New York LNG regulations
After a de facto moratorium on LING facilities following a catastrophic LNG blast on Staten Island over 40 years ago, the New York Department of Environmental Conservation has floated some regulations to regulate LNG facilities in the state. This article addresses the history of LNG regulations in New York and comments on some aspects of the regulations proposed. It also addresses some of the hazards of LNG facilities.
- 1 Comments on Proposed Part 570, DEC Regulations for LNG Facilities
- 2 Summary of Concerns in a Historical Context
- 2.1 1. Ambiguity of The Scope of the Proposed Regulations Can Lead to Abuse
- 2.2 2. Lack of Siting Criteria Could Allow LNG Facilities Anywhere in the State
- 2.3 3. Regulations Not Limited to Small LNG Facilities
- 2.4 4. No Regulation of Methane Emissions
- 2.5 5. Financial Security and Operator Competency
- 2.6 6. Lack of Natural Resource Protection
- 2.7 7. Lack of Requirements for Monitoring, Reporting, and Maintaining of Records
- 2.8 8. Inadequate Program Fee Structure
- 2.9 9. Insufficient Emergency Preparedness Criteria
- 2.10 10. Inconsistent Rules Effecting LNG Transport
- 3 Articles and Resources
Comments on Proposed Part 570, DEC Regulations for LNG Facilities
A draft of the proposed regulations has been published on the New York DEC's website 
The public is encouraged to respond to the proposed regulations.
DEC will conduct public information meetings to present the proposed rule making and respond to questions prior to the public hearing. These meetings will be held as follows:
Wednesday, October 16, 2013 at 1:00 PM - 3:00 PM New York State Fairgrounds 581 State Fair Blvd, Martha Eddy Room Syracuse, NY
Wednesday, October 30, 2013 at 10:00 AM - 12:00 PM NYSDEC 625 Broadway, Room 129 Albany, NY
DEC invites all persons, organizations, corporations and governmental agencies to attend the hearing and submit either written or oral statements. It is requested that oral statements also be submitted in writing. DEC will give equal weight to written and oral statements. Since a cumulative record will be compiled, it is not required for interested parties to attend the hearing. There will be an Administrative Law Judge from NYSDEC's Office of Hearings and Mediation Services presiding over the Hearing.
Speakers can sign up in advance - Submit contact information to this same email box: email@example.com and include "Speaker - Part 570 Hearing" in the subject line.
Wednesday, October 30, 2013 at 2:00 PM NYSDEC 625 Broadway, Room 129 (Capacity of 125) Albany, NY
Written comments on the proposed regulations will be accepted until November 4, 2013 at 5:00 PM.
Send comments to:
Division of Environmental Remediation
625 Broadway, Albany, NY 12233-7020
Phone (518) 402-9553
Summary of Concerns in a Historical Context
*It is important that the Department of Conservation, Governor, and state legislators fully appreciate the historical context in which these rules have been proposed.
It is noteworthy that the construction of new LNG facilities was expressly prohibited statewide by law for 26 years following a horrific explosion at a LNG storage facility on Staten Island which killed forty people on February 10, 1973. It is also noteworthy that prior to that accident, there had been significant opposition to the Staten Island LNG facility by a group of concerned citizens known as B.L.A.S.T. (Bring Legal Action to Stop the Tanks) who persistently warned of dangers posed by the project. If those concerns had been heeded by government and industry, it is possible that this deadly accident could have been prevented. Except in New York City where a moratorium remains in effect until 2015, the legislative prohibition on LNG facilities ended in 1999. Given the history of LNG accidents this was the responsible approach. However, a “de facto” statewide ban still exists because DEC has not yet established a permitting program. In 1976, the legislature passed Environmental Conservation Law (ECL) Article 23, Title 17 full text of the law  requiring rules for the siting of LNG facilities, but for 37 years, the DEC has failed to take action on adopting any standards for LNG facilities. This apparently willful reluctance to craft responsible rules and regulations is similar to the DEC's treatment of oil and gas drilling regulations: they have been side-stepped, lost, and shelved for years.
