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6 NYCRR Part 200, General Provisions, 

Part 201, Permits and Registrations, and 

Part 231, New Source Review for New and Modified Facilities 

Assessment of Public Comments 

Comments Received From September 24, 2008 

Through 5:00 p.m. October 24, 2008 

Many of the comments that were received by the Department during this period were similar or identical to the 

comments received by the Department during the September 26, 2007 6 NYCRR Part 231 rulemaking proposal 

public comment period. Thus, many of the Department’s responses are similar or identical to the responses in 

the Assessment of Public Comments (APC) document from the September 26, 2007 6 NYCRR Part 231 

rulemaking proposal. For the purpose of clarity, the Department has included, at the end of each response that it 

copied from the previous APC document, the response number from the September 26, 2007 6 NYCRR Part 

231 rulemaking proposal APC document in parenthesis - (APC: #). 

Adirondack Mountain Club, American Lung Association of New York State, Earthjustice, Environmental 

Advocates, Natural Resources Defense Council, New York Public Interest Research Group, Sierra Club - 

Atlantic Chapter: (Commenter Number 7) 

1) Comment: Additional safeguards are needed to prevent sources from improperly excluding related 

emissions increases when determining whether a physical or operational change is a “modification”. 
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Response: The Department disagrees with the comment that the proposed rule fails to provide any oversight 

of a facility owner’s exclusion of “unrelated” emissions. The Department has revised Part 231, in response to 

public comments, to further strengthen recordkeeping and reporting requirements. The Department will now 

require facilities to notify the Department when they undertake a physical or operational change (not a 

modification as defined in Part 231) if the facility attributes one hundred percent of the post-change emissions 

to independent factors and those post-change emissions exceed the significance threshold. Specifically, the 

Department will add subdivision 231-3.6 (c) to read as follows: (c) Any owner or operator of a facility that 

proposes a project that involves a physical change or change in the method of operation that the owner or 

operator determines would be followed by a facility emissions increase that equals or exceeds any of the 

significant project thresholds in Subpart 231-13, Tables 3, 4 or 6, must notify the Department in writing of the 

proposed project prior to implementing the change if the owner or operator determines that the project does not 

constitute a modification because all the emission increases are attributable to independent factors in accordance 

with clause 231-4.1(b)(42)(i)(b). The notification shall include the following: 

 (1) A description of the change. 

 (2) The calculation of the projected emissions increase. 

 (3) The proposed date of the change. 

 (4) An explanation of the factual basis for the conclusion that none of the projected emission 

increases are attributable to the proposed project. (APC: 6, 10, 17) 

2) Comment: Additional improvements to the Plantwide Applicability Limit (PAL) provision are needed. 

Response: The Department disagrees with the commenter. The Department’s rationale for accepting a 

different 24 month baseline period for different pollutants was explained in the prior APC document and the 

Regulatory Impact Statement (RIS). As discussed in both documents, the Department wants to encourage the 
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use of PALs in the State and believes that they could provide a measure of regulatory flexibility while at the 

same time providing for long-term protection of the environment. Commenter’s proposed revisions would 

significantly reduce the flexibility provided by the rule and, as a result, discourage the use of PALs in the State. 

Although as commenter notes the Department adopted a single baseline period for modifications, the 

Department determined that this approach was too stringent in the case of facilities which are accepting PALs. 

By accepting a PAL, a facility is essentially agreeing to limit emissions to no more than baseline levels plus an 

amount equal to the applicable significant project threshold for the PAL contaminant in exchange for flexibility 

on the permitting when they make modifications within the PAL level. The Department views this as a positive 

result for the environment and believes, under the circumstances, that allowing facilities to use different 

baseline periods for different pollutants is appropriate given the benefits that will be realized. 

The Department also disagrees with the commenter’s position that emissions from a new source should not be 

included in the PAL in an amount equal to the potential to emit. The Department also disagrees that the PTE 

for a new source necessarily represents an inflated emissions calculation or baseline. Emissions from a 

permitted emission source must be included in the PAL; there is no other basis to estimate the emissions from 

one that has not operated other than the level of emissions which are permitted. The commenter suggests that 

many sources do not operate at potential to emit. This is not necessarily the case for recently permitted sources, 

the ones at issue here, which are subject to the latest and most stringent pollution control requirements. Since 

the regulation provides for adjustment of the PAL at the end of the PAL period (or five years in some cases), the 

Department does not believe this provision is inappropriate. 

Finally, requiring a permittee to reestablish the PAL at the end of the PAL period (10 years or less) would, in 

the Department’s view, discourage the use of PALs and make it unlikely that any facility would pursue one. 
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The Department declines to adopt this suggested revision. (APC: 12) 

3) Comment: DEC’s proposal to exempt temporary and relocated sources from NSR violates the Clean Air Act 

and must not be adopted. 

Response: The requirements in proposed subdivision 231-3.4(c) are taken directly from 40 CFR 51.166(i). 

More specifically, this exemption is limited in scope and only applies to the temporary relocation of a portable 

emission source. 

4) Comment: The DEC must provide that an NSR permit automatically expires if construction does not 

commence within 18 months of permit issuance. 

Response: The Department does not believe an automatic expiration provision is appropriate under the 

prevailing State laws and regulations that govern permits in New York State. Section 231-3.8 provides that the 

permit shall not authorize construction which is not commenced within 18 months after the date of permit 

issuance (unless the date is extended), if construction is discontinued for a period of 18 months or more, or if 

construction is not completed within a reasonable time as determined by the Department. Permits issued by the 

Department will include a condition reflecting the language of Section 231-3.8, which is consistent with the 

Department’s current practice. In addition, Subpart 231-11 now requires facilities to notify the Department 

within 30 days of the commencement of construction. These regulatory provisions and permit terms and 

conditions will provide assurance to the Department that facilities have actually commenced construction in a 

timely manner and will make clear that the Department’s authorization specifically prohibits facilities from 

commencing construction after 18 months. 
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The Department believes, however, it is important and necessary that appropriate administrative action be taken 

to terminate or modify a permit where the authorization to construct has lapsed and thus will not include an 

automatic expiration provision in Part 231. Such action ensures that the Department, the permittee, and 

members of the public are clear as to the status of the permit and that the air permit accurately reflects the extent 

of the facility’s authority to construct and operate. Without such process, a permit could “expire” without 

notice to the Department or the public. Consequently, Part 231 will continue to provide that permits shall be 

subject to revocation (for a new facility or new emission source) if any of the above conditions are met. The 

Department previously revised the proposed express terms based upon comments received on its September 26, 

2007 proposal to ensure that the intent of this provision is clear: facilities must commence and complete 

construction in a timely manner to ensure the continued effectiveness of their permit and avoid a violation of its 

terms and conditions. 

The Department notes that 40 CFR 52.21(r) does not state that a Prevention of Significant Deterioration (PSD) 

permit will automatically expire, but rather that the authorization to construct shall become invalid if it is not 

commenced within the dictates of the regulation. As a matter of State administrative law, the Department’s 

handling of air permits must occur in a manner consistent with the State Administrative Procedure Act (SAPA) 

and the uniform procedures set forth in Article 70 of the Environmental Conservation Law (ECL) for permit 

modifications, suspensions, revocations, and renewals. The Department implements the provisions of Article 

70 insofar as permits are concerned pursuant to 6 NYCRR Parts 621 (Uniform Procedures) and 624 (Permit 

Hearing Procedures). These provisions of law and regulation require the Department to provide notice to the 

permittee when, among other things, a permit application is denied, a permit is issued with conditions to which 

the permittee objects, or the permit is revoked or rescinded. The permittee may request a hearing and present 

witnesses and evidence to rebut the Department’s claims. The Department must compile a record of any 
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administrative proceeding. A Commissioner’s final determination can only be made upon a complete record, 

after the Department has complied with these due process requirements. 

A provision for automatic expiration of the permit would frustrate the procedural due process requirements of 

State law because it would terminate a permit as a legal matter before the permittee could avail itself of any 

administrative due process, including notice and the opportunity for a hearing. It would also create confusion 

among the public and members of the regulated community with respect to the status of the facility’s air 

pollution permit. Legitimate questions could exist whether a facility had commenced construction as 

envisioned under the NSR regulations and would need to be addressed before a determination was made that a 

facility had not complied with NSR requirements. Accordingly, the Department does not believe such an issue 

can be appropriately addressed absent agency oversight with a provision for automatic permit expiration. 

Whether a facility has actually commenced construction, or completed construction in a reasonable time 

involves a case-specific inquiry. According to EPA policy guidance, a source must, in addition to obtaining all 

required permits, satisfy one of two additional requirements to commence construction: (1) begin a continuous 

program of physical on-site construction; or (2) enter into a contractual obligation to undertake a program of onsite construction that will be completed within a reasonable time. Physical on-site construction may include the 

placement, assembly, or installation of materials, equipment, or facilities which will make up part of the 

ultimate structure of the source. Certain activities, such as placement of footings, pilings and other materials 

needed to support the ultimate structures, have been held to constitute on-site construction while others do not. 

The construction of auxiliary buildings or construction sheds, for example, is generally not sufficient unless 

there is clear evidence that construction of the entire facility will definitely go forward in a continuous manner. 

The Department would have to evaluate what activities occurred in connection with a project to see if they 

constituted physical on-site construction. Likewise, a contractual obligation must involve a commitment for site 
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specific work and be one that cannot be cancelled or modified without incurring a substantial financial cost. 

EPA has provided guidance on determining whether a loss should be deemed "substantial". Whether a 

particular contract was sufficient to satisfy the obligation to commence construction would thus depend on the 

Department’s case-by-case review in the event that a dispute arose. The Department believes that any 

determination which could affect the legal status of a permit should be made consistent with the procedures laid 

out in the ECL and Part 621. 

The commenter contends that Part 231 inappropriately leaves up to the discretion of the Department whether to 

initiate permit revocation proceedings if construction does not commence within 18 months. The Department 

does not agree. Permits will include conditions specifically delineating the scope of a facility’s authority to 

construct. A facility which does not comply with these terms and conditions will be in violation of its permit. 

The Department believes Part 231, with the additional revisions discussed herein, strikes the appropriate 

balance by limiting the right to construct consistent with Federal regulations, but providing an opportunity for a 

hearing before a final agency determination is made to revoke or modify the permit as required under State law. 

Based on the Department’s experience implementing the PSD program, in the few instances where this issue 

has arisen, financial difficulties are usually the reason why construction has not commenced. Facilities are 

more likely to voluntarily relinquish or terminate their permits rather than incur the expense of a hearing. 

Nonetheless, the Department believes it is appropriate and necessary to provide due process before taking action 

to revoke or modify a permit. (APC: 21) 

5) Comment: The DEC is correct to propose eliminating existing “Clean Coal” exemptions. 

Response: Comment noted. 
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6) Comment: The DEC must demonstrate that revising its State Implementation Plan (SIP) to allow sources to 

avoid NSR by “netting” would not violate the Clean Air Act’s anti-backsliding provision. 

Response: As explained in the RIS and further discussed in the previous APC document, Part 231 meets all 

applicable State and Federal statutory and regulatory requirements for adoption. Further, the Department’s 

submission of Part 231 to EPA for approval in the SIP will likewise meet all applicable State and Federal 

statutory and regulatory requirements for EPA approval. 

On the merits, the Department believes that commenter’s manner of comparison of the approved 1981 Part 231 

rule and the proposed rule is not a valid comparison for purposes of assessing anti-backsliding. The commenter 

notably focuses on one aspect of the proposed Part 231 rule declaring that because netting is not included in the 

1981 rule, netting is therefore invalid and violates the Act’s anti-backsliding provisions. The Department does 

not agree. The proposed Part 231 rule, along with the other versions of the rule which were enacted subsequent 

to the SIP-approved 1981 rule, have imposed increasingly more stringent regulatory requirements on new and 

modified sources, including imposing lower thresholds for applicability, establishing emission offset 

requirements, and expanding the scope of sources and geographic areas covered by the rule. These changes 

were made upon the assessment of, and address, the increasingly more stringent Federal requirements imposed 

on new and modified sources. 

In addition, the Department believes that Part 231’s netting provision is not inconsistent with either the Act or 

the SIP. Notably, Part 231 ensures that facilities which propose to use netting to avoid major NSR requirements 

are subject to stringent permit requirements. These requirements will ensure that the projected actual emissions 

following a modification and emission reductions relied upon are enforceable. This means that such reductions 

are quantified, actually realized, not otherwise required by applicable regulations, and contained in a permit 
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issued by the Department which has been subject to public notice and comment. Thus, facilities which want to 

rely on emission reductions at one emission source to be reflected in the calculation of total emission increases 

at the facility will be subject to rigorous protocols and permitting. The Department believes such a regulatory 

scheme is consistent with the intent and purpose of both the Act and ECL. (APC: 9) 

7) Comment: Use of alternative operating scenarios under Title V. It is unclear why the DEC needs to provide 

a separate definition of “contemporaneous” for a Title V “alternative operating scenario” since the mechanism 

cannot replace minor or major NSR permitting requirements. 

Response: There appears to be some confusion with the interpretation of the definition. In terms of 

measuring the 5 year lookback period for determining whether a significant emissions increase has occurred, 

facilities which are seeking permit modifications for alternative operating scenarios need to look back 5 years 

from the date that their Part 201 permit application is determined to be complete. 

The Department agrees that an “alternative operating scenario” cannot replace minor or major NSR permitting 

requirements. However, the purpose of an “alternative operating scenario” is to conduct a complete permit 

review (including NSR) at the time of permit renewal that allows a facility the flexibility to install new 

equipment in the future. The “alternative operating scenario” contains all of the conditions required for all 

applicable regulations including NSR, New Source Performance Standards (NSPS), and Maximum Achievable 

Control Technology (MACT). If a facility that has an “alternative operating scenario” decides to conduct 

another modification (regardless of whether the “alternative operating scenario” has been built) the emissions 

increases from the “alternative operating scenario” are counted in the NSR analysis as an increase during the 

contemporaneous period. Finally, “alternative operating scenarios” that are not built during the five year term 

of the permit must be re-evaluated (including an updated review for NSR) during the next permit renewal. 
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Mirant (Commenter Number 5) 

8) Comment: Mirant Bowline, LLC supports the comments submitted by the Business Council of New York 

State, INC and the Independent Power Producers of New York (IPPNY) on the Amendments to 6 NYCRR Parts 

200, 201, and 231 regulations. 

Response: Comment noted. 

Business Council of New York, Inc and Independent Power Producers of New York (Commenter Number 11) 

9) Comment: Routine Maintenance, Repair & Replacement (RMRR): For several reasons, we believe the 

proposed definition of "routine maintenance, repair and replacement" in proposed Part 200.1(cl) is simply 

unworkable and an unnecessary departure from Federal regulatory language. 

A major concern is the proposed language which states that “Generally, routine maintenance, repair and 

replacement refer to activities that are undertaken on a prescribed . . . schedule . . . and typically paid for out of 

the operation and maintenance budget . . and . . . generally do not refer to activities that are infrequent . . . .” 

(Emphasis added.) 

As a practical matter, this is a non-definition, in that it provides no clear criteria for compliance. It is unclear 

how the business community can comply consistently with regulatory standards that are “generally” or 

“typically” applicable. 
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In its Assessment of Public Comment, the DEC asserts that industry has misunderstood the proposed definition. 

If it is possible for industry to misunderstand the definition, then the definition obviously needs improvement. 

Furthermore, the DEC‘s Assessment of Public Comment states that “the use of the terms "generally" and 

"typically" in the proposed definition make clear that no one factor is determinative in the analysis. The DEC 

notes that that the proposed regulation does not establish a presumptive exclusion from the RMRR exemption 

for those activities financed from an operations and maintenance (O&M) budget and that a project that is 

funded from a capital budget could still qualify as RMRR, if other factors suggest routineness (e.g., the nature, 

purpose, or frequency of the activity).” The DEC should revise the language of the definition to make its stated 

intention clearer. 

We remain concerned that the language of the definition will be seen as establishing a presumptive exclusion 

from this exemption for any maintenance, repair and/or replacement activities not financed from an O&M 

budget. 

The financing of such activities often will be determined based on accounting principles, rather than based on 

environmental regulatory definitions. For example, repair and replacement activities may be treated as capital 

expenditures for accounting and/or tax reasons (i.e., the depreciation rather than expensing of the expenditure). 

The financial classification of such activities should not be a primary basis for determining their status under 

this rule. 

Further, while “routine maintenance” activities may generally be undertaken on a regular schedule and paid for 

out of O&M budgets, the same is not true for repair and replacement activities which occur on an “as needed” 

basis. 
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Finally, we are concerned with the proposed language stating that routine maintenance generally excludes 

activities that “. . . extend the life of a facility, or result in the regaining of lost capacity. . .” This vague 

concept is infinitely expandable, as any project may be said to extend the life of the facility or regain lost 

capacity, and could be used to eliminate the exemption. In our view, this proposed language would exclude a 

wide range of routine activities essential to the efficient operation of industrial and utility equipment, and would 

place facilities in a status of perpetual NSR review. 

We also are concerned that this rule would significantly impair the ability of a business particularly a public 

utility or power generator to respond to a forced outage, if the required repair does not fall under the restrictive 

proposed definition of “routine maintenance, repair and replacement.” We note that existing Part 201-6.6(c) 

provides an emergency defense in Title V permits, which provides an affirmative defense for non-compliance 

with an applicable requirement due to an emergency, and that Part 201-2.1(b)(12) provides a somewhat limited 

definition of “emergency.” In the event of an emergency at an energy generation or transmission facility, the 

loss of this public utility service could have significant, adverse impact on the community, and it would be in 

the public interest to assure that response to such emergencies is not impaired or delayed by unnecessary NSR 

obligations. 

Overall, we see this definition to be in part unworkably vague and in part excessively restrictive. If 

implemented, this definition will result in significant compliance uncertainty. It also will result in significant 

new compliance costs, as businesses conduct NSR assessments on RMRR activities that were exempt from Part 

231 under the states current definition of “modification.” 

The Business Council is also concerned that, given ongoing NSR litigation at the federal level, the Department 

risks adoption of prescriptive regulatory language that could be changed or invalidated by the courts or EPA. 
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For these reasons, The Business Council recommends that the Department continue the current treatment of 

“routine maintenance” as set forth in the existing Part 200.1(aq) definition of "modification." To do so in the 

context of the current rule-making, the proposed definition of “modification” found at Part 231-4.1(b)(32) 

should be modified to read 

(i) Routine maintenance, repair and replacement as defined in Part 200 of equipment or parts thereof are not 

considered physical changes. 

The Department should focus the definition to state that the determination as to whether a project is routine is to 

be made on a case-by-case basis by examining the nature and extent, purpose, frequency and cost of the project. 

Further, we recommend that the Department consider establishing clear guidance and compliance certainty to 

the regulated community. For example, the Department could define “routine maintenance, replacement and 

repair” in terms of a reasonable, fixed percentage of the replacement cost of a unit, at five percent (though we 

would prefer the number be higher) of replacement costs. Such an approach would provide the Department, the 

regulated community, and the interested public a workable, quantifiable test for evaluating the “routine” status 

of maintenance, repair and/or replacement activities. 

Response: The Department is proposing to adopt a definition for RMRR to address industry’s stated desire 

for additional guidance on how the Department will implement the RMRR exclusion. The interpretation of the 

RMRR exclusion is a recurring issue that numerous States and the federal government and members of the 

regulated community have confronted in connection with the enforcement of the NSR provisions of the Act. 

The Department, with this rulemaking, intends to establish a framework for how the RMRR exclusion will be 

applied in New York State when Part 231 is adopted. 
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The definition proposed by the Department is consistent with both long-standing EPA practice and the approach 

that Courts have utilized and endorsed in addressing RMRR disputes since 1990. ‘See’ ‘Wisconson Electric 

Power v. Reilly’, 893 F.2d. 901 (7th Cir. 1990), which, in upholding EPA’s regulatory interpretation of the 

RMRR exclusion, noted that “EPA makes a case-by-case determination by weighing the nature, extent, purpose, 

frequency, and cost of the work, as well as other relevant factors, to arrive at a common-sense finding.” The 

proposed Part 200 definition will not result in New York implementing a new approach to assessing whether an 

activity constitutes RMRR; the Department will continue to implement the exclusion on a case-by-case basis 

according to EPA’s four factor test. The proposed Part 200 RMRR definition merely codifies the case-by-case 

determination that EPA has applied, and which Courts have upheld, for more than two decades in connection 

with the implementation of the PSD and NSR programs. 

As the Courts have instructed, the Department must give effect to the express statutory language of the Clean 

Air Act. Section 111(a)(4) of the Act defines the term “modification” as “‘any physical change’ in, or change 

in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by 

such source or which results in the emission of any air pollutant not previously emitted”. As explained further 

below, Courts have given this definition broad effect. 

Numerous legal challenges have ensued over the RMRR exclusion from the federal definition of “major 

modification” and the issue garnered significant discussion during the drafting of this regulation. One of the 

more significant legal challenges occurred in 2003 when EPA adopted the so-called ‘Equipment Replacement 

Rule’ (ERP) in an attempt to amend the RMRR exclusion. The ERP rule specifically exempted equipment 

replacements from NSR if the fixed capital cost of the replacement component did not exceed twenty percent of 

the replacement value of the process unit and did not change its basic design parameters. The ERP rule 

departed substantially from EPA’s previous regulatory interpretation of the RMRR exclusion as an exclusion 
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limited to de minimis circumstances. New York State joined many other States in suing EPA over the adoption 

of this regulatory amendment. 

The United States Court of Appeals for the District of Columbia held that the ERP rule violated the NSR 

provisions of the Clean Air Act and vacated it. ‘State of New York, et. al. v U.S. Environmental Protection 

Agency’, 443 F.3d. 880 (D.C. Cir. 2006) (New York v. EPA). The Court’s decision is instructive because it 

provides guidance for how the Department should implement the RMRR on a going-forward basis. 

Focusing on the express language of the Clean Air Act, the Court determined that the ERP rule violated the 

definition of modification in section 111(a)(4) of the Act. In the Court’s view, Congress’s use of the word 

“any” in defining a modification means that modification encompasses all types of “physical changes”. Simply 

stated, “any” means “any”. 

As the Court noted, Congress expressly limited the scope of NSR applicability to “any physical change” that 

increases the amount of any air pollutant emitted by the source or which results in the emission of any air 

pollutant not previously emitted. Absent additional express statutory limitations, however, the Court was 

unwilling to imply any further limitation in the term “any physical change”. According to the Court, only 

physical changes that do not result in emission increases are excused from NSR. ‘New York v EPA’, 443 F.3d. 

at 887. 

