Reduce emission limits for all boilers & combustion turbines, redefine the mid-size boiler size, and allow a replacement option.
Substance of final rule:
The proposed Part 200 amendments will add the definitions for the terms boiler, combined cycle combustion turbine, combustion turbine, continuous emissions monitoring system (CEMS) certification protocol, continuous emissions monitoring system plan, emergency power generating stationary internal combustion engine, simple cycle combustion turbine, and very large boiler. These definitions are being included under Part 200 for consistency due to their use in multiple regulations. The proposed revisions will also add a reference in section 200.9, Table 1 under clause 227-2.6(b)(3)(i)('b') and streamline the existing reference under subparagraph 227-2.6(b)(3)(v).
The proposed Subpart 201-3 revisions will change the exemptions for "stationary or portable combustion installations" and "emergency power generating stationary internal combustion engines." In order to qualify for the exemption for stationary or portable combustion installations, the maximum rated heat input capacity limitation for such sources is being reduced from less than 20 mmBtu/hr to less than 10 mmBtu/hr. The provision exempting emergency power generating stationary internal combustion engines is being revised to reflect the change in the citation for the definition of "emergency power generating stationary internal combustion engine."
The following change to Subpart 201-3 is unrelated to the Subpart 227-2 revisions. The reference to Subpart 231-2 in the text of paragraph 201-3.1(c)(2) will be replaced by a reference to Part 231 generally. This revision is meant to align the text of paragraph 201-3.1(c)(2) with the revisions to Part 231 that became effective in early 2009.
The proposed Subpart 227-2 revisions will include the removal of several definitions (to be relocated in Part 200, as stated above) and revision of other definitions, a change in the application and permitting requirements, a change in emission limits for most boiler categories and combined cycle combustion turbines, and revisions to the compliance options.
Section 227-2.2 will be revised to remove the definitions of boiler, combined cycle combustion turbine, combustion turbine, continuous emissions monitoring system (CEMS) certification protocol, emergency power generating stationary internal combustion engine, preliminary continuous emissions monitoring system plan, simple cycle combustion turbine, and very large boiler. These definitions will be moved to Part 200 (preliminary continuous emissions monitoring system plan will be changed to continuous emissions monitoring system plan), as stated above. Also, the revisions will modify the terms mid-size boiler and small boiler. A mid-size boiler will now be defined as "a boiler with a maximum heat input capacity greater than 25 million Btu per hour and equal to or less than 100 million Btu per hour. A small boiler will now be defined as "a boiler with a maximum heat input capacity equal to or greater than one million Btu per hour and equal to or less than 25 million Btu per hour."
Section 227-2.3 will be revised to specifically require that subject facilities must submit an application for a Title V permit or permit modification (depending on the current facility status). The requirement to submit a compliance plan will be removed.
Section 227-2.4 will be revised to change the presumptive RACT emission limits for very large, large, and mid-size boilers. Combined cycle turbines will be required to perform a case-by-case RACT analysis. Also, the revisions will remove the 500-hour non-ozone season presumptive emission limit exemption for simple cycle combustion turbines.
Section 227-2.5 will be revised to include a shutdown option for any subject emission source. The intent to shut down an emission source must be recorded as part of a permit modification prior to January 1, 2012, wherein the owner or operator commits to permanently shut down the emission source prior to December 31, 2014.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 201-3.2(c)(6), 227-2.2(b)(5), (6), (10), 227-2.3(b), 227-2.4(a)(1), (b)(1), (c)(1), (e)(1), (2), (3), (f)(2), (3), (g), 227-2.5(b)(2), (3), (4), (5), (c) and (d).
