RULE MAKIN G
ACTIVITIES
Each rule making is identified by an I.D. No., which consists
of 13 characters. For example, the I.D. No.AAM-01-96-00001-E indicates the following:
AAM -the abbreviation to identify the adopting agency
01 -the State Register issue number
96 -the year00001 -the Department of State number, assigned upon
receipt of notice.
E -Emergency Rule Making—permanent action
not intended (This character could also be: Afor Adoption; P for Proposed Rule Making; RPfor Revised Rule Making; EP for a combinedEmergency and Proposed Rule Making; EA foran Emergency Rule Making that is permanentand does not expire 90 days after filing.)
Italics contained in text denote new material. Brackets
indicate material to be deleted.
Department of Environmental
Conservation
EMERGENCY
RULE MAKING
Chemical Bulk Storage (CBS)
I.D. No. ENV-19-16-00006-E
Filing No. 882
Filing Date: 2016-09-16
Effective Date: 2016-09-16
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, 27-1301, 37-0101through 37-0107 and 40-0101 through 40-0121
Finding of necessity for emergency rule: Preservation of public health
and general welfare.
Specific reasons underlying the finding of necessity: The New York
State Department of Health (NYSDOH) has requested that the New YorkState Department of Environmental Conservation (DEC) add perfluo-rooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1),perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), andperfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) to 6 NYCRRSection 597.3, List of Hazardous Substances. DEC has concluded thatthese four substances meet the definition of a hazardous substance basedupon the conclusion of the NYSDOH that prolonged exposure to signifi-cantly elevated levels of these compounds can affect health and, conse-
quently, pose a threat to public health in New York State when improperlytreated, stored, transported, disposed of or otherwise managed. NYSDOHscientists have concluded that it is essential to list these chemicals as haz-ardous substances. See the Regulatory Impact Statement for additional in-formation, including NYSDOH’s letter requesting that these chemicals beadded to the List of Hazardous Substances (Section 597.3).
It is essential to immediately identify PFOA-acid, PFOA-salt, PFOS-
acid, and PFOS-salt as hazardous substances pursuant to 6 NYCRR Sec-tion 597.3, thereby making them hazardous wastes pursuant to Environ-mental Conservation Law Section 27-1301, and enabling DEC to exert itsenforcement authorities and to expend funds from the Hazardous WasteRemedial Fund to clean up the contaminant. The emergency rule willprovide DEC with authority to take immediate action to protect publichealth. To the extent elevated levels of PFOA-related and PFOS-relatedsubstances are identified throughout the State, DEC needs the authority toact expeditiously.
Subject: Chemical Bulk Storage (CBS).
Purpose: To amend Part 597 of the CBS regulations.
Text of emergency rule: 6 NYCRR Part 597 is amended to read as follows:
Existing subdivision 597.1(a) through paragraph 597.1(b)(1) remain
unchanged.
Existing paragraph 597.1(b)(2) is amended to read as follows:
(2) Chemical [a] Abstract s[s]Service number or CAS number is the
unique identifier for a chemical substance assigned by the CAS division ofthe American Chemical Society.
Existing paragraph 597.1(b)(3) through section 597.2 remain
unchanged.
Existing section 597.3 is amended to read as follows:
597.3 List of hazardous substancesTable 1 sets forth the list of hazardous substances in alphabetical order.
Table 2 sets forth the list of hazardous substances in Chemical Abstract s
Service (CAS) number order.
Table 1 and Table 2 are amended to read as follows:
Table 1 – Alphabetical Order
CASRN Substance RQ Air
(pounds)RQ
Land/
Water
(pounds)Notes
3825-26-1 Ammonium
Perfluorooctanoate11
2795-39-3 Perfluorooctane
Sulfonate11
1763-23-1 Perfluorooctane
Sulfonic Acid11
335-67-1 Perfluorooctanoic
Acid11
Table 2 – CAS Number Order
CASRN Substance RQ Air
(pounds)RQ
Land/
Water
(pounds)Notes
335-67-1 Perfluorooctanoic
Acid11
1763-23-1 Perfluorooctane
Sulfonic Acid11
12795-39-3 Perfluorooctane
Sulfonate11
3825-26-1 Ammonium
Perfluorooctanoate11
Existing subdivision 597.4(a) is amended to read as follows:
(a) Prohibition of releases.The release of a hazardous substance which is required to be reported
pursuant to subdivision (b) of this section is prohibited unless:
(1) such release is authorized; [or](2) such release is continuous and stable in quantity and rate and has
been reported pursuant to paragraph (b)(4) of this section[.] ;o r
(3) such release is of fire-fighting foam containing Perfluorooctanoic
Acid (CAS No. 335-67-1), Ammonium Perfluorooctanoate (CAS No. 3825-26-1), Perfluorooctane Sulfonic Acid (CAS No. 1763-23-1), or Perfluo-rooctane Sulfonate (CAS No. 2795-39-3) used for fighting fires (but notfor training purposes) and occurs on or before April 25, 2017. In the eventthere is a release of such foam that exceeds the reportable quantity of anyhazardous substance, the release must be reported pursuant to subdivi-sion (b) of this section.
Existing subdivision 597.4(b) remains unchanged.
This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as apermanent rule, having previously submitted to the Department of State anotice of proposed rule making, I.D. No. ENV-19-16-00006-EP, Issue ofMay 11, 2016. The emergency rule will expire November 14, 2016.
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 have beencompleted for the proposed rule making that was filed on April 25, 2016with the initial Notice of Emergency Adoption.
Summary of Regulatory Impact Statement
Full text of the Regulatory Impact Statement is available on the New
York State Department of Environmental Conservation’s website atwww.dec.ny.gov/regulations/104968.html
1. STATUTORY AUTHORITYThe State law authority that empowers the New York State Department
of Environmental Conservation (Department) to create a list of hazardoussubstances is found in Title one of Article 37 of the Environmental Con-servation Law (ECL), sections 37-0101 through 37-0111, entitled “Sub-stances Hazardous to the Environment” (Article 37). The Department isauthorized to adopt regulations to implement ECL provisions (ECL sec-tions 3-0301(2)(a) and (m)) which includes listing “substances hazardousto the public health, safety or environment” which “because of theirquantity, concentration, or physical, chemical or infectious characteristicscause physical injury or illness when improperly treated, stored, trans-ported, disposed of, or otherwise managed” in 6 NYCRR Part 597.
