ENV-52-14-00027-P Control of Criteria Air Contaminants and Toxic Air Contaminants from General Process Air Pollution Sources

12/31/14 N.Y. St. Reg. ENV-52-14-00027-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 52

December 31, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-52-14-00027-P

Control of Criteria Air Contaminants and Toxic Air Contaminants from General Process Air Pollution Sources

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

Proposed Action:

Repeal of Part 212; addition of new Part 212; and amendment of Part 200 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101, 3-0301, 19-0105, 19-0303, 19-0311, 71-2103 and 71-2105

Subject:

Control of criteria air contaminants and toxic air contaminants from general process air pollution sources.

Purpose:

To clearly define the federal and state requirements of the existing Part 212 rule, General Process Emission Sources.

Public hearing(s) will be held at:

1:00p.m., February 4, 2015 at Department of Environmental Conservation Headquarters, Public Assembly Rm. 129A and B, 625 Broadway, Albany, NY; 9:00a.m., February 5, 2015 at Department of Environmental Conservation Region 2 Office, One Hunters Point Plaza, 47-40 21st St., Rm. 834, Long Island City, NY; 1:00p.m., February 6, 2015 at Department of Environmental Conservation Region 7 Office, 615 Erie Blvd., West Syracuse, NY; 4:00p.m., February 9, 2015, Sheridan Parkside Community Center, 169 Sheridan Parkside Dr., Tonawanda, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):

The Department of Environmental Conservation (Department) is proposing to repeal and replace 6 NYCRR Part 212 (Part 212) to streamline and update its provisions, align those provisions with the Department’s permitting regulations, and provide more regulatory certainty for the regulated community. Currently, Part 212 regulates air emission sources associated with a process operation by establishing emissions limits for the release of toxic air contaminants. This rulemaking proposes to: establish consistent terminology between Part 212 and 6 NYCRR Part 200 (Part 200) and 6 NYCRR Part 201 (Part 201); establish a Toxic- Best Available Control Technology (T-BACT) standard for toxic air contaminants; clarify the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs); offer a streamlined approach for demonstrating compliance with regulatory standards for air contaminants by adopting a mass emission rate option; replace the current Part 212 control requirement, which provides the Commissioner with discretion to establish the degree of required air cleaning, with a performance of air dispersion modeling analysis in order to demonstrate compliance with Department Guideline Concentrations or National Ambient Air Quality Standards (NAAQS); control High Toxicity Air Contaminants (HTACs) to the greatest extent possible; and generally reorganize and clarify Part 212. Aside from renumbering and replacement of the term “Lower Orange County” with a list of regulated Orange County towns, this proposed rulemaking does not change the language of existing Section 212.10, “Reasonably Available Control Technology for Major Facilities,” which is proposed Subpart 212-3. Neither does this proposed rulemaking change the language of existing Section 212.12, “Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants,” other than renumbering the section to Section 212-2.4 in line with the proposed new numbering.

Proposed Part 212 will be reorganized; its terms and federal requirements will be updated; and it will present five changes to the way the rule is currently enforced. First, proposed Part 212 introduces an alternative compliance option for HTACs. Second, for all toxic air contaminants controlled by NESHAPs, proposed Part 212 allows demonstrated compliance with the federal program as sufficient to demonstrate compliance under Part 212. This change would not apply to the emissions of HTACs, which would require a Toxic Impact Analysis (TIA) to demonstrate compliance. Third, for non-criteria air contaminants, proposed Part 212 implements T-BACT in order to more effectively regulate toxic air contaminants. Fourth, proposed Part 212 allows regulated entities to perform air dispersion modeling analysis in order to demonstrate compliance with either the NAAQS or Annual and Short-term guideline concentrations (AGC/SGC) for emission sources with lesser emission rates. Finally, proposed Part 212 lowers the emission rate for when control requirements become applicable, from 1 pound per hour to 0.1 pounds per hour for A-rated, non-criteria air contaminants. Part 200 (“General Provisions”) will be revised to include a new definition for the determination of toxic equivalency factors for Dioxin and Dioxin-Like Compounds; and to incorporate by reference federal NSPS and NESHAPs.

The evaluation process included in Part 212 is applied (1) when a regulated entity applies for a new or modified permit or registration for process emission sources and/or emission points; or (2) upon issuance of a renewal for an existing permit or registration. Compliance with Part 212 will work in a step-wise manner. The first step is to demonstrate all emission of HTACs are below the mass emission threshold limits. If a regulated entity can comply with the first step, the Part 212 evaluation process is complete. If not, the regulated entity will progress through the next steps of identifying hourly and yearly emissions of criteria, non-criteria air contaminants, and HTACs, receiving environmental ratings for these emissions, conducting any modeling if necessary, and determining how to proceed after evaluating these emissions amounts within the parameters of the regulatory tables contained in Subdivisions 212-2.3(a) Table 3 and (b) Table 4, taking off ramps from the Part 212 analysis whenever a step is satisfied. This step-wise process is discussed in detail in the Express Terms Summary as well as in the Regulatory Impact Statement. Any emission limitation in effect prior to the effective revision date of Part 212 shall remain in effect until a permit modification is submitted for an applicable process emission source or emission point or renewal of the permit or registration.

The first step a regulated entity must take to determine compliance under proposed Part 212 is to determine whether that entity has any process sources that are regulated. While proposed Part 212 regulates emissions from most process sources, proposed Section 212-1.4 provides a list of process sources that are excepted from regulation under the part. For all sources that fall under this exceptions list, the regulatory process under proposed Part 212 is over.

If a regulated entity does not fall under the exceptions list contained in Section 212-1.4, that entity must supply to the Department a list of all criteria and non-criteria air contaminants and their hourly and yearly emissions rates. The Department will verify this list and assign these air contaminants an environmental rating based on the four factors in Section 212-1.3: toxicity of the air contaminant; how the air contaminant is dispersed; where the dispersed air contaminant lands; and the number of other sources emitting this contaminant in surrounding areas. Once the Department has assigned ratings to these air contaminants, the regulated entity may proceed to the next step of the analysis, which depends on whether the facility is emitting a criteria air contaminant (see proposed Subdivision 212-2.3(a) Table 3), a non-criteria air contaminant (see proposed Subdivision 212-2.3(b) Table 4), or an air contaminant listed on the High Toxicity Air Contaminant List (see proposed Section 212-2.2 Table 2 for the list and proposed Subdivision 212-2.3(b) Table 4 for Degree of Air Cleaning Required for Non-Criteria Air Contaminants).

Criteria Air Contaminants:

If a regulated entity has emissions of criteria air contaminants and the entity provides verification that a regulated source emits less than one pound per hour for A-rated contaminants or less than 10 pounds per hour for B- or C-rated contaminants, and demonstrates that the offsite ambient concentrations from these emission points do not exceed the NAAQS concentrations, the Part 212 evaluation process ends and the entity is in compliance for those contaminants. However, if a regulated source emits one pound or greater per hour for A-rated contaminants or 10 pounds or greater per hour for B- or C-rated contaminants, the facility must employ control technology to achieve – depending on the amount of air contaminant emitted – 99 percent emissions reductions or greater for A-rated contaminants; between 90 percent and 99 percent or greater emissions reductions for B-rated contaminants; and between 70 percent and 98 percent or greater emissions reductions for C-rated contaminants.

