RACT analysis will be submitted to the Department for review and

approval. The Department does not anticipate that the proposed rule revisions would adversely affect jobs or employment opportunities in the

State.

COSTS:

The proposed NOx RACT revisions to Part 220 will apply to major facilities only. Major facilities are those that have a potential to emit NOx

emissions that exceed 100 tons/yr (upstate) and 25 tons/yr (downstate).

The proposal does not identify specific RACT emission limits for these

facilities. Affected facilities will be required to evaluate control strategies

based upon their economic and technical feasibility, and submit a RACT

analysis for review and approval by the Department. A RACT compliance

standard will be established for each individual source based upon the

control options that are reasonably available for that source. The Department is proposing these revisions to require NOx controls for portland cement plants and glass manufacturing plants consistent with the guidelines

developed by the Ozone Transport Commission (OTC) and reported in the

February 28, 2007 OTC Technical Support Document (TSD) entitled

‘Identification and Evaluation of Candidate Control Measures'. The OTC

TSD was prepared by MACTEC Federal Programs, Inc. (MACTEC). The

costs associated with establishing a RACT standard include the cost of

identifying and evaluating the various control options (performing a

RACT analysis), preparing a report, and implementing the selected RACT

compliance standard. The determination of the facility specific RACT

standard will be determined consistent with the Department's guidance

document, Air Guide 20 (AG-20). In AG-20 the Department established

the cost that defines the upper economic limit of implementing NOx

RACT, currently in the range of $5,000 to $5,500 per ton reduced.

The costs associated with the proposed revisions at a particular facility

will be greatly influenced by site specific factors and are expected to be

similar to the cost estimates developed by the OTC. The OTC cost

estimates are based upon the application of selective non-catalytic reduction technology for portland cement plants, and the application of oxy-fuel

firing technology for glass manufacturing facilities. Below are the cost effectiveness estimates for the portland cement and glass manufacturing

NOx control strategies that were developed by the OTC and reported in

the OTC TSD:

Portland Cement Plants: $1,000 - $2,500 per ton reduced

Glass Manufacturing Plants: $1,300 - $2,600 per ton reduced

Based on the OTC cost effectiveness estimates and the projected emission reductions, the Department estimates the total cost to industry as

follows:

Portland Cement Plants: $3,100,000 - $7,750,000

Glass Manufacturing Plants: $390,000 - $780,000

Affected facilities that currently do not utilize CEMS to monitor their

NOx emissions will experience additional costs associated with the

purchase, installation, and operation of a NOx CEMS. These costs are

expected to vary from facility to facility and are not part of the RACT

analysis.

MINIMIZING ADVERSE IMPACT:

The proposed rulemaking revisions as described above are not expected

to create significant adverse impacts on existing rural areas. The proposed

revisions are consistent with the NOx RACT requirements that have been

or will be adopted across all of the OTC states. Therefore, New York will

be no more stringent than the other OTC states and will not create an unfair

disadvantage to businesses in NYS.

RURAL AREA PARTICIPATION:

Rural areas will be given opportunities to participate in the rule making

process. The proposed revisions will undergo a publication of general notice in both the ‘‘Environmental Notice Bulletin’’ and ‘‘State Register’’.

The Department will also hold public hearings, during the notice period,

to allow those interested parties and facilities located in rural areas a

chance to comment on the proposed regulation.

Job Impact Statement

NATURE OF IMPACT:

The New York State Department of Environmental Conservation

(Department) proposes to revise 6 NYCRR Parts 200 and 220. The

proposed rulemaking will apply statewide. Two new definitions will be

added to Part 200; continuous emissions monitoring system certification

protocol, and continuous emissions monitoring system plan. The current

Part 220 will be divided into two sub-parts: 220-1 for portland cement

plants; and 220-2 for glass manufacturing plants. In addition to other

requirements, the existing regulation imposes Reasonably Available

Control Technology (RACT) requirements on emissions of oxides of

nitrogen (NOx) from portland cement kilns. The existing NOx RACT

requirements for portland cement kilns have been in place since 1995. The

Department is proposing to revise Part 220 to require updated NOx RACT

for cement kilns at portland cement plants (Subpart 220-1), and to require

NOx RACT for glass furnaces at glass plants (Subpart 220-2). These

RACT requirements are a component of New York’s State Implementation Plan (SIP) for attainment of the 1997 8-hour ozone national ambient

air quality standard (NAAQS). On March 12, 2008, the United States

Environmental Protection Agency (EPA) promulgated a stricter ozone

NAAQS1

. On March 12, 2009, the Department after analyzing measured

ozone data for the years 2006 – 2008 recommended that the New York

City, Poughkeepsie-Newburgh-Kingston, Albany-Schenectady-TroyGlens Falls, Rochester, Buffalo-Niagara Falls and Jamestown metropolitan areas be designated nonattainment for the 2008 ozone NAAQS.

