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Notice Bulletin (ENB) ) ENB Current and Archives forJanuary

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Notice Bulletin February 4,2AAg ) ENB- Statewide

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# ENB- Statewide Notices 21412A09 ,"1



### Environmental

Notice Bulletin (ENB) ENB Current

and Archives for January- December 2009 Environmental

Notice BulletinFebrualy

4f 2909 ENB - Statewide Notices 21412009

IRegulations

and Enforcement

i Publications,

Forms, Maps

:About DEC 

# PublicNotice

Noticeof Amended

Adoption

New York State Department of Environmental

Gonservation

6 NYCRR

Part'200,

General Provisions 6 NYCRR

Part2O1,

Permits and Registrations 6 NYCRR

Par1231,

New Source Review for Newand Modified Facilities

Thedepartment

filed a Notice of Amended

Adoption

with the Department of State on February

3, 2009. This Notice willbe published

in the State Register on February

18, 2009. The effective dateof this rulemaking

is March 5,2009.

This filing willcorrect

he Department's Contact for this



# !-lgl ENB NYSDEC Division of Environmental Permits 625 Broadway,4th Floor Albany, NY 12233- 1750 518-402-9167 email us



## http ://www. dec.ny.

govI enb I 20090204_not0.html 

## 2/6/2009

### .DI\5 - Dfatewtoe N0uges 4+tzwy - l\ r D uEpt. or Dnvlforunentar \-onssfvauorl



## Notice of Adoption

filedon January

20, 2009, which was published

in the State Register February 4, 2009.

Pursuant o Environmental

Conservation Law, Sections

1-0101, 3-0301, 3-0303, 19-0103,

19-0105,

19-0107, 19-0301, 19-0302,

19-0303, and 19-0305

and Sections

160-169 dnd 171-193

of the Federal Clean AirAct (AcQ

(a2 U.S.C. 7470-7479:7501-7515) the New York State Department

of Environmental Conservation

hereby givesnotice

of the following:

Notice of Amended

Adoption

of Rules on February 2,2009, filed with the Department

of State on February

3, 2009, to be effective

March 5, 2009, to amend existing 6 New York Code

of Rules and Regulations

(NYCRR)

Part 200,General

Provisions;

Part 201, Permits and Registrations;

and Part 231, New Source

Review for New and Modified Facilities.

Theadoption

of these amended

rules is forthe purpose

of implementing nonattainment

NewSource

Review (NNSR) andattainment

NewSource Review (Prevention

of Significant Deterioration

[PSD]) program requirements.

The NNSR

requirements

are based

on New York's existing NNSR program 6 NYCRR

Subpart 231-2, with revisions to include

selected provisions from the December

31,2002Federal NSRreform

rule as amended

on rage zoL t



## http://www. dec.ny.

gov/ ertb 120090204_not0.html 

## 2/6/2009

## December 21,2007.

The PSD requirements

arealsobased

in large part on the December'31

,2002 Federal NSRreform

rule as amended,

andas codified at 40 CFR 52.21

For further information, contact:

Rick Leone NYSDEC

- Division

of Air Resources 625 Broadway Albany, NY 12233-3254 Phone: (518) 402-8403 E-mail: 23 1 nsr@gw.dec.state.ny.us

Variance

from StagellVapor Recovery

Requirement

at E85 Dispensing

Pumps

Notice is hereby

given that the New York State Department

of Environmental Conservation

(Department

or NYSDEC) plans to submit

State lmplementation Plan (SlP)revisions

for six E85

gasoline dispensing

sites to the United

States Environmental

Protection

Agency (EPA) for approval.

E85gasoline

isfuel containing

up to 85 percent

ethanol.'

Part230 of Title6 of the New York Codes, Rules, and Regulations (NYCRR)

contains a requirement

to install Stage ll vapor recovery equipment at gasoline

dispensing

sites located in the lower

Orange County and New York City metropolitan

areasin order

to reduce emissions

of volatile

organic compounds

(VOCs) andthe related

http ://www.dec.ny.

gov/ enb I20090204_not0.html 216/2009!ltu - 9t4lvwluv rtvtrwD 2taI Lvvz - rf I p vvPt. vr lllvlFvlurrwtllgr vvllDvl Yctlull



## formation

of ozone.

A Stage ll.vapor
recovery device captures at least 90 percent, by weight,

of gasoline

vapors whilea er,r

is beingrefueled

and qither

. retains themin a storage

tank, or

recovers or destroys

them in an emission

control device.

Onboard

Refueling

Vapor Recovery (ORVR) hasbeenrequired

on all passenger

vehicles since 2000 andon all light trucks since 2007. ORVR, like Stage ll equipment,

prevents the release of VOCemissions

whenrefueling.

When ORVR and Stage

ll technology

are used in conjunction,

however,

an increase

in vapor emissions

can result.

E85gasoline

canonlybe used

in specially designed

flexible fuel vehicles. Most of these vehicles have beeh manufactured

since1998,

andallflexible fuel vehicles built today areequipped withORVR.

Because of the prevalence of ORVR

technology

inflexible

fuel vehicles andthe incompatibility

with Stage ll eouipment,

a number

of stations intending

to install E85pumps

are requesting

a waiver from the Stage

ll equipment

requirements.

ln accordance

with the Department's

Aii Guide 20 guidance

and6 NYCRR Section 230.8, source owners are granted a variance

from the Stage

l1 requirements

when economic infeasibility

prevents the installation

of such controls. Below are listed

six stations that have

provided the

h@ ://www.dec.ny.

gov / enb / 20090204-not0.html L s6V.a VL t



## 2/6/2009Ll'r\.rjr - DLaaLEwr(Js |rulr9sJ LrarLvv> - l\ r lJ rJl;Pt. Lrr llllvllr.rlltllttlltal ut llsglvaluull



## - Department

witheconomic

analyses whichshowcosts

for Stagell equipment

on E85pumps

wellabove

the level that hasbeen

established

per Air Guide

20. Due to these excessive

costs andthe proven inability to function

correctly with ORVR technology,

the Department proposes

to allow theseE85pumps

to operate without Stage tl equipment.

In addition, a guidance

document

issued by EPA supports the claim

thatORVR technology

has reached

a sufficiently large portion of flexible

fuel vehicles. Therefore,

the Department

willsubmit these analyses

to EPA for approval

as SIPrevisions.

These willjoin the28 similar analyses,

published

inthe September

17th Environmental

Notice Bulletin, which are in the process

of being granted variances

by the Department.

. Arzu Petroleum

- Commack

. B&JService

Station - Sloatsburg

. CitgoExpress

- Bay Shore

. LUK - North Babylon

. T&C Mobil

- Holbrook

. T&C Mobil

- Rocky Point

The Department

is providing

a 30 day period to comment

on the proposed submittal

or request

a hearing.

Written
comments

should be submittedPy March6,2009to Scott L. Griffin,

NYS DEC, 625 Broadway

- 2nd Floor,

Albany, NewYork, 12233-3251

or by e-mail

to:

a i rsi ps@ gw.d ec. state. ny.us.

http ://www.dec.ny.

gov/ enb I 2009 0204_not0.html r.o6v J uL

,



## 2/612009

## Gregory LaBarge can be reached

at (518) 402-8403

with any questions regarding

these SIP revisions.

Procedures

to address

the presence of registeredsex offenders in New York State Department of Environmental

Conservation

(NYS DEC) Gampgrounds.

It isthe intent

of the Department

to

ensure the safety

of visitors

at all NYS DEC facilities. At times,

the Department may become

aware of the presence

of

an individual(s)

who maybe identified

on

a publicly

available

sexoffenders

list.In accordance

withthe Sex Offenders Registration

Act (Megan's

Law), it may become necessary

to inform visitors of the presence

of suchindividuals.

The Department

hasdeveloped

procedures
to respond

when the presence

of such

an individual

is brought

o the attention of NYS DECstaff

andto notify

the public accordingly.

Comments

will be accepted

until February

18,2009.

lnformation

on the procedures

can be reviewed

by contacting

the Department's contact person at: (518) 402-9060.

Contact:Douglas

Bernhard,

General Manager of Forest

Parks, NYS DEC, 625 Broadway,

Albany, NY 12233, Phone: (518) 402-9060.

http ://www.dec.ny.

gov/ enb /20090204_not0.html 

## 2/6/2009

## Privacy Policy I Website

Usage and Policies

I Website

Accessibility

I Employment

lContactUs Copyright

@ 2009New

YorkStateDepartment

of Environmental

Conservation



## http ://www.dec.ny.

gov I enb I2009 0204_not0.html 2/6/2049

## Rule Making Activities NYS RegisterlFebruary 4, 2009

or (3) possession

ofa current

certificate

ofadministrationissued by anothbffurisdiction and continuous practicein the administration of immuniz'ine

asents since the pharmaiistreceived suchtrainineor comoletion of a-refrining program'in theadminisration

of immunizitionage'nts. Section 63.9@!4) e-stablishes the standards,

procedures

and rep6rting reouirements

for theadministration

of immunizins

aqents. Section 63.9(b)(5)(i)

provides that certified

phlrriacistS

shall maintain or ensure

the maintenance

of a copy of the patientspecificorderor the non-oatient

soecific order and orotocol orescribed

bv a licensed

phvsician
or a tertifiednune practitionei which duthorizes

thi: certified

pfiaimacist to administer

immuilzation asents.

This section

prescribes

th-einformation requiredto be includedin patient specific brdersand non-patient specific orders andprolocol.