Non-Criteria Air Contaminants:

If a regulated entity has emissions of non-criteria air contaminants not listed in the HTAC List (see proposed Section 212-2.2 Table 2) and the entity provides verification that a regulated source emits less than 0.1 pounds per hour for A-rated contaminants or less than 10 pounds per hour for B- or C-rated contaminants, and demonstrates that the off-site ambient concentrations from these emission points do not exceed the air concentrations contained in the Department’s SGC and AGC tables, the Part 212 evaluation process ends and the entity is in compliance for those contaminants. However, if the regulated entity emits a non-criteria air contaminant that is assigned an A rating and emits 0.1 pounds or greater per hour, or emits 10 pounds or greater per hour for any B- or C-rated, non-criteria air contaminant, the facility must either engage in pollution prevention techniques that decrease emissions, apply control technology, or both, to achieve – depending on the amount of air contaminant emitted – between 90 percent and 99 percent emissions reductions for A-rated contaminants; 90 percent emissions reductions for B-rated contaminants; or 75 percent emissions reductions for C-rated contaminants. If the facility is unable to achieve sufficient emissions reductions at this point, it would need to engage in a T-BACT analysis, which is described in detail below.

High Toxicity Air Contaminants (HTACs):

For HTACs, the evaluation process is essentially the same as that for non-criteria air contaminants. First, the regulated entity must determine for each individual HTAC whether its HTAC emissions from all process operations are less than the HTAC mass emission limits. Next, the regulated entity would determine whether the facility emits 0.1 pounds or greater of a HTAC per hour for A-rated contaminants or 10 pounds or greater of a HTAC per hour for B- and C-rated contaminants. If a regulated entity emits HTACs assigned a B or C rating, where emissions are less than 10 pounds per hour and maximum offsite concentrations are less than the AGC/SGC, the Part 212 evaluation process ends. For an A-rated HTAC, a facility must emit less than 0.1 pounds per hour, emit less than the PB trigger (if applicable) (see proposed Section 212-2.2 Table 2) of ten times the mass emission limit, and demonstrate that the maximum offsite air concentration is less than the corresponding SGC/AGC. If a regulated entity emits more than these values for A-, B-, or C-rated air contaminants, it would have to engage in various pollution prevention techniques or combinations thereof, such as product substitution, and/or apply control technology. If the entity was still unable to achieve sufficient emissions reductions, it would need to engage in a T-BACT analysis.

Under T-BACT, the regulated entity must provide the Department with an analysis of whether there is an existing control technology that could limit that facility’s emissions of non-criteria contaminants or HTACs and whether it is feasible to install that technology. T-BACT analysis would be conducted on a case-by-case basis, where the Department would determine the maximum achievable reductions or emissions limitations for a non-criteria air contaminant. The Department would make this determination based upon the several parameters contained in proposed Paragraph 212-1.2(b)(20). T-BACT need not be a last resort, a regulated entity may engage in a T-BACT analysis at any point during the step-wise process.

The Division of Air Resources is proposing to rename Part 212 to “Process Operations” and reorganize it into four subparts: General Provisions (212-1), Allowable Emissions from Process Operations (212-2), Reasonably Available Control Technology for Major Facilities (212-3), and Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants (212-4).

Subpart 212-1 General Provisions

Proposed Section 212-1 ‘Applicability’ establishes when facility owners or operators are required to demonstrate compliance with the new Part 212. The proposal requires compliance upon issuance of a new or modified permit or registrations, and during the renewal process for permits and registrations.

Proposed Section 212-1.2 ‘Definitions’ will introduce definitions that are currently in guidance only, such as ‘Animal Oncogens’, ‘Carcinogenic to Humans’, ‘Guideline Concentrations’, ‘Genotoxic Chemicals’, ‘High Toxicity Air Contaminants’, ‘Likely to be Carcinogenic to Humans’, ‘Lethal Dose Fifty or Lethal Concentration Fifty (LD50 or LC50)’, ‘Low Toxicity Air Contaminant’, ‘Moderate Toxicity Air Contaminants’, ‘Persistent and Bioaccumulative (PB) Trigger.’, ‘Toxic - Best available control technology (T-BACT).’ ‘Reproductive and Developmental Chemical’, and ‘Toxic Impact Assessment.

Proposed Section 212-1.3 ‘Determination of environmental rating’ has been revised to be consistent with the current 6 NYCRR Part 201 permitting and registrations requirements.

Proposed Section 212-1.4 ‘Exceptions’ has been revised to be consistent with 6 NYCRR Part 201 permitting and registrations requirements; and to include new or revised regulations which qualify for an exception to Part 212.

Proposed Section 212-1.5 ‘Determining applicable emission standards for process operations’ has been revised to include the provisions of Toxic Best Available Control Technology (T-BACT) under Subdivision 212-1.5(d). Paragraph 212-1.5(e)(2) includes the revised language to coordinate the overlap between the federal 40 CFR Part 63 National Emission Standard for Hazardous Air Pollutant (NESHAP) program and the revised Part 212. Subdivision 212-1.5(f) has been revised to clear up inconsistencies between compliance options required under Subpart 212-3 VOC and NOx Reasonable Available Control Technology for Major Facilities and control requirements in Subdivision 212-2.3(b) Table 4.

Proposed Section 212-1.6 ‘Limiting of opacity’ has not been revised.

Proposed Section 212-1.7 ‘Sampling and monitoring’ has been reformatted to conform to the requirements of the Department of State.

Subpart 212-2 Allowable Emissions from Process Operations

Proposed Section 212-2.1. ‘Requirements’ has been introduced to clearly define the allowable emissions from emission sources of criteria and non-criteria air contaminants. Subdivision 212-2.1(a) introduces the alternative compliance option for High Toxicity Air Contaminants (HTACs). Subdivision 212-2.1(b) introduces Tables 3 and 4. Table 3 is similar to the current Section 212.9 Table 2 but is now specifically for criteria air contaminants. Table 4 is a new table and is specifically for non-criteria air contaminants. The purpose of the proposed change is to clearly delineate the requirements between the two different types of air contaminants.

Proposed Section 212-2.2 Table 2 ‘High Toxicity Air Contaminant’ list introduces the non-criteria toxic air contaminants for the alternative compliance action allowed under Subdivision 212-2.1(a).

Proposed Section 212-2.3 Table 3 and Table 4 (a) Table 3 – ‘Degree of air cleaning required for criteria air contaminants and non-criteria air contaminants’ respectively.

Proposed Section 212-2.4 ‘The control of particulate emissions released from existing process emission sources’ has not been revised and reflects the control of particulate emissions being controlled under Section 212.4 currently.

