Paragraph 200.1(av)(2) is amended as follows:

(2) [Areas designated as “Nonattainment” for the Fine Particulate (PM2.5) NAAQS.

(i) The New York - N. New Jersey - Long Island, NY-NJ-CT-PA area consisting of Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk and Westchester Counties.] (Reserved)

The remainder of Section 200.1 remains unchanged.

The New York State Department of Environmental Conservation (DEC) is proposing a revision to 6 NYCRR Section 200.1, “Definitions” (Section 200.1). The U.S. Environmental Protection Agency (EPA) has recently finalized the redesignation of the New York portion of the New York-N. New Jersey-Long Island, NY-NJ-CT area from nonattainment to attainment for fine particulate matter (PM2.5). This revision would remove Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk and Westchester counties in the New York-N. New Jersey-Long Island, NY-NJ-CT area from the definition of nonattainment areas for PM2.5 under Subdivision 200.1(av). This action would keep New York’s designation status for the National Ambient Air Quality Standards (NAAQS) up to date with the official designation status contained in Section 81.333 of Title 40 of the Code of Federal Regulations. It would also relieve facilities of unnecessary regulatory requirements that apply to nonattainment areas through 6 NYCRR Part 231, “New Source Review for New and Modified Facilities” (Part 231).

STATUTORY AUTHORITY

The statutory authority for the revision to Section 200.1 is found in the New York State Environmental Conservation Law (ECL), Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, 71-2103 and 71-2105.

ECL Section 1-0101. This Section declares it to be the policy of the state to conserve, improve and protect its natural resources and environment and to prevent, abate and control air pollution in order to enhance the health, safety and welfare of the people of the State and their overall economic and social well being. Section 1-0101 further expresses, among other things, that it is the policy of the State to coordinate the State’s environmental plans, functions, powers and programs with those of the federal government and other regions and manage air resources so that the State may fulfill its responsibility as trustee of the environment for present and future generations. This Section also provides that it is the policy of the State to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by providing that care is taken for air resources that are shared with other States.

ECL Section 3-0301. This Section states that it shall be the responsibility of DEC to carry out the environmental policy of the State. In furtherance of that mandate, Section 3-0301(1)(a) gives the Commissioner authority to “[c]oordinate and develop policies, planning and programs related to the environment of the state and regions thereof...” Section 3-0301(1)(b) directs the Commissioner to promote and coordinate management of, among other things, air resources “to assure their protection, enhancement, provision, allocation, and balanced utilization consistent with the environmental policy of the State and take into account the cumulative impact upon all of such resources in making any determination in connection with any license, order, permit, certification or other similar action or promulgating any rule or regulation, standard or criterion[.]” Pursuant to ECL Section 3-0301(1)(i), the Commissioner is charged with promoting and protecting the air resources of New York including providing for the prevention and abatement of air pollution. Section 3-0301(2)(a) permits the Commissioner to adopt, amend or repeal environmental standards and criteria o carry out the purposes and provisions of the ECL. Section 3-0301(2)(m) gives the Commissioner authority to “[a]dopt such rules, regulations, and procedures as may be necessary, convenient or desirable to effectuate the purposes of this chapter.”

ECL Section 19-0103. This section declares that it is the policy of New York State to maintain a reasonable degree of purity of air resources. In carrying out such policy, DEC is required to balance public health and welfare, the industrial development of the State, propagation and protection of flora and fauna, and the protection of personal property and other resources. To that end, DEC is required to use all available practical and reasonable methods to prevent and control air pollution in the State.

ECL Section 19-0105. This Section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of the 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. This Section authorizes DEC to adopt regulations to prevent and control air pollution in such areas of the State that are affected by air pollution, develop a general comprehensive plan for the control and abatement of existing air pollution and for the control and prevention of new air pollution and cooperate with government agencies and other States or interstate agencies with respect to the control of air pollution.

ECL Section 19-0303. This Section provides that the terms of any air pollution control regulation promulgated by DEC may differentiate between particular types and conditions of air pollution and air contamination sources.

ECL Section 19-0305. This Section authorizes DEC to enforce the codes, rules and regulations established in accordance with Article 19.

ECL Sections 71-2103 and 71-2105. These sections include provisions for the civil and criminal enforcement of Article 19 of the ECL.

LEGISLATIVE OBJECTIVES

Article 19 of the ECL was enacted to safeguard the air resources of New York from pollution and ensure protection of the public health and welfare, the natural resources of the State, and physical property by integrating industrial development with sound environmental practices. It is the policy of the State to require the use of all available, practical and reasonable methods to prevent and control air pollution in New York. To facilitate this objective, the Legislature granted specific powers and duties to DEC, including the power to adopt and promulgate regulations to prevent, control and prohibit air pollution. The provisions cited above clearly provide DEC with the requisite authority to amend this regulation as proposed.

