOS-salt, and PFOS-related substances were restric ted beginning
in 2002 and, under the EPA’s Stewardship Program addressing PFOA-
related substances, eight companies voluntarily removed P FOA-acid,
PFOA-salt, and PFOA-related substances from new products by December
2015, and because the substantive CBS tank system requireme nts for
handling and storing PFOA or PFOS will not apply to existing f acilities
until April 25, 2018, the Department expects that the compliance costs for
meeting the CBS requirements will be minimal. Hazardous sub stances
regulated under Parts 596-599 are most commonly stored in st ationary
aboveground tank systems with a capacity greater than 185 ga llons.
Registration fees apply to each regulated tank and depend upon the capa-
city of each tank. The fees range from $50 per tank for tanks with capaci-
ties less than 550 gallons to $125 per tank for tanks with capacities greater
than 1,100 gallons. If the regulated party were to discontin ue storage of
PFOA and PFOS by April 25, 2018, when the storage and handling stan-
dards go into effect, there would be no substantive costs ass ociated with
storage of these substances beyond payment of the registration fee. If the
regulated party were to continue to store PFOA or PFOS, it wou ld be
subject to the costs of complying with the handling and stora ge require-
ments in 6 NYCRR Parts 598 and 599.
The prohibition of releases of an RQ of hazardous substances is not
expected to present signiﬁcant compliance costs for public or private enti-
ties in rural areas, with the possible exception of entities in possession of
ﬁreﬁghting foams that may contain PFOA- or PFOS-related sub stances,
such as Class B foams. The timing of the applicability of an element of the
rule allows entities with ﬁreﬁghting foams until April 25, 2017 to continue
to use foams to ﬁght ﬁres, but not for other purposes, allowin g time to
determine whether the foams contain one of these newly listed hazardous
substances and replace foams if necessary. Replacement foa m may not
contain a hazardous substance at a concentration that would result in the
release of the RQ (one pound) or more when used as a ﬁreﬁghting foam.
The cost to replace the foam ranges from $16 to $32 per gallon, dependent
on the amount and type of foam that is being replaced. Since PF OA and
PFOS have not been classiﬁed as hazardous wastes under the fe deral
Resource Conservation and Recovery Act, older foams may be d isposed
of as a solid waste after solidifying the ﬁreﬁghting foam (i. e., mix with
concrete) as follows:
DIndividuals and institutions may dispose of the solidiﬁed f oam in a
permitted landﬁll.
DGenerators of industrial wastes (e.g., factories and major oil storage
facilities) must have a speciﬁc Department authorization t o dispose of
solidiﬁed foam in a permitted landﬁll and must contact the De partment’s
Division of Materials Management prior to disposal.
As noted above, where PFOA or PFOS has been released into the
environment, creating contamination that represents a signiﬁcant threat to
public health or the environment, regulated entities may be subject to
costs beyond the costs of complying with this rule making. Th e costs of
complying with the requirements of Part 375 to implement a re medial
program where PFOA or PFOS is a primary contaminant will vary widely
as the costs depend upon many factors. These factors include the quantity
released to the environment; media contaminated (e.g., soil, groundwater,
surface water, sediment); horizontal and vertical extent o f contamination
for each medium; accessibility of the contamination; whether there are hu-
man or environmental receptors to be protected while a remedial program
is being undertaken; difﬁculty of removing PFOA and PFOS fro m the
contaminated environmental media; future anticipated use of the area of
contamination; and other factors. Because of the wide variety of scenarios,
it is not possible to meaningfully estimate the potential co sts to persons
managing PFOA or PFOS resulting from the listing of PFOA and PFOS as
hazardous substances other than to note that remedial progr am costs for
other hazardous substances can range from the thousands to m illions of
dollars on a case-by-case basis.
4. MINIMIZING ADVERSE IMPACT
This action does not lend itself to the mitigating measures listed in State
Administrative Procedure Act section 202-bb(2), but there are require-
ments established in the regulations to minimize adverse im pacts on all
regulated entities, including those in rural areas. For exa mple, the CBS
regulations allow a two-year period after a new chemical is a dded to the
list of hazardous substances before the handling and storage requirements
of 6 NYCRR Part 598 apply to facilities with existing storage of the chemi-NYS Register/February 22, 2017 Rule Making Activities
6cal (6 NYCRR 598.1(h)). Similarly, the rule allows entities with ﬁreﬁght-
ing foams until April 25, 2017 to continue to use foams to ﬁght ﬁres, but
not for other purposes, allowing time to determine whether t he foams
contain one of these hazardous substances and replace if necessary.