Proposed Subdivision 212-2.5(a) Table 5 ‘Process weight source categories’ has not been revised and is the same table found in Section 212.9 Table 4 currently. Proposed Subdivision 212-2.5(b) has not been revised and is the same table found in Section 212.9 Table 5 currently.

Subpart 212-3 Reasonably available control technology for major facilities.

Proposed Subpart 212-3 represents the requirements for facility owners or operators subject to reasonably available control technologies (RACT) for major facilities. Subpart 212-3 replicates the requirements of Section 212.10 currently, with one change. The current rule refers to owners and/or operators of facilities located in the Lower Orange County or New York City metropolitan areas and the proposed rule defines this as owners and/or operators of facilities located in the Orange County towns of Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick, and Woodbury or New York City metropolitan areas.

Subpart 212-4: Control of nitrogen oxides for hot mix asphalt production plants

Proposed Subpart 212-4 replicates the requirements of Section 212.12 currently with one change.

Included in 212-1 is a definition for hot mix asphalt plants.

Finally, a new Subdivision (cx), ‘Polychlorinated Dibenzo-para-dioxins and Polychlorinated Dibenzofurans’, containing definitions and equivalents using the toxic equivalency factors (TEFs), would be added to Section 200.1, while 200.9 has been updated by incorporating four new federal regulations by reference and by removing three obsolete federal regulations from 1989.

Text of proposed rule and any required statements and analyses may be obtained from:

Thomas Gentile, NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3259, [phone]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

February 17, 2015.

Additional matter required by statute:

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.

Summary of Regulatory Impact Statement

The Department of Environmental Conservation (Department) is proposing to repeal and replace 6 NYCRR Part 212 (Part 212) to streamline and update its provisions, align those provisions with the Department’s permitting regulations, provide more regulatory certainty for the regulated community, and ensure public health and welfare. Currently, Part 212 regulates air emission sources associated with a process operation by establishing air pollution control requirements for the release of toxic air contaminants. This rulemaking proposes to: establish consistent terminology between Part 212 and 6 NYCRR Part 200 (Part 200) and 6 NYCRR Part 201 (Part 201); establish a Toxic- Best Available Control Technology (T-BACT) standard for toxic air contaminants; clarify the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs); offer a streamlined approach for demonstrating compliance with regulatory standards for air contaminants by adopting a mass emission rate option; replace the current Part 212 control requirement, which provides the Commissioner with discretion to establish the degree of required air cleaning, with a performance of air dispersion modeling analysis in order to demonstrate compliance with Department Guideline Concentrations or National Ambient Air Quality Standards (NAAQS); control High Toxicity Air Contaminants (HTACs) to the greatest extent possible; and generally reorganize and clarify Part 212. Aside from renumbering and replacement of the term “Lower Orange County” with a list of regulated Orange County towns, this proposed rulemaking does not change the language of existing Section 212.10, “Reasonably Available Control Technology for Major Facilities,” which is proposed Subpart 212-3. Neither does this proposed rulemaking change the language of existing Section 212.12, “Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants,” other than renumbering the section to Section 212-2.4 in line with the proposed new numbering.

This proposed action would modernize and streamline New York’s regulatory scheme for air quality control of process operations and, in so doing, would strengthen the Department’s ability to protect public health and the environment, reduce confusion regarding applicability of the regulation for the regulated community, and preserve the State’s air resources and sensitive ecosystems.

The statutory authority for this amendment is found in the Environmental Conservation Laws (ECL), Sections 1-0101, 3-0301, 19-0105, 19-0303, 19-0311, 71-2103 and 71-2105. These provisions provide the Department with authority to repeal and replace this regulation.

Proposed Part 212 would include five changes to the way the rule is currently implemented. First, proposed Part 212 introduces an alternative compliance option for HTACs. Second, for all toxic air contaminants controlled by NESHAPs, proposed Part 212 allows demonstrated compliance with the federal program as sufficient to demonstrate compliance under Part 212. This change would not apply to the emissions of HTACs, which would require a Toxic Impact Analysis (TIA) to demonstrate compliance. Third, for non-criteria air contaminants, proposed Part 212 implements T-BACT in order to more effectively regulate toxic air contaminants. Fourth, proposed Part 212 allows regulated entities to perform air dispersion modeling analysis in order to demonstrate compliance with either the NAAQS or Annual and Short-term guideline concentrations (AGC/SGC) for emission sources with lesser emission rates. Finally, proposed Part 212 lowers the emission rate for when control requirements become applicable, from 1 pound per hour to 0.1 pounds per hour for A-rated, non-criteria air contaminants.

Whenever an air contaminant from an emission source is given an environmental rating of A, B, or C, there is a stepwise progression to ensure that the release of this contaminant does not result in adverse impacts to public health or the environment. Recognizing that Part 212 covers many different industries with numerous types of emission sources, the potential costs of the proposed changes can best be characterized by addressing the steps a facility owner or operator would undertake to eliminate or reduce unacceptable offsite concentrations of air contaminants of concern.

The evaluation process included in Part 212 is applied (1) when a regulated entity applies for a new or modified permit or registration for process emission sources and/or emission points; or (2) upon issuance of a renewal for an existing permit or registration. Compliance with Part 212 would work in a step-wise manner. The first step for a facility would be to demonstrate all emissions of HTACs are below the mass emission threshold limits. If a regulated entity can comply with the first step, the Part 212 evaluation process for HTACs is complete. If not, the regulated entity would progress through the next steps of identifying hourly and yearly emissions of criteria air contaminants, non-criteria air contaminants, and HTACs, receiving environmental ratings for these emissions, and determining how to proceed after evaluating these emissions amounts within the parameters of the regulatory tables contained in Subdivisions 212-2.3(a) Table 3 and (b) Table 4, taking off-ramps from the Part 212 evaluation process whenever a step is satisfied. This step-wise process is discussed in detail in the Express Terms Summary as well as in the Regulatory Impact Statement. Any emission limitation in effect prior to the effective revision date of Part 212 shall remain in effect until a permit modification is submitted for an applicable process emission source or emission point or renewal of the permit or registration.

One of these off-ramps provides that demonstration of compliance with a federal NESHAP for all non-HTACs satisfies the regulatory requirements of Part 212. As a result of this change, regulatory purview of an entity’s non-HTACs is complete. However, facilities that emit HTACs may incur costs in some instances, because proposed Subdivision 212-1.5(e) may require owners to go beyond the costs mandated by the federal NESHAP, as is currently the case. Subdivision 212-1.5(e) would require that the facility owner or operator demonstrate that the offsite ambient air concentrations of HTACs would not exceed the Department’s SGCs and AGCs even after implementation of the federal NESHAP regulation. However, where a regulated entity uses product substitution as a method of compliance, that entity may see a decrease in costs.

