New York State Adopts a New Clean Air Act Permit Program

Client Advisory

February 19, 2009

The New York State Department of Environmental Conservation (DEC) has adopted regulations revising its New Source Review (NSR) permit program for new and modified major stationary sources located in areas that are not attaining National Ambient Air Quality Standards (NAAQS). The regulations also establish a new Prevention of Significant Deterioration (PSD) permit program for major sources located in areas attaining NAAQS standards. The regulations, promulgated at 6 N.Y.C.R.R. Parts 200, 201 and 231, will take effect on March 5, 2009. Once the U.S. Environmental Protection Agency (EPA) approves the rules for inclusion in the New York State Implementation Plan, major stationary sources will no longer need to apply for a separate PSD permit with EPA Region 2, pursuant to 40 CFR § 52.21.

DEC’s NSR and PSD rules generally conform to EPA’s model New Source Review Reform regulations by providing additional regulatory flexibility so that modifications to existing major stationary sources are less likely to be subject to NSR or PSD review. In particular, the rules allow major sources to (a) create Plantwide Applicability Limitations (PALs), which cap emissions across an entire facility and permit changes within a facility without NSR or PSD review as long as the cap is not exceeded, and (b) use the “actual to projected future actual” emissions test for determining if the emissions increase at a modifying source is significant and thus subject to NSR or PSD. 

There are several differences between DEC’s and EPA’s permit programs. Under the DEC program, for instance, a source that creates a PAL for its facility would have to reduce its PAL emissions cap by 25% in year six (unless a facility owner demonstrates that the installation of state-of-the-art controls on all major emissions sources could not achieve such reduction, in which case a lesser level of reduction would be permitted). DEC requires a source to select any 24-month period over the preceding five years to establish its pre-change actual emissions baseline, while EPA allows a source to select a 24-month period over the preceding ten years. DEC also added a definition of routine maintenance, repair or replacement (RMRR) -- activities that are exempt from NSR/PSD review -- to clarify that RMRR activities are generally undertaken on a prescribed or regular schedule, are limited in scope and are typically paid for out of the operation and maintenance budget of the facility. Finally, DEC did not adopt EPA’s program that permits sulfur dioxide and nitrogen oxide emission reduction credits to offset a facility’s increase in emissions of fine particulate matter (2.5 microns or less), though DEC stated that it will consider this issue for a future rulemaking.

The new regulations are available on the DEC website at

Questions regarding this advisory should be addressed to Christine A. Fazio (212-238-8754,, Stephen L. Kass (212-238-8801, or Christopher Rizzo (212-238-8677,

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© Copyright 2009

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