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) plan t stone driers are an insignifica nt source of nitrogen oxide (NO x ) emissions and only account for approximately 0.10 percent of statewide emissions. With the Department’s estimated NO x reductions of up to 25 to 50 percent, NO x 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 NO x and volatile organic com pounds (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 Un ited States Environmental Protection Agency (EPA) is expected to promulgate its new 8-hour ozone NAAQS in August, likely in th e 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 additiona l 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 pa red down to 30 for further review. OTC workgroups collected and evaluated inform ation regarding emission benefits, cost-effectiveness, and implementation issues. In 2006 the OTC passed Re solution 06-02 which identified the following categories as sources from which sufficient NOx and VOC reduc tions could be obtained: asphalt paving, asphaltPage 2 of 23 production plants, cement kilns, glass furnaces, industrial, commercial, and institutional boilers, and regional fuels. Because of the current and impending nonattainme nt 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 stat es that only about 0.10 percent of statewide NO x emissions are from HMA plants. While this represen ts a small portion of the overall annual NO x emissions in New York State, the vast majority of hot mi x 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 cat egories on an annual basis, though production is concentr ated during the summer, when NO x emissions are most inclined to react with other precursors to form ozone. It is due to these disproportionate oz one season emissions that Department has followed OTC’s proposal to impose NO x reduction requirements.

Comment: EPA declared in 2007 that blacktop plants were not a significan t source of air emissions. Looking at the total NO x emitted by the roughly 200 plants in New York St ate reinforces this st atement. The entire volume of NO x emitted by all the blacktop plants in New York State is approximately 731 tons per year which represents 0.13 percent of all NO x 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 findi ng by EPA, and it was not mentioned in comments on the proposed Part 212 revisions by NYMaterials or EPA themselves, nor did the comment er provide a citation toPage 3 of 23 the EPA finding. Please see the above commen t for a discussion of the relevance of NO x emissions from HMA plants.

Comment: Even at a 50 percent reduction, which is real ly unlikely in today’s technology, the end result after millions of dollars of investment will be a very minimal reduction of NO x in the grand scheme of things. Over the last three years [the industr y] has basically reduced its NO x emissions by 20 percent just due to decreased production based on state funding issues. [6]

Response: The Department st ated that its proposed regul ation would have a maximum NO x reduction of about 50 percent. The Department believes that such reducti ons 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 yi eld the greatest possible results.

The Department recognizes that NO x emissions have declined due to the economic downturn over the past couple years. However, as the economy rebounds fr om 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.

Comment: It is unclear whether the impact of the proposed regulation on the ge neration of carbon monoxide (CO) has been considered. Flue gas recirculation (F GR), which generally lowers combustion temperatures, may result in an overall decrease in combustion effi ciency 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 re ason and additional technical reasons, the FGR assessment initially included in the initia l Part 212 proposal is not being included in the reproposal.

Comment: The Department reports that low NO x control technology will cost an estimated $500 to $1,250 per
ton of NO x reduced (equipment and installation of a low NO x burner) and $1,000 to $2,000 per ton of NO x reduced (equipment and installation of a low NO x burner with flue gas recirculation). Consultation with industry groups such as the National Asphalt Pavement Association (NAPA), comp anies that have actually installed this equipment, and the ma nufacturers and installers of low NO x burners and FGR equipment indicates the typical cost to be on the order of $150,000 to $250,000 per plant for only equipmen t and installation. Assuming an average cost per plant of $200,000, New Yo rk’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 relate d 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 NO x burner assessment through 2020. This wi ll prevent owners - particularly those who own multiple HMA plants—from making large on e-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 th reshold equal to that used for Reasonably Available Control Technology (RACT) to control costs incurred by plants. The use of this RACT thre shold, currently valued at $5,500 per ton of NO x reduced, will prevent HMA plants (e specially smaller and more efficient plants) from making large cap ital expenditures when emissions are low enough so as to prevent such controls from being cost-effective.

