Page 1 of 8 Assessment of Public Comments 6 NYCRR Part 212, General Process Emission Sources Comments received from June 16, 2010 through 5:00PM, July 16, 2010

Comment: The redrafted regulations require that beginning January 1, 2012, the owner or operator must “analyze the economic feasibility of installing a low NO x burner when it comes time for their current burner to be replaced.” Does this mean that an economic feasib ility analysis must be s ubmitted in 2012 for all hot mix asphalt (HMA) plants? Or, is an econo mic feasibility study required at the ti me a facility is going to replace a burner after January 1, 2012? Commenter: 1

Response: The approach required by the New York State Department of Envi ronmental Conservation (Department) is reflected in the commenter’s latter statement: anytim e after January 1, 2012, when an HMA facility is preparing to re place its burner, they must provide the Depa rtment with an economic feasibility study for a low NO x burner.

Comment: In some instances, it may not be necessary to perform an economic feasibili ty analysis to determine if a low NO x burner can be installed. The regulations should allow facilities the option to forego the economic feasibility analysis, which would be cos tly and time-consuming, and install a low NO x burner if the company and/or burner manufacturer has determined it to be econom ically feasible. In some cases, the preparation and submittal of an economic feasibility analysis may place an unnecessary financial bur den on the owner/operator, and impede business operations by the need to prepare th e analysis report and wait fo r Department approval.
Commenter: 1Page 2 of 8 Response: In instances where an HM A plant voluntarily installs a low NO x burner because of its belief that such equipment would prove feasible, the economic anal ysis will not be a requirement. The preparation and submission of such a plan would be superfluous, and the plant could proceed with the installation without having to wait for Department approval. Of course , for HMA plants intending to show that a low NO x burner is not economically feasible, an analysis will be required in all cases.

Comment: The re-proposed regulations clarify that the Department will accept the manufacturer’s classification of a burner as “low NO x .” Some facilities have recently installed “low NO x ” burners as classified by the manufacturer. These burners should be exempted fr om the January 1, 2020 deadline for the completion of an economic feasibility analysis and installation of a low NO x burner. Given that the re-proposed regulations will require annual burner tune-ups, th ese burners can have an effectiv e life well beyond January 1, 2020. Therefore, facilities already operating with low NO x burners should not be forced to replace a perfectly functional low NO x burner if its useful life expectancy is beyond January 1, 2020. Commenter: 1

Response: In cases wh ere an HMA plant has al ready installed a low NO x burner according to manufacturer classifications, the Department will support the commenter’s proposed approach. Because the purpose of the analysis is to determine whether a low NO x burner would be feasible, such an analysis would no t be logical for plants that already operate such equi pment. In lieu of the economic anal ysis, a facility owner should document the existence of a low NO x burner and submit it to the applicable Regional office by the January 1, 2020 deadline.

Comment: The revised regulations call for facilities to prepare and submit to the Department their “intended practices plan” for reducing moisture in aggregate st ockpiles by March 1, 2011. The regulations, however, doPage 3 of 8 not specify which practices are available and allowable. How will this part of the regulations be enforced without any specific requir ements? Commenter: 1

Response: In the Regulatory Impact Statement (RIS) for the Part 212 re-proposal, the Department indicates that the “primary ways by which aggregate moisture content c ould be reduced are by coveri ng the stockpile to shield it from rain, either with a tarp or physical structure, or by paving under a nd sloping the pile to allow water to drain away.” These methods were specifically mentioned in the comment s by the National Asphalt Pavement Association (NAPA) to the Ozone Tr ansport Commission on its original proposal, and also reflect methods discussed in the Astec technical paper (referenced in the RIS) and brought up in communications with the New York Construction Materials Association (NYMaterials). The Department believes that these two methods are practical and effective for the stated purpose of reducing moisture content, should be feasible at most plants, and should therefore be the starting point for HMA plants in draftin g their “intended prac tices plans.” The Department decided not to impose specific requirements for reducing moisture in aggregate piles because, as noted by NAPA, “Best Practices are plan t- and geographic locale-sp ecific.” The Department is relying on each HMA facility to inform us of the best approach for their plant.

Comment: As currently proposed, the requirements for th e “intended practices plan ” are too vague and would subject regulated facilities to widesp read variety in enforcemen t, interpretation, etc., by the Regions as well as different inspectors in the same Region. Facilities coul d be at a competitive disadvantage or unknowingly be in violation, if one region or inspecto r requires a particular management practice (e.g., paving or covering) and another region does not. Commenter: 1

Response: As stated in the regulat ion, RIS, and in the comment above, the Department is not enforcing a particular management practice such as paving or covering a st ockpile. The interpretation and enforcement ofPage 4 of 8 this requirement will be based on the plan submitted by each HMA facility. The Department therefore expects each plant to be thorough in its description of their intende d practice, and to follow its stated practice thereafter. In doing so, the Department and its Regional staff will be able to succes sfully enforce such requirements.

Comment: The regulations should be mo re specific to indicate the acceptab le moisture reduction practices, but should provide for operational fl exibility. For example, it may be physica lly and/or operationally infeasible to cover stockpiles, pave beneath them, etc. Therefore, th ese should not be mandatory requirements. Commenter:
1

Response: The Department understands the commenter’s concerns, and avoided th e inclusion of mandatory requirements in Part 212 for these r easons. While the Department suggest ed two of the most oft-cited and effective means in the RIS as a starting point, it must defer to industry e xperts to determine what means are most reasonable in instances where covering or pavi ng under stockpiles are not feasible. Because effective reduction of moisture in aggregate st ockpiles can be directly beneficial to an HMA plant (potentially reducing fuel use by 10 to 15 percent, according to NAPA), the Department believes facilities will identify methods that can most appropriately be tailored to their plant, thus reducing NO x emissions while resulti ng in fuel savings for the plant.

