Notice of Emergency Adoption

Pursuant to Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, and 19-0305 of Environmental Conservation Law, the Department of Environmental Conservation (Department) hereby gives notice of the following:

The Department is adopting amendments to the following parts and subparts of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York: Part 200, General Provisions, Part 201, Permits and Registration, Subpart 225-1, Fuel Composition and Use- Sulfur Limitations and Subpart 227-2, Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOx).

This emergency rule is necessary for the preservation of public health, public safety, and general welfare.

The New York State Public Service Commission, the New York State Energy Research and Development Authority, the New York Independent System Operator (the NYISO), and the New York State Reliability Council, have expressed deep concern about the ability of the electricity generation, transmission and distribution system (the electric grid) in New York State to accommodate increasing loads without additional generation. These parties, all of whom share some responsibility for assuring the reliability of the electric grid in New York State, are concerned that, during the summertime peak electricity demand periods, existing generation capacity in New York State may be insufficient and power outages may occur. This potential supply shortfall is expected to disappear when the first new central electricity generating plants, currently being sited pursuant to the Public Service Law Article X process, begin operating. This should happen prior to the summer of 2003.

In response to the above-described concerns, the NYISO developed an Emergency Demand Response Program (EDRP) for the 2001 and 2002 peak demand periods. The EDRP is meant to encourage certain electricity customers to reduce electrical demand during emergency situations to help assure that demand will not outstrip supply and the need for load shedding (rolling blackouts) will not arise. Much of this demand reduction potential will come from the availability of emergency generation capacity. Currently, the Department’s regulations only allow emergency generators to operate when the usual source of power is actually interrupted rather than when interruption is imminent. A regulatory change is needed to permit the use of these emergency generators before the power supply is interrupted.

These amendments will permit emergency generators that are part of the EDRP to operate for up to 200 hours per year when called on by the NYISO in situations where load shedding is imminent. The emergency generators that take part in the EDRP will be defined as "centrally dispatched emergency power generating units" and the emergency generators that may be used when the primary source of power is actually unavailable will be defined as "facility specific emergency power units." "Centrally dispatched emergency power generating units" must refuel with fuel having a sulfur content of no more than 30 parts per million sulfur unless deemed unavailable by the President of NYSERDA.. These units, "centrally dispatched emergency power generating units" and "facility specific emergency power generating units," will retain their exemption from the NOx RACT requirements of Subpart 227-2 provided they operate within the parameters of their Part 201 exemptions.

Contact: Robert G. Sliwinski, P.E., NYSDEC, 625 Broadway, Albany, NY 12233-3251, phone: (518) 402-8396, email: rgsliwin@gw.dec.state.ny.us

West Nile Virus Response Plan During 2001

Part I. "Same employer" requirement of 6 NYCRR 325.1 (bg)

Effective immediately and continuing throughout calendar year 2001, the Department of Environmental Conservation (hereinafter referred to as the "Department") will exercise its prosecutorial discretion by not enforcing the "same employer" requirement described in 6 NYCRR 325.1 (bg), for applications of solid, ready-to-use formulations of pesticides in briquette form (hereinafter referred to as "pesticide briquettes") to catchbasins, for counties implementing a West Nile Virus Response Plan, provided all of the following conditions are satisfied:

1. A county must have in effect a county-wide West Nile Virus Response Plan that is consistent with the New York State Health Department’s "New York State West Nile Virus Response Plan" for 2001 (hereinafter referred to as the "Plan") ; and
2. The Plan must call for the use of certified commercial pesticide applicators ("applicators") who are employees of that county to supervise certified commercial pesticide technicians ("technicians") or commercial pesticide apprentices ("apprentices") who are employees of "agencies" as defined at ECL 33-0101 (4) located within that county (hereinafter referred to as "participating agencies"); and
3. The county and each of the participating agencies must enter into a written agreement ("written agreement") under which the county is to provide direct supervision, pursuant to 6 NYCRR 325.7, to specified employees of the participating agencies within the county while pesticide briquettes are applied pursuant to the Plan; and
4. The written agreement must describe in detail the supervision to be provided to the participating agencies’ employees. At a minimum, the written agreement shall:
1. set forth the names and certification numbers of the applicators who will provide direct supervision; and
2. identify areas of application that will be under the supervision of each applicator at one time; and
3. set forth the names and certification numbers of technicians working under an applicator’s supervision at one time; and
4. set forth the names of the apprentices working under an applicator’s supervision at one time; and
5. set forth in detail the means of communication by which technicians and apprentices will be able to contact the supervising applicator within a reasonable time not to exceed 30 minutes; and
5. The written agreement shall only apply to technicians certified in the appropriate category/subcategory and apprentices who have received the training specified in 6 NYCRR 325.10; and
6. The written agreement shall be limited to the application of pesticide briquettes to catchbasins; and
7. For all the pesticide applications covered by the written agreement, the county shall maintain copies of all daily use records of pesticide applications generated by the applicators and technicians. The daily use records shall comply with 6 NYCRR 325.25 and, in regard to showing the "place of application", shall identify the specific location of each individual catchbasin. The county shall also obtain and maintain copies of the annual reports submitted by or on behalf of these same applicators and technicians (as required by the Pesticide Reporting Law, ECL 33-1205) as part of the county’s implementation of the Plan. Applicators and technicians remain responsible for complying with requirements for maintaining their own daily use records, and submitting annual reports under the Pesticide Reporting Law; and
8. The county must prepare a detailed, written county-wide West Nile Virus Response Plan that incorporates the written agreement; and
9. Under no circumstances shall any Plan provide for the application of non-microbial pesticides in any form to catchbasins that empty, directly or indirectly, into Long Island Sound or into any habitat for endangered species, threatened species, or species of special concern; and
10. The Plan shall include a schedule, running through April 30, 2003, that provides for the training and certification of a sufficient number of applicators and technicians for the county to comply with the Department’s regulations when implementing a West Nile Virus Response Plan in the future; and
11. Any county seeking to avail itself of this exercise of prosecutorial discretion shall submit the Plan and written agreement to the Department before utilizing the employees of participating agencies to make any applications of pesticide briquettes to catchbasins.

The Department will have the sole discretion to determine whether the Plan and written agreement comply with the above requirements and the county will not benefit from the Department’s exercise of this prosecutorial discretion until the Department determines that the Plan and written agreement so comply. The Department will include the above conditions as conditions of any aquatic permit issued under 6 NYCRR Part 329 to any county seeking to avail itself of the above-described exercise of prosecutorial discretion. The Department’s issuance of the aquatic permit shall constitute the determination that the Plan and written agreement comply with the above conditions.

Where a county seeking to avail itself of this exercise of prosecutorial discretion has already been issued a permit under 6 NYCRR Part 329, the county may amend its permit application to comply with the above conditions.

This exercise of prosecutorial discretion does not exempt agencies from any other requirements of Article 33 of the ECL or 6 NYCRR Parts 320 through 329.

Part II. On-site direct supervision requirements for apprentices applying certain aquatic pesticides under 6 NYCRR 325.7 (d) (2) (i) (b)

Effective immediately and for the duration of calendar year 2001, the Department will exercise its prosecutorial discretion by not enforcing the on-site direct supervision requirements for technicians and apprentices applying pesticide briquettes to catchbasins under 6 NYCRR 325.7 (d) (2) (i) (b), provided all of the following conditions are satisfied:

1. Where a county is implementing a Plan (either on its own or pursuant to a contract with a registered pesticide business) that, where applicable, is consistent with the requirements set forth in Part I, above, the Department will allow technicians and apprentices, under a permit issued pursuant to 6 NYCRR Part 329, to make aquatic pesticide applications of pesticide briquettes with the off-site direct supervision, rather than the on-site direct supervision, of a certified commercial pesticide applicator ("applicator"), provided that, in the case of apprentices, the apprentices meet the training requirements of 6 NYCRR 325.10; and
2. Under no circumstances shall any Plan provide for the application of non-microbial pesticides in any form to catchbasins that empty, directly or indirectly, into Long Island Sound or into any habitat for endangered species, threatened species, or species of special concern; and
3. Any county seeking to avail itself of this exercise of prosecutorial discretion shall set forth its Plan in writing and shall describe therein in detail the off-site direct supervision to be provided to apprentices. At a minimum, the Plan shall:
1. set forth the names and certification numbers of the applicators who will provide direct supervision; and
2. identify areas of application that will be under the supervision of each applicator at one time; and
3. set forth the names and certification numbers of technicians working under an applicator’s supervision at one time; and
4. set forth the names of the apprentices working under an applicator’s supervision at one time; and
5. set forth in detail the means of communication by which technicians and apprentices will be able to contact the supervising applicator within a reasonable time not to exceed 30 minutes; and
4. The Plan shall include a schedule, running through April 30, 2003, that provides for the training and certification of a sufficient number of applicators and technicians for the county to comply with the Department’s regulations when implementing a West Nile Virus Response Plan in the future; and
5. Any county seeking to avail itself of this exercise of prosecutorial discretion shall submit the Plan to the Department before utilizing apprentices or technicians to make any applications of pesticide briquettes to catchbasins.

