### 6 \IYCRR Part 200 General

Provisions,Partz}l Permits andRegistrations,

and Part 231 New Source

Review forNew andModified Facilities Assessment

of PublicComments

Summary Comments

Received

Septanber

24,2008 through October 24,2008

The New York StateDepartment of Environmental

Conservation

(Departmeng

is proposing

to amend existing6 New York Codeof Rulesand Regulations QTTYCRR)

Parts 200 (General

Provisions),zll(Permits andRegistrations),

and231 (New Source

Rwiew In Nonattainrnent AreasandOzone:Transport Regions).

The amendments

to Part200 adda defihitionfor Routine Maintenance

Repair or Replacernent,

amend the definition of potential-to-anit, and remove the referenceto delegationof the federal Prevention of Significant ' Deterioration

(PSD) requirements.

The amendment

to Part 201modifiesthe definitioh for Major Stationary Source. Existing Palt 23i will be re-titled as New Source Reviewfor New and Modified Facilitiesandwill include new Subparts

231-3 through 231-13. TheexistingPart23lregulations (Subparts

23I-l and,23l-2)

are being retained

with only modification

of applicability

dates. The new Subparts will implement

nonattainment, andattainment

(PSD) New Source

Review. The Departrnent's

proposed

amendments

to 6 NYCRR Parts

200, 201, and 231 werepublished in .the State Register on September

26, 2007. The Deparhnent's pioposed

amendments

havebeenrevised

to address public comments

received on the Department's

Septemb er 26,2007

proposal,

Department

initiatedrevisions

to the Septemb

er 26,2007proposal,

and EPA's final "reasonable possibility''rule for insignificant modifications promulgated

on Decern

ber 21,2007

. The Department's

re-proposed

amendments

to 6 NYCRR Parts 200,201, and231were

published

in the State

Register on Septanber

24,2008. The comment periodclosed

on October 24,2008. The Deparbnent received written comments

from 1l different

commenters

regarding

the re-proposed regulation. All of the comments havebeenreviewed,

summarized

and responded

to by the Deparhnent

in its Assessment

of PublicComments

document.

Page

I of8

### Gorerally, the commenters

upported

the Department's

effortto revise

its new source

review regulations : 

### and adopt a State PSD program. However, all commenters, including industry and environmental

t organizations, expressed opposition to various aspectsof the proposed amendmentsfor a variety of reasons. The comments covered a number of topics including, regulatory efficiency, technical concerns, economic impacts, perceived inconsistencies with the Environmental Conservation Law (ECL) and the Clean Air Act (CAA), and legal concerns. The proposed.definition for routine maintenance,repair, or replacqmentwas addedto Part 200 to clarify

an existing federal regrilatory exemption from the definition of "modification'2 for those aetivities that involve "routine maintenance,repair, or replacement" (RMRR). Many iommenterr'"*pr"rr"d concern regarding the Departrnent's proposal to establish a definition for "Routine Maintenance, Repair, or Replacement" in Part 200.1(c1). While supporting the RMRR exernption, these cqmmenters characterizedthe definition as being vague and unworkable. Thesecommenters expressed

concernwith the Department's use in the definition of the words "generally''and "typically''.and requested further definition of thoseterms.. Other commenters took issue with the indication that RMRR is "typically paid for out of the operation and maintenance(O and M) budget of the facility." The RMRR definition mentions sowces of funding in order to differentiate between operation and maintenancebudgets,which would likely have funds specifically set aside for routine replacements, and those capital expenditureswhich would be more indicative of non-routine activities. The proposed regulation dbes not establish a presumptive exclusion from the definition of modification for those activities financed from a capital budget, or establisha brightJine for treating O and M expenses as RMRR. The sourceof funding is one of several criteria to considerwhen characterizing an activity as routine or non-routine. Commenters also stated that the RMRR definition, as proposed, could limit the availability and reliability of the equipment at their facilities, and that any project, including maintenance activities, could be consideredas life extending and therefore not meet the definition of RMRR. Most comrnenters requested

that the definition be eliminated completely or revised to inciude additional clarification of the'terms contained in Page 2 of 8the definition. To address coqrmenters concetrns, the Deparfinent has revised the definitign to clari$ the meaning of RMRR. The proposed Part 231 definition states that the Department will continue to review activities on a case-by-case basis as has beenthe established practice. A comment was received regarding the.proposed definition of "major stationary source" in Paragraph 2012.1@)(21). The commenter correctly states that the Departnent intends to use the proposeddefinition for implemgnting the major NSR requirementsin Fart 231 as well as the Title.V permitting requirementsin Part 201. fiie commenterbelieves that the proposeddefinition could lead to confusion when the definition is relied upon for implemenling Part 231 becausethe 250 tpy major facility threshold that applies in attainment or unclassified areas,

for sources

that 4re not in a listed sourcecategory, is not referenced. The Deparhnent agrees with the commenter's concern. To address thisissue, the Deparhnentwill revis-e the proposeddefinition. A comment was received regarding the Department's mandated use, by reference, of Departmental "policy'' documents with regard to air quality impact analyses. Concern was stated that referencesto such guidance and policy are construedas establishingbinding and enforceable siandards. During the formulation of the draft Part23l rule, the air quality impact analysis procedures referred to were proposedfor public comment