The revisions to Part 220 are among a series of sustained actions undertaken by New York State (NYS), in conjunction with EPA and other

States, to control emissions of ozone precursors, including nitrogen oxides

and VOCs, so that NYS and other States in the Ozone Transport Region

(OTR) may attain the ozone NAAQS. In particular, the revisions to Part

220 will be similar to the NOx RACT requirements for cement and glass

plants in other states throughout the OTR.

For both cement and glass manufacturing plants the Department is taking a RACT approach that requires a facility specific analysis. The plant

owner or operator will be required to perform a facility specific RACT

analysis that determines RACT for emissions of NOx, establishes a RACT

emission limit(s), identifies the procedures and monitoring equipment to

be used to demonstrate compliance with the RACT emission limit(s), and

includes a schedule for equipment installation. The RACT analysis will be

submitted to the Department for review and approval. The Department

does not anticipate that the proposed rule revisions would adversely affect

jobs or employment opportunities in the State.

CATEGORIES AND NUMBERS OF JOBS OR EMPLOYMENT OPPORTUNITIES AFFECTED:

Due to the nature of the proposed amendments to Part 220 no measurable effect on the categories or numbers of jobs, or employment opportunities in any specific category is anticipated. There will be some new jobs or

employment opportunities created for consultants for RACT and permit

reviews. There will also be employment opportunities created for monitoring and compliance testing. Finally, there will be employment opportunities created for air pollution control companies to install emission

control technologies that may be required for facilities to meet the

established NOx RACT emission limit(s).

REGIONS OF ADVERSE IMPACT:

There are no regions of the State where the proposed revisions would

have a disproportionate adverse impact on jobs or employment

opportunities. Through the proposed revisions, the Department is requiring facilities to re-examine their existing NOx RACT requirements by

conducting an updated RACT analysis.

MINIMIZING ADVERSE IMPACT:

The proposed rulemaking revisions as described above are not expected

to create significant adverse impacts on existing jobs or the promotion of

the development of any significant new employment opportunities. The

proposed revisions are consistent with the NOx RACT requirements that

have been or will be adopted across all of the Ozone Transport Commission (OTC) states. Therefore, New York will be no more stringent than the

other OTC states and will not create an unfair disadvantage to businesses

in NYS.

SELF-EMPLOYMENT OPPORTUNITIES:

The types of facilities affected by these regulatory changes are larger

operations than what would typically be found in a self-employment

situation. There may be an opportunity for self-employed consultants to

advise facilities on how best to comply with the revised requirements or

conduct emissions monitoring and/or testing at an affected facility. The

proposed revisions are not expected to have any measurable negative

impact on opportunities for self-employment.

1 On July 18, 1997, EPA promulgated primary and secondary ozone

NAAQS of 0.08 parts per million (ppm) (the 8-hour ozone NAAQS). See

National Ambient Air Quality Rule for Ozone, 62 Fed. Reg. 38,856 (July

18, 1997) (codified at 40 CFR section 50.10). The standard is attained

when the 3-year average of the annual fourth-highest daily maximum

8-hour average ambient air quality ozone concentrations is less that or

equal to 0.08 ppm. When the standard rounding conventions are used, this

standard is measured as 0.084 ppm.

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

To Include the Adoption of VOC Emission Limits and Product

Content Limits for Commercial and Industrial Adhesives and

Sealants

I.D. No. ENV-51-09-00010-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Rule Making Activities NYS Register/December 23, 2009

24
Proposed Action: Amendment of Parts 200 and 228 of Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, sections 1-0101,

1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0305, 71-2103

and 71-2105

Subject: To include the adoption of VOC emission limits and product

content limits for commercial and industrial adhesives and sealants.

Purpose: More stringent emission and product content limits for adhesives

and sealants are necessary to meet the 2008 ozone NAAQS.

Public hearing(s) will be held at: 2:00 p.m., Feb. 8, 2010 at Department

of Environmental Conservation, Region 8, Office Conference Rm., 6274

E. Avon-Lima Rd. (Rtes. 5 and 20), Avon, NY; 2:00 p.m., Feb. 9, 2010 at

Department of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129-B, Albany, NY; 2:00 p.m., Feb. 10, 2010 at Department

of Environmental Conservation Annex, Region 2, 11-15 47th Ave., Hearing Rm. 106, Long Island City, NY

Interpreter Service: Interpreter services will be made available to hearing

impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request

must be addressed to the agency representative designated in the paragraph

below.

