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6 NYCRR Parts 201 and 200 Assessment of Public Comments Summary

Comments received from August 1, 2012 through 5:00 P.M., September 27, 2012

The New York State Department of Environmental Conservation (Department) is adopting revisions to 6 NYCRR Parts 201, Permits and Registrations and 200, General Provisions (collectively Part 201). The Department proposed Part 201 on August 1, 2012. Public hearings were held in Avon on September 17, 2012, in Albany on September 19, 2012, and in New York City on September 20, 2012. The public comment period closed at 5:00 P.M. on September 27, 2012. The Department received written comments from 10 commenters, all of which have been reviewed, summarized, and responded to by the Department.

Overall, comments received by the Department expressed support for the proposal, or commented on specific portions of Part 201. The Department did not receive any comments objecting to the proposal in its entirety.

Several commenters raised issues with regard to the proposed recordkeeping requirements during periods of start-up, shutdown, and malfunction contained in Section 201-1.4. In general, the commenters disagreed with some of the proposed changes to the existing language, arguing that the revised terms had the potential to create a disproportionate burden during certain situations. The Department responded to these comments by reviewing the proposed language and reinstating several of the phrases that were to be deleted, thereby alleviating the commenter's concerns.

One commenter raised an issue with the emergency defense provisions in Section 201-1.5. Specifically, the commenter stated that the Clean Air Act (Act) does not allow for the assertion of an affirmative defense in all enforcement actions, particularly when the facility has violated a federally promulgated performance standard or emission limit. The Department responded by revising the language of Section 201-1.5 to make it clear that proving an emergency only constitutes an affirmative defense to enforcement actions brought by the Department.

Commenters raised two issues with Section 201-1.10. One commenter expressed concern that the proposed language would limit the public's access to only those records already requested by the Department. The Department disagreed with this comment because Subdivision 201-1.10(a) allows the Department to request records from a facility owner or operator pursuant to requests from the public. Another commenter expressed concern that Section 201-1.10 could allow the public to inundate regulated facilities with nuisance requests for records. The commenter suggested that the Department, not the regulated facility, should respond to such requests. The Department responded by pointing out that Section 201-1.10 clearly states that the Department will respond to a public request for records pursuant to 6 NYCRR Part 616 and the Freedom of Information Act.

Several comments were received on the proposed addition of requirements for temporary emission sources. Overall, the commenters expressed support for these new provisions. One commenter expressed concerns with the Departments proposed definition of a temporary emission source. Specifically, the commenter argued that the proposed language would potentially allow the owner or operator of a temporary emission source to operate for 90 days, stop operation for a day, and begin again with a new 90 day period. The Department agreed with the commenter's assertion, and revised the proposed definition to make it clear that the facility owner or operator is allowed only a single 90 day period before they must have a permit or registration.

Another comment expressed confusion over the phrase "transient in nature" as it is used in the definition of a temporary emission source. Specifically, the commenter requested that the department define "transient" in the proposed rule and provide clarification as to what makes an emission source transient in nature. The Department believes that the dictionary definition of transient is sufficient for the purposes of Part 201, and therefore disagreed with the commenter that a separate definition is necessary. The Department did provide clarification as to what makes an emission source transient in nature.

The Department also received a comment suggesting that the proposed definition of temporary emission source require that the temporary emission source have at least one change in location during the operating period. Further, the commenter suggested that the Department should require the owner or operator of a temporary emission source keep records of the source's location. The Department disagreed with both of these comments because the Department issues and monitors air permits and registrations on a facility wide basis. By requiring the owner or operator to change the location of a temporary emission source, the Department would simply be asking for the source to be moved around within the same facility. This would create a burdensome and unnecessary condition for compliance that has little effect emissions. In addition, facility owners and operators are required to maintain records indicating the dates of operation for a temporary emission source. By doing so, the location of that source is also documented as the physical address of the facility in question. Adding a separate record keeping requirement to track the location of the temporary emission source would be duplicative and of only minimal consequence.

