Wednesday, August 24, 2016

NY DEC Emergency Rule Making Restricting Use Of Perfluorooctane Related Chemcials

The New York State Department of Environmental Conservation (DEC) filed a Notice of Emergency Adoption and Proposed Rule Making to classify perfluorooctanoic acid (PFOA-acid), ammonium perfluorooctanoate (PFOA-salt), perfluorooctane sulfonic acid (PFOS-acid), and perfluorooctane sulfonate (PFOS-salt) as hazardous substances at the request of the New York State Department of Health (NYSDOH).

This rule making also provides time for facilities storing fire-fighting foam containing one or more of these newly listed hazardous substances to properly dispose of it and provides time for firefighting operations to find replacement foams. This proposal also corrects the tables of hazardous substances by providing units for reportable quantities.

The temporary emergency rule was effective on April 25, 2016, while the state finalizes the proposed amendments to 6 NYCRR Part 597, Hazardous Substances Identification, Release Prohibition, and Release Reporting. DEC has concluded that these substances meet the definition of a hazardous substance based upon the conclusion of NYSDOH that the combined weight of evidence from human and experimental animal studies indicates that prolonged exposure to significantly elevated levels of these compounds can affect health and, consequently, pose a threat to public health in New York State when improperly treated, stored, transported, disposed of or otherwise managed. NYSDOH scientists have concluded that it is essential to list these chemicals as hazardous substances.

Once substances are determined to be hazardous substances, DEC regulates their handling and storage and has authority to remediate sites contaminated with them. The Chemical Bulk Storage regulations (6 NYCRR 596-599) provide standards for the proper handling and storage of bulk quantities of hazardous substances to prevent spills and releases to the environment, prohibit the release of hazardous substances to the environment, and require the reporting of certain releases of hazardous substances to DEC. Certain facilities that store hazardous substances must apply to DEC for a registration certificate to operate.

A new provision, paragraph 597.4(a)(3), will allow entities with fire-fighting foam the time necessary to determine if stored foam contains one or more of these hazardous substances. If the stored foam contains one of these substances, the facility would not be allowed to use the foam for fire-fighting after April 25, 2017. It may be used for fire-fighting until then but not for any other purpose such as training. Foam that is prohibited for use after April 25, 2017 should be safely disposed in accordance with federal, state, and local requirements. Replacement foam may not contain a hazardous substance at a concentration that would result in the release of more than the reportable quantity (one pound) when used as a fire-fighting foam.

Caltha LLP provides specialized expertise to clients nationwide in the evaluation environmental rules, developing EHS compliance procedures, and preparing cost-effective EHS management programs. For further information contact Caltha LLP at or Caltha LLP Website 

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