2. LEGISLATIVE OBJECTIVESThe legislative objectives underlying Article 37 are directed toward
establishing a list of hazardous substances which pose a threat to publichealth or the environment. The emergency rule adds perfluorooctanoicacid (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) to the list ofhazardous substances in 6 NYCRR Section 597.3 (Section 597.3). Theproposed rule, upon adoption, makes the amendments permanent.
3. NEEDS AND BENEFITSThe purpose of the emergency rule and proposed rule is to:1. Add PFOA-acid, PFOA-salt, PFOS-acid, and the PFOS-salt to Sec-
tion 597.3;
2. Allow fire-fighting foam containing PFOA-acid, PFOA-salt, PFOS-
acid, or PFOS-salt to be used to fight fires (but not for any other purposes)on or before April 25, 2017; and
3. Correct the list of hazardous substances by providing units for the
reportable quantities (RQs).
Needs and Benefits of Adding PFOA-acid, PFOA-salt, PFOS-acid, and
PFOS-salt to the List of Hazardous Substances
The Department promulgated an emergency rule on January 27, 2016
to add PFOA-acid to the list of hazardous substances in Section 597.3.Since then, the Department became aware of three additional substancesthat need to be added to the list of hazardous substances. These additionalsubstances have physical, chemical, and toxicological properties similar toPFOA-acid. The Department decided to allow the January 27, 2016 emer-
gency rule to expire and to undertake the emergency and proposed rule toinclude all four substances on the list of hazardous substances.
The Department has concluded that these four substances meet the def-
inition of hazardous substance based upon the conclusion of the New YorkState Department of Health (NYSDOH) that the combined weight of evi-dence from human and experimental animal studies indicates thatprolonged exposure to significantly elevated levels of these compoundscan affect health and, consequently, pose a threat to public health in New
York State when improperly treated, stored, transported, disposed of orotherwise managed. NYSDOH scientists have concluded that it is essentialto list these chemicals as hazardous substances. See the Regulatory ImpactStatement for additional information, including NYSDOH’s letter request-ing that these chemicals be added to the List of Hazardous Substances(Section 597.3).
There are at least three benefits of listing these substances as hazardous
substances in Part 597. First, if a mixture containing one of these sub-stances in concentrations of 1% or more is stored in an aboveground tankof 185 gallons or more or any size underground tank, the tank would besubject to the requirements of the Chemical Bulk Storage (CBS) regula-tions (6 NYCRR Parts 596 – 599) with the purpose of preventing leaksand spills to protect public health and the environment. Second, releases tothe environment are prohibited (subdivision 597.4(a)). Any release of onepound or more of these substances must be reported to the Department’sspill hotline (subdivision 597.4(b)). Third, if one of these substances isreleased, the Department is authorized to pursue clean-up of the contami-nation under one of the Department’s remedial programs (6 NYCRR Part375) and may expend funds under the “State Superfund” if a responsibleparty is unwilling or unable to undertake the remediation.
Need and Benefit of Allowing Continued Use of Fire-Fighting FoamThese four substances have been used in Aqueous Film-Forming Foam
(AFFF). While their use was restricted or reportedly removed from newproducts by December 2015, AFFF containing these substances are likelystored at some facilities since the reported shelf-life of AFFF is up to 25years. In accordance with existing 6 NYCRR subdivision 597.4(a), therelease of a hazardous substance is prohibited. This rule adds a provisionallowing entities with fire-fighting foam time to determine if stored foamcontains these hazardous substances. If so, the facility would be requiredto arrange for proper disposal of the foam by April 25, 2017. Replacementfoam may not contain a hazardous substance at a concentration that wouldresult in the release of more than the RQ (one pound) when used as a fire-fighting foam. Prior to April 25, 2017, entities storing this foam would beallowed to use the foam, as needed, to fight fires to protect public safetybut not for any other purpose such as training. If the foam is used to fight afire and there is a release of one pound or more of a hazardous substance,the release must be reported to the Department’s spill hotline to allow theDepartment to determine if remediation of the release is appropriate.
Need for Correction of the List of Hazardous SubstancesA correction is being made to the tables listing hazardous substances. It
was determined that the units for RQs were left off the table causing someuncertainty regarding when a release would need to be reported. This ruleadds units back to the column heading of the table.
4. COSTSCosts to Regulated PartiesBecause the use of these chemicals is limited by United States Environ-
mental Protection Agency (USEPA) and the CBS tank system require-ments for handling and storing these chemicals do not apply until April25, 2018, the Department expects that compliance costs will be minimal.For example, if a facility is storing one of these substances in a 5,000 gal-lon aboveground storage tank, the two-year registration fee would be $125.If the facility were to discontinue storage by April 25, 2018, when thestorage and handling standards go into effect, there would be no substan-tive costs beyond payment of the registration fee. If the facility were tocontinue to store one of these substances, it would be subject to the costsof complying with the handling and storage requirements in Parts 598 and599.
With one possible exception (entities with fire-fighting form), the
release prohibition should not present unusual compliance costs forpersons who may be in possession of PFOA-containing or PFOS-containing substances. Since the Department recognizes the importantsocietal interest of ensuring the availability of materials to control fires,persons have until April 25, 2017 to determine if foam contains hazardoussubstances and replace the foam if necessary. If fire-fighting foam containsa hazardous substance, it cannot be released to the environment after April25, 2017. The Department anticipates that replacement foams would bepurchased and that old foam containing a hazardous substance would bedisposed of in accordance with applicable requirements. The cost toreplace the foam ranges from $16 to $32 per gallon, depending on theamount and type of foam. Since use of these substances has been restrictedor phased-out, the Department is uncertain how many regulated parties
NYS Register/October 5, 2016 Rule Making Activities
2may be in possession of fire-fighting foams that contain one of these
substances.
The costs of complying with the requirements of Part 375 to implement
a remedial program where the four substances are primary contaminantswill vary widely as costs depend upon many factors. Thus, it is not pos-sible to meaningfully estimate potential remedial costs other than to notethat remedial program costs for other hazardous substances range from thethousands to millions of dollars.