This economic threshold was also in place for th e initial Part 212 proposal, meaning this $40 million cost of compliance is artif icially inflated. It assu mes 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 woul d 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 capita l investment statewide. If not singula rly, 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 De partment is taking steps to gene rate an appropriate level of NOx reductions at costs that are not unreasonable to asphalt plants.

Comment: The proposed technologies would reduce annual emissions, at cu rrent production levels and fuel types used, by only about 15 tons. It is estim ated that the cost of installing a low NO x burner with FGR technology to be on the order of $200,000 to $275,000 per pl ant. 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 NO x 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 industr y consultants as well as other HMA companies that have purchased and installed low NO x burners or are in the process of doing so. From such information, the commenter is led to believe that the equipmen t 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. O bviously, 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 in to consideration. As expl ained previously, the reproposal addresses the cost issu es 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 st rong concerns that it will be forced into costly plant modifications while there are other options available that can resu lt in even greater plan t 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 regulatio n for practicality. There are best practice methods which can show NO x emission reductions with minor costs fo r today’s operations. Producers who invest substantial costs into their operations, which do not increase the efficien cy 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 equi pment presently in use, these costs will impact the cost of the production, which impacts the co st of the product, in effect driving asphalt pavement prices up arbitrarily in today’s t ough economy for private industry and th e State of New York. The dollars invested into emission reductions should be target ed toward the best retu rn on that investment. [6]

Response: The Department has taken this comment into consideration and has revise d the initial proposal with alternate NO x reduction methods. Annual burner tune-ups a nd 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 Associ ation (NAPA), should reduce NO x at reasonable cost and can even result in a payback to plants through decreased fuel use.

In addition, the re-proposal a ddresses changes to the low NO x 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 comp liance period will also aid in managing costs.Page 8 of 23 Comment: The Department did not adequately consid er other expected costs associated with low NO x control technology in its Regulatory Impact Statement (RIS). These additional costs include the following:
1. Some HMA plants may choose to close their plants rath er than justify such a la rge capital investment. This would result in lost employment and up ward pressures on HMA costs during already tough economic times. Increasing the distance HMA must be hauled also increases tr ansportation-related fuel consumption and related emissions. [3,4,6,9]
2. Some producers have replaced burners in recent years at a significant expens e, and it will be particularly onerous to require testing and po ssible replacement under these regu lations given the 15 to 20-year useful life of the burner. The regulations should allow for existi ng burners to be exempt from replacement until they reach the end of their useful lives. [3,4,6]
3. Since NO x emissions are a functi on of production, a complete engineer ing cost effectiveness analysis that amortizes capital costs over the useful life of the improvements requi res reliable forecasts of future production volumes over which to distribu te all costs, particul arly capital cost s. In the current economic environment it is extremely difficult to proj ect and estimate future production volumes. [1,3,4,6]
4. Experience has shown that low NO x technology reduces fuel efficien cy 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 fu el consumption and corresponding increased emissions of other pollutants. [1,3,4,6]
6. Additional equipment will require additiona l 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 NO x technology requires plants to opera te longer hours due to changes in production capacity or need to increase productio n 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 complian ce period which allows plants that have recently replaced their burner to wait until 2020 to perform the economic analysis of installing a new low NO x burner. It must be kept in mind that this deadline is merely for the economic analysis of a low NO x burner, which requires its installation only if it yi elds sufficient emission reductions for its cost.
3. The need to project and estimate production volumes is not applicable to only th e installation of control equipment. These are factors in decisions made by all businesses in all phase s of their ope rations, and the Department would expect it to be a considerati on here as well.
4. The Department has taken this comment into consider ation, and relevant language will be added to the revised RIS.
5. The reduction in NOx emissions and the environmen tal benefit that can be obtained from low NO x burners outweighs the relatively mi nor increases in other pollutants.
6. “Additional equipment” here likely re fers 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 NO x 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 toPage 10 of 23 counteract these potential pr oduction losses. Stockp ile maintenance and the increasing production of warm mix asphalt (WMA) should offset production lo sses as well. Additionally, newer technology allows for greater independent control of the air a nd fuel levels in the burner, which helps maximize efficiency.

