for people living in rural areas (or elsewhere) to comply with the proposed

rule. Furthermore, this rule making is not expected to have any adverse

economic impacts on any public or private entities in rural areas of New

York State. For these reasons, the department has concluded that this

rulemaking does not require a formal Rural Area Flexibility Analysis.

Job Impact Statement

The purpose of this rule making is to amend regulations governing the

possession and reporting of deer harvested under the jurisdiction of the

deer management assistance permits (DMAP) program, and to eliminate

the requirement that beaver must be marked with a plastic seal for

continued legal possession or sale. Based on the Department of Environmental Conservation's (DEC or department) past experience in promulgating regulations of this nature, and based on the professional judgment of

DEC staff, the department has determined that this rule making will have

no significant impact on the number of participants or the frequency of

participation in deer hunting under the DMAP program, or beaver

trapping. Trapping does not often involve professional guide services or

other employment opportunities, and relatively few jobs exist as a direct

result of trapping. The department expects that the net impact on jobs or

employment opportunities to be negligible.

For all of the above reasons, the department anticipates that this rule

making will have no impact on jobs and employment opportunities.

Therefore, the department has concluded that a Job Impact Statement is

not required.

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

Nitrogen Oxide (NOx) Emission Reduction Practices and

Potential Controls for Hot Mix Asphalt Production Plants

I.D. No. ENV-51-09-00008-RP

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action: Amendment of Part 212 of Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, sections 1-0101,

1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305,

19-0311, 71-2103 and 71-2105

Subject: Nitrogen oxide (NOx) emission reduction practices and potential

controls for hot mix asphalt production plants.

Purpose: To reduce NOx emissions from hot mix asphalt production plants

to decrease ambient ozone and particulate matter concentrations.

Text of revised rule: Existing section 212.1 is repealed. A new section

212.1 is added as follows:

Section 212.1 Definitions

(a) For the purpose of this Part, the general definitions in Part 200 of

this Title apply.

(b) For the purpose of this Part, the following definitions also apply:

(1) Aggregate. Any hard, inert material used for mixing in graduated

particles or fragments. Includes sand, gravel, crushed stone, slag, rock

dust or powder.

(2) Hot Mix Asphalt. Paving material that is produced by mixing hot

dried aggregate with heated asphalt cement.

(3) Low NOx Burner. A burner designed to reduce flame turbulence

by the mixing of fuel and air and by establishing fuel-rich zones for initial

combustion, thereby reducing the formation of nitrogen oxides.

(4) Overall removal efficiency. The total reduction of volatile organic

compound emissions considering the efficiency of both the capture system

and of the subsequent destruction and/or removal of these air contaminants by the control equipment prior to their release into the atmosphere.

(5) Process. Any industrial, commercial, agricultural or other activity, operation, manufacture or treatment in which chemical, biological

and/or physical properties of the material or materials are changed, or in

which the material(s) is conveyed or stored without changing the material(s) (where such conveyance or storage system is equipped with a vent(s)

and is non-mobile), and which emits air contaminants to the outdoor

atmosphere. A process does not include an open fire, operation of a

combustion installation, or incineration of refuse other than by-products

or wastes from processes.

(6) Tune-up. Adjustments made to a burner in accordance with

procedures supplied by the manufacturer (or an approved specialist) to

optimize the combustion efficiency.

Existing section 212.2 through section 212.11 remain unchanged.

A new section 212.12 is added as follows:

Section 212.12 Hot mix asphalt production plants

(a) The owner or operator of a hot mix asphalt production plant must

comply with the following requirements:

(1) Beginning in calendar year 2011, a tune-up must be performed

on the dryer burner on an annual basis at any hot mix asphalt production

plant that is in operation during that calendar year.

(2) A plan must be submitted to the Department by March 1, 2011

which details the introduction or continuation of methods by which to

reduce the moisture content of the aggregate stockpile(s). Such methods

must be implemented that year, or the first subsequent year the plant is in

operation.

(b)(1) Beginning January 1, 2012, the owner or operator of a hot mix

asphalt production plant must analyze the economic feasibility of installing a low NOx burner when it comes time for their current burner to be

replaced. This economic analysis must follow an approach acceptable to

the Department.

(2) By January 1, 2020, all owners or operators of active plants must

have submitted the economic feasibility analysis for the installation of a

low NOx burner. A low NOx burner must be installed for that operating

year in all instances in which it proves feasible.

(3) Hot mix asphalt production plants which are in a state of inactivity on January 1, 2020 and have not otherwise complied with the requirements of this subdivision by that date must do so prior to continued

operation.

(4) A similar analysis must be submitted for subsequent burner

replacements.

(5) A low NOx burner will be required at any new hot mix asphalt

production plant.

(c) For major stationary sources, approved RACT determinations will

be submitted by the Department to the United States Environmental

Protection Agency for approval as separate State Implementation Plan

revisions.

Revised rule compared with proposed rule: Substantial revisions were

made in sections 212.1, 212.10(g) and 212.12.

Text of revised proposed rule and any required statements and analyses

may be obtained from Scott Griffin, NYSDEC, Division of Air Resources,

625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email:

212asph@gw.dec.state.ny.us

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: July 16, 2010.

Additional matter required by statute: Pursuant to Article 8 of the State

Environmental Quality Review Act, a Short Environmental Assessment

Form, a Negative Declaration and a Coastal Assessment Form have been

prepared and are on file. This rule must be approved by the Environmental

Board.

Summary of Revised Regulatory Impact Statement

STATUTORY AUTHORITY

The statutory authority for this amendment is the Environmental Conservation Law (ECL) Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105,

19-0107, 19-0301, 19-0303, 19-0305, 19-0311, 71-2103 and 71-2105.

The New York State Department of Environmental Conservation

(Department) proposes to revise 6 NYCRR Part 212, ‘‘General Process

Emission Sources,’’ to include control requirements for hot mix asphalt

production plants throughout the state. These control requirements, to be

included in the new section 212.12, will be specifically aimed at reducing

emissions of oxides of nitrogen (NOx) that result from combustion during

the aggregate drying and heating process. These requirements apply to

any entity that owns or operates a subject plant.

