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Regulatory Impact Statement 6 NYCRR Subpart 225-2 and Part 200


Proposed 6 NYCRR Subpart Part 225-2 (Proposed Subpart 225-2) regulates the use of waste oil to be burned for heat and/or energy recovery at non-exempt, stationary sources. Waste oil is any used or reprocessed oil that has not been re-refined and contains no chemical waste. Examples include, but are not limited to, engine oil, gear oil, cutting oil, transmission fluid, etc. The Department is proposing to repeal Existing 6 NYCRR Part 225-2 Fuel Composition and Use - Waste Fuel (Existing Subpart 225-2) and replace it with Proposed 6 NYCRR Subpart 225-2, Fuel Composition and Use - Waste Oils (Proposed Subpart 225-2). Proposed Subpart 225-2 regulates the burning of waste oils in combustion, incineration, and process sources throughout New York State. Proposed Subpart 225-2 establishes applicability criteria, composition limits, and permitting requirements for waste oils; establishes monitoring, recordkeeping, and reporting requirements for facilities that are determined eligible to burn waste oil; and allows for the burning of waste oils in space heaters at automotive maintenance/service facilities. Also, as part of this rulemaking, the Department is adding the definition for "residual oil" to 6 NYCRR Part 200 (Part 200). If finalized, Proposed Subpart 225-2 will be included as a component of the State Implementation Plan (SIP) for New York State (NYS), as required by the Clean Air Act. This is not a mandate on local governments. It applies to any entity that owns or operates a subject stationary source. In addition, Part 200, which contains definitions related to air regulations will also be updated.

Statutory Authority

The statutory authority for promulgation of Proposed 6 NYCRR Subpart 225-2 is found in the following Sections of the Environmental Conservation Law (ECL): Section 1-0101, Section 3-0301, Section 19-0103, Section 19-0105, Section 19-0301, Section 19-0303, Section 19-0305, Section 71-2103, and Section 71-2105.

Section 1-0101. This section declares it to be the policy of NYS to conserve, improve, and protect its natural resources and environment and control air pollution in order to enhance the health, safety, and welfare of the people of NYS and their overall economic and social well being. Section 1-0101 further expresses, among other things, that it is the policy of NYS to coordinate the State's environmental plans, functions, powers, and programs with those of the federal government and other regions; and to manage air resources so that the State may fulfill its responsibility as trustee of the environment for present and future generations. This section also provides that it is the policy of NYS to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by providing that care is taken for air resources that are shared with other states.

Section 3-0301. This section empowers the Department to promulgate regulations to carry out the environmental policy of NYS set forth in Section 1-0101. Section 3-0301 specifically empowers the Department to provide for the prevention and abatement of air pollution.

Section 19-0103. This section declares that it is the policy of NYS to maintain the purity of air resources and to require the use of all available practical and reasonable methods to prevent and control air pollution in the state.

Section 19-0105. This section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of NYS under a program which is consistent with the policy expressed in Section 19-0103 and in accordance with other provisions of Article 19.

Section 19-0301. This section authorizes the Department to adopt regulations to prevent and control air pollution in such areas of the state that are affected by air pollution, develop a general comprehensive plan for the control and abatement of existing air pollution and for the control and prevention of new air pollution, and cooperate with government agencies and other states or interstate agencies with respect to the control of air pollution.

Section 19-0303. This section provides that the terms of any air pollution control regulation promulgated by the Department may differentiate between particular types and conditions of air pollution and air contamination sources.

Section 19-0305. This section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19.

Sections 71-2103 and 71-2105 provide for civil and criminal penalties for violations of regulations promulgated pursuant to Article 19.

Based on the above-referenced sections the Commissioner has sufficient authority to regulate air pollution from emission sources, including the promulgation of Proposed 6 NYCRR Subpart 225-2 "Fuel Composition and Use - Waste Oils".