If proposed rule 6 NYCRR Part 570 is adopted and withstands legal challenge, the current de facto ban on new LNG facilities which has lasted four decades will be lifted; therefore, the implications of DEC’s current actions must not to be taken lightly.
Considering New York’s tragic history with LNG, it should be expected that DEC would propose only the strongest, most comprehensive set of regulations to address all potential impacts to the environment, public health, and safety. Likewise, so as not to repeat mistakes of the past, it is reasonable to expect that DEC would establish a robust, well-defined program describing how reporting, inspection, and enforcement will occur, coupled with clear requirements for operators to maintain financial security to cover all contingencies. Finally, learning from the tragedy in 1973 which might have been prevented if citizen concerns had not been ignored, one would expect DEC to approach rule-making with the greatest respect and attention to public input, invoking a transparent process which fully engages the public with hearings throughout the state and provides sufficient time to implement necessary revisions.
The DEC’s response to LNG regulations has been sorely deficient. The set of LNG rules proposed for adoption as 6 NYCRR Part 570 are not only woefully inadequate, but largely non-existent, lacking any siting content relating to facility size or distance from populations, any measurable criteria affecting the protection of natural resources, any limit on fugitive emissions or the intentional release of methane gas, or any definitive requirement for financial security to address liabilities. There are no requirements for record keeping pertaining to equipment maintenance or safety, and except for LPG spills there are no requirements for the reporting of accidents or environmental damage. Nor have any specific criteria been identified for assessing emergency preparedness within the affected community. With respect to the rule-making process, it is apparent that DEC has chosen to treat adoption of the proposed regulations as a perfunctory exercise with the scheduling of just two information meetings and a single public hearing. Furthermore, relegation of rule-making to the Remediation Division of DEC suggests that attention will be limited to accident management, rather than prevention of harm to the environment and communities.
1. Ambiguity of The Scope of the Proposed Regulations Can Lead to Abuse
- Clarification is needed regarding the scope of LNG facilities which could be permitted pursuant to the proposed rules.
In its September 26th press release, DEC loosely states that “these facilities include truck fueling stations and LNG storage areas.” A careful reading of the proposed rules and supporting documentation by DEC, however, indicates that the range of potential projects is much larger than what this statement implies.
Subsection 570.1(c)(9) of the proposed rules defines "LNG facility" broadly as “any structure or facility used to store liquefied natural gas in a tank system, or other storage device or to convert liquefied natural gas to natural gas.” This definition clearly is not limited to truck fueling stations; and while conversion of LNG to natural gas is mentioned, the definition does not expressly preclude liquefaction as part of the storage process or a component of activity that could occur at a LNG storage facility. Furthermore, in its Regulatory Impact Statement – 6 MYCRR Part 570 (Section 3. Needs and Benefits), DEC refers to findings of a 2011 report which estimated the type and number or LNG permits that may be issued if the proposed rules are promulgated, specifically stating that such facilities could include:
(1) LNG import/export terminals
(2) peak shaving plants that produce/store/vaporize LNG
(3) regional LNG production facilities
(4) LNG production at natural gas wells
(5) LNG production at facilities with access to natural gas pipelines
(6) LNG fueling facilities without onsite production of LNG
Within the Regulatory Impact Statement, DEC even cites as an example a company which is interested in a developing a liquefaction facility in the southern tier of New York. Facilities which transfer LNG to marine vessels are also referenced in the proposed rule (subsection 570.2(d)(2)).