Accessibility: All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State

website:www.dec.ny.gov): 6 NYCRR Part 228 is being renumbered as

Subpart 228-1. Internal references in the existing Part are being revised to

reflect this renumbering. 6 NYCRR Part 200.9 is being amended to include

documents incorporated by reference in new Subpart 228-2 and to reflect

the renumbering of existing Part 228.

The addition of 6 NYCRR Subpart 228-2, Commercial and Industrial

Adhesives, Sealants and Primers, and its associated references in Part 200,

General Provisions, apply to any person who sells, supplies, offers for

sale, or manufactures commercial or industrial adhesives, sealants and

primers on or after January 1, 2010 for use in the State of New York.

Subpart 228-2 does not apply to: any commercial or industrial adhesive,

sealant or primer manufactured in New York State for shipment and use

outside of New York State, or units of any adhesive, sealant or primer

product, less packaging, which weigh less than one pound and consist of

less than 16 ounces.

The revisions are based on the Ozone Transport Commission (OTC)

2006 model rule for commercial and industrial adhesives and sealants,

which, in turn, is based on the reasonably available control technology

(RACT) and best available retrofit control technology (BARCT) determination by the California Air Resources Board (CARB) developed in 1998.

In addition, the proposed rule incorporates EPA recommendations

contained in its Control Technique Guidelines (CTG) document released

in 2008 entitled, ‘‘Control Technique Guidelines for Miscellaneous

Industrial Adhesives’’ (EPA 453/R-08-005), including adhesive application methods, and work practices for adhesive-related handling activities

and cleaning materials. The proposed revisions have the following

requirements:

A. Regulates the application of commercial and industrial adhesives,

sealants, adhesive primers and sealant primers by providing options for

appliers to either to use a product with a VOC content equal to or less than

a specified limit or to use add-on controls;

B. Limits the VOC content of aerosol adhesives to 25 percent by weight;

C. Sets forth work practices for mixing and handling operations for

adhesives, thinners and adhesive-related waste materials;

D. Establishes a VOC limit for surface preparation solvents;

E. Establishes an alternative add-on control system requirement of at

least 85 percent overall control efficiency (capture and destruction efficiency), by weight;

F. Requires that VOC containing materials must be stored or disposed

of in closed containers;

G. Prohibits the sale of any commercial or industrial adhesive, sealant,

adhesive primer or sealant primer which exceeds the VOC content limits

listed in the rule;

H. Establishes that manufacturers must label containers with the

maximum VOC content as supplied, as well as the maximum VOC content

on an as-applied basis when used in accordance with the manufacturer's

recommendations regarding thinning, reducing, or mixing with any other

VOC containing material; and

I. Prohibits the specification of any commercial or industrial adhesive,

sealant or primer that violates the provisions of the rule.

Several adhesive and sealant applications and products are exempt from

this model rule: tire repair, testing and evaluation associated with research

and development, solvent welding operations for medical devices, plaque

laminating operations, products or processes subject to other New York

State rules, low-VOC products (less than 20 g/l), and adhesives subject to

the New York State rules based on the OTC 2001 consumer products

model rule. Additionally, the model rule provides an exemption for adhesive application operations at emissions sources that use less than 55 gallons per calendar year of non-complying adhesives and for emissions

sources that emit not more than 200 pounds of VOCs per year from

adhesives operations.

Until alternative low VOC products become available, a phased-in

seasonal implementation shall be provided for the use and sale of

adhesives, sealants, and primers for use with single-ply roofing membranes

and permissible time periods for the manufacture, sale and distribution of

the existing adhesives, sealants, and primers.

Text of proposed rule and any required statements and analyses may be

obtained from: Ralph Itzo, NYSDEC, Division of Air Resources, 625

Broadway, Albany, NY 12233-3254, (518) 402-8403, email:

228scp@gw.dec.state.ny.us

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: February 17, 2010.

Additional matter required by statute: Pursuant to Article 8 of the State

Environmental Quality Review Act, a Short Environmental Assessment

Form, a Negative Declaration and a Coastal Assessment Form have been

completed and are on file. This rule must be approved by the Environmental Board.

Summary of Regulatory Impact Statement

On April 30, 2004, the United States Environmental Protection Agency

(EPA) published a final rule designating and classifying all nonattainment

areas for the 1997 8-hour ozone national ambient air quality standard (8-

hour ozone NAAQS). For the various nonattainment areas in New York

State, the Department of Environmental Conservation (Department) is

required to submit revisions to the State Implementation Plan (SIP) that

show that New York State will attain the 8-hour ozone NAAQS by the applicable date, and that the state is making reasonable progress toward this

goal. These SIP revisions must include the establishment of new or revised

control requirements for emissions of the precursors of ground-level ozone

pollution: nitrogen oxides (NOx) and volatile organic compounds (VOCs).