5. RURAL AREA PARTICIPATION
The Department provided and continues to provide statewide outreach,
including outreach to public and private interests in rural areas. The
Department ensured public notice and input for this rule by issuing public
notices of the proposed rulemaking in the State Register, newspapers, and
the Department’s Environmental Notice Bulletin. The Depar tment held
three public hearings in June 2016 during the public comment period. In-
formation was made available to the public on the Department ’s website
and in print immediately prior to each hearing. Interested p arties, includ-
ing those from rural areas, had the opportunity to submit wri tten com-
ments and participate in the public hearings. The Department maintains a
listserv to which persons/entities may subscribe so that th ey can receive
information about this rule. The Department also continues to post rele-
vant rule making documents on its website.
6. INITIAL REVIEW OF THE RULE
The Department will conduct an initial review of the rule wit hin three
years of the promulgation of the ﬁnal rule.
Revised Job Impact Statement
1. NATURE OF IMPACT
This rule:
DAdds perﬂuorooctanoic acid (PFOA-acid, Chemical Abstracts Service
(CAS) No. 335-67-1), ammonium perﬂuorooctanoate (PFOA-sa lt, CAS
No. 3825-26-1), perﬂuorooctane sulfonic acid (PFOS-acid, CAS No.
1763-23-1), and perﬂuorooctane sulfonate (PFOS-salt, CAS No. 2795-
39-3) (also collectively referred to within as PFOA and PFOS ) to 6
NYCRR Section 597.3 (Section 597.3);
DAllows continued use of ﬁreﬁghting foam that may contain PFOA or
PFOS to ﬁght ﬁres (but not for training or any other purposes) on or before
April 25, 2017 even if such use may result in the release of a re portable
quantity (RQ), which is otherwise prohibited; and
DCorrects the list of hazardous substances by providing units for RQs.
The substantive effects of listing PFOA and PFOS to the list of hazard-
ous substances in Section 597.3 are to (1) make the handling and storage
of PFOA and PFOS subject to the registration and other regula tory stan-
dards for Chemical Bulk Storage (CBS) facilities (6 NYCRR Pa rts 596-
599); (2) prohibit the unauthorized release of an RQ of PFOA or PFOS to
the environment (6 NYCRR 597.4(a)) and require that any rele ases at or
above the RQ (one pound) be reported to the New York State Department
of Environmental Conservation’s (Department) spill hotli ne (6 NYCRR
597.4(b)); and (3) make the investigation and remediation o f releases of
PFOA and PFOS to the environment subject to the Department’s remedial
program requirements (6 NYCRR Part 375).
The substantive effect of allowing ﬁreﬁghting foam to be used to ﬁght
ﬁres (but not for training or any other purposes) on or before April 25,
2017 is to provide entities the time necessary to determine if stored foam
contains one or more of these hazardous substances and replace the foam
if the use of the foam would result in the release of an RQ of a hazardous
substance. Replacement foam may not contain a hazardous substance at a
concentration that would result in the release of the RQ (one pound) or
more when used as a ﬁreﬁghting foam.
Since PFOA and PFOS have not been classiﬁed as hazardous wast es
under the federal Resource Conservation and Recovery Act, o lder foams
may be disposed of as a solid waste after solidifying the ﬁreﬁghting foam
(i.e., mix with concrete) as follows:
DIndividuals and institutions may dispose of the solidiﬁed f oam in a
permitted landﬁll.
DGenerators of industrial wastes (e.g., factories and major oil storage
facilities) must have a speciﬁc Department authorization t o dispose of
solidiﬁed foam in a permitted landﬁll and must contact the De partment’s
Division of Materials Management prior to disposal.
The effect of correcting the tables listing hazardous subst ances is to
include the units for RQs to remove uncertainty regarding when a release
must be reported.
Under the federal Toxic Substances Control Act, the United S tates
Environmental Protection Agency (USEPA) completed a signi ﬁcant new
use rule (SNUR) to limit the production and importation of PFOS-related
substances in 2002. USEPA worked with industry to voluntarily phase out
the use of PFOA-related substances by December 2015, and pro posed a
SNUR to limit the production and importation of PFOA-related substances
in anticipation of the phase-out deadline (80 FR 2885; January 21, 2015).
Since production of PFOA-related and PFOS-related substan ces has
reportedly already been phased out or restricted, and alternative substances
have been developed to take the place of these hazardous substances, the
Department does not expect this rule to have a signiﬁcant impact on jobs
and employment either in terms of lost jobs or the creation of new jobs.