At the June 7, 2006 Ozone Transport Commission (OTC) Annual Meeting, OTC member states adopted Resolution 06-02, which set forth

guidelines for emission reduction strategies for six source sectors, including hot mix asphalt production plants. OTC member states agreed to

pursue state rulemakings or other implementation methods to achieve

emission reductions consistent with the guidelines. The Department is

proposing to revise Part 212 to add NOx reduction requirements through

best practices and the potential application of low NOx burner technology

in line with the recommendations of OTC.

LEGISLATIVE OBJECTIVES

The legislative objectives underlying the above statutes are directed toward protection of the environment and public health. NOx emissions contribute to the formation of both ozone and particulate matter in ambient

air. New York State contains nonattainment areas for the primary and secondary ozone and PM2.5 (both annual and 24-hour) NAAQS. As such, the

air quality in these areas is not, allowing for an adequate margin of safety,

sufficient to protect public health, nor is it sufficient to protect the public

welfare from any known or anticipated adverse effects associated with the

presence of the relevant air pollutants.

The proposed revision will yield initial NOx reductions in 2011 via

burner tune-ups and stockpile maintenance. Emission reductions will

continue as facilities consider low NOx burner replacements beginning in

2012. This rule will therefore benefit any nonattainment area relying on

NOx reductions in 2011. This includes the 1997 eight-hour ozone nonatNYS Register/June 16, 2010 Rule Making Activities

5
tainment area of New York-N. New Jersey-Long Island, NY-NJ-CT.

While the current official date to reach attainment for this area is June 15,

2010, the Department has submitted a ‘‘bump-up’’ request to the United

States Environmental Protection Agency (EPA) to re-classify the area

from moderate to serious. While EPA has yet to act on this request, the

transition to a serious classification will move the date to demonstrate attainment to June 15, 2013.

On March 12, 2008, EPA took action to strengthen the NAAQS for

ground-level ozone, revising the level of the 8-hour primary and secondary standards to 75 parts per billion (ppb).1 This standard is currently in

effect, though EPA has extended its deadline for making nonattainment

designations. EPA later decided to reconsider these 2008 standards and on

January 6, 2010, proposed a new, more stringent ozone NAAQS in the

range of 60 to 70 ppb.2 A final decision on the exact level of the standard

is expected in August, 2010. The Department will require significant

reductions of ozone precursors to meet this upcoming NAAQS. Emission

reductions from these asphalt plant requirements will benefit each of the

nonattainment areas in the state.

On October 8, 2009, EPA designated the New York-N. New JerseyLong Island, NY-NJ-CT area as nonattainment for the 2006 24-hour PM2.5

NAAQS.3 Because NOx acts as a precursor to particulate matter, the reduction in NOx resulting from this rule revision will assist in this area meeting

its attainment deadline of 2014.

NEEDS AND BENEFITS

Because most asphalt paving operations are performed during the summer months, NOx emissions from these sources are more likely to react

with volatile organic compounds (VOCs) in the summer heat to form

ground-level ozone. NOx emissions result from the combustion of fuel

during the drying and heating of aggregate prior to its mixing with asphalt

cement. Approximately 200 hot mix asphalt plants exist in New York

State. Annual NOx emissions have been approximated in the range of 550

to 600 tons in recent years. While this represents a small portion of the

overall annual NOx emissions in the state, production is concentrated during those times when NOx emissions are most inclined to react with other

precursors to form ozone.

Reducing the NOx formed during the aggregate drying process at

asphalt plants will aid in New York's attainment of the ozone NAAQS.

The revised Part 212 is being included among the control measures needed

for attainment of the 1997 eight-hour ozone NAAQS in the State Implementation Plan (SIP) for the New York-N. New Jersey-Long Island, NYNJ-CT nonattainment area. The updated Part 212 will also prove important

in helping to attain the revised eight-hour ozone standard, which is

expected to be finalized by EPA in August, 2010. During paving operations in cooler months, NOx emissions are more likely to contribute to

increased ambient particulate levels. The revised Part 212 will be included

as a measure needed to help reach attainment of the 2006 24-hour PM2.5

standard in the SIP for the downstate nonattainment area.

Ozone

EPA recently proposed a new set of standards for the ozone NAAQS

which are scheduled to be finalized on August 31, 2010. The primary standard will likely be set in the range of 60 to 70 ppb. EPA will finalize

designations for the new standards by August, 2011. Accordingly, the

Department estimates that 41 to 47 New York counties will be designated

as nonattainment, depending upon the level ultimately selected by EPA.

New York State is currently obligated to meet the requirements related

to the 1997 eight-hour ozone NAAQS.4 Federal regulations require New

York State to develop and implement enforceable strategies to bring nonattainment areas into attainment with the 1997 eight-hour standard by certain

deadlines. This includes meeting the June 15, 2013 deadline for the serious nonattainment area of New York-N. New Jersey-Long Island, NYNJ-CT (once EPA has approved the Department's ‘‘bump-up’’ request).

Timely promulgation of this rule revision is required for EPA approval of

the 1997 eight-hour ozone SIP.

Short-term exposure to ozone can irritate the respiratory system, reduce

lung function and make it more difficult to breathe deeply. Increased

hospital admissions and emergency room visits for respiratory problems

have been associated with ambient ozone exposures. Longer-term

exposure can inflame and damage the lining of the lungs. Studies have

shown a definitive link between short-term ozone exposure and human

mortality.5 Ozone also affects vegetation and ecosystems, leading to

reductions in agricultural crop and commercial forest yields, reduced

growth and survivability of tree seedlings, and increased plant susceptibility to disease, pests, and other environmental stresses such as harsh

weather. Ozone damage to foliage can also decrease the aesthetic value of

ornamental species and the natural beauty of our national parks and recreation areas.

The Department is working to establish or revise additional SIP

programs to bring all areas into attainment for ozone. The Department is

currently pursuing efforts to develop or modify a number of additional

regulations to further limit NOx and VOC emissions in order to reduce

ozone levels.

Particulate Matter

By action dated July 18, 1997, EPA revised the NAAQS for particulate

matter to add new standards for PM2.5.