Referring to its 2011 study, DEC estimates that 21 new LNG facilities would be permitted within the first five years if the proposed rules are promulgated. While truck fueling stations likely represent many of the facilities constructed initially, it is misleading for DEC to issue public statements that fail to convey the full spectrum of projects that could materialize in the future. It is important to note that the proposed rules include no restriction on the size or location of facilities. Add to this a growing interest by industry to develop LNG import and export facilities (including deep-water ports) and uncertainty regarding the role or degree of involvement federal regulators will have in the future, there is understandably significant concern about exactly what sort of projects DEC might review under the broad jurisdiction that these rules appear to invoke.
It is essential that DEC clarify the full scope of potential LNG facilities that would be subject to this proposed permitting process and how the Department intends to interpret its regulatory latitude, especially with respect to facilities in which both state and federal jurisdiction apply. If adopted, the proposed rules would persist for more than five years, therefore predictions about the number or type of applications likely to be submitted during that short timeframe offers the public little comfort or insight into what may be approved in the future. If DEC does not intend the proposed rules to cover some of the facilities enumerated above (such as import/export facilities or facilities where LNG is produced) then this should be expressly stated in the rules and discussed within the accompanying Regulatory Impact Assessment and other support material.
2. Lack of Siting Criteria Could Allow LNG Facilities Anywhere in the State
- The proposed regulations fail to propose any objective siting criteria for LNG facilities anywhere in the state. No setbacks from existing structures or uses are suggested.
- This lack of setbacks for LNG infrastructure mirrors the lack of setbacks for gas production infrastructure in New York.
- Unless federally licensed most LNG storage and refueling facilities should be subject to local land use ordinances.
According to subsection 570.1(a) of the proposed rule, “The purpose of this Part is to establish criteria for the siting of liquefied natural gas (LNG) facilities and require such facilities to obtain a permit from the department pursuant to Article 23, Title 17 of the Environmental Conservation Law…”
The need for siting criteria is also discussed by DEC in its Regulatory Impact Statement – 6 MYCRR Part 570 (Section 1. Statutory Authority) which references the LNG enabling statute. Referring to ECL Section 23-1719, DEC writes in particular:
The statute emphasizes the need to address the storage, transportation and conversion of LNG to natural gas to minimize the siting of these facilities in residential areas or in proximity to contiguous populations and to protect such areas from the potential hazards associated with transportation of LNG.
Furthermore, referring to ECL Section 23-1719, DEC writes:
The State's policy to encourage industrial, commercial, residential and community development which provides the best usage of land areas, maximizes environmental benefits and minimizes the effects of less desirable environmental conditions requires that DEC develop a regulatory program that gives due consideration to the appropriate location for certain types of facilities. In the case of LNG, the LNG statute places particular emphasis on the need to avoid the siting of LNG facilities in residential areas due to the volatile nature of liquefied natural gas.
In light of this, it is disturbing that the proposed rules fail to include any measurable siting criteria, particularly with respect to the appropriate distance of facilities from populations and sensitive land uses such as residents, schools, day-care centers, businesses, and places of assembly. The proposed rules require that applicants submit information on land use and population within one half mile of proposed facilities; however from a regulatory standpoint, since the rules contain no requirements or objective criteria relating to appropriate distances from adjacent people and property, it is impossible for the public to assess what protection, if any, can be expected.
Indeed subsection 570.2(d) of the proposed rules titled “Siting and Operation of Facilities” [570.2(d)] contain only four sentences which defer to National Fire Protection Association (NFPA) codes, NFPA 59A. These industry standards address certain aspects of production, storage, and handling but do not substantively address siting relative to various land uses and populations which may be located near facilities that are proposed. The relative appropriateness of proposed facilities is also dependent on capacity and scope of potential activities that could occur on site which affect the magnitude of risk. Consideration include not only the danger of a catastrophic event, but also harm caused by ancillary impacts such as noise, traffic, and fugitive emissions. None of these factors appear to be addressed.
If rules are adopted which could have the effect of lifting today’s de facto forty year state-wide ban on LNG facilities, it is essential that meaningful siting criteria be established to protect people, communities, and the environment. A solid argument exists that because the proposed rules fail to incorporate siting content, they are not responsive to the LNG enabling statute and therefore fails to satisfy legislative intent
3. Regulations Not Limited to Small LNG Facilities
- The permitting authority provided for by the proposed rules is not limited to small facilities.