Employment opportunities should remain the same or may increase some-
what due to remediation activities.2. CATEGORIES AND NUMBERS AFFECTED
Since PFOA and PFOS are reportedly no longer being produced in the
United States, the CBS regulations would only apply to store d PFOA-
containing or PFOS-containing materials produced before t he phase-out
or imported. Since replacement materials are already in pla ce and the
number of facilities storing PFOA or PFOS in quantities larg e enough to
be subject to the CBS regulations is expected to be small, the number of
jobs affected is expected to be small. Existing employees may be required
to arrange for the disposal of older stocks of PFOA- and PFOS-containing
materials, but this should not require the creation of new jobs or the loss of
existing jobs.
As noted above, as a consequence of this rule, the Department is autho-
rized to pursue clean-up of PFOA and PFOS contamination unde r Part
375. Where PFOA or PFOS has been released into the environmen t and
represents a signiﬁcant threat to public health or the environment resulting
in the need for cleanup, a limited number of jobs may be created in order
to complete the necessary investigation and remediation of sites contami-
nated with these hazardous substances. Job categories woul d include, for
example, drilling contractors and other heavy equipment op erators, ﬁeld
investigation technicians, hydrogeologists, engineers, analytical chemists
and technicians, and others with training and experience re lated to site
remediation.
The number of sites that may enter remedial programs because of the
addition of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt to Section
597.3 is unknown. As of December 30, 2016, the Department had listed
four sites on the Registry of Inactive Hazardous Waste Dispo sal Sites
(Registry) as a result of adding these substances to Section 597.3. The
Department expects that other sites that used PFOA or PFOS in com-
mercial or industrial processes may have PFOA or PFOS enviro nmental
contamination. Locations where PFOA or PFOS releases or dis posal oc-
curred that represent a signiﬁcant threat to public health o r the environ-
ment may become remedial sites subject to the requirements of Part 375.
Nationally, research by the United States Department of Def ense (DoD)
found that approximately 600 DoD sites are categorized as ﬁr e/crash/
training areas and thus have the potential for contamination with perﬂuo-
roalkyl compounds (including PFOA-related and PFOS-relat ed sub-
stances) due to historical use of certain ﬁreﬁghting foams [ Strategic
Environmental Research and Development Program (SERDP), F Y 2014
Statement of Need (SON), Environmental Restoration (ER) Program Area,
“In Situ Remediation of Perﬂuoroalkyl Contaminated Groundwater,” SON
Number: ERSON-14-02, October 25, 2012]. It is possible that the Depart-
ment will list additional sites on the Registry of Inactive Hazardous Waste
Disposal Sites. The work needed to investigate and remediat e these sites
may be accomplished by existing staff or new jobs may be added depend-
ing upon the number and complexity of sites.
3. REGIONS OF ADVERSE IMPACT
There are no regions of the State where jobs or employment opportuni-
ties are expected to be adversely impacted by this rule.
4. MINIMIZING ADVERSE IMPACT
For the reasons described above, this rule is not expected to have a sig-
niﬁcant adverse impact on jobs and employment.
5. SELF-EMPLOYMENT OPPORTUNITIES
This rule is not expected to impact self-employment opportunities.
6. INITIAL REVIEW OF RULE
The Department will conduct an initial review of the rule wit hin three
years of the promulgation of the ﬁnal rule.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be ini tially
reviewed in the calendar year 2020, which is no later than the 3rd year af-
ter the year in which this rule is being adopted.
Assessment of Public Comment
Full text of the Assessment of Public Comment is available on the New
York State Department of Environmental Conservation’s website at http://
www.dec.ny.gov/regulations/104968.html
Introduction
This summary reﬂects the responses of the New York State Department
of Environmental Conservation (DEC) to the main comments su bmitted
by the public regarding the adoption of amendments to 6 NYCRR Part
597. This rule making was proposed on April 25, 2016 and included a 58
day comment period that ended on July 8, 2016. Public hearings were held
in June 2016 in Albany, Rochester and Garden City, for a total of three
public hearings, with an information session prior to each h earing. DEC
received 40 comments during the hearings and from written submissions.
Oral comments were received at the Albany and Garden City hearings, but
none were provided during the Rochester hearing.
In this document, ‘PFOA/PFOS’ collectively means: perﬂuorooctanoic
acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), am-
monium perﬂuorooctanoate (PFOA-salt, CAS No. 3825-26-1), perﬂuo-
rooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), and perﬂuo-
rooctane sulfonate (PFOS-salt, CAS No. 2795-39-3).NYS Register/February 22, 2017 Rule Making Activities
7Main Themes
1. Support of the Listing of PFOA/PFOS as Hazardous Substances
Five commenters indicated their support of listing PFOA/PFOS in Part
597, noting that their assessment of the substances causes them to support
the classiﬁcation as hazardous substances. DEC agrees with these
commenters.
