6 NYCRR Parts 203, 200, and 621 Regulatory Impact Statement
The Department of Environmental Conservation (the Department or DEC) is proposing to repeal 6 NYCRR Part 203 (Part 203), Indirect Sources of Air Contamination, and simultaneously revise 6 NYCRR Parts 200, General Provisions, and Part 621, Uniform Procedures, to remove all references to Part 203. Indirect source permitting is an intrastate air pollution control regulation that exclusively applies to any new or modified indirect source of air contamination located in New York County (Manhattan) south of 60th Street. An indirect source of air contamination is any facility, structure or installation where the associated vehicular movements (i.e., the traffic related to the source) contribute to air pollution. The principle air pollutant of concern for the regulation is carbon monoxide (CO), although the regulation also addresses ozone and nitrogen dioxide (NO2) in the case of the construction of highway sections of certain size. The existing regulation prohibits the construction or modification of an indirect source of air contamination without the Department issuing a permit to construct prior to construction or modification. The Department is proposing to repeal Part 203 and revise 6 NYCRR Part 200, General Provisions and Part 621, Uniform Procedures, to remove all references to Part 203. Part 203 has become obsolete and has been superseded by other regulations, most notably 6 NYCRR Part 240 (Part 240), Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws; 40 CFR 93 Subpart B, Determining Conformity of General Federal Actions to State or Federal Implementation Plans; and 6 NYCRR Part 617, State Environmental Quality Review. Therefore the Department proposes to repeal Part 203 in order to trim redundancy from the State's environmental regulations.
Since the promulgation of Part 203 in September of 1971, other federal and state regulations have been adopted which regulate air pollution from indirect sources. The construction and operation of highway projects for CO and ozone control is now covered under Part 240, including the establishment of motor vehicle emission budgets and "hot spot" (sensitive local area) evaluation procedures. Non-highway, non-federal projects, such as private office buildings or parking garages, are subject to review under the State Environmental Quality Review Act, 6 NYCRR Part 617. The reviews required by these regulations either duplicate or are more comprehensive than the analyses required under Part 203. In addition, the Department is in the process of preparing a limited maintenance plan for CO, the primary air pollutant of concern under Part 203, because the CO design value in the maintenance area is equal to or less than 85 percent of the CO National Ambient Air Quality Standard. Furthermore, a review of the Department's records determined that only one Part 203 Permit has been issued since 1988. This permit, issued in 1995, is for the New York State Department of Transportation (NYSDOT) Route 9A Reconstruction Project. The conditions attached to the permit are generic, and could apply to any Department permit. There is nothing contained within the permit that provides any additional environmental protection beyond the Department's current regulations and programs.
The statutory authority to repeal Part 203 in New York State (NYS) derives primarily from the Department's obligation to prevent and control air pollution, as set out in the Environmental Conservation Law (ECL) at Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, and 19-0303. Following are brief synopses and legislative objectives for these sections.
Section 1-0101. This section declares NYS's policy to: conserve, improve and protect its natural resources and environment and to prevent, abate and control air pollution in order to enhance the health, safety and welfare of the people of NYS and their overall economic and social well being; coordinate the State's environmental plans, functions, powers and programs with those of the federal government and other regions and manage air resources so that the State may fulfill its responsibility as trustee of the environment for present and future generations; and foster, promote, create and maintain conditions by which man and nature can thrive in harmony by preserving special resources such as the Adirondack and Catskill forest preserves and taking care of air resources that are shared with other states in the manner of a good neighbor.
Section 3-0301. This section empowers the Department to coordinate and develop programs to carry out the environmental policy of NYS 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 NYS; encourage and undertake scientific investigation and research on the ecological process, pollution prevention and abatement, and other areas essential to understanding and achievement of the environmental policy set forth in section 1-0101; monitor the environment to afford more effective and efficient control practices; identify changes in ecological systems and to warn of emergency conditions; enter into contracts with any person to do all things necessary or convenient to carry out the functions, powers and duties of the Department; and adopt such regulations as may be necessary, convenient or desirable to effectuate the environmental policy of the State.
Section 19-0103. This section declares the policy of NYS to maintain a reasonable degree of purity of air resources. The Department is required to balance public health and welfare, the industrial development of the State, propagation and protection of flora and fauna, and the protection of personal property and other resources. To that end, the Department must use all practical and reasonable methods to prevent and control air pollution in the State.
Section 19-0105. This section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of NYS under a program which is consistent with the policy expressed in section 19-0103 and in accordance with other provisions of Article 19.
