ENV-43-09-00006-A Requirements for the Applicability, Analysis, and Installation of Best Available Retrofit Technology (BART) Controls

4/21/10 N.Y. St. Reg. ENV-43-09-00006-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 16

April 21, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-43-09-00006-A

Filing No. 387

Filing Date. Apr. 06, 2010

Effective Date. s , 30 d

Requirements for the Applicability, Analysis, and Installation of Best Available Retrofit Technology (BART) Controls

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

Action taken:

Amendment of Part 200; and addition of Part 249 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0302, 19-0303, 19-0305, 71-2103 and 71-2105

Subject:

Requirements for the applicability, analysis, and installation of Best Available Retrofit Technology (BART) controls.

Purpose:

Require analysis of controls for eligible stationary sources which contribute to regional haze issues in Federal Class I areas.

Text of final rule:

Sections 200.1 through 200.8 remain unchanged.

Table 1 of existing Section 200.9 is amended to include the following reference:

	Regulation	Referenced Material	Availability
	249.2(g)	40 CFR Part 60.15(f)(1) through (3) (July 1, 2007)	*

6 NYCRR Part 249, Best Available Retrofit Technology (BART)

Section 249.1 Purpose and Applicability

(a) This Part restricts the emissions of visibility-impairing pollutants by requiring the installation of Best Available Retrofit Technology (BART) on a BART-eligible stationary source to reduce regional haze and restore natural visibility conditions to Federal Class I Areas.

(b) Except as provided under Subdivision (c) of this Section, this Part applies to any stationary source that has been determined to be BART-eligible and whose emissions require control pursuant to section 169A of the Act. BART-eligible refers to any stationary source that:

(1) is in one of 26 specific source categories identified in Section 231-2.2(c)(1) through (26) of this Title;

(2) was not in operation prior to August 7, 1962 and was in existence on August 7, 1977, or underwent reconstruction between August 7, 1962 and August 7, 1977; and,

(3) has a potential to emit (PTE) 250 tons per year (tpy) or more of any visibility-impairing pollutant.

(c) Exempted from the provisions of this Part is any BART-eligible source that:

(1) is subject to a permit condition that restricts the source's PTE to less than 250 tpy for each visibility-impairing pollutant;

(2) is subject to a permit condition that requires the source to permanently shut down by January 1, 2014; or,

(3) has shown through modeling or other means acceptable to the department that it does not or will not emit any combination of visibility-impairing pollutants that results in a visibility impairment equal to or greater than 0.1 deciviews in any Federal Class I Area.

Section 249.2 Definitions

For the purpose of this regulation, the following definitions apply:

(a) 'Best Available Retrofit Technology' or 'BART.' An emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each visibility-impairing pollutant which is emitted by an existing stationary facility. BART for any individual source is determined by undertaking the case-by-case analysis required under Section 249.3 of this Part.

(b) 'Deciview.' A measurement of visibility impairment. A deciview is a haze index derived from calculated light extinction, such that uniform changes in haziness correspond to uniform incremental changes in perception across the entire range of conditions, from pristine to highly impaired. The deciview haze index is calculated based on the following equation (for the purposes of calculating deciview, the atmospheric light extinction coefficient must be calculated from aerosol measurements):

HI = 10 ln (b/10)

Where b = the atmospheric light extinction coefficient, expressed in inverse megameters (Mm^-1).

(c) 'Federal Class I Area.' A national park which exceeds 6,000 acres, national wilderness area which exceeds 5,000 acres, national memorial park which exceeds 5,000 acres, or any international park, which was in existence as of August 7, 1977.

(d) 'In existence.' As used in Section 249.1(b)(2) of this Part, the owner or operator has obtained all necessary preconstruction approvals or permits required by federal, state, or local air pollution emissions and air quality laws or regulations and either has (1) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (2) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed in a reasonable time.

(e) 'Light extinction.' The process of light being absorbed or scattered as it passes through a medium, such as the atmosphere.

(f) 'Natural Visibility Conditions.' Includes naturally occurring phenomena that reduce visibility as measured in terms of light extinction, visual range, contrast, or coloration.

(g) 'Reconstruction.' Where the fixed capital cost of the new component exceeds 50 percent of the fixed capital cost of a comparable entirely new source. Any final decision as to whether reconstruction has occurred must be made in accordance with the provisions of 40 CFR 60.15(f)(1) through (3).

(h) 'Regional haze.' Visibility impairment that is caused by the emission of visibility-impairing air pollutants from numerous sources located over a wide geographic area.

(i) 'Visibility-impairing pollutant.' Sulfur dioxide (SO), nitrogen oxides (NO), and particulate matter less than or equal to 10 microns in diameter (PM).

(j) 'Visibility impairment.' Any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions.

Section 249.3 Requirements for Sources Subject to Case-by-Case BART Determinations

(a) The owner or operator of a source that is determined to be BART-eligible and whose emissions of visibility-impairing pollutants result in a visibility impairment equal to or greater than 0.1 deciviews in any Federal Class I Area must conduct an analysis to determine the appropriate emission limitation necessary to meet BART requirements. The analysis must consider, with respect to each visibility-impairing pollutant emitted by the source, the following factors:

(1) the costs of compliance;

(2) the energy and non-air quality environmental impacts of compliance;

(3) any existing pollution control technology in use at the source;

(4) the remaining useful life of the source; and,

(5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.

(b) The analysis must evaluate retrofit control options for each visibility-impairing pollutant unless facility-wide emissions for the relevant visibility-impairing pollutant are at or below the de minimis level. The facility-wide de minimis emissions levels are 40 tpy of SO or NO, and 15 tpy of PM.

(c) Any required BART analysis must be submitted to the department by October 1, 2010.

(d) Control equipment or other emission reduction methods approved by the department as BART must be installed and operating no later than January 1, 2014.

(e) Before commencing any required construction or process changes, the owner or operator must submit an application for a permit or permit modification as required under Part 201 of this Title.