The Court found that the EPR rule would have allowed equipment replacements that resulted in non-de minimis 

emission increases to avoid NSR, notwithstanding that the Act defines modification in terms of emission 

increases. The Court concluded that the ERP rule violated the Act and vacated it. 
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The ‘New York v EPA’ decision is consistent with established judicial precedent holding that the Clean Air Act 

evinces a clear Congressional intent to broadly construe the term “modification”, and neither expressly, nor 

impliedly, provides any categorical exemptions for particular activities or physical changes. It is the 

Department’s position that given the statutory framework of the Act, any exemption established by regulation 

must, by necessity, be of a ‘de minimis’ nature. Accordingly, the RMRR exclusion must be viewed in the 

nature of a narrow, ‘de minimis’ exclusion from NSR requirements rather than as a broad exemption or a 

measure providing regulatory flexibility. 

The Department devoted considerable time to addressing the RMRR exclusion during its rule development. In 

particular, the Department convened a New Source Review Workgroup in 2004 to provide a forum for 

interested parties, members of the regulated community, local governments, state agencies and environmental 

organizations to discuss amendments to Parts 200, 201 and 231. Members of the regulated community had the 

opportunity to comment on the Department’s pending amendments, including the practice of evaluating RMRR 

on a case by case basis. The Department agreed to discuss the RMRR issue at one of the Workgroup’s 

meetings and accept follow-up comments on the issue. 

The Department specifically encouraged workgroup members to present alternative proposals and Department 

Staff also presented concepts for discussion in addition to the EPA four factor test. The Department’s concepts 

included (1) a provision for predetermining RMRR activities in Title V permits, subject to public notice and 

comment; (2) relying on Title V operational flexibility provisions; and (3) utilization of PALs. Workgroup 

members did not present specific proposals, nor did they reach consensus on a particular approach to the RMRR 

issue or endorse any of the concepts presented by the Department. Absent an alternative viable regulatory 

proposal, the Department believes that the four factor test is appropriate for inclusion in a regulatory definition, 

especially in light of the decision in ‘New York v. EPA’. Facilities that want to avoid case-by-case 
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determinations and permitting review for modifications can avail themselves of other more appropriate 

regulatory flexibility available through the permitting process. 

The RMRR definition mentions sources of funding in order to differentiate between operation and maintenance 

budgets, which would likely have funds specifically set aside for routine replacements, and those capital 

expenditures which would be more indicative of non-routine activities. The proposed regulation does not 

establish a presumptive exclusion from the definition of modification for those activities financed from a capital 

budget, or establish a bright-line for treating O&M expenses as RMRR. The source of funding is one of several 

criteria to consider when characterizing an activity as routine or non-routine. 

 

Thus, the Department’s proposed definition of RMRR merely codifies the existing EPA four-factor test as has 

been interpreted by a majority of the courts. It is neither more stringent nor less stringent than EPA’s RMRR 

methodology. The Department believes that some commenters have misread the proposed definition as 

excluding certain types of activities from the meaning of RMRR. The use of the terms “generally” and 

“typically” in the proposed definition make clear that no one factor is determinative in the analysis. A project 

that is funded from a capital budget could still qualify as RMRR if other factors suggest routineness (e.g., the 

nature, purpose, or frequency of the activity). In conclusion, whether work performed on an emissions source 

constitutes RMRR will continue to be determined on a case-by-case basis by examining the nature and extent, 

purpose, frequency, and cost of the activity. 

10) Comment: Net Emission Increase (NEI) - The definition of “net emission increase” (proposed Part 231-

4.1(b)(29)) should be changed to be consistent with federal regulation. The EPA defines NEI as including the 

emissions from the source project: “Any other increases and decreases in actual emissions at the major 

stationary source that are contemporaneous with the particular change and are otherwise creditable.” 
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Our proposed change to the Department’s draft rule would define “net emission increase” to include all 

increases and decreases at the major stationary source that are contemporaneous and creditable, deleting the 

proposed additional burden of obtaining an “ERC” in order to include the decreases currently included in 

proposed Part 231-4.1(b)(29)(iii) . Any emission reduction that meets the four factor test for ERCs surplus, 

quantifiable, permanent, and enforceable should qualify as an emission reduction or offset. 

For example, a facility may have surrendered its permit for a source that has been taken out of service, but has 

not formally applied for an ERC for such reductions. The facility should not be obligated to go through the 

procedural requirements for ERC certification to be able to consider such surplus, quantifiable, permanent, and 

enforceable reductions in their NEI determination. 

Response: The Department disagrees with commenter’s assessment that the process in Subpart 231-10 to 

create ERCs for use in a net emission increase determination is unnecessary and burdensome. This process has 

been in effect since October 1994, with the initial promulgation of Subpart 231-2. For consistency, the 

Department has carried over this requirement to the proposed PSD regulations. The process also ensures that 

the implementation of Part 231 is consistent with the statutory definition of the terms “emission reduction” and 

“emission reduction credit” in the Environmental Conservation Law which require that emission reductions or 

emission reduction credits “reduce emissions beyond that which is required by the Act”, “are real and actually 

occur”, “are quantifiable”, “are enforceable by the Commissioner or the Administrator” and “are assured for the 

life of a corresponding increase”. The permit process for the creation of ERCs in Subpart 231-10 ensures that 

these requirements are met. The Department further notes that the requirement for “enforceability” whether for 

the creation of ERCs or for capping under Part 201 requires a condition in a permit that has been subject to 

public notice and comment. (APC: 38c) 
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11) Comment: Reliability Concerns Related to Netting Requirements: Additionally, The Business Council and 

its members are concerned that electricity system reliability concerns could arise from the DEC’s draft rule. In 

particular, the requirements related to the need to obtain permits for projects that involve emissions at less than 

the significance level are problematic. For example, the draft rule would require the acceptance of a permit limit 

on projected emissions (i.e. a 3 tons increase) in a non-attainment area. This requirement could restrict 

operations in the future, due to unrelated emissions resulting from fuel changes or from a hot summer, such as 

the one that occurred in 2005. 

Response: The Department’s policy has always been to require applicants to accept permissible emission 

limits when avoiding NSR applicability. BACT and LAER avoidance permit conditions have been included in 

dozens of facility permits throughout New York State since the NSR program was first promulgated. This is 

not a new requirement and only affects the source that was constructed or modified not necessarily an entire 

facility (depending on the facility’s configuration and permitting scenario). Please note that these avoidance 

emission limits are no different from capping conditions used to avoid applicability to other regulations (like 

Title V) and are a tool the Department has used for 30 years to ensure compliance with netting analyses. 

12) Comment: Use of ERCs in Netting: Proposed Part 231-10.1(f) provides that “An ERC, or portion thereof, 

which is used to avoid a determination of a significant net emission increase cannot subsequently be used for 

emission offset purposes or in any subsequent netting determinations.” The Business Council believes this 

proposal exceeds the intent underlying the Federal rule, departs from the Department’s existing rule, and places 

unwarranted restrictions on the use of ERCs. If the emission reductions upon which an ERC is based occurred 

within the contemporaneous period of a source project, the rule should allow that emission reduction to be 

considered in any significant net emission increase determination. The only exception to apply is that an ERC 

or emission reduction that was used in a prior netting exercise cannot subsequently be used as an emission 
Page 20 of 114

offset. If the Department's proposed language were to be adopted, netting would include emission increases but 

not corresponding creditable emission decreases, thereby unnecessarily imposing NSR compliance obligations 

on projects that rightfully should be allowed to net out. 

Therefore, we recommend that subdivision (f) be rewritten as follows: 

(f) An ERC, or portion thereof, which is used to avoid a determination of a significant net emission increase 

cannot subsequently be used as an internal offset, or emission offset but may be used in a subsequent net 

emission increase determination, if contemporaneous or in any subsequent netting determinations. 

This language is consistent with provisions of existing Part 231-2.6(d)(7), which states “An ERC, or portion 

thereof, which was used in a net emission increase determination of non-applicability shall not subsequently be 

used for internal offset or emission offset purposes, but may be used in a subsequent net emission increase 

determination, if contemporaneous.” 

Response: The Department disagrees with the commenter’s conclusions. The EPA is responsible for 

overseeing the implementation of the NSR program. EPA in SIP comment letters dated February 5, 1999 and 

June 4, 2001 on previously proposed revisions to Part 231 stated the following: 

 “Use of ERCs (emission reduction credits). It states that “an ERC, or portion thereof, which was used in

 a net emission increase determination of non-applicability shall not subsequently be used for internal 

 offsets or emission offset purposes, but may be used in a subsequent net emission increase 

 determination, if contemporaneous.” This seems to state that, as long as it remains contemporaneous, an 

 emission decrease can be used indefinitely to net out several different future emissions increases within 
Page 21 of 114

 the facility. This is not correct. According to EPA regulations, “a decrease in actual emissions is 

 creditable only to the extent that the reviewing authority has not relied on it in issuing any permit under 

 regulations approved pursuant to 40 CFR Part 51 Subpart I or the State has not relied on it in 

 demonstrating attainment or reasonable further progress” (no double counting)”. 

 

The Department believes that if a facility undertaking a modification avoids NSR through contemporaneous 

emission reductions that keep the emission increases below significance levels, those reductions should not be 

double counted to allow another project to avoid NSR. This position, the Department believes, is reasonable 

and consistent with the Clean Air Act. The proposed revisions to Part 231 require that a facility netting out of 

Part 231 applicability obtain a permit with an enforceable emission limit equal to the new projected actual 

emissions or PTE of the modified emission source(s). The Department in issuing a permit for a project that has 

netted out of applicability relies not only on the proposed emission increase but also on the ERCs that were used 

to keep the project net emission increase from being a significant net emission increase. Additionally, EPA in a 

December 29, 1989 memorandum from John Calcagni, Director, Air Quality Management Division to Bruce P. 

Miller, Chief, Air Programs Branch, Region IV regarding EPA’s position on netting states that “States with 

federally approved prevention of significant deterioration (PSD) State implementation plans are free to follow a 

more stringent interpretation of their regulations”. The Department’s proposed revisions to Part 231 include 

PSD requirements and will be submitted to EPA for SIP approval. (APC: 38d) 

13) Comment: Definition of "Actual Emissions": In proposed Part 231-4.1(b)(1)(ii), the term “actual 

emissions” which only applies "for the purpose of determining the baseline concentration, and the calculation of 

air quality impacts according to Section 231-12.2, is defined as: 
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Actual emissions as of a particular date shall equal the rate at which the emission source actually emitted the 

NSR contaminant during the consecutive 24 month period which precedes the particular date and which is 

representative of normal facility operation. [italics added] 

Earlier drafts defined this term as referring to the “average rate” of emissions during the 24 month period, 

which we assumed meant an average hourly rate. Now that the “average” criterion has been deleted, it is 

unclear how this “rate” is to be determined. 

We note that the pre-existing definition of “actual emissions” found in Part 201-2.1(b)(2) -- and which applies 

to all other uses of this term in the proposed Part 231 -- refers to emissions from normal operating conditions, 

averaged over a two year period (or an other more representative period). 

We believe that this newly proposed definition of “actual emissions” likewise should be a twenty-four month 

average. The Department needs to clarify this issue. 

The proposed rule (draft Part 231-4.1(b)(1)(iii)) also states that “the Department may presume that facilityspecific allowable emissions . . . are equivalent to the actual emissions of the emission source,” [italics added] 

without providing any criteria as to when the Department can make this determination. We recommend that 

subparagraph (iii) be amended to say “If actual emissions cannot be determined pursuant to subparagraph (ii), 

the Department may presume that facility-specific allowable emissions . . . are equivalent to the actual 

emissions of the emission source.” Otherwise, it seems that the Department can make arbitrary decisions to 

substitute allowable emissions for actual emissions. 
Page 23 of 114

Response: The term “actual emissions” is defined in 231-4.1(b)(1) for the purposes of baseline 

concentrations and air quality impact analysis. Thus, the term ‘actual emissions’ is differentiated from the term 

‘baseline actual emissions’. The term ‘actual emissions’ clarifies that the general pre-existing definition of this 

term, noted in the comment to be the average over two prior years, is only to be used for applicability and 

similar purposes, but should not be used for air quality analysis. For the latter purpose, the definition of actual 

emissions will depend on whether the short term or annual average concentrations are being considered. That is 

why the qualifier “average” was taken out of the “rate” definition. The proper calculation of the actual emission 

rate for the differing averaging times is provided in Chapter C, section IV.D.4 of EPA’s Draft 1990 NSR 

Workshop Manual and is also discussed in Appendix E of DAR-10. 

The Department does not agree with commenter’s suggested language change to subparagraph 231-

4.1(b)(1)(iii). The proposed Part 231 definition of “actual emissions” incorporates the language of 

51.166(b)(21) which gives the reviewing authority discretion to presume that the allowable emissions are 

representative of actual emissions in the instance where the latter are deemed not to be properly determined by 

an applicant. Thus, the burden is on the applicants to provide information necessary to justify that actual 

emissions should be used in air quality assessments, such as in PSD increment consumption from existing 

sources. The Department will not make the requested change. (APC: 70a and 70b) 

14) Comment: Baseline Actual Emissions: The proposed Part 231-4.1(b)(4)(d) states that, for a regulated NSR 

contaminant, when a project involves multiple emission sources, the same baseline period must be used to 

determine the baseline actual emissions of each of the emission sources being modified -- a provision consistent 

with the Federal rule. It goes on to state that a different baseline period cannot be used for each regulated NSR 

contaminant. Although the structure of this subdivision is confusing, this second restriction seems to apply to 

all source projects, not just those involving multiple sources. 
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The provision is a significant instance where the Department's proposed rule would eliminate compliance 

flexibility to in-state business that is provided for in Federal regulation. 

The Federal rule provides that: 

For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-

month period must be used to determine the baseline actual emissions for the emissions units being changed. A 

different consecutive 24-month period can be used for each regulated NSR pollutant. 

The Federal rule specifically allows use of different baseline periods for different NSR pollutants related to a 

source project. Its only restriction is to require a single baseline period for any given NSR pollutant when a 

project involves multiple emission units. 

We recommend that the Department adopt the Federal approach. NSR applies to criteria pollutants on a 

pollutant by pollutant basis. As such, the applicability analysis for a given project properly can reflect different 

baseline emissions periods for each affected pollutant. Emissions of different pollutants from an emission 

source can be affected by different factors (e.g., production levels versus changes in materials or fuel content). 

These different factors will justify the use of different baseline periods to define "representative" emissions. 

We note that in proposed Part 231-9.4 regarding Plant-wide Applicability Levels (PALs), different 24 month 

periods can be used for each different PAL contaminant at a facility, which correctly recognizes that more than 

one baseline period can be applied to an emission source that emits more than one category of PAL 

contaminant. 
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In its Regulatory Impact Statement, the Department raised concerns that the federal approach could result in 

artificially high baselines never actually experienced or baselines that could never be actually achieved by the 

source. We believe these concerns can be addressed effectively by amending subdivision (d) to state that: 

“Multiple baseline periods can be used to determine the baseline actual emissions of the emission sources being 

modified upon demonstration that the periods are more representative of normal facility operations.” 

This provision would allow the Department to disallow use of proposed baselines based on operating scenarios 

that are not achievable under real-world conditions. 

Response: The Department understands the commenter’s concerns but, as explained in the RIS, the 

Department has determined that a single baseline period for a specific project is more protective of the public 

health and the environment and the only reasonable alternative for the New York State NSR program. The 

Department considered two alternatives with respect to the definition of Baseline Actual Emissions: (1) adopt 

the Federal definition or (2) adopt a definition based on the Federal rule but tailored to the needs of New York 

State. The Department does not believe that the first alternative is reasonable because it will potentially inflate 

the calculation of baseline actual emissions, thereby subjecting fewer projects to NSR review and potentially 

result in higher air emissions in the State. The second alternative is considered more reasonable because 

baseline actual emissions will more accurately reflect a facility’s actual operations. 

Pursuant to the December 2002 Federal NSR Rule, a facility could develop a baseline emissions profile which 

is not derived from a permitted operating scenario, but is based on pollutant-specific emissions achieved during 

different operating scenarios and different baseline periods. The use of multiple baselines could result in a 

facility selecting several different baseline periods to maximize the determination of past actual emissions for 

several different pollutants. This could create an artificially high profile of baseline actual emissions which in 
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fact were never emitted by the facility (or emission source) and, in extreme cases, could never be achieved by 

the facility in actual operation. More importantly, the operating permit would not have authorized such 

emission levels under either operating scenario. With higher baseline emissions during a particular two-year 

period, a proposed project could possibly avoid being subject to NSR for those pollutants as a result of selecting 

that baseline period. At no time would the actual emissions of the effected emissions source in any one 

operating scenario be honored, notwithstanding that the Part 201 permitting program establishes emission limits 

for each operating scenario. The result of this is the potential for a project that would otherwise be considered 

major except for the artificially high baseline to either “cap out” or “net out” of NSR. This would cause an 

increase in emissions that would exacerbate air quality problems in New York State. 

The use of a single baseline period over five years provides the source owner sufficient flexibility to choose an 

operating scenario that best reflects operating conditions during the normal business cycle without unnaturally 

inflating emissions. This single baseline period will be a scenario that has actually occurred and was 

experienced by the source and the environment. For this reason, the Department believes a single baseline 

period is the only reasonable methodology to determine baseline actual emissions. This is important given the 

synergistic relationships that many air pollutants have. NOx and VOC, and to a smaller extent CO, react to form 

ozone. SO2, NOx and VOCs react to form PM (which is also directly emitted by many sources). In order to not 

exacerbate air quality problems in this proposal, the Department has decided that a single baseline period best 

represented the goals of the NSR program for the State of New York. 

 

The Department has considered the cost effectiveness of the proposed rule versus adopting the Federal 

definition. The Department recognizes that costs may, in some cases, increase as a result of the proposed 

provision. However, the Department maintains that the benefits to air quality, public health and natural 

resources, and the ability of clean industry to site within an area outweighs these costs. 
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With regard to proposed Section 231-9.4 (PALs), the Department also considered applying the single baseline 

requirement to all PAL pollutants for a specific project but determined that such an approach was too stringent 

to encourage use of PALs. By accepting a PAL, a facility is essentially agreeing to limit emissions for ten years 

to no more than current baseline actual emissions plus an amount equal to the applicable significant project 

threshold for the PAL contaminant in exchange for flexibility on permitting when modifications are made 

within the PAL level. The Department views this as a positive result for the environment and believes, under 

the circumstances, that allowing facilities to use different baseline periods for different pollutants when 

determining a PAL is appropriate, given the benefits that will be realized. (APC: 32 and 71) 

15) Comment: Record-keeping Requirements: The current draft Part 231-6.1(a) and Part 231-8.1(a) would 

subject certain modifications at existing major facilities, including exempt and trivial sources as defined in Part 

201-3, and certain emissions related to “demand growth,” to new record-keeping requirements set forth in 

proposed Part 231-11.4 even if their project emission potential is below the applicable significant project 

thresholds, and to even more extensive record-keeping and reporting requirements if such emissions are equal to 

or exceed the applicable significant project threshold. Furthermore, according to the DEC’s Assessment of 

Public Comment, the DEC would require that, if a facility subtracts or excludes emissions due to demand 

growth or independent factors from the calculation of projected actual emissions, a record should be provided in 

regards to what the facility did, so that compliance with NSR can be assured. Additionally, Part 231 includes 

recordkeeping and reporting requirements for netting (limiting emissions through enforceable emission caps), 

NSR major modifications, and new facilities. In all of these circumstances, facilities have the burden to 

maintain adequate documentation to ensure they can demonstrate compliance with Part 231. Theses provisions 

will impose regulatory requirements that are more stringent than Federal requirements. Further, we believe this 

change will impose unnecessary and potentially significant additional compliance burdens on business. The 

draft rule as written could involve hundreds of filings and significant resources. The Business Council and its 
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members urge the DEC to revise the Regulatory Impact Statement to address specifically the additional costs 

associated with new Title V permitting requirements and the resource burden to both regulated sources and the 

Department. 

For example, the proposed rule would require a facility to go through considerable effort to calculate the PEP or 

PTE related to very minor changes at existing major facilities, and would impose the additional burden of 

compliance certification for those calculations. 

To partly remedy our concerns, we recommend that exempt and trivial sources, as defined in Part 201-3, be 

exempt from the record-keeping requirements of proposed 231-6.1(a) and -8.1(a). 

Further, we recommend deletion of the proposed Part 231-11.2(b), a change that would not impose any new 

record-keeping requirements on those modifications that result in emissions increases less than 50 percent of the 

applicable significant source thresholds. If the Department were to keep its proposed paragraph (b), it would 

literally subject emission increases of as little as one pound to new record-keeping requirements. This 

requirement is extremely burdensome and provides little, if any, regulatory benefit. The Department should 

follow EPA’s “reasonable possibility” rule by eliminating the record-keeping requirements for those 

modifications that result in emissions increases less than 50 percent of the applicable significant thresholds. 

EPA clarified that a “reasonable possibility” of a significant emissions increase exists—and therefore recordkeeping and reporting requirements apply—if the projected increase in emissions equals or exceeds 50 percent 

of the applicable NSR significance level for a relevant pollutant. While these record-keeping requirements are 

meant to address projects that present a “reasonable possibility” of a significant emissions increase, in contrast, 

the Department’s proposed rule would also apply to projects that present no “reasonable possibility” of 

exceeding significant source thresholds. It makes absolutely no sense to impose burdensome record-keeping 
Page 29 of 114

requirements on New York businesses for increases that have no “reasonable possibility” of resulting in a 

significant emissions increase. 

We believe that our proposed approach is more workable than the Department’s proposal, in that it would 

eliminate record-keeping and formal PTE calculations for projects with relatively insignificant emissions. Even 

so, it should be noted that our proposed approach is comparable to even more stringent than the states existing 

Part 231. Under the current state rule, an emission unit that is part of a source project at a major facility is 

exempt from Part 231 requirements if its “project emission potential” is below the applicable significant source 

project threshold. That same emission unit would have a partial Part 231 exemption if its PEP exceeded the 

significant source project threshold, but did not result in a significant net emission increase (it still would be 

subject to permitting, netting and offsets, but exempt from LAER). 

