Page 1 of 23 

Assessment of Public Comments 

6 NYCRR Part 212, General Process Emission Sources 

December 23, 2009 – February 17, 2010 Comment Period 

Comment: Hot Mix Asphalt (HMA) plant stone driers are an insignificant source of nitrogen oxide (NOx) 

emissions and only account for approximately 0.10 percent of statewide emissions. With the Department’s 

estimated NOx reductions of up to 25 to 50 percent, NOx emissions from HMA stone driers would be reduced 

by about 138 to 275 tons, or roughly 0.025 to 0.05 percent of statewide emissions. [1,2,3,4,6,9]

Response: It is necessary to seek reductions of NOx and volatile organic compounds (VOCs) from more and 

more sources as the National Ambient Air Quality Standard (NAAQS) for ozone becomes increasingly 

stringent. The New York metropolitan area remains in nonattainment for the 1997 ozone NAAQS, the level of 

which is effectively 84 parts per billion (ppb). The United States Environmental Protection Agency (EPA) is 

expected to promulgate its new 8-hour ozone NAAQS in August, likely in the range of 60 to 70 ppb. As such, 

the Department must identify additional sources of emission reductions to bring not only the New York 

metropolitan area into attainment, but all additional nonattainment areas under the new NAAQS that are 

impacted by sources in New York State as well. 

The Department coordinates its ozone efforts with other northeastern states through the Ozone Transport 

Commission (OTC), and followed the OTC’s lead in selecting the HMA sector for control. The OTC initially 

compiled a list of approximately 1,000 candidate control measures that was later pared down to 30 for further 

review. OTC workgroups collected and evaluated information regarding emission benefits, cost-effectiveness, 

and implementation issues. In 2006 the OTC passed Resolution 06-02 which identified the following categories 

as sources from which sufficient NOx and VOC reductions could be obtained: asphalt paving, asphalt 
Page 2 of 23 

production plants, cement kilns, glass furnaces, industrial, commercial, and institutional boilers, and regional 

fuels. 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 all of these source categories. 

The Department has calculated similar levels of NOx emissions from the HMA industry as presented by 

the New York Construction Materials Association (NYMaterials) based on AP-42 emission factors. It is from 

these annual emission levels that NYMaterials states that only about 0.10 percent of statewide NOx emissions 

are from HMA plants. While this represents a small portion of the overall annual NOx emissions in New York 

State, the vast majority of hot mix operations occur during the summer, and particularly on hot, sunny days. 

This differs from industries or sources that have emissions year-round (e.g., motor vehicles, power generating 

plants, other industry). HMA emissions may be much lower than those other source categories on an annual 

basis, though production is concentrated during the summer, when NOx emissions are most inclined to react 

with other precursors to form ozone. It is due to these disproportionate ozone season emissions that Department 

has followed OTC’s proposal to impose NOx reduction requirements. 

Comment: EPA declared in 2007 that blacktop plants were not a significant source of air emissions. Looking 

at the total NOx emitted by the roughly 200 plants in New York State reinforces this statement. The entire 

volume of NOx emitted by all the blacktop plants in New York State is approximately 731 tons per year which 

represents 0.13 percent of all NOx emissions in the state. This number is clearly insignificant when compared 

to other NOx sources, making any reductions gained by the proposed 212 regulations insignificant.[8]

Response: The Department is unaware of this finding by EPA, and it was not mentioned in comments on the 

proposed Part 212 revisions by NYMaterials or EPA themselves, nor did the commenter provide a citation to 
Page 3 of 23 

the EPA finding. Please see the above comment for a discussion of the relevance of NOx emissions from HMA 

plants. 

Comment: Even at a 50 percent reduction, which is really unlikely in today’s technology, the end result after 

millions of dollars of investment will be a very minimal reduction of NOx in the grand scheme of things. Over 

the last three years [the industry] has basically reduced its NOx emissions by 20 percent just due to decreased 

production based on state funding issues.[6]

Response: The Department stated that its proposed regulation would have a maximum NOx reduction of about 

50 percent. The Department believes that such reductions during the ozone season will indeed have positive 

environmental benefits. The Department has taken the various comments into consideration such that capital 

expenditures by HMA plants will yield the greatest possible results. 