Such orders andprotocol

shall be considered a record of the oat:ient. The pharmacist

shall maintain a record of the oatient in either: (a) a patient

riedication

profile, or (b) in instances where i patient medicaiiirn

-profrle is not required;

oh a iiparate form that is retainedby the pharmacist who administered

the imrnunization. Section 63.9(b{5)(ii) establishes thecontents

ofpatient specific

orders andnon-patient

specific orders. Section63.9(b)(5)(iii) specifies additionalprovisionsrequired to be includedin non-patient specificorders,

includingthe incorporation of a protocol. Section63.9(b[5)(iv) requiresthe protocol, incorporated into the nonpatient specific order, to include the standards, procedurrs and.reporting requirements

etforth in section

63.9(b)(a). Section 63.9(c)(l) authorizes

certified pharmacists

to administer

medicationsfor the emergency treatrnent

ofanaphylaxis. Section 63.9(c)(2)

establishes

the standards,

procedures

and reporting requirements

for the administration

ofanaphylaxistreatment agents by certified pharmacists. Section63.9(c)(3)(i) requires a certified pharmacist

to maintain or ensure the maintenance

of a copy of the non-patient specificorder and protocol prescribed

by a licensed

physicianor a certified nurse practitioner that authorizes

suchpharmacist

o administer

medications

for the emergencytreatment

of anaphylaxis.

This sectionrequires

a recordof each patientto be maintained in either a patientmedication profile, or in instances wherea patientmedication profile does'not

exist,on a separate form that is retained by the pharmacistwho has administered the immunization. Section 63.9(c)(3)(ii)

provides thatthe non-patient

specific ordir shall authorize

one or more named

pharmacists,

or certifiedpharmacists who are not individually

named but are identified

asemployed

or under contract with an entity that is legally authorizedto employ or contract with pharmacists

to providepharmaceutical services, to administer

specified anaphylaxis

treatment

agents in specified

circumstances

for a prescribed period of time. This subparagraph also presctibes

the contentfor such non-patient

specifi c orders. Section 63.9(c)(3)(iii)

requires thatthe protocol

to be incorporated

into the non-patient

specific order include the requirements set forth in section 63.9(cX2). Revised rule compared

with proposed

rule.' Substantial

revisions

were made in section

63.9(b)(4Xx). Ten of revised

proposed rule and any required slatements and analyses may beobtainedfro,n

Lisa Struffolino,

New York State

Education

Department,89 Washington

Avenue, Room 148,

Albany,NY 12234,(518) 473- 4921, email: lstruffo@mail.nysed.gov Data, views or argumentsmay be submitted/o.' Frank Munoz, New York State Education

Departrnent,2nd

Floor,WestWing, Education Building, Albany,NY 12234,

(5 18) 486- I 965,email

: opopr@mail.nysed.

gov Public comment

will be receivetl

antil: 30 days

after publication

of this notice. Revised Regulatory Impact Statement Sincepublicationof a Notice of Proposed Rule Making in the State Register on November

19,2008, the following substantial revisiorswere made to theproposed

rule: Section63.9(bXaXx) has been revisedto clarify that a cbrtified pharmacist

shall reportthe administration of any immunizations

to the New York State Department of Health and/or to the New York City Department

of Health

andMentalHygiene,

in a manner

required by either the Commissioner

of Healthof the State

of New York or of the Citv of 

### *?rJ:*':',:iiJtfi3fo *," p,opor"a rure do not requi," uny."uirion.

to the previously published Regulatory Impact Statement. Revised Regulatory Flexibitity Anatysis Since publication of a Notice of Proposed Rule Making in the State Register on November I 9, 2008, the proposed rule was revised 4s set forth in Statement Conceming the Regulatory Impact Statement filed herewith. The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Flexibility Analysis.


### 1 0 Revised Rural Area Flexibility Analysis Sincepublicationof a Notice of Proposed Rule Making in the State Register on November 19,2008,the proposed rule was revisedas set f.orth .in the RevisedRegulatory Impact Statement frled herewith. The aboverevisionsto the proposed rule do not requireany revisionsto the previously publishedRural Area Flexibility Analysis. Revised fob Impac, Statement Since publicition of the Notice of Proposed Rule Making in the State Register on November 19,2008, the proposed rule was. revisedas setforth in the Statement

Conceirning

the Regulatory h4pact Statement filed herewith. The proposed

rule, asso revised,

requires certified pharmacists

to report the administration of any immunizations to the New York State Department of Health and/or

to the New York City Department of Health and Mental Hygiene, in a mannerrequiredby either the Commissioner of Health of the State

of New York or of the Ciw of New York. The revised

. rule will not have a substantial adverse imfact on job or employment opportunities.

Because it is evidentfrom the nahrre ofthe revisedrule that it will have no impact onjobs or employment opportuhities,

no further measures

were taken.Accordingly, ajob impact statement is not required and one hasnot beenprepared. Assessment

of Public Comment A Notice of Proposed

Rule Making was published in the StateRegister on November

19, 2008. Bqlowis a summary

of writtencomments

received

. by ttre State Educ-ation

Department

(SED)andSED'sassessment of issues raised. l. COMMENT: Section 63.9(b)(4)(x)

of the proposed

amendment

re-

. lates to the repofting requirements for both the New York Starc Department of Health and the New York City Department of Health and Mental Hygiene. Howevet,

thissectipn

only refers

to theCommissioner

ofHealth, which could be interpreted to mean only the Comrnissioner of Healthof the Stateof New York and not the New York Citv Commissioner of Health, aswas originally intended. DEPARTMENTRESPONSE: SED agrees

with this comment

and has revised the proposed

rule to referto the "Commissioner of Healthof the State of New York or of New York City, asapplicable. 2. COMMENT: One commenter indicated

that the proposed

amendment is inconsistent

because it refersto the individuals receiving immunizations

asboth "patients" and "recipients." DEPARTMENTRESPONSE: SED agrees

thatboth terms

areusedinterchangeably

throughout

the proposed

amendment.

However, SED believesthe terms are used appropriatelyand will not result in confusion to the regulated

parties. 

# Department of Environmental Conservation

NOTICE OF ADOPTION

New Major Facilities and Major Modilications to Existing Facilities
I.D. No. EI.IV-39-07-00006-A Filing No. 74 Filing Date: 2009-01-20 Effective Date: 30 days afterfiling

PURSUANT

TO THE PROVISIONS OF THE State

Administrative

Procedure Act, NOTICE is hereby givenof thefollowing action: Action taheni Amendment of Parts 200,201 and

231 of Title 6 NYCRR. Statutoryaathority

: Environmental

Conservation

Law, sections

I -01 0 l, 3-0301, 3-0303, l 9-0103, l 9-0105,

1 9-0107, 19-0301, 19-0302, l 9-0303 and l9-0305;

andFederal

Clean Air Act, sections

160-169 and l7l-193 (42U.S.C.

7470-7479:7501-75

l5) Subject: New major facilities and major modifications to existing facilities. Purpose:To comply with the 2002 Federal New Source

Review (NSR) Rulepromulgated

andcorrect

deficiencies

thatthe EPA identified. Substance

of Jinal rule : The Departrnent of EnvironmentalConservation (Department)

is proposing

revisions to its rulemaking

proposal published in the State

Register on September

26,2007for Parts

200,201and231 of Title 6 of theOfficial Compilation of Codes,

Rules, andRegulations

of the

## NYS Register/February 4, 2009 Rule Making Activities

State ofNew York, artitled "General Provisions," "Permits and Regiitrations" and "New SourceReview in Nonattainment Areas and Ozone Transoort

Regions" respectively. Thi Part 210 amendhents \iill add a definition for Routine Maintenance, Repair, or Replacement

(RMRR), codifying currentDepartment Dractice ofreviewins RMRR activities on a case by case basis. takineinto iccount the narure

a;d extent

of thedctivityandits frequency'and crj6t. In addition, the Deparsnent

is revising

Part 200 (Sections

200.9 and200.10). Section 200.9 is being amended to'include

all'federal

materials

referenced in the proposed

amendments

to Part 231. Section

200.10(a)

i ity for implementation

of the tion @SD)Program. t 231. Section 200.10(a)

is being rt is no longer delegated

responsibilPrevention

of Significant Deterioraamended to reflect that the Departrnent is no longer delegated ity for implementation

of the FederalPrevention of Significar
n (PSD)Program. The proposed

amendments

to Part 20l revisethe definition for "major stationary source or major source" at 6 NYCRR 201-2.1b)Ql). The definition will now encompassthe term "major facility" and incorporate ma. jor facility and significant project thresholds for facilities emitting' particulate matter or particles.with an aerodynamic'diameter less than or equal to a nominal 2.5 micro-meters (PM-2.5). EPA designated the New York City metropolitan area as nonattainment for the PM 2.5 standard (70 Fed. Reg. 944). Nonattainment new source review (NNSR) is now required for new major facilities and major modifications to existing facilities that emit PM 2.5 in significant amounts in the PM2.5 nonattaiffnent
area. The existing nonattainment New Source Review program at Part 231 will be re-titled "New Source Review for New and Modified Facilities" and will include new Subparts 231-3 through 231-13. The new subparts will implement nonattainment New Source Review (NNSR) and attainment New Source Review (PSD). The |r[flSR requirements are based on New York's existing NNSR program Subpart 231-2, with revisions to include selected provisions from the December 31,2002 Federal NSR reform rule and EPA's December 21,2007 Reasonable Possibility in Recordkeeping Rule. The PSD rrquiremenb are also basid largely on the December 31.2002 Federal NSR reform rule as codified at 40 CFR 52.21. The proposed revisions to Part 231 will change the basis ofapplicability for modifications and emission reduction credits (ERCs) from an "Emission Unit" basis to an "Emission Source" basis, incorporate various federal requirements, provide clarifi cation of existing requirements, and require comprehensive reporting, monitoring, and recordkeeping that will conform to the requiremens of Title V. Through this rulemaking, the Department will also establish a new method for determining baseline actual emissions. Baseline actual emissions will be determined by using any 24 consecutive month period ofemissions in the previous five years. All facilities (no separate baseline period for electric utility steam generating units) will be required to determine *reir baseline actual emissions us. ing this method. The Department will retain existing Subpart 231-l l'Requirements for emission sources subject to Qe regulation prior to November 15,1992'l and Subpart 231-2, "Requirements for emission units subject to the regulation on or after November 15,1992". These regulations are currently cited in many air permits issued throughout the State and retaining them will facilitate implementation and enforcement of the NSR program. Existing Subpart 23 I -2 will be revised only to indicate that the Subpart will not apply after the date the proposed revisions to Part 23 I become effective. Thus, permit applications received on or after the elfective date of revised Part 231 will. be processed according to the provisions of Subparts 231-3 through 231-13, as applicable. New Subparts 23 I -3 through 23 l-l 3 have been added to include provisions from the EPA December 31, 2002 NSR Rule, and incorporate the Federal PSD program. The NNSR provisions currently specified in Subpart 23 I -2 are being updated and incorporated into these new subparts. The Department is also adopting a State PSD program which is based largely on the Federal PSD rule and included in Subparts 231-7,231-8, and 231-12. The subparts of the proposed regulation are being organized to ease determinations of applicability, to collect common requirements into gmups, and to streamline the regulation. The organization ofthe new regulation strives to make a more coherent series of requirements and obligations. Subpart 231-3 General Provisions specifies provisions which apply generally such as a transition plan, exemptions, general prohibitions,