2. Challenge of the Listing of PFOA/PFOS as Hazardous Substances
One commenter stated that the information available regarding PFOA/
PFOS does not indicate that they meet the regulatory criteri a for clas-
siﬁcation as hazardous substances. The commenter speciﬁca lly noted the
following in support of its position:
a. Human exposures to PFOA and PFOS in the United States are declin-
ing and are low compared to historical occupational exposur e levels and
doses used in laboratory animal studies.
b. Human epidemiologic studies do not demonstrate that occu pational
or environmental exposures to PFOA or PFOS cause human health effects.
c. Animal toxicology studies conducted at high doses do not prove harm
to human health.
d. The New York State Department of Health (DOH) did not conclude
that exposure to PFOA or PFOS causes physical injury or illne ss to
humans.
DEC disagrees with the commenter.
With regard to the ﬁrst point, the issue of the level of exposu re is not
relevant to whether the substances meet the regulatory criteria for includ-
ing chemicals on the list of hazardous substances.
With regard to the second point, the toxicities of PFOA/PFOS have
been reviewed and summarized by numerous authoritative bod ies which
have determined that there is an association between increa sed PFOA/
PFOS exposure and an increased risk for human health effects.
With regard to the third point, laboratory animal studies support human
hazard identiﬁcation, particularly when health endpoints associated with
human exposures in epidemiological studies are also observed in exposed
animals.
With regard to the fourth point, DOH concluded that, overall , the
combined weight of evidence from human and experimental animal stud-
ies indicates that prolonged exposure to signiﬁcantly elev ated levels of
PFOA or PFOS can negatively affect human health. Moreover, the United
States Environmental Protection Agency (EPA) released updated editions
of its Health Effects Support Documents in support of the lifetime health
advisories issued by EPA in May 2016 for PFOA and PFOS. All of t he
summaries identify important studies on the health effects associated with
exposure to these chemicals, including studies on chronic, developmental,
and reproductive effects observed in humans and animals, and provide ad-
ditional support for listing PFOA/PFOS as hazardous substances.
A draft report issued by the National Toxicology Program (NT P)
provides additional support, concluding that both PFOA and PFOS are
presumed to be an immune hazard to humans. Presumed hazards a re one
step below known hazards and one step above suspected hazardous on the
ﬁve-step scale NTP uses for hazard identiﬁcation.
Based on the review of human epidemiology and animal toxicol ogy
data for PFOA and PFOS, and DOH’s conclusions that signiﬁcan tly
elevated exposure to PFOA or PFOS can affect human health, there is suf-
ﬁcient information to conclude that PFOA/PFOS meet the crit eria to be
listed as hazardous substances.
In addition, PFOA/PFOS pose a threat to the environment by impacting
the survival rate of ﬁsh when exposed to these substances.
3. Concerns with Fireﬁghting Foam
a. Commenters expressed concern with allowing continued use of foam
that may contain PFOA/PFOS through April 25, 2017.
Balancing the risks posed by PFOA/PFOS against the risks pos ed by
ﬁres in support of our mission to protect public health and th e environ-
ment, DEC is allowing the use of ﬁreﬁghting foams that may con tain
PFOA/PFOS to ﬁght ﬁres that occur on or before April 25, 2017. DEC
recognizes that facilities that possess supplies of ﬁreﬁgh ting foam need
time to determine if their existing supplies of foam contain one or more of
these newly listed hazardous substances and to make arrange ments to
dispose of and replace ﬁreﬁghting foam that contains PFOA/PFOS where
the concentration of PFOA/PFOS is such that the foam cannot b e used
without causing a reportable spill (one pound of PFOA or PFOS). Allow-
ing facilities that possess ﬁreﬁghting foam to continue to u se foams that
may contain PFOA/PFOS on a limited basis to ﬁght ﬁres furthers protec-
tion of public health and safety. DEC is not allowing use of ﬁr eﬁghting
foam that would result in a reportable spill of PFOA/PFOS for other
purposes such as training. If ﬁreﬁghting foam containing PF OA/PFOS is
used to ﬁght a ﬁre and there is a release of one pound or more of a hazard-
ous substance, the release needs to be reported to DEC’s spill hotline to al-
low DEC to determine if remediation of the release is necessa ry. DEC
believes this is an appropriate approach that allows for the protection of
the public and the environment.
b. A commenter expressed concern about economic and ﬁnancia limpacts on ﬁre departments, ﬁre districts, and municipalit ies which must
determine whether ﬁreﬁghting foams contain PFOA/PFOS and d ispose
and replace PFOA/PFOS foams.
