PETROLEUM STORAGE INC.
20 Crossways Park North, Suite 302
Woodbury, NY 11797
Tel: (516) 921-9180
Fax: (516) 921-9185
May 20, 2002
Angus Eaton, PE
NYS DEC, Division of Water
625 Broadway
Albany, New York 12233-3505
Re: Comments relative to 6 NYCRR Proposed Subpart 750-1 and
Subpart 750-2, SPDES Permits
Dear Mr. Eaton,
We submit herewith the following comments relative to the
above captioned Proposed Subparts 750-1 and 750-2, SPDES Permits.
750-1.2:
(a) (1) Act: this is not precisely the same definition as
appears in 750.1.24 and the two should be consistent; the regulation
must also recognize that if and when amendments are made to “the
Act”, said amendments shall apply to and in references to
the Act and not be cut off at July 1, 2001. Further, there are
innumerable citations of and references to §750-1.24 References,
which are totally unnecessary, meaningless and serve only to
disrupt the flow of the proposed regulation; these should be
eliminated in most instances.
(a)(8) Approvable: this definition is vague and provides no
clear guidelines. It makes for a very subjective definition and
while the Department clearly can exercise discretion, virtually
anything can “revised and resubmitted” and become “approvable.”
This definition allows for uneven or arbitrary application of
the standard and should not be confused with meeting a standard
that is “acceptable.”
(a)(9) Average: this definition, while better than the previous
proposed definition, still leaves open the question is how are
days of no discharge or days of no business operation
are to be computed when trying to determine an average for a
week or month. Our previous suggestion that rather than consecutive,
the word “given” or “stated” be used, is
helpful to determine a true arithmetic mean, but the open question
should still be addressed.
(a)(14) Best Professional Judgement (BPJ): first, the statutory
authority for effluent limitations is §402(a)(1)(B) and
the implementing regulations; secondly, unless the permit writers
are Professional Engineers or others governed by the Office of
the Professions, we would question the right to use the term
“Professional Judgement”; thirdly, after the first
sentence, the words to not constitute a “sentence”
at all. Is this definition trying to describe the pollutants
and wastewaters that the Department is attempting to reach because
they are not addressed by 40 CFR 405 to 471? If so, will the
Department be creating new categories of substances to be subject
to permit conditions that are not covered by the Act or the regulations
there under by this definition? As this is a new provision, it
needs clarification.
(a)(23) Daily Discharge: The final sentence of this paragraph
is unclear. There seems to be a contradiction in this definition
between “total mass” (cumulative amount) as against
“average measurement” and this must be clarified.
(a)(25) Daily Average: This definition must be read in conjunction
with (9) infra, and again raises the question of how we
accommodate days of no discharge or no business operation
within the month.
(a)(28) Discharges authorized: This is the use of a definition
to express a PROHIBITION, (“…is defined to prohibit…”);
this is confusing the definitions section of the regulation with
the prohibition section of either the statute or the implementing
regulation. The prohibition is already contained in §17-0501
and does not have to be included in the definition.
(iv) there is included herein a reference to a pollutant “…known
or believed present in the discharge…” If pollutants
are to be listed in the SPDES application, they should either
be there or not be there. This should not be a guessing game.
What is the authority for this standard, what does it mean and
when will it be permitted? It would seem that this is asking
the regulated community to guess what else could be present in
discharges and not what has a solid basis in science.
(v) this provision clearly seeks to regulate substances which
are not required to be reported on the SPDES permit application
and seems to be a violation of due process. Further, this would
give the Department excessive power to initiate permit modifications
on its own initiative, without good cause and solely to harass
a permittee.
(a)(35) Facility expansion: This definition is anti-business
and seems designed to unnecessarily burden business operations,
if not punish a business’s attempt to expand its operations
in the ordinary course of its business. It contains limitations
which are not provided for in statute and do not seem to be based
on a real need to protect the environment. While increases in
discharge of pollutants should be properly regulated, there must
be an objective standard that is connected only to the increase
of pollutant discharges above the permit limitations of the issued
SPDES. This definition also employs a new standard of “…greater
than 20% beyond what was reported in the SPDES permit application
record…” which does not seem to have a basis in law
or regulation but is a new addition to the proposed regulation.
Will we be told the basis or rationale for this? Is the percentage
subject to revision or modification?