source obligation, general permit requirements, facility shakedown periods, and circumvention. Proposed Section 231-3.4 @xemptions) has been revised to remove the Clean Coal technology exemptions. The Department has determined that these exemptions are out of date and no longer necessaryfor implementing the NSR program. The Source Obligation section Q3l-3.6) includes a requirement that any owner or operator ofa facility that proposes a project that involves a physical change or change in the method ofoperation that the owner or operator determines would be followed by a facility emissions increase that equals or exceeds any ofthe significant project thresholds in Subpart 231-13, Tables 3, 4 or 6. must notifo the Departnent in writing of the proposed proiect prior !o iirplementin! the chaige if the owner or-opemtof.deiermini:s.that the project does not constitute a modification because all the emisston increases
are attributable to independent factors in accordance with Clause 231- .l&Xa0Xi)(c). The n6tification must include (l) a description of the change, (2) the calculation of the projected emissions increase, (3) the orooosed date ofthe chanse. and (4) an explanation ofthe facnral basis for ihe'conclusion that none -ofthe piojected'ernission increases are attributable to the proposed project. Subpart 23 I 4 defines the terms used throughout Part 23 I and incorpo. rates terms from both the existing Subpart 231-2 and the Federal PSD ru|e,40 CFR 52.21. The Department has made minor revisions to terms used in existing Subpart 231-2 and 40 CFR 52.21 so that definitions are consistent for both nonattainment and attainment NSR and with New York's regulations. The Department has also removed the previously proposed Clean Coal technology definitions to be consistent with the remoyal ofthe Clean Coal technology exemptions in Subpart 231-3. To facilitate the intplementation and administration of Part 231, the Deparfnant has included the requirements for new and modified facilities in four main Subparts (231-5 !o 231"8) depending on the facility's location in an attainm€nt or nonattainment area. Subpart 231-5 is ipplicable to new facilities and to modifications at existing non-major facilities in nonattainment areas. Proposed new major facilities will continue to be.subject to the requirements to install Lowest Achievable Emission Rate (LAER) and obtain emission ofisets as they are under existing Subpart 231-2. T\e subpart also specifies that non-major facilities undertaking projects which are major by themselves, or increase the emissions of the facility above major thresholds must obtain permits which limit emissions. Subpart 231-6 applies to modifications at existing major facilities in nonattainment areas. The subpart continues the requirements for LAER technology and emission offsets that exist in the Department's current nonattainment NSR program. The subpart also specifies that facilities can perform a netting exercise to determine whether the modification, when considering other contemporaneousactivities at the facility, would exceed applicable emissions thresholds. Subpart 23 I -7 applies to new facilities and to modifications at existing non-major facilities in attainment areas. The subpart implements the requirements for determination of air quality impacls through modeling, and the application of Best Available Control Technology (BACT). The subpart also specifies that non-major facilities undertaking projects which
are major by themselves, or increase the emissions of the facility above major thresholds must obtain permits which limit emissions. Subpart 231-8 applies to modifications at existing major facilities in attainment areas of the State. The subpart implements the requirements for determination of air quality impacts through modeling and the application of BACTI in the case of facilities which undertake a NSR major modification. These requirements addreSs Federal PSD requirements: The subpart also specifies that facilities can perform a netting exercise to determine whether the modification, when combined with other contemporaneous activities at the facility, would exceed emissions thresholds. The remaining five subparts include general provisions that apply to both new and modified subject facilities.

. Subpart 231-9 sets forth the requirements for establishing Plantwide Applicability Limitations @AL) at Title V facilities. A PAL allows a facility to undertake modifications without being subject to NSR review as long as the facility does not exceed its PAL emission limit. Subpart 23 I -9 is based on the PAL provisions from the December 31,2002 Federal NSR rule (67 Fed Reg at 80278), which specify PAL creation, duration, and expiration. The Department has made a few revisions to the Federal regulatory language to take into account Subpart 201-6, New York's approved Title V regulation ahd to ensure that reduced emissions and improved air quality will result. PALs are established in Title V permits and are subject to Title V permit application and processing procedures for creation, modification, or renewal. PALs are created for an initial period of l0 years, less if established during the middle of a Title V permit term, and can be renewed for l0 yean, subject to certain rcstrictions. The proposed regulation requires that the PAL shall be reduced to 75 p€rcent of the initial PAL, commencing with the first day of the sixth year of the PAL. unless the owner or oDerator demonstrates that a lesser level of reduction is justified. The oiher or operator may seek an alternative reduced PAL by demonstrating that the application of BACT and/or LAER, as applicable, on all major PAL emission sources at the facility would not result in a 25 percent reduction in the initial PAL. The Department may authorize a reduction in the PAL to a level that would reflect the emissions from the facility if all major PAL emission sources are operated at full capacity after complying with BACT and/or LAER, as applicable. Subpart 23 | -l 0 defines emission offset and Emission Reduction Credit (ERC) creation and use. The provisions for ERC creation and use are substantially the same as existing Subpart 23 I -2 except for the determina

### 1 1

## Rule Making Activities 

## i\[YSRegisterlFebruary 4, 2009

tion ofERC enforceability. Under proposed Subpart 231-10 the Department has clarified how ERCs are made enforceable. Subpart 23 I - I I sets forth permit requirements for new major facilities, NSR major modifications, and netting. This Subpart also establishes reasonable possibility requirements for insignificant modifications. These requirements are in addition to any Part 201 requiranents that may apply. The Federal Reasonable Possibiliw Rule onlv requires post-chanqe monitoring for insignificant modificaiions if thd pnijected actual eirissions increase @art 231 project emission potential) is by iself greater than or equal to 50 percent ofthe applicable significance threshold. Proposed Part 23 I extends the post-chanse monitoring requirement to also include anv modification witfi a proieciemission potEntial which is less than 50 percerit ofthe applicable sigfuificant project t}Lreshold in Table 3, Table 4 oi Table 6 ofSuboart 231-13. but eoualsor exceeds 50 oercentofthe aoplicable simificait proiect thresholdwhen emissions exciuded in accordirice with Clause 23 I -4.i (b)(a2)(i)(c) (emissions from independent and unrelated factors) are added. For such modifications, facilities will be required to keep records of their calculation of emission increasesfrom inddpendent andunrelated factors such as dernand growth. monitor post-modification emissions, and submit annual report! to verify the iccuracy of their calculatioris. Additionally, the Federal Reasonable Possibility Rule only requires EUSGUs to notify the Department, prior to beginning actual construction, for any modification with a project emission potential which equals or exceeds50 percent ofthe applicable significant project threshold. Prooosed Part 231 extends the Dre-construction notification reouirement to dny facility that proposes i modification with a project bmission potential which equals or exceeds 50 percent ofthe applicable sigrrificant project threshold or proposes a modification with a project emission potential which is less than 50 percent ofthe applicable significant project threshold in Table 3, Table 4 or Table 6 ofSubpart 231-13, but equals or exceeds 50 percent of the applicable significant project threshold when emissions excluded in accordancewith Clause 2314.1(b)(42)(iXc) (emissions from independent and unrelated factors) are added. Subpart 231-12 specifies the ambient air quality impact analysis requirements for facilities in attainment areas. These requirements emanate from the Federal PSD rule which is codified at 40 CFR 52.21. Subpart 231-13 includes several tables.which list applicable emission thresholds.

for proposed new and modified facilities, emission offset ratios, Federal Class I variance maximum allowable increasecbncentrations. and maximum allowable increase in SO2 concentrations for gubernatorial variances. Table 9 - Source Category List includes the new chemical process plant exclusion for ethanol production facilities that produce ethanol by natural fermentation (included in NAICS codes325l93 or 312140). This exclusion was promulgated in the EPA May lst, 2007 Final Rule for 40 CFR Parts 5 I, 52,70, and 7l Prevention of Significant Deterioration, Nonattainment New Source Review, and Title V: Treatment of Certain Ethanol Production Facilities Under the "Major Emitting Facility" definition. Final rule as compared with laslpublishednrle: Nonsubstantive changes
were made in sections 200.1(cl), 201-2.1(bX2l), 231-1.6(a), 231- 

### 4.1(bx2exiii),

23 t -s.l (a)(l), (2), (b),23r-5.z(dXl),

(eXl), 231-6.3(dXl), (e)(l ), 23 1 -7. 1(aXl), (2), O), 23 1 -1 0. 1(h), (i), 23 1 -10.2(c) and 23 1 -10.7.
Revised rule mahing(s) were previously published in the State Register
az September

24,2008. Tx of rule and any required statements and analyses may be obtained from: RickLeone, P:E., DEC, Division of Air Resources,625 Broadway, Albany, NY 12233-3254, (518) 402-8403, email: 23 I nsr@gw.dec.state.ny.us Additional matter required by stctrt€.' Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file. This rule has been approved by the Environmental Board. Revised Regulatory Impact Statements There were no changes to the previously published Revised Regulatory Impact Statement. R evis ed Regu latory F texibility Anatysis There were no changes to the previously published Revised Regulatory Flexibility Analysis for small businessand local govemments. Revised Rural Area Flexibility Analysis There were no changes to the previously published Revised Rural Area Flexibility Analysis. Revised Job Impact Statemenl There were no changes to the previously published Revised Job Impact Statement. Assessment of Public Comment Comments Received September24,2008 through October 24, 2008 The New York State Department of Environmental Conservaiion



### 1 2 (DeparEnent) is proposing

to amend

existine 6 New York Codcof Rules ind'Regulations'OrvCnfl Parts 200 (Genehl Provisions), 201 (Permits and Regisrations),.and

231 (New Source

Review In Nonattainment Arcas and Ozone

Trans6ortReeions).

