Regulatory Impact Statement 6 NYCRR Part 621
The New York State Department of Environmental Conservation (Department) is proposing to amend its Uniform Procedures found in Title 6 of Official Compilation of Codes, Rules and Regulation of the State of New York (6 NYCRR) Part 621. In a concurrent rulemaking, the Department is proposing to amend Part 201 in order to, in part, limit the term of new and modified state facility permits to no more than 10 years. Under the existing Part 201, state facility permits are issued for an indefinite permit term. The term of certain air permits issued by the Department is also mentioned within Part 621. This proposal will amend Part 621 to make it consistent with the proposed revisions to Part 201.
1. Statutory Authority
The statutory authority for these regulations is found in Sections 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-0301, 19-0302, 19-0303, 19-0305, 19-0306, 19-0311, 70-0107, 70-0109, 71-2103, and 71-2105 of the Environmental Conservation Law (ECL).
Section 1-0101. This section outlines the policy declaration for the Department as it relates to the protection of New York State's environment and natural resources including the control of "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 states that it is the policy of the State to coordinate its environmental plans, functions, powers, and programs with those of the federal government and other regions to manage air resources such 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 the State to foster, promote, create, and maintain an environment where man and nature thrive in harmony by providing that care is taken with air resources shared between states.
Section 3-0301. This section states that it is the responsibility of the Department to carry out the environmental policy of the State. In order to carry out that mandate, Section 3-0301(1)(a) gives the Commissioner the authority to "[c]oordinate and develop policies, planning and programs related to the environment of the State and regions thereof..." Section 3-0301(1)(b) instructs the Commissioner to promote and coordinate management of, among other things, air resources "to assure their protection, enhancement, provision, allocation and balanced utilization consistent with the environmental policy of the State and take into account the cumulative impact upon all such resources in making any determination in connection with any license, order, permit, certification or other similar action or promulgating any rule or regulation, standard or criterion." ECL Section 3-0301(1)(i) charges the Commissioner with promoting and protecting the air resources of New York State, including providing for the prevention and abatement of air pollution.
Section 3-0301(2)(a) gives the Commissioner the authority to adopt rules and regulations in order to implement the provisions of the ECL. Section 3-0301(2)(g) allows the Commissioner to enter and inspect air pollution sources and verify compliance. Section 3-0301(2)(m) grants the Commissioner the authority to "adopt such rules, regulations, and procedures as may be necessary, convenient, or desirable to effectuate the purposes of this chapter."
Section 3-0303. This section requires that the Department formulate, and periodically revise, a statewide environmental plan for the management and protection of the environment and natural resources of the State. The Department must conduct public hearings, cooperate with other departments, agencies and government officials, and any other interested parties, and obtain any necessary assistance and data from any department, division, board, bureau, commission or other agency of a state or political subdivision or any public authority when formulating or modifying the statewide environmental plan.
Section 19-0103. This section provides a declaration of the State's policy regarding air pollution. "It is declared to be the policy of the State of New York to maintain a reasonable degree of purity of the air resources of the State...and to that end to require the use of all available practical and reasonable methods to prevent and control air pollution."
Section 19-0105. This section defines the purpose of Article 19 of the ECL, "to safeguard resources of the State from pollution" consistent with the policy stated in Section 19-0103 and in accordance with other provisions of Article 19.
Section 19-0301(1)(a). This section states that the Department has the power to "[f]ormulate, 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..." Section 19-0301(1)(b) further states that the Department has the power to "[i]nclude 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, (2) the extent to which air contaminants may be emitted to the air by any air contamination source..."
Section 19-0301(2)(a) states that it is the duty and responsibility of the Department to prepare and develop a comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution that recognizes various requirements for different areas of the State.
Section 19-0302. This section states that permit applications, renewals, modifications, suspensions and revocations are governed by rules and regulations adopted by the Department, and that permits issued may not include performance, emission or control standards more stringent than any standard established by the Act or EPA unless such standards are authorized by rules or regulations.
Section 19-0303. This section states that a code, rule or regulation or any amendments or repeal thereof will not be adopted until after a public hearing is held and may not become effective until filed with the Secretary of State. The Department may also recognize differences between the State's air quality areas in its rulemaking activities. In addition, this section outlines procedures for adopting any code, rule or regulation that contains a requirement that is more stringent than the Act or regulations issued pursuant to the Act by the EPA.