(a)(36) Facility decreases: again this definition employs
the concept of a change of 20%, here in the nature of a decrease
in discharges of a pollutant which is expected to continue or
has been existing for more than a year. Again, what is the basis
for this new criteria, is there a basis in science, and will
it be modified? Also, if there is this change for the period,
it would seem that the Department would have had notice of it
in the reporting mechanism and this could trigger a permit modification
initiated by the Department. Is this the purpose of this definition
and new %?
(a)(51) Monthly average: same concerns as with “average”,
(97) infra, and “Daily Average”, (25), infra.
This term should be clearly defined and deal with days of
no discharge and days of no business operation.
(a)(58) Other wastes. Includes the term “sand”,
which clearly is not a waste in all instances and which generally
has a reusable life. In this definition, there does not seem
to be any consideration given to beneficial uses of these substances.
Also, the term “may cause” should not be used in discussing
pollution of the waters of the state, but rather the clause should
read: “…that cause or might reasonably be expected
to cause…” if you want to use the most inclusive language.
The use of the term “may” makes this highly subjective.
(a)(62) Person or persons: the term “industry” is
extremely subjective and is generally never used in a legal definition
of “person.” What is the need to include this term
and who is to be the judge of whether one company or another
is to be made a member of the class of that industry? This is
unenforceable.
(a)(67) Privately owned treatment works. The word “is”
should precede (a) in order to make this a sentence.
750-1.3 Prohibited discharges:
(c) “…any discharge to which the regional administrator
has objected to in writing…” is not a properly promulgated
legal standard or proper notice to the regulated community authorized
by the legislature. Further, while Regional Office and Regional
Permit Administrator are defined, regional administrator is not.
This entire section seems to restate the prohibitions contained
in Article 17 of the ECL without authorization from the legislature
of the State of New York. That is not to say that the Federal
Government does not have primacy in this area, but still the
adoption of the Federal regulations as part of the state regulations
requires an act of the legislature.
750-1.5 Exceptions.
(6) (iii) the last word should be “or” and not “and”,
which would have the effect of respecting the primacy of the
Federal government in this area.
(8) would seem to say that if a town or village added salt to
its snow removal program, it would then need a SPDES permit.
Is this the intent?
750-1.6 Applications to obtain SPDES Permits.
(d) and (e) are far too broad and permit the arbitrary and
capricious demands for additional information which do not directly
bear on the needs of the Department to fairly and properly analyze
the application for a SPDES permit. While we respect the desire
of the Department to provide for and encourage the submission
of data electronically, the requirements must be objective and
apply to all applicants across the state in the same manner and
based on the same objective criteria. Requests for “…such
data as the department may reasonably require…” are
opened ended and while sounding fair, do not present an objective
standard.
750-1.7 Individual SPDES permit Application Requirement.
(a) The Department starts out by stating that the permit application
requirements apply to all dischargers seeking to obtain a SPDES
permit, even though this is not a complete sentence. Thus, the
second sentence does not contain mandatory language but rather
permissive words; thus this sentence should contain the word
“shall” and not “may.” Again, the requirements
should be objective and uniform and apply to all in the same
manner.
(a)(14) this seems to be a new provision and requires a certification
that could prejudice the rights of an applicant by affecting
the judgement of the permit administrator or others reviewing
the application because of an unfounded or unproved allegation
against the applicant. Each NOV should stand or fall on its own
merits and, until ultimately prosecuted and sustained, should
not affect subsequent applications.
(a)(15) Engineering Reports and Plans and Specifications.
This requirement references another section of a Part that is
subsequent to this Part. The referenced Part is §750-2.10
which relates to Engineering Reports and Plans and Specifications
which may be utilized after a “person” has a SPDES
permit and then seeks a New or Modified Disposal system or Service
Area. The Engineering Reports, Plans and Specifications should
be contained at this point of the application process.
(a)(16) this is a “catch all” provision which is
too broad and not an objective standard; its only purpose is
to allow the department to improperly delay the applicant. If
the information is truly “relevant”, it should and
must be requested as part of the application process.
(b) Again, the terms should be mandatory and not permissive
but should be an objective standard for all.
(b)(4) Intermittent flows. The inclusion of “seasonal”
discharges does not seem to be covered by US EPA requirements
and could affect future discharges, e.g.: when discharges cease
for a number of years because of drought. While there is a clear
difference between “continuous” and “intermittent”,
seasonal flows are more problematic and not always predictable.
