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Home > Public lnvolvement and News > Environmental Notice

Bulletin (ENB) ) ENB Current and Archives for January -

December 2009 ) Environmental Notice Bulletin February 4,2AAg

) ENB - Statewide Notices 2l4l200g

ENB - Statewide

Notices 21412A09

,"1

Environmental Notice

Bulletin (ENB)

ENB Current and Archives

for January - December

2009

Environmental Notice

Bulletin Februaly 4f 2909

ENB - Statewide Notices

21412009

I Regulations and Enforcement

i Publications, Forms, Maps

:About DEC

Public Notice

Notice of 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 New and Modified

Facilities

The department filed a Notice of

Amended Adoption with the Department

of State on February 3, 2009. This

Notice will be published in the State

Register on February 18, 2009. The

effective date of this rulemaking is March

5,2009.

This filing will correcthe Department's

Contact for this

!-lgl

ENB

NYS DEC

Division of

Environmental

Permits

625 Broadway,4th

Floor

Albany, NY 12233-

1750

518-402-9167

email us

http ://www. dec.ny. gov I enb I20090204_not0.html 2/6/2009
.DI\5 - Dfatewtoe N0uges 4+tzwy - l\ r D uEpt. or Dnvlforunentar \-onssfvauorl

Notice of Adoption filed on January 20,

2009, which was published in the State

Register February 4, 2009.

Pursuanto 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 Air Act (AcQ (a2 U.S.C.

7470-7479:7501-7515) the New York

State Department of Environmental

Conservation hereby gives notice 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.

The adoption of these amended rules is

for the purpose of implementing

nonattainment New Source Review

(NNSR) and attainment New Source

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 31,2002 Federal

NSR reform 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 are also based in large

part on the December'31 ,2002 Federal

NSR reform rule as amended, and as

codified at 40 CFR 52.21

For further information, contact:

Rick Leone

NYS DEC - 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 Stage llVapor

Recovery Requirement at E85

Dispensing Pumps

Notice is hereby given that the New York

State Department of Environmental

Conservation (Department or NYS DEC)

plans to submit State lmplementation

Plan (SlP) revisions for six E85 gasoline

dispensing sites to the United States

Environmental Protection Agency (EPA)

for approval. E85 gasoline is fuel

containing up to 85 percent ethanol.'

Part 230 of Title 6 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 areas in order to

reduce emissions of volatile organic

compounds (VOCs) and the related

http ://www.dec.ny. gov/ enb I 20090204_not0.html 216/2009
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formation of ozone. A Stage ll.vapor

recovery device captures at least 90

percent, by weight, of gasoline vapors

while a er,r is being refueled and qither

. retains them in a storage tank, or

recovers or destroys them in an

emission control device.

Onboard Refueling Vapor Recovery

(ORVR) has been required on all

passenger vehicles since 2000 and on

all light trucks since 2007. ORVR, like

Stage ll equipment, prevents the release

of VOC emissions when refueling. When

ORVR and Stage ll technology are used

in conjunction, however, an increase in

vapor emissions can result.

E85 gasoline can only be used in

specially designed flexible fuel vehicles.

Most of these vehicles have beeh

manufactured since 1998, and allflexible

fuel vehicles built today are equipped

with ORVR. Because of the prevalence

of ORVR technology in flexible fuel

vehicles and the incompatibility with

Stage ll eouipment, anumber of stations

intending to install E85 pumps are

requesting awaiver from the Stage ll

equipment requirements.

ln accordance with the Department's Aii

Guide 20 guidance and 6 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

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

- Department with economic analyses

which show costs for Stage ll equipment

on E85 pumps well above the level that

has been established per Air Guide 20.

Due to these excessive costs and the

proven inability to function correctly with

ORVR technology, the Department

proposes to allow these E85 pumps to

operate without Stage tl equipment. In

addition, a guidance document issued by

EPA supports the claim that ORVR

technology has reached a sufficiently

large portion of flexible fuel vehicles.

Therefore, the Department will submit

these analyses to EPA for approval as

SIP revisions. These willjoin the 28

similar analyses, published in the

September 17th Environmental Notice

Bulletin, which are in the process of

being granted variances by the

Department.

. Arzu Petroleum - Commack

. B&J Service Station - Sloatsburg

. Citgo Express - 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 submitted Py

March 6,2009 to Scott L. Griffin, NYS

DEC, 625 Broadway - 2nd Floor, Albany,

New York, 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 registered sex offenders in New

York State Department of

Environmental Conservation (NYS

DEC) Gampgrounds.