(f) Each BART determination established by the Department will be submitted to the United States Environmental Protection Agency for approval as a revision to the State Implementation Plan.

Section 249.4 Emissions Tests and Monitoring

(a) The owner or operator of the stationary source to which BART requirements apply must perform an emissions test according to a protocol approved by the department. This protocol must be submitted within six months of the commencement of operation of the BART controls. The protocol must include a schedule (using the date of department approval of the protocol as the starting event) for the performance of the required emissions test and submission of the emissions test report. The emissions test must demonstrate that the necessary emission reductions of visibility-impairing pollutants and other requirements under this Part are being met. Testing methods for particulate matter must quantify the emissions of PM and particulate matter less than or equal to 2.5 microns in diameter (PM). Both filterable and condensable particulate matter must be included.

(b) The owner or operator of the stationary source subject to BART requirements must provide, along with the analysis required under Section 249.3 of this Part, a proposal for an appropriate emissions monitoring technology that will be implemented at the source.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 249.1(c)(2) and 249.3(d) and (f).

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

Scott Griffin, NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, [phone], email: [e-mail]

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. This rule was approved by the Environmental Board.

Summary of Revised Regulatory Impact Statement

STATUTORY AUTHORITY

In Section 169A of the Clean Air Act (CAA), Congress declared as a national goal the prevention of any future, and remedying of any existing, visibility impairment in Federal Class I areas resulting from man-made pollutant emissions. For states with Class I areas, and for states that contain eligible stationary sources which may cause or contribute to regional haze issues in Class I areas contained in downwind states, the United States Environmental Protection Agency (EPA) requires the implementation of measures to reduce emissions of these visibility-impairing pollutants. While New York State contains no Class I areas, it has been identified as containing sources eligible for Best Available Retrofit Technology (BART) which contribute to the regional haze issue in Class I areas in other states. Accordingly, 6 NYCRR Part 249, "Best Available Retrofit Technology (BART)", must be promulgated to ensure that proper advances will be made in fulfilling the goals of the CAA. The visibility-impairing pollutants have been identified as particulate matter less than or equal to 10 microns in diameter (PM), sulfur dioxide (SO), and nitrogen oxides (NO). Under an option granted by EPA in the final BART rule (70 FR 39104), the New York State Department of Environmental Conservation (department) is not considering ammonia or volatile organic compounds as visibility-impairing pollutants, due to the uncertainty with which they contribute to visibility impairment.

On July 1, 1999, EPA published its final Regional Haze Rule (64 FR 35714), aimed at protecting and repairing visibility in the 156 Federal Class I areas. This regulation required states and tribes to submit regional haze implementation plans to EPA detailing their plans to reduce emissions of visibility-impairing pollutants and to eventually meet the national goal of achieving natural visibility conditions by 2064. One of the primary means of showing reasonable progress toward this goal is the installation of BART controls on stationary sources which meet the criteria for eligibility and which cause or contribute to visibility impairment in downwind Class I areas. Stationary sources which are eligible for the consideration of BART controls are those which:

(1) belong to one of 26 specific source categories as listed in 6 NYCRR Part 231-2.2(c)(1) through (26);

(2) commenced operation or underwent reconstruction between August 7, 1962 and August 7, 1977; and

(3) have the potential to emit 250 tons per year (tpy) or more of any visibility-impairing pollutant.

EPA published the final BART rule on July 6, 2005. The rule specified the levels of contribution to visibility impairment by which stationary sources would be subject to BART. It also detailed the five-factor analysis to be used by states to determine the appropriate level of controls that would need to be installed. The promulgation of Part 249 will incorporate these elements to help reduce the emissions of pollutants which affect visibility in Class I areas. In addition to the promulgation of Part 249, this rulemaking requires a revision to Part 200, "General Provisions." This revision relates to an addition to Table 1 of Section 200.9, "Referenced Material."

The promulgation of Part 249 is authorized by Environmental Conservation Law Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0302, 19-0303, 19-0305, 71-2103, and 71-2105.

LEGISLATIVE OBJECTIVES

The legislative objectives underlying the above statutes are directed toward protection of the environment and public health. CAA Section 169A outlined the need to lessen the impact of man-made air pollution in Class I areas. Part 249 will reduce emissions of visibility-impairing pollutants from certain stationary sources that pre-dated the CAA and thus may have been exempt from other control regulations. The need for Part 249 is witnessed in the benefits of improved visibility conditions to be achieved in the nation's Class I areas, as well as the associated health benefits which will be realized through the reduced emissions of these visibility-impairing pollutants.

Although New York State contains no Class I areas, it has been identified as containing BART-eligible sources which cause or contribute to regional haze issues in such areas in downwind states. In concert with the Regional Haze Rule and final BART rule, the department must promulgate Part 249 to ensure adequate control of these sources. This regulation will specify the eligibility requirements by which stationary sources would be subject to BART, and detail the five-factor analysis to be used by the department to determine the appropriate level of controls that would need to be installed.

Aside from the aspects of Part 249 which are intended to improve visibility and protect the environment, the regulation will also help preserve and improve public health. NO is an ozone precursor, while SO and direct particulate matter (PM) emissions are the major contributors to elevated airborne particulate concentrations. Elevated levels of ozone and PM in the ambient air have been associated with respiratory and cardiovascular impairment. By regulating these pollutants, the public will be better protected.

NEEDS AND BENEFITS

Any stationary source which meets the criteria of eligibility and is considered to be causing or contributing to visibility impairment in a Class I area is required to perform a five-factor BART determination analysis to decide on the appropriate level of controls that would need to be installed. Although no Class I areas exist within New York State, modeling has shown that emissions from some of the state's stationary sources may contribute to visibility impairment in nine downwind Class I areas. With the final BART rule, EPA considered a source whose emissions result in a 1.0 deciview degradation of visibility in a Class I area would be thought of as "causing" visibility impairment, while emissions resulting in a 0.5 deciview degradation would be "contributing" to impairment. However, EPA granted authority to each state to decide upon a lower deciview level at which a source is considered to be contributing to impairment.