 The Department recognizes that NOx emissions have declined due to the economic downturn over the 

past couple years. However, as the economy rebounds from its recession and federal, state, county and local 

governments are able to make greater expenditures for roadway and infrastructure improvements, HMA 

production (and associated NOx emissions) will again increase. 

Comment: It is unclear whether the impact of the proposed regulation on the generation of carbon monoxide 

(CO) has been considered. Flue gas recirculation (FGR), which generally lowers combustion temperatures, 

may result in an overall decrease in combustion efficiency and an increase in CO. Lowering combustion 

temperature may also adversely affect the emissions of VOCs and VOC hazardous air pollutants (HAPs).[1,4,6]
Page 4 of 23 

Response: The Department has taken this comment into consideration. For this reason and additional technical 

reasons, the FGR assessment initially included in the initial Part 212 proposal is not being included in the reproposal. 

Comment: The Department reports that low NOx control technology will cost an estimated $500 to $1,250 per 

ton of NOx reduced (equipment and installation of a low NOx burner) and $1,000 to $2,000 per ton of NOx

reduced (equipment and installation of a low NOx burner with flue gas recirculation). Consultation with 

industry groups such as the National Asphalt Pavement Association (NAPA), companies that have actually 

installed this equipment, and the manufacturers and installers of low NOx burners and FGR equipment indicates 

the typical cost to be on the order of $150,000 to $250,000 per plant for only equipment and installation. 

Assuming an average cost per plant of $200,000, New York’s approximately 200 HMA plants will require a 

capital investment of approximately $40 million by 2012, during an economic downturn that has reduced some 

producers’ production by as much as 50 percent.[3,4,6,9]

Response: The Department has taken this comment into consideration and recognizes that cost-per-ton figures 

can vary when emission levels from individual plants vary dramatically, as they can with HMA plants. The 

revised documents provide more clarity related to cost figures for potential controls. 

In addition, the FGR assessment has been removed as a requirement and the Department has extended 

the compliance time for a low NOx burner assessment through 2020. This will prevent owners - particularly 

those who own multiple HMA plants—from making large one-time expenditures, and will account for plants 

which have recently replaced their burners. 
Page 5 of 23 

 The Department is also utilizing a cost-per-ton threshold equal to that used for Reasonably Available 

Control Technology (RACT) to control costs incurred by plants. The use of this RACT threshold, currently 

valued at $5,500 per ton of NOx reduced, will prevent HMA plants (especially smaller and more efficient 

plants) from making large capital expenditures when emissions are low enough so as to prevent such controls 

from being cost-effective. 

 This economic threshold was also in place for the initial Part 212 proposal, meaning this $40 million 

cost of compliance is artificially inflated. It assumes that all 200 HMA plants in New York State expend 

$200,000 for controls. Smaller and more efficient plants would be relieved of implementing expensive controls 

due to what could be very high cost-per-ton figures. Actual costs would be much lower than this figure. 

Comment: Many HMA producers are also being faced with the “monumental” costs of compliance with the 

recently adopted Part 248 regulations (Best Available Retrofit Technology for Heavy Duty Vehicles), which 

will require a similar capital investment statewide. If not singularly, the proposed Part 212 revisions, in 

combination with the new Part 248 regulations will certainly put companies out of business.[3]

Response: As explained above, the Department is taking steps to generate an appropriate level of NOx 

reductions at costs that are not unreasonable to asphalt plants. 

Comment: The proposed technologies would reduce annual emissions, at current production levels and fuel 

types used, by only about 15 tons. It is estimated that the cost of installing a low NOx burner with FGR 

technology to be on the order of $200,000 to $275,000 per plant. At these figures, the company would be 

required to outlay an unduly burdensome capital investment (by 2012) that simply does not justify the reduction 

of NOx emissions.[1] 
Page 6 of 23 

Response: Please see the above response concerning costs and the use of an economic threshold. 

Comment: This commenter has communicated with industry consultants as well as other HMA companies that 

have purchased and installed low NOx burners or are in the process of doing so. From such information, the 

commenter is led to believe that the equipment and installation costs range from $125,000 to $200,000 per 

plant. Additional engineer, consulting, testing, and other permitting related costs are estimated to range 

between $12,000 and $29,000.[2]

Response: These costs are in line with what the Department has established in correspondence with burner 

manufacturers. 