For HTACs, proposed Part 212 would require a process source owner or operator to determine whether the actual facility-wide emissions are less than or greater than the listed mass emission rates in proposed Section 212-2.2. If compliance cannot be demonstrated through the limitation of yearly mass emissions, the process source owner must next demonstrate compliance by using air dispersion modeling. Air dispersion modeling ranges in cost from free for the most rudimentary model as provided by the Department along with technical support; to $400 to $500 with yearly renewal costs for entry level screen modeling software from a private vendor; to $2,500 to $25,000 for complex dispersion models, used generally only by larger facilities.

A second approach to demonstrating compliance under proposed Part 212 is the elimination or minimization of non-criteria air contaminants from the process emission sources. Product substitution typically means the replacement or reduction of a hazardous substance in products and processes by less hazardous or non-hazardous substances, or measures like work practice standards or energy efficiency measures that achieve equivalent functionality via technological or policy measures.¹ In evaluating the costs of product substitution, the Department has assessed not only the cost of the replacing one solvent for another, but also capital costs, energy differences, labor costs, waste disposal and quality control considerations. In many instances, product substitution can save costs, rather than incur them.

Under proposed Subpart 212-2, non-criteria air contaminants assigned an Environmental Rating of A would need to be reduced by 99 percent or apply Toxic Best Available Control Technology (T-BACT). T-BACT incorporates the toxicity of chemical and chemical compounds into the evaluation when making a calculated dollar per ton reduction calculation. The Department would only require installation of control technology when a facility is unable to sufficiently reduce offsite air concentrations of HTACs and other non-criteria air pollutants categorized as toxic.

For example, if a facility is engaging in a T-BACT analysis to control particulate HTAC and other toxic particulate air contaminants, the facility could implement fabric filters and wet scrubbers, which are the most commonly-applied control equipment for management of particulate HTACs from process emission sources. For fabric filters, typical required hardware include an in-tandem particle control device, particle cyclone and HEPA filter, the costs of which are calculated based upon the inlet duct area of the device. The capital costs for a pre-treatment cyclone are approximately $15,000 per square foot (ft²) inlet duct² and a HEPA filter at $3 to $4 per standard cubic foot per minute (scfm) of air treated.³ However, because operational costs are site specific it is difficult to generalize for all toxic air contaminants.

For wet scrubbers, capital costs range from $2 to $6 per scfm of air treated with annual operating costs of $2.50 to $48 per scfm of air treated.⁴ The addition of disposal costs for chemical additives and the generation of liquid waste would increase the costs associated with these control devices.

Another example of possible costs associated with a facility engaging in a T-BACT analysis involves the control of volatile air contaminants from process emission sources by implementing various types of control equipment, such as oxidizers, chemical adsorption, or wet scrubbing technology. For waste streams with inlet concentrations of VOC greater than 2,000 ppmv, direct flame incinerators require an afterburner capable of achieving 1,600 degrees Fahrenheit, a design feature capable of ensuring a good mixing of air and VOCs and 0.75 second retention time for proper destruction. Units for this application range in cost from $25 to $90 per standard cubic feet per minute (scfm) of treatable air and have yearly operating maintenance costs ranging between $13 and $175 per scfm.⁵ The inlet concentration of highly toxic material, such as HTACs, might not be as concentrated as 2,000 ppmv or have a good mixing profile and these conditions would either require greater fuel usage or a catalytic supplement.

Catalytic incinerators also have been effective at inlet concentrations as low as one ppmv. The catalyst has the effect of oxidizing the inlet gas enabling destruction of the material to occur at lower temperatures and reduce the overall fuel usage. Units for this application range in size from $22 to $90 per standard cubic feet per minute (scfm) of air to treat and yearly operating maintenance of $12 to $75 per scfm.⁶

Capital costs for chemical adsorbers can range from $22 to $87 per scfm, which is similar to incineration capital costs. Chemical adsorbers can also provide the additional benefits of solvent recovery, which can offset the yearly maintenance costs of adsorbent (i.e. carbon), electricity, steam, operating and maintenance labor, and replacement adsorbent (including the replacement labor cost), as well as the interest rate and the useful lives of the adsorbent and the rest of the control system.⁷

Wet scrubbing technology relies on absorption technology, which is different from adsorption described above. In the case of wet scrubbing absorption, organic solvents are dissolved in the scrubbing liquid. The scrubbing liquid can be water or a chemical solvent. These units utilize packing material or trays within the column to increase surface area to enhance absorption. Units for this application range in cost from $11 to $55 per scfm, with yearly operating maintenance of $17 to $78 per scfm.⁸

Proposed Part 212 may have a marginal effect on small businesses. In a majority of cases, small business owners who currently hold a Registration would not be subject to any new regulatory requirements. This is because most small businesses do not emit an A-rated contaminant and would therefore not be required to undergo the Part 212 evaluation process. However, some small businesses do emit HTACs. In the limited circumstances when a small business process operation emits any of the chemical compounds listed on the HTAC list, the Department’s proposal to include yearly mass emission rates for these HTACs provides a clear and simplified approach for small businesses to demonstrate compliance. If, however, an HTAC is also regulated by a NESHAP, the small business emitting that HTAC may incur additional costs in order to come into compliance with Part 212. However, these costs are not necessarily new, as many of these businesses already apply additional add-on technology or engage in modeling under the existing Part 212. While modeling may be a new cost to some small businesses, these businesses are eligible to receive technical assistance from New York’s Small Business Environmental Assistance Program (SBEAP). The SBEAP would provide air toxics emissions inventory and modeling support for compliance demonstrations for small businesses impacted by this regulation at no additional cost to the regulated small business.

While the State does have some hospitals and correctional facilities that are regulated under the existing Part 212, proposed Part 212 should not create additional costs. Additionally, most local governments do not manufacture any products directly, and would thus be minimally impacted by Part 212. However, some local governments do operate hot mix asphalt operations, de-icing operations, and/or wastewater treatment plants with sewage sludge incinerators. While hot mix asphalt and de-icing operations are currently regulated under Part 212, regulation of these facilities would not change under this proposal. Proposed Part 212 may regulate local governments that own wastewater treatment plants, which incorporate a sewage sludge incinerator component as part of current operations within their districts. As a result, these facilities would need to determine if certain provisions of Part 212 apply.

Local Governments subject to this regulation would experience the same impacts as members of the regulated community. Therefore, this rulemaking is not an unfunded mandate imposed on local governments.

The cost to the regulated industry was determined by contacting consultants within New York who provide regulatory permit support services. Air pollution abatement operating cost figures were taken from “Pollution Abatement Cost and Expenditures: 2005”, a document prepared by the United States Census Bureau.⁹ This document provides cost information by State, media and category (i.e. labor, energy, material and supplies, contract cost) and is the latest available at this time.

This rulemaking would require the collection of facility specific emissions information and emission point parameters for all Title V and State Facility permits when demonstrating compliance with the proposed changes, as is currently required.