Text of rule and any required statements and analyses may be obtained from:
Robert Stanton, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3254, (518) 402-8403, email: airregs@gw.dec.state.ny.us
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
INTRODUCTION
The New York State Department of Environmental Conservation (Department) proposes to revise 6 NYCRR Part 200 and 6 NYCRR Subparts 201-3 and 227-2. 6 NYCRR Part 200, General provisions is being revised to include definitions that were previously only found in 6 NYCRR Subpart 227-2 but are now used in multiple Department regulations. Part 200 is also being revised to include all new citations of federal regulations. The revisions to 6 NYCRR Subpart 201-3, Exemptions and Trivial Activities are being made to the emergency power generating stationary internal combustion engines exemption to cite the new location of the definition in Part 200. Also the exemption for stationary or portable combustion installations will be revised by lowing the applicability threshold to 10 million Btu per hour heat input. 6 NYCRR Subpart 227-2, Reasonably Available Control Technology (RACT) for Oxides of Nitrogen imposes RACT limits for emissions of NO from seven categories of stationary combustion installations. These RACT limits are a component of the State Implementation Plan (SIP) for New York State directed at attainment of the 1997 ozone national ambient air quality standard (NAAQS) and are expected to be part of the SIP that will be submitted with respect to the 2008 ozone NAAQS.1 In terms of pollution reductions, the revisions to Subpart 227-2 essentially entail the lowering of size thresholds for two categories of sources (to encompass greater numbers of emission sources in each category, however, this does not increase the overall number of emission sources regulated under this Subpart) and increasing the stringency of emissions limits for six of the source categories. The Department is also proposing two revisions that will allow subject sources increased flexibility in achieving compliance. All of the proposed revisions reflect the Department's latest determination of what constitutes RACT for the subject sources. This is a requirement flowing from the State's obligations under the Clean Air Act. This is not a mandate on local governments. It applies to any entity that owns or operates a subject source.
STATUTORY AUTHORITY
Federal Clean Air Act (CAA) Requirements Concerning Reasonably Available Control Technology (RACT) for NO Emissions for Purposes of the 1997 Ozone NAAQS.
New York State is included in the Northeast Ozone Transport Region (OTR) established under CAA Section 184(a), and is a member of the Ozone Transport Commission (OTC) formed pursuant to CAA Sections 184(a) and 176A(b)(1). Under CAA Section 182(f), States must apply the same requirements to major stationary sources of NO as are applied to major stationary sources of volatile organic compounds (VOCs) in ozone NAAQS nonattainment areas.2 Among these requirements is the imposition of NO RACT statewide in the OTR under CAA Sections 182(b)(2)(C).
The New York State Legislature has accorded the New York State Department of Environmental Conservation (Department) the primary authority to formulate and implement the SIP. The provisions of State law treated below, taken together, clearly empower the Department to promulgate and implement the proposed rule provisions as SIP revisions.
Environmental Conservation Law (ECL) section 1-0101 declares it to be the policy of New York State to conserve, improve and protect its natural resources and environment and control air pollution in order to enhance the health, safety and welfare of the people of New York State and their overall economic and social well being.
ECL section 19-0103 declares that it is the policy of New York State to maintain a reasonable degree of purity of air resources, which shall be consistent with the public health and welfare and the public enjoyment thereof, the industrial development of the State, and to that end to require the use of all available practical and reasonable methods to prevent and control air pollution in the State.
ECL section 19-0105 declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of New York State under a program which is consistent with the policy expressed in Section 19-0103 and in accordance with other provisions of Article 19.
ECL section 19-0301 declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution and shall include in such regulations provisions prescribing the degree of air pollution that may be emitted to the air by any source in any area of the State.
ECL section 19-0303 provides that the terms of any air pollution control regulation promulgated by the Department may differentiate between particular types and conditions of air pollution and air contamination sources.
ECL section 19-0305 authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19.
ECL section 19-0311 directs the Department to establish an operating permit program for sources subject to Title V of the CAA.
LEGISLATIVE OBJECTIVES
The legislative objectives underlying the above-referenced statutory authority are essentially directed toward protecting public health and the environment. By promulgating and implementing the proposed revisions to Subpart 227-2, the Department will be amending a regulation to impose more stringent emission limits on major stationary sources of NO that contribute to local and regional nonattainment of the 1997 and 2008 ozone NAAQS.