In their draft "Five Factor Analysis of BART - Eligible Sources" study released on June 1, 2007, the Mid-Atlantic/Northeast Visibility Union (MANE-VU) Regional Planning Organization (RPO) analyzed eligible sources' contribution to visibility impairment in order to determine which eligible sources should be subject to a BART determination analysis. This study showed significant contribution well below the 0.5 deciview level proposed by EPA. The study also demonstrated that sources below a 0.1 deciview contribution level have very small impacts on Class I areas. The department solicited comments on an impact level in the range of 0.1 to 0.5 deciviews and ultimately determined that a 0.1 deciview impact level from individual sources was an adequate benchmark to declare a source as contributing to visibility impairment and thus subject to a determination analysis.

In conducting a BART determination analysis, the facility must consider the costs of compliance, the energy and non-air quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the expected degree of visibility improvement from controls. This analysis must be completed and submitted to the department by October 1, 2010. Control equipment or other emission reduction methods approved by the department as BART must be installed and operating no later than January 1, 2014.

Many additional environmental and health benefits are inherent in the reductions of NO, PM, and SO. Although downwind rural and urban areas within New York State were not specifically targeted through the Regional Haze Rule, these areas can expect to benefit from improved air quality. NO is a precursor to ground-level ozone formation, which is of major concern for New York State, which contains several non-attainment areas for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). Ozone can affect crop yield and forest growth, and cause numerous respiratory problems for the elderly, children, people with pre-existing respiratory conditions (such as asthma), and those who spend much of their time outdoors.

Elevated PM levels are of concern for the New York City metropolitan area, which has been designated as non-attainment for the annual PM NAAQS, and for which current monitoring data indicate non-attainment with the 24-hour PM NAAQS. PM can be emitted directly from stationary sources, or comprised of nitrate and sulfate particles formed through reactions involving NO and SO in the atmosphere. These particles are small enough to be inhaled into the lungs, and can even enter the bloodstream. Ongoing scientific studies show that particulate inhalation can cause severe respiratory and cardiovascular conditions.

Nitric and sulfuric acid are formed through reactions involving NO and SO which have entered the atmosphere. These acidic chemicals return to the surface through dry or wet deposition. Acid deposition has many far-reaching ecological effects, such as damaging plants and aquatic life, and inflicting aesthetic damage on statues and buildings.

COSTS

Costs to Regulated Parties and Consumers:

Eligible sources which cause or contribute to visibility impairment in Class I areas must perform a five-factor BART determination analysis, in which a number of control options will be explored. One of the five factors to be considered in the analysis is the costs of compliance. A cost-per-ton metric will be utilized, supplemented by a cost-per-unit of visibility improvement, to fulfill this factor. The department intends to use a cost threshold of $5,500 per ton of pollutant reduced (which represents the current value of RACT) as one of the five factors for deciding which potential BART controls are appropriate for each visibility-impairing pollutant.

Sources subject to Part 249 may be able to avoid a BART determination analysis if they accept a permit emissions limit to cap the source below 250 tpy for each visibility-impairing pollutant. Alternatively, a facility may accept the option to perform a modeling analysis, which would be submitted to the department and would need to demonstrate that the particular source does not cause or contribute to visibility impairment in any Class I area. If approved by the department, the source in question would be exempt from any BART requirements.

Consumers are not anticipated to see any significant increase in costs from the implementation of BART controls on sources in New York State. The facilities affected by this regulation serve extensive markets. Due to the large scale of company finances compared to the cost of additional controls on a few sources, the financial impact of the installation of control equipment is expected to be small enough that no consumer cost increases are expected. Additionally, competition will limit the ability of these companies to pass these costs on to consumers.

Costs to State and Local Governments:

One local government-owned facility, the Samuel A. Carlson Generating Station owned by the Jamestown Board of Public Utilities (JBPU), was identified as BART-eligible. Otherwise, there are no direct costs to state and local governments associated with this proposed regulation, as it applies only to industrial stationary sources. No other recordkeeping, reporting, or other requirements will be imposed on local governments.

Costs to the Regulating Agency:

The department will face some initial administrative costs. These costs should be minimized, as many of the requirements pertain to tasks already required in processing and enforcing the subject facilities' Title V permits. There are labor costs associated with an estimated three day period for a staff member to review and approve each BART determination analysis. There are also labor costs associated with incorporating the BART determination into the facility's permit and the work involved with reviewing and processing the permit. This is estimated to take an additional two days of staff time for each facility. If the facility is required to implement controls, the department will need to conduct inspections related to the installation of that equipment, and will need to review testing and monitoring protocols, established to determine what monitoring is appropriate for the controlled source. Finally, the department will need to inspect the operation of the source, and review compliance and monitoring reports and data to determine if the source is in compliance with the BART requirements. The impact and scope of these ongoing activities is dependent upon whether additional controls are deemed necessary as a result of the BART analysis.

LOCAL GOVERNMENT MANDATES

The facility owned by the JBPU will need to comply with the requirements of Part 249. No additional recordkeeping, reporting, or other requirements will be imposed on local governments under this rulemaking.

PAPERWORK

Additional paperwork will be incurred by the affected facilities with the promulgation of Part 249. Sources which meet the criteria of eligibility and which cause or contribute to visibility impairment are required to perform a five-factor BART determination analysis, to be submitted to the department for approval. This analysis will consider the costs of compliance, the energy and non-air quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the application of controls. These factors must be considered for emissions of PM, SO, and NO, regardless of which individual visibility-impairing pollutant has exceeded the 250 tpy threshold. Excluded from the analysis is any visibility-impairing pollutant for which emissions are below the established de minimis level-a level at which emissions of a pollutant are of minimal concern, and further reductions of any such pollutant would lead only to trivial reductions in visibility impairment. For the purposes of Part 249, as suggested by the final BART rule, the facility-wide de minimis emissions levels are 40 tpy of SO or NO and 15 tpy of PM.