6 EPA established health and

welfare-based annual and 24-hour PM2.5 standards. Effective December

18, 2006, EPA revised the 24-hour standard to 35 micrograms per cubic

meter.7 On October 8, 2009, EPA designated the New York-N. New

Jersey-Long Island, NY-NJ-CT area as nonattainment for this standard.8

New York has the obligation to reach attainment in this area in 2014.

Fine particles are associated with a number of serious health effects

including premature mortality, aggravation of respiratory and cardiovascular disease, lung disease, decreased lung function, asthma attacks, and

certain cardiovascular problems such as heart attacks and cardiac

arrhythmia. Individuals particularly sensitive to fine particle exposure

include older adults, people with heart and lung disease, and children.

Other Air Quality Implications

Reduced levels of NOx will lead to visibility improvements in many

parts of the eastern United States. Reductions of NOx emissions will also

reduce acidification and eutrophication of water bodies in the region. Acid

deposition has resulted in damage to plant species as well, and attacks

buildings, statues and sculptures by contributing to, and accelerating the

decay of the materials used in the construction of these structures.

COSTS

Costs to Regulated Parties and Consumers

The Department will be requiring plants to conduct an annual burner

tune-up to ensure efficient combustion for the drying and heating process.

Periodic tune-ups are already a common practice because of the fuel savings that can be obtained. This requirement, yielding up to 10 percent

reductions in NOx at an approximate cost of $1,000 per ton reduced, may

have a direct payback to owners from decreased fuel use.

The Department is also requiring facilities to investigate methods to

reduce moisture in aggregate stockpiles. Each plant will be required to

submit its intended practice(s) plan by March 1, 2011. The plant will have

to implement the stated practice(s) that year, if it is an active site, or the

first subsequent year that the plant will be in operation otherwise. The primary ways by which aggregate moisture content could be reduced are by

covering the stockpile, or by paving under and sloping the pile to allow

water to drain away. By reducing the moisture content of the aggregate

before it reaches the dryer, the amount of fuel required to dry and heat the

aggregate can be considerably reduced. This could result in significant

fuel savings for the plant. A technical paper released by Astec, Inc.

enumerates other benefits of paving under a stockpile, and proposes an

example in which a plant could offset the cost of paving under and sloping

its stockpile in five to six months due to savings in materials, fuel, and

loader operation. Any money saved after this payback period would be a

direct benefit.9

Beginning January 1, 2012 (but no later than January 1, 2020) the

Department will also require the owner or operator of an asphalt plant to

investigate the feasibility of installing a low NOx burner when it comes

time for replacement of the burner currently in use. Additionally, a low

NOx burner must be installed at any new asphalt plant. Costs for low NOx

burners vary depending on the burner model and plant characteristics, but

the amount for equipment and installation ranges from approximately

$100,000 up to $250,000. In order to determine economic feasibility, the

cost effectiveness calculation contained in Air Guide 20 will be utilized,

using a threshold that represents the dollar-per-ton value of RACT at the

time the analysis is done.

Costs to State and Local Governments

The department has identified the New York City Department of

Transportation (NYC DOT) and City of Syracuse Department of Public

Works (DPW) as owners of hot mix plants and therefore subject to the

Part 212 revisions. The requirements placed on these municipally-owned

plants under the proposed revisions will not differ in any way from the

requirements placed on other subject plants. Aside from these plants, there

are no direct costs to state or local governments associated with this

proposed regulatory revision, and no additional recordkeeping, reporting,

or other requirements will be imposed on local governments.

The Department believes that this regulation will reduce NOx emissions

from this sector in a manner that will not lead to large increases in the cost

of hot mix asphalt. State, county and local governments represent a large

portion of the customer base for hot mix asphalt plants. For some plants,

the majority of sales are to such entities. These entities should not be

expected to incur excessive additional costs under these new requirements.

Costs to the Regulating Agency

The Department will face some initial labor costs associated with

reviewing the stockpile maintenance plan and permit modification application provided by each hot mix asphalt source by March 1, 2011.

Permits will also need to be modified to include the low NOx burner

requirement for those plants that find the technology feasible. Additional

costs may be minimal, as these permits are already modified and reviewed

periodically. Staff has up to 45 days to review these applications. The

Rule Making Activities NYS Register/June 16, 2010

6
actual number of days required for review will vary depending upon the

configuration of the source and the completeness of the application.

There will be labor costs associated with incorporating the requirements into the facility's permit, and for reviewing and processing the

permit. Associated with this is a cost to publish a public notice for the

permit modification, which varies depending on the scope and location of

the publication(s) that carries the notice.

LOCAL GOVERNMENT MANDATES

The plants owned by the City of Syracuse DPW and NYC DOT will

need to comply with the requirements of Part 212. No additional recordkeeping, reporting, or other requirements will be imposed on local governments under this rulemaking.

PAPERWORK

Each facility is required to submit a plan to the Department by March 1,

2011 which puts forth its plan to reduce moisture in aggregate stockpiles.

The owner or operator at each plant will be required to submit an application to modify their registration or permit to include the new section 212.12

requirements. Each facility is required to analyze the feasibility of installing a low NOx burner when it comes time for the existing burner to be

replaced (though no later than January 1, 2020) and submit its findings to

the Department for approval.

DUPLICATION

Because NOx emissions from minor hot mix asphalt production plants

are being controlled for the first time, the Department does not believe

that duplication of regulatory requirements will be an issue for subject

plants.

ALTERNATIVES

One alternative to the proposed revisions of Part 212 is to take no action.

The Department has an obligation under the ECL and the CAA to develop

programs that protect the air quality in New York State. Controls on minor

hot mix asphalt plants have been identified as technologically feasible and

cost effective for reducing NOx emissions, and will have a positive impact

on lowering ambient ozone and PM2.5 concentrations.

A second alternative is to implement the OTC NOx emission guidelines

only at major facilities. The partial implementation alternative was

rejected because of the insufficient reductions in NOx emissions that

would have been obtained. If the Department were to not regulate minor

asphalt plants, NOx emissions from this source category would continue

to go uncontrolled.

FEDERAL STANDARDS

The addition of control requirements for hot mix asphalt production

plants to Part 212 is necessary to help realize attainment in New York

State's ozone and PM2.5 nonattainment areas by the dates mandated in the

CAA.

