How to Manage the Risk?
Many parties in New York City, at all levels of government and within the private and nonprofit sectors, contribute to safe management of hazardous materials. This section presents examples of their efforts.
Strategies for managing risks posed by chemical, biological, radiological, and nuclear (CBRN) releases include extensive regulatory controls on fixed sites and transportation; carrying out pertinent studies and industry safety initiatives, emergency planning, community preparedness, and education efforts that help workers better manage hazardous materials and help communities understand the risks.
Since the beginning of the environmental movement in the 1960s, many federal laws were created to effectively regulate the storage and use of hazardous materials. These laws are delegated to state and local governments for effective implementation and enforcement. What follows is a list of regulations enacted from all levels of government.
Federal laws and programs that are most important to manage hazardous materials releases are listed below.
The Clean Air ActIn 1970, Congress passed the Clean Air Act, which is designed to limit air pollution on a national level.
The Clean Water ActIn 1972, Congress enacted the Clean Water Act, which established the basic structure for regulating pollutant discharges into the nation’s waters. The National Pollutant Discharge Elimination System (NPDES) was created in 1972 by the Clean Water Act, establishing a permit program that limits the discharge of pollutants through a point source into the water. The Environmental Protection Agency (EPA) often delegates to state governments. In New York State, NPDES is implemented by the New York State Department of Environmental Conservation (NYSDEC), which carries out the many permitting, administrative, and enforcement aspects of the program.
The Resource Conservation and Recovery ActEnacted in 1976, the Resource Conservation and Recovery Act gives the EPA authority to control hazardous waste from beginning to end, including generation, transportation, treatment, storage, and disposal. This federal law is incorporated into New York State regulations and implemented by NYSDEC.
SuperfundThe Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was passed in 1980 and amended in 1986 to provide for the clean-up of some of the most polluted industrial sites in the United States. CERCLA gave the EPA the authority to hold responsible parties accountable for funding the cost of investigation and remediation of Superfund sites.
Emergency Planning and Community Right-to-Know Act (EPCRA)In 1986 Congress passed the Emergency Planning and Community Right-to-Know Act. The EPCRA requires industries to report on the storage, use, and releases of hazardous substances to federal, state, and local governments.
The Resource Conservation and Recovery Act (RCRA)The Resource Conservation and Recovery Act (RCRA), administered by the EPA, is a public law that guides the proper management of hazardous and non-hazardous solid waste.
Biological Safety Levels (BSL)The Centers for Disease Control and Prevention (CDC) established Biological Safety Levels (BSL) to manage risk of biological materials releases. The levels establish protection controls for the containment of microbes and biological agents in specific labs. The four safety levels are based on infectivity (the ability of a pathogen to establish an infection), severity of disease, transmissibility, and the nature of the work conducted.
Nuclear Regulatory Commission (NRC)
The NRC promulgates regulations that control the use of radioactive materials in industry, academia, and medicine (Title 10 of the Code of Federal Regulations, various Parts). The nuclear power industry is regulated and inspected by the NRC also under additional parts of the Code.
U.S. Department of Transportation (DOT)DOT maintains the regulations that stipulate the proper packaging, labeling, and transport of radioactive materials, which includes radioactive waste. More information is provided below under Regulatory Controls on Transportation of Hazardous Materials.
In 1970, NYSDEC was created to regulate and enforce the state environmental conservation laws and to coordinate many state programs to ensure that communities and resources are protected from hazardous materials releases. Important NYSDEC initiatives are listed below.
Toxic Release Inventory
NYSDEC collects Toxic Release Inventory data reported by facilities as required by federal law. NYSDEC requires that environmentally protective design and operational standards are maintained at storage and disposal facilities.
State Pollutant Discharge Elimination System (SPDES)
SPDES is designed to eliminate the pollution of New York waters by point sources (points of pollution discharge) and by implementing the NPDES provisions of the federal Clean Water Act to maintain the highest possible quality of water.
Petroleum Bulk Storage (PBS) Program
The NYSDEC PBS Program applies to any facility that has a combined petroleum storage capacity in excess of 1,100 gallons, for both above and below ground tanks. In addition, NYSDEC also regulates motor fuel and waste oil in underground tanks that are 100 gallons or larger. Facilities must be registered with the state and managed in compliance with applicable regulations for petroleum handling and storage.
Chemical Bulk Storage (CBS) Program
The NYSDEC CBS Program applies to any facility storing a hazardous substance that is listed in 6 NYCRR Part 597 in an above-ground storage tank that is larger than 185 gallons, in an underground storage tank of any size, or in a non-stationary tank used to store 1,000 kg or more of a regulated substance for a period of 90 or more consecutive days. All of these facilities must be registered to store and handle hazardous substances.