Costs to the Department, State, and Local GovernmentThe Department will incur costs to administer the CBS program and to
oversee of site remediation by responsible parties. In cases where aresponsible party is unwilling or unable to undertake remediation, thecosts of the remediation would be incurred by the Department (subject toefforts to recover the costs).
State and local governments will incur costs making determinations
regarding whether products containing one of these substances are storedat their facilities.
5. LOCAL GOVERNMENT MANDATESNo additional recordkeeping, reporting, or other requirements not al-
ready created by statute or described above would be imposed on localgovernments. This is not a local government mandate.
6. PAPERWORKThe emergency rule and proposed rule contain no substantive changes
to existing reporting and record keeping requirements, except for thosenewly subject to this regulation.
7. DUPLICATION
The listing of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as
hazardous substances in Part 597 causes no duplication, overlap or conflictwith any other state or federal government programs or rules.
8. ALTERNATIVESThe only alternative to listing PFOA-acid, PFOA-salt, PFOS-acid, and
PFOS-salt as hazardous substances considered by the Department, the noaction alternative, was not taken. The Department declined to take no ac-tion because, as determined by NYSDOH, the combined weight of evi-dence from human and experimental animal studies indicates thatprolonged exposure to significantly elevated levels of these compoundscan affect health and, consequently, pose a threat to public health in NewYork State when improperly treated, stored, transported, disposed of, orotherwise managed.
9. FEDERAL STANDARDSListing PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as hazard-
ous substances exceeds the current federal approach, as USEPA has notlisted these substances as any of the substances defined as hazardous sub-stances under the federal Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA), 42 U.S.C Section 9601, etseq., or under the applicable regulation, 40 CFR Part 302 (“Designation,Reportable Quantities, and Notification”). Under the Toxic SubstancesControl Act, USEPA worked with industry to voluntarily phase out theuse of PFOA-related substances by December 2015, and proposed a sig-nificant new use rule, completed in 2002, to limit production and importa-tion of PFOA-related substances.
10. COMPLIANCE SCHEDULEA facility that stores one of these substances that is subject to the CBS
registration requirements is required to submit its registration applicationto the Department when it becomes subject to regulation. If a facility is al-ready storing one of these substances and is subject to the registrationrequirements, the requirement became effective on April 25, 2016, the ef-fective date of this emergency rule. If a facility begins storing one of thesesubstances and is subject to the registration requirements, it must obtain avalid registration certificate prior to storing the material. Facilities withexisting storage are not required to comply with the handling and storagerequirements for hazardous substances until April 25, 2018 (6 NYCRRsubdivision 598.1(h)). The Department expects that facilities that cur-rently store one of these substances will phase out storage of the substanceprior to April 25, 2018, and, therefore, will not have significant CBScompliance requirements beyond the registration requirement.
Existing Part 597 prohibits the release of a hazardous substance to the
environment (subdivision 597.4(a)). This emergency rule and proposedrule allow entities storing fire-fighting foam to use the foam until April25, 2017 while they determine if the foam contains one of these hazardoussubstances. If the foam does contain one of the substances, the foam mustnot be released to the environment after April 25, 2017. However, if thefoam is used to fight a fire and there is a release of one pound or more of ahazardous substance, the release needs to be reported to the Department’sspill hotline (subdivision 597.4(b)).
Listing these substances as hazardous substances results in sites con-
taminated with one of these substances being subject to the inactive haz-ardous waste disposal sites regulatory requirements of Part 375, whichsets forth requirements for remediation. Remedial programs for a site tendto be complex, multi-phased, and take from a few to many years tocomplete.Summary of Regulatory Flexibility Analysis
Full text of the Regulatory Flexibility Analysis for Small Businesses &
Local Governments is available on the New York State Department ofEnvironmental Conservation’s website at www.dec.ny.gov/regulations/104968.html
1. EFFECT OF RULEThe purpose of the emergency rule and proposed rule is to:1. Add perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Service
(CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, 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) to 6 NYCRR Section 597.3;
2. Allow fire-fighting foam containing PFOA-acid, PFOA-salt, PFOS-
acid, or PFOS-salt (all four substances) to be used to fight fires (but notfor training or any other purposes) on or before April 25, 2017, a use whichwould not otherwise be allowed under the regulation since the release of ahazardous substance is prohibited; and
3. Correct the list of hazardous substances by providing units for report-
able quantities (RQs).
The emergency rule and proposed rule apply statewide in all 62 coun-
ties of New York State (State). The listing of the hazardous substances hastwo effects. First, facilities storing all four substances are now (upon theeffective date of the emergency rule) subject to registration requirements(6 NYCRR Part 596) with the New York State Department of Environmen-tal Conservation (Department) under the Department’s Chemical BulkStorage (CBS) program. Facilities must comply with the applicablehandling and storage requirements (6 NYCRR Parts 598-599).
Production of all four substances has already been restricted or report-
edly phased out and replaced with alternative substances. Facilities storingproducts containing any of the four substances manufactured prior to themanufacturing phase-out will be subject to CBS registration requirements.Older stocks of fire-fighting foam containing any of the four substanceswill be subject to the CBS registration requirements. If the stored foamcontains PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt, the facilitywould be required to arrange for the proper disposal of the foam by April25, 2017. Small businesses are not likely to store these foams in quantities(explained below). Large local government agencies (fire departments,fire districts) possibly maintain stocks of fire-fighting foam that could besubject to the registration requirement. The number of facilities that wouldbe required to register as CBS facilities is expected to be small and go tozero as stocks of the four substances are eliminated.
Most facilities subject to the CBS regulations are municipal facilities,
manufacturing facilities, and utilities. There are over 1,400 registeredCBS facilities. The Department believes that the great majority of facilityowners and operators are likely small businesses. Local governments haveregistered over 580 CBS facilities. The Department believes that the typesof facilities registered by local governments are water and wastewatertreatment facilities and are not expected to store any of the four substances.
The Department only collects information regarding the name, address,
and contact information for the owner and operator of registered facilities.Hence, the Department cannot estimate the number of small businesseswhich are CBS regulated (6 NYCRR Parts 596 through 599) or will beregulated due to the emergency rule and proposed rule.