COMPLIANCE SCHEDULE

Annual burner tune-ups will be required beginning in 2011 for any plant

in operation. Each plant must also submit a plan to the Department by

March 1, 2011 which details the introduction or continuation of methods

by which to reduce the moisture content of their aggregate stockpile(s).

Such methods must be implemented that year, or the first subsequent year

the plant is in operation. Beginning January 1, 2012, the owner or operator

of a plant must submit an analysis of the economic feasibility of installing

a low NOx burner when it comes time for their current burner to be

replaced. A low NOx burner must be installed in the event that the analysis

proves it to be feasible. Remaining plants must submit the economic feasibility analysis to the Department by January 1, 2020, and install a low

NOx burner that year if it proves feasible. A similar analysis will be

required for subsequent burner replacements. Additionally, a low NOx

burner will be required at any new hot mix asphalt production plant.

——————————— 1 73 FR 16436, published March 27, 2008 2 75 FR 2938, published January 19, 2010 3 74 FR 58688, published November 13, 2009 4 62 FR 38856, published July 18, 1997 5 292 Journal of the American Medical Assn. 2372-78 (Nov. 17, 2004);

170 Am J. Respir. Crit. Care Med. 1080-87 (July 28, 2004) (observing

significant ozone-related deaths in the New York City Metropolitan

Area) 6 62 FR 38652, published July 18, 1997 7 71 FR 61144, published October 17, 2006 8 74 FR 58688, published November 13, 2009 9 Technical Paper T-129, “Stockpiles” by George H. Simmons, Jr. Available on www.astecinc.com.

Revised Regulatory Flexibility Analysis

EFFECTS ON SMALL BUSINESSES AND LOCAL GOVERNMENTS

The New York State Department of Environmental Conservation

(Department) proposes to revise 6 NYCRR Part 212, ‘‘General Process

Emission Sources,’’ to include control requirements for hot mix asphalt

production plants. These control requirements will be specifically aimed

at reducing emissions of oxides of nitrogen (NOx) resulting from combustion during the aggregate drying and heating process. The Department

finds that reducing NOx emissions from hot mix asphalt plants is a necessary step in attaining ambient concentrations of ozone and fine particulate

matter that are in compliance with the national ambient air quality

standards.

The current NOx requirements under Part 212 affect only major

facilities. Most, if not all, hot mix asphalt plants in New York State are

minor sources. These new requirements will therefore be targeted primarily at minor sources. Approximately 200 hot mix asphalt production plants

exist throughout the state, though not all are currently in service. While

some asphalt production plants have consolidated under common ownership, many of these could be considered small businesses.

The Department has identified two local government entities that will

be affected by the proposed requirements of Part 212. The New York City

Department of Transportation (NYC DOT) has been operating a hot mix

plant in Brooklyn, and just recently took over a plant in Queens. The City

of Syracuse Department of Public Works (DPW) also owns a hot mix

plant. The requirements placed on these municipally-owned plants under

the proposed revisions will not differ in any way from the requirements

placed on other subject plants.

COMPLIANCE REQUIREMENTS

The new compliance requirements under Part 212 apply uniformly

statewide. Under the proposed requirements, owners and operators of hot

mix asphalt production plants must comply with NOx reduction practices

and the possible application of low NOx burner control technology. Annual burner tune-ups will be required in order to increase the efficiency of

the dryer burner. Plants will also be required to implement methods of

reducing the moisture content in their aggregate stockpiles, which will

have the effect of requiring less drying time and therefore requiring less

fuel to be burned.

The owners or operators of plants will also be required to analyze the

economic feasibility of installing a low NOx burner when their current

burner is due to be replaced (though no later than 2020). In instances where

it proves feasible, the installation of a low NOx burner will be required.

The cost effectiveness calculation contained in Air Guide 20 will be

utilized, with a threshold that represents the dollar-per-ton value of Reasonably Available Control Technology (RACT) at the time the analysis is

done, in order to determine economic feasibility.

PROFESSIONAL SERVICES

Burner technicians will be utilized to comply with the annual tune-up

requirements. Plant owners or operators will need to obtain low NOx

burner specifications from manufacturers to complete the economic

analysis. In the event that a low NOx burner is found to be economically

feasible, the installation will be performed by burner manufacturer staff.

COMPLIANCE COSTS

The Department will be requiring plants to conduct annual burner tuneups to ensure efficient combustion for the drying and heating process.

Such tune-ups increase the efficiency of the burner, resulting in decreased

fuel use and an associated decrease in emissions of NOx and other

pollutants. Periodic tune-ups are already a common practice because of

the fuel savings that can be obtained. Requiring such tune-ups annually

can yield 10 percent reductions in NOx at an approximate cost of $1,000

per ton reduced, and can have a direct payback to plant owners from

decreased fuel consumption.

The Department is also requiring facilities to investigate the best

method by which to reduce moisture in aggregate stockpiles. This may

simply be a continuation of current practice if such measures are already

being taken. By reducing the moisture content of the aggregate before it

reaches the dryer, the amount of fuel required to dry and heat the aggregate can be considerably reduced. This could result in significant fuel savings for the plant. Costs will vary depending upon the method selected and

the plant's site characteristics, and whether such methods are already

employed. A technical paper released by Astec, Inc. (a manufacturer of

asphalt plant equipment) proposes an example in which a plant with production volume of 150,000 tons per year could offset the cost of paving

under its stockpile in just five to six months due to savings in materials,

fuel, and loader operation.1 Any money saved after this payback period

would be a direct benefit.

Beginning January 1, 2012, the Department will also require the owner

or operator of an asphalt plant to investigate the feasibility of installing a

low NOx burner when it comes time for replacement of the burner currently in use. By January 1, 2020, all plants must have submitted such an

analysis to the Department. Low NOx burners have the potential to reduce

NOx emissions by 25 to 40 percent. The cost effectiveness calculation

contained in Air Guide 20 will be utilized, with a threshold that represents

the dollar-per-ton value of Reasonably Available Control Technology

(RACT) at the time the analysis is done, in order to determine economic

feasibility.