The amendments

!o Part 200 add a definition for Routine Maintei'ancd Repair or Replacement, amendthe definition ofpolential-to-emit.and remove the reference

to delegation

ofthe federal Prevention

of Sigrrificant

Deterioration

@SD) requiiernents.

The amendment

o Part 201 modifies the definition for Major Stationary Source. Existing Part23l will be re+itled as New Source Review for New and Modifred Ficilities andwill include new Subparts 23 I -3 through23 I - I 3. The existing Parr 231 regulations(Subparts 23 I -l and 231

-2) arc bEing retainedwith only modification of applicability dates.The new Subparts

will implement nonattainment, and attainment (PSD) New Source Review. Tho Departrnent's

proposed amendments

!o 6I.IYCRR Parts

200,201, and23 I were published in the StateRegisteron September 26,2007

. The Deparhnent's

proposed

alnendments

have been revised to address public comments

received on the Department's

September26,20O7

proposal, D€partnent

initiated revisions

to the Septernber

26,2N7 proposal,

and EPA's final "reasonablepossibility'.' rule for insignificant modifications promulgated

on December21,2007. The Department's re-proposed amendments

to 6 I.IYCRRParts

200,201,and231 werepublished in the StateRegister

on September

24,2008. The comment period closed

on October 24, 2008.The Department received written comments

from 1l different commenters

rcgarding

the re-proposed

regulation.

All ofthe comments

have been reviewed,summarized and responded

to by the Department

in its Assessment

of Public Comments

document. Generally,

the commenters

supported

the D€partment's

effort to revise its new source review regulations and adopt a State PSD program. However,all commenters, including industry and environmentalorganizations, expressed

opposition

to various aspects

of the proposed

amendments for a variety

ofreasons.

The comments

covered a number

oftopics including,regulatory

efficiency,

technical

concerns,

economic

impacts, perceivedinconsistencies with the EnvironmentalConservation Law @CL) and

theClean

Air Act (CAA), andlegal concems. The proposed

definition for routine maintenance, repair, or replacement was added

to Part 200 to clariff an existing federal regulatory exemption from the definition of "modification" for thoseactivities that involve "routine maintenance,

repair, or replacement" (RMRR). Many commenters expressed

concem regarding

the Departnent's proposalto establish a definition for "Routine Maintenance, Repair,or Replacement" in Part 200.1(cl).While supporting the RMRR exemption, these commentem characterized

the definitionas beingvague and unworkable.

Thesecommenters expressed

concemwith the Departrnent's use in the definition of the words'"generally" and "typically" and requested furtherdefinition of those terms. Other commenters took issuewith 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 sources of funding in order to differentiate betweenoperationand maintenance budgets, which would likely have fundsspecifically

setaside for ioutitre replacements,

andthose

capitalexpendinrres

which would be more indicative ofnon-routine

activities.

The proposed

regulation

does not establish

a presumptive

xclusion

from thedefinition

ofmodificationfor.thoseactivitiesfinanced

from a capital

budget, or establish

a bright-line

for treating

O and M expenses

as RMRR. The source

of funding is one of several criteria to consider

whencharacterizing

an activityasroutine

or non-routine. Commenters

also stated

that the RMRR definition, as proposed, could limit the'availability

andreliabilityof theequipment at their facilities,

and that anyproject,

includingmaintenance

activities,

couldbe considered

as life extending

andtherefore

not meet the definition

of RMRR. Most commentdrs requested

thatthe definitionbe eliminated completely

or revised to include

additional

clarification

ofthe terms

contained

in the definition. To address

commenters

concerns,

the Departrnent

has revisedthe definition to clarify the meaning of RMRR. The proposed.Part 231 definition states thatthe Department

will continue

to reiiew activities

on a case-bycase basis ashas Leen theestablished

oractice. A comment

*as received

regardinf

the proposed

definitionof "major stationary

source" in Paragraph

201-2.1@)(21).

The commenter

correctly states that the Department

intendsto use the.proposed definition for implementing

the majorNSR requirements in Part 231 aswell as

theTitle V.permittingrequirements in Part201. The commenter believes that the proposed

definitioncould leadto confusion whenthe definition is relied upon for implementing

Part 231because

the250py majorfacility theshold thatapplies

in attainment

or unilassified

areas, for sources

thatarenot in a listed

source category,

is not referenced.

The Department

agrees with thecommenter's

concem. To address

thisissue,

theDepartment

will revise the proposed

definition. A comment

wasreceived

regarding

the Department's

mandated

use, by reference,

of Departmental

"policy" documents

with regard

to air quality impact analyses. Concem wasstated

that references

to such guidance and

## NYS RegisterlFebrua ry 4, 2009 Rule MakingActivities

oolicv arc conskued as establishins bindins and enforceable standards. buririg the formulation of the draft-Part 23T rule, the air quality impact analysis procedures referred to were proposed for public comment on March 8,2O06 and finalized as DAR-I0 in the Environmental Notice Bulletin on May 24,2006 after minor public comments were received. DAR-10 is titled "NYSDEC Guidelines on Dispenion Modeling Procedures for Air Quality Impact Analysis." In accordance with Section 3-0301(z) of the Environmental Conservation Law, the Department must .make available for public notice, and in appropriate cases public comment, all guidance memoranda and similar documents of general applicability which provide guidance to the general public in complying with the Environmental Conservation Law and its regulations. The purpose of DAR-10 is to provide guidance to the.regulated community as tcj what methods will be considered acceptable approaches for dispersion modeling methodologies and related air analysis procedures. Several comments were received regarding the Department's proposal to continue with a single baseline period for all regulated NSR contaminants for a single project. The commenters on this issue requested that multiple baselines be allowed for a single project, indicating that the Department is overly restrictive compared to the EPA, limiting the ability ofa 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 ofpast actual emissions for several different pollutants. The Department believes this could create an artificially high profile ofbaseline actual emissions 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 "net out" of NSR. This would cause an increase in emissions that would exacerbate air quality problems in New York State. The Department 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 proposed project is based on an actual operating scenario and not an artificially high emissions baseline. The Department will not make the requested change. Comments were received regarding the Departnent's proposal !o allow
a baseline period of five years for determining baseline actual emissions. The Departr4ent's proposal allows the determination of baseline actual emissions by calculating pre-change emissions based on actual ernissions during any 24 consecutive months within the five years immediately preceding the change. The commenters requestedthat the proposed baseline period be oonsistent with the current Federal baseline period (10 year look-back) provisions that allow the determination ofbaseline actual emissions by calculating pre-change emissions based on actual emissions during any 24 consecutive months within the ten years immediately preceding the change. Alternatively, they requested that the Departrnent allow for a 10 year look-back while reserving the ability to determine whether a proposed baseline period is most representativeofnormal operations. The Department believes that the implementation of NSR in New York needs to be streamlined, and having a more straightforward approach to determining baseline actual emissions is a significant step to achieving that goal. Under the baseline period definition in current Subpart 231-2, facilities are not allowed to demonstrate that a 24 consecutive month period, outside of the five years immediately preceding a project, is more representative of normal facility operations. Facilities. do, however, have the oppornrnity to make a case that another 24 consecutive month period within five years immediately prcceding a project is more representative ofbaseline emissions. This requircs a case-by-case review ofhistorical facility operations by Department staff, an extremely resource intensive process, as noted in the Regulatory Impact Statement,that can lead to inconsistent application of the rule throughout the State. Allowing facilities to choose any 24 consecutive months in the five years inmediately preceding a project avoids this result. The DeparEnent 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 23 I - I I reporting and recordkeeping requirements associated with projects for which there exists a reasonable possibility of triggering NSR applicability. The comments from envirbnmental groups suggested that the proposed regulations may contain a "loophole" for facilities that attribute all ofthe increase to demand growth. The commenters recommend that the Deparrnent clarify the requirements of Subpart

231-l I to eliminate

the "loophole". The indusky comments

stated that the proposed

provisionswill imposeregulatory requirements

that are morestrinqent

thanFederal

requirements.

and the rcc<irdkeeping

requirements

arc eicessive for modificitions that have no reasonable

oossibiliw of resultine

in a simificant emissions increase. They furthersiatethat ihere is nojistification for requiring the Section 231-11.4

recordkeeping

and monitoring requirements when a project's potertial to emit ensures there's no reasonable

possibility that actualemissions will exceed

the significance

thresholds.

The Departinentuhderstands the concerns

ofboth the environmental and industry commenters. The DeparEnent

disagrees

with the environmentalgroups' assertionthat the proposal would requirefewer sources to monitor post-change emissions than required

underthe federalreasonable possibility rule. The Department also disagrees

with the industry comment that the recordkeeping requirements

are exccssive

for modifications

that have no reasonable

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 determination

is necessary.

Furthermore,

Federal regulations require that all emissions, including emissions

from any exempt or trivial activity, which arecontemporaneous with a proposed project, be included

in anynetemissions

increase determination.