Comment: On a best-case scenario, the proposed regulations would increase our company’s cost of production 

[for seven HMA plants] by at least $1,000,000. Well over 50 percent of our blacktop sales are for public works 

projects, i.e., state, counties, towns and villages. Obviously, the increased cost of production will be borne by 

all customers. In the case of public projects, the cost will ultimately be borne by the taxpayer.[2] 

Response: The Department has taken this comment into consideration. As explained previously, the reproposal addresses the cost issues raised by the commenter. 

Comment: The current proposed regulations call for an assessment of HMA plants by June, 2010. At an 

estimated cost of up to $200,000 per facility, my company is looking at a potential investment of over $2M to 

switch burners at all facilities and has strong concerns that it will be forced into costly plant modifications while 

there are other options available that can result in even greater plant emission reductions.[7]
Page 7 of 23 

Response: The Department recognizes the expenses as expressed by the commenter and has revised the 

regulation by delaying the initial compliance date and extending the overall compliance period. The 

Department is also retaining the cost-effectiveness threshold for the economic analysis. 

Comment: The Department should review the regulation for practicality. There are best practice methods 

which can show NOx emission reductions with minor costs for today’s operations. Producers who invest 

substantial costs into their operations, which do not increase the efficiency of the operation, will have to pass 

this cost onto the owner and end user. If expensive retrofits and upgrades in equipment are made to a 

production facility well in advance of the practical service life of the equipment presently in use, these costs 

will impact the cost of the production, which impacts the cost of the product, in effect driving asphalt pavement 

prices up arbitrarily in today’s tough economy for private industry and the State of New York. The dollars 

invested into emission reductions should be targeted toward the best return on that investment.[6]

Response: The Department has taken this comment into consideration and has revised the initial proposal with 

alternate NOx reduction methods. Annual burner tune-ups and stockpile maintenance will now be required 

operational practices for all plants. These practices, which were recommended to the OTC as options by the 

National Asphalt Pavement Association (NAPA), should reduce NOx at reasonable cost and can even result in a 

payback to plants through decreased fuel use. 

 In addition, the re-proposal addresses changes to the low NOx burner requirement. The continued use of 

a cost threshold to determine economic feasibility will prevent small, well managed plants from having to face 

unwieldy capital investments, and a prolonged compliance period will also aid in managing costs. 
Page 8 of 23 

Comment: The Department did not adequately consider other expected costs associated with low NOx control 

technology in its Regulatory Impact Statement (RIS). These additional costs include the following: 

1. Some HMA plants may choose to close their plants rather than justify such a large capital investment. 

This would result in lost employment and upward pressures on HMA costs during already tough 

economic times. Increasing the distance HMA must be hauled also increases transportation-related fuel 

consumption and related emissions.[3,4,6,9]

2. Some producers have replaced burners in recent years at a significant expense, and it will be particularly 

onerous to require testing and possible replacement under these regulations given the 15 to 20-year 

useful life of the burner. The regulations should allow for existing burners to be exempt from 

replacement until they reach the end of their useful lives.[3,4,6]

3. Since NOx emissions are a function of production, a complete engineering cost effectiveness analysis 

that amortizes capital costs over the useful life of the improvements requires reliable forecasts of future 

production volumes over which to distribute all costs, particularly capital costs. In the current economic 

environment it is extremely difficult to project and estimate future production volumes.[1,3,4,6]

4. Experience has shown that low NOx technology reduces fuel efficiency by approximately 2.5 percent. 

The costs cited by the Department do not include these costs, which would add approximately $2.87 

million in fuel costs each year.[1,3,4,6]

5. Reduced fuel efficiency will lead to increased fuel consumption and corresponding increased emissions 

of other pollutants.[1,3,4,6]

6. Additional equipment will require additional maintenance and incur greater costs.[3,4,6]

7. Plants operating near their capacity will be faced with potentially even higher capital investments. In 

order to get sufficient airflow in the FGR system, the baghouse control technology may have to be 

upgraded at costs estimated to be as high as $400,000 per plant.[1,3,4,6]
Page 9 of 23 

8. HMA plants typically are required to obtain multiple permits to operate, including local zoning permits. 

Revising these permits to obtain local approval will be costly, time-consuming and approval may not be 

granted if incorporation of low NOx technology requires plants to operate longer hours due to changes in 

production capacity or need to increase production to account for lost production from closed 

plants.[3,4,6]

Response: 

1. As explained above, the Department has taken further steps in its re-proposal to reduce costs to plants. 

2. The Department has implemented a prolonged compliance period which allows plants that have recently 

replaced their burner to wait until 2020 to perform the economic analysis of installing a new low NOx

burner. It must be kept in mind that this deadline is merely for the economic analysis of a low NOx

burner, which requires its installation only if it yields sufficient emission reductions for its cost. 