NEEDS AND BENEFITS
Ozone - Causes and Effects:
There are two types of ozone, stratospheric and ground level ozone. Ozone in the stratosphere is naturally occurring and is desirable because it shields the earth from harmful ultraviolet rays from the sun which may cause skin cancer. In contrast, ground level ozone or smog, which results from the mixing of VOCs and NO on hot sunny summer days, can harm humans and plants. The primary ozone NAAQS was established by EPA at a level that is requisite to protect the public health. In the northeastern United States, the ozone nonattainment problem is pervasive as concentrations of ozone often exceed the level of the NAAQS by mid-afternoon on a summer day. The contiguous metropolitan areas of Washington, D.C., Baltimore, Philadelphia, New York, and Hartford are designated ozone nonattainment areas.
In July 2006, EPA recognized a number of epidemiological and controlled human exposure studies that suggest that asthmatic individuals are at greater risk for a variety of ozone-related effects including increased respiratory symptoms, increased medication usage, increased doctors visits, emergency department visits, and hospital admissions; provide highly suggestive evidence that short-term ambient ozone exposure contributes to mortality; and report health effects at ozone concentrations lower than the level of the current standards, as low as 0.04 parts per million (ppm) for some highly sensitive individuals. 'See' 'Fact Sheet: Review of National Ambient Air Quality Standards for Ozone Second Draft Staff Paper, Human Exposure and Risk Assessments and First Draft Environmental Report', U.S. Environmental Protection Agency, July 2006.
Nonattainment Area Designations and Classifications for the 1997 and 2008 ozone NAAQS.
EPA promulgated nonattainment area designations for the 1997 ozone NAAQS during April 2004. 'See Air Quality Designations and Classifications for the 8-Hour Ozone NAAQS', 69 Fed. Reg. 23,858 (April 30, 2004) (codified at 40 CFR Sections 81.300-356) (the Designations Rule). EPA designated various areas in New York State as nonattainment and classified the areas under either Subpart 1 or Subpart 2 of Part D of Title 1 of the CAA (Part D of Title 1 sets forth the programmatic SIP requirements applicable to nonattainment areas).
Under the Designations Rule, the following areas in New York State were designated as nonattainment:
1. Jefferson County
2. Poughkeepsie (encompassing Dutchess, Putnam, and Orange counties)
3. New York City metropolitan area (encompassing Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester counties)
5. Essex County (the portion of Whiteface Mountain above 1,900 feet in elevation)
6. Jamestown (Chautauqua County)
7. Rochester (encompassing Genesee, Livingston, Monroe, Ontario, Orleans, and Wayne counties)
On March 12, 2009, the Department recommended the following areas be designated nonattainment with the 2008 ozone NAAQS of 0.075 parts per million:
New York City Metropolitan Area - Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk and Westchester counties:
Poughkeepsie-Newburgh-Kingston Metropolitan Area - Dutchess, Orange, Putnam and Ulster counties;
Albany-Schenectady-Troy-Glens Falls Metropolitan Areas - Albany, Columbia, Greene, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, Warren and Washington counties;
Rochester Metropolitan Area - Genesee, Livingston, Ontario, Orleans, Monroe and Wayne counties;
Buffalo-Niagara Falls Metropolitan Area - Erie and Niagara counties; and,
Jamestown Metropolitan Area - Chautauqua County.
As can be seen by the above listing, ozone nonattainment is a pervasive problem that exists in areas throughout the State.
Measures Taken to Reduce Ozone:
The Department has promulgated several NO RACT regulations that apply to various other source categories throughout New York State. These categories include cement kilns (6 NYCRR Part 220), iron and steel process sources (6 NYCRR Part 216), coke oven batteries (6 NYCRR Part 214), and general process NO sources (6 NYCRR Part 214). All of these regulations will assist in bringing all areas in the State into attainment with the NAAQS for ozone. The compilation of these control programs constitutes the NO portion of the ozone NAAQS nonattainment SIP for New York State.