Maintaining the recordsunder proposedSubpart 23 I - I I ensures

that all ernission increases areon record and available shoulda net einission increasedetermination be required.The Department believesthat the rule as proposed strikes an appropriate

balancebetween

environmentalconcems and economicandadministrative concenr. Comments

were received

regarding

the Plantwide

Applicability Limitation in proposed

Subpart 23 l-9. Both the environmental and indusry commenters supported

the PAL provisions,

but both had concems

with specific aspects of the PAL provisions. Environmental commenters

objected to allowing sources

to usedifferentbaseline periods for differentpollutants, allowing a source

which hasnot yet commenced construction

to include emissions

equal to the potential

to emit, and allowing a PAL to be presumptivelyrenewed

at the existing PAL level. The industry comirnenters objected

to the 25 percent

reduction

requirement

in the,sixth

yearof the PAL. As discussed

in the Regulatory

Impact Statement,

the Departmentwants

to encourage

the useofPALs in the State and believes

that they could providea measure of regulatory

flexibility while at the same time providing for long-term protectionof the environment. The environmentalcommenters'

proposed

revisions

would significantly reduce the flexibility provided

by therule and,

as a resul! discourage

theuse ofPALs in the State.

The industry commenters' request to delete the 25 percent reductionrequirement

would not be consistent with the Department's environmental

protection goals. The Department has determined

that additional environmental

benefits will resultfrom requiring a rcductionin the PAL of up to 25 percentin the sixth year of the PAL. The Departrnent believesthat the proposedPAL provisions best balancethe goals of improvingair quality while reducing the burden

of NSR compliance

on indusry. The Department will not revise

these provisions. Comments

were received regardingPM2.5 requirements. Industry strongly urged the Department to follow EPA's May 2008 final NSR regulations

for Plv12.5

and offer an offset program that recognizes

SO2 andNOx as PM2.5pnecursors andallowsERCs

of these contaminants

to be used to offset PM2.5 increases andfor internalPM2.5 netting.States with EPA approvedPSD programsand thosewith PM2.5 nonattainment areas have up to three (3) yean to submit a revised SIP incorporatingthe PM2.5 NSR reouirements. The Deoartment

will needtime to evaluate EPA's final PM2.5 rule, specificaliywith rbgardto applicable PM2.5 precursors

and appropriate

interpollutanttrading ratios to determine what provisions

makesense

for New York. Until the Department hasan ap' proved program addressing

PM2.5,EPA will be implementing all PM2.5 NSR requirements. Comments

were received regarding the rule's implementation of a transitionplan, specificallywith regard to the applicability of40 CFR 52.21, followingthe promulgation of Part 231.Both rules

will continue

to be applicable

until Part231 is included in the New York State

SIPand is approved

by EPA. Comments

were receivedregarding the existing significant project threshold

of2.5 tons

peryear for VOC and

NOx in t}re

severe ozonenonattainment area.Industry hasadvocated for an increase

in the significant project threshold

applicable

to the severe

ozone non-attainment

area. Industryrecommends

increasing

the significant

projectthreshold

in proposed

Part231-13.3,

Table3 to 12.5

py. The Department

will retain thesignificant

project threshold

of2.5 tons

peryear for NOx and

VOC for the severe

ozonenonattainment

area. The Deparfnent hasdetemiinedthat retention of this threshold

is vital to New York State's abiliw to control ozone and crucial to its SIPfor attaining

the l-hour ozone

NAAQS. Raising the significant

project threshold

to 12.5 tpy asrequested

by commenter would relax requirements that havebeenin placefor almost eight years and result

in fewermodifiedfacilities undergoing

NSR reviewandcould



### 1 3

## Rule Making Activities NYS RegisterlFebrua ry 4, 2009

ootentiallv raise concems under the anti-backslidine orovisions ofthe Clean Air-Act. Finally, the threshold levels for non-ditiinment areas are 'established in the Clean Air Act (CAA). For severeareasthe CAA requires that anv increase be considered simificant. Coniments were received fro-m industry objecting to the proposed requirement for a facility to.apply for and obtain q permit that establishes
an emlsslon llmtt assocrated wllh an lnslgnlllcant nel emlsslon Increase

, determination. The Departrnent's policy has always been to require applicants to accept permissible emission limits when avoiding NSR applicability. BACT and LAER avoidance permit conditions have been iri6tuaea in'dozens of facility permits throu'ghout New York State since the NSR program was first promulgated. This is not a new requirement and onlv iffe-cts the source tliat wasionstructed or modified not necessarily an eirtire facility. Text of rule and any required statements and analyses

may be obtaincd from: Katheine Ceroalo, DOH, Bureau

of House

Counsel,

Reg.Affain Unit, Room

2438, ESP TowerBuilding,

Albany, NY 12237,

(518) 473- 7488, email:rcgsqna@health.state.ny.us Regu latory I mpacl Slateme

nt Statutory Authority: Section 2899-a(4)

of the PublicHealth

Law requires

the StateCommis

# Department of Health

EMERGENCY RUI,E MAKING

Criminal History Record Check I.D. No. HLT-41-08-00005-E Filing No. 69 Filing Date: 2009-01-16 Effective Date: 2009-01 -l 6

PURSUANT TO THE PROVISIONS OF Tfm, State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Addition of Part 402 to Title l0I.IYCRR. Statutory authority: Public Health Law, section 2899-a(4); and Executive Law, section845-b(12) Finding of necessityfor emergency rnfe,' Preservation ofpublic health, public safety and general welfare. SpectJic reasons underlying the Jinding of necessity.' Emergency agency action is necessaryfor preqervation of the public health, public safety and general welfare. The regulation is needed on an emergency basis to implement the Department of Health's statutory duty to act on requ€sts for criminal history record checks which are required by law. The law is intended to protect patients, residents, and clients ofnursing homes and home health

care providers from risk of abuse or being victims. of criminal activity. These regulations are necessary to implement the law as ofits effective date so that the Department of Health can fulfill its statulory duty of ensuring that the health, safety and welfare ofsuch patients, residents and clients
are not unnecessarily at risk. Subject: Criminal History Record Check. Purpose: Criminal background checks of certain prospective employees of NHs, CHHAs, LHCSAs & long term home health care progmms. Substance of emergency rule: This regulation adds a new Part 402 to Title l0 I.IYCRR, which relates to prospective unlicensed employees of nursing homes, certified home health agencies, licensed home care services agencies and long term home health care programs who will provide direct care or supervision !o patients, residents or clients ofsuch providers. The regirlation establishes standards and procedures for criminal history record checks required by statute. Provisions govern the procedures by which fingerprints will be obtained and describe the requirements and responsibilities of the Department and the affected providers with regard to this process. The regulations addressthe identification ofprovider staff responsible for requesting the criminal history checks, supervision of temporary employees, notice to the Department when an employee is no longer employed, the content and procedure for obtaining consent and acknowledgment for finger printing from prospective employees. The Department's responsibilities for reviewing requests are set forth and specifu time frames and sufficient infomiation to process a request. The proposed rule also describes the extent !o which reimbursement is available to such providers to cover costs associated with criminal history record checks and obtaining the.fingerprints necessaryto obtain the criminal history record check. This notice k intended to serve only as a notice of emergency adoption. This agency intends to adopt the provisions ofthis emergency rule as a p€rmanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. HLT-41-08-00005-P, Issue of October 8,2008. The emergency rule will expire March 16,2009.



### 1 4 sioner of Health to fromulgate

regulations

implementing

newArticle 28.E SlOner OLUealIn IO prOmUlgale regurallQns rmpremennng ew Alucre z6.E ofthe PublicHealtfi

Law ihich rEquires

all nirrsing

hories,certified

home health agencies,

licensed home care services agencies andlongterm home alth aeencies.licensed ome are servicesagencies nd ng m me health cire pro'grams ("the providers") to re-quest, through-the Departare programs providers") request, through the Depart- ment of Health ("the Department"), a criminal history record check for history certain unlicensed

prospective tain prospective employees

of suchproviders. Subdivision

(12) ofsection 845-bofthe ExecutiveLaw requires the Department to promulgate rules and regulations necessary to implement criminal history information requests. Legislative Objectives : Chapter 769 ofthe Laws of2005 as amendedby Chapters 331 and 673 ofthe Laws of2006 establish a requirement for all nursing homes, certified home health agencies, licensed home care services agencies and long term home health carc programs to obtain criminal history record checks ofcertain unlicensed prospective employees who will provide direct care or supervision to patients, residents or clients ofsuch providers. This is intended to enable such providers to identifu and employ appropriate individuals to stafftheir facilities and programs and to enswe patient safety and security. Needs and Benefits: New York State has the responsibility to ensure the safety of its most vulnerable citizens who may be unable to protect and defend themselves from abuse or mistreatment at the hands ofthe very persons charged with providing care to them. While the majority of unlicensed employees in all nursing homes, certified home health agencies, licensed home care services agencies and long term home health care programs are dedicated, compassionateworkers who provide quality care, there are casesin which criminal activity and patient abuse by such employees has occurred. While this proposal will not eliminate all instances of abuse, it will eliminate many of the opportunities for individuals with a criminal record to provide direct care or supervision !o those most at risk. Pursuant to Chapter 769 of the laws of2005 as amended by Chapters 331 and 673 ofthe Laws of 2006 ("the Chapter Laws"), this proposal requires the providers to request the Department to obtain criminal history information_from the Dvision of Criminal Justice Services ("the Division") and a national criminal history check from the FBI, concerning each prospective unlicensed employee who will provide direct care or supervision to the provider's patients, residents or clients. Each provider subject to these requirements must designate "authorized persons" who will be empowered to request, receive, and review this information. Before a prospective unlicensed employee who will provide direct eare or supervision to patients, residents or clients can be permanently hired, he or she must consent to having his/her fingerprints taken and a criminal history record check performed. Two sets of fingerprints will be taken and sent to the Department, which will then submit them to the Division. The Division will provide criminal history information for each person back to the Departnent. The Department will then review the information and will advise the provider whether or not the applicant has a criminal history, and, if so, whether the criminal history is ofsuch a nature that the Departrnent disapproves the prosp€ctive employee's eligibility for employment, (e.g., the person has a felony conviction for a sex offense or a violent felony or for any crime specifically listed in section 845-b ofthe Executive Law and relevant to the prospective unlicensed employees ofsuch providers). In
some cases,

a person may have a criminal background that does not rise !o the level where the Department will disapprove eligibility for employment. The proposed regulations allow the provider, in such cases,to obtain sufficient information to enable it to make its own determination as to whether
or not to employ such person. There will also be instances in which the criminal history information reveals a.felony charge without a final disposition. In those cases, the Departnent will hold the application in abeyance until the charge is resolved. The prospective employee can be temporarily hired but not to provide direct care or supervision to patients, residents or clients ofsuch providers The proposal implements the statutory requirement of affording the individual an opporhrnity to explain, in writing, why his or her eligibility for employment should not be disapproved before the DeparFnent can finally inform a provider that it disapproves eligibility for employment. Ifthe Department maintains its determination to disapprove eligibility for employment, the provider must notify the person that the criminal history information is the basis for the disapproval of employment. The proposed regulations establish certain responsibilities of providers in implementing the criminal history record review required by the law.