Standards for Management of Used Oil
The NYSDEC Standards for Management of Used Oil establish the management and marketing standards and permit requirements for the following:
- Used oil generators, transporters, and transfer facilities
- Processors and re-refiners
- Facilities that burn used oil for energy recovery
The NYSDEC Major Oil Storage Facility (MOSF) program licenses facilities that store all types of defined petroleum products, including (but not limited to) waste oil. Waste oil requirements apply to any size bulk storage of waste oil on a commercial premises.
These standards apply to facilities that store 400,000 gallons or more of petroleum in aboveground and underground storage tanks. These facilities must be licensed by NYSDEC and be managed in compliance with applicable regulations for petroleum storage and handling.
Vessels that transfer petroleum to another vessel while operating in the waters of New York State must also obtain a MOSF license prior to making these transfers.
NYSDEC’s Inactive Hazardous Waste Disposal Site (IHWDS) Program, or State Superfund, is New York State’s program to identify, investigate, categorize, and clean up sites having consequential amounts of hazardous waste. NYSDEC maintains the Registry of Inactive Hazardous Waste Disposal Sites. Site clean-ups are prioritized according to the threat that a site poses to human health and the environment.
Department of Health (DOH) and Department of Environmental Conservation (DEC)
In New York State, the DOH regulates the use of radioactive material through a licensing and inspection program. The licensees are required to abide by license requirements that restrict the purchase of radioactive material to stipulated isotopes and total inventory amounts. Use of the materials is also restricted to prevent unnecessary releases to the occupational or public environment. The DEC restricts release of radioactive materials to the water and atmospheric environments through a permitting system augmented by a reporting and inspection program.
New York City regulates hazardous materials through a series of local laws and programs.
Local Law 26 of 1988
Local Law 26 of 1988, the local Emergency Planning Community Right to Know (RTK) Law, designated New York City Department of Environmental Protection (DEP) as the authority charged with regulating the storage, use, and handling of hazardous materials that are above specified thresholds. DEP collects the information reported from facilities and archives it within the Citywide Facility Inventory Database.
Facilities must submit a risk management plan to DEP when Extremely Hazardous Substances (EHS) or regulated toxic substances are present at or above federally determined levels.
DEP inspects facilities to determine if they comply with chemical inventory reporting, storage, and labeling requirements. Facilities that are not in compliance receive notices of violation and are required to take corrective action. In 2018, DEP conducted 10,126 facility inspections and issued 861 Notices of Violation to facilities for non-compliance with reporting requirements.
Local Law 143
Local Law 143, administered by DEP, requires businesses to comply with spillage prevention requirements for facilities located in the Special Flood Hazard Area. This law also permits DEP to perform inspections and issue violations for facilities that do not adhere to the rules.
In the event of extreme weather, DEP will notify RTK businesses in the floodplain to either secure or remove hazardous materials prior to the event.
Hazardous Substances Emergency Response Law
The New York City Hazardous Substances Emergency Response Law (the “Spill Bill”) directs DEP to respond to releases and potential releases of hazardous materials. The City can order responsible parties to remediate hazardous conditions, and it can issue fines and/or hold them financially responsible for response and remediation costs.
FDNY Fire Code
FDNY's Fire Code, updated in 2014, establishes fire safety requirements for buildings and businesses in New York City. The Code regulates the manufacture, storage, handling, use, and transportation of hazardous and combustible materials.
Solid Waste Transfer Station Oversight
For solid waste transfer stations within the city, the New York City Department of Sanitation (DSNY) manages a program that includes specialized permitting, site plan reviews, and inspections.
NYC Department of Health & Mental Hygiene (DOHMH)
DOHMH regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City. Other licensees fall under the purview of NYS DOH. There are about 375 licensed sites in New York City possessing radioactive material for medical, academic and research purposes. They are inspected once every 1, 2, or 3 years depending on the type of radioactive material and/or radiation generating machine use.
Federal law governs shipments by water, highway, rail, air, and pipeline. Agencies at all levels of government implement and enforce these regulations.
Federal agencies primarily responsible for regulating transportation of hazardous materials are listed below.
U.S. Department of Transportation
U.S. Department of Transportation (USDOT) regulations govern the transportation of hazardous materials by highway. USDOT requires that bills of lading identify the materials being shipped, and specifies standards for packaging materials, how packages should be marked and labeled, and types of placards required on vehicles. Under federal rules, each state may designate the highway routes on which hazardous materials can be transported.
As protection against oil spills along railways, USDOT has proposed new safety rules for rail shipments of crude oil. The new rules would require railroad tank cars to have better brakes and thicker steel walls than typical railroad cars. These rules would also lower speed limits, limit routes through populated areas, and require increased testing of the properties of the hazardous liquids being transported.