NYS Register/June 16, 2010 Rule Making Activities

7
MINIMIZING ADVERSE IMPACT

Because these proposed requirements are targeted toward minor facilities, a number of small businesses will be affected, as well as the Syracuse

DPW, which owns one plant, and the NYC DOT, which owns two. The

Department is requiring a combination of operating practices and the analysis of control equipment to reduce NOx emissions. In this manner, it

hopes to achieve sufficient NOx reductions while minimizing the effects

on businesses. The annual burner tune-ups and reduction in aggregate

moisture content will reduce NOx at moderate cost while making the plant

operate more efficiently and reduce fuel use. The Department is requiring

plants to utilize the cost effectiveness threshold value for RACT in

conducting the low NOx burner analysis. In instances where the installation of a low NOx burner would be too costly, it would not be required.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION

The proposed addition of NOx control requirements to Part 212 results

from a candidate control measure developed by member states of the

Ozone Transport Commission (OTC). This proposed measure was presented to industry stakeholders at the November 2, 2006 OTC Control

Strategy meeting in Baltimore, MD. These stakeholders were given the

opportunity to express their impressions and concerns of the candidate

control measure. Additionally, a representative from the National Asphalt

Pavement Association was present at the 2006 OTC Fall Meeting in

Richmond, VA, where this proposed measure was also discussed.

The Department held a public comment period for the initially proposed

revisions to Part 212, as well as public hearings on February 8, 9, and 10,

2009, as required by the State Administrative Procedures Act. On February 8, 2010, Department staff met with representatives of the New York

Construction Materials Association, Inc. (NYMaterials) to discuss the

requirements of the proposed revision. The Department is taking into

consideration the comments received during the comment period and the

views of NYMaterials in re-proposing these requirements. The Department will be holding an additional public comment period on these latest

revisions, and will again take any comments received into consideration.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY

The various proposed requirements are all expected to be technically

feasible methods of reducing NOx at hot mix asphalt production plants,

and apply equally to all plants. The annual burner tune-up requirement

comes at a cost of approximately $1,000 per ton of NOx reduced, and the

resulting increase in efficiency can lead to savings in fuel use. Similarly,

the costs expended in performing stockpile maintenance can be recouped

through reduced fuel use, as less energy would be required to dry the

aggregate.

The Department is utilizing a cost threshold to determine the feasibility

of installing low NOx burners when the currently installed burners have

reached the end of their useful life. The low NOx emissions from some

plants may preclude them from finding low NOx burners to be cost effective, though larger plants are likely to see enough of a reduction in NOx to

make the application of such technology economically feasible.

——————————— 1 Technical Paper T-129, “Stockpiles” by George H. Simmons, Jr. Available on www.astecinc.com.

Revised Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS AFFECTED

The New York State Department of Environmental Conservation

(Department) proposes to revise 6 NYCRR Part 212, ‘‘General Process

Emission Sources.’’ The proposed revision will include the addition of

nitrogen oxide (NOx) control requirements for hot mix asphalt production

plants under new section 212.12. Approximately 200 hot mix asphalt production plants exist throughout the state, though not all of these are in

service. All such plants throughout the state will be affected, regardless of

location. Rural areas are not disproportionately affected by these new

control requirements under Part 212.

COMPLIANCE REQUIREMENTS

The new compliance requirements under Part 212 apply uniformly

statewide. Under the proposed requirements, owners and operators of hot

mix asphalt production plants must comply with NOx reduction practices

and the possible application of low NOx burner control technology. Annual burner tune-ups will be required to increase the efficiency of the

dryer burner. Plants will also be required to implement methods of reducing the moisture content in their aggregate stockpiles, which will have the

effect of requiring less drying time and therefore requiring less fuel to be

burned.

Owners and operators of plants will also be required to analyze the economic feasibility of installing a low NOx burner when their current burner

is due to be replaced (though no later than 2020). In instances where it

proves feasible, the installation of a low NOx burner will be required. This

analysis will utilize the cost effectiveness calculation contained in the

Department's Air Guide 20 guidance document. Additionally, a low NOx

burner will be required at any new hot mix asphalt production plant.

COSTS

The Department will be requiring plants to conduct an annual burner

tune-up to ensure efficient combustion for the drying and heating process.

Such tune-ups increase the efficiency of the burner, resulting in decreased

fuel use and an associated decrease in emissions of NOx and other

pollutants. Periodic tune-ups are already a common practice because of

the fuel savings that can be obtained. Requiring such tune-ups annually

can yield 10 percent reductions in NOx at an approximate cost of $1,000

per ton reduced, and can have a direct payback to plant owners from

decreased fuel consumption.

The Department is also requiring facilities to investigate the best

method by which to reduce moisture in aggregate stockpiles. This may

simply be a continuation of current practice if such measures are already

being taken. By reducing the moisture content of the aggregate before it

reaches the dryer, the amount of fuel required to dry and heat the aggregate can be considerably reduced. This could result in significant fuel savings for the plant. Costs will vary depending upon the method selected and

the plant's site characteristics, and whether such methods are already

employed. A technical paper released by Astec, Inc. (a manufacturer of

asphalt plant equipment) proposes an example in which a plant with production volume of 150,000 tons per year could offset the cost of paving

under its stockpile in just five to six months due to savings in materials,

fuel, and loader operation.1 Any money saved after this payback period

would be a direct benefit.

Beginning January 1, 2012, the Department will also require the owner

or operator of an asphalt plant to investigate the feasibility of installing a

low NOx burner when it comes time for replacement of the burner currently in use. By January 1, 2020, all plants must have submitted such an

analysis to the Department. Low NOx burners have the potential to reduce

NOx emissions by 25 to 40 percent. The cost effectiveness calculation

contained in Air Guide 20 will be utilized, with a threshold that represents

the dollar-per-ton value of Reasonably Available Control Technology

(RACT) at the time the analysis is done, in order to determine economic

feasibility.

MINIMIZING ADVERSE IMPACT

The Department does not expect any adverse impacts on rural areas.

Because the proposed asphalt plant requirements are applicable to sources

statewide, no rural area will be affected disproportionately.

