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Revision to Implementation Plan for New Source Review for New and Modified Facilities (6 NYCRR Part 231), October 12, 2011

The following is the content of a letter and associated attachment sent to the Regional Administrator at the USEPA, Region 2, Judith A. Enck. The letter was signed on October 12, 2011 by J. Jared Snyder, Assistant Commissioner, Office of Air Resources, Climate Change and Energy. Items mentioned in the letter, but not made available on the website, are available upon request.

On behalf of the Governor of the State of New York, I am submitting for approval by the United States Environmental Protection Agency (EPA) a revision to the New York State Implementation Plan (SIP) for the New Source Review for New and Modified Facilities.

This SIP revision amends existing nonattainment New Source Review (NNSR) and attainment New Source Review (Prevention of Significant Deterioration [PSD]) program requirements. Specifically, this SIP revision request is comprised of the rule changes to New York's Part 231, "New Source Review for New and Modified Facilities;" Part 201, "Permits and Registrations;" and amendments to Part 200, "General Provisions," of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR).

The Department undertook this rulemaking to comply with 2008 and 2010 federal NSR and Title V rule revisions. This rule implements EPA's May 16, 2008 NSR final rule for the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM-2.5). Also, this rule implements EPA's October 20, 2010 final rule that establishes the PM-2.5 increments, significant impact levels, and significant monitoring concentration. The Department incorporated some of EPA's final PM-2.5 requirements in its February 19, 2009 revisions to its PSD and NSR programs. This rulemaking implements the additional provisions of the federal PM-2.5 rule that were not previously included in the 2009 revision to Part 231.

This SIP revision also incorporates conforming provisions to EPA's June 3, 2010 NSR final rule for the regulation of Greenhouse Gases (GHGs) under its PSD and Title V programs, also known as the "GHG Tailoring Rule." This rule addresses EPA's regulation of GHGs by establishing major source applicability threshold levels for GHG emissions and other conforming changes under the state's PSD and Title V programs.

The May 2008, June 2010, and October 2010 Federal NSR Rules modified both the NNSR and PSD regulations at 40 CFR 51.165 and 52.21, respectively, and the October 2010 rule also modified the Title V regulation at 40 CFR 70 and 71. These Federal regulations require states with SIP approved NSR and Title V programs to revise their regulations and submit the revisions to EPA for approval into the SIP.

The proposed amendments to Part 231, Part 201, and Part 200 underwent a public review process. On March 23, 2011, regulations regarding the New Source Review Requirements for Proposed New Major Facilities and Major Modifications to Existing Facilities were proposed in the New York State Register (I.D. No. ENV-12-11-00004-P) and in the Environmental Notice Bulletin under the provisions of the State Administrative Procedures Act. Public hearings were held in Avon on June 1, 2011, in Albany on June 2, 2011, and in Long Island City on June 3, 2011. The comment period closed at 5:00 p.m., June 10, 2011. On August 23, 2011, the Environmental Board approved the proposed regulation. These rules were filed with the New York State Department of State on September 15, 2011. The effective date for the regulation is October 15, 2011.

Other than the revisions described above, the revisions to Part 231 do not substantially alter the requirements for the permitting of new and modified major stationary sources that are currently in effect in New York State. The revisions leave intact the major NSR requirements for application of Lowest Achievable Emission Rate (LAER) or Best Available Control Technology (BACT) as appropriate, modeling, and emission offsets. As a result of this rulemaking, PM-2.5 precursors (SO2 and NOx) will be regulated as nonattainment contaminants in the PM-2.5 nonattainment area, PM-2.5 significant impact levels will be added, and GHGs will be regulated statewide under Title V and PSD. GHG permitting thresholds will be added at increased levels from the current limits resulting in only a small number of facilities newly subject to Title V and/or PSD. Many of the significant requirements are not changing: new or modified major facilities will still have to undertake applicability reviews and, in appropriate cases, submit permit applications and undertake control technology reviews.

The Part 200 amendments revise the definitions of potential to emit and PM-2.5 and add definitions for greenhouse gases and CO2 equivalent. The definition of potential to emit is changed to specify that secondary emissions are not included in a facility's potential to emit. The definitions of PM-10 and PM-2.5 will now state that condensable emissions are included. The Part 201 amendments revise the definition of major stationary source or major source or major facility to add a CO2 equivalent-based GHG emission threshold. In addition to the current mass-based thresholds applicable to GHGs, the proposed revisions establish a CO2 equivalent threshold of 100,000 tons per year for the purposes of determining if a stationary source, source, or facility is major. The definition is also revised to state that 201-2.1(b)(21)(iii) is a "Source Category List" and removes municipal waste landfills from the list.

This SIP revision request includes the following:

  1. Revised Express Terms: 6 NYCRR Part 231, "New Source Review for New and Modified Facilities."
  2. Revised Express Terms: 6 NYCRR Part 201, "Permits and Registrations."
  3. Express Terms: 6 NYCRR Part 200, "General Provisions."
  4. Copy of the transmittal letter to the Department of State.
  5. Certificate of Adoption for these rules dated September 13, 2011.
  6. Notice of Proposed Rulemaking as published in the Environmental Notice Bulletin on March 23, 2011.
  7. Notice of Public Hearing as published in the Environmental Notice Bulletin on March 23, 2011.
  8. Notice of Proposed Rulemaking Hearing as published in the New York State Register on March 23, 2011.
  9. Notice of Adoption filed with the Department of State on September 15, 2011.
  10. Hearing officer's report for three public hearings.
  11. Copy of transcript for public hearing held in Avon, NY on June 1, 2011.
  12. Copy of transcript for public hearing held in Albany, NY on June 2, 2011.
  13. Copy of transcript for public hearing held in Long Island City, NY on June 3, 2011.
  14. Copies of the Proofs of Publication of the rulemaking in newspapers across the state.
  15. Assessment of Public Comments received from March 23, 2011 through 5:00 p.m. June 10, 2011.

Codified versions of the adopted 6 NYCRR Part 231, "New Source Review for New and Modified Facilities;" 6 NYCRR Part 200, "General Provisions;" and 6 NYCRR Part 201, "Permits and Registrations" will be submitted in the near future when available.

If you or your staff have any questions, or if additional information is required, please contact Ms. Diana Rivenburgh at (518) 402-8396.