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Parts 222 and 200 Assessment of Public Comment Summary

Comments received from September 4, 2019 through 5:00 P.M., November 25, 2019

More than 40 distinct comments were received during the public comment period that extended from September 4, 2019 through 5:00 P.M., November 25, 2019.

More comments were directed at Section 222.3, "Notification of Applicability," than any other section of the proposed rule. Three comments sought clarifications regarding where and how notifications were to be submitted to the Department. Notifications may be submitted via e-mail or courier to the Regional Air Pollution Control Engineer in the Department regional office serving the county where a facility is located. Several comments were received regarding the options available to facilities that want to operate a distributed generation source as an economic dispatch source but do not submit a notification by the compliance date (March 15, 2020 in the proposed rule). These comments fell into three categories: 1) facilities with air permits that decide to operate distributed generation sources as economic dispatch sources after March 15, 2020; 2) facilities that submit late Notifications and 3) currently unpermitted facilities that decide after March 15, 2020 to operate distributed generation sources as economic dispatch sources. After reviewing these comments, the Department revised subdivision 222.3(b) of Part 222 to read as follows:

"An owner or operator of a distributed generation source that will operate as an economic dispatch source and is subject to a registration or permit issued by the Department prior to the effective date of this Part, must notify the Department in writing by March 15, 2021 or 30 days prior to operating the source as an economic dispatch source, whichever is later."
Cases where facilities submit late Notifications will be handled on a case-by-case basis. Facilities without an air permit must be issued a Registration Certificate or a State-facility Permit prior to operating distributed generation sources as economic dispatch sources.

Two commenters supported the applicability limitation to the New York City metropolitan area (NYMA) non-attainment area. One commenter stated that the Section 24-149.6 of the New York City Air Pollution Code apply did not apply to emergency engines as defined by the United States Environmental Protection Agency (EPA) in 40 CFR 63, Subpart ZZZZ. The Department replied that the definition of emergency generators set forth in subdivision 200.1(cq) of Part 200 is more limited (stricter) than the EPA's definition for that source category. Therefore, emergency generators must meet the definition set forth in subdivision 200.1(cq). Sources enrolled in demand response programs do not meet the requirements set forth in subdivision 200.1(cq).

There were two comments seeking clarification of the definition of economic dispatch sources. Specifically, a commenter asked how a generator providing full time electricity to a facility that also receives electric utility service, but still needs additional service will be classified in Part 222. The Department responded that such an application does not fall under Part 222. As stated on page 7 of the Regulatory Impact Statement (RIS), the purpose of Part 222 is to address emissions from emergency engines used in non-emergency applications. However, the situation described by the commenter would be subject to 6 NYCRR Part 201, "Permits and Registrations", which establishes the permitting thresholds for devices that emit air pollutants. In addition, a commenter requested clarification of what the Department meant by the words "not served" in the definition of an economic dispatch source. The Department responded that the phrase 'not served by distribution utilities' in the definition of the term 'economic dispatch sources' refers to generators that supply electricity to structures or equipment that are not powered by electricity provided by distribution utilities. One commenter asked that Part 222 not apply to sources enrolled in Distribution Load Relief Programs. The Department responded by stating that such programs are demand response programs based upon the tariffs approved by the New York State Public Service Commission.

One commenter stated that the definition of economic dispatch sources was unreasonably discriminatory towards distributed generation sources participating in demand response programs. Further, they stated that other distributed generation applications not covered under Part 222 also emit oxides of nitrogen (NOx) on high ozone days. The Department responded that the purpose of Part 222, as stated on page 7 of the RIS, is to address emissions from emergency engines used in non-emergency applications. Distributed generation sources that are not connected to the grid are subject to Part 201, "Permits and Registrations" unless they meet one of the exemptions listed in Subpart 201-3. Furthermore, as stated on page 25 of the RIS, a regulatory strategy to address emissions from DG sources not subject to this rule may be addressed through a separate rule making effort.

There were several comments submitted regarding the compliance date for the first control requirements in the proposed rule which was May 1, 2020. One commenter asked that the rule be adopted as expeditiously as possible in order for demand response source owners to be certain of their compliance obligations for the 2020 summer control period. Other commenters requested that the compliance date be delayed between 1 to 2 years in order to allow time for source owners to comply with Part 222. In the adopted rule, the Department delayed the compliance date in subdivision 222.4(a) one year to May 1, 2021.

Two commenters requested that a variance provision be added to Part 222. There is a variance provision included in Section 24-149.6(c) of the New York City Air Pollution Code. The Department added a new subdivision 222.4(c) to Part 222 to allow up to a two-year extension of the subdivision 222.4(b) compliance date (May 1, 2025) in cases where owners or operators can provide evidence, such as a contract, to demonstrate that they intend to meet the emission limits set forth in subdivision 222.4(b) as expeditiously as possible, but not later than April 30, 2027.