The Department is requiring a combination of operating practices and

the analysis of control equipment to reduce NOx emissions. In this manner, it hopes to achieve sufficient NOx reductions while minimizing the

effects on businesses. The annual burner tune-ups and reduction in aggregate moisture content will reduce NOx emissions at moderate cost while

making the plant operate more efficiently and reducing fuel use. The

Department is requiring plants to utilize the cost effectiveness threshold

value for RACT in conducting the low NOx burner analysis. In instances

where the cost of installation of a low NOx burner would exceed the RACT

threshold, the installation of such equipment would not be required.

There will be positive environmental impacts from the regulation in rural areas. Rural areas containing applicable sources, as well as rural areas

downwind of such sources, should be subject to a decrease in ground-level

ozone, airborne particulate matter, and acid deposition due to the reduction in NOx emissions.

RURAL AREA PARTICIPATION

The proposed addition of NOx control requirements to Part 212 results

from a candidate control measure developed by member states of the

Ozone Transport Commission (OTC). This proposed measure was presented to industry stakeholders at the November 2, 2006 OTC Control

Strategy meeting in Baltimore, MD. These stakeholders were given the

opportunity to express their impressions and concerns of the candidate

control measure. Additionally, a representative from the National Asphalt

Pavement Association was present at the 2006 OTC Fall Meeting in

Richmond, VA, where this proposed measure was also discussed.

The Department held a public comment period for the initially proposed

revisions to Part 212, as well as public hearings on February 8, 9, and 10,

2009, as required by the State Administrative Procedures Act. On February 8, 2010, Department staff met with representatives of the New York

Construction Materials Association, Inc. (NYMaterials) to discuss the

requirements of the proposed revision. The Department is taking into

consideration the comments received during the comment period and the

views of NYMaterials in re-proposing these requirements. The Department will be holding an additional public comment period on these latest

revisions, and will again take any comments received into consideration.

——————————— 1 Technical Paper T-129, “Stockpiles” by George H. Simmons, Jr. Available on www.astecinc.com.

Revised Job Impact Statement

NATURE OF IMPACT

The New York State Department of Environmental Conservation

Rule Making Activities NYS Register/June 16, 2010

8
(Department) proposes the addition of nitrogen oxide (NOx) control

requirements for hot mix asphalt production plants under 6 NYCRR Part

212, ‘‘General Process Emission Sources.’’ The proposed requirements

under new section 212.12 seek NOx reductions through operational practices and equipment upgrades. Plants throughout the state will be required

to perform annual burner tune-ups, which can yield 10 percent reductions

in NOx at an approximate cost of $1,000 per ton reduced. Plants will also

be required to submit to the Department a plan for reducing moisture

content in aggregate piles, resulting in less energy being used in the dryer

and an associated reduction in NOx. These requirements can lead to a beneficial fuel savings for the plant. The Department will also require that,

when their current burner has reached the end of its useful life (starting in

2012, but no later than 2020), plant owners must analyze the economic

feasibility of installing a low NOx burner. Low NOx burners have the

potential to reduce NOx emissions by 25 to 40 percent, and come at approximately double the cost of non-low NOx models. The Department will

utilize a cost effectiveness calculation similar to that contained in Air

Guide 20, with a threshold that represents the value of RACT at the time

the analysis is done, in order to determine economic feasibility. Additionally, a low NOx burner will be required at any new hot mix asphalt production plant.

The Department believes that the proposed NOx control requirements at

hot mix asphalt production plants are necessary components of the ozone

and PM2.5 state implementation plans. This control strategy is an outgrowth of ongoing efforts by the Ozone Transport Commission (OTC) to

reduce ground-level ozone. At the June 7, 2006 OTC Annual Meeting,

OTC member states adopted Resolution 06-02 which set forth guidelines

for emission reduction strategies for six source sectors, including asphalt

production plants. OTC member states felt that controlling these sources

was an effective strategy for the reduction of NOx, and could be done

without negatively impacting the success of the industry. The Department's proposed revisions, combining best practices which may have a

payback to owners and a technical control analysis which utilizes a cost

effectiveness threshold, are not expected to have excessive costs resulting

in a substantial adverse impact on jobs or employment opportunities in

New York State.

CATEGORIES AND NUMBERS OF JOBS OR EMPLOYMENT OPPORTUNITIES AFFECTED

The revisions to Part 212 are not anticipated to have any long-term effects on the number of current jobs or future employment opportunities. In

order to comply with the control requirements, subject facilities may be

required to purchase and install a low NOx burner. To prevent a source

from adopting excessively expensive controls, an economic feasibility

analysis will be used to determine if a low NOx burner is appropriate.

Increased demand for burner technicians may result from the requirement

for annual tune-ups contained in the proposed revisions.

REGIONS OF ADVERSE IMPACT

The addition of control requirements for hot mix asphalt production

plants under section 212.12 applies statewide. Because these sources are

not concentrated heavily in any particular part of the state, these new

requirements do not impact any region or area of New York State

disproportionately in terms of jobs or employment opportunities.

MINIMIZING ADVERSE IMPACT

The owner or operator of a hot mix asphalt production plant will be

required to analyze the economic feasibility of installing a low NOx burner

when it comes time for replacement of the burner currently in use. By

utilizing a specific cost threshold for this analysis, the Department is ensuring that the applicable facility does not undergo any excessive costs which

may adversely impact its ability to operate. Allowing plants until 2020 to

investigate the feasibility of a low NOx burner will ensure that no company

will be forced to immediately replace a burner that has just recently been

installed. By reviewing these assessments on a case-by-case basis, the

Department avoids placing uniform standards on all asphalt plants, which

could potentially lead to extraneous costs in many instances.

Owners or operators will be required to perform an annual burner

tune-up beginning in 2011. This control method is expected to come at

reasonable cost, and a portion of this cost would potentially be offset with

a resulting increase in fuel efficiency. Owners or operators must also

develop a plan by which to reduce moisture content in aggregate piles, the

result of which would be decreased dryer operation. This NOx reduction

method could likewise have a direct payback to the plant due to potential

fuel savings of approximately 10 to 15 percent.

SELF-EMPLOYMENT OPPORTUNITIES

The revisions to Section 212.10 are not expected to affect selfemployment opportunities. The case-by-case nature of the low NOx burner

cost analysis seeks to prevent any excessive expenditure on NOx control

equipment which would affect such opportunities.

