6 \IYCRR Part 200 General Provisions,Partz}l Permits and Registrations, and

Part 231 New Source Review forNew and Modified Facilities

Assessment of Public Comments Summary

Comments Received Septanber 24,2008 through October 24,2008

The New York State Department of Environmental Conservation (Departmeng is proposing to amend

existing 6 New York Code of Rules and Regulations QTTYCRR) Parts 200 (General Provisions),zll(Permits

and Registrations), and 231 (New Source Rwiew In Nonattainrnent Areas and Ozone:Transport Regions). The

amendments to Part 200 add a defihition for Routine Maintenance Repair or Replacernent, amend the definition

of potential-to-anit, and remove the reference to delegation of the federal Prevention of Significant '

Deterioration (PSD) requirements. The amendment to Part 201modifies the definitioh for Major Stationary

Source. Existing Palt 23i will be re-titled as New Source Review for New and Modified Facilities and will

include new Subparts 231-3 through 231-13. The existing Part23lregulations (Subparts 23I-l and,23l-2) are

being retained with only modification of applicability dates. The new Subparts will implement nonattainment,

and attainment (PSD) New Source Review.

The Departrnent's proposed amendments to 6 NYCRR Parts 200, 201, and 231 were published in .the

State Register on September 26, 2007. The Deparhnent's pioposed amendments have been revised to address

public comments received on the Department's Septemb er 26,2007 proposal, Department initiated revisions to

the Septemb er 26,2007 proposal, 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,

and 231were published in the State Register on Septanber 24,2008. The comment period closed on October

24,2008. The Deparbnent received written comments from 1l different commenters regarding the re-proposed

regulation. All of the comments have been reviewed, summarized and responded to by the Deparhnent in its

Assessment of Public Comments document.

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Gorerally, the commentersupported the Department's effort to revise its new source review regulations

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

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organizations, expressed opposition to various aspects of the proposed amendments for 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 replacqment was added to 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 characterized the definition as being

vague and unworkable. These commenters expressed concern with the Department's use in the definition of the

words "generally''and "typically''.and requested further definition of those terms.. 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

maintenance budgets, which would likely have funds specifically set aside for routine replacements, and those

capital expenditures which 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 establish a brightJine for treating O and M expenses as RMRR. The source of funding is one

of several criteria to consider when 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

considered as 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

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the 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 been the 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 proposed definition for

implemgnting the major NSR requirements in Fart 231 as well as the Title.V permitting requirements in Part

201. fiie commenter believes that the proposed definition could lead to confusion when the definition is relied

upon for implemenling Part 231 because the 250 tpy major facility threshold that applies in attainment or

unclassified areas, for sources that 4re not in a listed source category, is not referenced. The Deparhnent agrees

with the commenter's concern. To address thisissue, the Deparhnent will revis-e the proposed definition.

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 references to such

guidance and policy are construed as establishing binding and enforceable siandards. During the formulation of

the draft Part23l rule, the air quality impact analysis procedures referred to were proposed for public comment

on March 8, 2006 and finalized as DAR-10 in the Environmental Notice Bulletin on May 24,2006 after minor

public comments were 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 guidance to the regulated community as to what methods will be considered acceptable approaches

for dispersion modeling methodologies and related air analysis procedures

Several comments were received regarding the Deparhnent's proposal to continue with a singli: baseline

period for all regglated NSR contaminants for a single project. The commenters on this issue requested that

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multiple baselines be 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 baselines could 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 baseline to 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 determined that a single baseline period for a specific project

is more appropriate for New York's NSR program. The use of a single baseline period assures that a propos.ed

project is based on an actual operating scenario and not an artificially high emissions baseline. 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 needs to be streamlined, and having a more straightforward approach to

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deJermi.ning baseline agtual eririssions is a significant stgp to achieving that goal. Under the baseline period

definition in current Subpart 231-2, facilities are not allowed to demon$kate that a 24 consecutive month period,

outside of the five years immediately preceding a project, is more representative of norma! facility operations.