One commenter opposed the emissions testing requirements in subdivision 222.5. The Department responded that, by May 2025, many Tier IV engines will be ten years old or more. Many spark ignition engines and turbines will be approaching 15 years in age at that time. As stated on page 28 of the RIS, the purpose of the one-time emissions testing requirement is to ensure that sources subject to the rule meet the emission standards set forth in Part 222. The Department expects that sources that are well maintained will be able to demonstrate compliance with the NOx emission standards.

Four comments were submitted regarding the impact of Part 222 on the use of demand response sources to provide grid reliability in the future. The Department responded that it worked with a wide-range of stakeholders, including the New York Independent System Operator, during the development of Part 222 and believes that the final rule balances the needs for NOx emission reductions with maintaining a reliable electric grid.

One commenter disagreed with the cost estimates for installing pollution control equipment that was presented in the RIS. The Department responded that the cost estimates presented in the supporting documents in this rule making are based on capital and operational costs obtained from a variety of sources (see pages 28-31 of the RIS). The Department agrees that Manhattan has unique constraints which may add to the costs for installing new engines or pollution control systems. However, the Department believes that the benefits anticipated from Revised Part 222 justify the estimated costs.

One commenter questioned Department's estimate that the mean nameplate rating for emergency generators in New York City was 1000 kilowatts (kW). The Department responded that, based on a review of the data generated from the Notification provision (Section 222.3) in the rule adopted on November 1, 2016 and issued registrations and permits, the Department was able to compile nameplate ratings for 226 sources in New York City. The average nameplate rating was 1102 kW.

One commenter questioned whether Part 222 is a critical component of the Department's strategy to bring the NYMA into attainment with the 2008 and 2015 ozone National Ambient Air Quality Standards (NAAQS) and that any cause-and-effect relationship exists between demand response events and high ozone days. The Department disagreed with these assertions. The Department's response is presented below.

The form of the ozone NAAQS is a three-year mean of the fourth highest ozone reading at a given monitoring location. Therefore, in developing strategies to bring the NYMA into attainment with the 2008 and 2015 ozone NAAQS, the Department must target emissions on the worst ozone days. In order to do so, the categories of sources that operate on those days need to be identified. Demand response events have been called on high ozone days. In the future, the Department believes this will continue to be true. Therefore, NOx emissions from demand response sources must be factored into the Department's strategy to bring the NYMA nonattainment area into compliance with the 2008 and 2015 ozone NAAQS. The Department believes that the regulatory approach set forth in the new Part 222 represents a balance between reducing emissions from demand response sources (as well as limiting emissions from price-responsive generation sources) with maintaining the reliability of the electric grid.

For example, the high ozone levels observed on July 2, 2018 resulted from a wide range of sources, including interstate transport of ozone, NOx emissions from combustion sources (stationary and mobile) and volatile organic compounds (VOCs) emissions from architectural and industrial maintenance coatings, consumer products, etc. within the nonattainment area.

In 2019, the Department adopted a new rule to reduce NOx emissions from peaking turbines (Subpart 227-3). In that rule, the Department estimated NOx reductions of 18 tons per day. Further, the Department adopted revisions to Part 205, "Architectural and Industrial Maintenance (AIM) Coatings," in which the estimated reduction in VOCs was 16 tons per day, a fraction of which would occur in the NYMA. Additional rules are under development that will yield VOC reductions on the order of the Part 205 revisions. The NOx emission reductions anticipated from the adoption of Revised Part 222 are on the order of many regulations under development or revision by the Department. The emission reductions from Part 222 are estimated at 3.5 tons per day in 2021 and 5 tons per day by 2025 for demand response sources. A 3.5 or 5 ton per day reduction in NOx emissions is a necessary step towards meeting New York's obligations under Section 110 of the Clean Air Act (CAA).

Pursuant to 42 U.S.C Section 110(a)(2)(D)(i)(I) of the CAA, upwind states are required to reduce pollution that could contribute to downwind states' inability to maintain or attain compliance with a NAAQS. According to EPA, New York's largest contribution to a monitor showing nonattainment with the ozone NAAQS is 0.0185 parts per million. The 2018 design value for the New York-Northern New Jersey-Long Island, NY-NJ-CT moderate ozone nonattainment area (which includes the NYMA) is 0.083 parts per million. The emission reduction strategies the Department has adopted or is developing, including Revised Part 222, will be incorporated into the New York State Implementation Plan to fulfill New York's obligation with respect to the aforementioned CAA requirements.


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