Comments were received on the use of the term "portable emission source". Specifically, one commenter expressed confusion over the difference between a portable emission source and a temporary emission source. The Department responded to this comment by explaining that portable emission sources are not always temporary emission sources. It is common for portable emission sources to be operated for longer than 90 days at a time. The same commenter also requested that the Department retain the phrase "without a deterioration in the effectiveness of any air pollution control equipment" when revising the definition of portable emission source. The Department disagreed with this comment as the functionality of any associated control equipment has little bearing on whether or not the emission source is portable.

Another commenter objected to the proposed language that would prohibit facilities subject to regulation under Title IV of the Act from operating temporary emission sources. The commenter argued that the operation of a temporary emission source is often necessary at Title IV sources, and that such operation would have little impact on the facility's Title IV status. 40 CFR Part 70.6(e) states that a source subject to Title IV of the Act may not be considered as a temporary emission source, however it is silent on the operation of temporary emission sources at facilities that are subject to Title IV of the Act. Accordingly, the Department agreed with the commenter and modified the proposed language accordingly.

One commenter objected to the advance notification provisions for temporary emission sources. Specifically, the commenter stated that there are certain situations where the exact start date of a temporary emission source may not be known or may be subject to change. The Department disagreed with this comment, responding that advance notice is necessary in order to allow Department staff sufficient time to evaluate the potential temporary emission source for compliance with the operating limits given in Section 201-1.11.

The Department also received a comment regarding the proposed phase-out of Certificates to Operate (COs). The commenter stated that the Department must maintain the historical basis for the terms and conditions in Title V permits, including any information carried over from phased-out COs. The Department currently archives, and will continue to archive, all expired permits, including COs, for historical purposes.

Two commenters objected to the proposed requirement to commence construction within 18 months of permit or registration issuance. The commenters argued that the construction of large scale electric generating projects often takes longer than 18 months, and that the proposed requirement would result in premature permit termination for those projects. Further, the commenters argued that the proposed requirement undermines New York State's Article 10 process for large scale electric generating projects by prematurely terminating permits. The Department disagreed with these comments. Large scale electric generation projects are already required to comply with a similar 18-month requirement under the Prevention of Significant Deterioration program. Therefore, the proposed requirement does not represent an additional burden for these facilities.

The commenters further objected to this same requirement by claiming that the proposed language is unnecessary since the Department already has similar authority under 6 NYCRR Section 621.13(a)(4). The Department disagreed with this comment. There are several federal rules that apply to an emission source based on the date of construction or modification of that emission source. In a case where an emission source is subject to an applicable regulation with such an applicability date, it is possible for the facility owner or operator to avoid certain requirements by obtaining a permit or registration for that source prior to that date and constructing the source after the applicability date has passed. In this scenario, the applicable law or regulation has arguably not undergone a "material change", and therefore the Department may have limited authority under Part 621 to ensure that the appropriate regulatory requirements are included in the facility's permit once it is issued.

The commenters also suggested that the Department revisit its conclusion that costs for major facilities would not increase as a result of the proposed rulemaking. The commenters argued that the proposed requirement to commence construction would add risk and uncertainty to future construction projects due to the possibility that the permit would be revoked if the proposed deadline was not met. The Department disagreed with this comment. The purpose of Section 201-1.15 is to ensure that permits and registrations are issued for projects that will be constructed in a timely manner. Accordingly, the project proponent is directly responsible for any financial risk they assume when proposing projects of a speculative nature (e.g. dependent on projected future markets) or projects that are not intended to be constructed in a timely manner. The Department cannot speculate on, or quantify, the costs associated with these types of projects.

One commenter expressed confusion regarding the term "non-road vehicles" used in proposed Paragraph 201-3.3(c)(10). In order to eliminate this confusion, the Department revised the proposed language to refer to "vehicles powered by non-road engines", which more clearly states the intent of the Paragraph. The commenter further suggested that "military tactical vehicles and equipment" be explicitly included in Paragraphs 201-3.3(c)(10) and 201-3.3(c)(11). The Department believes that the existing language of these Paragraphs is sufficient to include military tactical vehicles and equipment. Accordingly, no changes were made to the existing language.