Comment: The June 1, 2010 deadline for “control technolo gy assessments” is unrealistic. There are very few firms that have the necessary expertise to accomplish th e assessments, and they will not be physically capable of visiting and assessing the 200 HMA plants in that time frame. Since this regula tion will apply statewide, there is no opportunity to focus assessm ents in selected nonattainment areas. [1,3,4,6]

Response: The Department has taken this comment into consideration and the re-pr oposal will include a longer timeframe for the low NO x 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 HM A. If this is the case, the definition of “a sphalt” is superfluous. [3,4,6]

Response: Comment noted.

Comment: The proposed regulatio ns only contemplate two contro l technologies, either a low NO x burner or a low NO x burner combined with FGR. There is, however, no definition of what the Department considers to be a “low NO x burner.” If left up to the discretion of those reviewing permit modifications and technological/economic assessments it is inevitable that there will be inconsistent inte rpretation of the regulations. Without defi ned criteria for “low NO x ,” burner manufacturers as well as engineering consultantsPage 11 of 23 will also be challenged in assisting producers in complying with the propos ed regulations. It will be vitally important to provide detailed guidance to regiona l offices to assure uniformity of implementation statewide. [1,3,4,6]

Response: The Department has taken this comment in to consideration. The Department has dropped the FGR requirement from the re-propos al, but maintains the low NO x burner analysis as a requirement. Burner manufacturers contacted by the Department have de dicated models which they refer to as “low NO x .” Rather than setting a specific emission limit, the Department will rely on burner manufacturer definitions and guarantees of “low NO x .” Department staff will be encouraged to share information on which burners get approved as being “low NO x .”

Comment: Numerous HMA plants are in areas that are not serviced by natu ral gas. The cost s to install new natural gas infrastructure at these sites would be exorbitant and many pl ants would be forced to close. Similarly, installation of multiple large propane tanks w ould have serious public safety implications and/or could be prohibited by local zoning or dinances. The Department should e xplicitly state th at the regulation would not require such faciliti es 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 f acilities that are non-operati onal for long periods of time. In some cases, individual plants may not be us ed for many years, but the permits are maintained to provide flexibility or in an ticipation of future contracts or improve ments in business conditions. The proposedPage 12 of 23 regulations do not offer any guidance on the regulatory treatment of these facilities. Indus try proposes that inactive plants be exempted from control technology assessments until th ey 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 reconci liation 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 interpretati on of the results of the analysis, the parties will work together in an effo rt to reach a common conclusion as is the case with most of the Department air pollution control requirements. The Departme nt will not unilaterally conclude that a low NO x 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 mean s of redress available under New York State Law. In the event that partie s cannot reach an agreement on the low NO x 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 effort s to develop and pr omote the use of WMA that heats the aggregate to temperatures appr oximately 35 percent lower than traditional HMA and reduces fuel consumption by approximately 25 percent and NO x emissions by 34 percent. It is projected that once WMA specifications are fully integrated into federal, state and local specifica tions, the industry will be able to sell greater amounts of WMA. Industry expert s forecast that WMA will have approximately 50 percentPage 13 of 23 of the blacktop market in the next five years. This alte rnative is a win-win situation for all parties involved as it reduces fuel consumption, with little or no increased blacktop costs, requires le ss capital investment and reduces overall emissions relative to traditional HMA. Working with state, county and loca l 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 a nd will not greatly affect blacktop costs. [1,4,6]

Response: The increased applica tion of WMA and the potential NO x reductions that would result are very encouraging. The Department recognizes that the i ndustry 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 wa ys to reduce the formation and emission of NO x . The Department has spoken with staff from the New York State Department of Tran sportation (NYSDOT) on this topic. NYSDOT is still conducting te sting on the use of WMA to ensure th at 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 WM A and define where it can be acceptably applied, the Department is unable to explicitly require its producti on and use; WMA will likely have varying levels of demand in different parts of the stat e 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 t echnology is nationally r ecognized. It expects ove r 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 la test and greatest tec hnology it is definitely a win/win for all sides. [6]Page 14 of 23 Response: Comment noted. Pl ease see the above response.