Response: The Department disagrees with the comment. Maintaining the records under proposed Subpart 

231-11 ensures that all emission increases are on record and available should a facility propose a project in the 

future for which a net emission increase determination is required. The proposed requirements provide 

safeguards to ensure that any facility which makes a physical or operational change will be in compliance with 

the Clean Air Act and 6 NYCRR Part 231. Based on the Department’s experience, netting has been used 

frequently by many facilities to avoid NSR applicability. Further, Federal regulations require that all emissions, 

including emissions from any exempt or trivial activity, which are contemporaneous with a proposed project, be 

included in any net emissions increase determination. This has been a requirement since the promulgation of 

the original NSR regulations. Based on this requirement applicants were expected to maintain some records 

pertaining to every modification that caused an emission increase at their facility. Because these projects 

should have been documented and recorded in the past, no new costs will be incurred in the future. (APC: 61b) 
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16) Comment: Demand Growth: The proposed rule, at Part 231-4.1(b)(40)(i)(c), allows an applicant to exclude 

from the calculation of projected actual emissions those emission increases that could have been accommodated 

during the baseline period that are unrelated to the project, including emissions related to increased utilization 

due to demand growth. The Business Council strongly supports retention of this provision. This exemption 

reflects the intent of NSR to address emission increases related to physical and operational changes, and will 

provide valuable operational flexibility to businesses in states that conform to the Federal NSR reforms. This is 

a key Federal reform issue whose adoption in New York will help assure a more even regulatory “playing field” 

for in-state business. 

However, in regards to demand growth, the DEC’s Assessment of Public Comment indicates that the DEC also 

clarified the language of Subpart 231-11 on Permit and Reasonable Possibility Requirements to exclude 

increased emissions that the source can establish are due to independent factors, without specifying demand 

growth as one such potentially independent factor. The DEC states that this change is made to negate any 

misunderstanding that emission increases attributable to demand growth are necessarily unrelated to a project. 

The reasonable possibility provisions now will require more stringent recordkeeping and reporting for 

modifications, which are not significant themselves but which would be significant if the emissions attributable 

to independent factors are added. These changes to the draft rule increase burdens on regulated entities. 

Response: Comment noted. Also, please see response to comment number 15. 

17) Comment: Transition Plan: To clarify that 40 CFR Part 52 will not apply to New York’s new NSR program 

once this rulemaking takes effect, Part 231-3.2 should be amended as follows: 
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231-3.2 Transition plan. (a) On or after the effective date of this Subpart, any owner and/or operator of a 

proposed new or modified facility, for which a complete application has not been submitted to the department, 

must comply with the provisions of Subparts 231-3 through 231-13. The Business Council supports language 

stating: “the requirements of 40 CFR Part 52 shall not apply to such applications.”

Response: The Department does not believe that such a statement is appropriate or necessary and, therefore, 

will not make the commenter’s requested change. It should be noted that the Department does not make such a 

statement regarding federal nonattainment regulation 51.165 in proposed Part 231, nor does the Department’s 

existing Subpart 231-2 make such a statement. Further, commenter’s statement is not accurate because the 

requirements of 40 CFR 52.21 will continue to apply until EPA approves revised Part 231 into the State 

Implementation Plan. (APC: 74) 

18) Comment: Guidance v. Policy: In several instances, i.e., proposed Part 231-5.5(d)(2), Part 231-5.5(e), Part 

231-6.6(d)(2), Part 231-6.6(e), the Department’s proposed rule mandates the use of Departmental “policy” 

documents with regard to air quality impact analysis. “Policy” documents are not formally promulgated, nor 

have they been subject to formal public notice and comment, impact assessments and other statutory 

requirements. We are concerned that the Department’s proposal to mandate their use will give these unpromulgated policy documents the force and effect of law, in clear violation of the State Administrative 

Procedures Act. As such, we strongly recommend that these references be deleted from the final rule. 

We note that existing Part 231 makes two specific references to Department policy or guidance, but in both 

instances, states that the permit applicant may, rather than shall, employ the Department’s Air Guide 27 

guidance document in their impact assessments. 
Page 32 of 114

In the proposed draft rule, the Department has changed an initial reference from Departmental “guidance” to 

Departmental "policy.” While it is unclear what constitutes Departmental "policy," at least Departmental 

"guidance’ has a statutory basis in that ECL Section 3-0301.1(z) subjects “guidance and similar documents of 

general applicability" to public notice and comment requirements. 

Even so, the public notice provided under this provision of the ECL does not authorize guidance memoranda to 

be referenced or construed as establishing binding and enforceable standards. As set forth in ECL 3-0301.2(a) 

rules, regulations, and standards and criteria must be reviewed by the State Environmental Board, adopted in 

accordance with the State Uniform Procedures Act, filed with the Secretary of Sate and published in the Code 

of Rules and Regulations to become enforceable. Since “guidance” does not meet this statutory criterion for 

rule-making, the Department must delete all requirements that incorporate “policy,” or guidance by reference. 

Response: The revision from Department “guidance” to “policy” in proposed Part 231 was merely a matter 

of nomenclature. Department guidance is provided in DEC policy documents, including DEC Program Policy 

documents. Contrary to the commenter’s assertion, all Department policy documents are required to undergo 

public notice. During the formulation of the draft Part 231 rule, the air quality impact analysis procedures 

referred to were published on March 8, 2006 and finalized as DAR-10 in the Environmental Notice Bulletin on 

May 24, 2006 after minor public comments were received. DAR-10 is titled “NYSDEC Guidelines on 

Dispersion Modeling Procedures for Air Quality Impact Analysis.” 

The purpose of DAR-10 is to provide guidance to the regulated community as to what methods will be 

considered acceptable approaches for dispersion modeling methodologies and related air analysis procedures. 

Without such recommended procedures, a permit applicant would be required to propose and demonstrate 

acceptability of modeling schemes on case by case basis. It is important to note that DAR-10 essentially 
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incorporates methodologies in EPA’s Guideline on Air Quality Models, which has been formally adopted in 

regulation as Appendix W at 40 CFR Part 51. It also includes approaches found in Appendix S of 40 CFR Part 

51 and provides information on New York specific data bases and approaches. Since these databases and some 

of the methodologies evolve over time, the Department believes it is administratively efficient to include them 

in policy documents. Moreover, in accordance with Section 3-0301(z) of the Environmental Conservation Law, 

the Department must make available for public notice, and in appropriate cases public comment, all guidance 

memoranda and similar documents of general applicability which provide guidance to the general public in 

complying with the Environmental Conservation Law and its regulations. (APC: 75) 

19) Comment: Permit Application Requirements: Draft Part 231-11.1(a)(4) states that all permit applications 

are required to include "proposed emission monitoring, record-keeping and reporting provisions to establish 

compliance with the applicable requirements of this Part." To clarify this requirement, we recommend this 

additional provision: 

“Where an underlying applicable requirement specifies the type and frequency of monitoring, record-keeping 

and reporting, such specification fulfills this requirement." 

We believe this additional provision also is consistent with the decision in the Appalachian Power case. 

Response: The intent of the Department is for the applicant to identify its proposed monitoring, reporting 

and recordkeeping provisions at the time of permit application. The determination whether or not the 

provisions provided by the applicant are adequate and acceptable will be made during the Department’s review 

of the permit application. The Department will not be revising this provision. (APC: 76) 
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20) Comment: Significant Project Threshold: The Business Council has long advocated for an increase in the 

significant project threshold applicable to downstate New York. The reclassification of the former severe nonattainment area and the revamping of Part 231 represent an opportune time for adopting this sensible regulatory 

reform. It is our understanding that the Federal rule would allow for a significant source project threshold of 25 

tpy in the NY-LI-NNY moderate non-attainment area. While this provision would be a preferred outcome, at 

minimum, we recommend increasing the significant project threshold in proposed Part 231-13.3, Table 3 to 

12.5 tpy. We believe this approach makes regulatory and environmental sense for several reasons, such as: 

• It would relieve regulatory burdens on existing major facilities, but eliminating the need to do 

formal netting analysis for relatively minor projects. Since these facilities still would be subject 

to the same net emission increase threshold, an increase in the project-specific threshold would 

not result in a lessening of regulatory requirements affecting emissions. 

• It addresses the regulatory incongruity that allows for construction of new 24 tpy sources in the 

downstate region with no regulatory requirements under Part 231, but it subjects extremely small 

projects (>2.5tpy) at existing major facilities to additional regulatory assessments. 

Response: The Department will retain the significant project threshold of 2.5 tons per year for NOX and 

VOC for the severe ozone nonattainment area under the 1-hour ozone NAAQS. The Department has 

determined that retention of this threshold is vital to New York State’s ability to control ozone and crucial to its 

SIP for attaining the 1-hour ozone NAAQS. Raising the significant project threshold to 12.5 tpy as requested 

by commenter would relax requirements that have been in place for almost eight years and result in fewer 

modified facilities undergoing NSR review and could potentially raise concerns under the anti-backsliding 

provisions of the Clean Air Act. Another reason the Department has chosen not to raise the significant project 
Page 35 of 114

threshold is to maintain the NNSR requirements and emission capping provision that are contained in existing 

operating permits. By retaining existing requirements, the proposed amendments to Part 231 will continue to 

assist in protecting public health and the environment and preserve the requirements in the ozone attainment 

plan. Finally, the threshold levels for non-attainment areas are established in the Clean Air Act (CAA). For 

severe areas the CAA requires that any increase be considered significant. In the April 3, 2000 revisions to 

Subpart 231-2, the Department convinced EPA to accept a 2.5 ton per year significant threshold level for the 

severe area of New York State. (APC: 77) 

21) Comment: Emission Source Shutdown: Draft Part 231-4.1(b)(20) defines "emission source shutdown," for 

purposes of establishing ERCs, as "the permanent removal from service of an emission source, as reflected by a 

permit condition formally prohibiting the emission source from further operation, provided that it does not 

result in a facility shutdown." This definition does not address instances where a source is physically 

dismantled. The dismantling of a source also should also constitute "shutdown," and such source should be 

removed from the permit, rather than having a permit condition prohibiting its operation. 

Response: The Department disagrees with the comment. Subparagraph 231-4.1(b)(18(ii) of the definition 

‘emission source shutdown’ includes the following: 

“the physical removal of an emission source at a facility as reflected by a permit modification that removes the 

emission source from the permit, provided that it does not result in a facility shutdown.” 

22) Comment: Particulate ERCs: Draft 231-10.1(c) provides that "An ERC must be the same type of regulated 

NSR contaminant as the emission increase requiring ERCs," and this section goes on to provide a single 

example stating that only a particulate form of emission reduction is allowed to be used as an emission offset or 
Page 36 of 114

in netting for new particulate emissions. This provision, and especially this example, raises concerns because 

there are no fine particulate ERC’s currently in the state registry. The lack of any existing pool of PM2.5 ERCs’ 

in New York State is especially alarming, because it will effectively curtail the permitting of new state-of-theart facilities in non-attainment PM2.5 areas. Moreover, DEC’s proposed method for creating PM2.5 ERCs from 

mobile sources, which could be used for stationary source offsets, is untested and unproven. And the general 

program for creating offsets is too restrictive. All reasonable opportunities to create PM2.5 ERCs should be 

promoted, including the use of NOx and SO2 as PM2.5 precursors. 

EPA’s May 2008 final NSR regulations for PM2.5 offer an offset program that we strongly urge the Department 

to follow, since those regulations recognize SO2 and NOx as PM2.5 precursors and allow ERCs of these 

contaminants to be used to offset PM2.5 increases and for internal PM2.5 netting. The Department’s choice not 

to follow EPA’s lead will significantly, if not totally, eliminate the ability to modify existing facilities and will 

prevent businesses from modernizing their facilities with pollution control technology. For example, if a 

facility wanted to install SCR – which would significantly reduce NOx emissions – it could not do so without 

producing PM2.5. Since there are no readily available ERCs for PM2.5, the Department’s rule as proposed would 

severely restrict the installation of SCR at facilities in nonattainment areas throughout the state. 

Response: The Department understands commenter’s concerns. However, addressing the issue raised by 

the commenter is beyond the scope of this rulemaking. As noted by the commenter, EPA on May 8, 2008 

issued final rules governing the implementation of the New Source Review program for PM2.5. EPA’s final 

rule requires permits to address directly emitted PM2.5 as well as pollutants responsible for secondary 

formation of PM2.5, referred to as precursors. EPA has identified SO2 as a regulated precursor, and also NOx

unless a state can demonstrate that NOx emissions are not a significant contributor to the formation of PM2.5. 

The final EPA rule also allows interpollutant trading under the nonattainment NSR program on a regional basis 
Page 37 of 114

or statewide basis, but precludes such trading on a permit by permit basis. EPA’s permissible interpollutant 

offset trading allows reductions in direct PM2.5 to offset precursor emissions increases, emissions reductions of 

one precursor to offset emissions increases of another precursor, and reductions in precursor emissions to offset 

direct PM2.5 emissions increases. 

To facilitate these interpollutant trading provisions, EPA has provided in their final PM2.5 rule what they 

consider as acceptable trading ratios. States may elect to use EPA’s trading ratios or develop their own subject 

to EPA approval. States with EPA approved PSD programs and those with PM2.5 nonattainment areas have up 

to three (3) years to submit revised State Implementation Plans (SIPs) incorporating the PM2.5 NSR 

requirements. At the present time EPA will be implementing all PM2.5 NSR requirements until such time as 

New York’s revised NSR program addressing PM2.5 is approved by EPA. As noted above, New York has up 

to three years to submit a revised SIP addressing PM2.5. The Department will need time to evaluate EPA’s 

final PM2.5 rule, specifically with regard to applicable PM2.5 precursors and appropriate interpollutant trading 

ratios to determine what provisions make sense for New York. As such, the Department will not be 

incorporating into this Part 231 rulemaking provisions establishing PM2.5 precursors or interpollutant trading 

provisions. Following the Department’s detailed evaluation of EPA’s final PM2.5 rule, the Department will 

propose amendments to Part 231, if appropriate and necessary, to incorporate the Department’s decisions with 

respect to PM2.5 precursors and interpollutant trading. (APC: 79) 

23) Comment: General Prohibitions: Proposed section 231-3.5 should be deleted. This provision prohibits the 

construction and operation of a proposed major facility, NSR major modification, or existing major facility 

which undertakes a significant modification but avoids NSR applicability through netting, without an NSR 

permit. This provision unnecessarily imposes NSR compliance obligations on projects that do not increase 

emissions at all. 
Page 38 of 114

Response: The Department does not agree that this section should be deleted. This section does not impose 

NSR compliance obligations on projects that do not increase emissions. 

24) Comment: Source Obligation: Draft Section 231-3.6 (a) should be deleted. Under the state’s Title V permit 

program, a permit issued to a major source under Part 201-6 includes all applicable requirements. This 

provision which states: “The issuance of a permit does not relieve any owner or operator of the responsibility to 

comply fully with applicable provisions of the State Implementation Plan and any other requirements under 

local State and Federal law” creates a superfluous additional federally enforceable Applicable Requirement 

which would be required to be included in the Title V permit (potentially with attendant monitoring and/or 

record keeping requirements) for which the permittee will be required to certify compliance. We see no need 

for this additional requirement and recommend its deletion. 

Response: The Department agrees with the comment. The following language in subdivision 231-3.6(a) 

“and any other requirements under local, State, or Federal law” will be deleted. 

25) Comment: Baseline period: The Department’s initial proposed rule, in Part 231-4.1(b)(7), adopted the 

federal NSR reform allowing for a ten-year look back for establishing a non-EUSGU facility’s baseline period, 

and a five-year look back period for EUSGU facilities (with Department discretion to consider a baseline period 

that is more representative of normal operations.) During the Departmental advisory committee process, 

industrial and utility representatives illustrated how business cycles extend well beyond a five year period. 

This revised proposal now rejects the federal flexibility reform, and limits both EUSGU and non-EUSGU units 

to a five year look back. 
Page 39 of 114

These regulatory “take backs” are coupled with the carry-over proposal to disallow use of different baseline 

periods for different NSR contaminants. During the earlier advisory committee process, we illustrated how 

different categories of emissions at a single facility could be affected by different economic factors, e.g., VOC 

emissions could be affected by changes in production levels, while NOx emissions could be influenced by 

changes in fuel use due to significant changes in relative fuel prices. 

While the revised rule is an improvement over existing Part 231, it fails to provide in-state businesses with the 

same regulatory flexibility offered in most states, and reduce the ability to set baselines based on truly 

representative production levels. 

The Business Council urges the Department to adopt the EPA baseline period provisions. Alternatively, the 

Department could adopt the 10 year look back period while reserving the ability to determine whether a 

proposed baseline period is most representative of normal operations and adopt the ability to apply different 

baseline periods to different categories of pollutants, if the Department finds that emission levels of different 

pollutants are impacted by different economic factors. 

Response: As discussed in the RIS, in the preamble to the 2002 Federal NSR Rule EPA stated that one 

"common complaint" about their 1980 rule is that sources have "limited ability to consider the operational 

fluctuations associated with normal business cycles when establishing baseline actual emissions unless [the] 

reviewing authority agrees that another period is 'more representative of normal source operation.'” (67 Fed Reg 

80191-92). Members of the regulated community in New York echoed this same concern during the NSR 

Workgroup meetings and noted that establishing a baseline period pursuant to the existing NSR regulations was 

too complex and burdensome and often involved protracted permit proceedings with the Department. To 

address this issue, the Department has decided to establish a uniform baseline period provision for EUSGUs and 
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non-EUSGUs. Under this provision, all emission sources would be able to select a baseline using any 24 

consecutive month period in the past five years. The Department believes that this approach strikes the most 

appropriate balance considering environmental protection, administrative burden, and economic growth. Both 

EUSGUs and non-EUSGUs would have more flexibility than under the Department’s current Subpart 231-2 

regulation in establishing their baseline as they would not have to specifically demonstrate, in order to lookback beyond the two most recent years that another 24 consecutive month period within five years was more 

representative of normal emission source operations. As under current Subpart 231-2, both EUSGUs and nonEUSGUs would not be able to look-back further than the most recent five years to attempt to show that there 

was another 24 consecutive month period that was more representative of normal emission source operations. 

The Department believes that, in light of the D.C. Circuit’s decision in the ‘South Coast’ case, adopting a 10-

year look-back period could be legally vulnerable as an impermissible “backsliding” of a control in a 

nonattainment area. Section 193 of the Clean Air Act, 42 U.S.C. Section 7515, prohibits the “backsliding” of 

control requirements in nonattainment areas; ‘see also’ 42 U.S.C. Section 7502(e) (prohibiting the relaxation of 

a primary national ambient air quality standard absent the promulgation of requirements that “provide for 

controls which are not less stringent than the controls applicable to areas designated as nonattainment before 

such relaxation”). In ‘South Coast’, the court held that EPA acted unlawfully when it decided that the one-hour 

NSR requirements need not be continued, given that “[t]he result of this change is to subject fewer areas to 

LAER and to offset requirements that themselves are weakened,” but did not require alternative requirements 

that would ensure the same level of emission reductions (‘South Coast’, 472 F.3d 882, 901). Similarly, if the 

Department were to adopt the 10-year look-back provision for non-EUSGUs the baseline period provision could 

be challenged in court as being inconsistent with the ‘South Coast’ decision. 
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Under the current Part 231, both EUSGUs and non-EUSGUs may attempt to demonstrate to the Department 

that a 24 consecutive month period other than the two most recent years (with a limit on looking back five 

years) should be used in establishing the baseline period. However, as the D.C. Circuit noted in the ‘New York 

v EPA’ decision, “EPA appropriately refers to the problems experienced under the 1980 [PSD] rule . . . 

[including that] establishing a representative baseline period other than the two-year period immediately 

preceding the change was ‘complex and time-consuming’ and often involved ‘disputed judgment calls’” (‘New 

York v EPA’, 413 F.3d 3, 53-54 [quoting 61 Fed Reg 38,258]). Removing this aspect of the regulation should 

reduce the administrative burden on the Department, allowing it to use its limited resources in other more 

pressing areas. 

The Department also believes that overall this approach will also provide additional flexibility for facilities, 

which EPA concludes could result in additional economic growth. In particular, both EUSGUs and nonEUSGUs will be able to use any 24 consecutive month period within the past five years, without the burden of 

demonstrating to the Department that this period is more representative of normal source operations than the 

two most recent years. In addition, the business cycle study relied upon by EPA, to justify the 10-year lookback, found business cycles varied in the industries surveyed from three years to eight years. A five-year lookback offers a period that is approximately the average length of these cycles. (APC: 82) 

26) Comment: PAL Reductions: Plant-wide Applicability Limits can provide a significant degree of flexibility 

to business, by allowing businesses to make facility modifications without each being individually subject to 

NSR review. 

In this proposal, Part 231-9.4(e), PALs will be subject to an automatic reduction commencing in the sixth year. 

Generally, the PAL would be reduced by 25 percent, unless it can demonstrate at the time of the initial 
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application for the PAL that application of BACT and/or LAER to all major emissions sources covered by the 

PAL would not result in a 25 percent reduction in emissions if such sources were operated at full capacity. 

Businesses have questioned the utility of the Department’s initial PAL proposal, given its record-keeping 

requirements. We have received considerable input from member companies stating that placing this additional 

regulatory restriction on the use of a PAL will make this a less valuable “operational flexibility” option. We 

recommend deletion of these automatic reduction requirements. 

Response: As discussed in the RIS, the Department has determined that additional environmental benefits 

will result from requiring a reduction in the PAL of up to 25 percent by the end of the fifth year of the PAL. 

This condition will ensure that reduced emissions will result from the implementation of each PAL and that 

older, less efficient facilities will not be authorized to emit at historically high emission levels without updating 

their pollution control technology. Although the Department acknowledges that fewer facilities may opt for a 

PAL because of the emission reduction requirement, the PALs that would not go forward because of the 

emission reduction requirement are those at facilities which do not have state-of-the-art pollution control 

technology and whose emission levels exceed BACT and LAER limits. Because the PAL provision is 

voluntary, limiting its availability to those facilities that commit to reduce emissions or operate at levels that 

reflect state-of-the-art pollution control technology will not impose any additional costs or burdens on regulated 

industry, compared to the Federal PAL provision. The PAL provisions provide facilities with the flexibility in 

deciding how and whether they will need to make emission reductions to accommodate a physical or 

operational change and allow the facility to avoid any delays associated with permitting that might otherwise 

trigger NSR emission reduction requirements. Therefore, the implementation of a PAL can have the effect of 

allowing a facility to avoid the imposition of controls that would result in reduced emissions. Requiring a 

reduction in the PAL level ensures that environmental benefits will be achieved by the implementation of the 
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PAL. The Department believes that the proposed PAL provisions best balance the goals of improving air 

quality while reducing the burden of NSR compliance on industry. (APC: 29) 

27) Comment: Offset Ratios: Existing tables 2 and 3 (sub-parts 231-2.12 and 2.13 respectively) set the required 

offset ratios at a fixed ratio “or more” for VOC, NOx, PM10 and CO emissions. While the Act allows for 

higher offset ratios, they are not mandated. 

