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Adopted Part 257 Regulatory Impact Statement

Introduction

6 NYCRR Part 257, subparts 257-2 through 257-10, list the New York State Air Quality Standards (SAQS) promulgated by the Department over several decades. A number of these SAQS are outdated and have been superseded by Federal air quality standards and will be repealed or revised. Several of the required test methods are also outdated and they have been replaced with new language allowing the testing methodology to evolve as analytical methods improve.

The Division of Air Resources proposes to revise or repeal portions of this regulation to achieve parity with federal standards and support the Department's mission to preserve and protect air quality.

1. Statutory Authority

The statutory authority for this amendment is found in the Environmental Conservation Law (ECL), Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 71-2103, 71-2105

ECL section 1-0101. This section declares it to be the policy of New York State to conserve, improve and protect its natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being. Section 1-0101 further declares it is New York State's policy 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 steward of the environment for present and future generations. This section also provides that it is the policy of New York State to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by, among other things, preserving the unique qualities of special resources such as the Adirondack and Catskill forest preserves and providing that neighborly care is taken for the air resources that are shared with other states.

ECL section 1-0303 contains relevant definitions.

ECL section 3-0301. This section empowers the Department to coordinate and develop programs to carry out the environmental policy of New York State set forth in section 1-0101. Section 3-0301 specifically empowers the Department to: provide for the prevention and abatement of air pollution; cooperate with officials and representatives of the federal government, other states, and interstate agencies regarding problems affecting the environment of New York State; encourage and undertake scientific investigation and research on the ecological process, pollution prevention, abatement, and other areas essential to understanding and achieving the environmental policy set forth in section 1-0101; and monitor the environment to afford more effective and efficient control practices.

ECL section 19-0103. This section declares it to be the policy of the state of New York to "maintain a reasonable degree of purity of the air resources of the state…"

ECL section 19-0105. This section sets out the purpose of Article 19 is "to safeguard the air resources of the State from pollution . . ."

ECL section 19-0107. This section defines air pollution related terms.

ECL section 19-0301. This section declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution and shall include in such regulations provisions prescribing the degree of air pollution that may be emitted to the air by any source in any area of the State. Specifically, paragraphs 19-0301(1)(a) and (b) state that:

1. Consistent with the policy of the state as it is declared in section 19-0103, the Department shall have power to:

a. Formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution in such areas of the state as shall or may be affected by air pollution…

b. Include in any such codes and rules and regulations provisions establishing areas of the state and prescribing 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...

Paragraph 19-0301(2)(a) further provides that it shall be the duty and responsibility of the Department to prepare and develop 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 varying requirements for different areas of the State.

ECL 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.

ECL section 19-0305. This section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19. Section 19-0905 also empowers the Department to conduct or cause to be conducted studies and research with respect to air pollution control, abatement or prevention.

ECL Sections 71-2103 and 71-2105 set forth the civil and criminal penalty structures for violations of Article 19.

2. Legislative Objectives

The legislative objectives of ECL Article 19 are clearly articulated in section 19-0301 and 19-0303 as described above. ECL Article 19 was enacted to safeguard the air resources of New York from pollution and ensure the protection of the public health and welfare, the natural resources of the State and physical property, and integrating industrial development with sound environmental practices. This proposal furthers the statutory and public policy objectives sought by the Legislature because it facilitates cleaner air and overall economic and social well-being. Proposed Part 257 streamlines and simplifies compliance for the regulated community by eliminating obsolete and redundant air quality standards, updating collection and measurement requirements, and restructuring the regulation for easier parsing by regulated entities and the people of New York alike.

3. Needs and Benefits

The proposed changes are needed because New York State's Ambient Air Quality Standards are out of sync with the current federal National Ambient Air Quality Standards. The public and regulated community will benefit from the proposed changes because the streamlined regulation will remove redundant and obsolete sections allowing for a more direct reading of the requirements. It is also important for the Department to review and update regulations on a consistent time frame to ensure the public the most protective public health benefits.

The following federal standards are outdated and will be repealed:

257-3.3(a) Standards for Suspended Particulates. The 24-hour suspended particulate (PM10 particles) standard is outdated.

257-3.3(b) Standards for Suspended Particulates. The federal annual PM10 standard was repealed in 2006 but New York State still lists an annual standard in Subpart 257-3.