USDOT Pipeline Hazardous Materials Safety Administration (PHMSA) oversees, regulates, and enforces pipeline safety to minimize spills of natural gas and petroleum products.
National Transportation Safety Board
The National Transportation Safety Board’s Office of Railroad, Pipeline, and Hazardous Materials Investigations examines accidents involving hazardous materials transport across all modes, and issues safety recommendations to federal and state regulatory agencies, industry and safety standards organizations, carriers and pipeline operators, equipment and container manufacturers, producers and shippers of hazardous materials, and emergency response organizations.
Federal Aviation Administration
The Federal Aviation Administration's (FAA) Office of Hazardous Materials Safety enforces regulations and inspects freight and commercial aircraft. U.S. air carriers are required to institute an FAA-approved hazardous materials training program prior to transporting hazardous materials.
United States Coast Guard
For marine transport of hazardous materials, the USCG’s Hazardous Materials Division develops and maintains regulations, standards, and industry guidance to promote safety and protect property and the environment. This division provides technical assistance to other USCG units, government agencies, foreign governments, industries, and the public.
New York State Department of TransportationIn New York City, the New York State Department of Transportation enforces USDOT regulations on roads and highways. All roadway enforcement agencies have the ability to enforce these regulations, including the New York State Police.
NYSDEC Hazardous Waste Manifest SystemNYSDEC, through its Hazardous Waste Manifest System, issues waste transportation permits and tracks hazardous material movement, including where the hazardous materials are generated, transported, and disposed of.
New York State Navigation LawThe NYS Navigation Law includes provisions covering oil spill prevention, control, and compensation.
Port Authority of New York and New JerseyThe Port Authority of New York and New Jersey (PANYNJ) enforces USDOT regulations on commercial vehicle shipments of hazardous materials via its bridges and tunnels, including the George Washington Bridge, Bayonne Bridge, Goethals Bridge, Outerbridge Crossing, Lincoln Tunnel, and Holland Tunnel. PANYNJ also inspects cargo at its port facilities and airports.
NYPD Highway PatrolNYPD Highway Patrol Motor Carrier Safety Units have the authority to enforce USDOT regulations on New York City roads and highways.
Resilient Industry initiativeNYC DCP launched the Resilient Industry initiative to assess the degree to which New York City’s industrial areas were vulnerable to flooding and to propose strategies that individual businesses and the City can implement to increase the resiliency of industrial areas and their surrounding communities. The study provides physical, regulatory, and operational strategies to protect businesses and the environment and includes the following flood-specific recommendations:
- For hazardous materials that are stored on unenclosed portions of industrial properties, outdoor shelving should be adequately anchored and incorporate enhanced joinery connections and brace corners. Shelving should include straps and cables to tie down materials.
- To prevent spills and leaks, industrial facilities should include flood-resilient storage for fuel tanks and hazardous materials. Specific strategies include wheeled mounts for fuel tanks and other equipment so that it can be moved to higher ground prior to a flood event, using containment bunds beneath stationary hazardous-material barrels and tanks to contain spills and leaks and fastening them to the ground to anchor them during a flood, using acid cabinets to store small amounts of hazardous materials, and implementing and regularly testing facility preparedness plans to reduce the risk of hazardous materials spills.
- Incorporate specific flood-resilient standards that apply to open storage within Appendix G of the New York City Building Code.
NYSDE Drum Recovery ProgramThe NYSDEC Drum Recovery program focuses upon the recovery of abandoned drums containing non-flammable petroleum products such as waste oil, heating oil, and diesel. The NYSDEC receives reports of these drums from the NYSDEC Spills Hotline. According to the volume of calls received, the NYSDEC schedules routine “drum runs” where a NYSDEC contractor removes the drums and disposes of them properly.
Waterfront Justice ProjectAt the community level, the New York City Environmental Justice Alliance's (NYC-EJA) Waterfront Justice Project advocates for the implementation of additional technical and financial strategies to help businesses comply with environmental regulations, respond to the impacts of climate change, and build more resilient working waterfronts.
NYC Industrial Waterfront ProjectThe NYC Industrial Waterfront Project, a collaboration among NYSDEC, the New York State Pollution Prevention Institute, and NYC-EJA, has assessed the vulnerabilities, needs, and capacities of local industrial businesses in the South Bronx Significant Maritime Industrial Area. The project goals are to increase the capacity of these local businesses to adapt to climate change and prevent environmental pollution, and to identify technical and financial resources to facilitate this.
Grassroots Research to Action in Sunset ParkThe Grassroots Research to Action in Sunset Park (GRASP) is a community-research partnership comprised of NYC-EJA, UPROSE, The LifeLine Group, and the RAND Corporation. The partnership conducts research to help develop and support community-based actions to address environmental health risks in Sunset Park. GRASP’s current initiative is focused on helping small businesses, specifically auto shops, implement chemical security practices to reduce the threat of chemical releases.