LNG facilities addressed in these regulations can include very large industrial operations that involve various processing activity, gas flaring, noise, emissions, and waste. The blast radius of an LNG facility is a direct function of size - a larger facility can have a blast radius of several miles. But the DEC proposes no methodology to determine the blast radius as a function of the facility's size - even when the methodology is well understood.
The rules fail to include any limit on the size of facilities (storage capacity and other operations allowed) based on the risk to surrounding populations, property, or the environment. In addition to the danger of a catastrophic event such as explosion or fire, facility size and additional activities that may be permitted (such as re-gasification) affect the magnitude of other impacts like noise, traffic, and emissions. None of these factors have been adequately addressed. Furthermore, on its website, DEC states: "The two types of facilities that DEC expects to permit most frequently include facilities to fuel trucks and facilities that store LNG as a backup heating fuel." But there is nothing in the proposed rules that limit the type of facilities which could be permitted to this. In its Regulatory Impact Statement, DEC even admits that the rules could encompass regional LNG production facilities and import/export terminals, which can be massive.
If rules are promulgated that could have the effect of lifting today's de facto forty year ban on LNG facilities, it is essential that meaningful size criteria be established to protect people, communities, and the environment. The rules should include clear limits on the size of facilities (storage capacity and operations allowed) as a function of proximity to nearby populations and land use. Considering the absence of any meaningful siting or size restrictions, DEC should also exclude LNG production facilities and import/export terminals.
4. No Regulation of Methane Emissions
- The proposed rules fail to address the emission of methane, the venting of which is common-place in LNG operations. Methane, a potent greenhouse gas, is a major contributor to global warming.
In addition to fugitive emissions which are a chronic problem at any facility that handles natural gas, emissions from LNG facilities are a particular concern because the venting (“boiling-off”) of unburned methane is an inherent aspect of LNG storage. The storage of liquefied natural gas is a cryogenic process in which methane is maintained under high pressure and extremely low temperature, typically -161 degrees Celsius (-259 F). Although storage tanks are heavily insulated, they continuously absorb heat from the surround environment; therefore methane must be routinely vented if it is not used to relieve pressure. Venting is also done intentionally as part of a process known as “auto-refrigeration” which uses the change of state caused by evaporation to cool contents that remain in the tank. For this reason, LNG tanks today--whether in transit or storage at a facility--are a constant emitter of natural gas to the atmosphere.
In addition to this, emissions are common as part of re-gasification, which is why flare stacks are often present at LNG facilities. Unlike gas wells which are eventually attached to pipelines for transport and will have to comply with EPA “green completion” standards intended to limit the amount of flaring that can occur, flare stacks at LNG facilities where re-gasification takes place could be in operation indefinitely. At LNG facilities that serve as equipment or vehicle refueling stations, natural gas can also escape to the atmosphere whenever fuel lines are attached and detached.
Considering Governor Cuomo’s emphasis on efforts to address climate change, it is disturbing that the proposed rules fail to require any specific action to avoid or reduce systemic emissions that occur today at LNG facilities. (It should be noted that climate change is a matter in which New York State has professed to be a leader, so the fact that this is not being addressed in other states where LNG is used is not a valid response.) If rules for the permitting of LNG facilities in New York State are promulgated, subsection 570.2(d) should be revised or a new section added to include specific requirements for the recapture of methane vented from LNG tanks, produced as part of the re-gasification process, and potentially lost during refueling. In addition, the rules should contain specific requirements to limit and monitor fugitive emissions from equipment at LNG facilities. Subsection 570.2(b) should also be revised to require that applicants submit specific information regarding measures that will be taken to reduce emissions from the aforementioned sources.