This proposed regulation would not duplicate any standards, but does build upon the federal NESHAPs as a floor for compliance and enforcement. The proposed Part 212 has been designed by referencing the federal standards for technology-based Maximum Achievable Control Technology (MACT) employed under section 112(d) of the Clean Air Act¹⁰, but has subsequently tailored the best possible protection of New York’s health, environment and industry above and beyond that reference point.

The Department considered several alternatives before submitting a proposal for repeal and subsequent replacement of a new Part 212 including taking no action and adopting the federal program. Taking no action was rejected because Part 212 needs to be updated and streamlined. Adopting the federal program was deemed to be insufficient to protect public health and the environment.

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¹ Substitution of Hazardous Chemicals in Products and Process, Report compiled for the Directorate General Environment, Nuclear Safety and Civil Protection of the Commission of the European Communities. March 2003

² USEPA – Stationary Source Control Techniques Document for Fine Particulate Matter, Integrated Policy and Strategies Group (MD-15) Air Quality Strategies and Standards Division October 1998

³ USEPA – Clean Air Technology Center (CATC) http://www.epa.gov/ttn/catc/dir1/ff-hepa.pdf, 2003

⁴ USEPA – Clean Air Technology Center (CATC) http://www.epa.gov/ttn/catc/dir1/fsprytwr.pdf

⁵ USEPA – Clean Air Technology Center (CATC) http://www.epa.gov/ttn/catc/dir1/fthermal.pdf

⁶ USEPA – Clean Air Technology Center (CATC) http://www.epa.gov/ttn/catc/dir1/fcataly.pdf

⁷ USEPA – CATC Technical Bulleting, Choosing and Adsorption System for VOC: Carbon, Zeolite or Polymers, EPA-456/F-99-04, May 1999

⁸ USEPA – Clean Air Technology Center (CATC) http://www.epa.gov/ttn/catc/dir1/fpack.pdf

⁹ U.S. Census Bureau (2008). Pollution Abatement Cost and Expenditures: 2005. ONLINE: www.census.gov/prod/2008pubs/ma200-05.pdf

¹⁰ Clean Air Act section 112(d), 42 U.S.C. 7412(d) (2013)

Summary of Regulatory Flexibility Analysis

EFFECT OF RULE:

The Department of Environmental Conservation (Department) is proposing to repeal and replace 6 NYCRR Part 212 (Part 212) to streamline and update its provisions, align those provisions with the Department’s permitting regulations, provide more regulatory certainty for the regulated community, and ensure public health and welfare. This rulemaking proposes to: establish consistent terminology between Part 212 and 6 NYCRR Part 200 (Part 200) and 6 NYCRR Part 201 (Part 201); establish a Toxic-Best Available Control Technology (T-BACT) standard for toxic air contaminants; clarify the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs); offer a streamlined approach for demonstrating compliance with regulatory standards for air contaminants by adopting a mass emission rate option; replace the current Part 212 control requirement, which provides the Commissioner with discretion to establish the degree of required air cleaning, with a performance of air dispersion modeling analysis in order to demonstrate compliance with Department Guideline Concentrations or National Ambient Air Quality Standards (NAAQS); control High Toxicity Air Contaminants (HTACs) to the greatest extent possible; and generally reorganize and clarify Part 212. Aside from renumbering and replacement of the term “Lower Orange County” with a list of regulated Orange County towns, this proposed rulemaking does not change the language of existing Section 212.10, “Reasonably Available Control Technology for Major Facilities,” which is proposed Subpart 212-3. Neither does this proposed rulemaking change the language of existing Section 212.12, “Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants,” other than renumbering the section to Section 212-2.4 in line with the proposed new numbering.

COMPLIANCE REQUIREMENTS:

Proposed Part 212 includes five changes to the way the rule is currently implemented: (1) First, proposed Part 212 introduces an alternative compliance option for HTACs. Second, for all toxic air contaminants controlled by NESHAPs, proposed Part 212 allows demonstrated compliance with the federal program as sufficient to demonstrate compliance under Part 212. This change would not apply to the emissions of HTACs, which would require a Toxic Impact Analysis (TIA) to demonstrate compliance. Third, for non-criteria air contaminants, proposed Part 212 implements T-BACT in order to more effectively regulate toxic air contaminants. Fourth, proposed Part 212 allows regulated entities to perform air dispersion modeling analysis in order to demonstrate compliance with either the NAAQS or Annual and Short-term guideline concentrations (AGC/SGC) for emission sources with lesser emission rates. Finally, proposed Part 212 lowers the emission rate for when control requirements become applicable, from 1 pound per hour to 0.1 pounds per hour for A-rated, non-criteria air contaminants.

The evaluation process included in proposed Part 212 would be applied (1) when a regulated entity applies for a new or modified permit or registration for process emission sources and/or emission points; or (2) upon issuance of a renewal for an existing permit or registration. Compliance with Part 212 would work in a step-wise manner. First, a regulated entity would demonstrate all emissions of HTACs are below the mass emission threshold limits. If a regulated entity can comply with the first step, the Part 212 evaluation process for HTACs is complete. If not, the regulated entity would progress through the next steps of identifying hourly and yearly emissions of criteria air contaminants, non-criteria air contaminants, and HTACs, receiving environmental ratings for these emissions, and determining how to proceed after evaluating these emissions amounts within the parameters of the regulatory tables contained in Subdivisions 212-2.3(a) Table 3 and (b) Table 4, taking off-ramps from the Part 212 evaluation process whenever a step is satisfied. This step-wise process is discussed in detail in the Express Terms Summary as well as in the Regulatory Impact Statement. Any emission limitation in effect prior to the effective revision date of Part 212 shall remain in effect until a permit modification is submitted for an applicable process emission source or emission point or renewal of the permit or registration.

Affected small businesses and local governments are already required to comply with the existing Part 212, in the same manner as all other owners/operators of subject facilities.

PROFESSIONAL SERVICES:

Under this proposal, whether a small business or a local government would require professional services would be completely fact-specific, as would the costs of those services. If the facility operator’s initial analysis shows that the facility cannot comply with the listed mass emission rates in proposed Section 212-2.2 for non-criteria pollutants or HTACs emission, the facility operator’s next step is to demonstrate by using air dispersion modeling that compliance can be achieved. While some of this analysis is new, it is unvaryingly applied to all regulated entities.

The most rudimentary form of dispersion modeling is called “screen” modeling. For facilities capable of doing the work in-house, the Department offers a free air dispersion model and technical support on its Air Toxics webpage. Entry level screen modeling software is through several independent companies, ranging in price from $400 to $500 with yearly renewal costs.^1,2 If a facility must use more complex dispersion models in order to demonstrate compliance with Part 212, the cost of such models increases. The Department contacted various environmental/engineering consultants from across the State, who subsequently provided information regarding the costs of their air dispersion modeling services to the regulated industries.^3,4 The estimated cost ranged from $2,500 to $25,000 per facility and is dependent on the age of the facility and the amount of detailed work required. Please refer to the Regulatory Impact Statement for an in depth discussion of examples of these costs.