The Department will have the sole discretion to determine whether the Plan complies with the above requirements and the county will not benefit from the Department’s exercise of this prosecutorial discretion until the Department determines that the Plan so complies. The Department will include the above conditions as conditions of any aquatic permit issued under 6 NYCRR Part 329 to any county seeking to avail itself of the above-described exercise of prosecutorial discretion. The Department’s issuance of the aquatic permit shall constitute the determination that the Plan complies with the above conditions.

Where a county seeking to avail itself of this exercise of prosecutorial discretion has already been issued a permit under 6 NYCRR Part 329, the county may amend its permit application to comply with the above conditions.

This exercise of prosecutorial discretion does not affect any other requirements of Article 33 of the ECL or 6 NYCRR Parts 320 through 329.

General

The Department has determined that the public comment provision of ECL 3-0301 (2) (z) does not apply to any exercise of prosecutorial discretion set forth herein. Public comment would be inappropriate because allowing for such comment would produce a serious negative impact on counties’ effective implementation of their West Nile Virus Response Plans. This Enforcement Directive will: facilitate the effective implementation of such plans during 2001; provide sufficient protection of human health and the environment; and provide counties and participating agencies with a clear incentive to increase the number of their employees who are certified by the Department as commercial pesticide applicators and commercial pesticide technicians.

The exercise of prosecutorial discretion set forth herein is a Type II action and is therefore not subject to review under SEQRA. 6 NYCRR 617.5 (c) (29).

For further information, contact the Department’s Bureau of Pesticide Management, in the Department’s Division of Solid and Hazardous Materials, at (518) 457-0300.

Notice for the Eighth Annual NYS Governor's Award for Pollution Prevention

Applications are now available for the New York State Eighth Annual Governor's Award for Pollution Prevention. The awards program was established to recognize pollution prevention efforts by NYS organizations. Applicants can compete in one of the three following categories: 1) facilities generating waste and pollution: small (100 or fewer employees), mid-size (more than 100 and fewer than 500 employees), or large (more than 500 employees) industrial, commercial or institutional facilities; federal, state and local governments; and educational institutions, 2) technical assistance providers: environmental, community and civic organizations; trade associations or other business/industry groups; federal, state and local governments, and educational institutions; and other public or private entities, and 3) continuous improvement: this category is for organizations that demonstrate a longer term commitment to pollution prevention and continue to develop and implement pollution prevention programs and achieve results. Nominations for awards will be made to Governor Pataki by the Department of Environmental Conservation based on recommendations from a selection committee.

Criteria to be considered for the applicants include: waste volume/toxicity reduction, overall environmental benefits, overall economic benefits, improvement in worker safety, innovations in technology, process or education program, level of management commitment, and transferability.

IMPORTANT NOTICE: Presentation of the awards will be during Pollution Prevention Week in September 2001 at the new DEC Headquarters located at 625 Broadway in Albany. The winners will be notified a week prior to the presentation of the awards. The deadline indicated in the brochure to apply for the awards is May 1, 2001. However, because the brochures were received late, a two week extension until May 15, 2001 has been granted. The application package is still available through the DEC’s website: www.dec.state.ny.us/website/ppu/p2gov.html.

Anyone interested in obtaining more information regarding the application and criteria for the awards should contact Mr. Carlos Montes at the Department of Environmental Conservation, Pollution Prevention Unit, 50 Wolf Rd., Room 298, Albany, NY 12233-8010, telephone (518) 457-0774, Fax (518) 457-2570, email: clmontes@gw.dec.state.ny.us