The proposed amendments to Part 231, set forth in Parts 231-13.1 through .4, Tables 1 through 4, states that 

offset ratios will be “at least” the stated figures. 

It was always unclear how or when the “or more’ clause would be applied to VOC or NOx sources, especially 

since both existing Part 231 (see existing Part 231-2.9(b)(2), and this proposal only includes criteria for offsets 

above the fixed ratios for PM10 and CO emissions. 

Absent clear regulatory criteria for applying higher offset ratios, we recommend that these tables should only 

reference offset levels “at least” the fixed percentage for particulate sources and CO sources, and “at” the fixed 

percentages for other contaminants. 

Response: The Act uses the phrase “at least” when specifying required offset ratios for ozone nonattainment 

areas, and specifically for ozone precursors VOC and NOx. See Section 182(b)(5) and Section 182(d)(2) of the 

1990 CAAA. The Department will not make the requested change. (APC: 84) 

28) Comment: Other Regulated NSR Contaminant: The revised rule (Part 231-13.5, Table 5 and -13.6, Table 6) 

lists a major facility thresholds and significant project thresholds for “any other regulated NSR contaminant” 
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other than those listed in Tables 5 and 6. It is unclear what contaminants other than those listed are potentially 

subject to regulation under NSR. We recommend deletion of this language. 

Response: 40 CFR 52.21(b)(23)(i) defines ‘Significant’ in reference to a net emissions increase or the 

potential of a source to emit by providing a list of pollutants with corresponding rates of emissions that if 

equaled or exceeded would be significant. For any pollutant not listed under 40 CFR 52.21(b)(23)(i), but 

subject to regulation under the CAA, 40 CFR 52.21(b)(23)(ii) defines significant as “any emissions rate”. The 

inclusion of the language “any other regulated NSR contaminant” in Section 231-13.5, Table 5 and Section 231-

13.6, Table 6 conforms Part 231 with the requirement of 52.21(b)(23)(ii) and will not be removed. (APC: 85) 

State of New York Department of Public Service (Commenter Number 4) 

29) Comment: Our concern is with the proposed Section 200.l(cl) definition of routine maintenance, repair or 

replacement (RMRR), which provides: (cl) Routine maintenance, repair, or replacement. Whether work done at 

an emissions source constitutes routine maintenance, repair, or replacement is determined on a case-by-case 

basis by examining the nature and extent, purpose, frequency, and cost. Generally, routine maintenance, repair, 

or replacement refer to activities that are undertaken on a prescribed and/or regular schedule, limited in scope 

and expense, and typically paid for out of the operation and maintenance budget of the facility. Routine 

maintenance, repair, and replacement generally do not refer to activities that are infrequent, large in scope, 

extend the life of the facility, or result in the regaining of lost capacity or availability. 

As stated in DEC's Assessment of Public Comments Summary, several commenters found that the definition of 

routine maintenance, repair and replacement in Section 200.1 is far too vague and unworkable and will likely 

result in delaying needed repairs, with a resulting decrease in plant availability. The definition seeks to limit 
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repair and maintenance to items accounted for in the affected entities' operation and maintenance (O&M) 

accounts. Further, the proposed regulation triggers NSR requirements for any types of repair that are, 

"infrequent, large in scope, extend the life of the facility, or result in the regaining of lost capacity or 

availability." 

Affected entities may have differing accounting systems for tracking expenditures. Moreover, situations can 

arise during a repair of an electrical steam generating station or steam boiler that may, for example, require 

removing and replacing a number of sections of boiler tubes that may not be accounted as O&M but as a capital 

expenditure. This repair does not increase the emission level or capability of the plant, but simply restores it to 

its permitted capability and should not trigger a NSR. 

Regarding activities that are infrequent or large in scope, there are a number of these that occur at electric 

generating stations that do not increase emissions or plant capability. For example, the repair of an electric 

generator rotor can be a large project, undertaken in-frequently that would be subject to review and approval, 

yet which has no effect on emissions or capability. 

Generators in New York are subject to competitive markets, so if generating facilities were to become subject to 

NSR under this provision, the capital expenditures required to comply with Best Available Control Technology 

might not be recoverable through the market, making some facilities uneconomic and precipitating their 

shutdown. Premature retirements would almost certainly have a negative affect on overall system reliability, as 

less electric capacity would be available, and would result in increased costs as well. 

DPS Staff recommends that the proposed RMRR definition include provisions that exempt maintenance and 

repairs that do not increase the entities permitted emission levels or capability. This would provide a clearer 
Page 46 of 114

metric for entities when performing maintenance and hence prevent delays that could jeopardize electric system 

reliability by decreasing unit availability. Although DEC stated in the Assessment of Public Comments that it 

would maintain the proposed definition, we urge reconsideration so that the regulated community can clearly 

assess whether a given repair or maintenance activity will trigger NSR provisions. DPS Staff recommends the 

following language: 

 (cl) Routine maintenance, repair, or replacement: Any physical or operational change that does not result 

 in an increase in an affected entity's permitted emission limits or more than a nominal increase in a 

 facility's existing generating or steam output capability. 

DPS Staff also believes that the increased record keeping requirements that are specified in the proposed 

regulations have the potential to significantly increase costs incurred by the state's electric and steam generators, 

raising the costs paid by load-serving entities and the customers they serve. Likewise, the requirement to request 

DEC review and approval of maintenance related activities to determine whether such activities trigger NSR 

provisions will increase both the cost needed to maintain facilities and the time needed to perform routine 

maintenance. 

Reliable and affordable electric service is critical to the security and economic well being of New York State. 

DEC should consider revising its proposed regulations implementing the NSR and PSD programs in a manner 

that reflects the obvious need to avoid, or at least minimize, the disruption of electric service. 

Response: As recognized the court in New York vs. EPA 443 F.3d880 the term modification means any 

physical change, or change in the method of operation of a stationary source which increases the amount of any 

air pollutant emitted by the source or which results in the emission of any air pollutant not previously emitted. 
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A facility’s generating or steam output capacity may not be directly related to the amount of air pollutants 

emitted. It is conceivable that the steam output capacity could remain constant while emissions of air pollutants 

increase significantly as a result of a physical or operational change. The Department cannot make this changed 

as it is inconsistent with the Act. Also, please see response to comment number 9 above. 

Alcoa Inc. (Commenter Number 1) 

30) Comment: Alcoa Inc. supports the comments of the Business Council of New York State, Inc. regarding the 

proposed revisions to Parts 200, 201, and 231. 

Response: Comment noted. 

31) Comment: Please also note that Alcoa is strongly opposed to the proposed definition in Part 200 for Routine 

Maintenance, Repair, and Replacement. This definition is unworkable for facility owners/operators in the State 

of New York because it would result in an unreasonable and unwarranted expansion of NSR-related compliance 

costs with uncertain benefit to the environment. The proposed definition would also create unnecessary 

uncertainty and confusion regarding the ability of a facility to adequately repair and maintain long-term capital 

investments. This uncertainty stems from the proposed need for “case-by-case” determinations for routine 

maintenance, repair and replacement activities and the proposed limitations for routine maintenance repair and 

replacement to “generally” include only those activities performed on a “prescribed” schedule and “typically” 

paid for out of the O&M budget. 

Many components of capital operating equipment are replaced on an as needed basis rather than a “prescribed 

and/or regular” schedule to minimize operating expense. To the extent that these repairs and replacements were 
Page 48 of 114

not anticipated during the annual budget process, the cost of these repairs may not have been included in a 

facility's O&M budget. Other repairs may be required less frequently, but none-the-less, represent a necessary 

routine maintenance, repair or replacement to ensure return on the original capital equipment investment. In 

any case, the repair or replacement of such components will not necessarily increase emissions of NSR 

regulated pollutants. Yet, New York’s proposed definition would require facilities to seek case-by-case 

determinations for all these maintenance activities under the NSR program before such maintenance could be 

performed. This will result in unnecessary and truly unworkable delays for manufacturing facilities and added 

costs for both the facilities and the New York State DEC (Department). 

Furthermore, the logic applied in the definition of “Routine maintenance, repair, or replacement” for excluding 

activities that extend the life of a facility is flawed. The proposal definition continues to afford affected 

facilities an exclusion for “routine maintenance.” “Maintenance” by its very nature is an activity that extends 

the functional and useful life of an emission unit in that the maintenance activity avoids the premature failure of 

the emission unit, enabling it to function for a longer period of time than would be expected if maintenance 

were not performed. 

The proposed definition creates significant regulatory uncertainty for owners/operators who are already vested 

in manufacturing equipment in the State of New York as well as those who may consider investments. The use 

of vague terms such as “generally”, “prescribed”, and “typically”, will provide unlimited deference to 

Department interpretations regarding what maintenance can and cannot be performed at a facility without 

incurring the potentially significant cost and delays associated with NSR permitting. Business in the State of 

New York will have significant difficulty managing their operations with the degree of regulatory uncertainty 

created by the proposed Routine Maintenance, Repair, and Replacement definition. 
Page 49 of 114

Response: The commenter states that New York’s proposed definition would require facilities to seek caseby-case determinations for all maintenance activities under the NSR program before such maintenance could be 

performed. The Department disagrees with this comment. It is the Department’s intent that the facility is 

responsible for making a RMRR determination for any proposed project. If the facility owner has any doubt or 

questions regarding whether a proposed project is truly RMRR, then the facility owner should submit a request 

to the Department for a RMRR determination. Furthermore, the maintenance activity would not trigger NSR, 

and no case-by-case determination would be required, if emissions do not increase by more than the 

significance threshold over the baseline. Please note that projects that are determined not to be RMRR and do 

not propose a significant emissions increase, are not subject to the emission offset and control technology 

requirements of Part 231. However, these projects would still be subject to the requirements of section 231-

11.2 for insignificant modifications. Also, please see response to comment number 9 above. 

Nucor Steel Auburn, Inc. (Commenter Number 2) 

32) Comment: Nucor is a member of, and supports the comments submitted by the Business Council of New 

York State, Inc. 

Response: Comment noted. 

33) Comment: We are concerned with the NYSDEC’s definition of “routine maintenance, repair and 

replacement” (RMRR). As you know, the extent of this exception under the federal regulations has been the 

subject of ongoing litigation. Consequently, because the full scope of this exclusion is unsettled at the federal 

level, we believe that it is premature to promulgate a definition at this time. Any definition promulgated now 
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may be invalidated as a result in the federal litigation or may result in New York having a definition that is 

unnecessarily more restrictive than the federal counterpart, with no significant additional environmental benefit. 

Further, while it appears that NYSDEC is attempting to codify judicial holdings, the use of “generally” and 

“typically” creates ambiguity because a facility cannot be assured that its actions fall under this definition. 

Likewise, excluding activities that extend the life of a facility or result in regaining lost capacity from the 

definition of RMRR may effectively eliminate this exclusion because any project arguably extends the life of a 

facility or regains lost capacity. 

Nevertheless, if NYSDEC does intend to retain a definition of RMRR, we propose that the definition include a 

sentence that replacement of equipment components with substantially similar components constitutes RMRR. 

Substantially similar components are those with the same basic design parameters as the components being 

replaced. When a company is replacing the components of a piece of equipment with like-kind or substantially 

similar components with the same basic design parameters, it should not need to examine whether the 

replacement triggers NSR review. Thus, if the Department does not eliminate the definition of RMRR, we 

propose adding the following sentences to the definition: 

“Routine maintenance, repair and replacement does refer to activities in which equipment components are 

replaced with substantially similar components. Substantially similar components are those with the same basic 

design parameters.” 

Response: Please see response to comment number 9 above. 
Page 51 of 114

34) Comment: We are also concerned that the proposed revisions do not allow a facility to use a different 

baseline period for different NSR pollutants. See proposed NYCRR 231-4.1(b)(4)(d). The federal rule 

specifically allows a facility to use a different baseline period for different NSR pollutants. See, e.g., 40 CFR § 

51.165(a)(1)(xxxv)(3). The factors which influence the emissions of different pollutants vary. Using only one 

24-month period for all pollutants will have the effect of establishing a baseline for some pollutants that is not 

truly representative. As a result, Nucor supports NYSDEC adopting the federal requirement that allows the use 

of different baseline periods for different NSR pollutants. 

Response: Please see response to comment number 14 above. 

35) Comment: Nucor also objects to proposed Parts 231-6.1(a) and 231-8.1(a) that impose record keeping 

requirements for any project whose “project emissions potential” is below the significant threshold. The 

ultimate effect is that any major source will be required to prepare and maintain unnecessary records for 

projects with only nominal emission increases. We support the Business Council’s proposal to exclude 

“exempt” and “trivial” sources from these requirements and to delete proposed Part 231-11.4(a) so that any 

change that results in an emissions increase less than 50 percent of the applicable significance source threshold 

is not included in these record keeping requirements. 

Response: Please see response to comment number 15 above. 

36) Comment: Finally, Nucor strongly objects to NYSDEC’s revision of the “look back” period from 10 years 

to 5 years. NYSDEC initially adopted the federal 10-year look back period, but revised it to 5 years in the later 

proposal. It is unclear why the look back period was changed. The federal rules and the majority of states 
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recognize that a 10-year look back period is representative of business cycles and allows a business to utilize a 

truly representative 24-month period when determining baseline emissions. 

Response: Please see response to comment number 25 above. 

NRG Energy, Inc (Commenter Number 3) 

37) Comment: NRG Supports The Actual-To-Projected-Actual Emissions Test 

The federal NSR rules strike an important balance between allowing existing sources to continue operating as 

they have traditionally while requiring them to install appropriate emission control technology when they make 

changes that result in an increase in actual emissions to the environment. By following the federal NSR rules 

and proposing an actual-to-projected-actual emissions test that allows sources to exclude from their projection 

those emissions increases that are unrelated to the change, including increases resulting from demand growth 

(Section 231-4.1(b)(40)(i)(c)), the DEC will ensure that physical changes or changes in the method of operation 

(Aphysical or operational changes@) made to existing sources will not trigger the NSR requirements unless they 

alter the way that the source will operate and, as a result, increase actual emissions of regulated NSR 

contaminants. 

NRG believes the exclusion for unrelated emissions increases in proposed Section 231-4.1(b)(40)(i)(c) is clearly 

mandated by the federal Clean Air Act, which only applies the NSR requirements to existing sources that make 

a physical or operational change Awhich increases the amount of any air pollutant emitted by such source or 

which results in the emission of any air pollutant not previously emitted.@ 42 U.S.C. '741 1(a)(4). This clearly 

establishes a causation requirement for applicability of the NSR regulations so that only physical or operational 

changes that result in a significant net increase in emissions should be subject to the NSR requirements. Based 
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on the statutory language, emissions increases not related to the physical or operational change should not be 

considered in calculating post-project emissions. 

The proposed definition of Amodification@ in Section 231-4.1(b)(28) also establishes that unrelated emissions 

increases should not be considered in projecting post-project emissions. According to the proposed definition, a 

modification is a physical or operational change that Aresults in@ an increase in actual emissions over the 

baseline or that “results in” the emission of any air contaminant not previously emitted by the source. 

NRG supports the DEC=s language in proposed Section 231-4.1(b)(40)(I)(c), which clarifies that unrelated 

emissions increases should not be considered in projecting future actual emissions. The language conforms to 

congressional intent, the proposed definition of Amodification@ and the federal NSR rules and makes it clear to 

sources how they should perform their post-project emissions calculations when analyzing the project emissions 

potential of a proposed physical or operational change. 

Response: Comment noted. 

38) Comment: The Proposed Definition Of Routine Maintenance, Repair And Replacement Is Unworkable 

The proposed NSR rules exclude Aroutine maintenance, repair and replacement@ (RMRR) from the definition of 

a modification in Section 231-4.1(b)(28)(i) for major NSR purposes. The Company supports this important 

exclusion from the definition to allow the Company to continue to maintain its plants. However, the 

Department=s proposed definition of Aroutine maintenance, repair and replacement@ in Section 200.1(cl) is 

unworkable as worded and would force the Company to undertake extensive emissions analysis for most of the 

maintenance projects it performs at its plants every year. 
Page 54 of 114

The first part of the definition provides that RMRR is determined on a case-by-case basis by examining the 

nature and extent, purpose, frequency and cost of a project. These factors, which have been used by EPA and 

various district courts, offer sources appropriate flexibility to determine whether their projects must be 

considered modifications or are excluded from the major NSR requirements as RMRR. However, the latter part 

of the proposed definition renders it unworkable. 

According to proposed Section 200.1(cl): 

Generally, routine maintenance, repair, or replacement refer to activities that are undertaken on a prescribed 

and/or regular schedule, limited in scope and expense, and typically paid for out of the operation and 

maintenance budget of the facility. Routine maintenance, repair, and replacement generally do not refer to 

activities that are infrequent, large in scope, extend the life of the facility, or result in the regaining of lost 

capacity or availability. 

These two sentences appear to more severely limit the type of projects that can be considered as RMRR than the 

first part of the definition. If the Department intends that projects cannot be considered as RMRR unless they 

are undertaken on a prescribed or regular schedule, are limited in scope and expense and paid for out of the 

operations and maintenance budget of a source, then virtually all maintenance projects at electric generating 

units (AEGUs@) could not be deemed RMRR. 

An EGU is a complicated assembly of multiple systems and components and proper operation of the unit 

depends on all of the systems and components working together in an integrated manner. To ensure proper 

operation, EGUs perform hundreds of maintenance projects per year, including replacements of components 

that degrade as a result of design defects, manufacturing defects, misapplication of materials and normal wear 
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and tear due to the tremendous heat and stress to which the components are subjected. However, due to the 

complexity of an EGU, the overall harsh operating conditions in various components, and the vastly different 

operating conditions and failure modes for the individual components, it is not possible to predict or plan to 

undertake specific replacement projects on a prescribed or regular schedule even though such replacements are 

anticipated during the EGU=s lifetime. Electric generating companies do not want to make such replacements 

prematurely, as doing so would raise the costs of operating, which would then be passed on to the consumers in 

the State. Therefore, the industry generally waits for components to begin to degrade before undertaking 

replacement, as determined from inspections or failures of the component. NRG does not believe this 

economical practice should make a component replacement any less routine. 

Further, although a maintenance activity may be fairly minor by itself, the project may appear more extensive or 

costly simply due to the component=s location within the EGU. For instance, it is not possible replace a turbine 

component without undertaking the extensive task of opening up the turbine. Similarly, any boiler maintenance 

activities cannot be performed without removing sections of the boiler or erecting scaffolding to reach the area 

where the maintenance will be performed. Again, NRG does not believe such common practices at EGUs 

should result in a project being considered non-routine. 

Finally, most component replacements are capitalized for accounting purposes. The Department appears to be 

including in the proposed definitions an arbitrary and artificial distinction between projects that are paid for out 

of the operations and maintenance budget versus projects that are paid for out of the capital budget. The 

distinction would eliminate any concept of Aroutine replacements@ at EGUs since component replacements are 

usually capitalized for accounting and tax purposes. NRG=s current practice is to capitalize component 

replacements that cost as little as $4,500. DEC cannot seriously intend that replacements of $4,500 be 

automatically excluded from consideration as RMRR. The cost of a project is only one of the four factors that 

EPA evaluates in determining whether a project is routine maintenance, repair and replacement and that the 
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DEC endorses in the first sentence of the proposed definition of RMRR. However, the DEC=s proposed 

wording in the subsequent sentence of the proposed definition would appear to add the source of funding as a 

fifth factor and elevate it above the other four factors in determining whether a project is routine. The 

Department=s proposed artificial distinction between component replacements that are capitalized or expensed 

should be given no weight in the evaluation of whether the project is routine. Companies make distinctions on 

project funding primarily for accounting and tax purposes. This distinction should not be used for the unrelated 

purpose of determining whether a project is subject to environmental regulation. 

The Company recognizes that certain courts have looked at the factors addressed in the latter part of the 

proposed definition in the context of evaluating whether the specific projects at issue in the case are RMRR. 

However, the Department’s proposed definition appears to predetermine that projects meeting one or more of 

the listed criteria cannot be considered RMRR. The Company believes the Department must offer flexibility in 

the definition by avoiding general characterizations such as those found in the latter part of the proposed 

definition. 

NRG regularly performs maintenance projects at its plants to maintain availability and reliability and to ensure 

the plants are operated efficiently and safely. Although most of the maintenance projects are not performed on 

a regular or prescribed schedule, may appear extensive simply due to their location within the EGU and may be 

capitalized, NRG historically has considered such projects to be RMRR. The Department’s proposed definition 

appears to foreclose the possibility that the Company can continue to view such maintenance projects as 

RMRR. 

The definition of RMRR, as proposed, is likely to force companies to undertake extensive emissions analyses 

for most of their maintenance projects and meet permitting requirements, a burdensome result that will 
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significantly raise the cost of compliance in the State. It also could lead to delays for needed projects due to the 

permitting requirements proposed in Section 231-11.2, which could seriously impact the reliability of EGUs. 

Accordingly, the Company requests that the proposed definition of RMRR be revised to read as follows: 

 (cl) Routine maintenance, repair, or replacement. Whether work done at an emissions source constitutes 

routine maintenance, repair, or replacement is determined on a case-by-case basis by examining the nature and 

extent, purpose, frequency, and cost. 

Response: Please see response to comment number 9 above. 

39) Comment: The Requirements In Section 231-11.2 for Title V Permitting of Insignificant Modifications Are 

Unnecessary And Burdensome 

In proposed Sections 231-6.1 and 231-8.1(a), a project with a project emission potential that does not equal or 

exceed the applicable significant project threshold in the appropriate table of Subpart 231-13 must comply with 

the requirements of Section 231-11.2. Proposed Section 231-11.2 addresses the requirements for insignificant 

modification where there is a reasonable possibility that the modification will result in an emissions increase. 

Under Section 231-11.2(c), if an existing source seeking to undertake a project has a project emission potential 

that equals or exceeds 50 percent of the applicable significant project threshold when considered alone or when 

added to any unrelated projected emission increases expected at the emissions unit (those emissions excluded in 

accordance with proposed Section 231-4.1(b) [(40)(i)(c)], the source would have to modify its Title V permit 

under the minor permit provisions of Subpart 201-6 and, under proposed Section 231-11.2(c)(1)-(3), would 

need to retain records of certain information, monitor emissions and submit emission reports to the Department 

for five years after completion of the insignificant modification. 
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The Company believes the requirement for a minor permit revision is unnecessary, goes well beyond what the 

federal NSR rules require and serves no purpose other than to create an administrative burden and potentially 

delay projects needed for sources to remain economically competitive in the State. (The company understands 

that the requirements of Section 231-11.2 can be avoided if a source calculates projected actual emissions using 

the emission unit’s potential to emit, but the Company does not see this as a viable option. In virtually all 

circumstances, using the potential to emit to calculate projected actual emissions would result in a significant 

increase in emissions, which would force a source to meet even more onerous permitting requirements than the 

minor permit revision procedures in Subpart 201-6.) Under the federal NSR rules, pursuant to 40 C.F.R. section 

52.21(r)(6), sources equaling or exceeding 50 percent of a significant emission threshold must meet 

requirements that mirror the recordkeeping, monitoring and reporting provisions of proposed Section 213-

11.2(c)(1)-(3). Compliance with these requirements is automatic and there is no need under the federal NSR 

rules to seek a minor permit revision to incorporate such requirements into the source’s Title V permit. 