5. Financial Security and Operator Competency
- The proposed regulations fail to require the positive demonstration of financial security to cover liabilities associated with the operation and closure of LNG facilities.
As written, subsection 570.7 (Financial Assurance) states only that financial assurance “may be required by the Department to ensure the proper closure of facilities.” This is followed by the noncommittal statement: “The form and amount of such financial assurance, if any, will be established by the Department.”
To be effective and carry the force of law, regulations need to clearly state what is required, not what might be required. Without this, there is no guarantee that DEC will actually mandate that operators obtain appropriate insurance, bonds, or other security measures to ensure that the public will not have to ultimately front the cost of closing down facilities that the industry abandons. Furthermore, this part of the proposed regulations only refer to financial assurance to address the “closure” of facilities. Although subsection 570.2(b) of the proposed rules requires that applicants provide proof of liability insurance to cover the proposed operations, they are not sufficiently specific to describe the scope of potential damages which must be addressed. If rules for the permitting of LNG facilities in New York State are promulgated, subsection 570.7 should be revised to clearly mandate that owners and operators of proposed projects obtain adequate financial assurance in the form of insurance, bonds, or other security measures to cover all costs associated with the safe operation and closure of facilities and to cover the costs of accidents, environmental damage, and harm to impacted communities or individuals, on or off-site.
The proposed regulations also fail to require the demonstration of operator competency, for example an assessment of past projects, safety records, accident reports or other means of determining whether the facility owner, as well as its employees and contractors, are qualified to operate the proposed LNG facility. The proposed rules, including subsection 570.2(b), should be revised to address this deficiency.
6. Lack of Natural Resource Protection
- The proposed rules contain no substantive requirements pertaining to the protection of natural resources, including land, water, air, or wildlife.
Within subsection 570.2(b) (Permit Application Contents), DEC vaguely states that the applicant must include a description of the possible environmental impacts of the proposed facility and the facility features or procedures to mitigate those impacts.
Lacking any specificity regarding environmental impacts that should be considered, avoided, or mitigated, this essentially allows the applicant to decide what environmental factors to evaluate and what measures, if any, should be implemented to address them. The regulations fail to list or otherwise identify any particular environmental features (such as wetlands, floodplain, species, or habitat) to survey and evaluate, or specific information that must be provided—includes even features that could affect integrity of the proposed facility, such as faults, soils, or slopes. Furthermore, the rules fail to require pre-development assessment or post-development monitoring of natural features and processes that may be negatively impacted by the proposed facility such air and water quality, noise and light, wildlife populations, bird migration, habitat fragmentation, or public conservation lands.
- Even routine venting of LNG facilities can pose a hazard to wildlife. Over 7,500 song birds were gassed recently by such an LNG facility venting in Canada.
Without any specific requirements for information on natural resources that must be included within applications or environmental studies that should be performed, it is not possible for DEC staff to assess application sufficiency. Moreover, because the proposed rules fail to include any measurable criteria for the protection of those natural resources, it is not possible for DEC to credibly determine compliance.
The proposed rules fail to include any regulatory requirements relating to natural resources or processes that must be protected, impacts to avoid, or minimum standards for mitigation that must be provided. Without this, it is not possible for DEC to assess whether acceptable levels of impact have been exceeded and thus meet its statutory obligation of protecting the environment and people of New York State.
If rules are adopted by DEC which could have the effect of lifting today’s de facto forty year state-wide ban on LNG facilities, it is essential that meaningful regulatory content be include to protect natural resources, including but not limited to air and water quality, noise and light, habitat and wildlife populations, listed species, and public lands. If LNG port facilities are proposed, an evaluation of potential impacts to marine life should be required as well. Direct and cumulative impacts should be considered relative to siting, construction, and operation, in addition to potential impacts to the environment and surround area in the event of an accident. Minimum requirements for the mitigation of impacts should also be established.
