In June 2023, the New York State Department of Environmental Conservation (NYSDEC) adopted revisions to its petroleum bulk storage regulations 6 NYCRR Part 613. The amended regulations become effective on October 17.

According to NYSDEC, the revisions are “principally aimed at harmonizing the existing State requirements with the federal requirements….” However, certain revisions addressing responsibility for reporting suspected or actual leaks appear to go beyond merely promoting consistency.

NYSDEC amended 6 NYCRR § 613-2.4 to specify which persons are subject to the leak reporting requirements. Notably, the reporting requirements now apply to “any other party and its contractors who have been retained as part of a business transaction relating to the facility.” Federal regulations do not expressly include an analogous requirement.

In its “Assessment of Public Comments for Part 613 (Petroleum Bulk Storage–PBS),” NYSDEC states the entities listed as being responsible for reporting suspected or actual spills “are the parties likely to discover a spill when it occurs, and are thus required to report it to DEC.” NYSDEC goes on to state that the inclusion of “contractors” is “intended to highlight that such parties are acting on behalf of the owner/operator.”

These revisions expand the scope of persons that must report a suspected or actual release. Having the reporting requirements apply to “any other party and its contractors who have been retained as part of a business transaction relating to the facility” has the potential to significantly impact the due diligence process and the obligations that may arise in the event that a suspected or actual release is identified. Accordingly, owners and prospective purchasers should work closely with environmental professionals and legal counsel to ensure the due diligence scope is carefully crafted.