Assessment of Public Comment

The New York State Department of Environmental Conservation

(Department) is proposing to revise 6 NYCRR Part 212, General Process

Emission Sources, to add new section 212.12, Hot mix asphalt production

plants. This regulatory revision is for the purpose of reducing emissions of

oxides of nitrogen (NOx) from these asphalt plants in order to comply with

the increasingly stringent ozone National Ambient Air Quality Standards

(NAAQS).

The Department proposed the revisions to Part 212 on December 23,

2009. Hearings were held in Avon on February 8, 2010, in Albany on February 9, 2010, and in Long Island City on February 10, 2010. The comment period closed at 5:00 p.m. on February 17, 2010. The Department

received written and oral comments from 11 commenters on the proposed

revisions. All of the comments have been reviewed, summarized, and

responded to by the Department.

A number of commenters felt that NOx emissions from the hot mix

asphalt (HMA) industry were too insignificant to regulate. They cited that

only approximately 0.10 percent of annual statewide NOx emissions are

from this source category. Furthermore, the economic downtrend has

naturally curbed production, and therefore NOx emissions, over the last

couple years. The Department is taking action to control emissions from

these plants because of the widespread ozone issues throughout New York

and the northeast region. The United States Environmental Protection

Agency (EPA) is scheduled to declare its new ozone NAAQS in August,

2010. The Department currently expects that the majority of New York

State will be designated as nonattainment for this standard. New York

State is a member of the Ozone Transport Commission (OTC) which, after a lengthy review process, identified the HMA industry as a source of

adequate potential NOx reductions. Because of the current and impending

nonattainment areas in New York State which require emission reductions

to meet safe ozone levels prescribed by the NAAQS, the Department is

taking action to regulate emissions from these HMA plants, along with the

other source categories identified by the OTC.

While NOx emissions from this source category may represent a small

portion of the overall annual NOx emissions in New York State, the vast

majority of hot mix operations occur during the summer, and particularly

on hot, sunny days. This differs from industries or sources that have emissions year-round (e.g., motor vehicles, power generating plants, other

industry). Although HMA emissions may be lower than those other source

categories on an annual basis, production is concentrated during those

times when NOx emissions are most inclined to react with other precursors to form ozone. It is due to these disproportionate ozone season emissions that the Department has followed OTC's proposal to impose NOx

reduction requirements. In addition, as the economy rebounds from its

recession and federal, state, county and local governments are able to

make greater expenditures for roadway and infrastructure improvements,

HMA production (and associated NOx emissions) will again increase.

Many commenters noted the high costs and short timeframe for the new

control requirements, which would primarily include an analysis of the

technical and economic feasibility of low NOx burners and flue gas

recirculation (FGR). The FGR assessment has been removed as a requirement in the re-proposal. The Department has also extended the compliance time for a low NOx burner assessment through 2020. As with the

initial proposal, in order to manage costs incurred by plants, the Department is utilizing a cost-per-ton threshold equal to that used for Reasonably

Available Control Technology (RACT). The use of this RACT threshold,

currently valued at $5,500 per ton of NOx reduced, will prevent HMA

plants (especially smaller and more efficient plants) from making large

capital expenditures when emissions would be low enough so as to prevent

such controls from being cost-effective. The Department is also instituting

best practice methods of reducing NOx, as suggested in the comments by

the National Asphalt Pavement Association (NAPA) to OTC and by the

New York Construction Materials Association (NYMaterials). These

requirements will include annual tune-ups to ensure efficient operation of

the burner, and stockpile maintenance to reduce the moisture content of

the aggregate being sent to the dryer. These approaches will reduce fuel

use and associated NOx emissions at reasonable cost, potentially with a

net savings.

Commenters noted that there were additional costs of compliance which

were not discussed in the Regulatory Impact Statement (RIS). These

included costs associated with plant closures, dryer burners that have already been replaced in recent years, reduced fuel efficiency attributable to

low NOx burners, additional equipment which will require more maintenance, related costs with FGR installation, and the potential de-rating of

plants due to low NOx burners. The Department has addressed these

concerns in the re-proposal and has revised its position on low NOx burners, has removed the FGR analysis requirement, and has added a discussion regarding the other concerns in the revised RIS.

Because a large portion of HMA sales are to state, county, or local

governments, some commenters were concerned that the costs of compliance would necessarily be passed to these entities and eventually to

taxpayers. The Department has included compliance methods in the reproposal that will reduce NOx emissions from the sector in a manner that

NYS Register/June 16, 2010 Rule Making Activities

9
will not lead to large increases in the cost of HMA. State, county and local

governments should not be expected to incur excessive additional costs

under these new requirements.

Some commenters expressed the difficulty the industry would have in

meeting the compliance date of the original proposal, particularly due to

the uniqueness of plants and the configuration of new technologies that

would have to be assessed at each site. The Department has included a

prolonged compliance period in the re-proposal.

Commenters were concerned about the consistency with which the

control technology assessment would be reviewed and interpreted by the

Department's regional offices. They cited a lack of reconciliation

procedures if the owner and Department disagree on the outcome of the

control technology analysis. The Department has also not provided a definition of ‘‘low NOx burner’’ or stated specific emission rate targets, which

could add to inconsistency. In the re-proposal, the control technology assessment has been simplified to an economic feasibility analysis for a low

NOx burner. For consistency in the economic feasibility test, the Department will utilize the approach contained in its Air Guide 20 guidance document and the value of Reasonable Available Control Technology (RACT)

at the time the analysis is done. Burner manufacturers contacted by the

Department have dedicated models which they refer to as ‘‘low NOx,’’

which should remove ambiguity. Department staff will also be encouraged to share information on which burners get approved as being ‘‘low

NOx.’’ If the plant owner and Department staff differ in their interpretation of the results of the assessment, the parties will work together in an

effort to reach a common conclusion as is the case with most of the Department air pollution control requirements.

A comment was received that the Department should not require plants

to operate with natural gas to reduce NOx emissions, as not all sites are

serviced by natural gas and the cost of new infrastructure at these plants

would be exorbitant. The Department had never intended to use this as a

requirement, and clarifying language has been added to the RIS to that

effect.