Facilities for which BART controls are deemed necessary may need to submit an application to modify their Title V permit. These changes can be incorporated into the renewal application process for the facility's Title V permit (which occurs every five years), presuming the renewal will take place within the necessary timeframe. Affected facilities may be required to perform emissions tests and, if required by the department, install adequate continuous emission monitoring systems to determine compliance with the new emission limits and performance requirements. Test protocols and reports will need to be submitted to the department for approval. However, all of the affected facilities are currently regulated under the Title V program, and are already required to perform a compliance emissions test at least once during the term of their permits.

DUPLICATION

In considering the existing pollution control technology in use at an eligible source as part of the five-factor analysis, it may be found that control measures have already been applied under the requirements of the department's RACT regulations. Depending upon the level of control in such cases, measures approved as RACT could potentially be superseded by the more stringent application of BART.

ALTERNATIVES

One alternative to the promulgation of Part 249 is to take no action. This alternative does not comply with the CAA or the subsequent issuance of the Regional Haze Rule and final BART rule. EPA would be obligated to promulgate a Federal Implementation Plan to enforce these BART provisions.

A second alternative is to regulate BART-eligible EGU sources under the Clean Air Interstate Rule (CAIR) program (6 NYCRR Parts 243, 244, and 245). The department does not believe this to be a viable alternative, as CAIR was recently remanded to EPA by the U.S. Circuit Court of Appeals for the D.C. Circuit due to various flaws. EPA's response to the CAIR remand, for which there is no deadline, will likely look quite different from the current program, and the finding that CAIR achieves greater emission reductions than does BART would be put into question with this new version of the program. Due to the high degree of uncertainty related to the future of CAIR, the department is proposing to regulate eligible EGU sources under Part 249.

FEDERAL STANDARDS

The proposed Part 249 regulation is designed to comply with the standards placed by the Federal government and does not exceed those standards. Part 249 is necessary to meet the requirements of the Regional Haze Rule and final BART rule, and is mandated by CAA Section 169A.

COMPLIANCE SCHEDULE

Sources found to be subject to the proposed regulation will be required to submit their five-factor analysis of potential BART controls to the department by October 1, 2010. Control equipment or other emission reduction methods approved as BART must be installed and operating no later than January 1, 2014. If an applicable source chooses not to comply with the provisions of Part 249, it must permanently shut down operations by January 1, 2014.

Revised Regulatory Flexibility Analysis

The Department of Environmental Conservation (department) proposes to adopt 6 NYCRR Part 249, "Best Available Retrofit Technology (BART)." This regulation is proposed pursuant to Section 169A of the Clean Air Act and the Federal Regional Haze Rule (64 FR 35714), which call for a solution to the regional haze problem caused by visibility-impairing pollutants. This new regulation will establish protocols for the implementation of pollution control technology on older stationary sources which emit visibility-impairing pollutants to the detriment of Federal Class I areas. The visibility-impairing pollutants have been identified as sulfur dioxide (SO), nitrogen oxides (NO), and particulate matter less than or equal to 10 microns in diameter (PM). Due to the uncertainty with which they contribute to visibility impairment, under an option granted by EPA in the final BART rule (70 FR 39104), the department is not considering ammonia or volatile organic compounds as visibility-impairing pollutants. In addition to the promulgation of Part 249, this rulemaking requires a revision to Part 200, "General Provisions." This revision relates to an addition to Table 1 of Section 200.9, "Referenced Material."

EFFECTS ON SMALL BUSINESSES AND LOCAL GOVERNMENTS

The department has identified one local government entity that will be affected by the requirements of Part 249. The Samuel A. Carlson Generating Station, a coal-fired electric generating facility, is owned by the Jamestown Board of Public Utilities (JBPU). In a letter to the department, the JBPU identified one of the boilers at this facility as being potentially subject to Part 249 based on the three criteria for BART eligibility: it belongs to one of 26 specific source categories, commenced operation or underwent reconstruction between August 7, 1962 and August 7, 1977, and has a potential to emit 250 tons per year or more of at least one visibility-impairing pollutant. The requirements placed on this municipally-owned facility under Part 249 will in no way differ from the requirements placed on other subject facilities.

All the facilities subject to Part 249 are major Title V sources. No small businesses will be directly affected by the BART requirements. There may be opportunities for small businesses to lend consulting support as the BART sources undertake their five-factor analysis of controls. There may also be an opportunity for small businesses to benefit by providing construction services where additional control equipment is required at a BART source.

COMPLIANCE REQUIREMENTS

Each facility that contains units which are BART-eligible (based on the above criteria) and which are shown through modeling to contribute to visibility impairment in Class I areas will be subject to Part 249. To comply with this regulation, each facility will need to perform a technical analysis of potential emission controls that would reduce the emissions of visibility-impairing pollutants and cause a related improvement in visibility conditions in a Class I area. This BART analysis must consider five factors: the costs of compliance, the energy and non-air quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.

This five-factor BART analysis must be submitted to the department by October 1, 2010, and report the best option for emission control equipment for the purpose of improving visibility conditions. The department, with assistance from the United States Environmental Protection Agency (EPA) and Federal Land Managers (FLMs), will review the facility's conclusion. Upon approval, the department will draft a "BART determination" document, which will include the approved controls and an associated emission limit. This BART determination must be submitted to and approved by EPA prior to January 15, 2011. The established emission limit will be entered into the facility's Title V permit through a modification. The facility will have until January 1, 2014 to install the control equipment or implement other emission reduction methods approved by the department.

A proposal for emissions monitoring technology must accompany the five-factor analysis. Within six months of the commencement of operation of BART controls, the source will also be required to submit to the department an emissions testing protocol. This emissions test will demonstrate that the necessary reductions of visibility-impairing pollutants are being met.

PROFESSIONAL SERVICES

The JBPU may choose to use a consulting engineer to help identify potential emission controls and determine their associated technical and economic feasibility. The facility will likely need to rely on a consultant to fulfill the modeling aspect of the analysis (i.e., to gauge the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology). It is possible that several facilities subject to BART could pool their resources and use a common modeling consultant in order to minimize costs.