It is the 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 may be identified on

a publicly available sex offenders list. In

accordance with the Sex Offenders

Registration Act (Megan's Law), it may

become necessary to inform visitors of

the presence of such individuals. The

Department has developed procedures

to respond when the presence of such

an individual is broughto the attention

of NYS DEC staff and to 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 lContact Us

Copyright @ 2009 New York State Department of Environmental Conservation

http ://www.dec.ny. gov I enb I 2009 0204_not0.html 2/6/2049
Rule Making Activities NYS RegisterlFebruary 4, 2009

or (3) possession ofa current certificate ofadministration issued by anothbffurisdiction and continuous practice in the administration of immuniz'ine asents since the pharmaiist received such trainine or comoletion of a-refrining program'in the adminisration of immunizition age'nts.

Section 63.9@!4) e-stablishes the standards, procedures and rep6rting

reouirements for the administration of immunizins aqents.

Section 63.9(b)(5)(i) provides that certified phlrriacistS shall maintain

or ensure the maintenance of a copy of the patient specific order or 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-e information required to be included in patient specific brders and non-patient

specific orders and prolocol. Such orders and protocol 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

retained by the pharmacist who administered the imrnunization.

Section 63.9(b{5)(ii) establishes the contents ofpatient specific orders

and non-patient specific orders.

Section 63.9(b)(5)(iii) specifies additional provisions required to be

included in non-patient specific orders, including the incorporation of a

protocol.

Section 63.9(b[5)(iv) requires the protocol, incorporated into the nonpatient specific order, to include the standards, procedurrs and.reporting

requirementset forth in section 63.9(b)(a).

Section 63.9(c)(l) authorizes certified pharmacists to administer medications for the emergency treatrnent ofanaphylaxis.

Section 63.9(c)(2) establishes the standards, procedures and reporting

requirements for the administration ofanaphylaxis treatment agents by

certified pharmacists.

Section 63.9(c)(3)(i) requires a certified pharmacist to maintain or

ensure the maintenance of a copy of the non-patient specific order and

protocol prescribed by a licensed physician or a certified nurse practitioner

that authorizes such pharmacisto administer medications for the emergency treatment of anaphylaxis. This section requires a record of each

patient to be maintained in either a patient medication profile, or in instances where a patient medication profile does'not exist, on a separate

form that is retained by the pharmacist who has administered the

immunization.

Section 63.9(c)(3)(ii) provides that the non-patient specific ordir shall

authorize one or more named pharmacists, or certified pharmacists who

are not individually named but are identified as employed or under contract

with an entity that is legally authorized to employ or contract with

pharmacists to provide pharmaceutical services, to administer specified

anaphylaxis treatment agents in specified circumstances for a prescribed

period of time. This subparagraph also presctibes the content for such

non-patient specifi c orders.

Section 63.9(c)(3)(iii) requires that the 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 be obtainedfro,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 arguments may be submitted /o.' Frank Munoz, New York

State Education Departrnent,2nd Floor, West Wing, 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

Since publication of a Notice of Proposed Rule Making in the State

Register on November 19,2008, the following substantial revisiors were

made to the proposed rule:

Section 63.9(bXaXx) has been revised to clarify that a cbrtified

pharmacist shall 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 manner required by either

the Commissioner of Health of 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

Since publication of a Notice of Proposed Rule Making in the State

Register on November 19, 2008, the proposed rule was revised as set f.orth

.in the Revised Regulatory Impact Statement frled herewith.

The above revisions to the proposed rule do not require any revisions to

the previously published Rural 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. revised as set forth

in the Statement Conceirning the Regulatory h4pact Statement filed

herewith.

The proposed rule, as so 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 manner required by 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 revised rule that

it will have no impact on jobs or employment opportuhities, no further

measures were taken. Accordingly, a job impact statement is not required

and one has not been prepared.

Assessment of Public Comment

A Notice of Proposed Rule Making was published in the State Register

on November 19, 2008. Bqlow is a summary of written comments received

. by ttre State Educ-ation Department (SED) and SED's assessment ofissues

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, this sectipn only refers to the Commissioner ofHealth,

which could be interpreted to mean only the Comrnissioner of Health of

the State of New York and not the New York Citv Commissioner of

Health, as was originally intended.

DEPARTMENT RESPONSE: SED agrees with this comment and has

revised the proposed rule to refer to the "Commissioner of Health of the

State of New York or of New York City, as applicable.

2. COMMENT: One commenter indicated that the proposed amendment is inconsistent because it refers to the individuals receiving immunizations as both "patients" and "recipients."

DEPARTMENT RESPONSE: SED agrees that both terms are used interchangeably throughout the proposed amendment. However, SED

believes the terms are used appropriately and 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 after filing

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taheni Amendment of Parts 200,201 and 231 of Title 6 NYCRR.