The second effect of the promulgation of this rule is the permanent pro-
hibition of releases of any of the four substances to the environment. Theprohibition takes effect on April 25, 2017 for fire-fighting foams. Therelease prohibition now applies to the four substances including any olderstocks of fire-fighting foams and any material containing the four sub-stances stored by small businesses or local governments. This will requirelocal government and small businesses to dispose of materials containingthe four substances. Releases of listed hazardous substances above thereportable quantity (RQ) given in Part 597 (one pound for the four sub-stances) must be reported to the Department’s Spill Hotline (subdivision597.4(b)).
The number of sites that will become remedial sites because of the ad-
dition of these four substances to Part 597 is unknown. The Departmenthas placed one site on the Registry of Inactive Hazardous Waste DisposalSites (Registry) as a result of adding PFOA-acid to Part 597 (Site RegistryID No. 442046). The Department expects that other sites that used the anyof the four substances in commercial or industrial processes may haveenvironmental contamination. Locations where disposal of the substancesoccurred or where the substances were components of materials releasedto the environment may become remedial sites subject to the requirementsof Part 375.
The Department anticipates that remediation issues would be most sig-
nificant for areas where the substances were either manufactured, used tomake other products, released, or disposed of. Based upon currently avail-able information, the four substances have not been manufactured in NewYork State, but have been used here to create other products. It is notknown how many small businesses or local governments own properties
NYS Register/October 5, 2016 Rule Making Activities
3that will be subject to the regulatory requirements of Part 375because of
contamination from these four substances.
2. COMPLIANCE REQUIREMENTSThis rule makes no changes to any substantive requirement for CBS fa-
cilities other than to place the four substances on the list of hazardous sub-stances in Part 597.
Facilities that store the any of the four substances in amounts and in
tanks that make them subject to the registration requirements of 6 NYCRRPart 596 must include tank systems on facility registrations with the
Department and pay the registration fee associated with the CBS program.The fees range from $50 per tank for tanks with capacities less than 550gallons to $125 per tank for capacities greater than 1,100 gallons.
If a facility is already storing any of the four substances and is subject
to the registration requirements, the registration requirement became ef-fective on April 25, 2016, the effective date of this emergency rule. A fa-cility planning to start storing PFOA-acid, PFOA-salt, PFOS-acid, orPFOS-salt must obtain a valid registration certificate prior to storage. Fa-cilities with existing storage of these substances are not required to complywith the handling and storage requirements for hazardous substances untilApril 25, 2018 (6 NYCRR subdivision 598.1(h)). The Departmentanticipates that facilities that currently store any of the four substanceswill phase out their storage of the substance prior to April 25, 2018 andtherefore would not have substantive CBS compliance requirements be-yond the registration requirement.
Listing the four substances as hazardous results in sites otherwise meet-
ing regulatory criteria to be subject to the inactive hazardous waste dis-posal sites regulatory requirements of Part 375 for the first time. In thesecases, requirements for investigation and cleanup are established by Part375 and by Department orders and agreements with regulated entities.Part 375 sets forth site investigation requirements which determine thenature and extent of environmental contamination, evaluate remedialalternatives, design and construct a remedy, complete the operation andmaintenance activities required to achieve the site remedial action objec-tives, and maintain any institutional or engineering controls which makethe remedy effective. Remedial programs for a site tend to be complex,multi-phased, and take from a few to many years to complete.
3. PROFESSIONAL SERVICESNo new or additional professional services will be needed for small
businesses or local governments to comply with this rule. Facilitiescontinuing to store the substances after April 25, 2018, when the storageand handling standards go into effect, may need professional services tomeet hazardous substances handling and storage requirements.
A small business or local government which becomes a remedial party
subject Part 375 remedial program requirements, will require consultingand contractual services, including professional engineers or qualifiedenvironmental professionals as defined in Part 375 and contractual ser-vices needed to undertake site investigation field work, analyses ofenvironmental samples, or other specialized services.
4. COMPLIANCE COSTSProduction of the four substances has been phased out and the substan-
tive CBS tank system requirements for their handling and storage will notapply until April 25, 2018. The Department expects that the compliancecosts for meeting the CBS requirements will be minimal. If the facilitydiscontinues storage by April 25, 2018, when the storage and handlingstandards go into effect, there will be no other substantive costs.
The release prohibition will not present significant compliance costs for
small businesses and local governments.
Part 375 compliance costs for remedial program implementation where
any of the four substances are the primary contaminants will vary widely.Costs are related to the following: quantity released to the environment,media contaminated (e.g., soil, groundwater, surface water, sediment,bedrock), the horizontal and vertical extent of contamination, the acces-sibility of contamination, whether there are human or environmentalreceptors to protect while a remedial program is undertaken, the difficultyof removing the substances from the contaminated environmental media,the anticipated future use of the area of contamination, and other factors. Itis not possible to meaningfully estimate the potential costs to small busi-nesses and local governments resulting from listing the substances ashazardous. Remedial program costs for other hazardous substances haveranged from the thousands to millions of dollars on a case-by-case basis.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITYThe economic and technological feasibility for small businesses or lo-
cal governments related to compliance with this rule depends upon whichrequirements apply. If small businesses or local governments are requiredto comply with CBS registration requirements only, no significant impedi-ments will be faced. If a CBS facility decides to store the substances afterApril 25, 2018, when the storage and handling standards go into effect,costs would be incurred to comply with handling and storage requirements.Costs could include design, construction, and maintenance of tank systemsto meet the technical requirements for release prevention, release detec-tion, and containment of potential spills. No technological feasibility is-
sues will exist, but costs would be incurred commensurate with storageamounts.
The economic and technical feasibility of complying with the require-
ments to remediate a site contaminated by the substances for a small busi-ness or local government is explained above in compliance costs.
6. MINIMIZING ADVERSE IMPACTThe Department is adopting this emergency rule and proceeding with
this proposed rule based upon the conclusion of NYSDOH that thecombined weight of evidence from human and experimental animal stud-ies indicates that prolonged exposure to significantly elevated levels ofthese compounds can affect health and, consequently, pose a threat to pub-lic health in New York State when improperly treated, stored, transported,
disposed of or otherwise managed. See the Regulatory Impact Statementfor additional information, including NYSDOH’s letter requesting thatthese chemicals be added to the List of Hazardous Substances (Section597.3).
