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6 NYCRR Parts 200 and 201 Regulatory Impact Statement Summary

The New York State Department of Environmental Conservation (Department) is proposing to update its Operating Permit Program found in Title 6 of Official Compilation of Codes, Rules and Regulation of the State of New York (6 NYCRR) Parts 200, General Provisions; and 201, Permits and Registrations (Part 201). The last substantial overhaul of Part 201 occurred in 1996. At that time, the Department was required to revise Part 201 to incorporate the federal Title V permitting program mandated by the Clean Air Act Amendments of 1990 (Act). Many of the requirements in Part 201 have since become outdated and/or in need of substantial revision. While the Department has over the years made several minor changes to particular definitions and exempt activities, a comprehensive review and revision has not been proposed. This rulemaking will revise several components of the existing Part 201 to further clarify their requirements and simplify their implementation. This proposal applies to any entity that operates one or more stationary air emission sources in the State of New York, and does not create a mandate on local governments. The scope of the existing Part 201 will not be changed as a result of this proposal.

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, 70-0109, 71-2103, and 71-2105 of the Environmental Conservation Law (ECL), 40 CFR 70, Section 7661[b] of the United States Code (USC), and Sections 160-169 and 171-193 of the Federal Clean Air Act (Act) (42 USC Sections 7470-7479;7501-7515).

2. Legislative Objectives

Title V of the 1990 amendments to the Act established federal standards that states must satisfy with their air permitting programs in order to fulfill the environmental protection goals expressed therein. Such a program is required to address both large and small sources of air pollution, and provide a strong basis for implementing and enforcing various federal and state rules and regulations. The Department completed a rule making in 1996 that modified Part 201, and the Department's existing air permitting program, to be consistent with the new requirements of the Act. The knowledge and experience gained by the Department since that time has highlighted certain areas of the State air permitting program that need to be updated and revised. The changes being proposed through the present rulemaking are intended to increase the effectiveness of the program, streamline the permitting process, and make the program itself more efficient and responsive.

The development of a clear, concise and effective air permitting program will allow the Department to better fulfill its obligations to the citizens of the State while simultaneously meeting its responsibilities under the Act. This goal is consistent with the objectives set forth in both the Act and the ECL. The proposed revisions will also simplify the process for facility owners and operators by making the requirements for permitting or registering a facility more clear, consistent and concise. Finally, the revisions will make the program more efficient by reducing the amount of back and forth correspondence between the applicant, their consultants, and Department staff during the application review process.

3. Needs and Benefits

The Department responded to the 1990 amendments to the Act by restructuring its existing air permitting program to be consistent with the newly promulgated federal requirements. Since that time, the program has remained largely unchanged. The subsequent 15 years of experience with the existing program has highlighted several areas in need of update and revision. Accordingly, the Department is proposing to amend Part 201 to comprehensively address these issues and improve the air permitting program by streamlining certain portions of the permitting process, making it easier and more efficient for facility owners and operators to implement. In addition, this rulemaking will also address inconsistencies caused by the promulgation of several federal regulations since Part 201 was last revised. It is necessary to correct these inconsistencies in order to avoid further confusion and simplify program implementation for facility owners, operators, and the Department.

The proposed Part 200 amendments will update a reference to the National Toxicology Program's 'Report on Carciongens' that is used in Subpart 201-3. This will update the referenced version from the 1994 version to the 2011 version, ensuring that the most up to date information is used in Part 201.

The 1996 revisions to Part 201 included transition plan requirements to help the Department phase-in the new obligations under the Act. Many of these requirements have since lapsed and no longer apply to any existing or new sources of air pollution in the State. Accordingly, the Department will remove these outdated requirements as part of this proposal.

The provisions for emission sources that operate on a temporary basis will also be revised as part of this rulemaking. In the current version of the rule, temporary operations are only discussed in the portion of Part 201 that applies to major facilities subject to Title V permitting requirements. While temporary operations at Title V facilities are an important part of many industrial operations, they are also frequently used at smaller facilities. As part of this rulemaking, the Department is proposing to clarify the provisions that define how an emission source must be operated to be considered temporary, and extend those same provisions to all facilities, regardless of size.

