Part 203: Indirect Sources Of Air Contamination

(Statutory authority: Environmental Conservation Law, §§ 3-0301, 19-0301, 19-0303)

[Filed 4/19/83. Effective 30 days after filing.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Air Quality Planning at (518) 402-8396 is the contact for technical questions pertaining to this rule.

§203.1 Applicability

(a) This Part shall apply only in the county of New York south of 60th Street.

(b) This Part shall not apply to the construction or modification of an indirect source of air contamination if such construction or modification commenced prior to January 13, 1975. For the purpose of this subdivision, construction or modification will be deemed to have commenced if a person has entered into a contract for paving, fabrication, erection or installation of any component of an indirect source and has engaged in a continuous program of onsite construction ormodification of such source or area; except that in the case of roads or highways where acquisition of land is required, an appropriation of land through eminent domain proceedings as evidenced by the filing of a description and map in the office of the appropriate county official, or the negotiated purchase of land as evidenced by a binding contract of purchase, shall constitute the commencement of construction or modification, if followed by a continuous program of onsite construction or modification. Interruptions resulting from force majeure shall be disregarded in determining whether a construction or modification program is continuous.

§203.2 Definitions

As used in this Part, the following terms shall have the indicated meanings unless noted otherwise:

(a) Indirect source of air contamination or indirect source means a facility, structure or installation the construction or operation of which results or may result directly or indirectly in associated vehicular movements which contribute to ambient concentrations of any air contaminant for which there is an ambient air quality standard, including:

(1) highways and roads on which the predicted annual average of daily traffic volume within 10 years of completion of construction may exceed 20,000 vehicles, or where the modification of any existing section of road or highway which may increase the annual average of daily traffic volume within 10 years of completion of modification by more than 10,000 vehicles; and

(2) parking areas.

(b) Parking area means a State or Federally owned parking facility, including a lot or garage, which is located in New York County, south of 60th Street.

(c) Commence construction or commence modification means to initiate a program of onsite construction, including but not limited to site clearance, grading, dredging, land filling or entering into a contract for paving or installation of foundations for the fabrication, erection or installation of any component of an indirect source area or in preparation for the fabrication, erection or installation of the component of an indirect source. Construction or modification of a highway or road shall not include construction or modification of curb cuts, driveways or other entrance ways to public highways from private property which shall not be subject to the provisions of this Part.

§203.3 Prohibitions

(a) No person shall commence construction or modification of an indirect source of air contamination without having a valid permit to construct issued by the commissioner pursuant to this Part. Whenever an indirect source is to be constructed or modified in planned incremental phases, the commissioner may approve any or all such phases prior to the initiation of any such phase.

(b) No person shall operate an indirect source of air contamination, the construction or modification of which requires a permit under subdivision (a) of this section, without first having obtained a permit to construct and no person shall operate an indirect source which does not comply with the terms and conditions of the applicable permit to construct.

§203.4 Application for permit

An application for a permit to construct shall be filed with the commissioner in such form and manner and contain such information as the commissioner may require. Applications for permits to construct for indirect sources shall be processed and reviewed in accordance with 6 NYCRR 621, uniform procedures.

§203.5 Standards for issuance of permit

(a) The commissioner will not issue a permit to construct unless he determines that:

(1) the operation of the indirect source of air contamination will not cause a violation of any applicable ambient air quality standard in effect at the time of the issuance of the permit or, where a violation of such standard exists, will neither increase the ambient concentration of the applicable air contaminant nor interfere with attainment or maintenance of such standard;

(2) the operation of the indirect source of air contamination will not result in any violation of applicable portions of any control strategy of an applicable air quality implementation plan approved and in effect at the time of the issuance of the permit; and

(3) the operation of the source will not result in a violation of any of the provisions of this Chapter.