Statutory aathority : Environmental Conservation Law, sections I -01 0 l,

3-0301, 3-0303, l9-0103, l9-0105, 1 9-0107, 19-0301, 19-0302, l 9-0303

and l9-0305; and Federal Clean Air Act, sections 160-169 and l7l-193

(42 U.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)

Rule promulgated and correct deficiencies that the EPA identified.

Substance of Jinal rule : The Departrnent of Environmental Conservation

(Department) is proposing revisions to its rulemaking proposal published

in the State Register on September 26,2007 for Parts 200,201 and 231 of

Title 6 of the Official Compilation of Codes, Rules, and Regulations of the
NYS Register/February 4, 2009 Rule Making Activities

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

Transoort Regions" respectively.

Thi Part 210 amendhents \iill add a definition for Routine Maintenance, Repair, or Replacement (RMRR), codifying current Department

Dractice ofreviewins RMRR activities on a case by case basis. takine into

iccount the narure a;d extent of the dctivity and its frequency'and crj6t. In

addition, the Deparsnent is revising Part 200 (Sections 200.9 and 200.10).

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 Federal Prevention of Significar

n (PSD) Program.

The proposed amendments to Part 20l revise the definition for "major

stationary source or major source" at 6 NYCRR 201-2.1b)Ql). The definition will now encompass the 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 necessary for 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 contemporaneous activities 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 determina1 1
Rule Making Activities i\[YS RegisterlFebruary 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 eouals or exceeds 50 oercent ofthe 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 increases from 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 exceeds 50 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 accordance with 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 increase cbncentrations. 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 lasl publishednrle: 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 business and 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 September 24,2008 through October 24, 2008

The New York State Department of Environmental Conservaiion

1 2

(DeparEnent) is proposing to amend existine 6 New York Codc of Rules

ind'Regulations'OrvCnfl Parts 200 (Genehl Provisions), 201 (Permits

and Regisrations),.and 231 (New Source Review In Nonattainment Arcas

and Ozone Trans6ort Reeions). The amendments !o Part 200 add a definition for Routine Maintei'ancd Repair or Replacement, amend the definition ofpolential-to-emit. and remove the reference to delegation ofthe

federal Prevention of Sigrrificant Deterioration @SD) requiiernents. The

amendmento Part 201 modifies the definition for Major Stationary

Source. Existing Part23l will be re+itled as New Source Review for New

and Modifred Ficilities and will include new Subparts 23 I -3 through 23 I -

I 3. The existing Parr 231 regulations (Subparts 23 I -l and 231 -2) arc bEing retained with 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,

and 23 I were published in the State Register on 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 "reasonable possibility'.' rule for insignificant modifications

promulgated on December 21,2007. The Department's re-proposed

amendments to 6 I.IYCRR Parts 200, 201, and 231 were published in the

State Register 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 environmental organizations, expressed opposition to various aspects of the proposed amendments for a variety ofreasons. The comments covered a number oftopics

including, regulatory effi ciency, technical concerns, economic impacts,

perceived inconsistencies with the Environmental Conservation Law

@CL) and the Clean Air Act (CAA), and legal 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 those activities that involve

"routine maintenance, repair, or replacement" (RMRR). Many commenters expressed concem regarding the Departnent's proposal to establish a

definition for "Routine Maintenance, Repair, or Replacement" in Part

200.1(cl). While supporting the RMRR exemption, these commentem

characterized the definition as being vague and unworkable. These commenters expressed concem with the Departrnent's use in the definition of

the words'"generally" and "typically" and requested further definition

of those terms. Other commenters took issue with the indication that

RMRR is "typically paid for out of the operation and maintenance (O and

M) budget of the facility." The RMRR definition mentions sources of

funding in order to differentiate between operation and maintenance

budgets, which would likely have funds specifically set aside for ioutitre

replacements, and those capital expendinrres which would be more indicative ofnon-routine activities. The proposed regulation does not establish a

presumptivexclusion from the definition ofmodification for.those activities financed 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 when characterizing an activity as routine or non-routine.

Commenters also stated that the RMRR definition, as proposed, could

limit the'availability and reliability of the equipment at their facilities, and

that any project, including maintenance activities, could be considered as

life extending and therefore not meet the definition of RMRR. Most commentdrs requested that the definition be eliminated completely or revised

to include additional clarification ofthe terms contained in the definition.

To address commenters concerns, the Departrnent has revised the definition to clarify the meaning of RMRR. The proposed.Part 231 definition

states that the Department will continue to reiiew activities on a case-bycase basis as has Leen the established oractice.