Through the present rule making, the Department is proposing to require stricter NO emissions limits on 766 boilers and 55 combined cycle combustion turbines of various sizes that will reduce their potential NO emissions from the current level of 225,708 tons per year down to 109,619 tons per year (based on an average 50 percent reduction). The Department projects that the actual reductions of NO will be considerably less. Based on the 2007 NO emissions data from these sources, the boilers and turbines that will be affected by this rule making emitted approximately 58,000 tons. Based on operating and compliance assumptions made by the Department, it is expected that the proposed NO RACT limitations will result in an emission reduction of 28,796 tons per year of NO or a daily reduction of 78.9 tons from 2007 levels.
COSTS
Costs to Regulated Parties and Consumers:
The cost to install RACT will vary depending on the size and fuel type of the boilers that are affected by this proposed regulation and the type of control technology used. The following table lists the average RACT costs in dollars per ton of NO reduced for very large, large, and mid-size boilers:
Gas
Gas/Oil
Distillate
Residual
Solid Fuel
Very Large
5,455
4,824
Not Applicable
Not Applicable
2,741
Large
5,463
5,500
Not Applicable
Not Applicable
4,415
Mid-size
2,617
Not Applicable
3,132
3,200
Not Applicable
The Department proposes to require owners and/or operators of all affected small boilers to conduct an annual tune-up. The average annual tune-up cost will be approximately $3,500 per ton of NO reduced. Finally, the Department proposes to require owners and/or operators of combined cycle combustion turbines to conduct a case-by-case RACT analysis. The control technologies that are now available are far more advanced than the control technologies that were considered when the Department established the presumptive RACT emissions limits in the current version of Subpart 227-2 for combined cycle combustion turbines. Currently, there are several retrofit control technologies commercially available for these turbines. This list includes selective catalytic reduction, selective non-catalytic reduction, increased water or steam injection, dry low NO technology, and other possible combustion canister modifications. Given the various ages, sizes, and types of combustion turbines that will be affected, it was not possible to determine a cost for retrofitting based on a single prescribed RACT limit. Therefore, the Department has determined that it would be better to have each individual facility conduct a case-by-case RACT analysis (this is a top down analysis that would require a facility to list then price each control technology that is technically available). The facility will apply the most stringent retrofit controls, based on the results of this analysis, which are economically feasible (on a dollars per ton of NO removed basis) for that particular combustion turbine.
Costs to State and Local Governments:
As noted earlier, this requirement flows from the State's obligations under the CAA. This is not a mandate on local governments. It applies equally to any entity that owns or operates a subject source. Some State and local entities will be affected by this proposed regulation. The Department estimates that the cost for municipally owned facilities to install NO RACT is approximately $3,774 per ton of NO reduced. The total tons of NO reduced from the 26 municipally owned facilities are projected to be 1,770 tons annually. The NO tonnage to be reduced was calculated by multiplying the percent reductions for each control technology by the current potential to emit (these potential emissions are based on currently permitted NO emission rates for the 26 facilities). Therefore, the total estimated cost of this rule revision to the subject municipal facilities will be approximately $6,679,000. The cost estimate for NO reductions from the combined cycle turbine at the Jamestown owned facility must be calculated on a case-by-case basis, so no cost estimate has been included in this analysis.
Costs to the Regulating Agency:
The authority and responsibility for implementing Subpart 227-2 lies solely with the Department. The proposed rule revisions have been developed to minimize the administrative cost burden to the Department. Each subject facility is required to have a Title V facility permit under 6 NYCRR Subpart 201-6. Permit revisions will be necessary to account for the changes to Subpart 227-2 and the revised permit conditions will be incorporated into each relevant permit by Department staff.
LOCAL GOVERNMENT MANDATES
This is not a mandate on local governments. No additional requirements beyond compliance with the proposed regulation will be put on local governments.