3. The need to project and estimate production volumes is not applicable to only the installation of control 

equipment. These are factors in decisions made by all businesses in all phases of their operations, and 

the Department would expect it to be a consideration here as well. 

4. The Department has taken this comment into consideration, and relevant language will be added to the 

revised RIS. 

5. The reduction in NOx emissions and the environmental benefit that can be obtained from low NOx

burners outweighs the relatively minor increases in other pollutants. 

6. “Additional equipment” here likely refers to the FGR requirement in the initial proposal that has since 

been removed. Under the current proposal there is no additional equipment, as a potential burner 

replacement is the only equipment requirement. 

7. The FGR requirements have been removed in the re-proposal. 

8. The Department is aware that low NOx burners have the potential to lead to plant de-rating. The 

proposed requirement for annual burner tune-ups is one way to ensure a high level of efficiency to 
Page 10 of 23 

counteract these potential production losses. Stockpile maintenance and the increasing production of 

warm mix asphalt (WMA) should offset production losses as well. Additionally, newer technology 

allows for greater independent control of the air and fuel levels in the burner, which helps maximize 

efficiency. 

Comment: The June 1, 2010 deadline for “control technology assessments” is unrealistic. There are very few 

firms that have the necessary expertise to accomplish the assessments, and they will not be physically capable 

of visiting and assessing the 200 HMA plants in that time frame. Since this regulation will apply statewide, 

there is no opportunity to focus assessments in selected nonattainment areas.[1,3,4,6]

Response: The Department has taken this comment into consideration and the re-proposal will include a longer 

timeframe for the low NOx burner assessments. 

Comment: Proposed definitions in 6 NYCRR Part 212.1(b) for “asphalt” and “asphalt cement” are confusing; 

the proposed regulations imply that only “asphalt cement” is used in the manufacture of HMA. If this is the 

case, the definition of “asphalt” is superfluous.[3,4,6]

Response: Comment noted. 

Comment: The proposed regulations only contemplate two control technologies, either a low NOx burner or a 

low NOx burner combined with FGR. There is, however, no definition of what the Department considers to be 

a “low NOx burner.” If left up to the discretion of those reviewing permit modifications and 

technological/economic assessments it is inevitable that there will be inconsistent interpretation of the 

regulations. Without defined criteria for “low NOx,” burner manufacturers as well as engineering consultants 
Page 11 of 23 

will also be challenged in assisting producers in complying with the proposed regulations. It will be vitally 

important to provide detailed guidance to regional offices to assure uniformity of implementation 

statewide.[1,3,4,6]

Response: The Department has taken this comment into consideration. The Department has dropped the FGR 

requirement from the re-proposal, but maintains the low NOx burner analysis as a requirement. Burner 

manufacturers contacted by the Department have dedicated models which they refer to as “low NOx.” Rather 

than setting a specific emission limit, the Department will rely on burner manufacturer definitions and 

guarantees of “low NOx.” Department staff will be encouraged to share information on which burners get 

approved as being “low NOx.” 

Comment: Numerous HMA plants are in areas that are not serviced by natural gas. The costs to install new 

natural gas infrastructure at these sites would be exorbitant and many plants would be forced to close. 

Similarly, installation of multiple large propane tanks would have serious public safety implications and/or 

could be prohibited by local zoning ordinances. The Department should explicitly state that the regulation 

would not require such facilities to convert to natural gas.[1,3,4,6]

Response: It was not the intent of the Department to require HMA plants to burn only natural gas in the dryer 

burners. A statement to this effect has been added to the revised RIS. 