Prior to 1996, the Department issued individual source permits, permits to construct, and certificates to operate (COs) to all applicable air emission sources at a facility. This practice changed in 1996 when the Department was required to revise its Part 201 to begin phasing-out the individual source permitting program and phasing-in the current program designed to permit an entire facility under a single permit or registration. Existing COs were extended indefinitely to mitigate some of the burden associated with the changes to the permitting program. Many facilities still hold one or more COs today and these permits need to be updated. The Department estimates that approximately 350 COs are still outstanding statewide. Facility owners and operators holding a current permit or registration are not affected by this change. The proposed revisions to Part 201 will require the owners or operators of facilities still holding COs to submit a facility permit or registration application to the Department within 90 days of receiving written notification from the Department.

The cap-by-rule requirements for facilities that choose to maintain annual actual emissions below 50 percent of the major facility thresholds, as defined and set forth in Subpart 201-7.3, will also be revised as part of this proposal. The current language includes a list of fuel usage limits intended to restrict combustion facilities to a level that would maintain their emissions below the capping thresholds. The values listed in this table are now outdated and need to be revised. Accordingly, as part of this rulemaking, the Department is proposing to do away with these values, and allow facility owners or operators to demonstrate compliance through recordkeeping. In addition, the cap-by-rule provisions for other types of facilities will be revised to increase their clarity and ease of implementation. This change will also help to reduce confusion for facility owners and operators by simplifying the language describing the necessary procedures for capping by rule.

The Department is further proposing to revise the list of activities that are exempt from permitting requirements. The proposed revisions will update several of the listed activities in order to make them consistent with federal and state requirements that have been promulgated since the list was first implemented in 1996. In addition, six new activities will be added. These new activities address emission sources and technologies that were not widely used when Part 201 was last revised in 1996.

The Department is proposing as part of this rulemaking to add new items to the required information that must be submitted with air facility registration and permit applications. The proposed changes will require applicants to submit more detailed emissions calculations, as well as the physical parameters of each emission point at the facility. By adding this requirement to the rule, the Department is codifying its long-standing practice of mandating the submittal of this information and supporting documentation during the permit review process. This change is intended to decrease the number of requests for additional information made by the Department during the permit application review process, making the process itself less cumbersome and time consuming, and more efficient.

The Department is proposing a term limit on new and modified registrations and state facility permits. Specifically, the Department is proposing to establish a maximum term limit of 10 years. The 10 year limit was chosen to avoid confusion with the statutory deadlines for Title V permit renewal and mitigate any burden this change may impose on both the regulated community and Department staff. In addition, owners and operators of facilities holding existing registrations or state facility permits will be required to submit renewal applications within 90 days of receiving written notification from the Department.

In addition to the proposed term limits for registrations and state facility permits, the Department is also proposing to limit the amount of time a facility owner or operator has to commence construction once receiving a permit or registration from the Department. Accordingly, Facility owners and operators will have 18 months from the date of permit or registration issuance to commence construction. Should the facility owner or operator fail to meet this deadline, the Department may revoke or modify their permit or registration as necessary.

The proposed revisions will also add a new subpart to the rule introducing a list of 62 toxic air contaminants that have been found to pose the greatest threat to public health, safety, and the environment. The new list of air pollutants will establish emission thresholds for Persistent, Bioaccumulative and/or Toxic (PBT) air contaminants. PBT air contaminants are chemical substances that are persistent (P) in the environment, accumulate in biological organisms (bioaccumulative (B)), and toxic (T), making them priority pollutants and potential risks to both humans and ecosystems. The list contains 26 compounds determined to be carcinogens by the National Toxicology Program of the US Department of Health and Human Services (NTP) , 12 of which are listed as known human carcinogens. Five families of compounds on the list are targeted for reduction by the Great Lakes Commission due to their long term persistence. Finally, the Emergency Planning and Community Right-to-Know Act has identified all but three of the listed PBT contaminants as significant compounds that should be evaluated. The three extra compounds were included because emissions of those compounds have required action by the Department in the past. By monitoring, controlling and potentially eliminating emissions of these compounds, the Department will be able to better fulfill its obligation to protect the health of the citizens and environment of New York State.

The proposed changes to Part 201 will ensure that PBT air contaminants are appropriately identified in permit and registration applications so that they can be properly monitored and, where possible, controlled by the Department. In addition, by establishing mass emission thresholds for these potentially hazardous compounds, the compliance process for regulating facilities will be simplified. A facility emitting one of these listed PBT air contaminants will be able to avoid conducting potentially costly emissions modeling and analysis since the modeling was already included in the development of the applicable threshold values. Further, the Department will benefit from this increased reporting on permit and registration applications by acquiring new data that can be used in future modeling exercises and/or to meet current and future air program goals.