on March 8, 2006 and finalized as DAR-10 in the Environmental Notice Bulletin on May 24,2006 after minor public commentswere received. DAR-10 is titled "NYSDEC Guidelines on Dispersion Modeling Procedures for Air Quality Impact Analysis." In accordance with Section 3-0301(z) of the Environmental Conservation Law, the Deparhnent must make available for public notice, and in appropriate cases public comment, all guidance memoranda and similar documents of general appiicability which provide guidance to the general public in complying with the Environmental Conservation Law and its regulations. The purpose of DAR.I0 is to provide guidanceto the regulated community as to what methods will be consideredacceptable approaches for dispersion modeling methodologiesand related air analysisprocedures Severalcommentswere received regarding the Deparhnent's proposal to continue with a singli: baseline period for all regglated NSR contaminants for a single project. The commenterson this issue requested that Page 3 of8multiple baselinesbe allowed for a single project, indicating that the Department is overly restrictive compared to the EPA, limiting the ability of a facility to account for variability in production rates, fuels and raw materials. The use of multiple baselinescould result in a facility selecting several different baseline periods to maximize the determination of past actual emissions for several different pollutants. The Department believes this could creatl an artificially high profile of baseline actual ernissions which in fact were never emitted by the facility (or emission source) and, in extreme cases, could never be achieved by the facility in actual operation. With higher baseline emissions during a particular two-year period, a proposed project could possibly avoid being subject to NSR for those pollutants as a result of selecting that baseline period. The result of this is the potential for a project that would otherwise be considered major except for the artificially high baselineto either "cap out" or 'lnet out" of NSR. This would cause an increase in emissions that would exacerbate air quality problerns in New York State. The Deparbnent has determinedthat a single baseline period for a specific project is more appropriatefor New York's NSR program. The use of a single baseline period assures that a propos.ed project is basedon an actual operating scenario and not an artificially high emissionsbaseline. The Department will not rnake the requested change. Comments were received regarding the Department's proposal to allow a baseline period of five years for determining baseline actual emissions. The Departrnent's proposal allows the determination of baseline actual emissions by calculating pre-change emissions based on actual emissions during any 24 consecutive months within the five years immediately preceding the change. The commenters requested that the proposed baseline period be consistent'with the current Federal baseline period (10 year look:back) provisions that allow the determination of baseline actual emissions by calculating pre-change emissions based on actual emissions during any 24 consecutive months within the ten years immediately pr'eceding the change.Alternatively, they requested

that the Department allow for a 10 year look-back while reserving the ability to determine whether a proposed baseline period is most representative of normal operations. The Departrnent believes that the implernentation of NSR in New York needsto be streamlined, and having a more straightforward approachto Page 4 of 8

### deJermi.ning

baseline agtual eririssions is a significant stgpto achievingthat goal. Under the baselineperiod definitionin current

Subpart 231-2, facilitiesarenot allowed to demon$kate

thata 24 consecutive

monthperiod, outside of the five yearsimmediately preceding

a project,is more representative of norma!facility operations. ver, havethe opportunity to make'a case

that another

24 consecutive

month periodwithin Facilities do, howe five years

imrnediately

preceding

a project is morerepresentative of baseline

emissions.

This requires

B cas€- by-case review of historical

facility operations

by Deparbnent

staff; an extremely

resource intensive process, as noted in the Regulatory Impact Statement, that can lead to inconsistent applicationof the rule throughout the Statej Allowing facilities to choose any24 consecutive months in tho five yearsimmediately preceding

a project avoidsthis result. The Department believes that allowing any24 consecutive months in five years providesfacilities with a sufficient period of time to establish baseline emissions. The Regulatory -Impact Statement

discusses

in detail the rationalebehindthe Department's decision to propose

the baseline

period consisting

of any 24 consecutive

months in the five years

immediately

preceding

a project. No change

will be made to the proposed

baseline period. Comments

from various

environmental

groups and industry

representatives

werereceived

regarding

the proposed

Subpart231-11

reportingand recordkeeping reguironents

associated

with projects

for which there exists a reasonable

possibility of triggering NSR applicability. The comments from environmental

groups suggested

that the proposed

regulations

may contain

a "loophole"for facilitiesthat attribute all of the increase to demand

growth. The commenters recommend

that the Departrnent

clarify the requirements of Subpart

231- 11 to eliminatethe "loophole". The industry comments stated that the proposed

provisionswill impose regulatory requirements

that are more stringent

than Federalrequirements, andthe recordkeeping

requirements

are exbessive

for modifications

that have no reasonable possibility of resulting in a significant emissions increase.