(b)(7) (iv) Sample type: (a) Grab samples must be used for
some pollutants and composite for others. However, we would strongly
suggest that grab samples be allowed for all pollutants particularly
when the discharge is for a measured period of time or for a
relatively short period of time during the day. This would permit
timely and accurate sampling and testing but not require a composite
taken when there is no further discharge. In these cases we submit
that the grab sample would be the more accurate measure.
(b)(9) Used or manufactured toxics. This provisions seems
to be excessively broad and arbitrary and virtually unable to
be capable of compliance. Isn’t this one of the purposes
of sampling, testing and reporting protocols and wouldn’t
the end purpose be achieved if reports are allowed to be made
without sanction upon discovery of an unanticipated toxic pollutant?
(b)(15) same comment as Engineering Reports, Plans and Specifications
as previously made.
(b)(16) same comment as made before to the “catch all”
provision which is too broad and not an objective standard; such
a “catch all” could allow persons in the Department
to delay an applicant forever improperly.
570-1.10 Effluent limitations in issued SPDES permits.
(a) language should be mandatory and not permissive. Therefore,
the department “shall” specify daily average etc. Thereafter,
the department may specify other limitations, if there is a clear
environmental need.
(b) this provision is extremely important to encourage continued
investment in New York State and should be emphasized for applicants
as a matter of department policy. This is a provision which precedes
this Administration but one to which this Administration seems
to be committed. Therefore, there should be no effort to avoid
its clear effect and impact.
750-1.13 Monitoring of Discharges.
(a) again mandatory language should, as it is, be used here
and not permissive words. This section contains excellent language:
“…and if imposed shall be included as provisions of
the SPDES permit.” This is important to note that the regulated
community wants to and is entitled to have all salient provisions
and requirements included in the permit and not be left to the
subjective interpretation or whim of a regulator.
(b) Again, reference is made to the Regional Administrator
who is not defined. To whom does this refer? The provisions are
separated by semi-colons and should not be. The provision “…or
to which the commissioner applies this section; (sic)” is
arbitrary and should be deleted. If the discharge is to be monitored
it should so state in the four corners of the permit and the
parameters should be provided.
(b)(1) flow should be required to be stated in either in gallons
(gpd) or cubic feet per second (cfs).
(b)(2)(ii) this provision suggests that the permittee, during
the life of its permit, may be required to monitor additional
pollutants merely because of writing and in accordance with agreements
hereinafter made, regardless of the application to this particular
situation. Where is the basis in law or in science that is being
applied?
750-1.16 Renewal of Existing SPDES Permits.
(e) The meaning and purpose of this subsection is unclear.
In addition, it does not seem to take into account drought conditions
or other business conditions and their effect on discharges.
It also seems to place unnecessary burdens on the NYS DEC to
take actions that may not be effective or necessary.
750-1.18 Modification of SPDES Permits.
(b)(6) To implement a Department initiative. This provision
is subject to abuse when total review can be caused by the mere
whim of a RWE after a permittee has caused a system to be designed,
constructed and operated. Where is the review by the department
administrators and will the review be fair or merely the condoning
of a questionable decision by a RWE. The basis for a department
initiated modification should only be science based and not merely
regulatory or administrative based. A fixed review process will
guarantee that.
750-1.19 Modification Priority Ranking System.
We understand that this section is required for the orderly
administration of the department and the SPDES program, but it
does give the Department broad powers to require an applicant
to duplicate previous submissions. The language in (d) is particularly
open to misinterpretation and abuse. Is there an right of appeal
or right of review of these determinations? Without an appeal
or review process, these provisions seem arbitrary and capricious.
750-1.20 Denial, Suspension or Revocation of a Permit.
(a) The first three subsections seem to deal with denial of
an application. The next four, (4), (50, (60,and (7) deal with
revocation and should be separate from the first three.
(a)(1) the use of guidance values which are not published
standards adopted according to NY SAPA cannot be used as the
basis for denial, suspension or revocation of a SPDES permit.
To allow a un-promulgated standard to serve as the basis for
the denial of a permit would be to deny due process of law.
(a)(3) this subsection is problematic for many in the regulated
community and poses a clear problem. It would seem to allow an
administration to deny a permit, thus triggering the public hearing
process, the administrative law forum and ultimately an Article
78 proceeding, whenever it determined that an entity “…
is part of a pattern of non-compliance.” This is patently
unfair and difficult if not impossible for the applicant to overcome
or prove. It is inherently unfair and provides an opportunity
for administrative abuse.