257-3.6 Sampling frequency, the frequency for the annual standard is outdated.

257-4 - Air Quality Standards - Carbon Monoxide. This standard is redundant of the federal regulations.

257-5 - Air Quality Standards - Photochemical Oxidants. This term is outdated and currently superseded by federal ozone regulations.

257-6 - Air Quality Standards - Hydrocarbons (non-methane). This standard is outdated and no longer justified.

257-7 - Air Quality Standards - Nitrogen Dioxide (NO2). This standard is redundant of the federal regulations.

257-9 - Air Quality Standards - Beryllium. This standard is outdated and no longer justified.

The following subparts are specific to the State of New York and will remain in effect with either no or minor revisions:

257-2 - Air Quality Standards - Sulfur Dioxide SO2

In June of 2010, the USEPA promulgated a one-hour primary standard for sulfur dioxide (SO2). The current Part 257 regulation does not include the one-hour and the Department recommends not adding it to Part 257-2 at this time.

The current federal SO2 standards require the Department to demonstrate attainment with a 3-hour, 24-hour and annual concentration throughout New York State. The Department acknowledges that these 1971 standards must remain in effect until one year after an area is designated for the 2010 standard. Based on a court ordered schedule, USEPA will make the last of the designations for the 2010 standard in December 2020. The Department will keep subpart 257-2 in effect until that time after which the 3-hour, 24-hour and annual concentration attainment requirements will expire and Part 257-2 will be repealed.

257-3 - Air Quality Standards - Particulates

257-3.3(c), (d) and (e) Standards for Suspended Particulates are re-lettered.

Subpart 257-3.3 lists standards for suspended particulate (< 10 microns) for 30, 60 and 90 days with varying allowable concentrations based on Subchapter C, Air Quality Classifications I through IV. These standards will remain in effect.

257-8 - Air Quality Standards - Fluorides

Subpart 257-8 is renumbered 257-4

The fluoride State Air Quality Standard (SAQS) is specific to New York. The SAQS addresses the deposition of fluoride compounds during the manufacturing of primary aluminum. The method specified for measuring total fluorides is from 1970 and will be updated.

257-10 - Air Quality Standards - Hydrogen Sulfide (H2S)

Subpart 257-10 is renumbered 257-5

The hydrogen sulfide standard shall remain in effect for the protection of the public from the operational release of hydrogen sulfide from landfills, sewage treatment plants and pulp mills which can interfere with the comfortable enjoyment of life or property. The analytical methods for the measurement H2S, section of subpart 247-5, will be updated to reflect the current state of science. The standard for hydrogen sulfide will be adjusted to two significant figures, 0.010 ppm from the current standard of 0.01 ppm for clarification.

4. Costs

The costs of this regulatory change are negligible for the public and regulated community. The proposed changes represent repealing outdated information and allowing for the use updated measurement methodologies. There will be no additional costs on small businesses or local government. The costs to the State and Department are confined to the normal administrative costs of proposing or modifying departmental regulations.

5. Local Government Mandates

This proposed revision to Part 257 contains no local government mandates.

6. Paperwork

This rulemaking would require the collection of facility specific emissions information and emission point parameters for all Title V and State Facility permits when demonstrating compliance with the regulation. Those facility owners currently subject to Part 257 would not see any increase in paperwork or control restrictions.

7. Duplication

The purpose of the proposed changes is to remove duplicative and obsolete requirements.

8. Alternatives

One alternative to the proposed rulemaking is to leave the current state air pollution standards in place, however, as described above, the standards are either outdated or superseded by another regulation. It is the commitment of the Division of Air Resources to actively look at applicable regulations and address outdated or obsolete regulations.

Another alternative scenario is repealing all subparts of Part 257. This action would deprive the citizens of New York of the public health protection provided by the updated regulations. For example, Subpart 257-10, the air quality standard for hydrogen sulfide, protects citizens from the operational release of hydrogen sulfide from landfills, sewage treatment plants and pulp mills which can interfere with the comfortable enjoyment of life or property.

9. Federal Standards

Subparts which have been superseded by stricter federal regulations, will be revised or repealed as necessary.

10. Compliance Schedule

There are no new compliance schedules associated with this rulemaking.


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    Division of Air Resources
    Part 257
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