Another comment suggested that equipment used in military training exercises should not be subject to permitting requirements. The Department disagreed with this comment because the potential exists for emission sources that would otherwise be required to obtain a permit or registration to operate outside established regulatory requirements as a training exercise.

Comments were received on the proposed language of Paragraph 201-3.3(c)(95). The commenter questioned why the Department singled out emissions of carbon dioxide and methane as a trivial activity. Further, the commenter expressed concern that the use of the word "specifically" in that paragraph could be misinterpreted to exclude emission sources that were otherwise intended to be regulated. These two compounds were singled out due to recent federal regulations that require certain facilities to monitor and report their greenhouse gas emissions. Since this requirement does not apply to all facilities, it is only necessary for those facilities that are subject to the regulation to demonstrate compliance with it. By using the phrase "specifically required", the proposed regulation makes it clear that emissions of carbon dioxide and methane are still considered to be trivial at facilities not subject to those regulations. Accordingly, the Department disagreed with this comment.

The Department received a comment requesting clarification on exempt and trivial activities. The commenter stated that it is difficult to determine when exempt and trivial activities need to be included in permit applications. In response, the Department provided an explanation of the proposed requirements, and made some minor changes to the proposed language to eliminate some of the confusion. The commenter also expressed concern with the proposed language of Subdivision 201-3.1(c). Specifically, the commenter felt that annual reporting for exempt and trivial sources operating at major facilities would create a significant burden on those facilities. The Department disagreed with the commenter because Subdivision 202-2.3(e) already requires major facilities to report emissions from exempt activities every three years. The Department is not changing this requirement, so no additional burden is created.

One commenter requested that the Department retain Paragraph 201-3.3(c)(50), stating that removing it would create a burden on the regulated community. The Department disagreed with the commenter, as the formerly trivial activity is still listed as an exempt activity in Subparagraph 201-3.2(c)(39)(ii). The language of Paragraph 201-3.3(c)(50) is essentially duplicative.

The Department received a comment expressing concern that by adding a finite term to air facility registrations and air state facility permits, the Department runs the risk that these permits will expire if they are not properly renewed. The Department disagreed with the commenter, stating that the proposed regulation also includes provisions establishing renewal procedures for these permits and registrations, thereby eliminating this risk.

The Department received comments objecting to some of the recordkeeping requirements imposed on facility owners and operators that choose to cap-by-rule. Specifically, the commenters stated that the proposed requirements would be burdensome. The Department disagreed with the commenters as these requirements are not new. This rulemaking simply relocates the existing requirements from existing Section 201-7.3 to a new Section 201-4.5 to improve the continuity of the rule.

One commenter suggested that the proposed language of Paragraph 201-6.2(a)(2) was potentially confusing and that the phrase "specifically required" should be removed. The Department agreed with the commenter and redrafted the paragraph to eliminate any confusion.

Commenters pointed out two typographical errors in proposed Subpart 201-9. The Department corrected these errors.

One commenter expressed concern that the proposed mass emission thresholds for persistent, bioaccumulative, and toxic compounds could create a compliance burden for smaller facilities that exceed one of the listed thresholds by requiring them to apply for a state facility permit. The Department disagreed with the commenter because there is little difference between a state facility permit and a registration in terms of compliance requirements.

Another comment argued that titanium tetrachloride should not be included in the list of persistent, bioaccumulative, and toxic compounds. The Department disagreed with this comment because titanium tetrachloride has a median lethal dose significantly above the maximum threshold level established in the DAR-1 guidance document. Accordingly, the Department believes that it is appropriate to include titanium tetrachloride in the proposed list of persistent, bioaccumulative, and toxic compounds.

The Department received comments suggesting that some of the listed persistent, bioaccumulative, and toxic compounds are used in agriculture and common household products, and that by including them on the list the Department was inadvertently requiring otherwise exempt and trivial emission sources to obtain air permits or registrations. The Department responded by clarifying that exempt and trivial sources are still considered to be exempt or trivial despite these new thresholds.

Another commenter asked if the Department considered the impacts of the proposed regulations on hydrofracking operations. The Department has already addressed the regulatory issues related to hydrofracking in public documents relating to that topic.

Several comments were received that are beyond the scope of this rulemaking.


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