A comment *as received regardinf the proposed definition of "major

stationary source" in Paragraph 201-2.1@)(21). The commenter correctly

states that the Department intends to use the.proposed definition for

implementing the major NSR requirements in Part 231 as well as the Title

V.permitting requirements in Part 201. The commenter believes that the

proposed definition could lead to confusion when the definition is relied

upon for implementing Part 231 because the 250 py major facility theshold that applies in attainment or unilassified areas, for sources that are not

in a listed source category, is not referenced. The Department agrees with

the commenter's concem. To address this issue, the Department will revise

the proposed defi nition.

A comment was received regarding the Department's mandated use, by

reference, of Departmental "policy" documents with regard to air quality

impact analyses. Concem was stated 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 requested that 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 representative ofnormal 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 provisions will impose regulatory requirements that are more strinqent than Federal requirements. and

the rcc<irdkeeping requirements arc eicessive for modificitions that have

no reasonable oossibiliw of resultine in a simificant emissions increase.

They further siate that ihere is no jistification 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 actual emissions will exceed the significance thresholds. The Departinentuhderstands

the concerns ofboth the environmental and industry commenters. The

DeparEnent disagrees with the environmental groups' assertion that the

proposal would require fewer sources to monitor post-change emissions

than required under the federal reasonable 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 are contemporaneous with a proposed

project, be included in any net emissions increase determination. Maintaining the records under proposed Subpart 23 I - I I ensures that all ernission

increases are on record and available should a net einission increase determination be required. The Department believes that the rule as proposed

strikes an appropriate balance between environmental concems and economic and administrative 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 use different baseline periods for different pollutants,

allowing a source which has not yet commenced construction to include

emissions equal to the potential to emit, and allowing a PAL to be

presumptively renewed at the existing PAL level. The industry comirnenters objected to the 25 percent reduction requirement in the,sixth year of

the PAL. As discussed in the Regulatory Impact Statement, the Department wants to encourage the use ofPALs in the State and believes that

they could provide a measure of regulatory flexibility while at the same

time providing for long-term protection of the environment. The environmental commenters' proposed revisions would significantly reduce the

flexibility provided by the rule and, as a resul! discourage the use ofPALs

in the State. The industry commenters' request to delete the 25 percent

reduction requirement would not be consistent with the Department's

environmental protection goals. The Department has determined that additional environmental benefits will result from requiring a rcduction in

the PAL of up to 25 percent in the sixth year of the PAL. The Departrnent

believes that the proposed PAL provisions best balance the goals of

improving air quality while reducing the burden of NSR compliance on

indusry. The Department will not revise these provisions.

Comments were received regarding PM2.5 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

and NOx as PM2.5 pnecursors and allows ERCs of these contaminants to

be used to offset PM2.5 increases and for internal PM2.5 netting. States

with EPA approved PSD programs and those with PM2.5 nonattainment

areas have up to three (3) yean to submit a revised SIP incorporating the

PM2.5 NSR reouirements. The Deoartment will need time to evaluate

EPA's final PM2.5 rule, specificaliy with rbgard to applicable PM2.5

precursors and appropriate interpollutant trading ratios to determine what

provisions make sense for New York. Until the Department has an 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

transition plan, specifically with regard to the applicability of40 CFR

52.21, following the promulgation of Part 231. Both rules will continue to

be applicable until Part 231 is included in the New York State SIP and is

approved by EPA.

Comments were received regarding the existing significant project

threshold of2.5 tons per year for VOC and NOx in t}re severe ozone nonattainment area. Industry has advocated for an increase in the significant

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

Industry recommends increasing the significant project threshold in

proposed Part 231-13.3, Table 3 to 12.5 py. The Department will retain

the significant project threshold of2.5 tons per year for NOx and VOC for

the severe ozone nonattainment area. The Deparfnent has detemiined that

retention of this threshold is vital to New York State's abiliw to control

ozone and crucial to its SIP for attaining the l-hour ozone NAAQS. Raising the significant project threshold to 12.5 tpy as requested by commenter

would relax requirements that have been in place for almost eight years

and result in fewer modified facilities undergoing NSR review and could

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 severe areas the 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 Tower Building, Albany, NY 12237, (518) 473-

7488, email: rcgsqna@health.state.ny.us

R egu latory I mpacl Slateme nt

Statutory Authority:

Section 2899-a(4) of the Public Health Law requires the State CommisDepartment 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, section 845-b(12)

Finding of necessity for emergency rnfe,' Preservation ofpublic health,

public safety and general welfare.

