Proposed Part 212 Process Operations/NYSCC Comments
February 17, 2015
New York State Department of Environmental Conservation
Division of Air Resources
Albany, New York 12233-3259
RE: Proposed Part 212 Process Operations/NYSCC Comments
Dear Mr. DeSantis:
The Business Council of New York State, Inc.,(“The Business Council”) on behalf of its membership provides the following comments regarding Proposed Changes to 6 NYCRR Part 212 (“Part 212”) Process Operations. The Business Council supports the Department of Environmental Conservation (“Department”) intent to streamline, update, and provide certainty to the regulated community while ensuring public health and welfare.
The Business Council is the leading business organization in New York State, representing the interests of large and small firms throughout the state. Its membership is made up of thousands of member companies, as well as local chambers of commerce and professional and trade associations. Though 72 percent of its members are small businesses, it also represents some of the largest corporations in the world. All told, its members employ more than 1.2 million New Yorkers. The primary function of The Business Council is to serve as an advocate for employers in the State political and policy‐making arena, working for a healthier business climate, economic growth, and jobs.
In the past few years significant changes have occurred in the state’s production base—particularly in areas of upstate New York, which has been in a state of economic and demographic transformation for decades. Mirroring a nationwide trend, New York State has been losing manufacturing jobs over the past several decades. However, the remaining manufacturing base contains some bright spots that demonstrate the potential for an economic resurgence in New York. It is of the utmost importance that regulations that may impact this sector are done in a manner that provides certainty and consistency for the regulated community.
Due to the complexity and the potential effects of the amended Part 212, The Business Council appreciates the significant time and effort the Department has committed to communicate with the regulated community regarding the proposed amendments. The Business Council and its membership remain committed to a continual discussion of Part 212 and its supporting documents to ensure a regulation that delivers greater certainty and a streamlined process.
Section 212-1.3 establishes the process for the determination of Environmental Rating. The “Environmental Rating” is critical to the control requirements that could be imposed by Subpart 212-2. The currently proposed Environmental Rating process does not provide the applicant with the needed certainty, because pursuant to criteria the Department assigns the Environmental Rating during the permit review process. So the regulated community does not have certainty until the Department reviews the application. The Department must establish a mechanism by which the regulated community can arrive at reasonably reliable Environmental Ratings in order to properly plan for a new project or permit renewal.
The definitions do not explicitly identify Highly Toxic Air Contaminants as having an Environmental rating of "A” or Moderately Toxic Air Contaminants as having an Environmental Rating of "B", and Low Toxic Air Contaminants as having an Environmental rating of "C". There is a real potential that a chemical being emitted from a source could be assigned the wrong Environmental Rating and therefore be subject to a more stringent "Degree of Air Cleaning".
The Business Council recommends reformatting Table 2 such that the “PB Trigger Applicable” column is simply the “PB Trigger (lbs/year)”. In this column would either be the PB Trigger quantity (10 times the PB “Mass Emission Limit”) or “NA” for Not Applicable. This will be simpler, clearer and will simplify the definition of “PB Trigger” earlier in the rule.
Furthermore the High Toxicity Air Contaminant List should be amended to include common chemicals used by industry which meet the criteria found in paragraph (9) i.e. Fluorine, Chlorine, and Bromine.
The Business Council has identified the following chemical specific issues contained in 212-2.2 Table 2:
- Metal Compounds categories. The Department’s stated intent is to include the “ground state” (zero valent) parent metal within the metal compound category. Furthermore, these categories would be quantified based on the “parent metal” content only. For clarity and consistency, this should be stated in the rule, perhaps as a footnote to the table.
- “Lead compounds” is listed as a PBT, yet Lead is also a Criteria contaminant. For clarity and consistency, the Department needs to address how the “split personality” of Lead will be managed in this rule.
- Diisocyanate compounds. For clarity and consistency, the Department needs a list of specific compounds/CAS numbers that are included in this category. Consider adopting the list from US EPA EPCRA TRI regulations which is well-established and already familiar to the regulated community.
