N.Y. Comp. Codes R. & Regs. tit. 6 § 610.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 610.5 - Letter of certification

(a) The department shall issue a letter of certification for an onshore major facility when:

(1) the applicant has adequate plans, or is in the process of drafting adequate plans, for the prevention and control of discharges, and the containment and removal thereof when a discharge occurs, while giving first priority to minimizing environmental damage;

(2) the applicant has implemented or is in the process of implementing the plans. The factors to be considered by the department in evaluating the implementation of the plans include, but are not limited to, the length of time the plans have been in existence, when the plans are expected to be fully implemented, and the past and future expenses in implementation of the plans;

(3) the applicant can provide the necessary equipment to prevent, contain and remove discharges of petroleum; and

(4) the applicant has implemented, is in the process of implementing, or is in compliance with the requirements of sections 613.2 through 613.9, inclusive, and sections 614.2 through 614.14, inclusive, of this Title, for the storage and control of petroleum, as applicable to the particular facility.

(b) Any denial of a letter of certification for an onshore major facility shall be accompanied by a statement of the reason or reasons for such denial.

(c) Conditions to the issuance of a letter of certification may include:

(1) a statement that the owner or operator shall at all times maintain in good repair any facilities for the prevention and control of discharges and the containment and removal thereof when a discharge occurs;

(2) a statement that no major addition, major changes or major rehabilitation in the structures or equipment of the onshore major facility, which would materially affect the potential for a petroleum discharge, shall occur except in accordance with plans approved in advance of construction by the department;

(3) a schedule for implementing the plans within a reasonable period of time consistent with the goals of the act;

(4) a statement that the department shall promptly be furnished with any amendments or changes to any plan submitted with, or referred to in, the application for a letter of certification; and

(5) such other conditions as the department determines are necessary to giving first priority to minimizing environmental damage.

(d) Contents of letter of certification. A letter of certification issued by the department shall include, but not be limited to, the following:

(1) the name and address of the applicant;

(2) a statement that the department has received a completed application; and:

(i) plans for the control, containment and removal of discharges, or a schedule of when such plan or plans is/are to be submitted; or

(ii) plans for the control, containment and removal of discharges; and has examined them and bases the letter of certification, with or without conditions, upon an evaluation of the information contained in such application, plans, subsequent written communications, if any, and the environmental setting of the onshore major facility; or

(iii) in addition to subparagraph (ii) of this paragraph, has made onsite inspections of the onshore major facility (or relies upon reports from the inspection of the onshore major facility by others);

(3) a statement, and the grounds for the statement, that the onshore major facility has implemented, or is in the process of implementing, State and Federal plans and regulations for the control of discharges, and the containment and removal thereof when a discharge occurs;

(4) a statement, and the grounds for the statement, that the onshore major facility has implemented, is in the process of implementing, or is in compliance with the requirements of sections 613.2 through 613.9, inclusive, and sections 614.2 through 614.14, inclusive, of this Title, for the storage and control of petroleum, as applicable.

(5) a statement, and the grounds for the statement, that the onshore major facility can provide necessary equipment to prevent, contain and remove discharges;

(6) a statement of any conditions that the department has requested that the Department of Transportation insert in the license; and

(7) a statement that future letters of certification needed for license renewals will be based on, among other factors, the history of spills and discharges at the onshore major facility, the history of compliance with the applicable provisions of Parts 613 and 614 of this Title as set for above, a review of submitted plans, inspections of the onshore major facility, and additional guidelines subsequently issued.

(e) Appeals.

(1) An applicant may appeal the denial of a letter of certification or any condition to the license inserted on the request of the Department of Environmental Conservation.

(2) In the case of all denials of letters of certification to existing onshore major facilities, or refusals to renew a letter of certification, for which application or reapplication has been timely made, or, in the case of the insertion of any special conditions or requirements in a license at the request of the Department of Environmental Conservation, and where the applicant properly appeals to the commissioner, the letter of certification shall be deemed issued or renewed or the special condition or requirement shall not be valid, as the case may be, during the appeal period until the final determination by the commissioner.

(3) In all other cases, the letter of certification shall be deemed denied during the appeal period.

(4) The method of appeal shall be as follows:

(i) a notice stating that the applicant appeals the determination of the department, along with a statement of the facts or reasons why the applicant feels the department's determination was not warranted, shall be sent to the commissioner by certified or registered mail; and

(ii) the notice and statement of reasons shall be posted within 30 days of receipt by the applicant of the department's determination.

(5) Upon receipt of such notice of appeal, the commissioner shall appoint a hearing officer who shall conduct a hearing in accordance with the provisions of the State Administrative Procedure Act and shall provide the commissioner with findings of fact and a recommended determination.

(6) The hearing shall be held within 60 days of receipt of the notice of appeal by the commissioner.

(7) The hearing officer's report and recommendation shall be transmitted to the commissioner within 30 days of the completion of the record of hearing, including a full transcript.

(8) The commissioner's final determination shall be made within 30 days of receipt of the hearing officer's findings of fact and recommendations.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 610.5