Section 19-0305. This section authorizes the Department to enforce codes, rules and regulations promulgated in accordance with Article 19 of the ECL. In addition, Section 19-0305(2)(j) authorizes the Department to consider the approval or disproval of permit applications for the installation of air contamination sources and air emission control equipment. Section 19-0305(2)(j) further authorizes the Department to inspect such installations for compliance with the submitted plans and specifications.
Section 19-0311(1). This section requires that the Department "establish an operating permit program for sources subject to Title V of the Act." This section also outlines the various requirements that the permit program must satisfy, including the specific emission sources that are subject to the program.
Section 19-0311(2)(a). This section states that the Department shall "review and revise, as necessary to be consistent with the Act and other applicable federal and state laws, existing regulations to provide for adequate, streamlined and reasonable procedures for processing permit applications, for public notice and participation, including offering an opportunity for public comment and hearing, and for expeditious review of permit actions, including applications, renewals and revisions."
Section 70-0107. This section charges the Department with developing and promulgating rules and regulations that ensure the efficient and expeditious implementation of the ECL. Further, this section states that such regulations shall include, but not be limited to, the uniform procedures used by the Department.
Section 70-0109. This section outlines acceptable time periods for Department action on permit applications.
Section 71-2103. This section outlines the penalties for violating any section of the ECL or any code, rule, or regulation promulgated pursuant thereto. This section also discusses the methods that the State may use to collect such penalties.
Section 71-2105. This section describes the penalties associated with any criminal violations of the ECL or any code, rule, or regulation promulgated pursuant thereto.
2. Legislative Objectives.
The ECL charges the Department with developing and implementing rules and regulations that establish clear and concise uniform procedures to be used in the processing of permit applications. To that end, the Department is proposing to amend Part to make it consistent with the concurrently proposed revisions to Part 201, in order to eliminate any potential confusion, questions or delays.
3. Needs and Benefits
Need for revisions to Part 621
The Department's concurrently proposed amendments to Part 201 will create more definite time frames in certain portions of Part 201. Specifically, the maximum permit term for air state facility permits will now differ from Part 621. This proposal will amend the language in Part 621 to remove that difference and make Part 621 consistent with the revisions to Part 201 being concurrently proposed, thereby avoiding any unnecessary questions and delays.
Benefits of revisions to Part 621
Making the language in Parts 621 and 201 consitent will remove any potential confusion for those entities with state facility permits, and those wishing to submit an application for a state facility permit to the Department. Further, the proposed change will clarify any ambiguity regarding the maximum term of that permit when it is issued.
Under the existing Part 201, air state facility permits are currently issued for an indefinite period of time. While this approach has worked well in the past, recent increases in the number of new federal standards and regulations, as well as in proposed modifications to existing permitted minor facilities, has highlighted the need for a more regular review of permitted minor facilities. Accordingly, the Department is concurrently proposing to amend its existing Part 201 to include a more definite term limit for state facility permits. Specifically, the Department is proposing to establish a maximum term limit for new and modified state facility permits of 10 years. This 10 year limit was chosen to avoid confusion with the statutory deadlines for Title V permit renewal, and to mitigate any burden this change may impose on both the regulated community and Department staff. This process will provide the Department's staff with control over the flow of renewal applications for state facility permits. Existing air state facility permits will remain in effect until the new permit has been issued.
There are no cost increases associated with this proposed change.
The proposed revision to Part 621 will not cause any increase in paperwork for regulated entities or the Department.
6. Local Government Mandates
The proposed revision to Part 621 does not create any local government mandates.
The proposal is not intended to duplicate any state or federal regulations or statutes.
The only alternative to this proposal is to take no action. Taking no action will allow an inconsistency to remain in effect between Parts 201 and 621, resulting in confusion and unnecessary delays for Department staff and the regulated community.
9. Federal Standards
The proposed revision to Part 621 is in compliance with all federal standards.
10. Compliance Schedule
The proposed revisions do not result in the establishment of any compliance schedules.