Legislative Objectives

Article 19 of the ECL was adopted to safeguard the air resources of New York from pollution. To facilitate this purpose, the Legislature granted specific powers and duties to the Department, including the power to formulate, adopt, promulgate, amend, and repeal regulations that prevent, control, or prohibit air pollution. This authority specifically extends these powers over areas of the State that are or may be affected by air pollution and allows the Department to prescribe for such areas (1) the degree of air pollution or air contamination that may be permitted therein, and (2) the extent to which air contaminants may be emitted to the air by any air contamination source. In addition, this authority includes the preparation of a general, comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution recognizing various requirements for different areas of the State. The legislative objectives underlying the above statutes are directed toward protection of the environment and public health.

Proposed 6 NYCRR Subpart 225-2 addresses the burning of waste oils and subsequent emissions from burning waste oils throughout New York State. The regulation defines waste oil and establishes clear limits on its constituents. Finally, the regulation incorporates monitoring, record keeping, and reporting requirements for the purpose of compliance with the regulation.

Needs and Benefits

The Department is proposing this repeal and replacement of Existing Subpart 225-2 in order to best protect and preserve the state's air resources. The Department proposes to achieve this end by imposing composition limits on waste oil in order to minimize emissions and clarify the types of emission sources eligible to burn waste oil. The Department is proposing to repeal Existing Subpart 225-2 and replace it with Proposed Subpart 225-2, Fuel Composition and Use - Waste Fuel. Existing Subpart 225-2 has not been updated since its promulgation in 1983. As a result, many of its provisions are outdated and contain obsolete references and standards.

Rule Streamlining and Simplification

The Department has significantly updated its primary permitting program, contained in 6 NYCRR Part 201 (Part 201), most recently in 2013. Therefore, the permitting process contained in Existing Subpart 225-2 has become outdated. Proposed Subpart 225-2 will simplify and streamline implementation of the regulation by eliminating obsolete regulatory references; correcting typographical errors; updating the regulation's waste oil constituent limits; removing outdated work practices; expanding the number of facilities eligible to burn waste oil; updating the permitting process to include monitoring, record keeping, and reporting requirements, thus aligning it with Part 201 and Title V criteria found in the Clean Air Act; and moving the definition of "residual oil" from Existing Subpart 225-2 to 6 NYCRR Part 200 (Part 200). Also, Existing Subpart 225-2 contains references to liquid waste transportation regulations that, over the past thirty years, have changed and need to be removed from this regulation. Finally, Proposed Subpart 225-2 clarifies the regulation's process for the burning of waste oil while removing the term waste fuel.

As part of the streamlining process, the Department is removing the ninety-nine (99) percent combustion efficiency requirement in Existing Subpart 225-2.3(b) in favor of reducing emissions of oxides of nitrogen (NOx). Existing Part 225-2 requires regulated facilities to adjust the combustion efficiency of waste fuel burning equipment to 99 percent efficiency. The Department has found that maximizing combustion efficiency to that degree results in increased NOx emissions. NOx represents a family of seven compounds that are not only air pollutants by themselves, but also react with other pollutants to form ozone, particulate matter, and acid rain. Through these reactions NOx can cause illness and premature death in humans, animals, and plants. See United States Environmental Protection Agency Technical Bulletin, "Nitrogen Oxides (NOx) Why and How They Are Controlled," EPA 465/4-99-006R, November 1999, p. 1, 5-8. In addition, New York State is in the Ozone Transport Region and treats NOx as a non-attainment pollutant. The Clean Air Act (CAA) sets out specific requirements for a group of northeast states that make up the Ozone Transport Region (OTR) to reduce the regional transport of ozone and ozone precursors, like NOx, between states and to help certain States attain the health standards for ground-level ozone (smog). See, U.S. Environmental Protection Agency, "Regional Transport of Ozone," at (last visited on May 19, 2014). New York State is also required to meet the nitrogen dioxide (NO2) national ambient air quality standard (NAAQS). Therefore reducing NOx emissions is both important for health and welfare and federally required.

