6 NYCRR Parts 200, 201, and 231 Assessment of Public Comments Summary
Comments Received September 24, 2008 through October 24, 2008
The New York State Department of Environmental Conservation (Department) is proposing to amend existing 6 New York Code of Rules and Regulations (NYCRR) Parts 200 (General Provisions), 201 (Permits and Registrations), and 231 (New Source Review In Nonattainment Areas and Ozone Transport Regions). The amendments to Part 200 add a definition for Routine Maintenance Repair or Replacement, amend the definition of potential-to-emit, and remove the reference to delegation of the federal Prevention of Significant Deterioration (PSD) requirements. The amendment to Part 201 modifies the definition for Major Stationary Source. Existing Part 231 will be re-titled as New Source Review for New and Modified Facilities and will include new Subparts 231-3 through 231-13. The existing Part 231 regulations (Subparts 231-1 and 231-2) are being retained with only modification of applicability dates. The new Subparts will implement nonattainment, and attainment (PSD) New Source Review.
The Department's proposed amendments to 6 NYCRR Parts 200, 201, and 231 were published in the State Register on September 26, 2007. The Department's proposed amendments have been revised to address public comments received on the Department's September 26, 2007 proposal, Department initiated revisions to the September 26, 2007 proposal, and EPA's final "reasonable possibility" rule for insignificant modifications promulgated on December 21, 2007. The Department's re-proposed amendments to 6 NYCRR Parts 200, 201, and 231 were published in the State Register on September 24, 2008. The comment period closed on October 24, 2008. The Department received written comments from 11 different commenters regarding the re-proposed regulation. All of the comments have been reviewed, summarized and responded to by the Department in its Assessment of Public Comments document.
Generally, the commenters supported the Department's effort to revise its new source review regulations and adopt a State PSD program. However, all commenters, including industry and environmental organizations, expressed opposition to various aspects of the proposed amendments for a variety of reasons. The comments covered a number of topics including, regulatory efficiency, technical concerns, economic impacts, perceived inconsistencies with the Environmental Conservation Law (ECL) and the Clean Air Act (CAA), and legal concerns.
The proposed definition for routine maintenance, repair, or replacement was added to Part 200 to clarify an existing federal regulatory exemption from the definition of "modification" for those activities that involve "routine maintenance, repair, or replacement" (RMRR). Many commenters expressed concern regarding the Department's proposal to establish a definition for "Routine Maintenance, Repair, or Replacement" in Part 200.1(cl). While supporting the RMRR exemption, these commenters characterized the definition as being vague and unworkable. These commenters expressed concern with the Department's use in the definition of the words "generally" and "typically" and requested further definition of those terms. Other commenters took issue with the indication that RMRR is "typically paid for out of the operation and maintenance (O and M) budget of the facility. " The RMRR definition mentions sources of funding in order to differentiate between operation and maintenance budgets, which would likely have funds specifically set aside for routine replacements, and those capital expenditures which would be more indicative of non-routine activities. The proposed regulation does not establish a presumptive exclusion from the definition of modification for those activities financed from a capital budget, or establish a bright-line for treating O and M expenses as RMRR. The source of funding is one of several criteria to consider when characterizing an activity as routine or non-routine.
Commenters also stated that the RMRR definition, as proposed, could limit the availability and reliability of the equipment at their facilities, and that any project, including maintenance activities, could be considered as life extending and therefore not meet the definition of RMRR. Most commenters requested that the definition be eliminated completely or revised to include additional clarification of the terms contained in the definition. To address commenters concerns, the Department has revised the definition to clarify the meaning of RMRR. The proposed Part 231 definition states that the Department will continue to review activities on a case-by-case basis as has been the established practice.
A comment was received regarding the proposed definition of "major stationary source" in Paragraph 201-2.1(b)(21). The commenter correctly states that the Department intends to use the proposed definition for implementing the major NSR requirements in Part 231 as well as the Title V permitting requirements in Part 201. The commenter believes that the proposed definition could lead to confusion when the definition is relied upon for implementing Part 231 because the 250 tpy major facility threshold that applies in attainment or unclassified areas, for sources that are not in a listed source category, is not referenced. The Department agrees with the commenter's concern. To address this issue, the Department will revise the proposed definition.