The Company is unclear why the Department believes such a provision is necessary under the State’s NSR 

program and the Department has offered no sound explanation to support its proposed requirement. Pursuant to 

40 C.F.R. section 52.21(r)(6), prior to beginning actual construction of a physical or operational change that 

meets or exceeds the 50 percent reasonable possibility threshold, the source must document and maintain 

certain information regarding the project, including its emissions calculations. Electric utility steam generating 

units must send this documentation to EPA or the state permitting authority. The Company believes this 

requirement is sufficient for insignificant modifications that do not trigger major NSR permitting requirements. 

Obtaining a minor permit revision creates unnecessary administrative steps and could potentially delay a project 

if the department holds up a completeness determination under Section 201-6.9(c). Under 201-6.7(c)(5), a 

minor modification cannot be made until the DEC deems the application complete. If the DEC has not acted 

within 15 days after receipt of the application it will be deemed complete by default and the minor modification 
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may be made 25 days after the permit application was received by the DEC. However, the permit might be held 

up even longer if the Department finds the initial application was incomplete. Further, although the source may 

go ahead with its project once the permit application is deemed complete, no permit shield would apply until the 

permit revision is issued by the Department which puts the source at risk which could adversely affect the 

reliability of EGUs, especially in the New York City area, which already has reliability concerns. 

Requiring a Title V minor permit revision is particularly problematic given the narrow definition of RMRR that 

the Department proposes to adopt. As discussed above, this narrow definition will make most activities at 

EGUs non-routine and, hence, activities for which the source must perform emissions analyses to determine 

whether projected actual emissions will exceed baseline levels by the significant project threshold. Unless a 

source expects no changes over baseline levels, e.g., does not project increases in demand or changes in the fuel 

used at the emissions unit, it is very likely that, for most projects at EGUs, projected actual emissions, including 

those emissions that can be excluded under Section 231-4.1(b)(40)(i)(c), will exceed baseline emissions by 

more than 50 percent of the significant project threshold. As a result, a single source could be forced to submit 

several minor permit revision applications every year to address all the maintenance activities performed at the 

source, which would leave the source’s Title V permit in a constant state of flux. 

The proposed permitting requirements also would unnecessarily complicate and delay efficiency improvements 

at EGUs. The State should be encouraging efficiency improvements, which are critical to more cost-effectively 

comply with RGGI. Mandating that sources obtain minor Title V permit revisions for efficiency improvements 

as a result of unrelated increases in emissions would do nothing more than create unwarranted regulatory 

barriers for no environmental benefit. 
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The proposed Title V minor permit revision requirements are especially onerous for sources in severe ozone 

nonattainment areas where the significant project threshold is only 10 percent of the significant net emission 

increase threshold. Given that, virtually any post-project emissions change, even if wholly unrelated to the 

project, would force the source into the Title V minor permitting revision process. 

Further, given the number of sources in the State, the proposed Title V permitting requirement likely would bog 

down the Department’s permit revision process and put a strain on its resources. The Regulatory Impact 

Analysis contains no mention of the expected impact to sources or the Department expected as a result of the 

requirement to apply for minor Title V permit revisions for insignificant modifications. This is crucial to 

understanding the resources required both by the regulatory community and the Department to implement this 

provision. 

The Company believes that the recordkeeping, monitoring and reporting requirements of proposed Section 231-

11.2(c)(1)-(3) are sufficient for sources to demonstrate that their insignificant modifications are not major NSR 

modifications. Accordingly, the Department should delete the Title V permitting requirement. The requirement 

is unnecessary, will complicate the process and is likely to strain both industry and State resources. 

Response: The Department acknowledges that the record keeping requirements of the proposed rule are in 

excess of the federal rule. However, the Department disagrees with the commenter’s proposed change and will 

not eliminate these provisions. Through the requirement to maintain these records the Department can assure 

better compliance with the proposed rule and protect the applicant from unfounded accusations of 

circumvention. In doing so, the Department believes that these provisions are necessary to protect the 

environment and public health. The provisions for Title V permit modifications are straightforward. Upon 

notice of a complete application, or on the 25th day after the date the Department received the application, if no 
Page 61 of 114

notice is given, the facility may proceed with the modification in accordance with 6 NYCRR subdivision 201-

6.7(c). 

40) Comment: The Provisions To Be Incorporated Into Title V Permits Must Be Clearly Defined 

If the Department insists on including in the final NSR rules the requirement that insignificant modifications 

meeting or exceeding 50 percent of the significant project threshold must obtain a minor Title V permit 

revision, the provisions to be incorporated into the Title V permit must be clearly identified. It is not at all 

apparent from the proposed rules what provisions would need to be included in the minor permit revision 

application. The company presumes that the recordkeeping, monitoring and reporting provisions of Section 

231-11.2(c)(1)-(3) would be incorporated into the Title V permit, as indicated in the Revised Regulatory Impact 

Statement, but Section 231-11.2(c) is silent as to whether additional permit requirements would need to be 

incorporated. 

The Company urges the Department to address this issue and, further, to limit the provisions that must be 

incorporated into the source’s Title V permit to those requirements for recordkeeping, monitoring and reporting 

that identified in Section 231-11.2(c)(1)-(3). Any additional requirements would be unnecessary to demonstrate 

that the source is in compliance. Clearly defining the provisions that must be incorporated into the Title V 

permit will avoid any confusion, make it more likely that a permit application can be deemed complete within 

15 days of submittal and allow less uncertainty that could lead to permit challenges. 

Response: The Department disagrees with the commenter’s assessment. All of the Department’s 

regulations outline the requirements each affected facility must comply with. These regulations do not 

specifically state that each and every provision must be included in the permit. The Department will not make 

the requested change. 
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41) Comment: The Permitting Requirements For Netting Are Unnecessarily Stringent, Complicated And 

Unclear 

Pursuant to proposed Sections 231-6.1(b) and 231-8.1(b), if a proposed modification at an existing source has a 

project emission potential that equals or exceeds the applicable significant project threshold in the appropriate 

table of Subpart 231-13 but does not result in a major modification, the source must comply with the provisions 

of proposed Sections 231-6.2 or 231-8.2, as applicable. Proposed Sections 231-6.2 and 231-82 establish the 

requirements for netting. Under proposed Sections 231-6.2(b) and 231-8.2(b), a source must obtain a permit 

that establishes an emission limit equal to the projected actual emissions or potential to emit of the proposed 

modification for each air pollutant that exceeds the applicable significant project threshold. Certain of the 

permit application requirements for a netting permit are detailed in proposed Section 231-11.1(a). Proposed 

Section 231-11.1(a)(3) requires a source to include in its permit application the calculations and supporting 

documentation for baseline emissions, projected actual emissions, the project emission potential and the net 

emission increase determination for the modified facility. If the calculation of projected actual emissions 

excludes emissions that could have been accommodated during the baseline period and are unrelated to the 

modification, the source must include detailed documentation of the excluded emissions “in order for the 

exclusion of those emissions to be allowed in determining future compliance.” Proposed Section 231-

11.1(a)(3). 

The Department’s proposal that sources must obtain a permit limit equal to projected actual emissions from a 

proposed project for which netting is used is overly restrictive. Such a requirement goes well beyond what is 

required in the federal NSR regulations, where a source would only be required to obtain a permit to make 

contemporaneous emission decreases enforceable. The proposed provision appears to unnecessarily complicate 

the use of netting and it is not at all clear how the permit limit is supposed to work in practice. Proposed 

Section 231-11.1(a)(3) appears to provide that emissions which were excluded from the calculation of projected 
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actual emissions, as allowed under proposed Section 231-4.1(b)(40)(i)(c), also would be excluded when the 

Department is determining compliance with the permit limit. However, it is not clearly established in the rules. 

Further, the proposed rules fail to address what happens if the source exceeds both the permit limit and its 

projection of unrelated emissions increases due to unexpected factors that are unrelated to the project, such as 

unexpected changes in the type of fuel being combusted in the unit, an unexpected shutdown of another unit, 

severe weather or unanticipated demand growth. Would such increases over the permit limit also be allowed 

even though they were not projected by the source? For example, if four years after a modification has been 

made for which netting was used, an oil-and gas-fired unit, which primarily used natural gas during the baseline 

period and projected similar fuel usage during the post-project period, switched to burning oil as its primary fuel 

due to an unforeseen increase in natural gas prices and such oil usage resulted in higher levels of pollutants 

than the emissions projected or included in the facility’s permit, how will that situation be handled? This is a 

serious concern given the apparent permanent nature of the permit limit. 

If a source is restricted from having unrelated emission increases beyond what was projected, the proposal will 

artificially constrain operations and, potentially, fuel usage for purposes unrelated to a physical or operational 

change simply because a source was unable to accurately forecast future actual emissions. For example, in the 

future, a source might face unexpected changes in the availability of fuel, such as the curtailment of natural gas 

during peak demand periods. Additionally, it is extremely difficult to accurately forecast weather changes, 

which are likely to impact electricity usage. For example, looking at past degree days (a climate indicator of 

energy needs), the variation from the climate normal from 1992 to 2006 averaged 5.9 percent annually and 19.6 

percent during the ozone season. In fact, the minimum percentage difference from normal for the ozone season 

was 4.3 percent and ranged as high as 52 percent. 
Page 64 of 114

The Department cannot expect that a source would be able to accurately predict future emissions for the entire 

life of an emissions unit, yet that is what appears to be required. Further, there is no clear indication as to how 

emissions from future insignificant modifications would be handled. Would such increases be allowed to 

exceed the permit limit or would the source be constrained from making future insignificant modifications once 

it has accepted a permit limit for netting purposes? 

The Company believes these unanswered questions make the permitting requirement for netting complicated 

and leave compliance uncertain. The company believes that requiring sources using netting to take a permit 

limit equal to the project emission potential of a proposed modification is unnecessary and urges the 

Department to delete this requirement from the proposed NSR rules. 

Response: If the facility were to exceed their emission cap (ton per year limit) they would be considered in 

violation of their Title V permit. If the facility chooses to operate in a manner that could cause a permitted limit 

to be exceeded, then the facility would need to modify their permit to allow for a different operating scenario 

which raises their emission cap. This modification may cause the facility to become subject to the provisions of 

Part 231. Also, please note that this rule does not preclude a facility from proposing future modifications. If a 

facility proposes a future modification the procedures in Part 231 will be used to determine applicability. If the 

facility is able to net out of applicability, a new cap will be included in the Title V permit. If the facility is 

unable to cap, then the new emission limit will be included in the Title V permit in addition to any other 

applicable requirements of Part 231. Finally, please see responses to comment numbers 11 and 15 above. 

42) Comment: The Netting Requirements Are Problematic In Severe Ozone Nonattainment Areas 

The problems with requiring sources to obtain permit limits for netting purposes are exacerbated in severe 

ozone nonattainment areas. According to proposed Section 231-6.1(b), if a source in a severe ozone 
Page 65 of 114

nonattainment areas has a proposed modification that equals or exceeds the significant project threshold for 

NOx or VOCs of 2.5 tons per year, as identified in Table 3 in proposed Section 231-13.3, the source must meet 

the requirements of proposed Section 231-6.2 regarding netting. Even if the source has no contemporaneous 

emissions increases or decreases that could be used for netting, it appears that the source would be required to 

obtain a netting permit and take a limit equal to its projected emissions of NOx or VOCs. For example, if a 

source proposes a modification that would result in an actual emissions increase of 3 tons per year of NOx, 

pursuant to proposed Section 231-6.1, the source must go through a netting analysis. If the source does not 

have any contemporaneous emissions increases or decreases of NOx, result of the netting analysis would remain 

at three tons. Pursuant to proposed Section 231-6.2(b), it appears that the source would need to obtain a permit 

limit for the three ton modification. This is a particularly burdensome requirement for sources in severe ozone 

nonattainment areas given that the project emission threshold is only one-tenth of the significant net emission 

increase threshold. For all other pollutants in nonattainment areas, the significant project threshold is equal to 

the significant net emission increase threshold, so that a source in any area other than a severe ozone 

nonattainment area with emissions that are only 10 percent of the significant net emission increase threshold 

would not have needed to undertake the netting analysis in the first place. 

The Department has offered no rationale as to why the significant project threshold is not equal to the 

significant net emission increase threshold for sources in severe ozone nonattainment areas. If the Department 

insists on retaining the permit requirements for netting, the Company urges the Department to raise the 

significant project threshold to the level of the significant net emission increase threshold. Otherwise, sources 

in severe ozone nonattainment areas would be forced to take permit limits for very insignificant increases in 

emissions, which raises all the attendant issues that the Company has noted above. 

Response: Please see responses to comment numbers 11 and 20 above. 
Page 66 of 114

43) Comment: The DEC Should Allow A Source To Demonstrate That A Baseline Period Outside Of The Five 

Years Preceding A Project Is More Representative Of Normal Facility Operations 

The definition of ‘baseline period” in proposed Section 231-4.1(b)(7) allows emission sources to use 24 

consecutive months out of the five years preceding a project as their baseline period. NRG supports the fiveyear lookback period for the baseline for EGUs, which is consistent with the federal NSR rules. However, the 

Department’s proposal would not allow a source to select a different baseline if it is more representative of 

normal facility operation. 

The proposed definition is unnecessarily restrictive and may force sources to choose a baseline that does not 

reflect normal source operation, which may inappropriately inflate the emissions associated with a proposed 

project. NRG requests that the Department follow the federal NSR rules for establishing a baseline for EGUs, 

which simply authorize the EPA Administrator on a case-by-case basis to allow sources to use a different time 

period as the baseline if it is more representative of normal operations. The proposed rules as written would 

eliminate consideration of a 24-month period outside of the five years immediately preceding a project as the 

baseline as well as shorter time periods that the Department would otherwise agree are more representative of 

normal facility operations. 

Response: The Department believes that the implementation of NSR in New York needs to be streamlined, 

and having a more straightforward approach to determining baseline actual emissions is a significant step to 

achieving that goal. Under the baseline period definition in current Subpart 231-2, facilities are not allowed to 

demonstrate that a 24 consecutive month period, outside of the five years immediately preceding a project, is 

more representative of normal facility operations. Facilities do, however, have the opportunity to make a case 

that another two consecutive year period within five years immediately preceding a project is more 

representative of baseline emissions. This requires a case-by-case review of historical facility operations by 
Page 67 of 114

Department staff, an extremely resource intensive process, as noted in the Regulatory Impact Statement, that 

can lead to inconsistent application of the rule throughout the State. Allowing facilities to choose any two 

consecutive years in five immediately preceding a project avoids this result. The Department believes that 

allowing any two consecutive years in five provides facilities with a sufficient period of time to establish 

baseline emissions. The Regulatory Impact Statement discusses in detail the rationale behind the Department’s 

decision to propose the baseline period consisting of any two consecutive years in five immediately preceding a 

project. (APC: 28) 

44) Comment: The Definition of “Baseline Actual Emissions” Should Allow Sources To Select Different 

Baseline Periods for Different Pollutants 

In the definition of ‘baseline actual emissions” in proposed Section 231-4.1(b)(4)(i)(d), the DEC proposes to 

require sources to use the same baseline period for all regulated NSR contaminants. NRG opposes this 

requirement and urges the DEC to follow the federal NSR rules, which allow sources to select a different 

baseline period for each regulated NSR pollutant. See 40 C.F.R. section 52.21(b)(48)(i)(c). This type of 

flexibility under the NSR program is important to ensure that sources can select periods of representative 

emissions for each regulated NSR contaminant rather than be forced to choose one 24-month period that might 

unfairly penalize the source with respect to emissions of certain NSR contaminants. 

For example, during a 24-month period that is the most representative of NOx emissions, the source might have 

been burning coal with a low sulfur content that is not representative of SO2 emissions. If the source selects 

another 24-month period that is representative for SO2 emissions, the NOx emissions during that period might 

not be representative. The source would then be placed in the untenable position of selecting a baseline that is 

not reflective of typical annual emissions from the unit for one or more regulated NSR contaminants. 
Page 68 of 114

Accordingly, NRG urges the DEC to follow the federal NSR rules and allow sources to select a different 

baseline period for each regulated NSR contaminant. 

Response: Please see response to comment number 14 above. 

45) Comment: Reducing A Plantwide Applicability Limit In The Sixth Year Is Unnecessarily Restrictive 

In Section 231-9.4(e), the Department proposes that in the sixth year of an initial Plantwide Applicability Limit 

(PAL), the level must be reduced by 25 percent. This requirement would make a PAL a very unattractive 

option in New York and it is inconsistent with the federal PAL regulations. 

The biggest advantage of a PAL is that it provides certainty to a source as to when a project will trigger the 

NSR requirements. With a PAL, a source can make any physical or operational change without triggering NSR 

provided that the PAL level will not be exceeded. This provides the source with flexibility in deciding how and 

whether it will need to make emission reductions to accommodate a physical or operational change and allows 

the source to avoid any delays associated with permitting that might otherwise be mandated. However, as 

proposed by the Department, the advantages of a PAL would be seriously outweighed by the disadvantages of 

forcing a source to reduce its emissions regardless of what activities the source might have undertaken in the 

first five years of the PAL. 

The PAL as proposed by the Department may have some limited utility for sources that intend to reduce 

emissions after the effective date of a PAL for some other program. However, for the majority of sources in the 

state, NRG does not believe that the PAL option will be attractive if the Department retains the requirement that 

it be reduced by 25 percent in the sixth year. Forcing sources with a PAL to meet unjustified emissions 
Page 69 of 114

reduction requirements serves no purpose other than ensuring that the PAL option will be of little use in the 

state. 

The proposed 25 percent reduction requirement in the PAL section is one way that the Department’s proposed 

NSR program conflicts with other emission reduction programs and goals in the state, such as RGGI. Without 

the 25 percent reduction requirement, PALs would be a very attractive option for sources seeking to pursue 

efficiency upgrades to meet the goals of RGGI. A PAL would allow a source the flexibility and certainty to 

undertake efficiency improvements without encountering the delays associated with performing emissions 

calculations and pursuing permitting if necessary. However, the 25 percent reduction requirement, which 

effectively eliminates the PAL as a viable option for sources in the state, is contrary to the goals of RGGI. 

Eliminating the 25 percent reduction requirement would harmonize the goals of RGGI and the Department’s 

NSR program by making a PAL a more appealing option for sources. 

Consistent with the federal PAL rules, the Department proposed PAL provisions allow the PAL to be reduced 

upon permit renewal if actual emissions are less than 80 percent of the initial PAL level. This requirement 

should be sufficient to ensure that sources do not obtain an unfair advantage by agreeing to a PAL. 

Response: The commenter states that the 25 percent reduction requirement in the sixth year of a PAL 

effectively eliminates the PAL as a viable option for sources in the state, and is contrary to the goals of RGGI. 

Commenter further states that eliminating the 25 percent reduction requirement would harmonize the goals of 

RGGI and the Department's NSR program by making a PAL a more appealing option for sources. The 

commenter, however, does not elaborate as to how the proposed 25 percent reduction requirement conflicts with 

the goals of RGGI, therefore, the Department is not able to address this comment. The Department is not aware 
Page 70 of 114

of a conflict between the proposed 25 percent reduction and RGGI. Also, please see response to comment 

number 26 above. 

National Grid (Commenter Number 6) 

46) Comment: The Proposed Definition of Routine Maintenance, Repair And Replacement Is Unworkable 

The proposed NSR rules exclude “routine maintenance, repair and replacement” (RMRR) from the definition of 

a modification in Section 231-4.1(b)(28)(i) for major NSR purposes. The Company supports this important 

exclusion from the definition to allow the Company to continue to maintain its plants. However, the 

Department’s proposed definition of “routine maintenance, repair and replacement” in Section 200.1(cl) is 

unworkable as worded and would force the Company, other EGUs and industrial sources to undertake extensive 

emissions analyses for most of the routine maintenance projects it performs at its plants every year. This action 

places NY States electric generators and industrial community at an economic disadvantage relative to sources 

complying with the federal rule. 

The first part of the definition provides that RMRR is determined on a case-by-case basis by examining the 

nature and extent, purpose, frequency and cost of a project. These factors, which have been used by EPA and 

various district courts, offer source appropriate flexibility to determine whether their projects must be 

considered modifications or are excluded from the major NSR requirements as RMRR. However, the latter part 

of the proposed definition poses considerable subjectivity. 

According to proposed Section 200.1(cl): 
Page 71 of 114

Generally, routine maintenance, repair or replacement refer to activities that are undertaken on a prescribed 

and/or regular schedule, limited in scope and expense, and typically paid for out of the operation and 

maintenance budget of the facility. Routine maintenance, repair, and replacement generally do not refer to 

activities that are infrequent, large in scope, extend the life of the facility, or result in the regaining of lost 

capacity or availability. 

These two sentences appear to more severely limit the type of projects that can be considered as RMRR than the 

first part of the definition. Nevertheless, beginning the sentence with “Generally” recognizes, as exemplified 

below, that significant, infrequent and capital financed maintenance is routinely common in the industry. 

An EGU is a complicated assembly of multiple systems and components and proper operation of the unit 

depends on all of the systems and components working together in an integrated manner. To ensure proper 

operation, new and older facilities perform hundreds of maintenance projects per year, including replacements 

of components that degrade as a result of design defects, manufacturing defects, misapplication of materials, 

emission control burdens and normal wear and tear due to the complexity of an EGU, the overall harsh 

operating conditions in the boiler, and the vastly different operating conditions and failure modes for the 

individual components, it is not possible to predict or plan to undertake specific replacement projects on a 

prescribed or regular schedule even though such replacements are routinely anticipated during the EGU’s 

lifetime. While we work diligently at preventive maintenance we do not want to make routine replacements 

prematurely, as doing so would raise the costs of operating, which would then be passed on to Long Island 

Power Authority consumers. We generally strive to conduct necessary routine maintenance before reliability or 

availability decline, but simply because unanticipated failures occur we do not believe that component 

replacement as such time is any less routine. 
Page 72 of 114

Further, although a maintenance activity may be fairly minor by itself, the project may appear more extensive or 

costly simply due to the component’s location within the emissions unit. It is not possible to replace a failed or 

impaired turbine component without undertaking the extensive task of opening up the turbine. Many boiler 

maintenance activities cannot be performed without removing sections of the boiler or erecting scaffolding to 

reach the area where the maintenance will be performed. Again, such common practices are routine. 