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPA-
TION
The Department will ensure public notice and input by issuing public
notices in the State Register and newspapers, publication in the Depart-ment’s Environmental Notice Bulletin, holding a comment period of atleast 45 days, and holding public hearings. Interested parties, includingsmall businesses and local governments, will have the opportunity tosubmit comments and participate in public hearings. The Department willpost relevant rule making documents on the Department’s website.
8. CURE PERIOD OR OTHER OPPORTUNITY FOR AMELIORA-
TIVE ACTION
There can be no ameliorative actions or cure period regarding the prohi-
bition against releasing the four substances to the environment because theprohibition is absolute and intended to prevent the harm that would cometo public health. Prolonged exposure to significantly elevated levels ofthese compounds can affect health and, consequently, pose a threat to pub-lic health in New York State when improperly treated, stored, transported,disposed of or otherwise managed. The concept of a cure period does notapply in the case of a remedial program.
If a facility subject to the CBS facility registration requirement for the
any of the four substances fails to register its facility in accordance withPart 596, the facility owner/operator will be subject to penalties that havebeen in place and exercised by the Department for all types of parties fordecades, including small businesses and local governments. Therefore, noadditional ameliorative actions or cure period established for this ruleregarding CBS registration or handling and storage requirements.
9. INITIAL REVIEW OF THE RULEDEC would conduct an initial review of the rule within three years of
the promulgation of the final rule.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREASThere are 44 counties in New York State (State) that have populations
of less than 200,000 people and 71 towns in non-rural counties where thepopulation density is less than 150 people per square mile. Since the emer-gency rule and proposed rule apply statewide, they apply to all rural aswell as non-rural areas of the State. The emergency rule adds perfluo-rooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1),perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), andperfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) to the list ofhazardous substances in 6 NYCRR Section 597.3 (Section 597.3). Thisrule also provides time for facilities storing fire-fighting foam containingone or more of these newly listed hazardous substances to properly disposeof it, and makes a correction to the tables of hazardous substances in Part597 by providing units for reportable quantities (RQs). There is no reasonto believe that the actions under this rule will disproportionally impact ru-ral areas.
2. REPORTING, RECORDKEEPING, OTHER COMPLIANCE RE-
QUIREMENTS, AND NEED FOR PROFESSIONAL SERVICES
This emergency rule and proposed rule makes no changes to reporting,
recordkeeping, or other compliance requirements for Chemical Bulk Stor-age (CBS) facilities other than to place PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt on the list of hazardous substances in Section 597.3.
Facilities that store PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt
in specified quantities and use certain tanks that make them subject to theregistration requirements of 6 NYCRR Part 596 must include these tanksystems in their facility registration with the Department, and pay aregistration fee associated with the CBS program. Facilities regulatedunder 6 NYCRR Parts 596-599 most commonly store hazardous sub-stances in stationary aboveground tank systems with a capacity greaterthan 185 gallons.
A facility that stores PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt
that is subject to the CBS registration requirements, as explained above,
NYS Register/October 5, 2016 Rule Making Activities
4must submit its registration application to the Department and pay the
commensurate fee at the time it becomes subject to regulation. If the facil-ity is already storing PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt,and is subject to the registration requirements, the registration require-ments became effective on April 25, 2016, the effective date of this emer-gency rule. If a facility plans to start storing PFOA-acid, PFOA-salt,PFOS-acid, or PFOS-salt, and is subject to the registration requirement, itmust obtain a valid registration certificate prior to storing the material. Afacility with existing storage of PFOA-acid, PFOA-salt, PFOS-acid, or
PFOS-salt is not required to comply with the handling and storage require-ments for hazardous substances until April 25, 2018 (subdivision598.1(h)). Since the Department anticipates that facilities that currentlystore PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt will phase outstorage of the substance prior to April 25, 2018, they will not have substan-tive CBS compliance requirements regarding these chemicals beyond theregistration requirement.
Existing Part 597 prohibits the release of a hazardous substance to the
environment unless a release is authorized or is continuous and stable andhas been reported to the Department (subdivision 597.4(a)). This rule inaddition allows entities with fire-fighting foam to use the foam to fightfires on or before April 25, 2017 while they determine if the foam containsPFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt. If the foam containsone of these hazardous substances, the foam must be disposed of in accor-dance with appropriate regulations by April 25, 2017. Replacement foammay not contain a hazardous substance at a concentration that would resultin the release of more than the RQ (one pound) when used as a fire-fightingfoam. However, if the foam is used to fight a fire and there is a release of ahazardous substance above the RQ stated in Part 597 for the substance(one pound for these hazardous substances), the release must be reportedto the Department’s spill hotline (subdivision 597.4(b)).
Listing PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt as hazard-
ous substances results in sites contaminated with PFOA-acid, PFOA-salt,PFOS-acid, or PFOS-salt being subject to the inactive hazardous wastedisposal sites regulatory requirements of 6 NYCRR Part 375. In thesecases, requirements for investigation and cleanup are established by Part375 and by Department orders and agreements with regulated entities.Part 375 sets forth requirements for the investigation of site conditions todetermine the nature and extent of environmental contamination, evaluateremedial alternatives, design and construct a remedy, complete the opera-tion and maintenance activities required to achieve the remedial actionobjectives for the site, and maintain any institutional or engineeringcontrols needed to maintain the effectiveness of the remedy. Remedialprograms for a site tend to be complex, multi-phased, and take from a fewto many years to complete.
No new or additional professional services are anticipated to be needed
by facilities located in rural areas to comply with the emergency rule andproposed rule regarding the CBS requirements if they discontinue storingPFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt before the handlingand storage requirements take effect on April 25, 2018. If facilitiescontinue to store after April 25, 2018, when the storage and handling stan-dards go into effect, facility owners/operators may need professional ser-vices to assist them in meeting the handling and storage requirements forhazardous substances.
