January 26, 1996

Environmental Law - - New York’s Comprehensive New Air - Pollution Rules

New York Law Journal
The New York State Department of Environmental Conservation (DEC) has issued for public comment proposed rules that revise the state's air emission permitting and operating program.1 The Part 201 rules both implement the federal Clean Air Act (CAA) Title V operating permit program for major air emission sources and revise the state's permit program for non-Title V sources. Title V is a program under the 1990 CAA Amendments designed to consolidate all air pollution control requirements into a single permit for each covered source.2 The Title V program is modeled closely after the federal Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program and is designed in part to promote improved reporting and enforcement. The Part 201 rules are expected to become effective soon, with permit applications for some facilities due as soon as Sept. 1.3
The latest revisions to the Part 201 rules reflect a significant effort on the part of DEC to respond to the business community's recommendations and objections regarding New York's efforts to implement its Title V program.4 Some of the major business community comments included recommendations that DEC:
  • improve the efficiency and effectiveness of the program by eliminating unnecessary administrative costs and by focusing the permitting program on environmentally significant emission sources;
  • establish a streamlined program that only applies new federal CAA provisions in instances where they are mandated under the act, and that provides the full range of operational flexibility allowed under the act; and
  • distinguish between federal and state provisions in sections dealing with permit applications, permit contents, and compliance certification.
  • The general provisions of the Title V program and the state's permit program are highlighted below.

Title V Program: Covered Sources

The Title V permit requirements will generally apply to significant sources of air pollution, including industrial facilities that have on-site boilers or handle organic chemicals. In particular, Title V permits will be required for major sources, sources subject to federal new source performance standards in 40 CFR Part 60, and sources of hazardous air pollutants subject to regulation under §112 of the CAA.5 Major sources are defined as sources that have the potential to emit more than 25 tons per year of volatile organic compounds or nitrogen oxides in the New York City metropolitan area; 50 tpy of VOCs or 100 tpy of nitrogen oxides in upstate areas; 10 tpy of any single hazardous air pollutant or 25 tpy of any combination; or 100 tpy of any regulated air pollutant.6
If a source's potential to emit exceeds one of the above major source thresholds, but its actual emissions are less than that threshold, the source may avoid the requirement to obtain a Title V permit through the emission capping provisions.7 Emissions capping allows a facility to commit to a specified emissions limit below the threshold of a major source as an alternative to obtaining a Title V permit.
The Title V permit program will be phased in over a five-year period, with the most significant sources generally being phased in first.8 Covered sources will be required to submit applications as follows:
(1) within the first six months -- electric utilities, cogeneration and
methane gas recovery facilities, and apartment house boilers;
(2) within 12 months -- plastic manufacturing, petroleum bulk stations and terminals, paper and allied products, and medical care facilities;
(3) within 24 months -- municipal waste combustion, commercial printing, electronic, pharmaceutical, photographic and furniture manufacturing operations;
(4) within 36 months -- quarrying, prepared food, baked goods, paint and dye manufacture, and natural gas transmission operations; and
(5) within 48 months -- publishing, rubber tire, foundry and smelting, machinery, auto body, leather, glass, dairy, prepared meat and chemical manufacturing operations.9

Permit Application Requirements
Sources subject to the Title V permit program will have to submit a permit application and periodic compliance reports, which a responsible corporate official must certify as true, accurate and complete.10 The application must contain detailed data about the source and its compliance with all air pollution control requirements.11 In particular, the permit application must identify and describe all emission units and describe all emissions of regulated air pollutants from these emission units, with sufficient detail to establish the applicability of federal requirements.12
The permit terms will then cover these requirements, including emission limits and standards, and monitoring requirements, and will also include new recordkeeping, reporting and inspection/entry provisions.13 Sources not complying with all air pollution control requirements at the time of permit application will have to submit an enforceable schedule of compliance that will become part of the permit and will also have to submit certified semiannual progress reports.14
Title V permits will generally be valid for five years.15 Fees based on the amount of pollutants emitted will be assessed.16 The permit approval process will require public participation, involving disclosure of non-confidential business information, public comments and an opportunity for a public hearing, neighboring state review and EPA review.17