Comment: Due to the wide variability in site and ope rational conditions, as well as the moisture reduction options available from site to site, the requirement for an “intended practices plan” and submittal of an associated permit modification should be removed from the regulations. As many facilities currently employ some form(s) of moisture management, this component seems better suited for a gui dance document rather than a vague regulation that will be extremely difficult to comply with and enforce uniformly throughout New York State because of its ambiguity. Commenter: 1Page 5 of 8 Response: As noted by the commenter, many facili ties currently employ some form(s) of moisture management. Such measures result in the burning of less fuel, and are therefore accepted means of reducing
NO x emissions where feasible. Placing this requirement in a regulation form will encourage those operators who do not presently practice moisture management to assess whether this is a feasible means of reducing emissions. Placing the requirement in a guidance document will carry less weight.

Comment: The re-proposed regulations state that a pe rmit modification application must be submitted by March 1, 2011, presumably for the “intended practices plan.” The preparation and implementation of management practices for moisture control in aggregate stockpiles does not appear to be a significant facility modification that requires a modifica tion to an air permit or registration under the existing regulations. Since the new requirements will apply uniformly to all curr ent permitted facilities, the Department should issue a Department-initiated modification to all existing permits rather than create unnecessary paperwork, as well as eliminate the unneeded time-consuming process of pr eparing and reviewing the numerous applications throughout New York State. Commenter: 1

Response: The revisions to Sectio n 212.12 will be submitted to the Unite d States Environmental Protection Agency (EPA) for inclusion in New York’s State Implem entation Plan (SIP). As such, it becomes a federal applicable requirement and will need to be addressed in each facility’s permit (depending on the type it has) as required under 6 NYCRR Part 201. The Department may consider a mechanism by which the new requirements could be applied to multiple faci lities to the extent allowed under Part 201. Comment: Part 212.12(b) goes well be yond the 57 months established in the Final Implementation Rule for Reasonably Available Contro l Technology (RACT) implementation. Ne w York should tighten the compliance schedule allowed for facilities to implement RACT to a more expediti ous timeframe before the 2020 datePage 6 of 8 established in the re-proposed rule (i.e ., within 18 months from effective date of regulation or 1 year from when compliance plans are due—whichever is sooner).

Part 212.12(b) is also unacceptable because it does not provide for increments of progress nor sufficient time from when the economic analyses are to be submitted to when controls are to be installed. If New York were to adopt a compliance date beyond 18 months or 1 year from when compliance plans are due then New York should include in the regulation, increments of pr ogress similar to those identified in 40 CFR Part 51, Subpart F-Procedural Requirements, S ection 51.100(q), with specific dates.

New York’s proposed Part 212 rule contains generic RACT provisions applicable to asphalt production. New York should commit to submit the case-by-case RACT determinations approved by the Department to EPA as SIP revisions by a date certain . In 212.12(b), we understand that fac ilities will be required to perform an annual tune-up on the dryer-burners and also reduce th e moisture content of the aggregate stockpile. While both of these practices w ill help reduce facility NO x emissions, New York should es tablish a facility wide NO x reduction level as prescribed RACT (i.e., an overall reduction of 35 percent of NO x emissions at each facility not already equipped with NO x controls). Facilities may achieve this by utilizing the best practices mentioned above in conjunction with installation of a low NO x burner or establish emission limits that reflect the application of the suggested contro l technology, with the option of alternate RA CT (i.e., using warm mix asphalt). [2]

Response: Applying RACT on an a pproximately six month timeframe isn't feasible for the proposed requirements to hot mix asphalt plants. The Department heard from many commenters on the initial Part 212 proposal on this issue. Commenters’ primary concerns were that facilities which had ju st replaced their burners would potentially be required to replace them again with in a very short timeframe, and that additional time wasPage 7 of 8 needed for plants to budget accordi ngly. The requirements for best practi ces go into effect as quickly as possible (next operating year), but a longer timeframe for the low NO x burner assessment and installation was

necessary.

The commenter refers to the continued application of Clean Air Act Sections 18 2(b)(2) and 182(f) as the basis for these comments regarding RACT. Section 182(f) specifically refers to major sources of NO x : "The plan provisions required under this subpart for major st ationary sources of volatile organic compounds shall also apply to major stationary s ources...of oxides of nitrogen." (Secti on 182(b)(2) refers only to volatile organic compound sources.) Because these requirements target minor sources of NO x , the Section 182(f) requirements do not apply. Hot mix asphalt plants that are major sources of NO x would already have been captured by the general RACT requireme nts under the Department’s Section 212.10.

Comment: 212.12(c) should be revised to read as follo ws: The RACT determinatio ns, including the economic feasibility analyses, which are acceptable to the Department will be submitte d to the United States Environmental Protection Agency for review and approva l as a revision to the St ate Implementation Plan.
Commenter: 2

Response: In their comments on the initial proposal of Part 212 in Decembe r, 2009, EPA suggested the addition of a clause very similar to the above. Becau se the Department already incorporated EPA’s language into the rule for the re-proposal, EPA’s suggested revisions to their own statement will not be made.Page 8 of 8 List of Commenters
1. Hanson Aggregates New York LLC
2. United States Environmental Protection Agency, Region 2