Sources that are characterized as small businesses are eligible to receive technical assistance from the Small Business Environmental Assistance Program (SBEAP).

COMPLIANCE COSTS:

Proposed Part 212 streamlines the existing regulation in an attempt to ease compliance while minimizing changes in the cost of compliance. For example, proposed Part 212 includes a new HTAC list, proposed Section 212-2.2, Table 2, which establishes a comprehensive list of all chemicals that are subject to regulation via control or elimination. This approach allows facility owners or operators a simplified method to demonstrate compliance. In addition, introduction of mass emission rate compliance allows for easy determination of compliance and eliminates both the initial costs associated with investigating the toxicity of HTACs and subsequent air dispersion modeling. These simplified methods of demonstrating compliance should minimize some costs for regulated entities.

However, this proposed rulemaking does not change existing costs for instances where a facility is unable to comply with the proposed, cost-minimizing compliance methods or where other regulations add additional costs. For example, should a facility emit HTACs at levels greater than the mass emission limits in Table 2, the facility owner or operator would need to invest resources into on air dispersion modeling, product substitution, or the application of T-BACT in order to quantify and control the excess emissions. Another example is where a facility owned by a small business or local governments emits an HTAC or HTACs that are also subject to the federal NESHAP program. While regulatory costs under both Part 212 and the applicable NESHAP should not be new, proposed changes to Subdivision 212-1.5(e) may involve increases to existing costs because it would require facility owners to go beyond the costs mandated by the federal NESHAP program because it would require that the facility owner or operator demonstrate that the offsite ambient air concentrations would not exceed the Department’s SGCs/AGCs even after implementation of the federal NESHAP regulation. Small businesses operators who are potentially affected by these proposed changes are operators of chromium electroplating processes, ethylene oxide sterilizing processes, and metal cleaning process operations. However, due to the highly toxic exposure potential of these process operations, many if not all of these process operations have previously been evaluated for offsite concentrations. In addition, SBEAP would provide free air toxics emissions inventory and modeling support for compliance demonstrations for those small businesses impacted by this regulation.

The majority of local governments should be minimally or indirectly impacted by the proposed Part 212. This regulation predominately regulates process sources, many of which are related to manufacturing. Most local governments do not manufacture any product directly, but may operate hot mix asphalt operations or de-icing operations, regulation of which would not be subject to change under the proposed Part 212. However, this revision may impact those local governments that operate wastewater treatment plants that incorporate a sewage sludge incinerator component as part of current operations within their districts. There are currently twelve operating facilities with sewage sludge incinerators in the State. These incinerator-operating, wastewater operations would need to determine if certain provisions of Part 212 apply.

Ultimately, costs under proposed Part 212 would vary from facility to facility, and are determined by things such as age of facility, space, type and amount of air contaminants emitted, whether the facility can achieve compliance by simply engaging in product substitution, or applying control technology; whether a facility needs to implement both product substation and apply control technology, etc. The proposed changes to Part 212 ensure that all offsite air concentrations for process emission source operations are evaluated consistently across the State. As a result, it is not anticipated that small businesses or local governments would incur any significantly new costs with regard to this rulemaking. For a more in depth discussion of costs, please refer to the Regulatory Impact Analysis.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

Whenever an air contaminant from an emission source is given an environmental rating of A, B, or C, there is a stepwise progression to ensure that the release of this contaminant does not result in adverse impacts to public health or the environment. This process is described above. Recognizing that Part 212 covers many different industries with numerous types of emission sources, the potential costs of the proposed changes can best be characterized by addressing the steps a facility owner or operator would undertake to eliminate or reduce unacceptable offsite site concentrations of air contaminants of concern.

MINIMIZING ADVERSE IMPACTS:

The proposed rule focuses on sources not regulated by the federal regulations for the emissions of toxic contaminants. The proposed rule is designed to eliminate air dispersion modeling analyses where possible, by implementing a compliance strategy based upon mass emission limits. The Department would also maintain free modeling software on the State’s website for applicants to conduct modeling, when appropriate, so as to eliminate consulting fees.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

The Department held public information sessions on a pre-proposal of this rulemaking in Albany on November 12, 2013, Long Island City on October 30, 2013, and Buffalo on October 22, 2013. The Department plans on holding additional public hearings during the proposal stage at various locations throughout New York State. There would be a public comment period in which interested parties who are unable to attend a public hearing can submit written comments on the proposed regulation.

CURE PERIOD:

The Department does not believe that there is a need for a cure period for the proposed Part 212 because a facility would only need to conduct a Part 212 review upon issuance of a new or modified permit or registration or upon issuance of a renewal for an existing permit or registration. Any emission limitation in effect prior to the effective revision date of this Part shall remain in effect until that time.

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¹ Lakes Environmental, http://www.weblakes.com/products/aerscreen/buy.html, 2012

² BREEZE Environmental, http://www.breeze-software.com/pricing/, 2012

³ Personal Communication August 26, 2013. Ms. Margaret Valis (NYSDEC Division of Air Resources) with Mr. B. Stormwind (ENSR/AECOM - Environment) Syracuse, New York

⁴ Personal Communication August 26, 2013. Ms. Margaret Valis (NYSDEC Division of Air Resources) with Mr. K. Skipka (RTP Environmental Associates) Westbury, New York

Rural Area Flexibility Analysis

The Department of Environmental Conservation (Department) is proposing to repeal and replace 6 NYCRR Part 212 (Part 212) to streamline and update its provisions, align those provisions with the Department’s permitting regulations, provide more regulatory certainty for the regulated community, and ensure public health and welfare. Currently, Part 212 regulates air emission sources associated with a process operation by establishing air pollution control requirements for the release of toxic air contaminants. This rulemaking proposes to: establish consistent terminology between Part 212 and 6 NYCRR Part 200 (Part 200) and 6 NYCRR Part 201 (Part 201); establish a Toxic- Best Available Control Technology (T-BACT) standard for toxic air contaminants; clarify the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs); offer a streamlined approach for demonstrating compliance with regulatory standards for air contaminants by adopting a mass emission rate option; replace the current Part 212 control requirement, which provides the Commissioner with discretion to establish the degree of required air cleaning, with a performance of air dispersion modeling analysis in order to demonstrate compliance with Department Guideline Concentrations or National Ambient Air Quality Standards (NAAQS); control High Toxicity Air Contaminants (HTACs) to the greatest extent possible; and generally reorganize and clarify Part 212. Aside from renumbering and replacement of the term “Lower Orange County” with a list of regulated Orange County towns, this proposed rulemaking does not change the language of existing Section 212.10, “Reasonably Available Control Technology for Major Facilities,” which is proposed Subpart 212-3. Neither does this proposed rulemaking change the language of existing Section 212.12, “Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants,” other than renumbering the section to Section 212-2.4 in line with the proposed new numbering.

This proposed action would modernize and streamline New York’s regulatory scheme for air quality control of process operations and, in so doing, would strengthen the Department’s ability to protect public health and the environment, reduce confusion regarding applicability of the regulation for the regulated community, and preserve the State’s air resources and sensitive ecosystems.

