The express terms contain provisions which detail the requirements for emissions testing, sampling and analytical determinations, and emission statements. There were no substantial changes made to these provisions beyond what is identified in this summary.

The six GHGs will be added to 202-2.3(c). These six GHGs include; Carbon Dioxide (CO2), Methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). These additional GHGs are not regulated air contaminants and therefore will not be included in the bill calculations for the annual operating permit program fee for affected sources.

STATUTORY AUTHORITY

The New York State (NYS) Department of Environmental Conservation (Department) is proposing to revise 6 NYCRR Part 202, Emissions Verification, to make some minor language changes to 202-1 and 202-2. Specifically, in 202-1, the Department is proposing to change Commissioner to Department to more accurately represent the Department's ability to require stack tests for inventory purposes, as part of the permitting process, and to be more consistent with the language used in 202-2. Within 202-2, the Department is proposing to clarify language and include the reporting of greenhouse gases (GHGs) as part of the existing annual emission statement process. This is not a mandate on local governments. It applies to any entity that owns or operates a subject source.

Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0302, 19-0303, 19-0305, 19-0311, 71-2103, 71-2105 and 72-0303 of the NYS Environmental Conservation Law (ECL) authorize the Department to promulgate this regulation.

LEGISLATIVE OBJECTIVES

The Department is authorized to require emissions reporting from affected facilities subject to this rule for a variety of reasons, and has been collecting such information for years. Primarily, this reporting enables the Department to fulfill the State's obligation under Section 182 of the CAA to submit a comprehensive, accurate and current inventory of actual emissions from all affected sources. Reports generated from emission tests may be used for emission inventories as well as for compliance assurance purposes.

Combating climate change is one of the priority issues of the Department's Commissioner. This includes reducing GHG emissions, encouraging low-carbon design technologies, elevating climate change awareness, research and adaptation ability, fostering carbon sequestration and sustainable forestry, and leading state agencies' efforts to tackle climate change. The proposed rulemaking will enable the Department to collect and quantify GHG emissions from affected sources in NYS. This will help serve the Commissioner's priorities by identifying large sources of GHG emissions, establishing baseline emission levels, and tracking trends to determine the effectiveness of the Department's efforts at reducing GHG emissions.

On December 26, 2007, President George W. Bush signed into law the Consolidated Appropriations Act of 2008 (Pub. L. No. 110-161, 121 Stat 1844, 2128 (2008))("Act"). Under this Act, Congress directed EPA to publish a mandatory GHG reporting rule, using the Agency's existing authority under the CAA. The rule requires mandatory reporting of GHGs "above appropriate thresholds in all sectors of the economy." EPA is responsible for determining those thresholds, as well as the frequency of reporting. Congress requested EPA to include reporting of emissions "resulting from upstream production and downstream sources," to the extent that the Agency deems appropriate. The proposed rule was signed by the Administrator on March 10, 2009. The Proposed Mandatory Greenhouse Gas Reporting Rule public comment period ended June 9, 2009. The comment period was open for 60 days, following publication of the proposed rule in the 'Federal Register', April 10, 2009, (www.regulations.gov) under Docket ID No. EPA-HQ-OAR-2008-0508. The final rule was signed by the Administrator on September 22, 2009 and published in the 'Federal Register' (www.regulations.gov) under Docket ID No. EPA-HQ-OAR-2008-0508-2278 on October 30, 2009. The rule became effective on December 29, 2009. http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

NEEDS AND BENEFITS

Annual emission statements provide an accurate accounting of all emissions from major stationary sources, and assist the state in tracking progress towards attainment and maintaining the national ambient air quality standards for the criteria pollutants (ozone, SO2, NOx, CO, PM10, PM2.5 and lead).

Emission statements are used by the Department for a number of regulatory purposes. Emission statements assist the Department with the administration of its operating permit program for major stationary sources subject to Title V of the CAA. Emission statements are also used to determine whether a facility is operating in compliance with its permit and are a critical component of a facility's annual Title V compliance certification. In addition, emission statements provide a means for a Title V facility source owner or operator to document actual annual emissions to the Department for the purpose of determining its annual operating permit fees. Facilities subject to the Title V permitting program are required to pay a per ton emission fee for all regulated air contaminants (criteria and hazardous air pollutants) pursuant to Title V of the CAA and Section 72-0303 of the ECL.

GHG emissions are considered to be responsible for the changing climate, which poses serious threats to New York's environmental resources and public health. Climate change is expected to affect air quality, water quality, fisheries, drinking water supplies, wetlands, forests, wildlife, and agriculture. Flooding from severe weather events and the rising sea levels will damage communities and infrastructure in flood plains and along coastlines. Tropical diseases will appear as far north as NYS. An emissions inventory that identifies and quantifies primary anthropogenic sources of GHGs is essential for addressing climate change. A GHG inventory is a critical first step in reducing NYS's contribution to global GHG levels. By identifying the largest sources of GHGs in NYS, identifying trends, and demonstrating impacts of actions taken to date, NYS can better design strategies for achieving the desired reduction in GHGs. Working together with the public, private, and nonprofit sectors, NYS will lead by example in the fight to combat climate change.