If an owner/operator in a rural area becomes a remedial party subject to
requirements to implement a remedial program under Part 375, it wouldlikely require consulting and contractual services to assist in carrying outthe remedial program. This could include professional engineers or quali-fied environmental professionals, as defined in Part 375, and contractualservices needed to complete site investigation field work, analyses ofenvironmental samples, or other specialized services.
3. COSTSThe Department does not anticipate a variation in compliance costs for
different types of public and private entities in rural areas. Since PFOS-acid, PFOS-salt, and PFOS-related substances was restricted beginning in2002 and, under the EPA’s Stewardship Program addressing PFOA-related substances, eight companies voluntarily removed PFOA-acid,PFOA-salt, and PFOA-related substances from new products by December2015, and because the substantive CBS tank system requirements forhandling and storing PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-saltwill not apply until April 25, 2018, the Department expects that thecompliance costs for meeting the CBS requirements will be minimal. Haz-ardous substances regulated under Parts 596-599 are most commonlystored in stationary aboveground tank systems with a capacity greater than185 gallons. Registration fees apply to each regulated tank and dependupon the capacity of each tank. The fees range from $50 per tank for tankswith capacities less than 550 gallons to $125 per tank for capacities greaterthan 1,100 gallons. If a facility discontinues storage by April 25, 2018,when the storage and handling standards go into effect, there will be noother substantive costs.
The prohibition of releases of hazardous substances is not expected topresent significant compliance costs for public or private entities in rural
areas with the possible exception of entities in possession of fire-fightingfoams (Aqueous Film Forming Foam - AFFF) that contain PFOA-relatedor PFOS-related substances. This emergency rule and proposed rule addsa provision to allow facilities with fire-fighting foam the time necessary todetermine if stored foam contains one or more of these substances. If thestored foam contains one of these substances, the facility would berequired to arrange for the disposal of the foam by April 25, 2017. Replace-ment foam may not contain a hazardous substance. The older foams maybe disposed of as solid waste in a permitted landfill since these substancesdo not meet the definition of Resource Conservation and Recovery wasteswhen disposed properly. The cost to replace the foam ranges from $16 to$32 per gallon, dependent on the amount and type of foam that is being
stored. Prior to April 25, 2017, entities storing this foam will be allowed touse the foam, as needed, to fight fires to protect public safety. However, ifthe foam containing one or more of these hazardous substances is releasedto the environment in an amount that exceeds the RQ (one pound), therelease must be reported to the spill hotline to allow the Department todetermine if any remediation of the release is appropriate.
The costs of complying with the requirements of Part 375 to implement
a remedial program where PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt are the primary contaminants, will vary widely as the costs dependupon many factors. These include the quantity released to the environ-ment, the media contaminated (e.g., soil, groundwater, surface water, sedi-ment, bedrock), the horizontal and vertical extent of contamination foreach medium, the accessibility of the contamination, whether there are hu-man or environmental receptors that must be protected while a remedialprogram is being undertaken, the difficulty of removing PFOA-acid,PFOA-salt, PFOS-acid and PFOS-salt from the contaminated environmen-tal media, the future anticipated use of the area of contamination, andother factors. Because of the wide variety of scenarios, it is not possible tomeaningfully estimate the potential costs to persons managing PFOA-acid, PFOA-salt, PFOS-acid and PFOS-salt in rural areas resulting fromthe listing of PFOA-acid, PFOA-salt, PFOS-acid and PFOS-salt as haz-ardous substances other than to note that remedial program costs for otherhazardous substances can range from the thousands to millions of dollarson a case-by-case basis.
4. MINIMIZING ADVERSE IMPACTThe Department is adopting this emergency rule and proceeding with
this proposed rule based upon the conclusion of the New York StateDepartment of Health (NYSDOH) that the combined weight of evidencefrom human and experimental animal studies indicates that prolongedexposure to significantly elevated levels of these compounds can affecthealth and, consequently, pose a threat to public health in New York Statewhen improperly treated, stored, transported, disposed of or otherwisemanaged. NYSDOH scientists have concluded that it is essential to listthese chemicals as hazardous substances. See the Regulatory Impact State-ment for additional information, including NYSDOH’s letter requestingthat these chemicals be added to the List of Hazardous Substances (Sec-tion 597.3).
This action does not lend itself to the mitigating measures listed in State
Administrative Procedure Act section 202-bb(2), but there are existingrequirements established in the regulations that help to minimize adverseimpacts. For example, the CBS regulations allow a two-year period after anew chemical is added to the list of hazardous substances before thehandling and storage requirements of Part 598 apply to facilities withexisting storage of the chemical (subdivision 598.1(h)). In addition, theDepartment has determined through other rule making actions that theremaining regulatory compliance provisions, including the storage,handling, release prohibition, and disposal provisions, appropriately applyto persons managing hazardous substances in rural areas.
5. RURAL AREA PARTICIPATIONThe Department is providing statewide outreach to persons who are
subject to this emergency and proposed rule, including those in rural areas.The Department will ensure public notice and input by issuing public no-tices in the State Register, newspapers, and the Department’s Environmen-tal Notice Bulletin; holding a comment period of at least 45 days; andholding public hearings. Interested parties will have the opportunity tosubmit written comments and participate in the public hearings. TheDepartment will also post relevant rule making documents on theDepartment’s website.
6. INITIAL REVIEW OF THE RULEThe Department will conduct an initial review of the rule within three
years of the promulgation of the final rule.
Job Impact Statement
1. NATURE OF IMPACTThrough the emergency rule and proposed rule, the New York State
Department of Environmental Conservation (Department):
1. Adds perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Ser-
vice No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No.
NYS Register/October 5, 2016 Rule Making Activities
53825-26-1), perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-
1), and perfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3) to thelist of hazardous substances in 6 NYCRR Section 597.3 (Section 597.3);
2. Allows fire-fighting foam containing PFOA-acid, PFOA-salt, PFOS-
acid, or PFOS-salt to be used to fight fires (but not for training or anyother purposes) on or before April 25, 2017, a use which would nototherwise be allowed under the regulation since the release of a hazardoussubstance is prohibited; and
3. Corrects the list of hazardous substances by providing units for
reportable quantities (RQs).
