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 forcontinued 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 (NO

x

### ) 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 (NO

x) emission reduction practices and potential controls for hot mix asphalt production plants. Purpose: To reduce NO

x 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 Text of revised rule: Existing section 212.1 is repealed.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 NO

x 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 systemand 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 inwhich 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 mixasphalt production plant must analyze the economic feasibility of installing a low NO

x 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 NO

x burner. A low NO

x 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 NO

x 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 AUTHORITYThe 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 (NO

x) 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 forthguidelines 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 NO

x reduction requirements through best practices and the potential application of low NO

x burner technology in line with the recommendations of OTC.

LEGISLATIVE OBJECTIVESThe legislative objectives underlying the above statutes are directed toward protection of the environment and public health. NO

x emissions contribute to the formation of both ozone and particulate matter in ambientair. 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 NO

x reductions in 2011 via burner tune-ups and stockpile maintenance. Emission reductions will continue as facilities consider low NO

x burner replacements beginning in 2012. This rule will therefore benefit any nonattainment area relying on NO

x reductions in 2011. This includes the 1997 eight-hour ozone nonat

## NYS 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, thetransition 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 forground-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 NO

x acts as a precursor to particulate matter, the reduction in NO

x resulting from this rule revision will assist in this area meeting its attainment deadline of 2014.

NEEDS AND BENEFITSBecause most asphalt paving operations are performed during the summer months, NO

x emissions from these sources are more likely to react with volatile organic compounds (VOCs) in the summer heat to form ground-level ozone. NO

x 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 NO

x 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 NO

x emissions in the state, production is concentrated during those times when NO

x emissions are most inclined to react with other precursors to form ozone.

Reducing the NO

x 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 neededfor 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 isexpected to be finalized by EPA in August, 2010. During paving operations in cooler months, NO

x 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 NAAQSwhich 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 NewYork State to develop and implement enforceable strategies to bring nonattainment areas into attainment with the 1997 eight-hour standard by certaindeadlines. 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, reducedgrowth 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 ofornamental 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 NO

x 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 PM 2.5 . 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 effectsincluding 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 NO

x will lead to visibility improvements in many parts of the eastern United States. Reductions of NO

x 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 NO

x 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 thefirst 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 NO

x burner when it comes time for replacement of the burner currently in use. Additionally, a low NO

x burner must be installed at any new asphalt plant. Costs for low NO

x 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 NO

x 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 withreviewing 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 NO

x 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 

## NYS Register/June 16, 2010 Rule Making Activities

**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 willneed 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 212.12requirements. Each facility is required to analyze the feasibility of installing a low NO

x 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 NO

x 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 NO

x emissions, and will have a positive impact on lowering ambient ozone and PM2.5 concentrations.

A second alternative is to implement the OTC NO

x emission guidelines only at major facilities. The partial implementation alternative was rejected because of the insufficient reductions in NO

x emissions that would have been obtained. If the Department were to not regulate minor asphalt plants, NO

x 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 NO

x burner when it comes time for their current burner to be replaced. A low NO

x burner must be installed in the event that the analysisproves it to be feasible. Remaining plants must submit the economic feasibility analysis to the Department by January 1, 2020, and install a low NO

x burner that year if it proves feasible. A similar analysis will be required for subsequent burner replacements. Additionally, a low NO

x 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 (NO

x) resulting from combustion during the aggregate drying and heating process. The Department finds that reducing NO

x 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 NO

x requirements under Part 212 affect only major facilities. Most, if not all, hot mix asphalt plants in New York State areminor 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. Whilesome 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 NO

x reduction practices and the possible application of low NO

x 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 NO

x 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 NO

x burner will be required. The cost effectiveness calculation contained in Air Guide 20 will beutilized, 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 NO

x burner specifications from manufacturers to complete the economic analysis. In the event that a low NO

x burner is found to be economically feasible, the installation will be performed by burner manufacturer staff.

COMPLIANCE COSTSThe 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 NO

x 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 NO

x 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 itreaches 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 ofasphalt 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 NO

x 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 NO

x burners have the potential to reduce NO

x 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 IMPACTBecause 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. TheDepartment is requiring a combination of operating practices and the analysis of control equipment to reduce NO

x emissions. In this manner, it hopes to achieve sufficient NO

x reductions while minimizing the effects on businesses. The annual burner tune-ups and reduction in aggregate moisture content will reduce NO

x 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 NO

x burner analysis. In instances where the installation of a low NO

x burner would be too costly, it would not be required.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION

The proposed addition of NO

x control requirements to Part 212 results from a candidate control measure developed by member states of theOzone 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 theviews 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 NO

x 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 NO

x 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 NO

x burners when the currently installed burners have reached the end of their useful life. The low NO

x emissions from some plants may preclude them from finding low NO

x burners to be cost effective, though larger plants are likely to see enough of a reduction in NO

x 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 (NO

x) control requirements for hot mix asphalt productionplants 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 NO

x reduction practices and the possible application of low NO

x burner control technology. Annual burner tune-ups will be required to increase the efficiency of thedryer 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 NO

x 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 NO

x 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 NO

x 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 NO

x 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 NO

x 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 itreaches 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 ofasphalt 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 NO

x 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 NO

x burners have the potential to reduce NO

x 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 NO

x emissions. In this manner, it hopes to achieve sufficient NO

x reductions while minimizing theeffects on businesses. The annual burner tune-ups and reduction in aggregate moisture content will reduce NO

x 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 NO

x burner analysis. In instances where the cost of installation of a low NO

x 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-levelozone, airborne particulate matter, and acid deposition due to the reduction in NO

x emissions.