SpectJic reasons underlying the Jinding of necessity.' Emergency agency

action is necessary for 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 address the 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 necessary to 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 SlOner OLUealIn IO prOmUlgale regulations regurallQns implementing rmpremennng newew Article Alucre 28.E z6.E

ofthe Public Healtfi Law ihich rEquires all nirrsing hories, certified home

healthalth agencies, aeencies. licensed licensed homeome careare services services agencies agencies andnd longng termm homeme

health cireare pro'grams programs ("the providers") providers") to re-quest, request, through-the through the Depart- Department of Health ("the Department"), a criminal history historyrecord check for

certaintain unlicensed prospective prospectiveemployees of such providers.

Subdivision (12) ofsection 845-b ofthe Executive Law requires the

Department to promulgate rules and regulations necessary to implement

criminal history information requests.

Legislative Objectives :

Chapter 769 ofthe Laws of2005 as amended by 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,

compassionate workers who provide quality care, there are cases in 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 hereby given of the following proposed ntle:

Proposed Actior.'Arnenclment of Appendix I of Title 4 NYCRR.

Stutunry autfutrity: Civil Service Law, section 6( I )

Su bject : 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

Spccial Assistant from | 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 anii Counsel. NYS Departnrent of Civil Service, AISSOB'

A I bany. NY I 2239, (5 | S\ 47 3 -2624, Lmail : j udith.ratner@cs'state'ny.us

Puhlic <'onment will be received until: 45 days afler publication of this

notice.

R eg u I uto ry I nt pact Stoteme nt

A rcgulatory impact statenrcnt is ltot submitted with this noticc bccause

this nrle is subject to a consolidated regulatory impact statementhat was

previously printed under a notice of proposed rule nraking, I'D. No. CVS0 l -09-00010-P, Issuc of January 7, 2009.

R e g u la t o ty F I cu ib ility A n alys is

A regulatory flexibility analysis is not submitted with this notice because

this rulc is subject to a consolidated rogtllatory flexibility analysis that was

previously printed under a notice of proposed rule making, I'D. No' CVS0 I -09-000 I 0-P, lssue of January 7 ,2009.

Rural Area F-iexibitity Anatysis

A rural area flexibility analysis is not submitted with this notice becatlse

this rule is subject to a consolidated rural area t)exibility analysis that was

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 inrpact statcnrent is not suburittecl with this notice because this ntle

is subject to a consolidated job impact statemetrthat was previously

printe'd unde'r a noticc of proposcd rule making, I.D. No. CIVS-01-09-

000 | 0-P, lssuc- of Jattuaty 7 , 2009.

Subjact: Personal Privacy Protection Law.

Purpose: To update the Division's address and contact person for requests

regdrding the Personal Privacy Protection Law.

Text or summary was published in the December 3, 2008 issue of the

Register, l.D. No. CJS-49-08-00008-P.

Final rule as conpared with last published rule.' No changes.

Text of rule and anv required statementsnd analyses may be obtained

froni[ark Bonacciuist, Division of Criminal Justice Services,4 Towcr

?lace, Albany, NY [2203, (5 I 8) 457-84 I 3

Assessment of Public Comnent

The agency receivcd no public commont.

Department of Environmental

Conservation

*o',S%ff#pnoN

Requirements for 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

Effective Date: 2009-03-05

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action ta.ken: Anrendment o{' Parts 200, 201 and 23 I of Title 6 NYCRR.

Anended action: This action amends the rulo that was filed with the Secretary ofState on January 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, I 9-01 03, l 9-0 I 05, I 9-0 I 07, I 9-0301, I 9-0302, I 9-0303,

l9-0305; and Federal Clean Air Act, sections 160-169, l7l - 193 (42 U'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 New Source 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 Review in 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 on a casc by casc basis, taking into

:rccount the nature and extent ofthe activity and its frequency and cost. In

addition, the Department isrevising Part 200 (Sections 200.9 and 200.10).

Section 200.9 is being amended to include all federal rnaterials referenced

in the proposed amendmentso Part 231. Section 200.10(a) is beiry

amended t6 reflect that the Departntent is no longer clelegated responsibil'

ity lbr implementation of the Federal Prevention of Signilioant Deterioration (PSD) Program.

The proposed amendments to Part 201 revise the definition for "major

stationary source or major source" at 6 NYCRR 201-2.1 (bX2l). The definition will now encompass the term "major facility" and incorporate major 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

Ybrk City metropolitan area as nonattainment for the PM 2.5 standard (70

Fed. Reg. 944). Nonattainment new source review (NNSR) is now

required Tor new major facilities and major modifications to exibting facilitids that emit PM 2.5 in significant amounts in the PM2.5 nonattairunent

area.

The existing nonattainment New Sourcc Review program at Part 231

will be re+itled "New Source Review for New and Modified Facilities"

Division of 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 OF THE State Adnlinistrative Procodure Act, NOTICE is hereby given ol'the following action:

Action taken: Amendnreut ofsections 61"51.2(b), 6151.4, 6151.$(c) and

6151.9 of Title 9 NYCRR.