Comment: There are many ways of re ducing 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. Th is technology allows for the production of material at temperatures 50 to 100 degrees lower than conventional HM A, using less fuel and resulting in lower emissions. If the NYSDOT would accelerate their use of WMA, this in dustry could easily see emission reductions that will far outweigh the use of low NO x burners, at less of a cost to the public. [7]

Response: Please see the ear lier response regarding the ap plication of WMA. The De partment has taken this comment into consideration, but has retained the low NO x burner analysis requirement. NO x emissions from the largest plants will likely remain high enough to justify the analysis and potential inst allation of a low NO x burner.

Comment: The HMA industry cannot absorb the cost of this regulation and will n ecessarily pass it on to the consumer. Most plants sell at le ast 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 tig hter budgets and increased HMA costs associated with higher fuel and li quid asphalt costs—all at a time when New York’s aging infrastructure needs a large investment to meet future n eeds. The Part 212 regulatio ns, as proposed, will result in increased HMA prices and, without increased expend itures by government agencies , decreased HMA sales. If governmental agencies increase expend itures 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 NO x . 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 NO x emissions is realized, a one-to-one correlation between reductions in NO x leading to reductions in primary ozone, and the current 75 ppb 8-hour ozone standar d, the resulting 8-hour NO x level would only be reduced to 74.96 ppb—a statistically insi gnificant reduction. The cost to the HMA industry, governments and the taxpayer of a percei ved “benefit,” which is incapable of quantification to a statistically significant figure, is not wo rth contemplating. In order to achieve compliance with the primary ozone NAAQS,
NO x reductions from other larger sources need to be sought. [1,3,4,6,9]

Response: Ozone is a secondary pollutant formed thr ough a complex series of chemical reactions. Reductions in ozone are not correlated on a one -to-one basis with reductions in NO x emissions. In NO x -limited environments, the relationship can be larger. Still, total emission reductions ar e always the sum of the reductions from all sectors. Some are large, and so me 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 th e other OTC states that are presently pursuing reductions from asphalt plants. A prior response also explained how annual average NO x emissions from HMA plants are relatively low when compared to other major source sector s, but nearly all the emissions from HMA plants are concentrated during the ozone season a nd particularly on hot, sunny days.Page 16 of 23 The Department is currently undertaking a nu mber of additional rulemakings to seek NO x reductions from other sources. The Department is finding it neces sary to regulate smaller and smaller sources to obtain adequate reductions of ozone precursor s 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 NO x levels, the Department should withdraw the proposed revi sions to the Part 212 regulations. [2,3]

Response: The “no action” section of the RIS explains that the Depa rtment 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 b een identified by the OTC as an appropr iate 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 pr omulgation 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 ve ry productive meeting with representa tives of NYMaterials on February 8, 2010. The NYMaterials representatives explained the industry’s issues with the initial propos al, and the sides held a discussion of potential alternative methods of regulat ion. Department staff has al so been in contact with the group since this meeting. The Department has take n the views of NYMaterials and its member companies into consideration in the dr afting of this re-proposal.Page 17 of 23 Comment: It is strongly recommended that the Part 212 regulations should be reworked base d on alternatives developed by the Department and the HMA industry and th e appropriate changes be ma de 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 NO x 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 ope rate a large burner (greater than 25 mmBtu/hr) and cap emissions below 25 tons of NO x per year should also be required to only perform an annual burner tune-up. [5]

Response: In discussions with NYMa terials it was found that very few plan ts operate burners with heat input less than 25 mmBtu/hr, and as a result , the Department expanded its requireme nts to all burners. Furthermore, the Department is taking steps in its re-proposal to less en the costs to small, well-managed plants as per public comments received.

Comment: The current proposed language does not go far enough in separating case s where application of RACT requirements would serve the important purpose of NO x reduction from cases where application of RACT would be wasteful. This plant’s emissions were lower, even, than the OTC projection for NO x emission rates in low NO x burners fueled with natural gas. The low emi ssion rates have been achie ved without the use of a low NO x burner even though the plant uses a 100 mmBtu/hr burner. For cases like this an economical andPage 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. Pl ease see the above response.