## Rule Making Activities NYS Register/February 18' 2009

printed under a notice of proposed rule nraking,l.D. No' CVS'01-09- 00010-P,

Issue ofJanuary

7,2009.

PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED

Jurisdictional Classification

I.D. No. CVS-07-09-00008-P

PURSUANT TO THF PROVISIONS OF THE StAtE AdMiNiStTAtiVC

PTOccdurc Act, NOTICE is herebygiven of the following proposed ntle: Proposed

Actior.'Arnenclment of Appendix I of Title 4 NYCRR. Stutunry autfutrity: Civil ServiceLaw, section 6( I ) Subject : Jurisdictional

Classification. Purpose: To delete a position frorrr ancl classify a position in the exempt class. Tcut ol'oroposed rule: Amend Appendix I of the Rules for the Classified Serviie, liitinc positions in thl'exempt class, in the Departmeut of F.nvironnrental-Cbnservation, by decreasing

the number of positions of SpccialAssistantfrom | 6 to I 5 and by incrcasing the numbcr of positions ol Assistant

Commissioner

from 5 to 6. Tcxt oforuposed rule und uny require.l statenents anl analyses ntuy be ohtaiiatt fritnt: Shirlcv LaPlantc, NYS Dcpar.rrnent

of Civil Scrvice.

AESSOB, -Albany, -NY 12239, i5 l8) 4'13'6598, email: shirley. laplante(qt)cs.state.ny.

us Data, viens or urguntenls may he subnittey' to.' Judith l. Ratner,Dcputy C'onrinrssioncr

aniiCounsel.

NYS Departnrent

of Civil Service,

AISSOB' A I bany. NY I2239, (5 | S\ 473 -2624, Lmail :j udith.ratner@cs'state'ny.us Puhlic <'onment will be received until: 45 days afler publication of this notice. Regu Iuto ry I nt

pact Stotement A rcgulatory impact statenrcnt is ltot submittedwith this noticc bccause this nrle is subjectto a consolidated regulatory impact statement hat was previously printed undera notice of proposed rule nraking, I'D. No. CVS0 l -09-00010-P,Issuc of January

7, 2009. R e g u la to ty F I cu ib ility A n alys is A regulatory flexibility analysisis not submitted with this notice because this rulc is subject

to a consolidated

rogtllatory

flexibility analysis

thatwas previously printed under a notice of proposed rule making, I'D. No' CVS0 I -09-000I 0-P, lssue of January

7,2009. Rural Area F-iexibitity Anatysis A rural areaflexibility analysis is not submittedwith this notice becatlse this rule is subjectto a consolidated rural areat)exibility analysis thatwas previously printed under a notice of proposed rule making, l.D. No' CVS0l -09-00010-P,Issue of January

7, 2009. .loh Intpuct Slotenent A.job inrpactstatcnrent is not suburittecl

with this notice because this ntle is subjectto a consolidated job impact statemetrt hat was previously printe'd unde'r a noticc of proposcdrule making, I.D. No. CIVS-01-09- 000 | 0-P, lssuc-

of Jattuaty

7

, 2009. Subjact: Personal Privacy Protection

Law. Purpose: To update

theDivision's

address and contact person for requests regdrding

the Personal

Privacy Protection

Law. Text or summarywas

published in the December 3, 2008 issue

of the Register, l.D.No. CJS-49-08-00008-P. Final rule asconpared

with last published

rule.'No changes. Textof rule and anv required statements

nd analyses

may be obtained froni[ark Bonacciuist, Division of Criminal

Justice Services,4

Towcr ?lace, Albany, NY [2203,

(5I 8)457-84

I 3 Assessment

of Public Comnent Theagency

receivcd no publiccommont. 

# Department

of Environmental Conservation 

# *o',S%ff#pnoN

Requirementsfor Proposed New Major Facilities and Major Modilications

to Existing Facilities
I.D. No. ENV-39-07-00006-AA F'iling No. I l2 Filing Date: 2009-02-03 EffectiveDate: 2009-03-05

PURSUANT

TO THE PROVISIONS OFTHE State

Administrative

Procedure Act, NOTICE

is hereby given of the following

action: Action ta.ken: Anrendment

o{' Parts 200, 201 and 23 I of Title6 NYCRR. Anended

action:This action

amends the rulo that

wasfiled with the Secretary ofState onJanuary

20,2009, to be effective februq 19,2009,

Iile No. 00074.

The notice

of adoption,

I.D. No. ENV-39-07-00006-A, was published

in the February

4,2009 issue

ofthe S'tate

Regisler. Statutory

authority: Environmental Conservation

Law, sections

I -01 01, 3-0301, 3-0303, I9-01 03,l 9-0 I05, I 9-0 I07, I9-0301,

I9-0302, I9-0303, l9-0305; and Federal Clean Air Act, sections 160-169, l7l - 193 (42U'S.C. 7470-7479;

750 I -75 I 5) Subject: Requirenrents lbr proposed

new major f'acilities

and major modifi cations to cxisting

facilities. Purpose: The Department

is undertaking

this rulemaking

to-comply

with the 2002 Federal NewSource

Review Rule as amende,J on l2l2ll07

' Substance

of amended

rule: The Department

of Environmental

Conscrvation (Departrnent)

is proposing

revisions

to its rulemakinS

Plopo-s-al published

in the State

Register on Septenrber

26,200'1 fbr Parts 200,201 ind 23| of Title 6 of thl Official bompilation of Codes,

Rules, and Regulations

of the State

of New York, entitled

"Ceneral

Provisions," "Permits and Registrations"

and "New Source

Reviewin Nonattainment Areas and Ozone Transport

Regions"

respcctively. The Part 200 amerldments

will add a definition

for Routine

Maintenance, Repair, or Replacement

(RMRR),

codifying

current Department practicc ol'revicwing-RMRR

activities ona casc

by casc basis, taking into :rccount the nature

and extent ofthe activityandits frequency and cost. In addition, the Department

is revising

Part 200 (Sections 200.9 and 200.10). Section 200.9 is being amended to include

all federal

rnaterials referenced in theproposed

amendments

o Part 231.Section

200.10(a)

is beiry amended t6 reflect that the Departntent

is no longer

clelegated

responsibil' ity lbr implementation

of theFederal

Prevention

of Signilioant

Deterioration (PSD)

Program. The proposed

amendments

to Part201 revise

the definition

for "major stationary

source or major source" at 6 NYCRR

201-2.1 (bX2l). Thedefinition will now encompass the term "major facility" and incorporatemajor facility and significant projectthresholds

for facilitiesemitting particulate

matter or particles

with an aerodynamic

diameter less thanor equal to a nominal

2.5micro-meters

(PM-2.5).

EPAdesignated

theNew Ybrk City metropolitan

area asnonattainment

for the PM 2.5standard

(70 Fed.Reg.

944). Nonattainment

new source

review(NNSR)

is now required Tor newmajor

facilities and majormodifications

to exibting

facilitidsthatemit PM 2.5 in significant amounts in the PM2.5nonattairunent
area. Theexisting

nonattainment

New Sourcc

Review program at Part 231 will be re+itled

"New Source

Review for New andModified

Facilities" 

# Divisionof Criminal Justice

Services

NOTICE OF ADOPTION

Pcrsonal

Privacy Protection

Law
I.D.No. CJS-49-08-00008-A Filing No. 106 F iling Date: 2009-02-02 EIl'cctive

Date: 2009-02-l

l

PUItSUANT

TO THII PROVISIONS OFTHE State

Adnlinistrative

Procodure Act, NOTICE

is hereby given ol'the following

action: Action taken: Amendnreut

of sections

61"51.2(b),

6151.4, 6151.$(c)

and 6151.9 ofTitle 9 NYCRR. Statutoq'

authority:Public

Officers Law, scction

94(2); andExecutive Law, section 837( l3)

6

## NYS Register/February l8' 2009 Rule Making Activities

antl will includenew Subparts 231-3through

231-13. The-new

subparts rvill inrulenrent

nonattainment

New SourcsReview(NNSR) and attainrncnt N'cw Sourcc Rcvicw (PSD). The NNSR rcquirements are based

on New York's existintrNNSR prosram Subpart 23 1-2,with revisions to include sclected

pro-visibns

tiom the December

3l' 2002 Federal

NSR reiornr rule and 'EPA's December 21,2007 ReasonablePossibiliry in l{ecordkeepinsRule. The PSD requirements are also based

largelyon the Decenrber

31,-2002

Federal NSR r'eform

rule as codified at 40 CFR 52.21. - iire propoicO revisions to Part 231 will change th.e basi-s of applicability for'modifications and emission reduction credits (ERCs) fronr an "Enrission Unit" basis to an "Emission Source" basis, incorporate various t'ederal requirements,

provide clarification of existing requirements' and require comprehensive reporting,ntonitoring, and recordkeeping.