South Bronx Community Resiliency AgendaThe South Bronx Community Resiliency Agenda is an initiative organized by NYC-EJA with THE POINT CDC, which engages local communities to create a comprehensive climate resiliency agenda that strengthens the physical and social resiliency of the South Bronx.
In the event of a chemical release either on a fixed site or during transport, the City has many plans and protocols to address life safety and site cleanup. The following is a summary of agency roles and protocols in responding to a hazardous materials (HAZMAT) incident.
FDNY HAZMAT Response
FDNY is responsible along with DEP, NYSDEC, and NYPD for responding to HAZMAT incidents. These responsibilities include containing, confining, and capturing as much of the material as possible and limiting the impact on the public and environment.
DERTA HAZMAT Emergency Response
DEP's HAZMAT Specialists are on call 24/7 to respond to reported incidents. Their response includes performing chemical analyses at response sites, determining zones of delineation, and developing and implementing strategies on proper containment, mitigation, and disposal of hazardous materials, as well as decontamination procedures.
NYSDEC Spill Response Program
NYSDEC responds to reports of petroleum and other HAZMAT releases. The nature of the response is based upon the type of material spilled, its potential environmental damage, and the degree to which public safety is at risk. The public is able to notify NYSDEC about releases by calling the NYS Spill Hotline, a 24-hour, toll-free hotline to report oil or chemical spills.
In addition, NYSDEC administers several related databases:
- The Spills Incident Database, which is a comprehensive list of approximately 50,000 current and historical spills throughout the New York City area
- The Petroleum Bulk Storage Database, which has approximately 26,000 listings for Petroleum Bulk Storage locations throughout the New York City area
New York City Department of Health and Mental Hygiene (DOHMH)
DOHMH's role in a HAZMAT incident includes:
- Monitoring the Poison Control Center Hotline for incoming information on (potential) CBRN incidents
- Assessing the public health impact or risk for CBRN hazards
- Contributing subject matter expertise to messages issued by NYCEM
As an example, DOHMH is a planning partner with other agencies in the Radiological Response and Recovery Plan (RRRP). One major function under this plan is to provide consultative services to other agencies, particularly for first responders, regarding the interpretation of radiation data in order to make first responder and public health safety assessments.
NYC Emergency Management
In response to a CBRN incident, NYCEM's role is overall coordination with city, state, and federal agencies, creating and disseminating notifications to the public, and coordinating consequence management operations. If an area is affected by a CBRN release, NYCEM identifies and maps its critical facilities, vulnerable populations, and infrastructure.
In the case of an oil spill, NYCEM coordinates the Pump Out Protocol – Residential Oil Contamination (POP-ROC), which supports the flow of information to NYSDEC about oil spill conditions and ensures the appropriate coordination of resources for dewatering and recovery activities in oil-contaminated locations.
OER Site Preparation Planning
Prior to and after coastal storm events, the New York City Office of Environmental Remediation (OER) conducts inspections and secures brownfield cleanup project areas that may be vulnerable to a HAZMAT release. Two days after Hurricane Sandy hit New York City, OER conducted inspections of 80 such sites. The results indicated that the cleanup methods promoted by OER were effective in preventing pollutant release from the brownfield sites to the surrounding communities.
Examples of long-term strategies to assist businesses and the public in preparing for CBRN hazards in New York City include informing affected businesses about relevant regulations and facilitating compliance with permitting requirements, educating the general public about health and occupational hazards associated with hazardous materials, and improving community access to information about contaminated sites.
One example is the annual RTK training required of City agency employees. The training explains the types of hazardous substances to which employees could be exposed and their legal rights if this happens during a CBRN release.
After Hurricane Sandy, DEP created a brochure for industrial properties in the floodplain to recommend the best ways to store hazardous materials and to prevent spills during a flood event. During inspections of these facilities, DEP will recommend best practices to reduce the risk of a chemical spill, including elevating chemicals off the ground, storing chemicals in areas less likely to flood, and securing storage cabinets.
As part of the Waterfront Justice Project, NYC-EJA and NYSDEC released their publication, Environmental Best Management Practices for Auto Repair, Auto Body, and Auto Salvage Industries. This comprehensive plan provides strategies to prevent HAZMAT spills, avoid pollution, and safely manage hazardous waste.
NYCEM also created the Plan Now NYC website to educate and prepare New Yorkers on strategies and tactics to plan for and survive a terrorist-related event. The website includes hazard information for biological, chemical, and radiological attacks and what to do following these types of events.Link: Chemical, Biological, Radiological, and Nuclear Releases (CBRN) Bibliography