The substantive effects of listing of these substances in Section 597.3 is
to (1) make the handling and storage of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt subject to the registration and other regulatory stan-dards for Chemical Bulk Storage (CBS) facilities (6 NYCRR Parts 596-599); (2) prohibit the unauthorized release of PFOA-acid, PFOA-salt,PFOS-acid, and PFOS-salt to the environment (subdivision 597.4(a)) andrequire that any releases above the RQ (one pound) be reported to theDepartment (subdivision 597.4(b)); and (3) make the investigation andremediation of releases of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt to the environment subject to the Department’s remedial programrequirements (6 NYCRR Part 375).
The substantive effect of allowing fire-fighting 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 foamcontains one or more of these hazardous substances and replace any foamsas necessary. If stored foam contains one of these substances, a facilitywould have to arrange for the proper disposal of the foam in accordancewith all local, state, and federal requirements. Replacement foam may notcontain a hazardous substance at a concentration that would result in therelease of more than the RQ (one pound) when used as a fire-fightingfoam. The older foams may be disposed of as solid waste in a permittedlandfill since these substances are not Resource Conservation andRecovery Act wastes when disposed properly.
The effect of correcting the tables listing hazardous substances is to
include the units for RQs to remove uncertainty regarding when a releasemust be reported.
Under the federal Toxic Substances Control Act, the United States
Environmental Protection Agency (USEPA) has worked with industry tovoluntarily phase out the use of PFOA-related substances by December2015, and proposed a significant new use rule (SNUR) to limit the produc-tion and importation of PFOA-related substances in anticipation of thephase-out deadline (80 FR 2885; January 21, 2015). USEPA completedthe SNUR to limit the production and importation of PFOS-related sub-stances in 2002.
Since production of PFOA-related and PFOS-related substances has al-
ready been reportedly phased out or restricted, and alternative substanceshave been developed to take the place of these hazardous substances, theDepartment does not expect this rule to have a significant impact on jobsand 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 AFFECTEDSince PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt are report-
edly no longer being produced in the United States, the CBS regulationswould only apply to stored PFOA-containing or PFOS-containing materi-als produced before the phase-out. Since replacement materials are al-ready in place and the number of facilities storing PFOA or PFOS inquantities large enough to be subject to the CBS regulations is expected tobe small, the number of jobs affected is expected to be small. Existing em-ployees may be required to arrange for the disposal of older stocks ofPFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt containing materials,but this should not require the creation of new jobs or the loss of existingjobs.
Where PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt has previ-
ously been released to the environment in ways that make the resultingcontamination subject t o a 6 NYCRR Part 375 remedial program, a limited
number of jobs may be created in order to complete the necessaryinvestigations and remediation of the sites. Job categories would include,for example, drilling contractors and other heavy equipment operators,field investigation technicians, hydrogeologists, engineers, analyticalchemists and technicians, and others with training and experience relatedto site remediation.
The number of sites that may become remedial sites because of the ad-
dition of PFOA-acid, PFOA-salt, PFOS-acid, and PFOS-salt to Section597.3 is unknown. The Department has placed one site on the Registry ofInactive Hazardous Waste Disposal Sites (Registry) as a result of addingPFOA-acid to Section 597.3 (Site Registry ID No. 442046). The Depart-ment expects that other sites that used PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt in commercial or industrial processes may have PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt environmental contamination.Locations where PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-salt dis-
posal occurred or where PFOA-acid, PFOA-salt, PFOS-acid, or PFOS-saltwere components of materials released to the environment may becomeremedial sites subject to the requirements of Part 375. Nationally, researchby the United States Department of Defense (DoD) found that ap-proximately 600 DoD sites are categorized as fire/crash/training areas andthus have the potential for contamination with perfluoroalkyl compounds(including PFOA-related and PFOS-related substances) due to historicaluse of aqueous film-forming foams (AFFF) [Strategic EnvironmentalResearch and Development Program (SERDP), FY 2014 Statement ofNeed (SON), Environmental Restoration (ER) Program Area, “In SituRemediation of Perfluoroalkyl Contaminated Groundwater,” SONNumber: ERSON-14-02, October 25, 2012]. It is possible that the Depart-ment will list additional Registry sites. The work needed to investigateand remediate these sites may be accomplished by existing staff or newjobs may be added depending upon the number and complexity of sites.
3. REGIONS OF ADVERSE IMPACTThere are no regions of the State expected to be disproportionately
impacted by the emergency rule and proposed rule as they apply statewide.There is no reason to expect that PFOA-acid, PFOA-salt, PFOS-acid, orPFOS-salt issues will be concentrated in one area over another to any sig-nificant degree.
4. MINIMIZING ADVERSE IMPACTFor the reasons described above, the emergency rule and proposed rule
are not expected to have a significant adverse impact on jobs andemployment.
5. SELF-EMPLOYMENT OPPORTUNITIESThe emergency rule and proposed rule are not expected to impact self-
employment opportunities.
6. INITIAL REVIEW OF RULE
The Department will conduct an initial review of the rule within three
years of the promulgation of the final rule.
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 atwww.dec.ny.gov/regulations/104968.html
IntroductionThis summary reflects the responses of the New York State Department
of Environmental Conservation (DEC) to the main comments submittedby the public regarding the adoption of amendments to 6 NYCRR Part597. This rule making was proposed on April 25, 2016 and included a 58day comment period that ended on July 8, 2016. Public hearings were heldin June 2016 in Albany, Rochester and Garden City, for a total of threepublic hearings, with an information session prior to each hearing. DECreceived 40 comments during the hearings and from written submissions.Oral comments were received at the Albany and Garden City hearings, butnone 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).
Main Themes1. Support of the Listing of PFOA/PFOS as Hazardous SubstancesFive commenters indicated their support of listing PFOA/PFOS in Part
597, noting that their assessment of the substances causes them to supportthe classification as hazardous substances. DEC agrees with thesecommenters.
2. Challenge of the Listing of PFOA/PFOS as Hazardous SubstancesOne commenter stated that the information available regarding PFOA/
PFOS does not indicate that they meet the regulatory criteria for clas-sification as hazardous substances. The commenter specifically noted thefollowing 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 exposure levels anddoses used in laboratory animal studies.
b. Human epidemiologic studies do not demonstrate that occupational
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 illness tohumans.