Comment: Many producers maintain active permits on facilities that are non-operational for long periods of 

time. In some cases, individual plants may not be used for many years, but the permits are maintained to 

provide flexibility or in anticipation of future contracts or improvements in business conditions. The proposed 
Page 12 of 23 

regulations do not offer any guidance on the regulatory treatment of these facilities. Industry proposes that 

inactive plants be exempted from control technology assessments until they are scheduled for reactivation.[1,3,4,6]

Response: The Department has taken this comment into consideration, and exceptions from control 

requirements have been added to the revised Express Terms for Part 212 for plants that are dormant until such 

time that they are scheduled for re-activation. 

Comment: The proposed regulations do not provide reconciliation procedures that will be implemented if the 

owner disagrees with the Department’s selection of control technology.[1,3,4,6]

Response: If the plant owner and Department staff differ in their interpretation of the results of the analysis, the 

parties will work together in an effort to reach a common conclusion as is the case with most of the Department 

air pollution control requirements. The Department will not unilaterally conclude that a low NOx burner is 

feasible and must be installed if the plant’s analysis shows otherwise. As in any permit or registration 

procedure, the applicant has access to all available means of redress available under New York State Law. In 

the event that parties cannot reach an agreement on the low NOx burner decision, the Department encourages 

the use of the Environmental Dispute Resolution program, operated by the Office of Hearings and Mediation 

Services. 

Comment: In the last five years, the industry has made concerted efforts to develop and promote the use of 

WMA that heats the aggregate to temperatures approximately 35 percent lower than traditional HMA and 

reduces fuel consumption by approximately 25 percent and NOx emissions by 34 percent. It is projected that 

once WMA specifications are fully integrated into federal, state and local specifications, the industry will be 

able to sell greater amounts of WMA. Industry experts forecast that WMA will have approximately 50 percent 
Page 13 of 23 

of the blacktop market in the next five years. This alternative is a win-win situation for all parties involved as it 

reduces fuel consumption, with little or no increased blacktop costs, requires less capital investment and reduces 

overall emissions relative to traditional HMA. Working with state, county and local specifying agencies to 

hasten the adoption of WMA specifications and use of WMA will reduce emissions without a large capital 

investment, will reduce fuel consumption and will not greatly affect blacktop costs.[1,4,6]

Response: The increased application of WMA and the potential NOx reductions that would result are very 

encouraging. The Department recognizes that the industry will devote more and more of its production to 

WMA as its use becomes accepted for a greater number of projects. Decreasing fuel use and lowering 

combustion temperatures are two of the best ways to reduce the formation and emission of NOx. The 

Department has spoken with staff from the New York State Department of Transportation (NYSDOT) on this 

topic. NYSDOT is still conducting testing on the use of WMA to ensure that it can be used as a suitable 

replacement for HMA on large jobs, and handle the most severe weather and traffic conditions. Because 

NYSDOT has yet to finalize its specifications for WMA and define where it can be acceptably applied, the 

Department is unable to explicitly require its production and use; WMA will likely have varying levels of 

demand in different parts of the state as well, further complicating any attempts to regulate its use. The 

Department obviously encourages its expanded production when possible. 

Comment: A specification for WMA is being written and we expect to see somewhere between 60,000 and 

100,000 tons of WMA going down in New York State this year. To date the industry has done about 200,000 

tons of WMA statewide, and this technology is nationally recognized. It expects over the next five years 

roughly 50 percent of all asphalt produced in New York State to be WMA. This is going to be at minimal or no 

cost to the end user. With the latest and greatest technology it is definitely a win/win for all sides.[6]
Page 14 of 23 

Response: Comment noted. Please see the above response. 

Comment: There are many ways of reducing emissions from a HMA plant and while the proposed regulations 

bring light to a few, they are missing key issues that as an industry we are addressing globally. Probably the 

most important such issue is the use of WMA. This technology allows for the production of material at 

temperatures 50 to 100 degrees lower than conventional HMA, using less fuel and resulting in lower emissions. 

If the NYSDOT would accelerate their use of WMA, this industry could easily see emission reductions that will 

far outweigh the use of low NOx burners, at less of a cost to the public.[7]

Response: Please see the earlier response regarding the application of WMA. The Department has taken this 

comment into consideration, but has retained the low NOx burner analysis requirement. NOx emissions from 

the largest plants will likely remain high enough to justify the analysis and potential installation of a low NOx

burner. 

