PETROLEUM STORAGE INC.
May 20, 2002
Angus Eaton, PE
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.
(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.
(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:
750-1.6 Applications to obtain SPDES Permits.
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.