STATE OFNEWYORK DEPARTMENTOF ENVIRONMENTAL CONSERVATION 625 BroadwaY AlbanY, NewYork 12233-1550 -" i'"\


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PROPOSEDAMENDMENTOF PARTS2OO,201AND231O F TTTLE 6OFTHEOFFICIAL COMPILATIONOI RULESAND REGULATIONS OFTHE STATE

NEWYORK.

HEARING REPORT CODES, OF



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Maria E.Vil1a

December 4, 200'7 Richard R . 

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LawJudgesPROCEEDINGS
The Newyork Stat.e Department of Environmental Conserwation (.rDepartment" or 'DEC') scheduled three public hearing sessions to provide an opportunity for comment on proposed changes to the Oepartment,s air pollution regulations. These changes pertain t o NewSource Review (NSR)for newand modified air contamination sources, and associated revisions to the State Implementation Plan (SIP)
The Department proposes to amendpart 231of title 5-of the Official Compilation of Codes, Rules and Regul-ations of the SLate ;;-;;;-;"rX i*6 NyCRRpart 23r"), and to make related amendments to parts 2OO(General Provisions) and 201 (Permits and Reg-istrations) - part 23Lwould be re-titled "NewSource Review foi Xewand Modified Facilities." It'would contain requirements for proposed newmajor facilities and major modifications t'o existing facilities located both in areas of the state that are in at.tainmenl of National Ambient Air Quality Standards and j-n non-atLainmenL areas. Part 200would be revised to reflect that the Department is no longer delegated responsibility for implementing the federal PrewenLion of significant Deterioration (pbD) program, and is adopting a State PSDprogt?*- Part 2OI woul_dbe amendedto rewise the definition of "major sLationary
source or major source" and Lo include thresholds for facilities emitt.ing particul-ate matter less than 2-5micrometers in diameter 

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. under Envi-ronmental Conservation Law (*ECL') articl-e 8 (state Environment.al Quality Review Act), the Department issued a negative declarat.ion for the proposed amendments, and no urr1ri.ort*ental impact statemenL was required ' The proposed regufrtions are subject to approval by the EnvironmentaL Board'

Notrce of the hearing was published as a legat notice in the following newspapers on september 25, 2OO'1: NewYork Post, Newsday, albany ti*.t Union, Syracuse Post-Standard, Rochester Democrat and Chronj-cle, Buffalo News, and Glens Fal1s Post-Star' Anotice of hearing was also published in the Department's Environmental Notice Bulletin on September 26, 200'7'

A notice of proposed rulemaking for amendment of parLs 23L, 2AOand 201 uor=pnblished in the NewYork state Register and in the.Environmental Notice Bulletin, both on September 25, 2OO7' The state Regi-ster notice included notice of the public hearj-ng'

The deadl-ine for written commenLswas November 25, 2OO7'

The hearing on the proposed amend.menLstook place in three sessions, November 13, 2OO'7,at 2:00 P'M' at the DECRegion BOffice, 62'/4 East Avon-Lima Road, Avon, NewYork, before Susan ..f ' DuBois, Ad.ministr.ative LawJudge (I'ALJ"); November 15, 2OO'7,dt 2zOOp-ft4.at the DECcentral.. office, 625 Btoadway, Albany, New York, before AI-,JMaria E. Villa; and November L6.,2007, dt the DECRegion 2Annex, 11-15 47EhAvenue, Long Island City, New York, before ALJ Richard R. WisslerAvon hearinq
Three members of the public'aLt.ended the hearing in Awon' In addiLion to the DECStaff representat.ive, two persons spoke' Description of the proposed requlations
ThomasMarriott, Regional Air PoIlution Control Engineer for DECRegion B, described the proposed amendments and stated they would be included in the SIP once they were finalized and approved by the United States Environmental Protect.ion Agency t-S-pal

. Hedescribed the amendments as combining a rewised'New Source Review non-attainment area program with a new NSRPSD attainment area program, and establishing a comprehensive set of regulations for t.hepermittiirg of newmajor facilities and major modifications to existing major facilities'
Mr. Marriot.t stated that the part 2OOrevisions would amend' the definition of "potential to emiL," add adefini-tion for "routine maintenance and repair" that would codify the current Department practice of reviewing activities on a case-by-case nasis, and clarify that the DBCis no longer delegated responsibility for implementing the federal PSDprogram. He' stated the amend.menLst.oparL 201 would modify the definition of ..major stat.ionary source" and would include the newpollutant categorY of PM2.5.
Mr. Marriott stated that the proposed amendments of part 23I
are being undertaken to bomply with EPA's 2OO2NSRRule, Lo correct deficiencies that EPAidentified regarding NewYork's exist.ing part 23L NSRreguJat.ion, and to include federal attainmenL area program requirements- Mt. Marriott briefly outlined the strlcture of t.he revised part 23L, which woul-d contain 13 subParts Summary of PubIic comments
Ch::istine EIliott, a st.udent from Syracuse, stated that [he proposed amendment woul-dallow corporations to modify facilities and increase pollut.ion to meet market demandwith no