PAPERWORK
The proposed revisions to Subpart 227-2 will create little additional paperwork for affected facilities. Depending on the type of affected source there may be application submission requirements, minimal additional recordkeeping and reporting, and the requirement to submit testing protocols and test results.
DUPLICATION
The proposed revisions to Subpart 227-2 do not duplicate, overlap, or conflict with any other State or federal requirements.
ALTERNATIVES
The following alternative has been evaluated to address the goals set forth above:
Take no action: The "take no action" alternative is not acceptable because failure to adopt this regulation will seriously impede New York State's ability to attain the ozone NAAQS. The proposed revisions to Subpart 227-2, in combination with the implementation of other regulations (concerning NO RACT limits for cement kilns, glass manufacturing facilities, and asphalt plants), will help New York State achieve compliance with the 1997 ozone NAAQS. On February 8, 2008, the Department submitted an attainment demonstration to EPA that documents how the State will attain the 1997 ozone NAAQS. While the Department expects the Albany-Schenectady-Troy-Glens Falls, Rochester, Buffalo-Niagara Falls and Jamestown nonattainment areas to come into attainment by 2009, the Department believes that it will take until 2012 for the New York City metro and Poughkeepsie-Newburgh-Kingston nonattainment areas to achieve attainment.
FEDERAL STANDARDS
The proposed rule does not exceed any minimum federal standards.
COMPLIANCE SCHEDULE
The Department proposes to promulgate the revisions to Subpart 227-2 by July 2010. Any facility that contains a source that becomes newly subject to the regulation will be required to complete and submit an application for a permit or permit modification by no later than January 1, 2012. Any facility that is subject to new or revised control requirements under section 227-2.4 must be in compliance with the relevant requirements by July 1, 2014.
1 On July 18, 1997, EPA promulgated primary and secondary ozone NAAQS of 0.08 parts per million (ppm) (the 1997 ozone NAAQS). 'See National Ambient Air Quality Rule for Ozone', 62 Fed. Reg. 38,856 (July 18, 1997) (codified at 40 CFR section 50.10). The standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentration is less than or equal to 0.08 ppm. When the standard rounding conventions are used, this standard is measured as 0.084 ppm.
On March 27, 2008, EPA promulgated revised ozone NAAQS and set the new primary and secondary standards at 0.075 ppm (the 2008 ozone NAAQS). 'See National Ambient Air Quality Rule for Ozone', 73 Fed. Reg. 16436 (March 27, 2008) (codified at 40 CFR section 50.15). Attainment of the 2008 ozone NAAQS is determined in the same manner as with the 1997 ozone NAAQS.
2 Within the OTR, any source that emits or has the potential to emit at least 50 tons per year of VOCs is considered a “major stationary source” and is subject to the requirements that are applicable to major stationary sources in moderate nonattainment areas under CAA section 184(b)(2). However, under CAA section 302, and section 182(c), (d), and (e), the emission thresholds for major stationary sources of NO in the OTC vary from 100 to 10 tons per year depending on the area's designation and classification. For portions of the OTR that are designated as attainment or unclassifiable, or classified as moderate nonattainment, a major stationary source of NO is one that emits more than 100 tons of NO per year; in portions of the OTC classified a serious nonattainment the emissions threshold is 50 tons of NO per year.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
No revisions were made to the RFA, RAFA and JIS.
Assessment of Public Comment
Comments Received December 23, 2009 through February 17, 2010
The Department of Environmental Conservation (Department) held public hearings on the proposed revisions to 6 NYCRR Subpart 227-2, NO RACT, and 6 NYCRR Subpart 201-3, Exemptions and Trivial Activities, on February 8,9, 10, 2010 in Rochester, Albany, and Long Island City. The Department accepted written comments until close of business February 17, 2010. The department received comments from fifteen different commenters. Several of the commenters acknowledged their mutual support for each other's comments. A summary of the significant comments received and the Department's responses are provided below.
The United States Environmental Protection Agency (EPA) provided the Department with comments citing typographical errors and EPA policy guidance. The Department has checked the citations in question and corrected the errors. The Department noted that the EPA guidance did not "fit" New York State's requirements or timeframes and thus the EPA's proposed changes were not incorporated into the express terms.