DEC disagrees with the commenter.With regard to the first point, the issue is not relevant to whether the
substances meet the regulatory criteria for including chemicals on the listof hazardous substances.
With regard to the second point, the toxicities of PFOA/PFOS have
been reviewed and summarized by numerous authoritative bodies whichhave determined that there is an association between increased PFOA/PFOS exposure and an increased risk for human health effects.
NYS Register/October 5, 2016 Rule Making Activities
6With regard to the third point, laboratory animal studies support human
hazard identification, particularly when health endpoints associated withhuman exposures in epidemiological studies are also observed in exposedanimals.
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 elevated levels ofPFOA or PFOS can negatively affect human health. Moreover, the UnitedStates Environmental Protection Agency (EPA) released updated editions
of its Health Effects Support Documents in support of the lifetime healthadvisories issued by EPA in May 2016 for PFOA and PFOS. All of thesummaries identify important studies on the health effects associated withexposure 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 (NTP)
provides additional support, concluding that both PFOA and PFOS arepresumed to be an immune hazard to humans. Presumed hazards are onestep below known hazards and one step above suspected hazardous on thefive-step scale NTP uses for hazard identification.
Based on the review of human epidemiology and animal toxicology
data for PFOA and PFOS, and DOH’s conclusions that significantlyelevated exposure to PFOA or PFOS can affect human health, there is suf-ficient information to conclude that PFOA/PFOS meet the criteria to belisted as hazardous substances.
3. Concerns with Firefighting Foama. 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 posed by
fires in support of our mission to protect public health and the environ-ment, DEC is allowing the use of firefighting foams that may containPFOA/PFOS to fight fires that occur on or before April 25, 2017. DECrecognizes that facilities that possess supplies of firefighting foam needtime to determine if their existing supplies of foam contain one or more ofthese newly listed hazardous substances and to make arrangements todispose of and replace firefighting foam that contains PFOA/PFOS wherethe concentration of PFOA/PFOS is such that the foam cannot be usedwithout causing a reportable spill (one pound of PFOA or PFOS). Allow-ing facilities that possess firefighting foam to continue to use foams thatmay contain PFOA/PFOS on a limited basis to fight fires furthers protec-tion of public health and safety. DEC is not allowing use of firefightingfoam that would result in a reportable spill of PFOA/PFOS for otherpurposes such as training. If firefighting foam containing PFOA/PFOS isused 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 necessary. DECbelieves this is an appropriate approach that allows for the protection ofthe public and the environment.
b. A commenter expressed concern about economic and financial
impacts on fire departments, fire districts, and municipalities which mustdetermine whether firefighting foams contain PFOA/PFOS and disposeand replace PFOA/PFOS foams.
DEC understands the concern regarding costs to fire departments of
determining whether foams contain PFOA/PFOS in concentrations suchthat the foams cannot be used without causing a reportable spill (one poundof PFOA or PFOS) and the costs of disposing and replacing foams. DEChas been working with the Fire Fighting Foam Coalition and the manufac-turers of firefighting foam to make available information on foams thatmay contain PFOA/PFOS. In addition, DEC has posted a fact sheet onfirefighting foam on DEC’s website (see www.dec.ny.gov/regulations/106078.html). DEC believes the information in the fact sheet will mini-mize costs to fire departments in determining whether foams containPFOA/PFOS and disposing of foams that contain PFOA/PFOS where theconcentration of PFOA/PFOS is such that the foam cannot be used withoutcausing a reportable spill (one pound of PFOA or PFOS). DEC is unableto provide assistance with costs associated with replacement of firefight-ing foam. In addition, the regulation seeks to minimize costs by allowingthe use of such foam to fight fires until April 25, 2017, a year after theemergency 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 fireextinguishment.
DEC understands the concern regarding liability for cleanup 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/PFOS andwho will be liable for cleanup costs.
d. Another commenter, a manufacturer of firefighting foam, noted 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 set 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 thesize of the community.
These requested actions are beyond the scope of the current rulemak-
ing, however, DEC may consider these issues in a future rule making orpolicy 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 of 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, DEC
will evaluate each such chemical to determine whether it is appropriate toclassify it as a hazardous substance.
i. Commenter requested that DEC require remediation of other sites
that are contaminated.
As DEC becomes aware of contaminated properties, DEC will evaluate
appropriate response and remediation for these properties in the samemanner that DEC addresses any other property that is contaminated by ahazardous substance. Companies that contaminate properties are amongthe 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 Stewardship
Program. Information about this program is available on EPA’s website atwww.epa.gov/assessing-and-managing-chemicals-under-tsca/and-polyfluoroalkyl-substances-pfass-under-tsca#tab-3.
l. Commenter requested that DEC hold Legislative Hearings on New
York State’s water quality.
Legislative hearings have been scheduled to address New York State’s
water quality.
NOTICE OF ADOPTION
Low Emission Vehicle (LEV III) and Zero Emission Vehicle
(ZEV) Standards
I.D. No. ENV-25-16-00007-A
Filing No. 883
Filing Date: 2016-09-19
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 Parts 200 and 218 of Title 6 NYCRR.
Statutory authority: Environmental Conservation Law, sections 1-0101,
1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305,19-1101, 19-1103, 19-1105, 71-2103, 71-2105 and section 177 of theFederal Clean Air Act (42 USC 7507)
Subject: Low emission vehicle (LEV III) and zero emission vehicle (ZEV)
standards.
Purpose: To incorporate California's most recent LEV III and ZEV
program standards adopted in October 2015.
Text of final rule: Subpart 218-1 remains the same.
Section 218-2.1(a) is revised to read:(a) It is unlawful for any person to sell or register, offer for sale or lease,
import, deliver, purchase, rent, lease, acquire or receive a 1993, 1994,1996 or subsequent model-year, new or used motor vehicle, new motorvehicle engine or motor vehicle with a new motor vehicle engine in theState of New York which is not certified to California emission standardsand meets all other applicable requirements of California Code of Regula-tions, title 13, sections 1956.8, 1956.9, 1960.1, 1960.1.5, 1960.5, 1961,NYS Register/October 5, 2016 Rule Making Activities
7