New York Finalizes Updates to Regulation of Hazardous Air Pollutants
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The New York State Department of Environmental Conservation (NYSDEC) recently finalized amendments to several regulations primarily concerning hazardous air pollutants. NYSDEC repealed and replaced 6 NYCRR Part 212, Process Operations, the primary vehicle thought which NYSDEC regulates such pollutants. Changes have also been made to 6 NYCRR Part 200, General Provisions, to establish consistent terminology between the two provisions. The new regulations became effective on June 14.
NYSDEC explained that the revisions “streamline and update [Part 212] provisions, align those provisions with the Department's permitting regulations, provide more regulatory certainty for the regulated community, and ensure public health and welfare.”
Notable elements of the updated program include:
- Establishing a Toxic- Best Available Control Technology (T-BACT) standard for toxic air contaminants. The program retains an Environmental Rating system to rank hazardous air pollutants based on degree of impact (from a rating of “A” having the greatest impact, to “D” having no measurable or observable effect, or additional atmospheric burden), and would not alter how “best available control technology” or BACT is applied to criteria pollutants. T-BACT would apply to non-criteria contaminants, where “the Department would determine the maximum degree of reduction or emissions limitations for each non-criteria air contaminant achievable for a process on a case-by-case basis.” According to NYSDEC, “[t]his would clarify and facilitate the regulated community’s ability to comply with the regulation.”
- Offering an alternative compliance option for “High Toxicity Air Contaminants” or HTACs by adopting a mass emission rate option for regulated entities. The mass emission rates have been developed based on the agency’s Annual Guideline Concentrations (AGCs) and Short-Term Guideline Concentrations (SGCs) for non-criteria air contaminants.
- Clarifying the interaction between Part 212 and the National Emission Standards for Hazardous Air Pollutants (NESHAPs). Part 212 now incorporates control requirements required in the NESHAPs, but preserves NYSDEC’s “authority to regulate and reduce the emissions of HTACs in situations where the offsite ambient air concentrations exceed AGC/SGC or mass emission limits.” For the emissions of HTACs, a Toxic Impact Analysis (TIA) would be required to demonstrate compliance.
- Creating a stepwise evaluation process to ensure that emissions of contaminants having environmental ratings of A, B, or C, do not result in adverse impacts to public health or the environment. The evaluation process is triggered either (i) when a regulated entity applies for a new or modified permit or registration for a process emission sources or emission point; or (ii) when a renewal for an existing permit or registration is issued. The stepwise process allows for an off-ramp from the Part 212 evaluation whenever a step is satisfied.
- Allowing regulated entities to perform air dispersion modeling analysis in order to demonstrate compliance with either the NAAQS or AGCs/SGCs for emission sources with lesser emission rates.
Beveridge & Diamond helps companies nationwide and in a variety of industrial sectors understand and comply with the requirements of the Clean Air Act. In addition to strategic regulatory counsel, we support permitting and project expansion, enforcement actions and compliance reviews, and litigation matters (including potential criminal prosecutions). For more information, please contact the author, or any member of our Air Practice.