(b) For purposes of this section, the applicable ambient air quality standards for:

(1) construction of highway sections which will produce an annual average of daily traffic volume of 50,000 or more vehicles within 10 years of completion of construction; and

(2) modification of a highway section which will increase the annual average of daily traffic volume by 25,000 vehicles or more within 10 years after completion of modification shall mean the standards for carbon monoxide, ozone and nitrogen dioxide. For all other indirect sources, the applicable ambient air quality standard shall mean the standard for carbon monoxide. Determinations of whether a violation of such standards will be caused or whether, in the case of an existing violation, ambient concentrations will be increased will be based on anticipated ambient concentrations as of the time of completion of the proposed construction or modification or any phase thereof and during a reasonable time thereafter. In the case of highway sections, such time shall be a 10-year period following such completion.

(c) The commissioner will make the determination pursuant to paragraph (a)(1) of this section for carbon monoxide by evaluating the anticipated ambient concentrations of carbon monoxide at receptor or exposure sites where people might reasonably be expected to be exposed and which will be affected by the vehicular movements expected to be attracted by the indirect source; such determination shall be based upon traffic flow characteristic guidelines, appropriate atmospheric diffusion models, any other reliable analytic method or any combination thereof.

(d) The commissioner will make the determination pursuant to paragraph (a)(1) of this section for ozone and nitrogen dioxide by evaluating the anticipated ambient concentrations of such air contaminants at one or more locations determined by him to be representative of the points of greatest exposure within the affected area.

(e) Air quality findings for parking facilities otherwise classified "as-of-right", "Permitted Accessory Off-street Parking Spaces" in chapter 3, article 1 of the March 18, 1982 resolution of the Board of Estimate of the City of New York amending the zoning resolution relating to off-street parking regulations in Manhattan, which classifications are hereby incorporated by reference, will be deemed favorable, and new parking facilities for 25 or fewer vehicles will be deemed to have favorable air quality findings.

§203.6 Approval subject to conditions

(a) Whenever an indirect source as proposed by an applicant would not be permitted to be constructed or modified because of failure to meet the standards set forth in section 203.9 of this Part, the commissioner may approve the application subject to such conditions as will permit such source, if constructed or modified in accordance with such conditions, to meet the standards set forth in section 203.9.

(b) Notwithstanding the provisions related to modified indirect sources contained in section 203.3 of this Part, the commissioner may condition any approval by specifying the extent to which and the period within which the indirect source, when completed, may not be further modified without approval of such modification under this Part.

(c) The commissioner may at the time of issuance of the permit attach such other conditions, including monitoring requirements, as will assure compliance with the permit or the provisions of this Part; provided, however, that no condition shall be imposed which would require partial or complete curtailment of operation of the indirect source based on unanticipated changes of ambient concentrations of air contaminants for which the applicant cannot be responsible; except that nothing herein shall relieve the applicant from responsibility to comply with the provisions of any present or future applicable implementation plan.

§203.7 Expiration of permit

Unless otherwise specified therein, a permit to construct shall expire when no construction or modification has been commenced within a period of two years after the issuance of the permit or when no substantial progress is made in such construction or modification for a period of two years. For the purpose of this section, interruptions resulting from force majeure shall be disregarded. The commissioner may extend any time period upon a satisfactory showing that an extension is justified.

§203.8 Suspension and revocation of permits

The commissioner may suspend a permit to construct at any time upon any of the following grounds:

(a) failure to construct the indirect source substantially in accordance with the application as approved;

(b) failure to operate the indirect source in accordance with any conditions imposed by the commissioner in the permit; or

§203.9 Transfer of permits

A permit to construct shall not be transferable in whole or in part unless and until the transferee has filed a verified statement with the department acknowledging that the transferee will comply with all the conditions of the permit.

§203.10 Pending applications

(a) Applications which are before the department for indirect source permits that have not been determined to be complete in accord with 6 NYCRR 621 on the effective date of this revision and are for projects other than highways, roads, or parking lots and garages located in New York County south of 60th Street will be considered null and void. These applications will be returned to the applicants without a decision. However, recommendations will be forwarded to the local government body having SEQRA responsibility for the project, if appropriate.

(b) Applications before the department that have been determined to be complete in accord with 6 NYCRR 621 must be processed through a final determination.