DEC understands the concern regarding costs to ﬁre departme nts of
determining whether foams contain PFOA/PFOS in concentrat ions such
that the foams cannot be used without causing a reportable spill (one pound
of PFOA or PFOS) and the costs of disposing and replacing foams. DEC
has been working with the Fire Fighting Foam Coalition and the manufac-
turers of ﬁreﬁghting foam to make available information on f oams that
may contain PFOA/PFOS. In addition, DEC has posted a fact she et on
ﬁreﬁghting foam on DEC’s website (see http://www.dec.ny.g ov/
regulations/ 106078.html). DEC believes the information in the fact sheet
will minimize costs to ﬁre departments in determining wheth er foams
contain PFOA/PFOS and disposing of foams that contain PFOA/ PFOS
where the concentration of PFOA/PFOS is such that the foam ca nnot be
used without causing a reportable spill (one pound of PFOA or PFOS).
DEC is unable to provide assistance with costs associated wi th replace-
ment of ﬁreﬁghting foam. In addition, the regulation seeks t o minimize
costs by allowing the use of such foam to ﬁght ﬁres until April 25, 2017, a
year after the emergency rule went into effect.
c. The same commenter requested clariﬁcation regarding who will be
responsible for the cost of the cleanup of any foam used for ﬁr e
extinguishment.
DEC understands the concern regarding liability for cleanu p costs as-
sociated with the use of ﬁreﬁghting foam. DEC will evaluate on a case-by-
case basis the need for remediation of any release of PFOA/PF OS and
who will be liable for cleanup costs.
d. Another commenter, a manufacturer of ﬁreﬁghting foam, no ted that
ﬂuorine-free foams are now being developed.
4. Requests for additional action
While DEC understands the concerns raised by the commenters below,
each of these additional actions goes beyond the scope of this rule making.
Below is a summary of the requested actions and DEC’s responses.
Commenters requested that DEC:
a. Regulate the disposal of PFOA/PFOS as hazardous wastes.
b. Regulate the discharge of PFOA/PFOS under the State Pollutant Dis-
charge Elimination System (SPDES) and set efﬂuent limits to non-detect.
c. Regulate the discharge of air emissions of PFOA/PFOS and s et the
reportable limit to zero pounds.
d. Require manufacturers of PFOA/PFOS to monitor the water, soil,
and air within the communities where they do business, regardless of the
size of the community.
These requested actions are beyond the scope of the current r ulemak-
ing, however, DEC may consider these issues in a future rule m aking or
policy document.
Commenter requested that DEC:
e. Set a drinking water maximum contaminant level for PFOA/PFOS.
f. Require public water supplies be tested for the presence o f PFOA/
PFOS.
These requested actions are outside of the scope of DEC authority.
Commenter requested that DEC:
g. List all ﬂuorinated chemicals in Part 597.
h. Review and list other emerging contaminants.
As DEC becomes aware of unregulated chemicals of concern, DE C
will evaluate each such chemical to determine whether it is appropriate to
classify it as a hazardous substance.
i. Commenter requested that DEC require remediation of othe r sites
that are contaminated.
As DEC becomes aware of contaminated properties, DEC will evaluate
appropriate response and remediation for these properties in the same
manner that DEC addresses any other property that is contami nated by a
hazardous substance. Companies that contaminate properti es are among
the parties responsible for costs associated with remediation.
j. Commenter requested that DEC collaborate with DOH, the New York
State Department of State, and local governments to conduct communica-
tion campaigns to raise awareness about the effects of PFOA/PFOS.
DEC has provided and will continue to provide information to interested
parties regarding DEC’s efforts to address these issues.
k. Commenter requested that DEC communicate to the public the results
of EPA’s progress regarding its voluntary PFOA Stewardship Program.
EPA developed and administers the voluntary PFOA Stewardsh ip
Program. Information about this program is available on EPA’s website at
https://www.epa.gov/assessing-and-managing- chemical s-under-tsca/and-
polyﬂuoroalkyl-substances-pfass-under-tsca#tab-3.
l. Commenter requested that DEC hold Legislative Hearings o n New
York State’s water quality.
Legislative hearings were held to address New York State’s w ater
quality.NYS Register/February 22, 2017 Rule Making Activities
8