RURAL AREA PARTICIPATION The proposed addition of NO

x control requirements to Part 212 results from a candidate control measure developed by member states of theOzone 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 theviews 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 

## NYS Register/June 16, 2010 Rule Making Activities

**8**(Department) proposes the addition of nitrogen oxide (NO

x) 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 NO

x 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 NO

x 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 NO

x . 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 NO

x burner. Low NO

x burners have the potential to reduce NO

x emissions by 25 to 40 percent, and come at approximately double the cost of non-low NO

x 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 timethe analysis is done, in order to determine economic feasibility. Additionally, a low NO

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

The Department believes that the proposed NO

x 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 NO

x , and could be donewithout 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 NO

x burner. To prevent a source from adopting excessively expensive controls, an economic feasibility analysis will be used to determine if a low NO

x 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 NO

x burner when it comes time for replacement of the burner currently in use. Byutilizing 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 NO

x 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 NO

x reduction method could likewise have a direct payback to the plant due to potential fuel savings of approximately 10 to 15 percent.

SELF-EMPLOYMENT OPPORTUNITIESThe revisions to Section 212.10 are not expected to affect selfemployment opportunities. The case-by-case nature of the low NO

x burner cost analysis seeks to prevent any excessive expenditure on NO

x 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 (NO

x) 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 NO

x emissions from the hot mix asphalt (HMA) industry were too insignificant to regulate. They cited that only approximately 0.10 percent of annual statewide NO

x emissions are from this source category. Furthermore, the economic downtrend has naturally curbed production, and therefore NO

x 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 YorkState 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 NO

x 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 NO

x emissions from this source category may represent a small portion of the overall annual NO

x emissions in New York State, the vast majority of hot mix operations occur during the summer, and particularlyon 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 NO

x 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 NO

x 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 NO

x 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 NO

x burners and flue gasrecirculation (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 NO

x burner assessment through 2020. As with theinitial 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 NO

x 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 NO

x, 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 NO

x 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). Theseincluded costs associated with plant closures, dryer burners that have already been replaced in recent years, reduced fuel efficiency attributable to low NO

x burners, additional equipment which will require more maintenance, related costs with FGR installation, and the potential de-rating of plants due to low NO

x burners. The Department has addressed these concerns in the re-proposal and has revised its position on low NO

x 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 localgovernments, some commenters were concerned that the costs of compliance would necessarily be passed to these entities and eventually totaxpayers. The Department has included compliance methods in the reproposal that will reduce NO

x 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 thecontrol technology analysis. The Department has also not provided a definition of ‘‘low NO

x burner’’ or stated specific emission rate targets, whichcould add to inconsistency. In the re-proposal, the control technology assessment has been simplified to an economic feasibility analysis for a low NO

x 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 NO

x ,’’which should remove ambiguity. Department staff will also be encouraged to share information on which burners get approved as being ‘‘low NO

x .’’ If the plant owner and Department staff differ in their interpretation of the results of the assessment, the parties will work together in aneffort 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 NO

x 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 thatthe 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 ofwarm 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 NO

x 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 agreater 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 beacceptably 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 NO

x burner analysis in the re-proposal because NO

x emissions from the largest plants will likely remain high enough to justify the installation of a low NO

x burner.

In light of the low levels of NO

x emissions from this source category, commenters stated that the Department should focus on regulating NO

x emissions from larger sources to achieve compliance with the ozone NAAQS. The Department is currently undertaking a number of additional rulemakings to seek NO

x 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 regulatesmaller 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 NO

x emissions, a couple of commenters recommended that the regulation be withdrawn. Others called for a review of more practical options of NO

x 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 NO

x 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 centraloffice 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 NO

x 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 NO

x 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 stockpilemanagement 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 NO

x burners is no longer a requirement. For example, the economic analysis required for the installation of a low NO

xburner 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 inPart 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) developedin 1998. In addition, the proposed rule incorporates EPA recommendations contained in its Control Technique Guidelines (CTG) documentreleased in 2008 entitled, ‘‘Control Technique Guidelines for Miscellaneous Industrial Adhesives’’ (EPA 453/R-08-005), including adhe

## NYS Register/June 16, 2010 Rule Making Activities

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