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 permitted and the extent to which air contaminants may be emitted to the air by any source in any area of the State.
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. Section 19-0303 also provides that the Department, in adopting any regulation which contains a requirement that is more stringent than the CAA or its implementing regulations, must include in the Regulatory Impact Statement an evaluation of the cost-effectiveness of the proposed regulation in comparison to the cost-effectiveness of reasonably available alternatives and a review of the reasonably available alternative measures along with an explanation of the reasons for rejecting such alternatives.
Article 19 of the ECL was adopted for the purpose of safeguarding the air resources of New York State from pollution. To facilitate this purpose, the Legislature bestowed general and specific powers and duties on the Department including the power to formulate, adopt, promulgate, amend, and repeal regulations for preventing, controlling or prohibiting air pollution.
The Department promulgated Part 203 to prevent and control air pollution by requiring the issuance of a permit to construct for any proposed indirect sources of air contamination south of 60th Street in New York County (Manhattan). Indirect sources of air contamination are facilities such as highways, shopping centers, parking lots, stadiums, apartment or office complexes or airports that attract significant levels of traffic. The permit to construct can be issued after the Department has determined that the proposed indirect source would not cause or worsen any violations of the ambient air quality standards for carbon monoxide, nitrogen dioxide, or ozone. The Department now recommends the repeal of Part 203 because it has become both redundant and obsolete, as it has been superseded by other regulations, most notably Part 240, 40 CFR 93 Subpart B, Determining Conformity of General Federal Actions to State or Federal Implementation Plans, and Part 617.
Needs and Benefits
There is no longer a regulatory need for Part 203 because it has been superseded by other federally enforceable regulations, namely Part 240, 40 CFR 93 Subpart B and Part 617. These regulations address whether sources of air contamination are compatible with applicable ambient air quality standards, and reach geographic areas of the State that are not covered by Part 203. New York's Transportation Conformity regulation, Part 240, applies state-wide and requires both that federally funded or regionally significant transportation projects be consistent with the goals and measures contained in the New York State Implementation Plan and that carbon monoxide "hot spots" (i.e., localized areas of high pollutant concentrations) do not occur. Part 240 provides a more exacting review of air quality impacts than does Part 203. General Conformity, 40 CFR Part 93 Subpart B, is implemented by the federal government and ensures that federal actions such as the construction of office buildings or airports conform to the SIP, and that all emissions from these sources, including reasonably foreseeable indirect emissions, are fully offset within the same nonattainment area. Like Part 240, General Conformity provides for greater scrutiny of federal projects than does Part 203. Finally, Part 617 incorporates the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time. To accomplish this goal, Part 617 requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement. Together, these regulations meet or exceed the intent and requirements of Part 203.
In addition, the permit provisions of Part 203 add no specificity in the way of terms or conditions that provide added environmental protection; indeed, other regulatory provisions go much further than Part 203. Repeal of Part 203 will allow the Department to continue to regulate indirect sources of air contamination through its current programs without the use of a specialized permit program that does not provide additional environmental benefits.
The only costs associated with this rulemaking will be the Department's costs for newspaper publication and the preparation of transcripts.
Local Government Mandates
There are no local government mandates associated with the repeal of Part 203.
No additional record keeping, reporting, or other requirements will be imposed under this rulemaking.
This proposal does not duplicate any other federal or state regulations or statutes. Part 203 itself is partially a duplication of Part 240, and the federal General Conformity regulation. The repeal of Part 203 will eliminate this duplication.
There are two alternatives to the recommended repeal of Part 203:
1.)Revise the current language in Part 203 to reflect the Department's current policies for indirect sources. In general, the Department's actions on proposed indirect sources are predicated on public comments received through the SEQR process, and may vary depending upon individual situations. As discussed above, Part 240 contains procedures for identifying CO hot spots for analysis, the primary concern under Part 203. In addition, revised regulatory text would require significant resources to ensure that the revisions are developed in a manner that does not create confusion or require duplicative actions by project sponsors. Even with extensive revision, application of Part 203 would still be redundant.
2.)Use enforcement discretion to not enforce Part 203. This alternative is not likely to be accepted by the general public and environmental groups as it may be construed as the Department deliberately ignoring an air pollution control regulation.
There are no minimum federal standards exceeded by the repeal of Part 203 or from the revisions to Parts 200 and 621.
There is no compliance schedule required by the repeal of Part 203.