Finally, many component replacements are capitalized for accounting purposes. The Department appears to be 

including in the proposed definition an unnecessary distinction between projects that paid for out of the 

operations and maintenance budget versus projects that are paid for out of the capital budget. Companies make 

such distinctions on project funding primarily for accounting and tax purposes. Such accounting distinctions 

should not be used for the unrelated purpose of determining whether a project is routine. 

While the word “generally” could provide the flexibility appropriate to accommodate the maintenance work 

routinely done at individual plants and within the industry, we believe a definition along the following lines 

would be less subjective: 

(cl) Routine maintenance, repair, or replacement. Whether work done at an emissions source constitutes routine 

maintenance, repair, or replacement is determined on a case-by-case basis by examining the nature and extent, 

purpose, frequency, and cost. 

We are also concerned that the proposed changes in the definition could have the unintended consequence of 

delaying a facilities ability to responsibly respond to a forced outage of a critical component of its electric 

generation infrastructure. The resulting emergency (loss of electric service) will have an adverse impact on 
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system reliability and possibly community safety. It is clearly not in the public’s interest to delay addressing 

such an emergency in order to conduct unnecessary emissions analysis. 

Response: Please see response to comment number 9 above. 

47) Comment: The Requirements In Section 231-11.2 For Title V Permitting Of Insignificant Modifications 

Are Unnecessary And Burdensome 

In proposed Sections 231-6.1 and 231-8.1(a), a project with a project emission potential that does not equal or 

exceed the applicable significant project threshold in the appropriate table of Subpart 231-13 must comply with 

the requirements of Section 231-11.2. Proposed Section 231-11.2 addresses the requirements for insignificant 

modifications where there is a reasonable possibility that the modification will result in an emissions increase. 

Under Section 231-11.2(c), if an existing source seeking to undertake a project has a project emission potential 

that equal or exceeds 50 percent of the applicable significant project threshold when considered alone or when 

added to any unrelated projected emission increases expected at the emissions unit (those emissions excluded in 

accordance with proposed Section 231-4.1(b)(40)(i)(c), the source must modify its Title V permit under the 

minor permit provisions of Subpart 201-6 and, under proposed Section 231-11.2(c)(1)-(3), must retain records 

of certain information, monitor emissions and submit emission reports to the Department for five years after 

completion of the insignificant modification. 

We believe the requirement for a minor permit revision is unnecessary, goes well beyond what the federal NSR 

rules require and serves no purpose other than to create an administrative burden and potentially delay projects 

needed to ensure system reliability (The Company understands that the requirements of Section 231-11.2 can be 

avoided if a source calculates projected actual emissions using the emission unit’s potential to emit, but the 

Company does not see this as a viable option. In virtually all circumstances, using the potential to emit to 
Page 74 of 114

calculate projected actual emissions will result in a significant increase in emissions, which would force a 

source to meet even more onerous permitting requirements than the minor permit revision procedures in 

Subpart 201-6.) Under the federal NSR rules, pursuant to 40 CFR 52.21(r)(6), sources equaling or exceeding 

50 percent of a significant emission threshold must meet requirements that mirror the recordkeeping, 

monitoring and reporting requirements of proposed Section 213-11.2(c)(1)-(3). Compliance with these 

requirements is automatic and there is no need under the federal NSR rules to seek a minor permit revision to 

incorporate such requirements into the source’s Title V permit. 

We are unclear why the Department believes such a provision is necessary under the State’s NSR program. 

Pursuant to 40 CFR 52.21(r)(6), prior to beginning actual construction of a physical or operational change that 

meets or exceeds the 50 percent reasonable possibility threshold, the source must document and maintain 

certain information regarding the project, including its emissions calculations. Electric utility steam generating 

units must send this documentation to EPA or the state permitting authority. This requirement is sufficient for 

insignificant modifications that do not trigger major NSR permitting requirements. The Department should not 

mandate the additional step of requiring a minor permit revision, which creates unnecessary administrative steps 

and could potentially delay a project if the department holds up a completeness determination under Section 

201-6.7(c). (Under 201-6.7(c)(5), a minor modification cannot be made until the DEC deems the application 

complete. If the DEC has not acted within 15 days after receipt of the application it will be deemed complete 

by default and the minor modification may be made 25 days after the permit application was received by the 

DEC. However, the permit might be held up even longer if the Department finds the initial application was 

incomplete. Further, although the source may go ahead with its project once the permit application is deemed 

complete, no permit shield would apply until the permit revision is issued by the Department, which puts the 

source at risk.) 
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Requiring a Title V minor permit revision is particularly problematic given the subjective nature of the 

proposed definition of RMRR. As discussed above, this subjective definition will inappropriately classify most 

activities at EGUs non-routine and, hence, activities for which the source must perform emissions analyses to 

determine whether projected actual emissions will exceed baseline levels by the significant project threshold. 

Unless a source expects no changes over baseline levels, e.g., does not project increases in demand or changes 

in the fuel used at the emissions unit, it is very likely that, for most projects at EGUs, projected actual 

emissions, including those emissions that can be excluded under Section 231-4.1(b)(40)(i)(c), will exceed 

baseline emissions by more than 50 percent of the significant project threshold. As a result, a single source 

could be forced to submit several minor permit revision applications every year to address all the maintenance 

activities performed at the source, which would leave the source’s Title V permit in a constant state of flux and 

impose an unnecessarily administrative burden on both the EGU’s and regulatory agencies. 

The proposed Title V minor permit revision requirements are especially onerous for sources in severe ozone 

nonattainment areas where the significant project threshold is only 10 percent of the significant net emission 

increase threshold. Given that, virtually any post-project emissions change, even if wholly unrelated to the 

project, will force the source into the Title V minor permitting revision process. 

Given the number of sources in the State, the proposed Title V permitting requirement likely would bog down 

the Departments permit revision process and put a strain on its resources. The Regulatory Impact Analysis 

contains no mention of the impact to sources or the Department expected as a result of the requirement to apply 

for minor Title V permit revisions for insignificant modifications. This is crucial to understanding the resources 

required both by the regulatory community and the Department to implement this provision. 

We believe that the recordkeeping, monitoring and reporting requirements of proposed Section 213-

11.2(c)(1)(3) are sufficient for sources to demonstrate that their insignificant modifications are not major NSR 
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modifications. Accordingly, the Department should delete the Title V permitting requirement. The requirement 

is unnecessary, will complicate the process and is likely to strain already limited resources in the State. 

Response: Please see response to comment number 39 above. 

48) Comment: The Provisions To Be Incorporated Into Title V permits Must Be Clearly Defined 

If the Department insists on including the final NSR rules the requirement that insignificant modifications 

meeting or exceeding 50 percent of the significant project threshold must obtain a minor Title V permit 

revision, the provisions to be incorporated into the Title V permit must be clearly identified. It is not at all clear 

from the proposed rules what provisions would need to be included in the minor permit revision application. 

Presumably, the recordkeeping, monitoring and reporting provisions of Section 231-11.2(c)(1)-(3) would be 

incorporated into the Title V permit, as indicated in the Revised Regulatory Impact Statement, but Section 231-

11.2(c) is silent as to whether additional permit requirements would need to be incorporated. 

We urge the Department to address this issue and, further, to limit the provisions that must be incorporated into 

the sources Title V permit to those requirements for recordkeeping, monitoring and reporting that are identified 

in Section 231-11.2(c)(1)-(3), Any additional requirements would be unnecessary to demonstrate that the 

source is in compliance. Clearly defining the provisions that must be incorporated into the Title V permit will 

avoid any confusion, make it more likely that a permit application can be deemed complete within 15 days of 

submittal and allow less uncertainty that could lead to permit challenges. 

Response: Please see response to comment number 40 above. 
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49) Comment: The Permitting Requirements for Netting Are Unnecessarily Stringent, Overly Complicated And 

Unclear 

Pursuant to proposed Section 231-6.1(b) and 231-8(b), if a proposed modification at an existing source has 

project emission potential that equals or exceeds the applicable significant project threshold in the appropriate 

table of Subpart 231-13 but does not result in a major modification, the source must comply with the provisions 

of proposed Sections 231-6.2 or 231-8.2, as applicable. Proposed Sections 231-6.2 and 231.82 establish the 

requirements for netting. Under proposed Sections 231-6.2(b) and 231-8.2(b), a source must obtain a permit 

that establishes an emission limit equal to the projected actual emissions or potential to emit of the proposed 

modification for each air pollutant that exceeds the applicable significant project threshold. Certain of the 

permit application requirements for a netting permit are detailed in proposed Section 231-11.1(a). Proposed 

Section 231-11.1(a)(3) requires a source to include in its permit application the calculations and supporting 

documentation for baseline emissions, projected actual emissions, the project emission potential and the net 

emission increase determination for the modified facility. If the calculation of projected actual emissions 

excludes emissions that could have been accommodated during the baseline period and are unrelated to the 

modification, the source must include detailed documentation of the excluded emissions “in order for the 

exclusion of those emissions to be allowed in determining future compliance.” Proposed Section 231-

11.1(a)(3). 

The Department’s proposal that sources must obtain a permit limit equal to projected actual emissions from a 

proposed project for which netting is used is overly restrictive. Such a requirement goes well beyond what is 

required in the federal NSR regulations, where a source would only be required to obtain a permit to make 

contemporaneous emissions decreases enforceable. The proposed provision appears to unnecessarily 

complicate the use of netting and it is not at all clear how the permit limit is supposed to work in practice. 

Proposed Section 231-11.1(a)(3) appears to state that emissions which were excluded from the calculation of 

projected actual emissions, as allowed under proposed Section 231-4.1(b)(40)(i)(c), also would be excluded 
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when the Department is determining compliance with the permit limit. However, it is not clearly established in 

the rules. 

Further, the proposed rules fail to address what happens if the source exceeds both the permit limit and its 

projection of unrelated emissions increases due to unexpected factors that are unrelated to the project, such as 

unexpected changes in the type of fuel being combusted in the unit, an unexpected shutdown of another unit, 

severe weather or unanticipated demand growth. Would such increases over the permit limit also be allowed 

even though they were not projected by the source? For example, if four years after a modification has been 

made for which netting was used, an oil-and gas-fired unit, which primarily used natural gas during the baseline 

period and projected similar fuel usage during the post-project period, switched to burning oil as its primary fuel 

due to an unforeseen increase in natural gas prices and such oil usage resulted in higher levels of pollutants than 

the emission projected or included in the facility’s permit, how will that situation be handled? This is a 

particular problem given the apparent permanent nature of the permit limit and one which would adversely 

affect both reliability and economic competitiveness. 

If a source is restricted from having unrelated emission increases beyond what was projected, the proposal will 

artificially constrain operations and, potentially, fuel usage for purposes unrelated to a modification simply 

because a source was unable to accurately forecast future actual emissions. The Department cannot expect that 

a source would be able to accurately predict future emissions for the entire life of an emissions unit, yet that is 

what appears to be required. Further, there is no clear indication as to how emissions from future insignificant 

modifications would be handled. Would such increases be allowed to exceed the permit limit or would the 

source be constrained from making future insignificant modifications once it has accepted a permit limit for 

netting purposes? 
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The Company believes these unanswered questions make the permitting requirement for netting complicated 

and leave compliance uncertain. We believe that requiring sources using netting to take a permit limit equal to 

the project emission potential of a proposed modification are unnecessary and we respectfully, urge the 

Department to delete this requirement from the proposed NSR rules. 

Response: Please see response to comment number 41. 

50) Comment: The Netting Requirements Are Problematic In Severe Ozone Nonattainment Areas 

The problems with requiring sources to obtain permit limits for netting purposes are exacerbated in severe 

ozone nonattainment areas. According to proposed Section 231.6.1(b), if a source in a severe ozone 

nonattainment area has a proposed modification that equals or exceeds the significant project threshold for NOx

or VOCs of 2.5 tons per year, as identified in Table 3 in proposed Section 231-13.3, the source must meet the 

requirements of proposed Section 231.6.2 regarding netting. Even if the source has no contemporaneous 

emissions increases or decreases that could be used for netting, it appears that the source would be required to 

obtain a netting permit and take a limit equal to its projected emissions of NOx or VOCs. For example, if a 

source proposes a modification that would result in an actual emissions increase of 3 tons per year of NOx, 

pursuant to proposed Section 231-6.1, the source must go through a netting analysis. If the source does not 

have any contemporaneous emissions increases or decreases of NOx, the result of the netting analysis would 

remain at three tons. Pursuant to proposed Section 231-6.2(b), it appears that the source would need to obtain a 

permit limit for the three ton modification. This is a particularly burdensome requirement for sources in severe 

ozone nonattainment areas given that the project emission threshold is only one-tenth of the significant net 

emission increase threshold. For all other pollutants in nonattainment areas, the significant project threshold is 

equal to the significant net emission increase threshold, so that a source in any area other than a severe ozone 
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nonattainment area with emissions that are only 10 percent of the significant net emission increase threshold 

would not have need to undertake the netting analysis in the first place. 

The Department has offered no rationale as to why the significant project threshold is not equal to the 

significant net emission increase threshold for sources in severe ozone nonattainment areas. If the Department 

insists on retaining the permit requirements for netting, the Company urges the Department to raise the 

significant project threshold to the level of the significant net emission increase threshold. Otherwise, sources 

in severe ozone nonattainment areas would be forced to take permit limits for very insignificant increases in 

emissions, which raise all the attendant issues that we noted above. 

Response: Please see responses to comment numbers 11 and 20 above. 

Dominion (Commenter Number 9) 

51) Comment: The DEC proposal for a definition of Aroutine maintenance, repair and replacement@ (RMRR) 

may cause substantial regulatory uncertainty and should be withdrawn. The DEC proposed rule contains the 

following definition of RMRR: 

AWhether work done at an emissions source constitutes routine maintenance, repair or replacement is 

determined on a case-by-case basis by examining the nature and extent, purpose, frequency, and cost. 

Generally, routine maintenance, repair, or replacement refer to activities that are undertaken on a prescribed 

and/or regular schedule, limited in scope and expense, and typically paid for out of the operation and 

maintenance budget of the facility. Routine maintenance, repair and replacement generally do not refer to 

activities that are infrequent, large in scope, extend the life of the facility, or result in the regaining of lost 
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capacity or availability.@ (New York State Register. “Revised Rulemakings – Department of Environmental 

Conservation – NYRti6/pt200. NYRti6/pt201, NYRti6/pt231 – Source Review for New and Modified 

Facilities”, proposed section 200.1(cl), September 24, 2008.) 

The use of ambiguous terms like Agenerally@ and Atypically@ in the proposed RMRR definition can lead to any 

number of interpretations and provides no clear criteria for compliance. 

We are also concerned that the language contained in the RMRR proposal will be seen as establishing a 

presumptive exclusion from this exemption for any maintenance, repair and/or replacement activities not 

financed from an O&M budget. The financing of replacement activities at a facility will most often be 

determined based on accounting principles, rather than environmental regulatory definitions. For example, 

repair and replacement activities may be treated as capital expenditures for accounting and/or tax reasons (i.e., 

for depreciation rather than expensing of the activities). The financial classification of such activities should 

not be a primary basis for determining their Aroutine maintenance@ status under this rule. 

Further, not all RMRR activities occur on a regular schedule. While Aroutine maintenance@ activities may be 

undertaken on a regular schedule and paid for out of O&M budgets, Aroutine maintenance@ can also occur on an 

Aas needed@ non-prescribed basis. 

In addition, Dominion is concerned with the proposed language stating that routine maintenance generally 

excludes activities that “...extend the life of a facility, or result in the regaining of lost capacity...@ Any project 

may be construed as extending the life of a facility or resulting in the gain of lost capacity, and could be used to 

eliminate the exemption. This proposed language may exclude a wide range of routine maintenance activities 

essential to the efficient operation of industrial and utility equipment, and would place facilities in a status of 
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perpetual NSR review. Dominion proposes to amend the final sentence of the definition to state, ARoutine 

maintenance, repair, and replacement generally do not refer to activities that are infrequent and large in scope.@

We are also concerned that this rule would significantly impair the ability of a public utility to respond to a 

forced outage, if the required repair does not fall under the proposed restrictive definition of RMRR. We note 

that existing Part 201-6.6(c) provides an emergency defense in Title V permits, which provides an affirmative 

defense for non-compliance with an applicable requirement due to an emergency, and that Part 201-2.1(b)(12) 

provides a somewhat limited definition of Aemergency.@ In the event of an emergency at an energy generation 

or transmission facility, the loss of this public utility service could have significant, adverse impact on the 

community, and it would be in the public interest to assure that response to such emergencies is not impaired or 

delayed by NSR obligations that are not truly necessary. 

Dominion recommends that the DEC withdraw its proposed definition of @routine maintenance@ in Part 200, 

and retain the existing definition of Amodification@ at Part 200.1(aq). 

The DEC proposal for a definition of RMRR states that RMRR activities will be Adetermined on a case-by-case 

basis@. The ownership of this determination is unclear in the proposed rule and it should be clarified that this 

responsibility lies with the applicants. 

Dominion generally agrees that a case-by-case review of a facility=s maintenance, repair and replacement 

activities should be conducted prior to commencing any such activity. However, this review should be 

conducted by the facility owner rather than DEC. Facility owners would be much better prepared to assess the 

Aroutineness@ of any activity involving plant maintenance, repair of plant equipment and/or replacement of plant 

components, in that facility owners are better equipped to Aweed out@ activities that are obviously routine. The 
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proposed rule as written is vague concerning who is responsible for the review and could be interpreted to set 

up an unworkable process and an unreasonable burden on the staff of the DEC. This could lead to unnecessary 

project delays that could jeopardize the efficient operation of the plant or even risk serious safety concerns. 

Response: The commenter notes that any RMRR review should be conducted by the facility owner rather 

than DEC since facility owners would be much better prepared to assess the routineness of any activity 

involving RMRR. The Department agrees that the facility owner should be responsible for making a RMRR 

determination for any proposed project. If the facility owner has any doubt or questions regarding whether a 

proposed project is truly RMRR, then the facility owner should submit a request to the Department for a RMRR 

determination. Also, please see response to comment number 9 above. 

52) Comment: The DEC proposal includes a new definition of Aactual emissions@ for baseline analysis that is 

unclear. The rules should make it clear that an Aaverage rate@ is to be used to determine Aactual emissions@ and 

that the hourly rate is to be averaged over a 24 month period. 

The DEC proposal includes a definition for Aactual emissions@ that applies Afor the purpose of determining the 

baseline concentration, and the calculation of air quality impacts according to Section 231-12.2", as follows: 

AActual emissions as of a particular date shall equal the rate at which the emission source actually emitted the 

NSR contaminant during the consecutive 24 month period which precedes the particular date and which is 

representative of normal facility operations.@

2

 (New York State Register, ‘Revised Rulemakings – Department 

of Environmental Conservation – NYRti6/pt200, NYRti6/pt201, NYRti6/pt231 – Source Review for New and 

Modified Facilities”, proposed section 231-4.1(b)(1)(ii), September 24, 2008.) 
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Earlier drafts defined this term as referring to the Aaverage rate@ of emissions during the 24 month period. Now 

that the Aaverage@ criteria have been deleted, it is unclear how this Arate@ is to be determined. In order to clear 

up this uncertainty, Dominion suggests that the proposed definition should be amended to read, “Actual 

emissions as of a particular date shall equal the average hourly rate...@ to more clearly define the units in which 

the rate is expressed. 

The current definition of Aactual emissions@ found in Part 201-2.1(b)(2), and which applies to all other uses of 

this term in the proposed Part 231, refers to emissions from normal operating conditions, averaged over a two 

year period (or an other more representative period). We believe that this newly proposed definition of Aactual 

emissions@ likewise should be a 24 month average. 

Response: Please see response to comment number 13 above. 

53) Comment: The DEC NSR reform proposal restricts the Apast actual@ baseline determination to five years for 

all subject sources. The DEC rules should remain consistent with the federal rule and adopt the 10-year lookback for determining the Apast actual@ emissions baseline. 

The change from the current 2-year look-back to a 10-year look-back (five years for electric utility steam 

generating units) is an extremely important part of the federal NSR reforms. This most recent DEC proposed 

rule limits this flexibility to only 5 years in all cases. 

Although EPA=s Regulatory Impact Analysis concludes that the magnitude of the environment changes 

expected to be derived from the change from a 2-year look-back to a 10-year look-back are Alikely to be very 

small@

3

 (U.S. Environmental Protection Agency, “New Source Review (NSR) Improvements, Supplemental 
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Analysis of the Environmental Impact of the 2002 Final NSR Improvement Rules”, pg. F-7, November 21, 

2002.), the DEC has concluded in the Proposed Regulation Agency Background Document, without supporting 

documentation, that the New York rule should be more restrictive. DEC=s proposal for adoption of the emission 

baseline provision of EPA=s NSR Reform rules significantly restricts the intended flexibility of the reform 

changes by slashing the time period for the look-back by half. 

Dominion urges the DEC to adopt the EPA baseline period provisions. Alternatively, the DEC could adopt the 

10-year look back period while reserving the ability to determine whether a proposed baseline period is most 

representative of normal operations and adopt the ability to apply different baseline periods to different 

categories of pollutants, if the DEC finds that emission levels of different pollutants are impacted by different 

economic factors. 

Response: Please see response to comment number 25 above. 

54) Comment: The DEC proposal contains restrictions on the baseline determinations. Dominion recommends 

the DEC NSR proposal for Abaseline actual emissions@ conform to the federal approach. 

The proposal Part 231-4(b)(4)(d) states that, for a regulated NSR contaminant, when a project involves multiple 

emission sources, the same baseline period must be used to determine the baseline actual emissions of each of 

the emission sources being modified, consistent with the federal rule. In conflict with the federal rule, the DEC 

proposal goes on to state that Aa different baseline period cannot be used for each regulated NSR contaminant.@

The federal rule provides that: 
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“For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-

month period must be used to determine the baseline actual emissions for the emissions units being changed. A 

different consecutive 24-month period can be used for each regulated NSR pollutant.”4 (Code of Federal 

Regulations, Title 40, Part 52.21, “Prevention of significant deterioration of air quality”, Section 

52.21(b)(48)(ii)(d) definition of “Baseline actual emissions”.) 