It was noted by commenters that some HMA plants maintain active

permits yet are non-operational for long periods of time. They noted that

the proposed regulations do not offer stipulations for such plants, and suggested that inactive plants be exempted from the control technology assessment until they are scheduled for reactivation. The Department has

included conditions in the revised express terms to account for inactive

plants.

Numerous commenters discussed how, in the last five years, the

industry has made concerted efforts to develop and promote the use of

warm mix asphalt (WMA), which heats the aggregate to temperatures approximately 35 percent lower than traditional HMA and reduces fuel

consumption by approximately 25 percent and NOx emissions by 34

percent. The industry expects to see increased use of WMA over the next

few years as it becomes more commonly accepted for large paving

projects. Commenters noted that the use of WMA will reduce emissions

without a large capital investment, will reduce fuel consumption and will

not greatly affect blacktop costs.

The Department finds the potential growing use of WMA to be

encouraging, and recognizes that the industry will naturally devote more

and more of its production to WMA as its use becomes accepted for a

greater number of projects. The New York State Department of Transportation (NYSDOT) is still conducting testing on the use of WMA to ensure

that it can be used as a suitable replacement for HMA on large jobs, and

handle the most severe weather and traffic conditions. Because NYSDOT

has yet to finalize its specifications for WMA and define where it can be

acceptably applied, the Department is unable to explicitly require its production and use; WMA will likely have varying levels of demand in different parts of the state as well, further complicating any attempts to

regulate its use. The Department encourages its expanded production when

possible. However, the Department is retaining the requirement for a low

NOx burner analysis in the re-proposal because NOx emissions from the

largest plants will likely remain high enough to justify the installation of a

low NOx burner.

In light of the low levels of NOx emissions from this source category,

commenters stated that the Department should focus on regulating NOx

emissions from larger sources to achieve compliance with the ozone

NAAQS. The Department is currently undertaking a number of additional

rulemakings to seek NOx and volatile organic compound (VOC) reductions from other sources for the purpose of attaining the NAAQS. This

includes the other source categories identified in the OTC's Resolution

06-02. The Department has determined that it is necessary to regulate

smaller and smaller sources to obtain adequate reductions of ozone precursors so that air quality in all areas of New York State can reach healthy

levels within the NAAQS.

Citing reasons such as excessive cost and minimal reductions in NOx

emissions, a couple of commenters recommended that the regulation be

withdrawn. Others called for a review of more practical options of NOx

control from HMA. In the latter case, it was suggested that the Department

work with NYMaterials, which represents many HMA plants throughout

the state, to identify alternative compliance methods which achieve more

cost-effective NOx reductions. The Department explains in the ‘‘Alternatives’’ section of the RIS why the ‘‘no action’’ option is not practicalnamely, that these emission reductions are necessary to aid in reaching attainment of the ozone NAAQS. In considering alternative compliance

options for the re-proposal, the Department has been having discussions

with NYMaterials, beginning with a meeting at the Department's central

office on February 8, 2010. These conversations have been very productive and helpful for the purposes of this re-proposal.

One commenter claimed the proposed language did not go far enough

in separating cases where application of RACT requirements would serve

the important purpose of NOx reduction from cases where application of

RACT would be wasteful. For cases where low emission rates have been

achieved without the use of a low NOx burner, the commenter felt an

economical and technical analysis along with the permit modification

would be onerous, and that provisions for annual tune-ups and stockpile

management should be sufficient. The Department is taking steps in its reproposal to manage the costs to small, well-managed plants. Investigation

of controls beyond low NOx burners is no longer a requirement. For

example, the economic analysis required for the installation of a low NOx

burner will prevent such small and efficient plants from installing equipment which will lead to minimal emission reductions, because the costper-ton figure for these plants would exceed the threshold established as

RACT. Annual burner tune-up and stockpile management requirements

have been included in the re-proposal.

A commenter noted that the HMA provisions should be expanded to

apply to all plants throughout the state, as the applicability was currently

limited by subdivision 212.10(a). The re-proposal applies to all HMA

plants throughout the state.

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

Limiting Emissions of Volatile Organic Compounds (VOCs) from

Commercial and Industrial Adhesives, Sealants and Primers

I.D. No. ENV-51-09-00010-RP

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action: Amendment of Parts 200 and 228 of Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, sections 1-0101,

1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0305, 71-2103

and 71-2105

Subject: Limiting emissions of Volatile Organic Compounds (VOCs)

from commercial and industrial adhesives, sealants and primers.

Purpose: To continue making progress towards reducing the eight hour

ozone levels for New York's designated nonattainment areas.

Substance of revised rule: 6 NYCRR Part 228 is being renumbered as

Subpart 228-1. Internal references in the existing Part are being revised to

reflect this renumbering. 6 NYCRR Part 200.9 is being amended to include

documents incorporated by reference in new Subpart 228-2 and to reflect

the renumbering of existing Part 228.

The addition of 6 NYCRR Subpart 228-2, Commercial and Industrial Adhesives, Sealants and Primers, and its associated references in

Part 200, General Provisions, applies to any person who sells, supplies, offers for sale, or manufactures commercial or industrial

adhesives, sealants and primers, three months after the effective date

of this rule, for use in the State of New York. Subpart 228-2 does not

apply to: any commercial or industrial adhesive, sealant or primer

manufactured in New York State for shipment and use outside of New

York State, or units of any adhesive, sealant or primer product, less

packaging, which weigh less than one pound and consist of less than

16 ounces.

The revisions are based on the Ozone Transport Commission (OTC)

2006 model rule for commercial and industrial adhesives and sealants,

which, in turn, is based on the reasonably available control technology

(RACT) and best available retrofit control technology (BARCT) determination by the California Air Resources Board (CARB) developed

in 1998. In addition, the proposed rule incorporates EPA recommendations contained in its Control Technique Guidelines (CTG) document

released in 2008 entitled, ‘‘Control Technique Guidelines for Miscellaneous Industrial Adhesives’’ (EPA 453/R-08-005), including adheRule Making Activities NYS Register/June 16, 2010

10