Comment: The HMA industry cannot absorb the cost of this regulation and will necessarily pass it on to the 

consumer. Most plants sell at least half of their HMA to state, county and local governments. These 

municipalities are already buying up to 50 percent less HMA in recent years due to tighter budgets and 

increased HMA costs associated with higher fuel and liquid asphalt costs—all at a time when New York’s aging 

infrastructure needs a large investment to meet future needs. The Part 212 regulations, as proposed, will result 

in increased HMA prices and, without increased expenditures by government agencies, decreased HMA sales. 

If governmental agencies increase expenditures then taxes will be forced to rise, contrary to the Department’s 

statement that there will be no cost to government agencies.[3,4,6,9]

Response: Comment noted. These issues have been addressed in prior responses. 
Page 15 of 23 

Comment: The proposed Part 212 regulations place an unwieldy financial burden on HMA plants that have 

historically proven to be an insignificant source of NOx. Implementation of these regulations will involve 

overly burdensome capital costs and increased fuel costs with no benefit and quite possibly some measurable 

detriment to the environment.[1]

Response: Comment noted. These issues have been addressed in prior responses. 

Comment: To put the presumed benefits of Part 212 in perspective, assuming a maximum 0.05 percent 

reduction in statewide NOx emissions is realized, a one-to-one correlation between reductions in NOx leading to 

reductions in primary ozone, and the current 75 ppb 8-hour ozone standard, the resulting 8-hour NOx level 

would only be reduced to 74.96 ppb—a statistically insignificant reduction. The cost to the HMA industry, 

governments and the taxpayer of a perceived “benefit,” which is incapable of quantification to a statistically 

significant figure, is not worth contemplating. In order to achieve compliance with the primary ozone NAAQS, 

NOx reductions from other larger sources need to be sought.[1,3,4,6,9]

Response: Ozone is a secondary pollutant formed through a complex series of chemical reactions. Reductions 

in ozone are not correlated on a one-to-one basis with reductions in NOx emissions. In NOx-limited 

environments, the relationship can be larger. Still, total emission reductions are always the sum of the 

reductions from all sectors. Some are large, and some are not. However, in total, all potential emission 

reductions that occur as a result of the Department’s efforts will enable the attainment of the 8-hour ozone 

standard. This is true not only in New York, but in the other OTC states that are presently pursuing reductions 

from asphalt plants. A prior response also explained how annual average NOx emissions from HMA plants are 

relatively low when compared to other major source sectors, but nearly all the emissions from HMA plants are 

concentrated during the ozone season and particularly on hot, sunny days. 
Page 16 of 23 

 The Department is currently undertaking a number of additional rulemakings to seek NOx reductions 

from other sources. The Department is finding it necessary to regulate smaller and smaller sources to obtain 

adequate reductions of ozone precursors so that air quality in all areas of New York State can reach healthy 

levels within the NAAQS. 

Comment: Given the economic impact and miniscule reductions in the state’s NOx levels, the Department 

should withdraw the proposed revisions to the Part 212 regulations.[2,3]

Response: The “no action” section of the RIS explains that the Department has an obligation under the 

Environmental Conservation Law and the Clean Air Act to develop programs that protect the air quality in New 

York State. The HMA sector has been identified by the OTC as an appropriate focus for regulation, and the 

Department is working to institute NOx reduction requirements in a practical manner. 

Comment: If the Department elects to proceed with promulgation of the Part 212 revisions, it is encouraged 

that the Department work with NYMaterials to identify alternatives for achieving much greater and much more 

cost-effective NOx reductions.[3]

Response: Department staff had a very productive meeting with representatives of NYMaterials on February 8, 

2010. The NYMaterials representatives explained the industry’s issues with the initial proposal, and the sides 

held a discussion of potential alternative methods of regulation. Department staff has also been in contact with 

the group since this meeting. The Department has taken the views of NYMaterials and its member companies 

into consideration in the drafting of this re-proposal. 
Page 17 of 23 

Comment: It is strongly recommended that the Part 212 regulations should be reworked based on alternatives 

developed by the Department and the HMA industry and the appropriate changes be made to New York’s State 

Implementation Plan.[4,6,9]

Response: Comment noted. 