A comment was received regarding the Department's mandated use, by reference, of Departmental "policy" documents with regard to air quality impact analyses. Concern was stated that references to such guidance and policy are construed as establishing binding and enforceable standards. During the formulation of the draft Part 231 rule, the air quality impact analysis procedures referred to were proposed for public comment on March 8, 2006 and finalized as DAR-10 in the Environmental Notice Bulletin on May 24, 2006 after minor public comments were received. DAR-10 is titled "NYSDEC Guidelines on Dispersion Modeling Procedures for Air Quality Impact Analysis. " In accordance with Section 3-0301(z) of the Environmental Conservation Law, the Department must make available for public notice, and in appropriate cases public comment, all guidance memoranda and similar documents of general applicability which provide guidance to the general public in complying with the Environmental Conservation Law and its regulations. The purpose of DAR-10 is to provide guidance to the regulated community as to what methods will be considered acceptable approaches for dispersion modeling methodologies and related air analysis procedures.
Several comments were received regarding the Department's proposal to continue with a single baseline period for all regulated NSR contaminants for a single project. The commenters on this issue requested that multiple baselines be allowed for a single project, indicating that the Department is overly restrictive compared to the EPA, limiting the ability of a facility to account for variability in production rates, fuels and raw materials. The use of multiple baselines could result in a facility selecting several different baseline periods to maximize the determination of past actual emissions for several different pollutants. The Department believes this could create an artificially high profile of baseline actual emissions which in fact were never emitted by the facility (or emission source) and, in extreme cases, could never be achieved by the facility in actual operation. With higher baseline emissions during a particular two-year period, a proposed project could possibly avoid being subject to NSR for those pollutants as a result of selecting that baseline period. The result of this is the potential for a project that would otherwise be considered major except for the artificially high baseline to either "cap out" or "net out" of NSR. This would cause an increase in emissions that would exacerbate air quality problems in New York State. The Department has determined that a single baseline period for a specific project is more appropriate for New York's NSR program. The use of a single baseline period assures that a proposed project is based on an actual operating scenario and not an artificially high emissions baseline. The Department will not make the requested change.
Comments were received regarding the Department's proposal to allow a baseline period of five years for determining baseline actual emissions. The Department's proposal allows the determination of baseline actual emissions by calculating pre-change emissions based on actual emissions during any 24 consecutive months within the five years immediately preceding the change. The commenters requested that the proposed baseline period be consistent with the current Federal baseline period (10 year look-back) provisions that allow the determination of baseline actual emissions by calculating pre-change emissions based on actual emissions during any 24 consecutive months within the ten years immediately preceding the change. Alternatively, they requested that the Department allow for a 10 year look-back while reserving the ability to determine whether a proposed baseline period is most representative of normal operations. The Department believes that the implementation of NSR in New York needs to be streamlined, and having a more straightforward approach to determining baseline actual emissions is a significant step to achieving that goal. Under the baseline period definition in current Subpart 231-2, facilities are not allowed to demonstrate that a 24 consecutive month period, outside of the five years immediately preceding a project, is more representative of normal facility operations. Facilities do, however, have the opportunity to make a case that another 24 consecutive month period within five years immediately preceding a project is more representative of baseline emissions. This requires a case-by-case review of historical facility operations by Department staff, an extremely resource intensive process, as noted in the Regulatory Impact Statement, that can lead to inconsistent application of the rule throughout the State. Allowing facilities to choose any 24 consecutive months in the five years immediately preceding a project avoids this result. The Department believes that allowing any 24 consecutive months in five years provides facilities with a sufficient period of time to establish baseline emissions. The Regulatory Impact Statement discusses in detail the rationale behind the Department's decision to propose the baseline period consisting of any 24 consecutive months in the five years immediately preceding a project. No change will be made to the proposed baseline period.
