STATE OF NEW YORK

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

625 BroadwaY

AlbanY, New York 12233-1550 -" i'"\

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. - :.', .'' - .\:':, /,: In the Matter

- of t.he

PROPOSED AMENDMENT OF

PARTS 2OO, 201 AND 231 O F

TTTLE 6 OF THE OFFICIAL COMPILATION OI

RULES AND REGULATIONS OF THE STATE

NEW YORK.

HEARING REPORT

CODES,

OF

by

*funta-('fr4at a -

Maria E. Vil1a

December 4, 200'7

Richard R .

Administrative

Wissler

Law Judges
PROCEEDINGS

The New york 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

New Source Review (NSR) for new and modified air contamination

sources, and associated revisions to the State Implementation

Plan (SIP)

The Department proposes to amend part 231 of title 5- of the

Official Compilation of Codes, Rules and Regul-ations of the SLate

;;-;;;-;"rX i*6 NyCRR part 23r"), and to make related amendments

to parts 2OO (General Provisions) and 201 (Permits and

Reg-istrations) - part 23L would be re-titled "New Source Review

foi Xew and Modified Facilities." It'would contain requirements

for proposed new major 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 200 would 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 PSD progt?*- Part 2OI

woul_d be amended to rewise the definition of "major sLationary

source or major source" and Lo include thresholds for facilities

emitt.ing particul-ate matter less than 2 - 5 micrometers in diameter

(PM2. s) .

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: New York Post,

Newsday, albany ti*.t Union, Syracuse Post-Standard, Rochester

Democrat and Chronj-cle, Buffalo News, and Glens Fal1s Post-Star'

A notice 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,

2AO and 201 uor= pnblished in the New York 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 commenLs was November 25, 2OO7 '

The hearing on the proposed amend.menLs took place in three

sessions, November 13, 2OO'7, at 2:00 P'M' at the DEC Region B
Office, 62'/4 East Avon-Lima Road, Avon, New York, before Susan ..f '

DuBois, Ad.ministr.ative Law Judge (I'ALJ"); November 15, 2OO'7, dt

2zOO p-ft4. at the DEC central.. of f ice, 625 Btoadway, Albany, New

York, before AI-,J Maria E. Villa; and November L6., 2007, dt the

DEC Region 2 Annex, 11-15 47Eh Avenue, 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 DEC Staff representat.ive, two persons spoke'

Description of the proposed requlations

Thomas Marriott, Regional Air PoIlution Control Engineer for

DEC Region 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 . He described the amendments as combining a rewised'New

Source Review non-attainment area program with a new NSR PSD

attainment area program, and establishing a comprehensive set of

regulations for t.he permittiirg of new major facilities and major

modifications to existing major facilities'

Mr. Marriot.t stated that the part 2OO revisions would amend'

the definition of "potential to emiL," add a defini-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 DBC is no longer delegated

responsibility for implementing the federal PSD program. He'

stated the amend.menLs t.o parL 201 would modify the definition of

..major stat.ionary source" and would include the new pollutant

categorY of PM2.5.

Mr. Marriott stated that the proposed amendments of part 23I

are being undertaken to bomply with EPA's 2OO2 NSR Rule, Lo

correct deficiencies that EPA identified regarding New York's

exist.ing part 23L NSR reguJat.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-d allow corporations to modify facilities

and increase pollut.ion to meet market demand with no

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repercussions, resulting in harm to public heal-th and to

ecosystems - She stated it is ironic t.hat New Source Review

allowed then-Attorney General El-iot Spit 2er Lo pursue federa]

cl-ean air titigation but. now the Spitzer administration is

proposing to weaken NSR with changes Governor Spitzer opposed

ll". Elliott also noted that Attorney General Cuomo was recently

part of a "recofd-breaking" NSR case settlement. She urged that

DEC rescind the pfoposed amendments, particul-arly the demandgrowth exemption.

Alejandro Fernandez-Lovo, a student from Syracuse, stated

t.hat New Source Revi-ew has been a Very uqeful regulatory tool to

clean up major air polluters, and that the Attorney Genera]'s

office has used it, effectively in recent years. He expressed

disappointmenL at what he described as Lhe DEC proposal to

voluntarily incorporiate Bush administration-supported changes

into New York StaLe's air program. .He stated Lhe most dangerous

change is to 1et facil-ities increase pollution to meet market

demand, and that New York State argued in court that. this equates

to self-policing. He stated 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, 

Jef frey 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, dD exemption for

i.r"r"-r"d pollution as a resulL of market demand would make it

easier for older facilities to i-ncrease emi-ssions, and woul-d

override Lhe intent of the New Source Rewiew provisi-ons. Ms.

Hanson pointed out that the proposed exempt.ion would not provide

incentives for industry to invest in other t14>es of 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 New Yorkers '

Mr. Starr stated that the original intent of the Cl-ean Air

Act and New Source Review was to protect public health.

According to Mr. Starr, the proposed amendments would not be

consistent wit.h Lhat intent. Mr. Manni-no voiced 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

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on to state that the proposed amendments allowing increased

pollution to allow for growth in market demand would be a vague,

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 New York State, and this speaker

concluded that ,t.he implicat.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 New York. 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 New York's

citizens and their environment. Lori Cornell, the final- speaker,

stated that for years.the Clean Air Act. has been a powerful tool

to clean up the dirti-est polluters in New York State. Ms.

Cornell said that she appreciated the DepartmenL's efforts, but

wondered why the market should now dictate that pollution is

allowable. According to Ms. Cornell^ the proposed amendments

would allow pollution t.o steadily increase over the years.

Lonq Island Citv hearinq

The hearing was convened as scheduled on November t6, 2007 ,

and was 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.

One member of the public spoke, Jason Babbie, the senj-or

environment.al policy analyst for the New York Public Interest

Research Group- Mr. Babbie argued that the proposed amendments

would both weaken and complicate New Source Revj.ew. He noted

several- concerns. For example, in determj-ning the emissions

basel-ine for the purpose of future New Source 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. He also expressed concern for the demand growth

exception provided in the proposed amendments. The new

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regulat.ions wj-lI make . it dif f icult 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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