(a)(4) in addition to the comment about this referring to
revocation and not denial of an application, it would seem to
allow a denial of a permit application because the facility has
not yet commenced operations which will always be the case. Again,
there is no consideration for drought conditions, or other business
reasons.
(b)(1) This gives the department the right to determine that
the discharger has not used the permit or is not likely to discharge
under the SPDES permit. Who would make such a determination and
under what conditions. How would drought be treated or “business
slowdown” or fire or other tragedy? Is this really necessary
or is this a problem for the department? This provision does
not seem to be related to protecting the environment or protecting
the surface or groundwaters of the State of New York.
750-1.22 Confidentiality of information.
(a) As the SPDES is a delegated authority from the US EPA
pursuant to the provisions of the Clean Water Act and its predecessors,
we submit that the confidentiality provisions should be the same
as that provided applicants by the US EPA. However, in New York
State confidentiality has been virtually eliminated and proprietary
information essential to business is generally available pursuant
to FOIL. Thus, whenever the department asks for or demands information
that is not provided for in the application forms or deems additional
information “essential to fulfill its responsibilities under
the ECL” or some other very general language, it is opening
up that information to competitors who merely wait and file a
FOIL and then receive free proprietary information, such as engineering
reports, plans, designs and specifications that have cost the
applicant thousands of dollars and time and expertise to develop.
The US EPA rules should govern in these instances.
(c) By this reference, does it mean the Regional Permit Administrator
or the US EPA Regional Administrator? If it refers to the RPA,
what provisions are in place to maintain confidentiality in the
Region’s files and what penalties are there for department
employees who breach these conditions? What safeguards are there
that improper releases will not be made pursuant to a FOIL request?
Improper activities in these areas open the State of New York
to liability.
750-2.5 Routine Monitoring, Recording and Reporting
(a)(2) (v) Sample collection schedules at many facilities
cannot always be the subject of fixed routines, such as provided
for in this subsection. Nor do we see the need for the same.
Obviously, management prefers to set up schedules when possible
but flexibility is always required, e.g. providing for monitoring/sampling
during the first week of each month. It is unfair to make failure
to comply with a rigid schedule a violation of the permit. Also
making all changes to the schedule subject to prior department
approval is counterproductive. Adherence to monitoring, recording
and reporting is the important element here and not creating
meaningless “paperwork” violations. This section should
be revised.
750-2.6 Special Reporting Requirements for Discharges that
are not POWS.
(b) Facility expansion. This section seems to be in conflict
with the provisions of §750-1.2 (a)(35) which introduces
the concept of a 20% change in volumes. Further, these provisions
are clearly an attempt to interfere with normal business operations
where fluctuations are the norm rather than the exception. This
section seems to demand the submission of a new SPDES application
if there are any increases at all. This is draconian and ignores
the expense of filing a new application for no appreciable advantage
in environmental protection.
(c) Facility decreases. Here the 20% concept is introduced
again. Again there is no sound environmental purpose to be served
by these provisions and the requirement that a new SPDES permit
be submitted is unnecessary and harsh. If anything, there would
generally be less environmental danger from a decrease in the
discharge of pollutants and not more and there thus seems to
be no justification for this action by the Department. While
we respect the need for accurate reporting, this provision seems
to lack justification.
750-2.7 Incident Reporting
(a) Anticipated Noncompliance. 45 days advance notice of anticipated
changes leading to noncompliance is extremely difficult if not
impossible to provide the department. Please note that even if
a facility plans an annual “shut-down”, any one of
a number of occurrences may make that impossible thus putting
back the start-up and any possible incidents of noncompliance.
Anticipated noncompliance is extremely rare, but may occur. As
an analogy, one would compare an automobile or machine and draw
the distinction between regularly scheduled maintenance and an
accident. The first would probably not lead to noncompliance
but the latter would, but it would be impossible for the roles
to be reversed. A better program would be to encourage the immediate
reporting of non-compliance.
We thank you for the opportunity to submit these comments.
We hope that they will assist the Department to fully consider
the proposed changes in conjunction with recent judicial decisions
and to bring the proposed regulations into compliance with law.
Very truly yours,
Bath Petroleum Storage Inc.
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