A significant benefit from the proposed rule is that it continues to require facility owners to reduce the emissions of toxic air contaminants, including HTACs, statewide, including in rural areas. This requirement would be a positive benefit for the rural environment because a large majority of lakes and rivers in New York State have been classified as impaired by the NYS Department of Health for compounds such as mercury and PCBs.¹ The Department and the New York State Department of Health have both issued specific warnings advising that pregnant women and children should not consume any servings of specific fish species that are caught in 93 lakes and more than 265 miles of rivers in the State. The New York State Department of Health publication, ‘Health Advisory for Eating Sport fish and Game’, identifies many lakes and rivers where fish consumption has warnings due to high levels of some HTACs.² Source owners of existing facilities in rural areas may need to control certain process operations to reduce the burden on the environment. Facility owners requiring control under the current Part 212 would continue to be required to control emissions.

TYPES AND ESTIMATED NUMBER OF RURAL AREAS

The emissions limitations and permitting procedures for the new Subparts apply statewide and therefore to all facilities located in rural counties (less than 200,000 people) and towns (less than 150 people per square mile). The extent to which rural areas are affected would depend on the specific type(s) of emission sources located in the rural area. However, the proposed revisions are not anticipated to have any disproportional impacts on rural communities.

As indicated in the Regulatory Impact Statement costs analysis, Section 5(e) Tables 7 and 8, sources subject to the proposed Part 212 are spread throughout the regions, with the greatest numbers found in Regions 4 and 5, and the least found in Regions 1 and 3. Additionally, Saratoga County, population 219,607³ contains the largest number of regulated sources (80), followed by Niagara County, population 216,469⁴ and 38 sources. Schenectady County, population 154,727⁵ and 35 sources, Warren County, population 65,707⁶ and 24 sources, and Montgomery County, population 50,219⁷ and 21 sources, are considered rural under the State Administrative Procedure Act and those facilities would also be subject to proposed Part 212. However, it is important to note that these facilities sited in rural areas would be regulated the same as facilities sited in non-rural areas.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS

No additional recordkeeping, reporting, or other requirements would be imposed on local rural governments or facility owners that would be different from any other applicable individuals or corporations complying with New York State air pollution regulations. All process sources subject to this regulation would be required to report their emission rate potential and actual hourly emissions as well as document how this determination was made. All process sources subject to this regulation may be required to demonstrate compliance by submitting a Toxic Impact Assessment to the Department in order to demonstrate that emissions are at or below the appropriate emission limit; are in compliance with the NAAQS or short-term or annual guideline concentration; or have achieved the degree of air cleaning required through the installation of air pollution control.

COSTS

Actual costs to source owners depend entirely on the types of emissions produced at a facility and would be determined on a case-by-case basis. Compliance with the proposed Part 212 would involve a step-wise process for determining a whether a facility’s predicted or actual annual emissions require additional reductions either through product substitution or control technology. Actual costs to a regulated facility depend upon its size and types of emissions produced at that facility and, as a result, must be determined on a case-by-case basis. Therefore, a cost analysis tailored exclusively to estimate costs for rural areas is impossible, as the types of regulated facilities in rural areas are as varied in their emissions as facilities across the state. However, the estimated cost for complex air dispersion modeling can range from $2,500 to $25,000 per facility and is dependent on the age of the facility and the amount of detailed work required. Additionally, a facility may incur no cost for this analysis if it utilizes free software that would be available from the Department or a nominal cost if a facility purchases more simple air dispersion modeling software, which ranges in price from $400 to $500 with yearly renewal costs. In evaluating the costs of product substitution, the Department has assessed not only the cost of the replacing one solvent for another, but also capital costs, energy differences, labor costs, waste disposal and quality control considerations.

In many instances, the Department has found that product substitution can ultimately save costs to a facility owner rather than cause them. The annualized cost of the various air pollution control equipment mandated to be installed at major sources and area sources, has cost estimates ranging from $5,000 to $200,000 per facility. The cost figures include the annualized purchase and installation costs, and operational costs of the air pollution control equipment over the projected lifetime of the equipment. Therefore, the exact cost to the regulated facility would vary given that compliance with this regulation would depend on the size of the air pollution emission source; if the emission source is new or existing (already has some type of air pollution control in place); if the facility owner or operator already employs environmental compliance staff to address state and federal air pollution regulations; or if the facility owner or operator needs to hire an environmental consultant to complete the work necessary to demonstrate compliance with the regulation. A detailed range of costs based on various control strategies can be found in the Regulatory Impact Statement. However, it does not appear that these proposed revisions would have disproportionate cost impacts on rural communities.

MINIMIZING ADVERSE IMPACTS

The objective of Part 212 is to reduce toxic air contaminants statewide. Toxic air contaminants are those pollutants that are known or suspected to cause cancer or other serious health effects, such as negative reproductive effects or birth defects, or to cause adverse environmental effects. Because the proposed toxic air contaminant reduction requirements are applicable to sources statewide, no rural area would be affected disproportionately. Compliance with proposed Part 212 would involve a step-wise process for determining a whether a facility’s predicted or actual annual emissions require additional reductions either through product substitution or control technology, the actual costs of which would vary depending on a regulated facility’s size and types of regulated compounds emitted. For a detailed description of the step-wise process, please see the Regulatory Impact Statement. As a result, costs would be consistent and predictable across all sectors, thus establishing greater regulatory certainty.

The Department requires an evaluation of the potential air toxic contaminant impacts from known sources of air pollution through a combination of recordkeeping and reporting, operating practices, and the installation of air pollution control equipment or pollution prevention practices to reduce community concentrations of toxic air contaminants. In this manner, it hopes to achieve sufficient toxic air contaminant reductions that are protective of public health while minimizing the cost to businesses. The regulation provides all process sources of air pollution regardless of location with ways to assess and mitigate emissions in a step-wise, cost-effective manner that is tailored for each individual facility. There would be positive environmental impacts from the regulation in rural areas. Rural areas containing applicable sources, as well as rural areas downwind of such sources, would be subject to a decrease in toxic air contaminant emissions that would result in reduced ambient air exposures for all members of the community.

RURAL AREA PARTICIPATION

The Department held public information sessions to discuss the proposed Part 212 in Albany on November 12, 2013, Long Island City on October 30, 2013, and Buffalo on October 22, 2013.

The Department plans on holding public hearings during the proposal stage at various locations throughout New York State. Some of these locations would be convenient for persons from rural areas to participate. Additionally, there would be a public comment period in which interested parties who are unable to attend a public hearing can submit written comments on the proposed regulation.

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¹ Chemicals in Sportfish and Game, New York State Department of Health - 2010-2011 Health Advisories, URL http://www.health.ny.gov/environmental/outdoors/fish/health_advisories/publications.htm

² Id.