Operational Flexibility Provisions
The Title V program contains a number of features designed to promote "operational flexibility" by allowing changes in operations that affect air emissions without requiring permit modifications.18 However, it is important to note that to use many of these operational flexibility provisions, applicants must anticipate their future needs and explicitly include operational flexibility provisions in the initial Title V permit at the time of the application. Two major operational flexibility provisions are as follows:
Alternate operating scenarios: The Title V permit applicant can request that a range of operating conditions be incorporated in the permit to allow flexible operation under more than one operating scenario. These alternative operating scenarios may include alternate maximum permissible operating conditions, and alternate aggregation of individual emission points into "emission units" for the purpose of establishing emission limits. The facility can change from one operating scenario to another without first notifying DEC. The owner or operator must, however, keep a log of the scenario changes at the facility, and make reports to DEC.
Emissions trading: Owners and operators of Title V facilities can participate in any approved inter-facility emissions trading, economic incentive or marketable permit program without specific permit conditions as long as emissions changes do not exceed the allowable emissions under the facility's permit. Notice of the trades must be provided to DEC seven days before the trade. Intra-facility emissions trading under a facility-wide emissions cap is also allowed if the permit includes the applicable provisions for this program.
The proposed Part 201 rules outline procedures to be followed to modify a Title V permit after a permit is granted.19 Permit modifications fall into three categories. First, administrative permit amendments cover changes such as correction of typographical errors, changes in names and addresses, changes in ownership, changes in monitoring or reporting frequencies and other similarly minor matters. DEC may incorporate the changes without providing notice to the public or neighboring states and provide a copy of the revised permit to the U.S. Environmental Protection Agency Administrator (EPA).
Second, minor permit modifications are those that do not involve significant changes in monitoring, reporting or recordkeeping requirements, do not require a case-by-case determination of a federal emissions limitation or other federal standard, do not seek to change an emissions cap accepted to avoid an otherwise applicable requirement and are not considered modifications under the new source review program.
These changes can be made by an applicant before DEC approval, but not sooner than 25 days after DEC receives the completed application. DEC must provide notice of the completed application to EPA and the neighboring states. DEC must decide on these permit changes within 45 days after the completed application is received.
Finally, significant permit modifications are those that do not fall into the first two categories, including significant changes in existing monitoring requirements, relaxation of reporting or recordkeeping requirements and the addition of federally enforceable emissions caps designed to limit the potential to emit of an emission unit. An application for significant permit modifications will be subject to the same process for approval as a new application.
The minor facility registration program applies to certain small emissions sources that do not fall under either the Title V program or the state facility permit program and also are not considered exempt or trivial under subpart 201-3 (as described below).20 Examples of such facilities include gas stations and facilities that emit hazardous air pollutants and are eligible to participate in the "capped by rule" alternative to the Title V program.21 Registration certificates are valid for the life of the registered emission source.
Air pollution sources that are not exempt or trivial under subpart 201-3, registered under the minor facility registration program or subject to the Title V permit program must obtain a state facility permit.22 Examples of such facilities include sources participating in the §201-7.3 emission capping alternative to the Title V program and sources subject to state permitting provisions only, such as state provisions governing state-regulated toxics.23 State facility permits authorize both construction and operation of covered emission sources, and no person may construct a covered emission source without first obtaining a permit. DEC may issue state facility permits for an indefinite period.
The proposed Part 201 rules contain a number of exemptions, classified either as "exempt activities" or "trivial activities." An owner or operator of any of the listed exempt or trivial activities is exempt from both the minor facility registration and state facility permit programs.24 With respect to the Title V permit program, exempt activities must be listed in the permit application but are not subject to the permitting requirements unless the activities are otherwise subject to an applicable requirement under Part 201.25
Trivial activities are also exempt from permitting requirements and, in addition, do not need to be listed in the permit application.26 However, both exempt and trivial activities must be included in emissions calculations to determine if a source is subject to Title V permitting or other CAA requirements.27

SEQRA Permit Review
Issuance of Title V permits is potentially subject to the New York State Environmental Quality Review Act,28 which requires environmental review of, among other things, issuance of permits by state and local agencies. DEC's regulations under SEQRA contain an exemption for "license, lease and permit renewals, or transfer of ownership thereof, where there will be no material change in permit conditions or the scope of permitted activities."29 However, any Title V permits that allow facilities to expand significantly the scope of their activities may be subject to SEQRA review.
Where an action is subject to SEQRA, a lead agency must first be designated; for Title V permits, that agency would ordinarily be DEC. The lead agency would then prepare an environmental assessment form and based on that, determine whether the proposed action might have such significant environmental impacts that a full environmental impact statement is required.30
Preparation of an EIS is a lengthy and expensive process; it is unlikely that many Title V permits will require this measure. However, except for simple renewals and other exempt actions, failure to undertake the preliminary steps of lead agency designation and determination of positive or negative significance could expose a Title V permit to legal challenge by an environmental or neighborhood group that is unhappy with the underlying facility.