7. Lack of Requirements for Monitoring, Reporting, and Maintaining of Records
- According to the proposed regulation the only type of accident which must be reported is a LNG spill, defined as the “escape of LNG is liquid form” (subsection 570.8).
The proposed rules contain no other requirements for reporting or maintaining of records pertaining to accidents such as the uncontrolled release of methane in gaseous form, chemical spills, fires, explosions, or human injury. Nor do the proposed rules require the reporting or documentation of wildlife impacts caused by site activity (such as venting or flaring) or any other kind of incident in which environmental harm or contamination may have occurred. There is no requirement in the proposed rules for monitoring and maintaining of records relating to the release of greenhouse gases caused by equipment leaks, intentional venting of methane, or flaring—all of which can impact air quality and climate change. Nor do the proposed rules specifically require that equipment and components (such as valves and fittings) be monitored, inspected, or replaced on a regular basis with maintenance records made available for review by DEC. These measures are essential at an industrial facility involving cryogenic storage where explosive materials are handled at extreme temperatures and pressure, emissions are an issue, and safety is an ongoing concern.
If rules for the permitting of LNG facilities in New York State are promulgated, a robust set of protocols should be included for the reporting of accidents, monitoring of emissions, maintenance of equipment, and the keeping of records.
8. Inadequate Program Fee Structure
In the Summary of Regulatory Impact Statement for Part 570, DEC states that it will recoup the additional costs of administering a regulatory program for LNG through program fees. However, the five-year recurring fee structure listed in subsection 570.2(k) of the proposed rules is grossly inadequate to accomplish this.
The proposed fee structure (three low capacity increments up to 70,000 gallons and a single fee for any volume above this) appears to consider only very small facilities, such as vehicle refueling stations with a capacity of a few thousand gallons. However, individual LNG storage tanks located at LNG terminals or other large facilities can be considerably larger than this. Today individual tanks sizes of 100,000 cubic meters (26 million gallons) or greater are not uncommon. Although DEC may only initially anticipate permits for small facilities, such as truck refueling stations, the proposed set of rules would apply to LNG projects of any size. It is therefore essential that DEC establish a regulatory program and fee structure capable of supporting all activities that may be permitted.
According to the proposed rules, the maximum program fee collected every five years for a facility with capacity greater than 70,000 gallons is merely $2500. This is probably not even sufficient to cover the regulatory costs to DEC for review, permitting, inspection, and enforcement of small facilities. However it is certainly not adequate to cover the expense of providing necessary regulatory oversight of a major operation at an industrial site or port containing extremely large tanks, involving complex refrigeration technology and re-gasification, and that necessitate sophisticated environmental and safety protocols.
- New York is one of the few states without a severance tax on oil and gas. So, by not fully pricing LNG permit fees, the DEC is at least being consistent.
The proposed program fee structure fails ensure that DEC will have the necessary resources and funding to perform its function as a regulatory agency of protecting the environment and people of New York State. DEC should reassess the full set of costs associated with permitting and enforcement (including improvements necessary to address other comments herein) and substantially raise the proposed program fees identified in section 570.2(k). Furthermore, DEC should either restrict the size of facilities that it could permit to less than 70,000 gallons, or substantially expand the proposed set of fee increments to cover the much larger range of LNG facilities that may be considered.
9. Insufficient Emergency Preparedness Criteria
The proposed regulations do not adequately describe obligations of the applicant to ensure that local emergency responders are sufficiently capable of responding to incidents such as fire, explosion, release of LNG, or other accidents that may endanger personnel on site, the surrounding community, or environment.