COMPLIANCE COSTS

The facility will incur initial costs in conducting the five-factor BART analysis, particularly through the hiring of consultants. The department will consider control equipment below $5,500 per ton of pollutant reduced (the current threshold value for Reasonably Available Control Technology (RACT)) as being cost-effective. This isn't to say any control equipment below $5,500 per ton will be required-the control equipment's affect on visibility will also be considered, and the department intends to supplement the dollar-per-ton metric with a dollar-per-unit of visibility improvement metric. A cheaper piece of control equipment may therefore not be considered acceptable for BART if it leads to insignificant visibility improvement. The other four factors of the BART analysis will also need to be weighed to help decide on appropriate controls.

MINIMIZING ADVERSE IMPACT

The five-factor analysis is intended to minimize any adverse impacts that could potentially result from the Part 249 requirements. As stated above, the department will use the current RACT cost-per-ton threshold for determining whether potential controls are cost-effective. Based on modeling of the expected visibility impacts of the potential control equipment, a cost-per-unit of visibility improvement metric will also be used to ensure that controls will only be required if they further the goal of visibility reduction in Class I areas. The existence of pollution control equipment on the eligible unit may also minimize the compliance steps required by the facility.

Because the eligible unit at the Samuel A. Carlson facility is an electric generating unit (EGU), reliability of the power system may be of concern should the unit require expensive controls or limits on operation in order to comply with BART. The second factor of the analysis will take such energy concerns (along with other non-air quality environmental impacts) into consideration.

NESCAUM had previously performed modeling to gauge the impact that emissions from BART-eligible sources had on visibility in Class I areas. The department, with the cooperation of each eligible facility, is in the process of updating this modeling in order to bring the results in line with more recent operating conditions and to more closely follow EPA's recommended modeling protocol. The department included an exemption clause in Part 249 to absolve any facility of the regulation's requirements if that facility had a negligible contribution to visibility impairment in Class I areas. It is possible that the updated modeling will show the Samuel A. Carlson facility to be below the contribution threshold set by the department, in which case it would not be required to take further action in conjunction with Part 249.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION

The department had initially intended to regulate its BART-eligible EGU facilities under the Clean Air Interstate Rule (CAIR) program, until the CAIR program was remanded to EPA for various flaws. The department then sent letters to parties that had been regulated under CAIR and informed them they would be subject to BART due to the uncertainties now inherent in the CAIR program. The JBPU sent a reply indicating that one of the boilers at the Samuel A. Carlson facility was likely eligible for BART.

A meeting was held on December 14, 2009 between the department and the BART-eligible EGU facilities. The purpose of the meeting was to clarify the requirements of the BART regulation, and to discuss the five-factor analysis and modeling procedures that would be required of each source. This meeting was attended by a representative of the Samuel A. Carlson facility.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY

The BART analysis, to be conducted by the JBPU and all other facilities subject to BART, will review potential control technology to reduce emissions of visibility-impairing pollutants. The five factors to be considered during the analysis will ensure that the JBPU will be able to comply with the regulation in a manner that is both economically and technologically feasible.

Revised Rural Area Flexibility Analysis

The Department of Environmental Conservation (department) proposes to adopt 6 NYCRR Part 249, "Best Available Retrofit Technology (BART)." This regulation is proposed pursuant to Section 169A of the Clean Air Act and the Federal Regional Haze Rule (64 FR 35714), which call for a solution to the regional haze problem caused by visibility-impairing pollutants. This new regulation will establish protocols for the implementation of pollution control technology on older stationary sources which emit visibility-impairing pollutants to the detriment of Federal Class I areas. The visibility-impairing pollutants have been identified as sulfur dioxide (SO), nitrogen oxides (NO), and particulate matter less than or equal to 10 microns in diameter (PM). Due to the uncertainty with which they contribute to visibility impairment, under an option granted by EPA in the final BART rule (70 FR 39104), the department is not considering ammonia or volatile organic compounds as visibility-impairing pollutants. In addition to the promulgation of Part 249, this rulemaking requires a revision to Part 200, "General Provisions." This revision relates to an addition to Table 1 of Section 200.9, "Referenced Material."

Installation of such controls and the corresponding emissions reductions will help show reasonable progress for New York's Regional Haze State Implementation Plan. Part 249 will additionally benefit New York State through reductions of ground-level ozone, airborne particulate matter, and acid deposition, and will improve visibility in areas such as the Adirondack Park.

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS

The control standards proposed in this regulation apply to any stationary source within the state which meets the eligibility criteria and which causes or contributes to visibility impairment in downwind Class I areas. Stationary sources which are eligible for the consideration of BART controls are those which:

(1) belong to one of 26 specific source categories as listed in 6 NYCRR Part 231-2.2(c)(1) through (26);

(2) commenced operation or underwent reconstruction between August 7, 1962 and August 7, 1977; and

(3) have the potential to emit 250 tons per year (tpy) or more of any visibility-impairing pollutant.

The requirements of Part 249 do not generally favor urban or rural areas. Of the seven non-electric generating unit (non-EGU) facilities and eleven EGU facilities identified by the department which may meet the eligibility criteria and which may contribute to visibility impairment in Class I areas by the standards proposed by the department, six are located in rural areas: ALCOA Massena Operations (West Plant) in St. Lawrence County; International Paper-Ticonderoga Mill in Essex County; Lehigh Northeast Cement Company in Warren County; St. Lawrence Cement Corp.-Catskill Quarry in Greene County; Oswego Harbor Power in Oswego County; and Samuel A Carlson Generating Station in Chautauqua County. These six sources may be required to install pollution control equipment, depending upon the results of a BART determination analysis to be conducted by the source pursuant to Part 249.