- The Criteria for Environmental Ratings (Table 1) predates the definitions in paragraphs (9), (13) and (14) and may cause inconsistencies when applied to sources. For example historically Hydrogen Fluoride has had an "A" Environmental Rating and would now meet the definition of moderately toxic ((LD 50 (dermal) is greater than 200 mg/kg, the LC 50 (inhalation) is greater than 200 ppm (401 mg/kg CDC 2011) and the LD 50 (oral) was not found)).
The Department has proposed numerous measures that should assist with ensuring facilities can obtain compliance like allowing process sources subject to (and complying with) a NESHAP standard being deemed to satisfy the requirements of Part 212. But the proposed NESHAP exemption is conditional on the owner/operator providing air dispersion modeling results for PBTs regulated by the NESHAP, showing maximum off-site impacts are below the NYS ambient guideline concentrations. This exemption qualifier could prove costly, without merit, and potentially unattainable.
The Department has proposed that all permits are subject to a ten year renewal cycle. The proposed ten year cycle is a significant improvement to the five year renewal cycle. However, a minor, isolated permit modification would “trigger” a new Part 212 applicability for the entire site. The “triggering” of a new Part 212 review will require a substantial amount of work from the owner/operator. The currently proposed triggers will discourage additional process and facilities improvements. The Department should consider a modification to the “triggering” mechanism. As drafted, facility operators who take independent steps to implement pollution prevention measures and reduce emissions will be subject to a new Part 212 review.
The Department in Table 4 of the Proposed 212 rule includes mass criteria for determining the degree of air cleaning. This approach is impossible to comply with when concentrations are very low (low concentration in large volumes of air). The Department must include a lower limit of practicality when determining the degree of air cleaning (eg. < 1 ppmwt at outlet).
The Department should examine if Part 235 (Consumer Products) should be exemption from Part 212. Part 235 is not one of the VOC RACT regulations listed under the exemptions from Part 212. In contrast to the title of this regulation, it applies to more than “residential” consumer uses of the regulated products. Industrial and institutional uses of “consumer products” are also regulated by Part 235.
An exemption should be included in 212 for small gasoline dispensing sites. Gasoline dispensing sites (and transport vehicles) subject to Part 230 are exempted from Part 212 but those with tanks that are < 250 gallons and/or with throughput < 120,000 gallons per year in Upstate NY that are not “subject” to the requirements of Part 230 are subject to Part 212.
Additionally, The Business Council seeks a clarification on the following matter. Due to the exception in 221-1.4 (j), process operations subject to Part 228 will be exempt from all provisions of Part 212 except those related to VOC emissions that are given an “A” rating.
- Can a source that has a Title V or state permit that sets limits on “actual” emissions of “A” rated contaminants, comply with the Part 212 provisions by conducting simple air screen dispersion modeling to demonstrate that the maximum offsite air concentration is less than an applicable AGC/SGC?
- Will synthetic minors covered by a MACT source category be eligible for the NESHAP/MACT off ramp?
There is a concern about the suggestion potentially requiring modeling of NAAQS contaminants for certain permittees. Process sources generally do not directly emit primary NAAQS pollutants which could be modeled relatively simply. On the other hand, VOCs are a common process source pollutant but an air quality model evaluation of their potential effect on the ozone NAAQS limit is a much more involved effort. The regulation should be clarified to limit any potential modeling to directly emitted NAAQS pollutants.
On behalf of The Business Council, thank you for reviewing the comments on the proposed amendments to Part 212. Significant time and effort has gone into the proposed amendments to Part 212, and they are clearly close to obtaining their intent to streamline, update, and provide certainty to the regulated community while ensuring public health and welfare, but the proposal needs to consider ways to provide greater certainty to the regulated community. Please feel free to contact me with any questions
Director of Government Affairs
The Business Council of New York State