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ecosystems - She stated it is ironic t.hat NewSource Review allowed then-Attorney General El-iot Spit2er Lo pursue federa] cl-ean air titigation but. nowthe Spitzer administration is proposing to weaken NSRwith changes Governor Spitzer opposed ll". Elliott also noted that Attorney General Cuomowas recently part of a "recofd-breaking" NSRcase settlement. She urged that DECrescind the pfoposed amendments, particul-arly the demandgrowth exemption. Alejandro Fernandez-Lovo, a student from Syracuse, stated t.hat NewSource Revi-ew has been aVery uqeful regulatory tool to clean up major air polluters, and that the Attorney Genera]'s office has used it, effectively in recent years. Heexpressed disappointmenL at what he described as Lhe DECproposal to voluntarily incorporiate Bush administration-supported changes into NewYork StaLe's air program. .Hestated Lhe most dangerous change is to 1et facil-ities increase pollution to meet market demand, and that NewYork State argued in court that. this equates to self-policing. Hestated this approach would al-Iow pollution to continually'increase and is inconsistent with the intent o f NSR.

Albanv hearinq
Six persons spoke at the hearj-ng in Albany, which took place at 2:00 p.m. on Thursday, November L5, 2007- After a presentat.ion by Michael Jennings, of DepartmenL Staff, Alex -Hrrr"o.r, Jeffrey D. Starr, Andy Mannino, Lynn Rad1e, ,Joel Kayser, and Lori Cornell stated their opposition to the adoption of the proposed amendments. According to Ms. Hanson, dDexemption for i.r"r"-r"d pollution as a resulL of market demandwould make it easier for older facilities to i-ncrease emi-ssions, and woul-d override Lhe intent of the NewSource Rewiew provisi-ons. Ms. Hanson pointed out that the proposed exempt.ion would not provide incentives for industry to invest in other t14>esof energies, and maintained that there is technology available to reduce emissions, and't.hat. technology should be employed to protect public health and the future of all NewYorkers '
Mr. Starr stated that the original intent of the Cl-eanAir Act and NewSource Review was to protect public health. According to Mr. Starr, the proposed amendments would not be consistent wit.h Lhat intent. Mr. Manni-novoiced similar sentj-ments, and contended that the rule, ds proposed, would make it easier for ol-der facilities to continue to pollute without installinq state of the arL pollution controls. Mr, Mannino went

-4-on to state that the proposed amendments allowing increased

pollution to allow for growth in market demandwould be avague, troad general ization used by'many polluters to justify an increase in pollution and b decrease in preventative measures. According to Mr. Mannino, this self-policing would definitely Iead to more pollution in NewYork State, and this speaker concluded that ,t.heimplicat.ion of the proposed amendmenLs was that the monetary considerations of a polluter are of more imporLance than the health of the StaLe's cit.izens. Lynn Radle stated that citizens depend upon the government and it.s agencies to protect. their heal-th and environment, and maintained that the amendments would only protect industry and injure public health, the enwironmenL, and the future of anyone who lives in NewYork. Ms. Radle st.ated that while she commends the DepartmenL for its efforts to address aj-r pollution, she encourages t.he Department noL to support the amendments because those amendments falI short of what. is necessary. Joel- Kayser stated t.hat he was disappointed by the proposal, and urged the Department to continue to prot.ect the health of NewYork's citizens and their environment. Lori Cornell, the final- speaker, stated that for years.the Clean Air Act.has been apowerful tool to clean up the dirti-est polluters in NewYork State. Ms. Cornell said that she appreciated the DepartmenL's efforts, but wondered why the market should nowdictate that pollution is allowable. According to Ms. Cornell^ the proposed amendments would allow pollution t.osteadily increase over the years.

Lonq Island Citv hearinq
The hearing was convened as scheduled on November t6, 2007, andwas attended by three members of the public. Before the receipt of public comments, a statement prepared by Depart.ment. staff explaining t.he purpose of the proposed amendments was read into the record by Paresh Shah, dr environmbnt.al engineer with the Department's Division of Air Resources.
Onememberof the public spoke, Jason Babbie, the senj-or environment.al policy analyst for the NewYork Public Interest Research Group- Mr. Babbie argued that the proposed amendments would both weaken and complicate NewSource Revj.ew. Henoted several- concerns. For example, in determj-ning the emissions basel-ine for the purpose of future NewSource Review, he noted that the amendments would allow a facil-ity to pick the highest consecuLive 24 months j-n.an applicable five yearperiod as that baseline. Healso expressed concern for the demandgrowth exception provided in the proposed amendments. The new

E -J-regulat.ions wj-lI make

.it dif ficult to deLermine whether an

increase in pollution was due Lo a facility change or necessary to meet increased demand, he asserted. Moreover, Lhe new amendments shift t.he burden to the Department to show Lhat an increase in pollution is not.attributable to increased demand, h e said.

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