Title 40, Part 81.333 of the Code of Federal Regulations contains EPA’s official air quality designations in New York State for the various NAAQS, including PM2.5. Areas designated as nonattainment are also cited in 6 NYCRR Subdivision 200.1(av). The New York metropolitan area had been declared nonattainment of the 1997 annual PM2.5 NAAQS on April 5, 2005 and the 2006 24-hour PM2.5 NAAQS on December 14, 2009. This proposed regulatory revision is a result of New York State coming into compliance with both NAAQS. EPA has granted final approval of DEC’s redesignation request, resulting in the area being legally declared as in attainment of the 1997 and 2006 PM2.5 NAAQS. In order to correctly reflect the designation status amid improving air quality in New York State, DEC is proposing to remove the reference to the 1997 annual and 2006 24-hour PM2.5 nonattainment areas from Subdivision 200.1(av).

NEEDS AND BENEFITS

This regulatory revision is necessary to correctly reflect the designation status of the PM2.5 NAAQS in New York State. Section 200.1 would be modified to remove Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk and Westchester Counties from the definition of nonattainment area for PM2.5. This action would benefit the industrial and power generation sectors in the former nonattainment area, as certain requirements for major stationary sources under Part 231 would be alleviated. Affected are the nonattainment New Source Review (NNSR) and PM2.5 emission offsets programs.

The Part 231 NNSR program requires certain major stationary source facilities in a nonattainment area for PM2.5 to perform a Lowest Achievable Emission Rate (LAER) analysis to determine the appropriate application of air pollution control equipment. LAER requires the most stringent emission limit achieved in practice for a similar class or category of source. Proposed new major stationary sources that exceed the applicability threshold of 100 tons per year (tpy) of PM2.5, and existing major stationary sources that are planning a modification that would increase emissions by an amount greater than the significant project threshold, which is 10 tpy of PM2.5 are subject to this requirement. As precursors to PM2.5 formation, emissions of NOx and SO2 in a PM2.5 nonattainment area are regulated in a similar manner (although the significant project threshold is 40 tpy for each).

By revising Section 200.1 to remove the reference to the PM2.5 nonattainment area, sources would no longer be subject to a LAER analysis. Instead, proposed new major sources and existing major sources planning a modification would be subject to the Prevention of Significant Deterioration (PSD) program and perform a similar but less stringent review of emission controls referred to as a Best Available Control Technology (BACT) analysis. The PSD program ensures that an attainment area would not exceed the NAAQS from the addition of a new major stationary source or modification of an existing major stationary source.

Part 231 also requires emission offsets to be obtained by a proposed new major stationary source, or by an existing major stationary source that is planning a major modification, in a PM2.5 nonattainment area. Emission offsets provide reasonable progress toward attainment of the NAAQS in exchange for approval to construct. A lack of available PM2.5 emission offsets has impeded new construction in the New York metropolitan area. The cessation of this requirement would therefore be a welcome change by industry, as it would remove the barrier for potential projects to progress. The PSD program would continue to be in effect for new major stationary sources and significant modifications at existing major stationary sources within the former PM2.5 nonattainment area.

COSTS

There would be costs to DEC associated with the public hearing that is required for a regulatory revision. Otherwise, no direct costs are anticipated as a result of the revision.

PAPERWORK

There is not expected to be a significant increase or decrease in the number or complexity of application forms, record keeping, or reporting requirements as a result of this regulatory revision.

LOCAL GOVERNMENT MANDATES

There would be no additional record keeping, reporting, or other requirements imposed on local governments as a result of this regulatory revision.

DUPLICATION

The proposed regulatory revision does not overlap, duplicate, or conflict with any existing state or federal requirement.

ALTERNATIVES

The alternative to the revision of Section 200.1 is to take no action. This alternative would result in maintaining an outdated definition of “nonattainment area” for PM2.5 in New York State the outcome of which would be the application of unnecessary regulations, such as LAER and the need to acquire PM2.5 emission offsets for new and modified stationary sources in the New York metropolitan area.

FEDERAL STANDARDS

This proposed rule would not exceed any federal standards. The proposed amendment to Section 200.1 would align New York State regulations with the federal designations for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

COMPLIANCE SCHEDULE

As there are no regulatory requirements associated with this proposal, there is no compliance schedule.