The federal rule specifically allows use of different baseline periods for different NSR pollutants related to a 

source project. Its only restriction is to require a single baseline period for any given NSR pollutant when a 

project involves multiple emission units. 

Dominion recommends that the DEC adopt the federal approach. NSR applies to criteria pollutants on a 

pollutant by pollutant basis. The applicability analysis for a given project can properly reflect different baseline 

emissions periods for each affected pollutant. Emissions of different pollutants from an emission source can be 

affected by different factors (e.g., production levels versus changes in materials or fuel content). These 

different factors will justify the use of different baseline periods to define “representative” emissions. We note 

that in proposed Part 231-9.4 regarding plant-wide applicability levels, different 24 month periods can be used 

for each different PAL contaminant at a facility, which correctly recognizes that more than one baseline period 

can be applied to an emission source that emits more than one category of PAL contaminant. 

Response: Please see response to comment number 14 above. 

55) Comment: The DEC proposed NSR reform rule expands the reporting and recordkeeping requirements for 

projects at non-electric utility steam generating units for NSR applicability determinations. Dominion urges 

DEC to conform to the federal approach. 
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The December 21, 2007 federal NSR “Reasonable Possibility” reporting and recordkeeping rules require source 

owners to calculate past actual emissions and compare them to future projected actual emissions to determine 

NSR applicability. The federal rules require source owners of electric utility steam generating units to submit 

this documentation of the past actual-to-future-projected emissions calculation to the regulatory authority before 

beginning actual construction of projects if the future projected emissions caused by the project exceed 50% of 

the significant source thresholds. These facilities must also monitor the post-project emissions of any regulated 

NSR pollutant emitted by any emissions unit and submit a report to the permit reviewing authority within 60 

days after the end of each year. Under the federal rules, non-electric utility steam generating units do not have 

to submit this post-project emissions calculation unless the post-project emissions exceed the pre-project 

estimate. The DEC proposal would expand this post-project reporting requirement to all major sources, not just 

electric utility steam generating units, thus eliminating an important flexibility feature of the reform rule. The 

DEC proposal also accelerates the deadline for submitting this post-project report from the 60 days after the end 

of each year (under the federal program) to 30 days. 

Furthermore, the DEC proposal at Part 231-11.4(a) would also require new recordkeeping requirements for 

projects that result in emissions increases less than 50 percent of the applicable significant source thresholds, by 

requiring facilities to maintain detailed information about each project and make it available to the DEC upon 

request. If the Department were to keep its proposed paragraph (a), it would literally subject emission increases 

of as little as one pound to new recordkeeping requirements. 

The excessive complexity and burdensome recordkeeping and reporting requirements have been a universal 

criticism of the existing NSR rules. This proposed deviation from the federal rule reverses important relief 

provided by the federal reforms. 
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Response: Please see responses to comment numbers 15 and 39 above. 

Wyeth Pharmaceuticals (Commenter Number 10) 

56) Comment: It is our understanding that the federal rule would allow for a significant source project threshold 

of 25 tpy in the New York moderate non-attainment area. Such change would provide statewide consistency in 

the implementation of these rules and allow the Agency and the regulated community to focus on what are truly 

significant sources and projects. 

Response: Please see response to comment number 20 above. 

57) Comment: 231-3.2 Transition Plan: The transition plan does not include trivial or exempt sources. All 

trivial sources should be excluded from the rule, since they are transient, and often unquantifiable. Exempt 

sources that have been planned prior to the effective date of these revisions should have the option to follow 

either rule Part 231-2 or these new revisions. 

Response: The Department disagrees with commenter. Federal regulations require that all emissions, 

including emissions from any exempt or trivial activity be included in any NSR applicability determination. 

This has been a requirement since the promulgation of the original NSR regulations. 

58) Comment: 231-3.5 General Prohibitions: This paragraph should be deleted. It imposes permitting and 

compliance obligations on facilities for minor actions. (See additional comments under “netting”). 

Response: The Department does not agree that this section should be deleted. Also, please see response to 

comment number 11 above. 
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59) Comment: 231-3.10(a) Circumvention: It is our understanding that part of the basis for New York having a 

lower significant source project threshold in the severe area was to avoid a facility from phasing several small, 

related projects. With this circumvention paragraph, that argument goes away, and we encourage the agency to 

take advantage of the opportunity to raise the significant source project threshold to match the significant net 

emission increase threshold. 

Response: Please see response to comment number 20 above. 

60) Comment: 231-4.1(b)(13) Creditable emission increase: We support the change in this definition; to use 

actual or projected actual emission increase. This is particularly important for batch or intermittent operations. 

Response: Comment noted. 

61) Comment: 231-4.1(b)(28) Modification: The term “facility” should be changed to “source”. This is a new 

“source” review program, and modifications are determined at the source level. Introducing “facility” adds 

confusion. 

Response: EPA uses the term ‘source’ to refer to a facility. The Department in its regulations has always 

used the term ‘facility’, as defined in Part 200, to refer to a facility. No change will be made. 

62) Comment: 231-6.2(b) Netting: When no emission reductions are used in a netting analysis, a permit should 

not be required. As written, in the severe non-attainment area, a new source project with a three ton per year 

potential on a site with unrelated emission increases (e.g. new emergency generators installed) that has a five 

year aggregate increase in emissions of 15 tons per year would be subject to permitting. These increases are 
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insignificant and should not be subject to permitting requirements. At most, a notification to the agency with a 

copy of the netting analysis should suffice. 

Response: Please see response to comment number 11 above. 

63) Comment: 231-13.3 – Table 3 Significant Project Threshold: The significant project threshold in the severe 

area should be changed to 25 tons per year. This would make netting consistent statewide, in that a netting 

analysis would only be used to net “out”, and not required to net “in”. When the significant project threshold is 

lower than the significant net emission increase level minor increases in the contemporaneous five year period 

that are unrelated to the project are tracked and may cause an otherwise insignificant project to be subject to 

these rules. The additional proposed “general prohibitions” and “permit requirements” for any netting out 

compound the inequities and divert resources from “major new source” review – the intent of this rule. 

Response: Please see response to comment number 20 above. 

Eastman Kodak Company (Commenter Number 8) 

64) Comment: Part 200.1(cl) - Definition of “routine maintenance, repair or replacement”: NYSDEC’s Part 

231 re-proposal includes a definition of “routine maintenance, repair, or replacement” (RMRR) that is 

unchanged from the original proposal. Given its lack of clear boundaries and language that may be 

misconstrued, Kodak expressed concerns regarding this definition in comments on the September 2007 

proposal. NYSDEC’s Response to Comment #27 indicates that the RMRR definition is intended to provide 

guidance used in assessing whether or not an activity may be considered RMRR. Further, NYSDEC offered 

these clarifications in the “Assessment of Public Comments” (APC): “The definition codifies what has been 

articulated by the Courts and current Department practice, wherein routine maintenance activities are 
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considered on a case-by-case basis considering the nature and extent, purpose, frequency and cost.” (Pages 38-

39) 

“The Department’s proposed definition of RMRR merely codifies the existing EPA four-factor test as has been 

interpreted by a majority of the courts. It is neither more stringent nor less stringent than EPA’s RMRR 

methodology. . . . The use of the terms “generally” and “typically” in the proposed definition make clear that no 

one factor is determinative in the analysis. A project that is funded from a capital budget could still qualify as 

RMRR if other factors suggest routineness (e.g., the nature, purpose, or frequency of the activity).” 

Absent the clarifications articulated in the APC document, Kodak remains concerned, that the regulatory 

definition itself may be misinterpreted to exclude from the RMRR exemption, certain activities that truly are 

eligible for that exemption. As such, Kodak asks NYSDEC to maintain the Response to Comment #27 on the 

NYSDEC Bureau of Stationary Sources’ website so that for purposes of evaluating future projects, the regulated 

community and Regional NYSDEC staff have ready access to the Department’s interpretation of its RMRR 

definition. 

Response: Please see response to comment number 9 above. Comment noted. 

65) Comment: 231-4.1(b)(29) - Definition of “net emission increase”: Kodak continues to have the following 

concerns with the definition of “net emissions increase”: ERCs must be obtained for all creditable decreases 

used for netting purposes even if those decreases have been otherwise reviewed by NYSDEC and made 

enforceable through permitting. Kodak believes that this requirement adds unnecessary administrative burdens 

that are in excess of the federal major NSR program. (See subsequent comments on the ERC provisions in 231-

10.) As explained in the Response to Comment 38(c), the Department is extending the 6NYCRR Subpart 231-2 
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process adopted in 1994 to the state’s PSD program for consistency and to ensure that the statutory definition of 

the terms “emission reduction” and emission reduction credit” is satisfied. 

Kodak understands NYSDEC’s desire to rely and build on a process that, at least in the Department’s view, has 

been used successfully. However, in its regulatory justification, it is important for the Department to address 

that the scope of this proposal is much more expansive than Subpart 231-2, which only applies to major new 

sources and major modifications located in nonattainment areas with respect to a handful of nonattainment area 

pollutants. On the other hand, this proposal’s applicability includes new major sources and modifications in 

both nonattainment and attainment areas with respect to a dozen or more pollutants. Under 231-2, the required 

use of ERCs for netting may have been viewed as acceptable by industry because it would have been triggered 

relatively infrequently; whereas, considering the broader applicability of this proposal (i.e., to address major 

facilities and modifications previously covered by the Federal PSD program as well as those subject to 

nonattainment area NSR), these administrative procedures will be triggered much more frequently. 

Kodak believes that requiring the use of ERCs for netting could be made more palatable if: 1) under 231-

10.4(a), NYSDEC would waive the newspaper notice when ERCs are used for netting purposes; and 2) under 

231-10.3(b)(2), NYSDEC would allow applicants to provide the ERC information in a format acceptable to the 

Department which may include the ERC quantification form or an equivalent substitute. Kodak provides 

comments on these ERC provisions below and asks the Department to either revise the definition of net 

emission increase to remove the ERC requirement or make the requested changes to the ERC process. 

Response: The Department disagrees with the commenter’s assessment that it has not adequately justified 

the use of ERCs for netting (for both non-attainment and attainment analyses) in the supporting documents of 

this rulemaking package. Also, please see response to comment number 10 above. 
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66) Comment: Subparagraphs (ii) and (iii) of the definition of “net emission increase”, pertaining to the use of 

contemporaneous emission increases and ERCs, contain language that does not conform with the federal 

language. Kodak could not find a specific NYSDEC response to this issue in the APC document, but believes 

this may have resulted inadvertently from re-using the definition of “net emissions increase” from the current 

Subpart 231-2, which deals solely with nonattainment area major NSR. 

Per subparagraph 231-4.1(b)(29)(ii), every creditable increase is used which is contemporaneous and “for which 

an emission offset was not obtained”. Similarly under subparagraph (iii), any ERC is used which is 

contemporaneous and “which was not previously part of an emission offset or internal offset.” On the other 

hand, the federal language says that emissions increases and decreases are creditable: “if the reviewing 

authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this 

section.” (See, for example, 40 CFR 51.165(a)(1)(vi)(C).) Per EPA’s Draft New Source Review Workshop 

Manual (October 1990, p. A.39 and 40): 

“An emissions increase or decrease is creditable only if the relevant reviewing authority has not relied on it in 

issuing a PSD (This paragraph is in a section of the workbook entitled PSD Applicability, hence the reference to 

“PSD” permits and not the broader major NSR permit) permit for the source, and the permit is still in effect 

when the increase in actual emissions from the proposed modification occurs. A reviewing authority relies on 

an increase or decrease when, after taking the increase or decrease into account, it concludes that a proposed 

project would not cause or contribute to a violation of an increment or ambient standard. In other words, an 

emissions change at an emissions point which was considered in the issuance of a previous PSD permit for the 

source is not included in the source's "net emissions increase" calculation. This is done to avoid "double 

counting" of emissions changes.” 
Page 94 of 114

Although emission offsets are an essential component of nonattainment area NSR permits, they are not 

routinely part of the PSD program. Because the “net emissions increase” definition is used to implement both 

the Nonattainment and PSD major NSR programs, NYSDEC should revise the definition to properly reflect that 

emission increases and decreases relied on in issuing any major NSR permit do not need to be included in a net 

emissions increase determination. 

 

To address the concerns identified above and to make the definition of “net emissions increase” more 

consistent with the federal rule, 231-4.1(b)(29) should be modified as shown: 

“(33) Net emission increase. The aggregate increase in emissions of an attainment or nonattainment 

contaminant in tons per year at an existing major facility resulting from the sum of: 

(i) the project emission potential of the modification; and 

(ii) every creditable emission increase at the facility which is contemporaneous and which was not previously 

relied on in issuing a major NSR permit or for which an emission offset was not obtained; and 

(iii) any ERC or other creditable emission decrease at the facility, or portion thereof, selected by the applicant 

which is contemporaneous and which was not previously relied on in issuing a major NSR permit or used as 

part of an emission offset or an internal offset.” 

Response: The Department agrees that the definition of net emissions increase inadvertently omitted the 

reference to creditable emission decreases (ERCs) that may have been relied upon in the issuance of a permit. 

To address this issue subparagraph 231-4.1(b)(29)(iii) will be amended as follows: 

“ any ERC at the facility, or portion thereof, selected by the applicant which is contemporaneous and which was 

not previously used as part of an emission offset, an internal offset, or relied upon in the issuance of a permit 

under this Part.” 
Page 95 of 114

The Department disagrees that the definition of net emissions increase should exclude creditable emission 

increases that may have been relied upon in the issuance of a permit. The commenters suggested revision to 

subparagraph 231-4.1(b)(29)(ii) will not be made. 

67) Comment: 231-6.2(b)(1) and 231-8.2(b)(1) Emission limit requirements: These paragraphs require an 

owner or operator relying on netting to demonstrate that a project will not result in a significant net emission 

increase to: 

“ apply for and obtain a permit which establishes an emission limit that equals the projected actual emissions or 

potential to emit, as appropriate, of the modification of each regulated NSR contaminant(s) which exceed(s) the 

applicable significant project threshold.” 

These provisions depart from the federal major NSR program in the following two key ways: 

1) the Department requires such a limit even if the PTE of the project is relied on in lieu of projected actual 

emissions; and 

2) there are no explicit expiration dates for these emission limits. 

Under the federal major NSR program, the requirements of 52.21(r)(6), for example, are not triggered when the 

PTE is used as the basis of the emissions increase, even if such increase is significant. Moreover, the 

recordkeeping requirements of 52.21(r)(6) would only apply for five years if there has been no increase in 

capacity, or 10 years if there has been a capacity increase. 

In Response to Comment 53(b) NYSDEC provides this explanation: 
Page 96 of 114

“Commenter has stated that “A project that triggers netting would be one that has a “reasonable possibility” of 

exceeding the significance threshold.” This statement is not accurate. A project triggers netting if in fact the 

project emission potential is equal to or greater than the applicable significant project threshold before the 

facility undertakes additional emission reductions to avoid NSR applicability. Therefore, the Department 

believes different procedures should be implemented to ensure that these emissions reductions, which the 

facility is relying on to avoid NSR, are in fact realized. Such emission reductions are not a factor to consider if 

the project emission potential itself is less than the significant project threshold, which explains why permitting, 

monitoring and recordkeeping requirements are different for facilities triggering only the “reasonable 

possibility” provisions of Part 231. 

The process of requiring an enforceable emission limit for the projected actual emissions or potential to emit, 

as applicable for each NSR contaminant that triggers netting is reasonable and not inconsistent with either the 

Act or the State Implementation Plan. It is also consistent with current Department practice for projects that 

avoid applicability through netting under the Department’s existing Subpart 231-2 nonattainment regulation. 

The proposed Part 231 netting requirements ensure that sources which propose to use netting to avoid major 

NSR requirements are subject to stringent permit requirements to ensure that the projected actual emissions or 

potential to emit, as applicable, and the emission reductions relied upon are enforceable. Thus facilities which 

want to rely on emission reductions at one emission source to be reflected in the calculation of total emission 

increases at the facility will be subject to rigorous protocols and permitting, and subject to public notice and 

comment. The Department believes such a regulatory scheme is consistent with the intent and purpose of both 

the Clean Air Act and Environmental Conservation Law.” 

Kodak understands that for sources subject to netting there may be a need for permit requirements beyond those 

articulated under 52.21(r)(6), but for purposes of this discussion is focusing solely on the need to establish 
Page 97 of 114

emission limits under 231-6.2(b)(1) and 231-8.2(b)(1). Kodak would like to highlight a number of concerns 

with NYSDEC’s analysis presented above. 

First, under the federal major NSR program, projects that result in netting are subject to the reasonable 

possibility recordkeeping and reporting requirements of 52.21(r)(6). This is clear from 52.21(r)(6)(i)(c) which 

says “A description of the applicability test used to determine that the project is not a major modification. . . and 

any netting calculations, if applicable.” (Emphasis added.) The Department’s stated belief that different 

procedures should be used for projects triggering netting and, in particular the requirement to establish limits 

under 231-6.2(b)(1) and 231-8.2(b) is clearly in excess of what the Clean Air Act and the federal major NSR 

implementing rules would require. 

Second, NYSDEC’s position that these provisions “are not inconsistent with the Act or the State 

Implementation Plan” is misleading. EPA’s rules set forth the approach used to implement major NSR under 

the Act and state programs must conform to the minimum requirements established by EPA. One such element 

is represented by 52.21(r)(6), which as discussed above covers sources that perform net emission increase 

determinations. Although the Act does allow states to impose more stringent requirements, NYSDEC must 

conform to subdivision 19-0303(4) of the Environmental Conservation Law and properly justify requirements 

that exceed the federal program. 

As for consistency with NY’s SIP, Subpart 231-2 and NYSDEC’s practice of requiring such emission limits for 

netting was never approved into the SIP. Alternatively, 201-7 and its “Federally Enforceable Emission Cap” 

procedures were approved by EPA. 201-7 does not mandate establishing formal emission limits when PTEs are 

naturally below rule applicability thresholds. Rather, these capping provisions are entered into voluntarily if a 
Page 98 of 114

source would otherwise trigger an applicable requirement and the owner or operator requests an enforceable 

constraint to artificially maintain the PTE below applicability triggers. 

In conclusion with respect to this second point, since proposed 231-6.2(b)(1) and 231-8.2(b)(1) are not 

consistent with the Act (as set forth by EPA’s rule) or NY’s SIP, NYSDEC may not claim that they are in order 

to justify these provisions. 

Third, by establishing permit limits under 231-6.2(b)(1) and 231-8.2(b)(1) with no expiration of such limits, 

instead of restricting these conditions to a 5 or 10 year life as prescribed by 52.21(r)(6)), NYSDEC has 

transformed “projected actual emissions” into “potential to emit”. In essence, for all projects triggering a net 

emissions increase determination, NYSDEC has eliminated the baseline actual to projected actual emission test, 

a key major NSR Reform. These provisions cannot be justified, particularly since the Department can readily 

substitute enforceable permit conditions that reflect 231-11.2(c)(2) and (3) that expire in 5 or 10 years without 

exceeding EPA’s major NSR program requirements. 

In light of the issues and concerns identified above, NYSDEC must revise 231-6.2(b)(1) and 231-8.2(b)(1) as 

follows to be consistent with the Act: 

“ apply for and obtain a permit which establishes a permit condition reflecting the requirements of 231-

11.2(c)(2) and (3) an emission limit that equals the projected actual emissions or potential to emit, as 

appropriate, of the modification of each nonattainment contaminant(s) which exceed(s) the applicable 

significant project threshold.” 

Response: Please see responses to comment numbers 11 and 15 above. 
Page 99 of 114

68) Comment: 231-6.2(b)(2) &(3) and 231-8.2(b)(2) & (3) Netting and use of ERCs: In the September 2008 

proposal, NYSDEC has retained the requirements to establish and use ERCs when emission reductions are used 

for netting, rather than allow for an alternate process. In comments above on the definition of “net emission 

increase” in 231-4.1(b)(29) and below on 231-10.3(b)(2) and 231-10.4(a), Kodak has indicated that requiring 

ERCs for netting may be more palatable to the extent NYSDEC s eliminates some of the administrative 

burdens. Kodak asks NYSDEC to consider these comments and make the revisions shown below for 231-

6.2(b)(2) &(3) and 231-8.2(b)(2) & (3) or make the changes Kodak proposes elsewhere for 231-10.3(b)(2) and 

231-10.4(a) that are intended to make the process for establishing and using ERCs more reasonable.

“(2) apply for and obtain a permit which establishes the ERCs or emission reductions relied on for the net 

emission increase determination, if the ERCs or emission reductions are not already approved by the 

department. 

(3) if ERCs are used, submit a Use of Emission Reduction Credits Form (duly completed and signed by the 

applicant) for each source of ERC’s to be used for netting. Upon issuance of the permit for the proposed 

modification, the ERC Registry will be amended to reflect that the ERCs have been committed to the proposed 

modification.” 

Response: The Department respectfully disagrees with the commenter’s position and will not make this 

revision. Also, please see response to comment number 10 above. 

69) Comment: 231-10.1(f) - ERCs Used for Netting: This provision states: 

“(f) An ERC, or portion thereof, which is used to avoid a determination of a significant net emission increase 

cannot subsequently be used for emission offset purposes or in any subsequent netting determinations.” 
Page 100 of 114

Kodak submitted comments on this proposed provision in the 2007 proposal, indicating our belief that 

excluding emission reductions that had been only used in a significant net emissions increase determination was 

inconsistent with the approach set forth in the federal program. In Response to Comment # 38(d) NYSDEC 

disagreed with this position indicating that: 

“The EPA is responsible for overseeing the implementation of the NSR program. Its determination is that if 

ERCs were used to avoid NSR applicability through netting, the same ERCs could not be used again for netting 

or emission offsets.” 

In preparing comments on this proposal, Kodak contacted NYSDEC representatives responsible for this 

rulemaking who indicated that the Department did not consult with EPA Region 2 prior to responding to 

comments on the September 2007 proposal. Instead, the Department relied on an EPA Region 2 

communication that identified a deficiency with a provision in 231-2 which allows ERCs used in a significant 

net emissions increase to be used again in a subsequent netting determination. Kodak does not have ready 

access to that EPA communication. Therefore, we ask NYSDEC to consider the following information and 

consult with EPA Region 2 to resolve what Kodak sees as discrepancies with the EPA Region 2 position and 

the EPA “central office” interpretation, set forth in the December 29, 1989 EPA NSR Guidance memo, “Use of 

NSR Netting Credits 4.44”, and an article written by Gary McCutchen, a respected consultant and former EPA 

Chief of the New Source Review Section. (See Attachments.) These documents both support that creditable 

emission decreases used in a previous netting transaction are to be used in a subsequent netting transaction to 

the extent they remain “contemporaneous”. 