Statutoq' authority: Public Officers Law, scction 94(2); and Executive

Law, section 837( l3)

6
NYS Register/February l8' 2009 Rule Making Activities

antl will include new Subparts 231-3 through 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 existintr NNSR 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 Reasonable Possibiliry in

l{ecordkeepins Rule. The PSD requirements are also based largely on 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 clarifi cation 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

DcDartment will 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 previous five years.

Ali f'acilities (no separate biseline perigd for electric utility steanr generating units).will be riquircd to detemtinc thcir baseline actttal emissions us'

ing this method. tfhe Departnrent will retain existing Subpart 23 l-l "Requirements^1'or

enrission doLrrces subjcct to thc regulation prior to November l5' 1992"

and Subpart 23 I -2, "Requirements for enlission units subject to the regulation on or atler Novenrber 15, 1992". These regulations are currently cited

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 revised only 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 ieceived on or after the effective date ofrevised

Pan 23 I will be.processecl according to the provisions of Subparts 231-3

through 231-13, as aPplicable.

Ne; Subparts 23 i-3 through 23 l - I 3 havc becn added 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 thcsc ncw srtbparts.

The'Department is also idoptine a State PSD program which is based

larselv bn the Federal PSD fuleand included in Subpans 231-7'231-8'

a,rd'Z3t-t2. The subparts ofthe proposed rcgulation are being organized

to ease deternrinations of applicabiliry. to collect common requirelnents

inkr groups, and to streamlin! the regulation. The.orgarrization ofthe new

rcsul-ation strives 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 trausition plan, excmptions, gencral prohibitions.

Iuurce .ibligatiort. gencral permit requiretnents, facility shakedown

ncliotls. lnd-circurrtvenrion. Proposed Section 23 l-3.4 (Exenrptions.; has

becn rcvisetl to renrove the Ciean Coal technotogy exemptions. The

Departnlcnt has deterntined that these exemptions 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 proposes a 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, Tables 3, 4 or

6, inust notifu the Department in writing of the proposed project prior to

inrplenrentin! the change ifthe owner or operator determin€sthathe projeci does not aonstitute a rnodification bccausc all the emission increascs

are attributable to independent factors in accordance with Clause 231'

4.1(bX40XiXc). The notification must 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 projected emission 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 CIFR 52.2 l. The Department has nrade minor revisions to terms

used in cxisting Subpart 23 l'-2 and 40 CFR 52.21 so that definitions are

consistent for6oth ironattaintnent arrcl attainment NSR and with New

York's rcgulations. The Departnrent has also removed the previously

proDosctl ilcan Coal technolbgy defrnitions to bc consistcnt with thc rciuoial ofthe Clean Coal technology exetuptions in Subpart 231-3.

To f'acilitate the implententation and administration of Part 231, the

Dcpartnrent has included the 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 tronattaintrtent areas. Proposed new nrajor

facilitids will continue to be srrbiect to the requirenrents to install Lowest

Achievable Ernission Ratc (Ln ER) and obtaincmission offsets as they are

under existing Subpart 231-2. The subpart also specifies that non'major

facilities undertakinq proiects wltich are major by themselves, orincrease

the emissions of the-faciiity above major threshblds must obtain permits

which limit emissions.

SuUoart 231-6 applies to modifications at existing major facilities in

nonattiinment area'sl The subpart continues the requirements for LAER

tcchnoloev and emission offiets that exist in the Department's current

nonattainfrent NSR procram. The subpart also specifies that facilities can

Jerfomr a nettinq eieriise to determihe whethei the modification, when

bonsiclering otheicontemporaneous activities at the {'acility, would exceed

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'

anil the application of Best Available Control Technology (BACT). Thc

suboart aisb specifies that non-major facilities undertaking projects which

are'maior bv ihemselves. or incrcase thc cmissions of the facility abovc

maior thresliolds must obtain permits which lirnit emissions'

Subpart 231-8 applies to modifications at existing major l'acilities in attainment areas of t'h'e State. The subpart irnplemcnts thc requirements for

deterrnination of air quality impacts ihrough nrodeling and the a??lication

of BACT in the cise 6f l'acilities which undertake a NSR major

modification. These requirements address Federal PSD requirements. The

subpart also specifies-that facilities can perfornl a netting exercise to

determine wheiher the modification, when combined with other contemporaneous activities at the 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 fbrth the requirements for establishing Plantwide