They furtherstate

that thereis no justification for requiringthe Secti on 23I-11.4 recordkeeping and monitoring

requirements

when a project'spotential to emit ensures

there'sno reasonable

possibilitythat actual emissions

will exceed

the significance

thresholds. The Departrnont understands

the concems

of both the Page 5 of8environmental and industry commenters. The Department disagrees with the environmental groups' assertion that the proposal would require f.ewer sources to monitor post-change ernissions

than required under the federal reasonable

possibility rule. The Deparunent also disagrees with the industry comment that the recordkeeping requirements are excessive for modifications that have no reasgnablepossibility of resulting in a significant emissionsincrease. .Requiring such records is important if a facility proposesa project in the future for which a net emission increasedeterniination is necessary. Furthermore, Federal regulations require that all anissions, including emissions from any exempt or trivial activity- which are contemporaneouswith a proposed project, b6 included in any net.ernissionsincrease determination. Maintaining the records under proposed Subpart 231-ll

ensures that all emission increases are on record and available should a net emission increasedetermination be required. The Department believes that the rule as proposed strikes an appropriate balance between environmental concerns and economic and administrative concerns. Comments were received regarding the Plantwide Applicability Limitation in proposed Subpart 231-9. Both the environmental and industry commenters supported the PAL provisions, but both had concernswith specific aspects of the PAL provisions. Environmental commenters objected to allowing sources to use different baselineperiods for different pollutants, allowing a sourcewhich has not yet commencedconstruction to include emissions equal to the potential to emit, and allowing a PAL to be presumptively renewed at the existing PAL level. The industry commentersobjectedto the 25 percent reduction requirement in the sixth year of the PAL. As discussedin the Regulatory Impact Statement, the Departrnent wants to encouragethe.use of PALs in the Stateand believesthat they could provide a measure of regulatory flexibility while at the sametime providing for long-term protection of the environlnent. The environmental commenters' proposed revisions would significantly reducethe flexibility provided by the rule and, as a result, discourage the use of PALs in the State. The industry commenters' requestto delete the 25percent reduction requirementwould not be consistent with the Qepartment's environmental protection goals. The Deparhnent has determined that additional environmental benefits will result from requiring a reduction in the PAL of up to 25 percent in the sixth year of Page 6 of8

### the PAL The Departrnent believes that the proposed

PAL provisions

bestbalance

the goalsof improvingair quality while reducing

the burdenof NSR compliance on industry. The Dep.artment will not revisethese provrsrons. Comments

were receivedregardingPMz.s requirements. Industry strongly urggd the Deparhnent to follow,EPA's May 2008 finat NSR regutations for PMz.s

and offer an offset program that recognizes

SO2 and NO* as PMz.s

precqrsors

zrnd allows ERCsof these

contaminants

to be used

to offset PMz.sincreases and'for internalPMz.snetting.

States with EPA approved

PSDprograms

and those with PM2.5nonattainment areas have up to three(3) years

to submita revised

SIP incorporating

the'PM2.5

NSR requirernents.The Department will need tirne to evaluate:EPAts finat PMz5 rule, specificallywith regardto applicablePMz5 precursors and appropriate

interpollutant

trading ratios to determine what provisionsmake sense for New York. Until the Dgpartment

had anappioved

program addressing

PMz.s, EPA will be implanentingall PMz sNSR requirements. Comments

were receivedregarding the rule's implernentation of a transitionplan, specificallywith regard to the applicability

of 40 CFR 52.21,

followingthe promulgation of Part231. Both rules

will continue

to be applicable

until Part231

is included

in the New York State

SIPandis approved

by EPA. Comments

were received

regarding

the existingsignificantproject threshold of 2.5 tons per year for VOC andNO* in the severe'ozone nonattainment

area. Industry

hasadvocated

for an increase

in the significant project thresholdapplicable to the severe

ozonenon-attainment

area. Industry recommends increasing

the significantprojectthreshold in proposed

Part 231-13.3,

Table 3 to 12.5tpy. The Department will retain the significantprojectthreshold of 2.5 tons per year for NO* and VOC for the severe ozonenonattainment

area. The Departrnent

has determined

that retention

of this threshold

is vital to New York State"s ability to control

ozone andcrucial

to its SIPfor attaining

the l-hour ozone

NAAQS. Raising

the significant

project threshold

to 12.5 tpy asrequested

by commenter

would relax requirements thathave been in place for almost

eight years and result in fewer modified facilities undergoing NSR review and could potentiallyrais6concerns under the antibacksliding provisions of the Clean Air Act. Finally, the threshold levels for non-attainment areasare Page 7 of8I



### established

in the CleanAir Act (CAA). For severe areas the CAA requires

that any increase

be considered significant. Comments

were received

from industry

objecting

to the proposed

requirement

for a facility to applyfor and obtain a perrnitthat establishes an emission

limit associated

with an insignificantnet emissron rncrease determination:

The Departrnent's

policy hasalways

been to requireapplicants

to accept

permissible

emission limits whenavoidingNSRapplicability. BACT and LAER avoidance permit conditions

havebeeninclirded

in dozens of facility permitsthroughout New York State

since the NSR program

wasfirst promulgated.This is not a new requirement

and only affects

the source

that was constructed

or ntsdified not necessarily an entire facility.

Page 8 of 8