Mr. McCutchen writes on page 5.2 of his article: “This points out the fact that netting involves an algebraic 

summing of all contemporaneous emissions increases and decreases each time.” (Emphasis added.) Further, on 
Page 101 of 114

page 5.3, he states: “However, emissions increases or decreases that have been used by a source only to net out 

of review have not been “relied upon” and, therefore, can still be included in a netting calculation (if otherwise 

creditable) . . .” 

Mr. McCutchen’s explanation is consistent with formal EPA interpretations as demonstrated by this example 

from the December 29, 1989 NSR memo: 

“For example, a major source proposes to replace a boiler that emits 30 tons per year (tpy) of sulfur dioxide 

(SO2) with a new unit that has a potential to emit 50 tpy SO2. Also, the source shut down a 40 tpy SO2 unit 3 

years prior to the proposed modification. As such, the netting equation for the example is: 

+50 tpy (proposed increase) minus 30 tpy (current shutdown) minus 40 tpy (previous shutdown) = -20 tpy SO2

Note that these shutdowns, as all other decreases, must be federally enforceable in order to be creditable. 

Consequently, the source nets out of review, and no PSD permit is issued. 

We do not view the -20 tpy SO2 that results from the netting calculation as "leftover" credit. Rather, we view 

each of the contemporaneous and otherwise creditable emissions increases and decreases considered by the 

source in netting out of review as still being fully available, and must therefore be included in the next netting 

transaction at the source. To further illustrate, suppose the source in the example plans to add another new 

boiler in 3 years, which will increase SO2 emissions by 50 tpy without replacing any existing units. A new net 

emissions increase must be calculated. The 40 tpy reduction that was creditable in the previous netting 

transaction will have passed out of the contemporaneous window, so it is no longer available. The new net 

emissions increase is calculated as follows: 

+50 tpy (proposed increase) plus 50 tpy (previous increase) minus 30 tpy (previous shutdown) = 70 tpy SO2 
Page 102 of 114

In this case, the source does not net out of review and must get a PSD permit. 

If 231-10.1(f) remains as currently proposed, a 100 tpy emission reduction from a 2007 source shutdown used 

for netting a 2008 project with a 50 tpy increase in emissions could not be reconsidered (included in the 

algebraic sum) if a second project of 45 tpy were proposed in 2010, even though the 100 tpy reduction is still 

contemporaneous. As a result, because the first project’s increase must be considered per the definition of net 

emission increase (see 231-4.1(b)(29) and the decrease could not be considered per 231-10.1(f), this provision 

would inappropriately lead to NSR applicability for a project with no true increase in emissions during the 

contemporaneous period. Under the Department’s proposal, the net emissions increase for the second project 

would be 95 tpy, whereas under the federal rules, it would be (-) 5 tpy. 

In light of the above discussion, Kodak asks NYSDEC to revisit this issue with EPA Region and revise 231-

10.1(f) as follows to eliminate a significant inconsistency with the federal major NSR program: 

“(f) An ERC, or portion thereof, which is used to avoid a determination of a significant net emission increase 

cannot subsequently be used for emission offset purposes or in any subsequent netting determinations.” 

To the extent that different requirements may apply in nonattainment areas versus attainment areas, Kodak asks 

NYSDEC to appropriately distinguish such differences in regulatory language to ensure that with respect to this 

issue, Part 231 is no more stringent than the underlying federal major NSR program. 

Response: Please see response to comment number 12 above. 
Page 103 of 114

70) Comment: 231-10.3(b)(2) – ERC Quantification Form: This provision requires a complete “Emission 

Reduction Credit Quantification Form” with supporting documentation to be submitted as part of the 

application for an ERC. In Response to Comment # 56, NYSDEC indicates: 

 “The Department’s “Emission Reduction Credit Quantification Form” (ERC Form) has been required for all 

ERC applications since 1995. . . The ERC Form has been noted by both industry and consultants as being a very 

concise and helpful form to calculate and document the value of a proposed ERC. . .Use of the ERC Form 

maintains consistency in the Department’s review of ERC applications and is used as the document for entry of 

approved ERCs into NY’s ERC Registry. The ERC Form will remain required for all ERC applications.” 

First, it is Kodak understands that, per 231-10.6(a), ERCs designated for netting purposes do not require entry 

into the NY’s ERC Registry. Specifically 231-10.6(a) says “All approved ERCs which may be used as offsets

will be entered into a listing of available ERCs. . .” (Emphasis added.) Kodak asks NYSDEC to confirm the 

interpretation that the reductions intended for netting are not added to the ERC Registry. 

Kodak’s concerns with 231-10.3(b)(2) stem not from the content of the forms currently used, but rather that 

231-10.3(b)(2) provides no flexibility to present that content in another, less burdensome manner acceptable to 

both the applicant and the NYSDEC. When netting under the federal PSD program, the operator of Kodak’s 

boilers used a straightforward approach to the net emission increase determination through use of an Excel 

workbook. The various spreadsheets methodically and successfully showed the basis and calculations for the 

creditable, contemporaneous decreases for all regulated NSR pollutants as well as the increase from the project, 

all other creditable, contemporaneous increases, and the net emission increase determination. Following 

review of the submission, NYSDEC established permit conditions for the required emission reductions. It is 
Page 104 of 114

Kodak’s view that, had they been required for this project, the completion of ERC forms themselves would 

have added no value. 

The ERC Forms generally are not subject to public notice and comment, have not been formally made part of 

this proposed rulemaking, and may be changed by the Department without any public review. Requiring the use 

of these forms under 231-10.3(b)(2), without affording any flexibility for the regulated community to provide 

the information in another equally suitable manner is procedurally unacceptable. Other NYSDEC air program 

rules provide flexibility without negatively impacting the department’s continued successful implementation of 

those rules. For example, 201-6.3(d) provides: “All title V facility permit applications submitted to the 

department shall be provided in a format acceptable to the department.” (Emphasis added.). Similarly, 202-

2.4(h) allows: “Any owner or operator of a reportable facility shall transmit the emission statement to the 

department in a format acceptable to the department.” (Emphasis added.) 

Consistent with the approach used in other NY air program rules, Kodak asks NYSDEC to revise 231-

10.3(b)(2) as shown below to allow for an equivalent means of conveying the required information.

“(2) A complete “Emission Reduction Credit Quantification Form” or equivalent acceptable to the Department

with supporting documentation establishing that the emission reduction is surplus, quantifiable and 

enforceable.” 

Response: The commenter has requested that the Department confirm the interpretation that emission 

reductions intended for netting are not added to the ERC Registry. The commenter is correct. However, the 

Department does note in the ERC Registry when any previously approved unused ERC listed in the Registry is 
Page 105 of 114

used for netting purposes rather than emission offset purposes, since any ERC which is used for netting cannot 

subsequently be used as an emission offset. 

The Department’s “Emission Reduction Credit Quantification Form” (ERC Form) has been required for all 

ERC applications since 1995. It is the main component of an ERC application. As noted by commenter, the 

ERC Form methodically presents the information that both the applicant and the Department must review. The 

ERC Form has been noted by both industry and consultants as being a very concise and helpful form to 

calculate and document the value of a proposed ERC. The final summary information (baseline emissions, 

future emissions, RACT /MACT surplus calculations, applicability dates, requested ERC, etc.) provided in the 

Form is typically supported by attached detailed documentation such as spreadsheets, calculations, etc. noted by 

commenter. Use of the ERC Form maintains consistency in the Department’s review of ERC applications and 

is used as the document for entry of approved ERCs into NY’s ERC Registry. The ERC Form will remain 

required for all ERC applications. The suggested language addition of “or equivalent” will not be made. 

Finally, the Department does not require any specific format for background or support information that an 

applicant submits with the ERC from. An applicant may submit any format of documentation (electronic or 

hard copy) that supports the information provided in the ERC Quantification Form. (APC: 56) 

71) Comment: 231-10.4(a) – ERC Newspaper Notice: This paragraph requires applicants for permit 

modifications that create ERCs to publish a notice in a local newspaper. This provision is unchanged from the 

September 2007 proposal. In Response to Comment # 58, NYSDEC supports the required newspaper notice for 

ERCs, because it exists under Subpart 231-2 and is consistent with the Department’s reading of Part 621. 

Kodak disagrees with this position and continues to believe that newspaper notices are unnecessarily expensive 

requirements for notifying the public of emission decreases. Through this rulemaking, NYSDEC has both an 
Page 106 of 114

opportunity and a responsibility to revisit costly and unnecessary practices, especially in light of the expanded 

applicability of Part 231. 

In addition, because NYSDEC unnecessarily requires emission reductions intended for netting purposes to be 

established as ERCs and facilities that net are demonstrating that there will not be an increase in emissions from 

those facilities, ERCs used specifically for netting should not require a newspaper notice. 

Kodak asks NYSDEC to strike from 231-10.4(a) the phrase “and the applicant must publish notice in a local 

newspaper” or at a minimum revise this paragraph by adding the following phrase to the end of this 

paragraph: “unless the ERC will be used only for net emission increase determinations”. 

Response: The Department respectfully disagrees with the commenter. The requirement for newspaper 

publication exists in current Subpart 231-2. Clause 231-2.6(a)(5)(ii)(‘d’) requires that for an ERC to be 

enforceable the permit modification establishing the ERC must be noticed in the Environmental Notice Bulletin 

and a local newspaper for a 30 day public comment period. This requirement will be maintained in the revised 

rule in Section 231-10.4. The Department maintains that it has and will continue to read Part 621 consistent 

with this Part 231 requirement. Approval of an ERC regardless of its intended use will require public notice. 

Finally, ERCs approved for the purpose of netting are routinely noticed concurrently with the project that is, or 

will be using the ERCs. Therefore, no additional costs for public notice are, or will be incurred. (APC: 58) 

72) Comment: “Reasonable Possibility” Recordkeeping Requirements: 231-11.2(b) Recordkeeping for projects 

less than 50 percent of the significance thresholds NYSDEC has restructured Subpart 231-11 and requirements 

for insignificant modifications now are under 231-11.2(b) for projects with less than 50 percent of the 
Page 107 of 114

significance threshold, considering projected actual emissions and emissions from “independent factors”. These 

requirements also extend to exempt and trivial sources. NYSDEC has revised 231-11.2(a), to make clear that 

the requirements for insignificant modifications do not apply if the project emission potential is determined 

using potential to emit in lieu of projected actual emissions. The provisions in 231-11.2(c) for projects greater 

than or equal to 50 percent of the significance thresholds appear to be consistent with the federal major NSR 

“reasonable possibility” requirements in 52.21(r)(6). However, the recordkeeping requirements in 231-11.2(b) 

are in excess of what EPA’s major NSR rules would require and should be eliminated. 

In promulgating its “reasonable possibility” rule, EPA chose a bright-line percentage test of 50 percent or 

greater of the significance thresholds, including both projected actual emissions resulting directly from the 

project and emissions increases from independent factors. This approach responded to the petitioners’ and the 

court’s concerns regarding the vagueness and lack of enforceability of the NSR Reform rule in which 

“reasonable possibility” was undefined. EPA’s rationale supporting the adoption of this test noted: 

 “Nonetheless, agencies do not invariably require the regulated community to keep records to prove the nonapplicability of a requirement. In imposing recordkeeping requirements in this case, we strove for a balance 

between ease of enforcement and avoidance of requirements that would be unnecessary or unduly burdensome 

on reviewing authorities or the regulated community.” (72 FR 72610, col. 1 and 2.) 

On the other hand, NYSDEC’s approach to mandate recordkeeping on projects less than the 50 percent 

significance threshold will require regulated entities to keep records to prove non-applicability and does not 

achieve a balance between enforcement and the imposition of unnecessary or unduly burdensome requirements. 

Since NY’s minor NSR program is one of those highlighted by EPA as providing the Department with the 

“opportunity to review virtually all projects causing an emissions increase before construction begins” (72 FR 
Page 108 of 114

72613, col. 1), it is unnecessary and unreasonable for NYSDEC to impose the additional recordkeeping burdens 

associated with 231-11.2(b). 

EPA’s “reasonable possibility” rulemaking further indicated that: 

“Projects with projected increases below the 50-percent threshold, especially when emissions from demand 

growth are included in projections, are, we believe, sufficiently small that any variability or error in calculations 

is less likely to be large enough for the change to have increased emissions to the significant level. This view 

seems to be consistent with comments submitted by the group of States that successfully challenged the 

“reasonable possibility” rule.” (72 FR 72611, col. 3) 

Conversely, by continuing to include the recordkeeping requirements proposed in 231-11.2(b), NYSDEC is 

taking the position that no matter how small or how large a projected actual increase may be, (whether 1⁄2 pound, 

five pounds, 10 pounds, 100 pounds, etc.), there may be a chance, no matter how slight, that the significance 

thresholds for major modifications could be exceeded. Therefore, NYSDEC requires records to be kept for 

every insignificant modification to prove otherwise. It appears, then, that the driver for these requirements is 

environmental enforcement and not environmental benefit. Unfortunately, regulated entities will bear the costs 

associated with these over-reaching recordkeeping requirements that apply to projects that have no “reasonable 

possibility” of exceeding the major NSR significance thresholds. 

Since the insignificant modification requirements in 231-11.2(b) create unnecessary burdens and will result in 

no proven environmental benefits, they are unjustified. Kodak asks NYSDEC to eliminate the provisions under 

231-11.2(b). 
Page 109 of 114

Response: Please see response to comment number 39 above. 

73) Comment: 231-6.1(a) and 231-8.1(a) PTE and “reasonable possibility” provisions: These paragraphs now 

read: “For a project with a project emission potential, calculated utilizing projected actual emissions, which 

does not equal or exceed the applicable significant project threshold. . ., the facility owner or operator must 

comply with the provisions of Section 231-11.2 of this Part.” (Emphasis added.) 

The Department revised these provisions and 231-11.2(a) to address Kodak comments on the 2007 proposal. In 

Response to Comment #51, NYSDEC said they agreed with Kodak’s position that when facilities rely on PTE 

to determine project emission potential, the “reasonable possibility” requirements of 231-11.2 should not be 

triggered. Although this is clearly stated in paragraph 231-11.2(a), Kodak is concerned that the language 

NYSDEC added to 231-6.1(a) and 231-8.1(a) may not be as clear because the definition of “projected actual 

emissions” includes in subparagraph (ii) the following: “In lieu of using the method set out in Subparagraph (i) 

of this Paragraph, the owner or operator of the facility may elect to use the potential to emit of the emission 

source(s), in tpy.” (Emphasis added.) 

Because the definition of “projected actual emissions” allows for the substitution of PTE, Kodak asks NYSDEC 

to revise 231-6.1(a) and 231-8.1(a) as follows or provide other suitable clarification:

“For a project with a project emission potential, calculated utilizing projected actual emissions in lieu of 

potential to emit in accordance with 231-4.1(b)(40)(ii) . . .” 

Response: The Department disagrees with the commenter’s proposed change. The Department does not 

believe that additional clarifications are necessary. 
Page 110 of 114

74) Comment: 201-2.1(b)(21) - Definition of “major stationary source”: In response to Kodak comments, 

NYSDEC indicated that the proposed definition of “major stationary source” is intended to be used for Title V 

and major NSR. NYSDEC changed the proposed definition to correct a provision that inadvertently changed 

201-6 applicability. Specifically, the newly proposed paragraph (i) of this definition reflects the 100 tpy 

threshold for any pollutant regulated under the Act as required under the federal Title V program. Kodak now 

believes that paragraph (iii) of the proposed definition could lead to confusion when this definition is relied 

upon for implementing Part 231 because the 250 tpy major facility threshold, that applies in attainment or 

unclassified areas for sources that are not in a listed source category (See 231-13.5), is not referenced. To the 

extent that NYSDEC will use this definition to implement both programs, Kodak recommends that NYSDEC add 

the following language to paragraph (iii) of the definition of “major stationary source”:

(iii) Solely for purposes of implementing the PSD program under Part 231 in attainment and unclassified areas, 

a stationary source, source, or facility, or that directly emits or has the potential to emit 250 tpy, or a stationary 

source, source or facility that belongs to one of the following source categories and directly emits or has the 

potential to emit 100 tpy of any air pollutant or air contaminant regulated under the Act. . . .” (The remainder of 

the paragraph remains unchanged.) 

Response: The Department has reviewed the commenter’s issue and agrees that a revision to the proposed 

definition of “major stationary source” is necessary. The Department will revise this definition. 

75) Comment: Section 231-3.6(a) - Source obligations: NYSDEC has opted to retain proposed 231-3.6(a) 

which states: “The issuance of a permit does not relieve any owner or operator of the responsibility to comply 

fully with applicable provisions of the State Implementation Plan and any other requirements under local, State 

and Federal law.” (Emphasis added.) Kodak continues to see this requirement as superfluous. In earlier 
Page 111 of 114

comments, Kodak expressed concern that the mere inclusion of this provision in the final rule could be 

construed to convert all these “other requirements” into federally enforceable “applicable requirements” which 

must be included in a Title V permit, potentially with burdensome monitoring, recordkeeping and/or 

certification requirements. On page 63 of the APC, the Department replied that: “The term applicable 

requirement is defined in Part 201 and will not be expanded through this provision to include requirements that 

do not fall within the purview of Paragraph 201-2.1(b)(5).” Kodak concurs that the definition is clear that to be 

an applicable requirement “a standard or other requirement must be required under the act”. It is important to 

note, however, that the referenced definition of “applicable requirement” generally includes: “any standard or 

other requirement approved in the New York State Implementation Plan (SIP) that is effective at the time of 

permit issuance.” (Emphasis added.) Because the Clean Air Act does not mandate these other requirements 

referenced in 231-3.6(a), Kodak asks the Department to confirm that even if 231-3.6(a) is approved into the 

SIP, that the referenced requirements contained therein would not constitute applicable requirements. 

Response: Please see response to comment number 24 above. 

76)Comment: 231-3.6(c) Significant increases from “independent factors”: The Department has added 

provisions under 231-3.6(c) requiring facility notifications to NYSDEC prior to implementing a physical 

change or change in the method of operation that the facility determines is not a modification, yet will lead to a 

significant emissions increase due solely to emission increases from “independent factors”. Kodak fails to see 

the relevance of this section. The “reasonable possibility” provisions in 231-11.2(c) already provide a 

mechanism for Departmental involvement when there is a modification with a combined increase in projected 

actual emissions and emissions from independent factors that equals or exceeds 50% of the significance 

thresholds. It is unclear how, if an increase results solely from “independent factors”, it would be attributable to 

a physical change or change in the method of operation without being a modification. For these reasons, and 
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because this provision exceeds what is required under the federal program, Kodak asks NYSDEC to delete 231-

3.6(c). 

Response: The Department disagrees with the commenter’s assessment. Subdivision 231-3.6(c) is intended 

to address situations where a facility makes a physical or operational change which it projects will result in no 

emission increase but projects a significant emission increase from independent factors. The Department 

believes that these provisions are necessary to protect the environment and public health. 

77) Comment: Section 231-4.1(b)(4)(d) – “Baseline actual emissions”: The definition of “Baseline actual 

emissions” does not conform to the federal rule that allows a different baseline period to be used for each NSR 

contaminant. As a result of this provision the proposed Part 231 NSR rules may apply to projects that would be 

exempt under the federal rules. Kodak understands NYSDEC’s position, but believes the potential for this 

provision to unacceptably result in increased emissions within NY has been over-stated. Moreover, to the 

extent that a source is authorized to emit based on various operating scenarios in its permit, it seems reasonable 

that different baseline periods be available to allow determination of representative emissions to the greatest 

extent possible under those scenarios. As such, Kodak asks NYSDEC to modify this provision as shown, below: 

“(d) For a regulated NSR contaminant, when a project involves multiple emissions sources, one baseline period 

must be used to determine the baseline actual emissions of the emission sources being modified. A different 

baseline period can cannot be used for each regulated NSR contaminant.” 

Response: Please see response to comment number 14 above. 
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78) Comment: Sections 231-5.1(b), 231-7.1(b) - PTE Limit: For projects that do not exceed the applicable 

major facility threshold but that would make the facility major for such contaminant, 231-5.1(b) and 231-7.1(b) 

require a facility owner or operator “to obtain a permit in accordance with Part 201 and the permit must contain 

an emission limit(s) equal to the potential to emit (“PTE”) of the emission source(s) affected by the 

modification.” In “Response to Comment” #49, NYSDEC states: 

“ The above cited sections apply to minor facilities which undertake a modification which results in them 

becoming a major Title V facility. The requirement to obtain an emission limitation ensures that the 

modification by itself does not exceed the thresholds which would trigger NSR review and/or the requirement 

for LAER and emission offsets. In so doing, this requirement is consistent with the objectives to protect the 

environment and maintain healthy air quality in New York.” 

Kodak has a number of minor facilities in NY and finds these provisions impose significant and unjustified 

permitting burdens that are unnecessary given the permitting processes in Part 201 that already ensure that 

major NSR review has not been triggered. Namely, under the registration provisions of 201-4, a notification to 

NYSDEC is required 30 days in advance of any project that changes applicable rules. Similarly, for facilities 

subject to state facility or Title V permitting, such a change would be reviewed by NYSDEC via the minor or 

significant permit modification procedures under 201-6.7 or operational flexibility provisions of 201-5.4(b). 

Should the project lead to an increase of the facility’s PTE above major source thresholds, there are provisions 

under 201-7 for source owners or operators to elect to use a cap to avoid an applicable requirement such as 

major NSR. In all cases, NYSDEC has ample opportunity to review the project in question and take steps to 

ensure that NSR has not been triggered. NYSDEC has failed to justify why the provisions in 231-5.1(b) and 

231-7.1(b) provide additional environmental benefits beyond those provided by the current permitting 

processes. Because the federal rule does not require that a preconstruction permit with a PTE limit be obtained 
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for projects that are below the NSR applicability threshold, we urge NYSDEC to revise 231-5.1(b) and 231-

7.1(b) by deleting the last sentence of these paragraphs as shown below: 

 “(b) . . . However, the facility owner or operator must apply for and obtain a permit in accordance with Part 201 

and the permit must contain an emission limit(s) equal to the potential to emit of the emission source(s) affected 

by the modification.” 

Response: The above cited sections apply to minor facilities which undertake a modification which results 

in them becoming a major Title V facility. The requirement to obtain an emission limitation ensures that the 

modification by itself does not exceed the thresholds which would trigger NSR review and/or the requirement 

for LAER and emission offsets. In so doing, this requirement is consistent with the objectives to protect the 

environment and maintain healthy air quality in New York. Also, please see response to comment number 11 

above. (APC: 49)