that w.ill confor[D to the requirements of Title V. Through this rulemaking'.the DcDartmentwill aiso establish a new method for determining baseline actiral cmissions. Baseline actual emissions will be determined

by using

anv 24 consecutive

nronth period ofemissions ilr the previousfive years. Ali f'acilities

(no separate

biseline perigd for electricutility steanrgenerating units).will be riquircd to detemtincthcir baseline actttal emissions

us' ing this method. tfhe Departnrent

will retain existing Subpart23 l-l "Requirements^1'or enrissiondoLrrces

subjcct to thc regulation prior to November l5' 1992" and Subpart

23 I -2, "Requirements for enlission

units subject

to theregulation on or atler Novenrber 15, 1992".Theseregulations arecurrentlycited in manv air pcrmits issucd throughout

the Statc

and rctaining

them will fb' cilitatirnrpiementation and enf6rcetrtetlt ot'the NSI{ progranr. !,xisting Subpart 231-2 will be revisedonly to irrdicate that th^e-Subpart

will.not.apnlv atter the datc the rlronosed ievisions to Part 23 1 become eft'ective. tfius, perrnit applicatidns ieceivedon or after the effectivedateofrevised Pan 23 I will be.processecl according

to the provisionsof Subparts 231-3 through 231-13, asaPplicable. Ne; Subparts

23 i-3 through 23 l - I 3 havc becnadded to include provi' sions from itre gpR Decemb-er 31, 2002 NSR llule. and incorporate the Federal PSD program. The NNSR provisions currently speoified in Subnart 23 I -2 irc 6cing urrdatcd and iricorporatcd

into thcscncw srtbparts. The'Department

is also idoptine a StatePSD program which is based larselv bn the Federal PSD fuleand included in Subpans

231-7'231-8' a,rd'Z3t-t2. The subparts ofthe proposedrcgulationare being organized to easedeternrinations of applicabiliry. to collect common requirelnents inkr groups,and to streamlin! the regulation. The.orgarrization

ofthe new rcsul-ationstrives to make a more cohcrent series of rcquiremcnts and oh'iiuations. Sirbpart

23 I -3 Ceneral Provisiorrs specities

provisions

which apply rcrrcrally such rs a trausitionplan, excmptions, gencralprohibitions. Iuurce .ibligatiort. gencral permit requiretnents, facility shakedown ncliotls. lnd-circurrtvenrion.Proposed Section 23 l-3.4 (Exenrptions.; has becn rcvisetl to renrovethe Ciean Coal technotogyexemptions. The Departnlcnt has deterntined that theseexemptions are out ofdate and no longer necessary

tbr implementing

the NSR progranl.

The Source

Obligation sectiou (231-3.6) includes a requirement that any own€r or.operator ofa facility that proposesa projcct that involves a physical change or charrge in tle methoci of operltion that the owner or operator determines *oul-ci be lbllowed by a t'aaility enrissions

incroase

that equals

or exceeds any of thc significant projcct thresholds in Subpart

23 I - | 3, Tables3, 4 or 6, inust notifu the Department in writing of the proposed project prior to inrplenrentin! the change ifthe owner or operator determin€sthat

he projeci does not aonstitute a rnodification bccausc all the emission increascs

are attributable to independentfactors in accordance with Clause 231' 4.1(bX40XiXc). The notificationmust include (l) a description of the changc, (2) the calculation of the projectcd qmissions in-crease, (3) the propo-sed

dite of the change,

and (4) an explanation of the factual

basis for ihe conclusiou that none ofthe projectedemission increases are attribut' lblc to the proposed

project. Subpart 23 i-4 defines the terms ttsed throughour Part 23 I and ittco-rp-o' rates ternrs liom both the existirrg Subpart 231'2 and the Federal PSD rule,40 CIFR52.2 l. The Departmenthas nrademinor revisionsto terms used in cxisting Subpart 23 l'-2 and 40 CFR 52.21 so that definitions are consistent for6oth ironattaintnentarrcl attainment NSR and with New York's rcgulations.

The Departnrent

has also removedthe previously proDosctl

ilcan Coal technolbgydefrnitionsto bc consistcnt with thc rciuoial ofthe Clean Coal technologyexetuptions in Subpart

231-3. To f'acilitatethe implententation and administration of Part 231, the Dcpartnrent

has includedthe rcquirements tbr new and modificd facilities in iour main Subparts (231-5 to 231-8) depending on the facility's loca' tion in an attainnrent or nonattainment

area. Subpart 231-5 is applicablc to new facilities and to modifications at existing non-nrajor faailities iu tronattaintrtentareas. Proposed new nrajor facilitids will continue to be srrbiect to the requirenrents

to install Lowest Achievable Ernission Ratc (Ln ER) and obtaincmissionoffsets asthey are under existing Subpart 231-2. The subpartalso specifies that non'major facilities undertakinq

proiects wltich are major by themselves,

or increase theemissions

of the-faciiity

above major threshblds

must obtain permits which limitemissions. SuUoart 231-6 applies to modifications

at existing

major facilities in nonattiinment

area'sl Thesubpart

continues

therequirements

for LAER tcchnoloev

and emission

offiets thatexistin the Department's current nonattainfrent

NSRprocram.

The subpart

also specifies thatfacilities

can Jerfomra nettinq

eieriise to determihe

whethei the modification,

when bonsiclering

otheicontemporaneous

activities at the{'acility,

wouldexceed applicable

emissions

thresholds. ' Suboart 231-7 applies to new facilities and to modifications

at existing non-miior tbciliti'ei

in attainment

areas' The subpart

implements

the requireirents

for determination

of air quality impacts

through modelilg' aniltheapplication

of Best Available

Control Technology

(BACT). Thc suboart aisb specifies thatnon-major

facilities undertaking

projects which are'maior

bv ihemselves.

or incrcase

thc cmissions

of thefacility

abovc maior thresliolds

must obtain permits which lirnit emissions' Subpart 231-8 applies to modifications

atexisting

major l'acilities in attainment areas of t'h'e State. Thesubpart

irnplemcnts

thc requirements

for deterrnination

of air quality impacts

ihrough nrodeling and thea??lication of BACT in the cise 6f l'acilities which undertake

a NSR major modification.

These requirements

address Federal PSDrequirements.

The subpart alsospecifies-that

facilities

canperfornl

a netting

exercise to determine

wheiher the modification,

when combined

withother

contemporaneous activities atthe facility, would cxcccd cmissions

thresholds. The rentaining

five subparts

include general provisions

that apply to both new and modifred subject facilities, Subpart 231-9 sets fbrththe requirements

for establishing

Plantwide ADDlic;bility

Lirnitations

(PAL)at-Title

V facilities,

A PAL allows

a faciiiiy to undertake

modific'ations

without being

subject o NSR reviewas lons as the l'acilitv tloes notexceed

its PAL emission

limit' Subpart

231-9 is biscd onthePAL provisions

from thc December

31,2002 Federal NSR rule (67 FedRegat-80278), whichspecify

PAL creation,

duration'

and exoiration.

The-Department

hasmade

a few revisions

to the Federal rciulatory

languagc'to

takcintoaccount

Subpart 201-6, Ncw York'sap' or:oved Title V risulation attdto ensure that reduced

emissions

and imoroved

air oualit-v

will result.

PALsare

established

in Title V permits anilarcsubjecl

to fitle V pcrmit

application

and proccssing

proccdurcs for creationl

modification,

br renewal.

PALs arecreated

for an initial periodof l0 years,

less if established

during themiddle

of a Title V permit term, and cin be rencwcd

for l0 years,

subject o certain

rcstrictions.

The proposed

regulation

requires thatthe PAL shallbe reduced to 75 per-cent bf theinitiaf

pel, comhencing

withthefirstday

of.the sixth year of.the PAL, unless

thc owner

or op;rator

delnonstratcs

that a lesser

levelof reduitionis justified.

The owneror operator may seek

an alternative rcduced PAi by demonstrating that the application

of BACT -and/or LAER,asappliiable,

on all majorPAL emission sources at thefacility would not r6Jult

in a 25 percentieduction in the initial PAL.The Depart' ment mavauthorize

a reriuction

in the PAL to a level

that would reflect

the emission!

fiom thefacility if all majorPAL emission souroes are operated atfull capacity

after complying

with BACTand/or

LAER, as applicable.. Subpa'n 23i-t0 definei

imission offset andEmission

Reduction

Credit (ERC)'creation

and use. The provisions

for ERC creation

and use are iubstantially

thesame asexistirig

Subpart 23| -2 except

for thedeterminationof[,RC enforceability. Under proposed

Subpart 231'10 the Departnrent has clarilicd how ERCs

are made enttrrccablc Subpart 23l - I I scts

forth pcrmit rcquircmcnts for ncw majorfacilities, NSRrirajor

modifications,

and netting. ThisSubpart

3ls-o_establishes

reasonable possibility

requirements

for insignificant

nrodifications.

These rcquirements

areiir addition

to any Part

201 requiremcnts

that mayapply. Th; Irederal

Reasonable

Possibility

Rule onlyrequires

post-change

moni' torinsfor insignificant modificaiions

ifthe projected

actual emissions increlse (Pan ,3 | project

emission potential)

is by itself

grtater than or equal to 50percentbfihe

applicable

significance

threshold..

Proposed Part 2jl extendi

thepost-changC

monitoring

requirement

to also include any modification

withaproject

enrission potential which is less than 50 percent of thc annlicablc

sie:nilicant

rrroicct threshold

in Tablc 3, Tablc 4 or Table 6 ofsub'part

231-i3,but equak

or exceeds

50 percerrt

ofthe.applicable sienificant

proiect thresholtl-when

emissions

excluded in accordance

with Ciause 231-4.i(b)(a2Xi)(c)

(emissions

from indcpcndent

and unrelatcd factors) areaddbd.

For suchmodifications, facilitiesw-ill be.required to keeoricordsof their calculation of emission

increases from independent andunrclated

factors such asdemand

growth, monitorpost'modification emissions,

and submitannual

reporti to verify the accuracy of their calculations.