Under part (9) of subsection 570.2(b) titled “Permit Application Contents”, the proposed rules require that a report be prepared to evaluate the preparedness of fire departments in the area to respond to LNG spills or fire. However the rules contain no criteria for DEC to use in determining adequacy of this report or accuracy of its findings. Likewise, although a cost estimate and proposed schedule for remedying deficiencies is required, the rules fail to clearly stipulate that all deficiencies must be addressed before a permit is granted or operations allowed to commence. It is also concerning that subsection 570.2(b)(9) as written only addresses fire department capability, failing to require an evaluation of the preparedness of other emergency responders and support facilities such paramedics, hospitals, and state or local law enforcement. Subsection 570.3 titled “Site Inspection and Training of Local Fire Department Personnel” requires that permit applicants offer an emergency response training program prior to commencement of operations and annually thereafter. However the rules provide no indication of how comprehensive this training must be, whether participation is mandatory, or to what extent local responders must demonstrate sufficient preparedness to address various types of emergencies before permits are granted or renewed.
If DEC promulgates rules for LNG facilities, objective criteria should be developed and minimum standards for compliance established to determine the adequacy of emergency preparedness. Furthermore, the rules should clearly require that any deficiencies be rectified before a permit is issued or operations commence, and that periodic reevaluation occurs to ensure that preparedness is maintained over time. As part of this, clear requirements should be included in the rules to ensure that the type and quality of training is sufficient to address all potential emergencies, including but not limited to fire. Furthermore, the rules should require that adequate training is not just offered, but actually takes place with sufficient participation and post-training evaluation so that emergency personnel—including fire departments, hazardous material responders, medical personnel, and law enforcement—are adequately prepared to respond to all accidents.
10. Inconsistent Rules Effecting LNG Transport
The proposed rules impose several arbitrary distinctions relative to the interstate and intrastate movement of LNG. These have the effect of rendering inconsistent, difficult to enforce protection of public safety and transportation corridors.
Proposed subsection 570.4 titled “Transport of LNG” prohibits intrastate transport of LNG to LNG facilities unless the route has been certified by the New York State Department of Transportation (subsection 570.4(a)). However this state authority is specifically denied for the interstate transport of LNG which may pass through New York State (subsection 570.4(b)). Similarly, subsection 570.4(b) requires that interstate transport of LNG be comply with all state and federal requirements for the transport of hazardous material. However since this statement is not included in subsection 570.4(a), so it is not clear that DEC intends this requirement to apply to the intrastate transport. Whether LNG is carried from locations originating within our outside of New York State, the relative risks to public safety, roads, and waterways is the same.
In its Regulatory Impact State for the proposed rules (Section 1 Statutory Authority), DEC discussed intent of the state’s enabling LNG statute as well as authority vested in federal agencies including the U.S. Department of Transportation and U.S. Coast Guard. However DEC does not clearly make the case that New York Stated is prevented from establishing regulations relating to the movement of LNG on roads and waterways which are under state jurisdiction (even when the vehicles transporting LNG originate out of state.) Provisions affecting interstate commerce should not be construed so as to interfere with the ability of state and local governments from protecting public safety and the condition of state and local transportation facilities. Establishing standards affecting approved routes which apply differently to vehicles originated within or outside of the state also hinders enforcement, since it may not be readily apparent to law enforcement whether a vehicle carrying LNG on a state or local road originated in New York State or elsewhere. To the extent allowed by law, the proposed rules should require compliance with all federal, state, and local regulations and stipulate that vehicles carrying LNG on state and local roads adhere to routes which meet the approval of both federal agencies and the New York Department of Transportation.
In addition to the above, part (4) of subsection 570.1(d) titled Exemptions states that “The movement of an on-board LNG fuel tank in an LNG-fueled vehicle or vessel shall not constitute intrastate transport of LNG.” From this wording, it is not clear that the phrase “on-board LNG fuel tank” pertains solely to the fuel tank being used to operate a vehicle. As written, it is possible that this could be construed to include tanks (which could also be fuel tanks for LNG vehicles) that are being hauled within vehicles that run on LNG. The appropriateness of state regulatory authority (including route approval) for the intrastate transport of LNG should not depend on the type of fuel used to operate a vehicle. This can be rectified by replacing the word “in” with the phase “used to power” immediately after “on-board LNG fuel tank”.
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