Facilities do, however, have the opportunity to make'a case that another 24 consecutive month period within

five years imrnediately preceding a project is more representative 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 application of the rule throughout the

Statej Allowing facilities to choose any 24 consecutive months in tho five years immediately preceding a

project avoids this result. The Department believes that allowing any 24 consecutive months in five years

provides facilities with a sufficient period of time to establish baseline emissions. The Regulatory -Impact

Statement discusses in detail the rationale behind the 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 were received regarding the

proposed Subpart 231-11 reporting and 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 facilities that attribute all of the increase

to demand growth. The commenters recommend that the Departrnent clarify the requirements of Subpart 231-

11 to eliminate the "loophole". The industry comments stated that the proposed provisions will impose

regulatory requirements that are more stringent than Federal requirements, and the recordkeeping requirements

are exbessive for modifications that have no reasonable possibility of resulting in a significant emissions

increase. They further state that there is no justification for requiring the Secti on 23I-11.4 recordkeeping and

monitoring requirements when a project's potential to emit ensures there's no reasonable possibility that actual

emissions will exceed the significance thresholds. The Departrnont understands the concems of both the

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environmental 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 reasgnable possibility of resulting in a significant

emissions increase. .Requiring such records is important if a facility proposes a project in the future for which a

net emission increase deterniination is necessary. Furthermore, Federal regulations require that all anissions,

including emissions from any exempt or trivial activity- which are contemporaneous with a proposed project, b6

included in any net.ernissions increase determination. Maintaining the records under proposed Subpart 231-ll

ensures that all emission increases are on record and available should a net emission increase determination 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 concerns with

specific aspects of the PAL provisions. Environmental commenters objected to allowing sources to use

different baseline periods for different pollutants, allowing a source which has not yet commenced construction

to include emissions equal to the potential to emit, and allowing a PAL to be presumptively renewed at the

existing PAL level. The industry commenters objected to the 25 percent reduction requirement in the sixth year

of the PAL. As discussed in the Regulatory Impact Statement, the Departrnent wants to encourage the.use of

PALs in the State and believes that they could provide a measure of regulatory flexibility while at the same time

providing for long-term protection of the environlnent. The environmental commenters' proposed revisions

would significantly reduce the flexibility provided by the rule and, as a result, discourage the use of PALs in the

State. The industry commenters' request to delete the 25percent reduction requirement would 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

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the PAL The Departrnent believes that the proposed PAL provisions best balance the goals of improving air

quality while reducing the burden of NSR compliance on industry. The Dep.artment will not revise these

provrsrons.

Comments were received regarding PMz.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 ERCs of these contaminants to be used to offset PMz.sincreases and'for

internal PMz.snetting. States with EPA approved PSD programs and those with PM2.5nonattainment areas have

up to three (3) years to submit a revised SIP incorporating the'PM2.5 NSR requirernents. The Department will

need tirne to evaluate:EPAts finat PMz5 rule, specifically with regard to applicable PMz5 precursors and

appropriate interpollutant trading ratios to determine what provisions make sense for New York. Until the

Dgpartment had an appioved program addressing PMz.s, EPA will be implanenting all PMz sNSR requirements.

Comments were received regarding the rule's implernentation of a transition plan, specifically with

regard to the applicability of 40 CFR 52.21, following the promulgation of Part 231. Both rules will continue to

be applicable until Part231 is included in the New York State SIP and is approved by EPA.

Comments were received regarding the existing significant project threshold of 2.5 tons per year for

VOC and NO* in the severe'ozone nonattainment area. Industry has advocated for an increase in the significant

project threshold applicable to the severe ozone non-attainment area. Industry recommends increasing the

significant project threshold in proposed Part 231-13.3, Table 3 to 12.5 tpy. The Department will retain the

significant project threshold of 2.5 tons per year for NO* and VOC for the severe ozone nonattainment area.

The Departrnent has determined that retention of this threshold is vital to New York State"s ability to control

ozone and crucial to its SIP for attaining the l-hour ozone NAAQS. Raising the significant project threshold to

12.5 tpy as requested by commenter would relax requirements that have been in place for almost eight years and

result in fewer modified facilities undergoing NSR review and could potentially rais6 concerns under the antibacksliding provisions of the Clean Air Act. Finally, the threshold levels for non-attainment areas are

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established in the Clean Air 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 apply for

and obtain a perrnit that establishes an emission limit associated with an insignificant net emissron rncrease

determination: The Departrnent's policy has always been to require applicants to accept permissible emission

limits when avoidingNSR applicability. BACT and LAER avoidance permit conditions have been inclirded in

dozens of facility permits throughout New York State since the NSR program was first promulgated. This is

not a new requirement and only affects the source that was constructed or ntsdified not necessarily an entire

facility.

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