Comments from various environmental groups and industry representatives were received regarding the proposed Subpart 231-11 reporting and recordkeeping requirements associated with projects for which there exists a reasonable possibility of triggering NSR applicability. The comments from environmental groups suggested that the proposed regulations may contain a "loophole" for facilities that attribute all of the increase to demand growth. The commenters recommend that the Department clarify the requirements of Subpart 231-11 to eliminate the "loophole". The industry comments stated that the proposed provisions will impose regulatory requirements that are more stringent than Federal requirements, and the recordkeeping requirements are excessive for modifications that have no reasonable possibility of resulting in a significant emissions increase. They further state that there is no justification for requiring the Section 231-11.4 recordkeeping and monitoring requirements when a project's potential to emit ensures there's no reasonable possibility that actual emissions will exceed the significance thresholds. The Department understands the concerns of both the environmental and industry commenters. The Department disagrees with the environmental groups' assertion that the proposal would require fewer sources to monitor post-change emissions than required under the federal reasonable possibility rule. The Department also disagrees with the industry comment that the recordkeeping requirements are excessive for modifications that have no reasonable possibility of resulting in a significant emissions increase. Requiring such records is important if a facility proposes a project in the future for which a net emission increase determination is necessary. Furthermore, Federal regulations require that all emissions, including emissions from any exempt or trivial activity, which are contemporaneous with a proposed project, be included in any net emissions increase determination. Maintaining the records under proposed Subpart 231-11 ensures that all emission increases are on record and available should a net emission increase determination be required. The Department believes that the rule as proposed strikes an appropriate balance between environmental concerns and economic and administrative concerns.
Comments were received regarding the Plantwide Applicability Limitation in proposed Subpart 231-9. Both the environmental and industry commenters supported the PAL provisions, but both had concerns with specific aspects of the PAL provisions. Environmental commenters objected to allowing sources to use different baseline periods for different pollutants, allowing a source which has not yet commenced construction to include emissions equal to the potential to emit, and allowing a PAL to be presumptively renewed at the existing PAL level. The industry commenters objected to the 25 percent reduction requirement in the sixth year of the PAL. As discussed in the Regulatory Impact Statement, the Department wants to encourage the use of PALs in the State and believes that they could provide a measure of regulatory flexibility while at the same time providing for long-term protection of the environment. The environmental commenters' proposed revisions would significantly reduce the flexibility provided by the rule and, as a result, discourage the use of PALs in the State. The industry commenters' request to delete the 25 percent reduction requirement would not be consistent with the Department's environmental protection goals. The Department has determined that additional environmental benefits will result from requiring a reduction in the PAL of up to 25 percent in the sixth year of the PAL. The Department believes that the proposed PAL provisions best balance the goals of improving air quality while reducing the burden of NSR compliance on industry. The Department will not revise these provisions.
Comments were received regarding PM2.5 requirements. Industry strongly urged the Department to follow EPA's May 2008 final NSR regulations for PM2.5 and offer an offset program that recognizes SO2 and NOx as PM2.5 precursors and allows ERCs of these contaminants to be used to offset PM2.5 increases and for internal PM2.5 netting. States with EPA approved PSD programs and those with PM2.5 nonattainment areas have up to three (3) years to submit a revised SIP incorporating the PM2.5 NSR requirements. The Department will need time to evaluate EPA's final PM2.5 rule, specifically with regard to applicable PM2.5 precursors and appropriate interpollutant trading ratios to determine what provisions make sense for New York. Until the Department has an approved program addressing PM2.5, EPA will be implementing all PM2.5 NSR requirements.
Comments were received regarding the rule's implementation of a transition plan, specifically with regard to the applicability of 40 CFR 52.21, following the promulgation of Part 231. Both rules will continue to be applicable until Part 231 is included in the New York State SIP and is approved by EPA.
Comments were received regarding the existing significant project threshold of 2.5 tons per year for VOC and NOx in the severe ozone nonattainment area. Industry has advocated for an increase in the significant project threshold applicable to the severe ozone non-attainment area. Industry recommends increasing the significant project threshold in proposed Part 231-13.3, Table 3 to 12.5 tpy. The Department will retain the significant project threshold of 2.5 tons per year for NOx and VOC for the severe ozone nonattainment area. The Department has determined that retention of this threshold is vital to New York State's ability to control ozone and crucial to its SIP for attaining the 1-hour ozone NAAQS. Raising the significant project threshold to 12.5 tpy as requested by commenter would relax requirements that have been in place for almost eight years and result in fewer modified facilities undergoing NSR review and could potentially raise concerns under the anti-backsliding provisions of the Clean Air Act. Finally, the threshold levels for non-attainment areas are established in the Clean Air Act (CAA). For severe areas the CAA requires that any increase be considered significant.
Comments were received from industry objecting to the proposed requirement for a facility to apply for and obtain a permit that establishes an emission limit associated with an insignificant net emission increase determination. The Department's policy has always been to require applicants to accept permissible emission limits when avoiding NSR applicability. BACT and LAER avoidance permit conditions have been included in dozens of facility permits throughout New York State since the NSR program was first promulgated. This is not a new requirement and only affects the source that was constructed or modified not necessarily an entire facility.