COMPLIANCE REQUIREMENTS

Each eligible source which causes or contributes to visibility impairment in a Class I area will be required to perform a five-factor BART determination analysis, taking into account potential controls for each of the visibility-impairing pollutants (SO, NO and PM). Excluded from the analysis is any visibility-impairing pollutant for which emissions are below the established de minimis level. This represents a level at which emissions of a pollutant are of minimal concern, and further reductions of any such pollutant would lead only to trivial reductions in visibility impairment. For the purposes of Part 249, the facility-wide de minimis emissions levels are 40 tpy of SO or NO and 15 tpy of PM. This analysis, to be submitted to the department by October 1, 2010, must examine the costs of compliance, the energy and non-air quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the application of controls. Department staff will review the BART determination analysis and, based on the information provided, reach a conclusion regarding the necessary controls to be installed. Control equipment or other emission reduction methods approved by the department as BART must be installed and operating no later than January 1, 2014. Professional services may be required for the writing of the determination analysis or the potential installation of pollution control equipment.

Facilities for which BART controls are deemed necessary will need to submit an application to modify their Title V permit. These changes can be incorporated into the renewal application process for the facility's Title V permit (which occurs every five years) if the renewal will take place in the necessary timeframe. The affected facilities will also be required to perform emissions tests, and, if required by the department, install adequate continuous emission monitoring systems to determine compliance with emissions and performance requirements. Test protocols and reports may need to be submitted to the department for approval. Because all of the affected facilities are currently regulated under the Title V program, they are already required to perform a compliance emissions test at least once during the term of their permits.

COSTS

Eligible sources which cause or contribute to visibility impairment will face costs associated with conducting the BART determination analysis. One of the five factors to be considered in the analysis is the costs of compliance. A cost-per-ton metric will be utilized, supplemented by a cost-per-unit of visibility improvement, to fulfill this factor. Part 249 applies to existing sources in a fashion similar to the department's Reasonably Available Control Technology (RACT) regulations. The department therefore intends to use a cost threshold of $5,500 per ton of pollutant reduced (which represents the current value of RACT) as one of the five factors for deciding which potential BART controls are appropriate for each visibility-impairing pollutant. Additional costs would be incurred for emissions testing or the installation and operation of continuous emission monitoring systems on control equipment.

Consumers are not anticipated to see any significant increase in costs as a result of implementation of BART controls. The facilities affected by this regulation serve large-scale markets, and competition will force companies to absorb the costs of implementation of controls.

MINIMIZING ADVERSE IMPACT

The department does not expect any adverse impacts on rural areas. Applicable stationary sources will undergo an analysis to determine which controls, monitoring systems, recordkeeping and reporting may be required. These factors are not influenced by the location of the facility in a rural, suburban, or urban area.

There will be positive environmental impacts from the regulation in rural areas. Rural areas containing applicable stationary sources, as well as rural areas downwind of such sources, should witness improved visibility with an associated decrease in ground-level ozone, airborne particulate matter, and acid deposition.

Part 249 is a statewide regulation. Its requirements are the same for all facilities, and rural areas are impacted no differently than other areas in the state.

RURAL AREA PARTICIPATION

During the drafting of Part 249, the department held meetings with The Business Council of New York State, Inc. Its membership includes facilities affected by the requirements of Part 249. These meetings were held to give representatives from these companies, which include the rural-area stakeholders from the four non-EGU facilities, an opportunity to meet with department staff and discuss various issues during the rulemaking process. An initial in-person meeting was held on April 27, 2007, followed by a teleconference on September 21, 2007. The department also included a BART discussion in a presentation made on October 18, 2007, at the annual Business Council meeting in Saratoga. Additionally, a meeting was held with representatives from the BART-eligible EGU sources on December 14, 2009. This meeting included representatives from the two eligible EGU sources which reside in rural areas.

Revised Job Impact Statement

NATURE OF IMPACT

The Department of Environmental Conservation (department) proposes to adopt 6 NYCRR Part 249, "Best Available Retrofit Technology (BART)." This regulation is proposed pursuant to Clean Air Act (CAA) Section 169A and the Federal Regional Haze Rule (64 FR 35714), which call for a solution to the regional haze problem caused by visibility-impairing pollutants. This new regulation will establish protocols for the installation of pollution control technology on older stationary sources which emit these visibility-impairing pollutants to the detriment of Federal Class I areas. The visibility-impairing pollutants have been identified as particulate matter less than or equal to 10 microns in diameter (PM), sulfur dioxide (SO), and nitrogen oxides (NO). Because of the uncertainty with which they contribute to visibility impairment, under an option granted by EPA in the final BART rule (70 FR 39104), the department is not considering ammonia or volatile organic compounds as visibility-impairing pollutants. In addition to the promulgation of Part 249, this rulemaking requires a revision to Part 200, "General Provisions." This revision relates to an addition to Table 1 of Section 200.9, "Referenced Material."

Part 249 identifies the requirements for the installation of BART controls on stationary sources which meet the criteria for eligibility and which cause or contribute to visibility impairment in downwind Class I areas. Stationary sources that are eligible for the consideration of BART controls are those which:

(1) belong to one of 26 specific source categories as listed in 6 NYCRR Part 231-2.2(c)(1) through (26);

(2) commenced operation or underwent reconstruction between August 7, 1962 and August 7, 1977; and

(3) have the potential to emit 250 tons per year or more of any visibility-impairing pollutant.

Installation of BART controls and the subsequent emissions reductions of visibility-impairing pollutants will help show reasonable progress for New York's Regional Haze State Implementation Plan. Eligible stationary sources which cause or contribute to visibility impairment in downwind Class I areas must perform a five-factor BART determination analysis, through which the best control option from both a technical and an economic standpoint will be selected. The department has identified seven non-electric generating unit (non-EGU) stationary sources and eleven EGU stationary sources within New York State which may require a BART analysis. Some of these sources may have fulfilled the control requirements through other control programs such as Reasonably Available Control Technology (RACT), so it is anticipated that the actual number of sources required to install controls may be less. The proposed regulation is not expected to have an adverse impact on jobs or employment opportunities in New York State.