Fortunately, adjusting fuel burning equipment to minimize NOx emissions only causes a one to two percent decrease in combustion efficiency and does not significantly increase emissions. Based on review of EPA emission factors (AP-42) and engineering calculations, the Department has found no difference in the emission factors (specifically emissions of particulate matter) by fuel burning equipment operating at ninety-seven (97) or ninety-eight (98) percent efficiency (based upon staff review of years of combustion efficiency tests). In fact, there will be a resulting economic benefit to regulated facilities as they will no longer be required to perform the combustion efficiency tests, which - depending on the size of the waste oil firing equipment - range in costs between one-thousand dollars ($1,000.00) and five thousand dollars ($5,000) per test. As a result, the Department can achieve a greater benefit to the environment by reducing NOx emissions rather than maximizing combustion efficiency, while simultaneously reducing costs for regulated facilities.

Existing Subpart 225-2 prohibits the burning of chemical wastes by classifying them as different types of waste fuels. However, the prohibition on burning of chemical waste needs clarification. Existing Subpart 225-2 defines waste fuels as either Waste fuel A or Waste fuel B. Waste fuel A, among other criteria, does not contain any chemical waste, while Waste fuel B, or "off-spec" waste oil, might contain chemical or hazardous wastes. The Department has determined that, to streamline and simplify the rule, Proposed Subpart 225-2 will no longer address the burning of chemical waste and "off-spec" waste oils (i.e. Waste fuel B) that do not meet the limitations specified in Table 1 of Existing Subpart 225-2. Instead, burning chemical waste and off-spec waste oils will be regulated under 6 NYCRR Part 212 (Process Operations) or 6 NYCRR Parts 370-376 as appropriate. This will be accomplished by stating in the applicability section in Subpart 225-2 that the rule only applies to the burning of waste oil, while the definition of waste oil under existing subdivision 200.1(cw) will be changed to state that waste oil does not contain chemical waste.

Proposed Subpart 225-2 will expand the number of emission sources eligible to burn waste oils by lowering the minimum permissible heat input requirement of 20 million British thermal units per hour (mmBtu/hr) to 10 mmBtu/hr. Heat input is the amount of heat energy produced when burning a fuel. Existing Subpart 225-2 uses the size threshold of 20 mmBtu/hr heat input because, in 1983, emission sources with less than 20 mmBtu/hr heat input were already exempt from permitting. In 1989, however, the United States Environmental Protection Agency (EPA) promulgated the federal New Source Performance Standard (NSPS) for small boilers. See 40 CFR Subpart Dc. This NSPS regulates emission sources down to 10 mmBtu/hr heat input in size. Based on the federal NSPS applicability threshold, the Department is lowering its exempt emission source threshold from 20 mmBtu/hr heat input to 10 mmBtu/hr heat input under Part 201, Permits and Registrations. The Department has determined that there is no difference environmentally in the burning of waste oil in a source that has a 10 mmBtu/hr heat input compared to a source that has a 20 mmBtu/hr heat input. This determination is based on a review of EPA emission factors (EPA's AP-42) and engineering calculations. There is no difference in the emission factors used by fuel burning equipment between 10 mmBtu/hr and 20 mmBtu/hr heat input. Therefore, by lowering the eligible size threshold of emission sources, the Department has increased the flexibility of Proposed Subpart 225-2 for the regulated community, permitting more sources to burn waste oil, without adversely affecting the environment.

Finally, the Department is extending the permitting exemption for facilities generating their own waste oils to fire waste oil in space heaters of less than one mmBtu/hr heat input. Existing Subpart 225-2 provides this permitting exemption exclusively to automotive service facilities. Throughout the past 30 years, however, several other types of facilities that produce or collect waste oils have asked the Department to extend this exemption to their facilities. While these facilities generate waste oils, the volume generated is insufficient for recycling unless the facilities are willing to store it on-site until enough waste oil is accumulated. Storage of sufficient quantities of waste oil, however, subjects these facilities to additional regulatory requirement under waste storage regulations. As a result, these facilities simply dispose of their waste oils. The Department analyzed potential air impacts of extending the permitting exemption to other facilities that meet the eligibility criteria of firing waste oil in space heaters of less than one mmBtu/hr heat input and has determined that it will not cause a degradation of the air quality in the State. In addition, it increases flexibility for the regulated community. Therefore, Proposed Subpart 225-2 allows additional types of facilities to burn waste oil in space heaters. Automotive maintenance/service facilities are now defined as "any facility that performs automotive fluid changes, collects automotive fluids, or drains automotive fluids". Eligible facilities now include, but are not limited to, fleet maintenance facilities like municipal garages, rental car maintenance facilities, auto crushing facilities, and junkyards.