Comment: Under 6 NYCRR Part 212.10(a)(1 ) only those major facilities loca ted in the lower Orange County or New York City metropolitan areas with an a nnual potential to emit 25 tons or more of NO x or 25 tons or more of VOCs have to comply with the RACT requirement s. The same standard should apply to HMA plants. The language in 212.10(g)(1) should be revised to refl ect more accurately the universe of HMA production plants for which application of RA CT requirements would be prudent. [5]

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

Comment: The timeline for implementation (in which pe rmit modifications and cont rol 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 as sessed for each site (the su ccess of external flue gas recirculation, in particular, depends greatly on the configura tion), we believe it woul d make sense to give facilities at least six months to apply for new perm its. Ideally, the compliance lead-in period would be calculated as starting 180 da ys from the date that the new regulatio ns 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 reduc tion methods approved by the Department should be changed from January 1, 2012 to tw o years from receiving Department approval. [5]Page 19 of 23 Response: The Department has taken this comment into consideration and the re-p roposal 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 ev en the manufacturers of low NO x burners. While meetings such as [this public hearing] do allow for public comment, the issue at ha nd can only be properly addressed with meaningful dialogue between the Department and our industry. A reque st was made that regulator s continue to work with NYMaterials in order to draft meaningful regulations that will lower plant emissi ons 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 repres entatives and feel the di scussions 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 NO x burners,” the incred ibly short time frame for compliance with plant assessments, the huge co st implications of ha ving 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 pr oposed regulations will cert ainly 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. Budge ts at agencies like thePage 20 of 23 Thruway Authority, NYSDOT, and county, town, and vill age 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 NO x , as project sponsors will have to travel greater distances, us ing 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 deterior ate at an even faster rate than it currently is. Poor infrastructure moves traffic much less efficiently, directly contributing more NO x emissions to the environment. This legislation will result in a net increase in NO x 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, th e Department has taken such concerns into consideratio n 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 goi ng to conduct the technical review of the assessments required by June 1, 2010? Will approval/disapproval be consistent statew ide? Many state regulations are already applied inconsistently in different regions and many technical documents requir ed 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 wi ll get fair and equal treatment. [8]

Response: The re-proposed Part 212 revisions will contai n a requirement for a simplified analysis. Instead of a full control technology analysis, an economic analysis for only a low NO x burner will be necessary. ThePage 21 of 23 to endure. [8] Department is employing the economic analysis calculati on that has long been used for RACT, and will thus make consistent decisions about the feasibility of a low NO x burner regardless of who is doing the review.

Comment: These proposed changes, while well-intend ed, 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 us es which generate more significant volumes of NO x . 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 regulat ions if applied to th e commenter’s new plant would be economically devastating. Te tz made a substantial investment in constructing the plant, creating new jobs, despite the poor economy. As cu rrently drafted, the propos ed regulations will requi re burdensome retrofit and testing requirements which are unlikely to result in any significant reduction in NO x 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 sugges tion 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 ofPage 22 of 23 the regulation or one year from when co mpliance plans are due—whichever is sooner). [11]

Response: The Department has set deadlines which are reasonable to me et yet not overly burdensome for the HMA industry. An extended compliance period for the low NO x burner analysis is necessary in order to account for HMA plants which have r ecently replaced their dryer burner.

Comment: The Department should establish a prescribed RACT for large asphalt pl ant burners—ins tallation of a low NO x burner or a low NO x burner in combination with FGR, or es tablish emission limits which reflect the application of the suggested control technology, with the option of an alte rnate RACT limit. Upon evaluating case-by-case RACT determinations, EPA would expect the Department to cons ider other state RACT determinations as a benchmark for establishing RACT for New York facilities.[11]

Response: The Department has taken this comment in to consideration and after further consideration and discussion with industry repr esentatives, 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-t ype control technology assessment to a method incorporating best practices and a low NO x burner economic analysis.

Comment: The Department should incl ude language which states, “Approve d 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 b een 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 Construc tion 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