CATEGORIES AND NUMBERS AFFECTED

The promulgation of Part 249 is not anticipated to have any long-term effects on the number of current jobs or future employment opportunities. In order to comply with the BART requirements, the applicable facilities may be required to purchase and install control equipment. A short period of increased employment opportunities may occur in jobs associated with air pollution control device installation, including but not limited to construction steel workers, welders, pipe fitters, and electricians. Because it is unknown at this time which facilities will find it necessary to install such control equipment, the department is unable to estimate the actual number of short-term jobs created.

The reductions in visibility-impairing pollutants resulting from the implementation of Part 249 could result in a positive impact on the tourism industry, particularly for the Adirondack and Catskill Parks. Aside from the mitigation of haze in these areas and across New York State, improvements in acid deposition will be seen, keeping trees and waterways in good condition, thus allowing state parks to remain healthy and attractive places to visit.

REGIONS OF ADVERSE IMPACT

The proposed Part 249 is a statewide regulation. This regulation is not expected to have an adverse impact on jobs or employment opportunities in New York State. It does not impact any region or area of the state disproportionately in terms of jobs or employment opportunities.

MINIMIZING ADVERSE IMPACT

Implementation of Part 249 is mandated by CAA Section 169A and the federal Regional Haze Rule. This regulation is designed to comply with the standards enacted by the federal government and does not exceed those standards.

The Federal Regional Haze Rule and final BART rule allow for some discretion in the interpretation of the five-factor determination analysis, to be performed by eligible non-EGU sources which cause or contribute to visibility impairment in Class I areas. Except for pollutants whose facility-wide emissions are below the established de minimis level, this determination analysis is to be performed for each visibility-impairing pollutant in order to decide on the necessary control equipment. Pursuant to Part 249, the department will determine, on a case-by-case basis, an appropriate level of BART control based upon the costs of compliance, the energy and non-air quality environmental impacts of compliance, the existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of visibility improvement which can be reasonably expected from the application of control technology. The department intends to use a cost threshold of $5,500 per ton of pollutant reduced (which represents the current value of Reasonably Available Control Technology, or RACT) when deciding which potential BART controls are appropriate. The Department expects sources to supplement this cost per ton metric with a cost per deciview reduction metric. Because the goal of the BART program is to improve visibility conditions in Class I areas, it is appropriate to take this value into consideration as well. Control equipment that is shown through modeling to have little or no affect on visibility in Class I areas, and therefore a very high cost per deciview reduction value, will not be considered as appropriate for BART.

By reviewing the BART determination analyses on a case-by-case basis, the department can enforce controls independently, rather than under more general conditions which may impose excessive expenditures to certain facilities. By allowing for this flexibility in the selection of emissions control technology, affected sources will spend only as much money as necessary for adequate reductions. This efficient use of resources will minimize the effect on employment opportunities.

SELF-EMPLOYMENT OPPORTUNITIES

There are no adverse impacts towards self-employment opportunities associated with the proposed BART regulation. The types of facilities affected by this regulation are larger operations than what would be found in a self-employment situation. Even though it is expected that most design, engineering, and construction will be performed by larger consultation and construction firms, there may be opportunities for self-employed consultants to advise the facilities.

Assessment of Public Comment

The New York State Department of Environmental Conservation (Department) is proposing to adopt the new 6 NYCRR Part 249, Best Available Retrofit Technology (BART), and amend Section 200.9, Referenced Material, to reduce the emission of visibility-impairing pollutants from certain stationary sources. This regulation is being proposed under the requirements of Clean Air Act (CAA) Section 169A and the U.S. Environmental Protection Agency's (EPA's) Regional Haze Rule (64 FR 35714), which aim to restore visibility in federal Class I areas to their natural conditions.

The Department proposed Part 249 on October 28, 2009. Hearings were held in Albany on December 1, 2009, in Avon on December 2, 2009, and in Long Island City on December 3, 2009. The comment period closed at 5:00 pm on December 24, 2009. The Department received written and oral comments from 13 commenters on the proposed regulation. These commenters were mostly representatives of the facilities that the Department has identified as being eligible for the BART program. All of the comments have been reviewed, summarized, and responded to by the Department.

The Department explicitly solicited comment on a few particular components of the BART regulation. These issues generated the largest number of comments.

The Department solicited comment on its intent to allow BART-eligible sources to undergo "exemption modeling." This would allow a source to show through modeling that its BART-eligible units do not significantly "contribute" to visibility impairment in Class I areas. Such a finding would mean the eligible source would not be required to perform the five-factor BART analysis, since additional control equipment under BART would very likely lead to insignificant improvements in visibility. All commenters that addressed this issue were in agreement with the Department's intent.

The Department also solicited comment on the appropriate level at which a source would be said to be "contributing" to visibility impairment. In EPA's BART Rule (70 FR 39104), states were given the discretion to select an appropriate threshold for contribution. EPA stated that this level should not exceed 0.5 deciviews (where a deciview (dv) is a unit of measurement to gauge relative haziness).

The Department has coordinated its regional haze efforts with the Mid-Atlantic/Northeast Visibility Union (MANE-VU). MANE-VU, with the assistance of the Northeast States for Coordinated Air Use Management association (NESCAUM), did a preliminary study of the visibility impacts from BART-eligible stationary sources in the region and ultimately recommended that sources which are BART-eligible should automatically be subject to perform a BART analysis, regardless of their contribution level. Many states in the MANE-VU region followed this approach. The Department proposed to use a 0.1 deciview contribution threshold, however, due to a finding by NESCAUM that sources with a contribution less than 0.1 dv had a very small impact on visibility impairment.

Most commenters responded by saying EPA's maximum 0.5 dv level should be used as the threshold. The Department disagreed with that assertion, as such a high cutoff would allow many sources to go uncontrolled while their aggregate emissions continued to contribute to elevated visibility impairment in Class I areas. The Department also reminded commenters that merely being subject to the BART analysis is not an indication that controls will be required. Sources would then need to weigh the five factors to determine what control equipment, if any, is appropriate.