EFFECTS ON SMALL BUSINESSES AND LOCAL GOVERNMENTS

The proposed revision to Section 200.1 would have no direct impacts on small businesses or local governments. There may be minor positive secondary impacts on small businesses resulting from proposed new major stationary sources and existing major stationary sources that are planning a modification. These sources would no longer be required to obtain emission offsets under Part 231 in order to construct. A lack of available PM2.5 emission offsets has impeded new construction in the New York metropolitan area. The cessation of this requirement would remove the barrier for potential projects to progress.

These major stationary sources, however, are not typically considered to be small businesses. There may be opportunities for small businesses to benefit by providing associated construction services. Similarly, small business consultants may be relied upon to perform air quality modeling to ensure new and modified sources do not result in an exceedance of the PM2.5 NAAQS pursuant to Part 231’s Prevention of Significant Deterioration program.

COMPLIANCE REQUIREMENTS

There are not expected to be any significant reporting, record keeping, or other actions undertaken by small businesses or local governments as a result of the proposed regulatory revision to Section 200.1.

PROFESSIONAL SERVICES

No professional services will be explicitly required as a result of the Section 200.1 revisions. There may be a minor increase in demand for consulting engineers related to the removal of the PM2.5 emission offsets requirement under Part 231.

COMPLIANCE COSTS

No compliance costs will be incurred by small businesses or local governments as a result of this rulemaking.

MINIMIZING ADVERSE IMPACT

There will be no adverse impacts on small businesses or local governments as a result of this rulemaking.

SMALL BUSINESSES AND LOCAL GOVERNMENT PARTICIPATION

Small businesses and local governments previously had the opportunity to comment on DEC’s submission of the redesignation request and maintenance plan for PM2.5 and on EPA’s proposed redesignation action. Small businesses and local governments will again have an opportunity to comment on this rulemaking during the associated public comment period, and to attend the public hearings.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY

There are no direct effects to small businesses or local governments as a result of this rulemaking. The economic and technological feasibility of the Section 200.1 revision are therefore not an issue.

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS AFFECTED

The redesignation of the New York portion of the New York-N. New Jersey-Long Island, NY-NJ-CT area to attainment for PM2.5 affects primarily urban areas. This area consists of Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk, and Westchester Counties. Of these, only a portion of Orange County is considered rural: the towns of Deerpark, Greenville, Hamptonburgh, Minisink (including the Village of Unionville), and Tuxedo (including the Village of Tuxedo Park).

COMPLIANCE REQUIREMENTS

The proposed revision to Section 200.1 would not result in any reporting, record keeping, or other compliance requirements imposed upon public or private entities in rural areas, nor would any professional services be needed by public or private entities. This rulemaking in no way affects rural areas differently than urban areas.

COSTS

Rural entities would incur no initial or annual costs as a result of the proposed revision, as it imposes no regulatory requirements.

MINIMIZING ADVERSE IMPACT

There would be no adverse impact on rural areas as a result of this rulemaking, as it imposes no regulatory requirements.

RURAL AREA PARTICIPATION

Rural citizens, businesses, and organizations previously had the opportunity to comment on DEC’s submission of the redesignation request and maintenance plan for PM2.5 and EPA’s proposed redesignation action. Rural citizens, businesses, and organizations will again have an opportunity to comment on this rulemaking during the associated public comment period, and to attend the public hearings.

NATURE OF IMPACT

The proposed revision to Section 200.1 would have no direct impact on jobs or employment opportunities. There may be positive secondary impacts on jobs and employment opportunities based on how Part 231 regulates certain proposed new major stationary sources and existing major stationary sources that are planning a modification. Facilities would no longer need to acquire PM2.5 emission offsets currently required under Part 231 due to the existing designation of nonattainment. A lack of available PM2.5 emission offsets has impeded new construction in the New York metropolitan area. The cessation of this requirement would remove the barrier for potential projects to progress. This could result in a number of applications for new major sources or for significant modifications at existing major sources that could have a positive impact on employment opportunities.

CATEGORIES AND NUMBERS OF JOBS OR EMPLOYMENT OPPORTUNITIES AFFECTED

No jobs or employment opportunities would be directly affected by the proposed revision to Section 200.1. A secondary increase in employment opportunities may happen as a result of the alleviation of certain requirements under Part 231. The number of jobs or employment opportunities affected is difficult to approximate as it depends on a number of factors – e.g., the number of proposed new sources, the number of existing sources proposing modifications, and the size and category of such sources.

REGIONS OF ADVERSE IMPACT

The proposed revision to Section 200.1 would affect the downstate area consisting of Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk and Westchester Counties. There are not expected to be any adverse impacts on jobs or employment opportunities in this region, or anywhere else in the state, resulting from the revision of Section 200.1.

MINIMIZING ADVERSE IMPACT

There are not expected to be any adverse impacts on existing jobs or on future employment opportunities.