Nearly all of the commenters requested that the Department extend the compliance schedule in the proposed regulation. The reasons provided to expand the compliance schedule included concerns about maintenance of electricity system reliability, engineering/procurement/permitting/construction time requirements, and compliance testing requirements. The New York Independent System Operator (NYISO) contracted for the performance of an evaluation of the impact of the proposed rule on the New York State power industry. NYISO's report concluded that "[i]mplementation of the revised NO RACT rule through generator retrofits, system averaging or retirements must occur in a manner and on a schedule that will ensure continued reliability of the NYS Power System. The NO RACT Study indicates that reliability concerns will arise if units are required to install retrofits or shut down within the proposed two-year regulatory timeframe." The NYISO proposed that the effects of this rule would be minimized if the Department were to extend the compliance schedule for a minimum of two years.
The Department reviewed the NYISO's NO RACT Study and agreed with the study's conclusion that it will take more time to plan, purchase, and install controls on existing sources or to shutdown existing sources. Therefore, the Department believes that it would be reasonable to extend the final compliance dates the two years that the study has concluded would be necessary to insure continued reliability of New York State's power production capabilities.
The majority of the commenters stated that the emissions limits in the proposed NO RACT rules should be inapplicable during, or modified for the non-ozone season. EPA guidance states that seasonal controls are generally not allowed and that RACT is generally not a function of seasonal or other temporal factors. The Department's proposed regulation follows the EPA guidance; thus, no changes to the proposed emission limits will be made with respect to operation during the non-ozone season.
Several of the commenters requested that the Department leave the existing exemption for simple cycle turbines that operate 500 hours or less in the non-ozone season. The Department has decided to remove this exemption from the proposed regulation revisions. The reason for the Department eliminating the 500 hour per year non-ozone season exemption is based on the current trend of simple cycle turbine operation. It has been observed that new simple cycle turbines are being designed to operate for longer periods throughout the year and that many of the existing simple cycle turbine fleets are being replaced with new simple cycle turbines that are designed for more operation. The Department believes that the NO RACT rule must be revised to meet the change in simple cycle turbine operation.
Many of the commenters requested that the simple cycle combustion turbines should be considered in demonstrating compliance with the 30-day rolling average during the non-ozone season instead of the proposed 24-hour average. The Department intended to allow the simple cycle combustion turbines to use a 30-day average in the non-ozone season. The initial text of the proposed regulation failed to comport with the Department's intent. This mistake has been corrected.
Several commenters stated that the presumptive emissions limits in the proposed NO RACT rules are not justified and should be modified in light of the significant reductions in New York State NO emissions that have already taken place based on the requirements of other regulations like the ADRP and CAIR. The Department does not believe that the revised emission rates in the proposed rule are beyond the definition of RACT, "Lowest emission limit that a particular source is capable of meeting by application of control technology that is reasonably available, considering technological and economic feasibility." The Department believes that the proposed rule revisions will result in significant additional NO emission reductions.
Many of the commenters have expressed the need for more flexibility and changes to the system averaging provisions in the rule including the addition of planned outage provisions. The Department believes that the proposed system averaging provisions adequately protect the owner of the system from noncompliance, specifically during forced outage events. The Department does not believe that it can justify expanding the forced outage provisions to include planned outages. A planned outage is not an unforeseen event or an emergency. It is a controlled action and therefore, does not qualify (nor can it be justified) for an adjusted emission rate like the forced outage provisions allow.
Several of the commenters stated that the costs and benefits of the proposed NO RACT rules are misstated. They believe that the approach used in determining the cost effectiveness of the rule is inappropriate for estimating the cost ranges for EGUs in New York State. The Department believes that the costs and benefits of the proposed NO RACT rules are not misstated. The Department stands by its conclusions. RACT and the application of RACT controls are required on an emission source basis. Thus, each emission source may be evaluated individually to determine whether or not the presumptive NO RACT emission rates are economically and technically feasible.