Stakeholder Meetings/Environmental Justice Outreach

While drafting Proposed Subpart 225-2, the Department held a stakeholder conference call with staff from the New York City Department of Environmental Protection on February 14, 2014 and a stakeholder meeting with an attendee from the New York Association of Service Stations and Repair Shops on February 18, 2014. The Department solicited comments on Proposed Subpart 225-2 from the stakeholders. While the stakeholders asked questions, which the Department answered, they provided no specific comments.

On March 4, 2016 the Department sent a mass e-mail to the environmental justice contact list (8000 to 10,000 contacts), which contained a fact sheet on the proposed changes to Subpart 225-2. The fact sheet contained information regarding the proposed rule changes and included frequently asked questions. The contacts were given until March 25, 2016 to review and provide comments to the Department. No Comments were received. Utilizing the same contact list the Department sent a mass e-mail to schedule a webinar. The Webinar was held on May 24, 2016 at 12:30 PM. The webinar had 15 attendees. The attendees asked several questions regarding the time frame for notice and applicability of the proposed rule, which Department staff answered.


Costs to Regulated Parties and Consumers:

There will be no additional costs associated with the Proposed Subpart 225-2.

In addition, the removal of the 99 percent combustion efficiency limit will save regulated facilities money by eliminating the requirement to periodically test combustion efficiency. Depending on equipment size and configuration, these tests can cost a subject facility between $1,000.00 and $5,000.00 per test.

Costs to State and Local Governments:

Based on the Department's permitting data, there currently are no State and local government facilities that have a Title V permit, state facility permit, or registration subject to this regulation. Therefore, no additional costs will be incurred by State and local government facilities based on this regulatory update.

Costs to the Regulating Agency:

No additional monitoring, recordkeeping, or reporting requirements are being proposed under this rule-making. The only costs to the Regulating Agency are those routine costs associated with the rulemaking. These costs are regularly-incurred, operating costs.

Local Government Mandates

This is not a mandate on local governments. Local governments have no additional compliance obligations as compared to other subject entities. No additional monitoring, recordkeeping, reporting, or other requirements will be imposed on local governments under this rulemaking. Finally, as stated above in the Cost section of this Regulatory Impact Statement, there are currently no local government facilities subject to this regulation.


Proposed Subpart 225-2 will create no additional paperwork for the facilities subject to the requirements of this rule.


Proposed Subpart 225-2 does not duplicate, overlap, or conflict with any other State or federal Air requirements.


The Department evaluated the following alternatives:

1) No action - do not change the current version of the regulation. This option will not address the issue of consistency with Title V monitoring, record keeping, or reporting requirements. It will also not correct inconsistencies with other State and federal regulations.

2) Title V Update only - update the rule to match the current Title V permitting requirements. This regulation has not been updated since its promulgation in 1983. The regulation does not conform to the requirements of the Title V program (Subpart 201-6). Updating the monitoring, record keeping, and reporting requirements of this rule to match those of Title V is long overdue. However, this option by itself would not address inconsistencies with other State and Federal liquid waste transportation requirements, nor would it simplify and/or streamline the regulation.

Federal Standards

Proposed Subpart 225-2 does not exceed any minimum federal standards. The proposed reduction of the lead standard will make the Proposed 225-2 lead limit equivalent to the lead standards regulated under the federal regulations for liquid waste transporters.

Compliance Schedule

The Department proposes to promulgate the Proposed Subpart 225-2 by the summer of 2016. The provisions of this rule will take effect upon promulgation of the rule.

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    Proposed Subpart 225-2
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