ADDlic;bility Lirnitations (PAL) at-Title V facilities, A PAL allows a faciiiiy to undertake modific'ations without being subjecto NSR review as

lons as the l'acilitv tloes not exceed its PAL emission limit' Subpart 231-9

is biscd on the PAL provisions from thc December 31,2002 Federal NSR

rule (67 Fed Reg at-80278), which specify PAL creation, duration' and

exoiration. The-Department has made a few revisions to the Federal

rciulatory languagc'to takc into account Subpart 201-6, Ncw York's ap'

or:oved Title V risulation attd to ensure that reduced emissions and

imoroved air oualit-v will result. PALs are established inTitle V permits

anil arc subjecl to fitle V pcrmit application and proccssing proccdurcs

for creationl modification, br renewal. PALs are created for an initial period of l0 years, less if established during the middle of a Title V permit

term, and cin be rencwcd for l0 years, subjecto certain rcstrictions. The

proposed regulation requires that the PAL shall be reduced to 75 per-cent

bf the initiaf pel, comhencing with the first day of.the sixth year of.the

PAL, unless thc owner or op;rator delnonstratcs that a lesser level of

reduition is justified. The owner or operator may seek an alternative

rcduced PAi by demonstrating that the application of BACT -and/or

LAER, as appliiable, on all major PAL emission sources at the facility

would not r6Jult in a 25 percentieduction in the initial PAL. The Depart'

ment mav authorize a reriuction in the PAL to a level that would reflect the

emission! fiom the facility if all major PAL emission souroes are operated

at full capacity after complying with BACT and/or LAER, as applicable..

Subpa'n 23i-t0 definei imission offset and Emission Reduction Credit

(ERC)'creation and use. The provisions for ERC creation and use are

iubstantially the same as existirig Subpart 23 | -2 except for the determination of[,RC enforceability. Under proposed Subpart 231'10 the Departnrent has clarilicd how ERCs are made enttrrccablc

Subpart 23 l - I I scts forth pcrmit rcquircmcnts for ncw major facilities,

NSR rirajor modifications, and netting. This Subpart 3ls-o_establishes reasonable possibility requirements for insignificant nrodifications. These

rcquirements are iir addition to any Part 201 requiremcnts that may apply.

Th; Irederal Reasonable Possibility Rule only requires post-change moni'

torins for insignificant modificaiions ifthe projected actual emissions

increlse (Pan ,3 | project emission potential) is by itself grtater than or

equal to 50 percentbfihe applicable significance threshold.. Proposed Part

2jl extendi the post-changC monitoring requirement to also include any

modification with a project 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) are addbd. For such modifications, facilities w-ill be.required to

keeo ricords of their calculation of emission increases from independent

andunrclated factors such as demand growth, monitor post'modification

emissions, and submit annual reporti to verify the accuracy of their

calculations. Additionally, the Federal Reasonable Possibility Rule only

rcquircs EUSGUs to noiify thc Departmcnt, prior to beginning- actual

coistruction, for any modification with a project enrission potential which

equals or exceeds 50 percent ofthe applicable significant projecthreshold.

Pioposcd Part 231 citends 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 equals or exceeds 50 percent oftheapplicable significapt

proiect threshold'or rrroposes a nroilifioation with a project enrission

borintial which is less'thah 50 percent ofthe applicable significant project

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

exoeeds 50 percent ofthe applicable significant proje,ct threshold when

e rnissions 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

ernanate from the Federal PSD rule which is codified at 40 Cl'R 52.21 '

Suboart 231-13 includes several tables which list applicable emission

threshrilds tbr proposcd new and modified facilities, cmission offset ratios'

Ii'ederal Class i variance nraximum allowable increase concentrations, and

maximum allowable increase in SO2 concentrations for gubernatorial

variances. Table 9 * Source Catcgory List includes the new chemical process plant exclusion for ethanol production facilities that 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 made in 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 Environmental Assessment

Form, a Negative Declaration and a Coastal Assessment Form have been

prcparcd and are on tlle. This rule has been approvcd by the Environmental

Board.

Revised Reg ulatory Irnpuct Stalen, ent 'fhere 

were no changes to the previously prrblished Revised Regulatory

lmpact Staterrrent.

R et, ise d R eg u la nry F I ex i 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 ptrblished l{evised Rural Area

Flcxibility Analysis.

Revised Joh Irnpsct Statenteilt

There were no changes to the previously published Revised Job lmpact

StateDrent.