It is important to note that this proposed change does not apply to facilities that operate only emission sources that are considered to be exempt or trivial pursuant to Subpart 201-3. The Department is confident that the activities listed as exempt and trivial will not result in emissions in excess of the proposed PBT thresholds. Further, the Department has decided to exclude combustion sources (i.e. boilers, stationary engines) from these requirements. Potential HAP and VOC emissions from these facilities are addressed through the federal National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations. The Department has no intention of duplicating that federal effort with this rulemaking.

4. Costs

Overall cost increases at currently regulated facilities are expected to be minimal if Part 201 is amended as proposed. In most cases, the affected facilities are already required to pay emission fees, monitor their emission sources and complete permit applications. In addition, many of these facilities already employ the necessary staff to complete and file any permit or renewal applications, and monitor their facility for compliance with any applicable environmental regulations.

Costs for complying with the permitting program will vary depending on the size and nature of the facility, and the types and amounts of pollutants it emits. While there are costs associated with compliance incurred by major facilities, the Department does not anticipate any change in those costs as a result of this rulemaking.

Annualized costs associated with obtaining and complying with a state facility permit or registration are estimated to be approximately $300/yr. These costs represent activities such as recordkeeping and filing annual reports with the Department. In addition, annual permit program fees based on the type, size and number of emission sources operated at the facility must be paid to the Department. Permit program fees are controlled by Section 72-0302 of the ECL, and are currently set at: $100 for a small combustion or incineration source, $160 for a small process source, and $2000 for a large combustion, incineration or process source. The total program fee for any particular facility is calculated by tallying the number of each type of source operated at the facility and adding the respective fees. Facility owners and operators operating air emission sources in New York State are currently required to pay these costs. The Department does not anticipate an increase in compliance costs as a result of this proposal.

In addition to the annual compliance costs and permit fees, there are also costs associated with preparing state facility permit and registration applications. The costs for state facility permit and registration applications in the downstate region ranged from $1,500 to $7,200 based on the number of emission points at the facility. In the upstate region, these costs are estimated at $1,800 to $4,000. Some facilities may choose to hire a consulting firm to assist with the permit application process. The Department estimates that the cost of hiring a consulting firm is approximately $6,000 per application.

The Department is sensitive to the costs of permitting for small businesses. The Small Business Environmental Assistance Program (SBEAP) is a component of EFC that provides free and confidential application preparation services for small businesses that own or operate minor facilities. This service mitigates a large portion of the costs of preparing permit applications, and helps to ensure facility owners and operators are in compliance with all applicable regulations.

5. Paperwork

The proposed changes to Part 201 are not expected to create any significant increase in the amount of required paperwork.

Facility owners or operators that are required to update their existing COs may incur some additional paperwork in the form of recordkeeping and/or reporting requirements that they were not previously required to satisfy. Any additional paperwork will be consistent with other similar facilities already holding a permit or registration.

6. Local Government Mandates

The proposed revisions to Part 201 do not create any local government mandates beyond the need for local governments operating sources of air pollution to apply for and comply with a permit or registration as necessary. This requirement has existed since the inception of the first air permitting program more than 30 years ago. It has always been the policy of the Department to review all sources of air emissions, regardless of ownership. This policy does not represent or create any additional or disproportionate burden for local governments.

7. Duplication

The proposal is not intended to duplicate any state or federal regulations or statutes.

8. Alternatives

An alternative to these proposed revisions is to take no action. Taking no action will have several negative consequences. First, outdated transition plan requirements and other confusing language will continue to remain in the rule. Second, sources of PBT compound emissions will continue to operate without increased scrutiny from the Department, potentially resulting in excess emissions. Third, facilities operating under existing COs will continue to operate indefinitely under their outdated permits, potentially resulting in excess emissions and non-compliance with newly promulgated state and federal regulations. The Department will not be able to properly address temporary emission sources, resulting in time consuming permit reviews for short-term actions with little environmental impact. Facility owners and operators will be required to respond to requests from the Department for more information, delaying the review of their permit applications and lengthening the overall permit issuance process.

9. Federal Standards

The proposed revisions to Part 201 are consistent with all federal standards.

10. Compliance Schedule

The proposed revisions do not result in the establishment of any compliance schedules. The regulation will take effect 30 days after publication in the State register, anticipated to be in November 2012. Current permit renewal schedules for regulated industries will remain, and any new requirements will be added during the permit renewal process. Facility owners or operators required to update their existing COs or submit a state facility permit or registration renewal application will be notified by the Department prior to their required filing date.


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