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BART Part 249 Comments

December 17, 2009

Mr. Scott Griffin
New York State Department of
Environmental Conservation
Division of Air Resources
625 Broadway, Second Floor
Albany, NY 12233-3251

Dear Mr. Griffin:

       RE: BART

The Business Council submits these comments for consideration in the Department’s efforts to finalize the BART rule. It is essential that New York’s rule be fair and not put in-state industry at a competitive disadvantage.

Specifically, we recommend that the Department structure its subject-to-BART determinations in a manner that is consistent with EPA’s BART Guidance Document, and adopt 0.5 deciview level of visibility as its threshold below which sources are determined to not be subject to BART. This is consistent with the criteria used in most states and recommended by EPA.

We recommend that the Department not codify specific dates for the submission of BART analyses and the installation of approved control equipment. Any required BART analysis should be submitted to the Department in a reasonable time-frame following adoption of a final Part 249 rule and any approved emissions reduction methods should be installed as “expeditiously as possible” after approval of the State Implementation Plan (SIP).

The BART rule should also allow for “exemption modeling” and appropriate cost for installation of control equipment.

  1. New York should establish a 0.5 deciview as its reasonable threshold value for contribution to Class 1 area impairment

    We believe that 0.5 deciview is a reasonable threshold value for contribution to Class 1 area visibility impairment. Most states have adopted 0.5 dV as recommended by EPA, because it is recognized that visibility improvement regulations should be focused on addressing impacts from those sources that will result in meaningful visibility improvement. Requiring sources with impacts below 0.5 dV to complete the 5-factor analysis of BART-eligible sources as recommended by the Mid-Atlantic/Northeast Visibility Union (MANE-VU) Regional Planning Organization creates unnecessary costs and burdens for facilities whose emissions are likely to have trivial affects on Class 1 area visibility impairment. We agree with EPA’s direction to the states that an appropriate contribution threshold should be some level present in the Class 1 area, but at a level that is insufficient to affect a human’s perception of a vista.

    EPA’s 0.5 dV is the appropriate threshold to use when assessing whether “Bart-eligible” sources become “subject-to-BART.” This approach is also advantageous for the Department because it avoids the need to invest its time and scarce technical and financial resources on regional modeling that will be required to justify any other de minimis contribution threshold.

    We are also concerned that having a lesser threshold for exemption from BART will leave the Department without a basis for determining whether requirements to install BART emission control systems will or will not provide cost-effective improvements in class 1 visibility as mandated in section 169A(g)(2) of the Clean Air Act. Sources impacted by the BART requirements of the Regional Haze regulations are older manufacturing plants, many of which are struggling to compete in the current global economy. Given the global nature of our member’s businesses and the global market in which they compete, at a minimum the BART-eligible manufacturing facilities need assurances that meaningful environmental benefits will result from their investment in retrofit controls.

    EPA’s 0.5 dV contribution threshold is appropriate and has been subject to both peer and public reviews and was found to represent a de minimis threshold that meets the intent of visibility protection, while avoiding wasting of company and agency resources on unnecessary BART evaluations. The Department’s proposal to impose a 0.1 deciview threshold for “subject to BART” determinations is unjustified and will lead to regulatory burdens that exceed the intent of the promulgated regulation.
  2. The Department should not codify specific dates for the submission of BART analyses and the installation of approved control equipment

    Sources which are found to be BART-eligible under certain criteria and contribute to visibility impairment in Federal Class 1 areas will be required to submit an analysis of potential BART controls to the Department by October 1, 2010. Control equipment or other emission reduction methods approved by the Department as BART must be installed and operating no later than July 1, 2013. We have concerns about this schedule.

    What happens if an affected source submits an analysis of potential BART controls that indicates no controls are necessary but the Department review comes to a different conclusion, and the affected source does not have enough time to implement the BART controls?

    The establishment of October 1, 2010 as the submission date for BART analyses to be completed is unreasonable. The preparation of multi-element BART analyses is a time consuming and costly endeavor. At this time, the criterion to be used for determining applicability of BART within New York has not been established. As part of the Part 249 rulemaking, the Department is seeking comment on what constitutes “contribution to visibility impairment.”  The establishment of what constitutes “contribution to visibility impairment” is fundamental to whether BART analyses and BART controls will be required. Because this determination will not be finalized until the Part 249 rulemaking is completed, at some unspecified date in 2010, affected sources expect to find themselves without ample time to prepare and submit the required BART analyses.

    Specific BART dates are not mandated by the CAA or regulation. The CAA stipulates that sources required to implement BART “shall procure, install, and operate, as expeditiously as practicable [Emphasis Added] (and  maintain thereafter) the best available retrofit technology, as determined by the State … for controlling emissions from such source for the purpose of eliminating or reducing any such impairment.”  “Expeditiously as practicable” is further defined in CAA §169A (g)(4) to mean as expeditiously as practicable but in no event later than five years after the date of approval of a plan…,” i.e the State Implementation Plan (SIP).

    Therefore, we recommend that any BART analysis must be submitted to the Department within a reasonable time frame [6-9 months?] following the completion of a final Part 249 and specify a date for installation and operation of control equipment no less than five years after EPA approval of the New York BART rule.

  3. New York should allow BART eligible sources to do their own visibility impairment modeling

    We recommend that the Department afford New York’s BART-eligible sources the opportunity to demonstrate that their source-specific emissions are not contributing to visibility impairment in Class 1 areas and allow source exemptions when it can be shown that a source does not cause or contribute to significant visibility impairment.
  4. BART Cost of Controls

    The Business Council believes that the Department’s cost range threshold from $5,500/ton to $10,000/ton is too high. Some states have found that the higher thresholds were not cost affective. We recommend that the appropriate cost for installation of additional controls for BART should be set at $5,500.

For the reasons discussed herein, we appeal to the Department to establish the 0.5 deciview as the threshold value for contribution to Class 1 area visibility impairment.  We ask that the Department not codify specific dates for the submission of BART analyses and the installation of approved control equipment. We also request that BART eligible sources be allowed to do their own visibility impairment modeling and limit cost controls.