Additionally,

the Federal

Reasonable

Possibility

Ruleonly rcquircs EUSGUs

to noiify thc Departmcnt, prior to beginning-

actual coistruction,

for any modification

witha project

enrission potential which equals or exceeds

50 percent oftheapplicable

significant

project hreshold. Pioposcd

Part 231citends

thc pre-Construction

notification

requirement to dny facility that proposes i modification

with a project

emission

## Rule Making Activitieg NYS Register/February 18, 2009

potentill which equalsor exceeds 50 percent

oftheapplicable significapt proiect threshold'or rrroposes a nroilifioation

with a project enrission borintial which is less'thah 50 percent

ofthe applicable

significantproject ihresholcl

in Table 3, Table 4 or Table 6 of Subpart 231-13,but equals

or exoeeds

50 percent ofthe applicable significant proje,ct thresholdwhen

ernissions

eicluded in accordince with Clause 231'4. I (bX42XiXc) (emissions from independent and unrelated factors) are added.

. Subpart 231-12 specifies the ambient air quality impact.analysis rcouiriments for fai:ilitics in attainmont areas. Thesc requircments ernanatefrom the Federal PSD rule which is codified at 40 Cl'R 52.21 ' Suboart 231-13 includes severaltableswhich list applicable emission threshrilds

tbr proposcd

new and modified facilities, cmission

offset ratios' Ii'ederal Class i variance nraximum allowable increaseconcentrations,and maximum allowable increase in SO2 concentrationsfor gubernatorial variances.

Table 9 * Source

Catcgory List includes the new chemical

processplant exclusion for ethanolproduction facilitiesthat produce ethanol bv nitural fermentation (includid in NAICS codes 325193 or 312140). This exclusion was pmmulgated in the EPA May 1st, 2007 Final Rule.fbr 40 C--Ftt

Parts 51.52.70, and 7l Prevention of Significhnt

Deterioration, NonattaiIment Nerv Source Review, and Title V: Treatment of C]ertain Ethanol Production Facilities Under thc' "Major Emitting Facility" dctrrrition. Anrcnded rule as compared with adopted rrl/e.' Nonsubstantive revisions

werc madein sections: 200.1(cl),

201-2.1(bX2l),

231-3 6(a), 231- 

### 4. I(bX2eX iii), 231-s.l (aX I ),(2), \b),23t-s.2(dX

l),(e)( l),23'l '6.3(d)(-!)' (e)(rj,23r-7.

l(aXl), (2), (b), 231-10.1(h),

(i),231-10.2(c)

and 231-10.7.
Text of amended rule und uny required stutetne.ntslnd &nalys-es nrqy be obtaiied Jiont: Rick Leone, P.lr., NYSDEC, Division of Air l{esources, 625 Broadway, Albany, NY 12233-3254, (518) 402-8403, email: 23 I nsr(ri)gw.dec.state.ny. us Additional ntatter required by statute: Pursuant to Article 8 ofthe State Ilnvironmental Qualiiy Review Act, a Short EnvironmentalAssessment Form, a Negative Declaration and a Coastal Assessment Form have been prcparcd

and areon tlle. This rule hasbeen approvcd

by the Environmental Board. Revised Regulatory Irnpuct Stalen,ent 'fhere were no changes to the previously prrblishedRevised Regulatory lmpact Staterrrent. Ret,ise d Regu la nry F Iexi h ility'4 n alysi s 'l here were no chauges to the previously published.Revised Regulatory Irlexibility

Analysis

lbr sntall

business

and local

govemnrents'
Ilavised Rurul Area l'lexihility Anulysis -fherc were no chatrges to the previously ptrblishedl{evised Rural Area FlcxibilityAnalysis. Revised Joh Irnpsct Statenteilt There were no changes to the previously published RevisedJob lmpact StateDrent. 

# Department

of Labor and Retrainins Notification

(WARN) Act, a new law thatbeconreseffecii"i FiUiu".vi

, 2009.

The Act govems

theprovision

of notice to certain emolovees

riho'will lose

employ-ment

through plant closings, mass layoffs,
or iedirctions

in work hours.

The purpose

ofthe authoriztng

statute ls to

ensure that theemployees

areawaie

of future actions that will aftbct

their emnlovment

soth'at ihcy can take steps to securc

newemployment,

be retrain;dfor more readiiyavailable wbrk, andotherwise

makearrangemqnts, to provide

for thcir needs

and those of theirf'amilies

when their emolovmint

ends. The law is alsointended to cnsure

the abilityofthe Deiartment

of Labor andits partner,

theWorkforce

lnvestment

Board, to orovideRapidResponse services to the affected

employees

prior to their bmnloymerit

loss. fhese scrvices include providing

employees

with infornraiiori recarding

unemployment

insurante,

job training,

andreentployment services. T-hese relulltions fill in gaps

foundin the law in order to
more fully informemployees of theirobligations

and workers of their riehts undlr the law. -The "r'nergency

promulgation

oftheseregulatiQns

is necessitated

bythe dramatic jodlosiei cu.te,i-tly

beingsufl'ered

within the state,

the need to

cnsure th;t the notice requi16mcntJdetailed

in thercgulation

are availablc to protect

workers affecied by such job losses,

andthe needs

to provide reenrDlovment

servioes to these workers in order to retum them quicklyto work. Inthclast

quarter of2008, New YorkStatc

lost 102,900

privatcsector iobs. includiris

49.300 in December

alone. This is thestcepest

oncmonth tlropsince

bctober 200 | in the aftermath

of the WorldTrade

Center attacks. Sihcc thcbeginning

of thenational

rcccssion

in Dccembcr

2007, thenunrber

of unem[loyedin

thestate has increased

by more than 50% and isatitshighest

level'since

October 1993. New YorkState's

unemployInentrate,aFter

seasonal

adjustmcnt,

incrcased

from 6.0 percent

in November2008

to 7.0 perceniin

December

2008 - its highest

level since June 1994. The impact

of thcse job losses

on workers,

their families,

andtheir communities

canbestaggering,

more so if workers

areunaware

thatplant closings.and

layoffs are-c-oming.

The state WARN Act is designed

to Eive workers tinre tb avoid long periods of unemployment

by affbrding

thenl timeto search

for new work,retrain

for nlore secure long'term

employ' ment, and takeadvantage

of reemploymetrt

services which will ensure

a quick retunr

to work atier their fbrmeremployment ends..The

proposed rirles will ensure

timely notice

to the Departhent

and earlyintervention

of Rapid Response

teanr!in situations

involvingenrployment

losses sothat workers can quicklytransition

into newernployment

or retraining

followingtheloss

oitheiijobs. Such

activities alio avoid

or shortcn

periodsof un-employment,

thereby reducing employer

charges associated

with the ' receipt oi unemploym6nt

insurance

by theirformer

employees..

On the othcihand,

cmploydcs

need to knowofthe availability ofunemployment insurance

benefits following

these employment

losses ince theprogram is designed

to provide

an elonomic

safety netto the workcrs

and their familiei. All efiorts

that will quicklytransiiion

workers into new.emliloyment when their former jobs end,

or that ensure some continued

income during unemployment,

will allow workers

to continue

to make needed nurch-ases

suih dshousine.

food. heat and other utilities and to maintain ihe payment

of school

-and pioperty taxesthat support their local community. Enacting emergency

regulations,

whichwill immediately clarifythe scope, timi-ng, anil coritent

of the noticerequirements, supports the goals set forth above

and protects thegeneral

welfare of thestate' Subject: New York State

Worker Adjustment

andRehaining

Notification Act(WARN). Purpose:

To providegovemment enforcement

and moreadvance

notice to alargernumber

of workers

than under thefederal

WARN Law' Suhstanie of emergency/proposed rule (I-ull text is postedat thefollowing Statewibsitc: www.labor.state.rry.ts).'The proposed

rule creates

a new section

ofregulations

designated

as l2 NYCRR Part

921entitled "New York State-Worker Adjustrnent

andRetraining

Notification

Act" created under Ch apter 475 of theLaws

of2008.ThisAct requires employ'

, ers offifly (50)or more

employees

to provide

at leas! ninety (90)days

no' tice to affeitedemployees lnd representatives

ofaffectedemployees,-the New York State

Depaitntent

of Ldbor, andlocal workforce

partners befor-e ordering a plantclo-sing,

nrass layoff,or reduction

in work horirs

thatfalls withinahc

employment

losses covered by thc law.At least-twenty-five (25)enrployeei

mrirst beaflected

for thenotice

requirement

to betrigge.red. itr6 rutd contains exbeptions

to thenotice

requirement

tbr certain

employ'
crs who are makinggood faith cfforts to avoid employrnenl os-scs and have reasonable

expectation

that these efforts will successfully

forcstall the plant closing, mhss layofl or reduction

in workhours. Many emplolcrs

in thi State

arealready

subject to the federal

WARN Acr (2EUSC$$2l0l - 2109 and 20 cFR 639.3).

The State

WARN Act expands the noticerequirements to a larger

groupof cmployers

and, coircomitantly,

extends its protections

to morc employces.

Thc State

nct also gives th6Commissionir

of Labor the authoriry

to enforce

the law on EMERGENCY/PROPOSED RULE MAKING NO HEARTNG(S) SCHEDULED

New York State

Worker Adjustment

and Retraining

Notification Act (WARN)
LD. No. LnB-07-09-00013-EP !'ilingNo. 109 FilingDate: 2009-01-30 Elfcctivc

Date:2009-01-30

PURSUANT

TO THR PROVISIONS OFTHE State

Adnlinistrative

Pro' ccdure Act. NOTICE

is hereby given of thefollowing

action: Proposcd

Actioa,'Adclition

of Part 921 to Tille l2 NYCRR. Statutory

duthorir); LaborLaw, section 860-f I'inding of necessity

lor emergency

rule: Preservation

of general

welfare. The specific reasoils

underlyingthe

finding of necessity,

nbove,-are.as litltows: fhe cft,,'ctive

datcoT the regulations

coincides

with theeffective date of theirauthorizing

legislatiorr,

the New York Worker

Adjustlnent

8