Commenters also responded to the Department's proposed cost-per-ton threshold, which is one of the five factors of the analysis ("the costs of compliance"). The Department had proposed to use a cost threshold value between $5,500 per ton of pollutant reduced, and $10,000 per ton. Commenters proposed a number of alternative thresholds. The Department agrees with the commenter that stated $5,500 per ton, which is the current value of the Reasonably Available Control Technology threshold, is appropriate because it similarly affects existing sources. Comments were also received that this threshold should be supplemented with a cost-per-unit of visibility improvement metric, since the purpose of this regulation is to improve visibility and a simple cost-per-ton metric does not factor this in. The Department agrees with this comment and expects sources to analyze both the cost-per-ton and cost-per-unit of visibility improvement for potential controls.

Many comments were received on the Department's proposed timeframe for the BART process. The Department had proposed that the five-factor BART analysis be due by October 1, 2010, and that approved control equipment be installed and operating by July 1, 2013. Most commenters felt it would be difficult to meet such a schedule and requested these dates be extended. Some commenters cited recent advancements in emission reductions as reason to delay the implementation of BART. Others cited uncertainty in the reliability of the bulk power system, and the need for a sufficient study of potential effects to be completed, as justification for pushing back the compliance date.

The Department understands that this is a short timeframe for sources to complete the five-factor analysis, but intends to keep the October 1, 2010 deadline. This deadline has been established in order to provide the Federal Land Managers (FLMs) and EPA with enough time to review and approve each BART determination before January 15, 2011; otherwise, EPA would be required to introduce a Federal Implementation Plan (FIP) and take over the state's BART program. The Department will work with sources on a continuous basis to ensure the analysis is completed on time.

The Department recognizes that the proposed deadline for having approved control equipment installed and operational may be burdensome, and intends to delay the compliance date until January 1, 2014. This will allow each source more than three years from the time of their five-factor BART analysis submittal, and approximately three years from EPA's final approval of the Department's determination, to install any control equipment approved as BART. The Department is unable to delay the installation of BART controls too long, since the Regional Haze Rule calls for periodic assessments of reasonable progress made in reducing visibility impairment in Class I areas.

Some commenters questioned the practical aspects of the visibility goal stated in the Clean Air Act and Regional Haze Rules; that is, a return to natural visibility conditions in these Class I areas by 2064. The commenters suggested the Department take these practical aspects into account when implementing Part 249. The adoption of Part 249 is a federal requirement, and the Department must act in accordance with federal mandates and work to implement the BART program in New York State.

A comment was received that the Department failed to quantify the benefits of Part 249, specifically in the selection of the 0.1 dv contribution threshold, and therefore failed to fulfill a State Administrative Procedure Act requirement. The Department reiterates that the 0.1 dv contribution threshold does not in itself impose any requirements other than mandating that subject sources have to perform and submit a five-factor BART analysis. Consideration of the five factors is meant to prevent any deleterious economic effects or overly burdensome impacts from being imposed on subject sources.

A comment was received that the Department failed to complete an Environmental Impact Statement, which is a State Environmental Quality Review Act (SEQRA) requirement. The Department fulfilled the SEQRA requirement by completing a Negative Declaration document, as the proposed regulation is not expected to cause any significant environmental impacts.

There were numerous comments received regarding the modeling process by which visibility improvements of potential controls will be analyzed. The Department has been finalizing its modeling protocol, based largely on EPA's modeling guidance and with the assistance of the FLMs. The Department has also been communicating with staff from BART-eligible sources as it finalizes its protocol. Commenters also requested that the modeling initially performed by NESCAUM for the initial MANE-VU study be updated to reflect more recent operating conditions. The Department is currently undertaking this task with the assistance of the BART-eligible sources.

Various comments were received which expressed uncertainty over whether BART controls would reduce visibility impairment, and whether such controls would actually be cost-effective. The five-factor BART analysis ensures that controls will only be required if they are cost-effective and likely to result in visibility improvement. A potential outcome of the analysis is that no controls will be required, whether it be due to high costs, negligible visibility improvement, or other factors.

Numerous commenters asked that Part 249 be implemented in such a way that it minimizes potential redundancy from other programs or regulations. One of the five factors of the BART analysis is the existence of pollution control technology already in use at the source. This will allow the source to consider controls installed under the Clean Air Interstate Rule (CAIR) program or the Acid Deposition Reduction Program as potentially sufficient for BART. The Department also plans to minimize the duplication of resources which could result from the recently proposed NO RACT rules for combustion sources, glass plants, and portland cement manufacturers.

A commenter suggested that electric generating units (EGUs) be regulated under CAIR in lieu of BART for NO and SO, which was an option granted by EPA in their BART rule. The Department has discussed this issue with BART-eligible EGUs and maintains its stance that CAIR is not sufficient to regulate BART sources, since it was remanded to EPA by the U.S. Court of Appeals for the D.C. Circuit due to various deficiencies. Any controls that have been installed under the CAIR program will of course be taken into account in the five-factor BART analysis.

A commenter requested that BART sources be given the opportunity to comment on the Department's BART determinations before they are finalized. In the case where the addition of control equipment is required, the BART determinations will be submitted to EPA as SIP revisions, and will undergo an associated public comment period. This will allow sources an opportunity to review and comment on the Department's BART determination. A comment period will also be offered when the source's Title V permit is modified to include the BART emission limit.

One commenter suggested that small emission units be excluded from consideration in the BART analysis, since their small emissions would have negligible impact on visibility conditions in Class I areas. The Department agrees with this statement, and expects sources to only analyze potential controls for those units whose emissions could be reasonably assumed to have some impact on visibility.

EPA commented on the completeness and approvability of New York State's Regional Haze SIP in the absence of the enforceable BART emission limits. The Department understands EPA's concern, but doesn't consider the state's SIP submission to be complete until it has also submitted the BART determinations (including enforceable emission limits) as single-source SIP revisions. The Department will work with EPA during this process to ensure the determinations are submitted and approved in advance of the FIP deadline.