Department of Labor

and Retrainins Notification (WARN) Act, a new law that beconres effecii"i FiUiu".vi , 2009. The Act govems the provision 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 the employees are awaie of future actions that will aftbct their

emnlovment so th'at ihcy can take steps to securc new employment, be

retrain;d for more readiiy available wbrk, and otherwise make arrangemqnts, to provide for thcir needs and those of their f'amilies when their

emolovmint ends. The law is also intended to cnsure the ability ofthe

Deiartment of Labor and its partner, the Workforce lnvestment Board, to

orovide Rapid Response services to the affected employees prior to their

bmnloymerit loss. fhese scrvices include providing employees with infornraiiori recarding unemployment insurante, job training, and reentployment services. T-hese relulltions fill in gaps found in the law in order to

more fully inform employees of their obligations and workers of their

riehts undlr the law. -The 

"r'nergency 

promulgation ofthese regulatiQns is necessitated bythe

dramatic jodlosiei cu.te,i-tly being sufl'ered within the state, the need to

cnsure th;t the notice requi16mcntJdetailed in the rcgulation are availablc

to protect workers affecied by such job losses, and the needs to provide

reenrDlovment servioes to these workers in order to retum them quickly to

work. In thc last quarter of2008, New York Statc lost 102,900 privatc sector iobs. includiris 49.300 in December alone. This is the stcepest oncmonth tlrop since bctober 200 | in the aftermath of the World Trade Center

attacks. Sihcc thc beginning of the national rcccssion in Dccembcr 2007,

the nunrber of unem[loyedin the state has increased by more than 50%

and is at its highest level'since October 1993. New York State's unemployInent rate, 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, and their

communities can be staggering, more so if workers are unaware that plant

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

time to search for new work, retrain for nlore secure long'term employ'

ment, and take advantage of reemploymetrt services which will ensure a

quick retunr to work atier their fbrmer employment ends..The proposed

rirles will ensure timely notice to the Departhent and early intervention of

Rapid Response teanr! in situations involving enrployment losses so that

workers can quickly transition into new ernployment or retraining following the loss oitheiijobs. Such activities alio avoid or shortcn periodsof

un-employment, thereby reducing employer charges associated with the

' receipt oi unemploym6nt insurance by their former employees.. On the

othcihand, cmploydcs need to know ofthe availability ofunemployment

insurance benefits following these employment lossesince the program

is designed to provide an elonomic safety net to the workcrs and their

familiei. All efiorts that will quickly transiiion 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 ds housine. food. heat and other utilities and to maintain

ihe payment of school 

-and pioperty taxes that support their local

community.

Enacting emergency regulations, which will immediately clarify the

scope, timi-ng, anil coritent of the notice requirements, supports the goals

set forth above and protects the general welfare of the state'

Subject: New York State Worker Adjustment and Rehaining Notification

Act(WARN).

Purpose: To provide govemment enforcement and more advance notice

to alarger number of workers than under the federal WARN Law'

Suhstanie of emergency/proposed rule (I-ull text is posted at the following State wibsitc: www.labor.state.rry.ts).'The proposed rule creates a

new section ofregulations designated as l2 NYCRR Part 921 entitled

"New York State-Worker Adjustrnent and Retraining Notification Act"

created under Ch apter 475 of the Laws of2008. This Act requires employ'

, ers offifly (50) or more employees to provide at leas! ninety (90) days no'

tice to affeited employees lnd representatives ofaffected employees,-the

New York State Depaitntent of Ldbor, and local workforce partners befor-e

ordering a plant clo-sing, nrass layoff, or reduction in work horirs that falls

within ahc employment losses covered by thc law. At least-twenty-five

(25) enrployeei mrirst be aflected for the notice requirement to be trigge.red.

itr6 rutd contains exbeptions to the notice requirement tbr certain employ'

crs who are making good faith cfforts to avoid employrnenlos-scs and

have reasonable expectation that these efforts will successfully forcstall

the plant closing, mhss layofl or reduction in work hours.

Many emplolcrs in thi State are already subject to the federal WARN

Acr (2E USC $$ 2l0l - 2109 and 20 cFR 639.3). The State WARN Act

expands the notice requirements to a larger group of cmployers and,

coircomitantly, extends its protections to morc employces. Thc State nct

also gives th6 Commissionir 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

!'iling No. 109

Filing Date: 2009-01-30

Elfcctivc Date: 2009-01-30

PURSUANT TO THR PROVISIONS OF THE State Adnlinistrative Pro'

ccdure Act. NOTICE is hereby given of the following action:

Proposcd Actioa,'Adclition of Part 921 to Tille l2 NYCRR.

Statutory duthorir); Labor Law, section 860-f

I'inding of necessity lor emergency rule: Preservation of general welfare.

The specific reasoils underlying the finding of necessity, nbove,-are.as

litltows: fhe cft,,'ctive datc oT the regulations coincides with the effective

date of their authorizing legislatiorr, the New York Worker Adjustlnent

8