Comment: This commenter agrees with the Department’s determination that control technology assessments 

should be developed only for large asphalt plant burners. The marginal cost for NOx reductions in well 

managed small units - beyond what can be achieved through the use of natural gas burners and Best 

Management Practices - would be so high as to render the use of additional control technology impractical and 

even, in a certain sense, wasteful. Plants which operate a large burner (greater than 25 mmBtu/hr) and cap 

emissions below 25 tons of NOx per year should also be required to only perform an annual burner tune-up.[5]

Response: In discussions with NYMaterials it was found that very few plants operate burners with heat input 

less than 25 mmBtu/hr, and as a result, the Department expanded its requirements to all burners. Furthermore, 

the Department is taking steps in its re-proposal to lessen the costs to small, well-managed plants as per public 

comments received. 

Comment: The current proposed language does not go far enough in separating cases where application of 

RACT requirements would serve the important purpose of NOx reduction from cases where application of 

RACT would be wasteful. This plant’s emissions were lower, even, than the OTC projection for NOx emission 

rates in low NOx burners fueled with natural gas. The low emission rates have been achieved without the use of 

a low NOx burner even though the plant uses a 100 mmBtu/hr burner. For cases like this an economical and 
Page 18 of 23 

technical analysis along with the permit modification would be onerous, and provisions for annual tune-ups and 

stockpile management, as suggested in the report, should be sufficient.[5]

Response: Comment noted. Please see the above response. 

Comment: Under 6 NYCRR Part 212.10(a)(1) only those major facilities located in the lower Orange County 

or New York City metropolitan areas with an annual potential to emit 25 tons or more of NOx or 25 tons or 

more of VOCs have to comply with the RACT requirements. The same standard should apply to HMA plants. 

The language in 212.10(g)(1) should be revised to reflect more accurately the universe of HMA production 

plants for which application of RACT requirements would be prudent.[5]

Response: The re-proposal applies to all HMA plants throughout the state. 

Comment: The timeline for implementation (in which permit modifications and control technology assessments 

would need to be submitted by June 1, 2010) raises concern. Given that plants tend to be unique and the 

configuration of the new technologies would have to be assessed for each site (the success of external flue gas 

recirculation, in particular, depends greatly on the configuration), we believe it would make sense to give 

facilities at least six months to apply for new permits. Ideally, the compliance lead-in period would be 

calculated as starting 180 days from the date that the new regulations become effective, thereby avoiding a 

potential time crunch, should issuance of the regulations somehow be delayed. Similarly, the deadline for 

installation and testing of control equipment or other emission reduction methods approved by the Department 

should be changed from January 1, 2012 to two years from receiving Department approval.[5]
Page 19 of 23 

Response: The Department has taken this comment into consideration and the re-proposal includes a longer 

timeframe. 

Comment: As drafted, it as appears that these regulations have had little if any input from the owners and 

operators of HMA plants or even the manufacturers of low NOx burners. While meetings such as [this public 

hearing] do allow for public comment, the issue at hand can only be properly addressed with meaningful 

dialogue between the Department and our industry. A request was made that regulators continue to work with 

NYMaterials in order to draft meaningful regulations that will lower plant emissions by using all available 

options.[7]

Response: As was discussed in a previous response, Department staff has since met and held subsequent 

conversations with NYMaterials representatives and feel the discussions have been helpful for the purposes of 

this re-proposal. 

Comment: The proposed revisions to Part 212 give us great concern for many reasons. Most notably are the 

lack of definitions of terms such as “low NOx burners,” the incredibly short time frame for compliance with 

plant assessments, the huge cost implications of having to retrofit or add on to existing facilities with minimal 

reductions in emissions, and the lack of any measurable standards with which to comply.[8]

Response: Comment noted. These issues have been addressed in prior responses. 

Comment: The cost of achieving compliance with the proposed regulations will certainly take many blacktop 

plants out of service, eliminating jobs, making blacktop a much more costly and less accessible material. 

Increased costs to the producer will be passed on in higher costs for blacktop. Budgets at agencies like the 
Page 20 of 23 

Thruway Authority, NYSDOT, and county, town, and village highway departments will be decimated. This 

will drive up the costs of projects using blacktop significantly, leading to huge increases in greenhouse gas 

emissions, including NOx, as project sponsors will have to travel greater distances, using more trucks and 

burning more fuel, to get the product. These increased emissions will be far greater than the reductions 

generated by compliance with these regulatory changes. Roads and bridges will be maintained even less 

efficiently and the quality of our infrastructure will deteriorate at an even faster rate than it currently is. Poor 

infrastructure moves traffic much less efficiently, directly contributing more NOx emissions to the environment. 