A few of the commenters stated that the presumptive emissions levels identified in the proposed NO RACT rule should be modified to incorporate startup, shutdown and malfunction periods. They propose as an alternative that NYSDEC should exempt emissions associated with low-load operation, startup, shutdown and malfunction events from the NO RACT averaging period for compliance demonstration. The Department does not have the authority to exempt emissions of start-up, shutdown, and/or malfunctions from regulation and is unable to accommodate this change.
A few commenters believe that the Department did not adhere to Executive Order No. 20 before implementing the proposed NO RACT rules. Executive Order No. 20 (November 30, 1995) provides that the State Director of Regulatory Reform ("DRR") may propose that agencies such as DEC amend any rule that is "excessive in view of State or federal statutes or regulations.", and allows the DRR "to require an agency to prepare a cost-benefit analysis [or] risk assessment" of a proposed rule, and to "require that any cost-benefit analysis or risk assessment that is prepared for a rule undergo a peer review." The Department believes that it followed the procedures set forth in Executive Order 20, as the rulemaking package was reviewed and signed-off by the DRR prior to the rulemaking package's public noticing.
Some commenters stated that the RIS for the proposed NO RACT rules does not accurately evaluate DEC's costs. The Department agrees that staff will be required to conduct some permit modifications based on the implementation of the proposed rule revisions. However, the Department does not believe that this will result in a significant increase in overall staff workload.
A few commenters requested that the Department refrain from expanding the size definitions of small and mid-size boilers. The Department has determined that the available control measures for small and mid-size boilers are economically and technically feasible.
A couple of commenters have requested that the flexibility options provided in the proposed NO RACT rules be modified to state that a "system" can cross state lines. Unfortunately, the Department does not have the authority to regulate emission sources or require recordkeeping and reporting (essential for compliance) beyond the borders of New York State and is unable to satisfy this request.
A few commenters stated that the NYSDEC must demonstrate that the presumptive limits in the proposed NO RACT rule are "reasonable" and "available." Based on economic factors, the Department calculated the inflationary increase in NO RACT costs. The removal rate was determined to be approximately $5,000 per ton of NO reduced. The Department believes that this is an accurate, reasonable, and available estimate.
A couple of commenters stated that certain NO emissions control technologies can lead to increases in emissions of CO2 and other pollutants. These potential adverse environmental impacts should be evaluated prior to finalization of the proposed NO RACT rules. The Department determined that the possible increases in emissions of CO2 were insignificant compared to the benefits of the projected NO emissions reductions. The Department believes that it has adequately addressed the issue of potential adverse environmental impacts based on the promulgation of this regulation.
One commenter stated that the NYSDEC did not provide sufficient notice of the proposed Subpart 227-2 rulemaking. The rule package was proposed on December 23, 2009 and fell during the holiday period. The public comment period for 6 NYCRR Subpart 227-2 commenced on December 23, 2009 and ended on February 17, 2010. The Department believes that the 57 days that the public comment period lasted was sufficient for the review of the proposed rule revisions.
One commenter stated that the Department should clarify the fuel switching compliance option to include fuel emergency adjustments that would foster consistency with the system averaging plan compliance option. The Department believes that the fuel switching option was written to allow flexibility to each owner or operator that chooses to use this provision to comply. There are no specific provisions in the fuel switching option that limit flexibility. Thus, the fuel switching provision simply must result in a quantifiable annual NO emissions rate equal to or less than the NO emissions expected if the emission source complied with the applicable presumptive RACT emission limits for its current fuel.
One commenter stated that the new proposed requirement for small boilers, small turbines and small engines to perform annual "tune-ups" will require all Title V permits with these sources to be amended to ensure the provisions are enforceable. The Department recognizes that some permits will need to be modified based on the proposed small emission source tune-up provisions. The Department does not believe that the need to permit these requirements will cause a strain on the resources of either Department staff or subject facilities.