³ United States Census Bureau, State and County Quick Facts, Saratoga County, New York (available at http://quickfacts.census.gov/qfd/states/36/36091.html)

⁴ United States Census Bureau, State and County Quick Facts, Niagara County, New York (available at http://quickfacts.census.gov/qfd/states/36/36063.html)

⁵ United States Census Bureau, State and County Quick Facts, Schenectady County, New York (available at http://quickfacts.census.gov/qfd/states/36/36093.html)

⁶ United States Census Bureau, State and County Quick Facts, Warren County, New York (available at http://quickfacts.census.gov/qfd/states/36/36113.html)

⁷ United States Census Bureau, State and County Quick Facts, Montgomery County, New York (available at http://quickfacts.census.gov/qfd/states/36/36057.html)

Job Impact Statement

NATURE OF IMPACT

The Department of Environmental Conservation (Department) is proposing to repeal and replace 6 NYCRR Part 212 (Part 212) to streamline and update its provisions, align those provisions with the Department’s permitting regulations, provide more regulatory certainty for the regulated community, and ensure public health and welfare. Currently, Part 212 regulates air emission sources associated with a process operation by establishing air pollution control requirements for the release of toxic air contaminants. This rulemaking proposes to: establish consistent terminology between Part 212 and 6 NYCRR Part 200 (Part 200) and 6 NYCRR Part 201 (Part 201); establish a Toxic- Best Available Control Technology (T-BACT) standard for toxic air contaminants; clarify the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs); offer a streamlined approach for demonstrating compliance with regulatory standards for air contaminants by adopting a mass emission rate option; replace the current Part 212 control requirement, which provides the Commissioner with discretion to establish the degree of required air cleaning, with a performance of air dispersion modeling analysis in order to demonstrate compliance with Department Guideline Concentrations or National Ambient Air Quality Standards (NAAQS); control High Toxicity Air Contaminants (HTACs) to the greatest extent possible; and generally reorganize and clarify Part 212. Aside from renumbering and replacement of the term “Lower Orange County” with a list of regulated Orange County towns, this proposed rulemaking does not change the language of existing Section 212.10, “Reasonably Available Control Technology for Major Facilities,” which is proposed Subpart 212-3. Neither does this proposed rulemaking change the language of existing Section 212.12, “Control of Nitrogen Oxides for Hot Mix Asphalt Production Plants,” other than renumbering the section to Section 212-2.4 in line with the proposed new numbering.

This proposed action would modernize and streamline New York’s regulatory scheme for air quality control of process operations and, in so doing, would strengthen the Department’s ability to protect public health and the environment, reduce confusion regarding applicability of the regulation for the regulated community, and preserve the State’s air resources and sensitive ecosystems.

The Department anticipates that Proposed Part 212 would cause no significant decrease in jobs, as costs to the regulated community should not change significantly from those costs already incurred under the existing Part 212. On the contrary, the proposed Part 212 creates more regulatory certainty, which allows for better calculation of a regulated entity’s future growth and subsequent job creation. Additionally, Part 212 may cause a nominal increase in independent job opportunities, as it creates a niche for self-employed consultants to advise regulated facilities on how to comply with the proposed regulation and how to best assess emission impacts from those regulated facilities and apply any necessary control technology.

CATEGORIES AND NUMBERS AFFECTED

To estimate the potential distribution of impacts, geographically and across industries, the Department developed a non-exclusive list of those emission sources that could be subject to the proposed Part 212. The Department compiled a list of emission sources rather than a list of permit holders because a single facility can hold a single permit, yet have multiple emission sources required to comply with the requirements of Part 212. This list was augmented by North American Industry Classification System/Standard Industrial Classification (NAICS/SIC) codes and descriptions. Examination of the list produced the following general considerations. As shown in Table 1 Industrial Divisions 28 (Chemicals and Allied Products) and 49 (Electric, Gas and Sanitary Services) had the highest number of emissions sources in the list and, therefore, have the highest probability of costs increases faced by entities in these Divisions.

Table 1:

Industrial Divisions with 20 or more Sources Subject to Proposed Changes to Part 212
SIC Code	Description	# of Sources
28	Chemicals and Allied Products	138
49	Electric, Gas and Sanitary Services	63
34	Fabricated Metal Products, Except Machinery & Transport Equipment	53
33	Primary Metal Industries	43
30	Rubber and Miscellaneous Plastic Products	38
26	Paper and Allied Products	34
32	Stone, Clay, Glass, and Concrete Products	34
80	Health Services	29
36	Electronic, Electrical Equipment & Components, Except Computer Equipment	23
35	Industrial and Commercial Machinery and Computer Equipment	22
38	Mesr/Anlyz/Control Instruments; Photo/Med/Opt Gds; Watches/Clocks	22

Table 1 shows the types of facilities that appear in the DEC permit list most frequently. It gives information about which sectors would bear the burden of the potential cost changes in terms of numbers of sources. While all manufacturing industries may be affected by proposed Part 212, the majority of the affected emission sources are already similarly affected by the existing Part 212. Such emissions sources may witness nominal regulatory changes. These categories and numbers of affected regulated sources are discussed at length in section 5 of the Regulatory Impact Statement. Because the proposed regulation is designed to offer consistency with federal regulations, it should not have a negative effect on the growth of manufacturing.

REGIONS OF ADVERSE IMPACT

The proposed regulation would apply to manufacturing industries across the state, large and small, rural, suburban, and urban. Whereas the State’s largest manufacturing is located in Western New York and the St. Lawrence area due to access to hydro electricity power, many smaller industries are located throughout New York. Regardless of regional location, however, the proposed regulation should not have any regional-specific impacts with respect to increase or decrease of jobs.

MINIMIZING ADVERSE IMPACT

The impact to job growth due to this proposed regulation is expected to be minimal. The proposed regulation is designed to offer consistency and regulatory assurance for the regulated community while offering emission reductions of the most toxic air contaminants. Consistency and regulatory assurance is important in all regulatory actions. It is these qualities that allow industry to make calculated advances for future growth and job creation. The proposed rule is designed to minimize any redundant air dispersion modeling analyses. However, in instances where air dispersion modeling is necessary, the Department maintains free modeling software on the State’s website for applicants to conduct modeling when appropriate so as to try to eliminate expensive consulting fees.

The proposed regulation would also work in conjunction with Part 201-9 for identifying toxic air contaminants to establish continuity between types of permits issued to regulated sources and regulatory requirements. This aids the regulated community in recognizing the Department’s priorities when it comes to the emissions of non-criteria pollutants. The proposed rule also ensures consistency with the federal NESHAPs and New Source Performance Standards regulations for ease of compliance with both state and federal laws and regulations for the regulated New York community.

SELF-EMPLOYMENT OPPORTUNITIES

There would be an opportunity for self-employed consultants to advise facilities on how best to comply with the proposed regulation and how to assess emission impacts from the regulated facilities. The proposed regulation is not expected to have any measurable negative impact on opportunities for self-employment and may, in fact, provide opportunities for self employment for individuals who have the proper educational and technical background.