Depending on the extent of a covered facility's compliance with existing air pollution control requirements, the Part 201 permit program could require substantial capital expenditures and cause a reduction in the facility's operational flexibility. On the other hand, the reproposed permit program contains significant new provisions for operational flexibility, enabling both reduced compliance costs and reduced administrative burden. Care is therefore warranted in determining if a permit is required for a particular facility and, if it is, in handling the permit application process.
If a permit is likely to be required, a careful analysis of future business needs and resulting facility operations is necessary as a first step, in order to maximize operational flexibility and compliance cost savings. One initial question should be whether the Title V permit program may be avoided altogether through the emission capping provisions. A decision to go with emission capping might involve a trade-off of reduced flexibility to increase emissions in exchange for reduced compliance costs.
If a Title V permit will be required, the first order of business should be to begin assessing the facility's compliance with existing air pollution control requirements, since the permit application must contain detailed data on compliance status. Another important question to begin addressing early on is whether to include operational flexibility provisions in the permit application, such as alternative operating scenarios or intra-facility emission units trading.
It is also worth considering filing multiple operating permits for a facility, so that when any one of the permits is reopened by DEC, the others are not subject to the review process as well. Finally, any permit submissions involving confidential business information, such as proprietary plant processes, should be placed in a separate submission volume marked "confidential."


(1) Reproposed 6 NYCRR Part 201, DEC, Division of Air Resources, Nov. 29, 1995.
(2) CAA Title V, §§501-507, 42 USC §§7661-7661f. A federal debate involving Congress and EPA regarding the Title V rules is still going on, and DEC would likely incorporate any changes.
(3) "Implementation Timetable," New York Business Environment, Dec. 13, 1995, at 4.
(4) See in particular the public comments included in the letter and attachments re Proposed Amendments to 6 NYCRR Parts 200, 201, 231 and 621, from Kenneth J. Pokalsky, director of environmental and regulatory programs. The Business Council of New York State Inc., to Maris Tirums, DEC Hearing Officer (Sept. 5, 1995). See also Kenneth J. Pokalsky, "DEC Targets 1996 for New Title V Air Rules," New York Business Environment, Dec. 13, 1995, at 1.
(5) Reproposed 6 NYCRR §201-6.1(a).
(6) Reproposed 6 NYCRR §§201-6.1(a), 201-2(b)(20).
(7) See Reproposed 6 NYCRR §201-7.3 (establishing "emission capping by rule" for sources whose actual emissions are less than half a major source threshold); Reproposed 6 NYCRR §201-7.2 (establishing "capped sources and synthetic minor permits" for sources whose actual emissions are 50 to 100 percent of a major source threshold).
(8) Reproposed 6 NYCRR §201-6.2.
(9) Reproposed 6 NYCRR Part 201, App. B.
(10) Reproposed 6 NYCRR §§201-6.3(a), 201-6.5(e).
(11) Reproposed 6 NYCRR §201-6.3(d)(3).
(12) Id. "Emission units" are defined as "any part of a stationary source that emits or has the potential to emit any air pollutant," and they "may be comprised of a single piece of process equipment or groups of process equipment." Reproposed 6 NYCRR §201-2(b)(13).
(13) Reproposed 6 NYCRR §§201-6.5(a)-(c).
(14) Reproposed 6 NYCRR §201-6.5(d).
(15) Reproposed 6 NYCRR §201-6.5(h).
(16) Reproposed 6 NYCRR §201-6.5(a)(7).
(17) Reproposed 6 NYCRR §§201-1.6, 201-6.4.
(18) Reproposed 6 NYCRR §201-6.5(f).
(19) Reproposed NYCRR §201-6.7.
(20) Reproposed 6 NYCRR §201-4.1.
(21) Emission capping by rule provisions are found in Reproposed 6 NYCRR §201-7.3, and described earlier in this article.
(22) Reproposed 6 NYCRR §201-5.1.
(23) 6 NYCRR Part 212.
(24) Reproposed 6 NYCRR §201-3.1(a).
(25) Reproposed 6 NYCRR §201-3.1(b).
(26) Id.
(27) Reproposed 6 NYCRR §201-3.1(c). These other CAA requirements include, among others, new source review pursuant to 6 NYCRR Subpart 231-2, and prevention of significant deterioration as incorporated by reference in 6 NYCRR Part 200.
(28) N.Y. Envir. Cons. Law. Art. 8.
(29) 6 NYCRR §617.5(26) (1995).
(30) See, generally, Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York (Matthew Bender, 1990 & 1995 Supp.).

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