INTRODUCTION

The Department is proposing to repeal 6 NYCRR Part 227-3, Nitrogen Oxide Emissions Budget and Allowance Program; Part 237, Acid Deposition Reduction NO Budget Trading Program; Part 238, Acid Deposition Reduction SO Budget Trading Program; and revise Part 200, General Provisions, to remove all references to Parts 227-3, 237, and 238. These regulations have become obsolete and have been superseded by other state and federal regulations, most notably 6 NYCRR Part 243, CAIR NO Ozone Season Trading Program; Part 244, CAIR NO Annual Trading Program; Part 245, CAIR SO Trading Program; and 40 CFR Part 96.101- 96.388, NO Budget Trading Program; and CAIR NO and SO Trading Programs for State Implementation Plans. All compliance related activities under these Parts have been fully concluded and are no longer operable. As a result, Parts 227-3, 237 and 238 should be repealed. Repeal of Parts 227-3, 237, and 238 will de-clutter and streamline DEC’s regulations, with zero impact on the regulated community, the People, and the State of New York.

STATUTORY AUTHORITY

The statutory authority to repeal Parts 227-3, 237, and 238 in New York State (NYS) derives primarily from the Department’s obligation to prevent and control air pollution, as set out in the Environmental Conservation Law (ECL) at Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, and 19-0303. Following are brief synopses and legislative objectives for these sections.

Section 1-0101. This section declares NYS’s policy 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 NYS and their overall economic and social well being; 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; and foster, promote, create, and maintain conditions by which man and nature can thrive in harmony by preserving special resources such as the Adirondack and Catskill forest preserves and taking care of air resources that are shared with other states in the manner of a good neighbor.

Section 3-0301. This section empowers the Department to coordinate and develop programs to carry out the environmental policy of New York State set forth in section 1-0101. Section 3-0301 specifically empowers the Department to: provide for the prevention and abatement of air pollution; cooperate with officials and representatives of the federal government, other States, and interstate agencies regarding problems affecting the environment of NYS; encourage and undertake scientific investigation and research on the ecological process, pollution prevention, and abatement and other areas essential to understanding and achieving the environmental policy set forth in section 1-0101; monitor the environment to afford more effective and efficient control practices; identify changes in ecological systems and to warn of emergency conditions; enter into contracts with any person to do all things necessary or convenient to carry out the functions, powers, and duties of the Department; and adopt such regulations as may be necessary, convenient, or desirable to effectuate the environmental policy of the State.

Section 19-0103. This section declares the policy of NYS to maintain a reasonable degree of purity of air resources. The Department 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, the Department must use all practical and reasonable methods to prevent and control air pollution in the State.

Section 19-0105. This section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of NYS under a program which is consistent with the policy expressed in section 19-0103 and in accordance with other provisions of Article 19.

Section 19-0301. This section 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 permitted and the extent to which air contaminants may be emitted to the air by any source in any area of the State.

Section 19-0303. This section 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. Section 19-0303 also provides that the Department, in adopting any regulation that contains a requirement that is more stringent than the CAA or its implementing regulations, must include in the Regulatory Impact Statement an evaluation of the cost-effectiveness of the proposed regulation in comparison to the cost-effectiveness of reasonably available alternatives and a review of the reasonably available alternative measures along with an explanation of the reasons for rejecting such alternatives.

LEGISLATIVE OBJECTIVES

Article 19 of the ECL was adopted for the purpose of safeguarding the air resources of New York State from pollution. To facilitate this purpose, the Legislature granted general and specific powers and duties on the Department, including the power to formulate, adopt, promulgate, amend, and repeal regulations for preventing, controlling, or prohibiting air pollution.

The Department promulgated Parts 227-3, 237, and 238 to reduce the amount of NO and SO (the primary chemical contaminants that contribute to the formation of acid rain) emitted from large, fossil fuel-fired stationary sources. Acid rain causes damage to the environment, contributes to visibility degradation and negatively impacts public health. However, all compliance related activities under these Parts have been fully concluded, are no longer operable and have been superseded by other state and federally enforceable regulations. As a result, the Department now recommends the repeal of Parts 227-3, 237, and 238.

NEEDS AND BENEFITS

Part 227-3 established a NO emissions budget in NYS for fossil-fuel-fired boilers or indirect heat exchangers with a maximum heat input capacity equal to or greater than 250 million British thermal units per hour (MMBtu/hr), and any electric generating devices with a rated output equal to or greater than 15 megawatts.

Since the promulgation of Part 227-3 in 1999, other federal and state regulations have been adopted that regulate air pollution from large boilers and electric generating units (EGUs). Part 237 established the NO Budget Trading Program which was designed to reduce acid deposition in NYS by limiting emissions of NO from fossil fuel-fired electricity generating units during the non-ozone season. Part 238 established the SO Budget Trading Program, which was designed to reduce acid deposition in NYS by limiting emissions of SOfrom stationary sources defined as SO budget units.

Subsequently, Parts 227-3, 237, and 238 have been replaced by regulations promulgated to achieve compliance with the United States Environmental Protection Agency’s regulation: The Clean Air Interstate Rule (CAIR). The New York CAIR rules consist of Parts 243, 244, and 245 and established NO and SO budgets as part of a multi-state cap-and-trade program. Additionally, CAIR established budgets for emissions of NO and SO from EGUs in NYS. All boilers not regulated by CAIR, equal to or greater than 250 MMBtu/hr and EGUs with a rated output equal to or greater than 15 megawatts, are now regulated under Part 243. After CAIR was adopted in 2007, Parts 227-3, 237, and 238 were rendered inoperable and are currently obsolete. As a result, repeal of Parts 227-3, 237, and 238 will de-clutter and streamline DEC’s regulations, with zero impact on the regulated community and the people of the State of New York.

COSTS

The only costs associated with this rulemaking will be those costs typically associated with rulemaking, such as costs for newspaper publication and the preparation of transcripts.

LOCAL GOVERNMENT MANDATES

There are no local government mandates associated with the repeal of Parts 227-3, 237, and 238.

PAPERWORK

No additional recordkeeping, reporting, or other requirements will be imposed under this rulemaking.

DUPLICATION

This proposal does not duplicate any other federal or state regulations or statutes. Parts 227-3, 237, and 238 are partially duplications of Parts 243, 244, and 245. The repeal of Parts 227-3, 237, and 238 will eliminate this duplication.

ALTERNATIVES

The alternative option to this proposal is to not repeal Parts 227-3, 237, and 238. The rules would remain on the books, but their existence would be purely historical as they have already been phased-out of use and enforcement. However, their existence might create confusion with the regulatory community regarding their use and relevance.

FEDERAL STANDARDS

There are no minimum federal standards exceeded by the repeal of Parts 227-3, 237, and 238 or from the revisions to Part 200.

COMPLIANCE SCHEDULE

There is no compliance schedule required by the repeal of Parts 227-3, 237, and 238.

An assessment of public comment on the 4- or 5-year initial review period is not attached because no comments were received on the issue.

The agency received no public comment.