This legislation will result in a net increase in NOx emissions. In the assessment of “Cost to State and Local 

Governments” it is stated that there will be no cost to these entities. This is blatantly false for the reasons 

described above.[8]

Response: As explained previously, the Department has taken such concerns into consideration in drafting the 

re-proposal. Text has been added to the RIS under “Costs to State and Local Governments” related to this 

issue. 

Comment: Who at the agency is going to conduct the technical review of the assessments required by June 1, 

2010? Will approval/disapproval be consistent statewide? Many state regulations are already applied 

inconsistently in different regions and many technical documents required by the regulated community are 

being reviewed by Agency personnel who are entirely unqualified to do so. The regulations contain no 

assurances that the applicant will get fair and equal treatment.[8] 

Response: The re-proposed Part 212 revisions will contain a requirement for a simplified analysis. Instead of a 

full control technology analysis, an economic analysis for only a low NOx burner will be necessary. The 
Page 21 of 23 

 to endure.[8]

Department is employing the economic analysis calculation that has long been used for RACT, and will thus 

make consistent decisions about the feasibility of a low NOx burner regardless of who is doing the review. 

Comment: These proposed changes, while well-intended, seem to be poorly thought out. The long term 

implications will actually defeat the intended purpose by generating more emissions than they reduce. The 

Department should take a step back and look at uses which generate more significant volumes of NOx. The 

cost versus benefit ratio of these regulations is impractical. The implication of excess costs, increased 

emissions, loss of jobs, further degraded infrastructure, and reduced services is too great for the taxpayers of 

New York to have

Response: Comment noted. These issues have been addressed in prior responses. 

Comment: The requirements of the proposed Part 212 regulations if applied to the commenter’s new plant 

would be economically devastating. Tetz made a substantial investment in constructing the plant, creating new 

jobs, despite the poor economy. As currently drafted, the proposed regulations will require burdensome retrofit 

and testing requirements which are unlikely to result in any significant reduction in NOx emissions at this plant 

and a request was made to the Department not to adopt the proposed Part 212 regulations. This commenter also 

agreed with the NYMaterials suggestion that if the Department adopts any regulations, they should exempt 

newer plants from the proposed requirements.[10]

Response: Comment noted. These issues have been addressed in prior responses. 

Comment: The Department should tighten the compliance schedule allowed for facilities to implement RACT 

to a timeframe before the dates established in the proposed regulation (i.e., 18 months from the effective date of 
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the regulation or one year from when compliance plans are due—whichever is sooner).[11]

Response: The Department has set deadlines which are reasonable to meet yet not overly burdensome for the 

HMA industry. An extended compliance period for the low NOx burner analysis is necessary in order to 

account for HMA plants which have recently replaced their dryer burner. 

Comment: The Department should establish a prescribed RACT for large asphalt plant burners—installation of 

a low NOx burner or a low NOx burner in combination with FGR, or establish emission limits which reflect the 

application of the suggested control technology, with the option of an alternate RACT limit. Upon evaluating 

case-by-case RACT determinations, EPA would expect the Department to consider other state RACT 

determinations as a benchmark for establishing RACT for New York facilities.[11] 

Response: The Department has taken this comment into consideration and after further consideration and 

discussion with industry representatives, the Department has revised its requirements to a form that is more 

practical and feasible for HMA plants to comply with. For minor sources, to which RACT does not apply, this 

has entailed a move from a RACT-type control technology assessment to a method incorporating best practices 

and a low NOx burner economic analysis. 

Comment: The Department should include language which states, “Approved RACT determinations will be 

submitted by the Department to the United States Environmental Protection Agency for approval as separate 

State Implementation Plan revisions.”[11]

Response: This language has been added to the re-proposal. 
Page 23 of 23 

List of Commenters 

1. Callanan Industries, Inc. 

2. Cobleskill Stone Products, Inc. 

3. Hanson Aggregates New York LLC 

4. Keeler Construction Co., Inc. 

5. New York City Department of Transportation 

6. New York Construction Materials Association 

7. Peckham Industries, Inc. 

8. Richard Pecnik, Gernatt Asphalt Products 

9. Spectra Environmental Group, Inc. 

10. Tetz Asphalt, LLC 

11. United States Environmental Protection Agency, Region 2