By collecting GHG emissions data as part of the annual emission statement process, the Department will be able to establish and maintain the data which it will use to manage and generate reports, to create GHG emission inventories, and in turn, more accurately identify the sources and levels of these emissions in NYS. The GHG emission estimates included in the annual emission statement will be certified as complete and accurate by a facility representative. A GHG inventory will provide information on the activities that cause these emissions, as well as background on the methods used to make the calculations. Department staff will use GHG inventories to track emission trends, develop strategies and policies and assess the progress of state and federal programs. Department staff will also use GHG inventories to input data into atmospheric and economic models to help more accurately forecast emissions and determine cost-effective ways to reduce GHG emissions. The outlines of NYS's GHG emissions inventory are broadly known: the bulk of these gases are generated in roughly equal parts by transportation, space heating/cooling for buildings, and electric power production. To cost-effectively mitigate GHG emissions, however, more detailed emissions assessments are needed.

With the release of its final rule, EPA has taken a first step towards mandatory reporting of GHG emissions. The gases covered by EPA's mandatory GHG emissions reporting rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF6). These six GHGs are the gases that members of The Climate Registry (www.theclimateregistry.org) have agreed to calculate and register. The Department is proposing to add these same GHGs as a reporting requirement under Subpart 202-2 to be consistent with EPA's rule, other federal and voluntary programs, and allow affected sources who participate in similar programs to be able to easily report these same contaminants to the Department.

COSTS

Costs to Regulated Parties: The cost of compliance with this regulation is not expected to appreciably increase as a result of any of the proposed amendments. The tracking of GHG emissions is expected to cause only a marginal increase in the burden to regulated facilities. Currently, there are approximately 450 facilities that report under Subpart 202-2. This proposed rulemaking does not change which facilities must report, it merely adds the requirement to report GHG emissions. For most of the facilities, the only requirement would be to utilize an EPA emission factor to calculate for example, CO2 and N2O emissions.

Cost to the Regulating Agency: Other than costs associated with the promulgation of this amendment, the Department is not expecting to incur additional costs for implementing and continued administration of the proposed amendments to this regulation. The modifications will not alter the way the Department will administer the emissions statement program and therefore requires no additional staff. The amount of staff time to process the additional requirements proposed by this rulemaking is also not expected to appreciably increase.

Costs to State and Local Governments: This is not a mandate on local governments. It applies equally to any entity that owns or operates a subject source. State and local governments that own facilities which operate under a Title V permit and are subject to Subpart 202-2 will be affected in the same way as other regulated parties.

PAPERWORK

Little, if any, additional paperwork is expected to be required by the proposed amendments to Part 202. Affected facilities are currently required to complete and submit an annual emission statement. If any of the sources at these facilities emit any of the GHGs listed in Subpart 202-2, they will be required to include them in their annual emission statement.

LOCAL GOVERNMENT MANDATES

This is not a mandate on local governments. Local governments have no additional compliance obligations as compared to other subject entities. No additional local government mandates will be imposed as a result of the proposed amendments to this rule. Part 202 requires local governments operating facilities that trigger the reporting thresholds to complete annual emission statements. Otherwise, no local government mandates will ensue from this regulation.

DUPLICATION

The proposed requirement to report GHGs as part of the annual emission statement may create some duplication between this regulation and EPA's Mandatory Greenhouse Gas Reporting Rule, in that both rules require Title V sources to report annual GHG emissions. As discussed above, the Department already collects annual emissions data from the Title V sources in NYS in a format quite different from what is required by EPA. Although similar data is being reported under both programs, the Department does not believe that any duplication in reporting under Subpart 202-2 would be burdensome to the facilities.

ALTERNATIVES

The only alternative to the amendment of Part 202 is no rulemaking. This alternative will result in the Department not being able to collect accurate GHG emissions data and leave a significant amount of GHGs unaccounted for each year from NYS major source facilities. The Department believes that amending Subpart 202-2 will provide useful information, while not burdening the affected reporting sources. Without the collection of GHG emissions data, Department staff will not be able to track emission trends, develop strategies and policies and assess progress of existing and future programs relative to GHGs and/or climate change. Further, without this rulemaking, Department staff will not have sufficient data to perform accurate atmospheric and economic models.

FEDERAL STANDARDS

The proposed revisions to Part 202 do not exceed any minimum standards of the federal government for any of the same or similar subject areas. ECL Section 19-0303 requires specific justification of regulations that are more stringent than the CAA, or regulations promulgated under the Act. Subpart 202-1 allows EPA test methods to be used for emissions controlled under state regulations. These methods are in fact required under some EPA regulations. Allowing their use at other sources (for example those sources smaller than an EPA applicability threshold) will encourage uniformity in emissions information.

This regulation combines the reporting requirements of Title I and Title V of the CAA. The Title I requirements are concerned with the annual emissions of VOC and NOx for ozone pollution abatement. Title V is concerned with the provisions for a federally enforceable operating permit program for "major" facilities. Subpart 202-2 enables the Department to collect emission statements that meet the Title I reporting requirements and provide the information to identify Title V affected facilities.

COMPLIANCE SCHEDULE

Owners and/or operators of affected sources will be required to comply with the proposed revisions to Part 202 and submit an annual emission statement to the Department by April 15th, following the adoption of this rule.

The proposed revisions to Part 202 include minor clarifications, and the additional requirement of reporting 6 Greenhouse Gases (GHGs) as part of the existing annual emission statement process. These proposed revisions do not substantially change the purpose, structure, or operation of this rule. The Department has reviewed the potential impacts related to the proposed revisions to Parts 202 and has determined that they will not impose any appreciable reporting, recordkeeping, costs or compliance requirements on affected sources, the agency, local governments, or rural areas. The number and type of sources affected will not be changed as a result of the proposed revisions to this rule. Further, the revisions being proposed will not have any adverse impacts on small businesses, local governments, public or private entities in rural areas, or on available jobs and employment opportunities.