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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 NOx burner when it comes time for their current burner to 

be replaced.” Does this mean that an economic feasibility analysis must be submitted in 2012 for all hot mix 

asphalt (HMA) plants? Or, is an economic feasibility study required at the time 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 Environmental Conservation 

(Department) is reflected in the commenter’s latter statement: anytime after January 1, 2012, when an HMA 

facility is preparing to replace its burner, they must provide the Department with an economic feasibility study 

for a low NOx burner. 

Comment: In some instances, it may not be necessary to perform an economic feasibility analysis to determine 

if a low NOx burner can be installed. The regulations should allow facilities the option to forego the economic 

feasibility analysis, which would be costly and time-consuming, and install a low NOx burner if the company 

and/or burner manufacturer has determined it to be economically feasible. In some cases, the preparation and 

submittal of an economic feasibility analysis may place an unnecessary financial burden on the owner/operator, 

and impede business operations by the need to prepare the analysis report and wait for Department approval. 

Commenter: 1 
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Response: In instances where an HMA plant voluntarily installs a low NOx burner because of its belief that 

such equipment would prove feasible, the economic analysis 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 NOx 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 NOx.” Some facilities have recently installed “low NOx” burners as classified by the 

manufacturer. These burners should be exempted from the January 1, 2020 deadline for the completion of an 

economic feasibility analysis and installation of a low NOx burner. Given that the re-proposed regulations will 

require annual burner tune-ups, these burners can have an effective life well beyond January 1, 2020. 

Therefore, facilities already operating with low NOx burners should not be forced to replace a perfectly 

functional low NOx burner if its useful life expectancy is beyond January 1, 2020. Commenter: 1 

Response: In cases where an HMA plant has already installed a low NOx 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 NOx burner would be feasible, such an analysis would not be logical for 

plants that already operate such equipment. In lieu of the economic analysis, a facility owner should document 

the existence of a low NOx 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 stockpiles by March 1, 2011. The regulations, however, do 
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not specify which practices are available and allowable. How will this part of the regulations be enforced 

without any specific requirements? 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 could be reduced are by covering the stockpile to shield 

it from rain, either with a tarp or physical structure, or by paving under and sloping the pile to allow water to 

drain away.” These methods were specifically mentioned in the comments by the National Asphalt Pavement 

Association (NAPA) to the Ozone Transport 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 drafting their “intended practices plans.” The 

Department decided not to impose specific requirements for reducing moisture in aggregate piles because, as 

noted by NAPA, “Best Practices are plant- and geographic locale-specific.” 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 the “intended practices plan” are too vague and would 

subject regulated facilities to widespread variety in enforcement, interpretation, etc., by the Regions as well as 

different inspectors in the same Region. Facilities could be at a competitive disadvantage or unknowingly be in 

violation, if one region or inspector requires a particular management practice (e.g., paving or covering) and 

another region does not. Commenter: 1 

Response: As stated in the regulation, RIS, and in the comment above, the Department is not enforcing a 

particular management practice such as paving or covering a stockpile. The interpretation and enforcement of 
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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 intended practice, and to follow its stated practice thereafter. 

In doing so, the Department and its Regional staff will be able to successfully enforce such requirements. 

Comment: The regulations should be more specific to indicate the acceptable moisture reduction practices, but 

should provide for operational flexibility. For example, it may be physically and/or operationally infeasible to 

cover stockpiles, pave beneath them, etc. Therefore, these should not be mandatory requirements. Commenter: 

1 

Response: The Department understands the commenter’s concerns, and avoided the inclusion of mandatory 

requirements in Part 212 for these reasons. While the Department suggested two of the most oft-cited and 

effective means in the RIS as a starting point, it must defer to industry experts to determine what means are 

most reasonable in instances where covering or paving under stockpiles are not feasible. Because effective 

reduction of moisture in aggregate stockpiles 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 NOx emissions while resulting in fuel savings for 

the plant. 

Comment: Due to the wide variability in site and operational 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 guidance 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: 1 
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Response: As noted by the commenter, many facilities currently employ some form(s) of moisture 

management. Such measures result in the burning of less fuel, and are therefore accepted means of reducing 

NOx 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 permit 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 modification to an air permit or registration under the existing regulations. Since 

the new requirements will apply uniformly to all current 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 preparing and reviewing the numerous applications 

throughout New York State. Commenter: 1 

Response: The revisions to Section 212.12 will be submitted to the United States Environmental Protection 

Agency (EPA) for inclusion in New York’s State Implementation 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 facilities to the extent allowed under Part 201. 

Comment: Part 212.12(b) goes well beyond the 57 months established in the Final Implementation Rule for 

Reasonably Available Control Technology (RACT) implementation. New York should tighten the compliance 

schedule allowed for facilities to implement RACT to a more expeditious timeframe before the 2020 date 
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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 progress similar to those identified in 40 CFR Part 51, 

Subpart F-Procedural Requirements, Section 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 facilities will be required to perform 

an annual tune-up on the dryer-burners and also reduce the moisture content of the aggregate stockpile. While 

both of these practices will help reduce facility NOx emissions, New York should establish a facility wide NOx

reduction level as prescribed RACT (i.e., an overall reduction of 35 percent of NOx emissions at each facility 

not already equipped with NOx controls). Facilities may achieve this by utilizing the best practices mentioned 

above in conjunction with installation of a low NOx burner or establish emission limits that reflect the 

application of the suggested control technology, with the option of alternate RACT (i.e., using warm mix 

asphalt).[2]

Response: Applying RACT on an approximately 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 just replaced their burners 

would potentially be required to replace them again within a very short timeframe, and that additional time was 
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needed for plants to budget accordingly. The requirements for best practices go into effect as quickly as 

possible (next operating year), but a longer timeframe for the low NOx burner assessment and installation was 

necessary. 

The commenter refers to the continued application of Clean Air Act Sections 182(b)(2) and 182(f) as the 

basis for these comments regarding RACT. Section 182(f) specifically refers to major sources of NOx: "The 

plan provisions required under this subpart for major stationary sources of volatile organic compounds shall 

also apply to major stationary sources...of oxides of nitrogen." (Section 182(b)(2) refers only to volatile 

organic compound sources.) Because these requirements target minor sources of NOx, the Section 182(f) 

requirements do not apply. Hot mix asphalt plants that are major sources of NOx would already have been 

captured by the general RACT requirements under the Department’s Section 212.10. 

Comment: 212.12(c) should be revised to read as follows: The RACT determinations, including the economic 

feasibility analyses, which are acceptable to the Department will be submitted to the United States 

Environmental Protection Agency for review and approval as a revision to the State Implementation Plan. 

Commenter: 2 

Response: In their comments on the initial proposal of Part 212 in December, 2009, EPA suggested the 

addition of a clause very similar to the above. Because 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. 
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List of Commenters 

1. Hanson Aggregates New York LLC 

2. United States Environmental Protection Agency, Region 2