The Department has listed this proposed regulatory revision for commercial and industrial adhesives, sealants and primers as a measure that

would help progress toward attainment. The adoption of the proposed

Subpart 228-2 amendment, Commercial and Industrial Adhesives and

Sealants, and attendant revisions to Part 200, General Provisions, marks

the latest action in a sustained series of actions undertaken by New York

State, in concert with EPA and other States, in an effort to control emissions of ozone precursors, NOx and VOCs, so that the New York State

may attain the ozone NAAQS.

Implementation of the proposed Subpart 228-2 amendment and attendant revisions to Part 200 will, in concert with counterpart programs

established by other States and Federal Implementation Plans (FIP)s

imposed by EPA, lower levels of ozone in New York State and will

decrease adverse public health and welfare effects. In enacting the Title I

ozone control requirements of the 1990 CAA amendments, Congress

recognized the hazards of ozone pollution and mandated that States, especially those in the Northeast U.S. Ozone Transport Region (OTR), implement stringent regulatory programs in order to meet the ozone NAAQS.

The cost of the proposed regulation will affect any person who sells,

manufacturers or buys applicable commercial or industrial adhesives, sealants and primers in New York State. The cost per ton of VOC reduced and

cost increase per unit will vary, depending on the specific adhesive category and compliance strategy chosen. It should be noted that a number of

products already comply with the OTC model rule for VOC content limits,

and would not require reformulation. An EPA analysis of the impacts of

implementing the recommended levels of controls in its Control Technology Guidelines (CTG) for Miscellaneous Industrial Adhesives, based on

CARB developed cost estimates, assumes that all facilities will choose the

low-VOC adhesive materials compliance alternate. With the belief that

low-VOC adhesives that can meet the recommended CTG control levels

are already available at a cost that is not significantly greater than the cost

of adhesives with higher VOC contents, the cost effectiveness is estimated

to be relatively low, in a range of $265 to $2,320 per ton of VOC emission

reduction. EPA also anticipates that work practice recommendations will

result in a net cost savings, but these savings could not be accurately

estimated.

There are no direct costs to state and local governments associated with

this proposed regulation. However, state and local governments, like other

consumers, will need to pay the increased prices for consumer products

that are manufactured using commercial and industrial adhesives, sealants

and primers resulting from compliance with the new, more restrictive

VOC content limits. No additional record keeping, reporting, or other

requirements will be imposed on local governments under the rulemaking.

The authority and responsibility for implementing and administering the

proposed Subpart 228-2 resides solely with the Department. Requirements

NYS Register/December 23, 2009 Rule Making Activities

25
for record keeping, reporting, etc. are applicable only to the person(s) who

manufactures, sells, supplies, or offers for sale industrial and commercial

adhesives, sealants and primers. This is not a mandate on local

governments. It applies to any entity that owns or operates a subject

source. The OTC workgroup assigned to the adhesives and sealants area source

rule development evaluated four alternatives in its model rule. These are:

1. No action taken.

2. VOC content limits by product category.

3. Add-on air pollution control equipment.

4. Work practices to reduce VOC emissions.

Alternatives 2, 3 and 4 are proposed in this rulemaking because these

alternatives will allow industrial and commercial users of the regulated

adhesives and sealants greater flexibility in reducing VOC emissions. Facilities presently operating control equipment in their operations can

continue to use this alternate for compliance with the proposed rules. At

the same time, to achieve compliance, affected facilities can also pursue

the use of reduced VOC or low-VOC adhesives and sealants, add-on

control equipment, as well as adoption of prescribed work practices. In addition, the proposed rule incorporates EPA recommendations contained in

its Control Technique Guidelines (CTG) document released in 2008

entitled, ‘‘Control Technique Guidelines for Miscellaneous Industrial

Adhesives’’ (EPA 453/R-08-005), including adhesive application methods, and work practices for adhesive-related handling activities and cleaning materials. Facilities using less than 55 gallons of noncompliant commercial or industrial adhesives, sealants, primers and cleanup solvents in a

12-month period are exempt from the product VOC content requirements

of the proposed rule.

The compliance schedule for this rulemaking specifies that on and after

January 1, 2010, no person shall sell, supply or offer for sale any commercial or industrial adhesive, sealant, adhesive primer or sealant primer

manufactured on or after January 1, 2010, or, on or after January 1, 2010,

manufacture for sale in the State of New York any commercial or

industrial adhesive, sealant, adhesive primer or sealant primer unless such

adhesive, sealant, adhesive primer or sealant primer complies with the applicable VOC content limits specified in the rule.

To assure the continuation of the achievement of quality construction in

the State of New York until alternative low VOC products become available, a phased-in seasonal implementation shall be provided for the use

and sale of adhesives, sealants, and primers for use with single-ply roofing

membranes and permissible time periods for the manufacture, sale and

distribution of the existing adhesives, sealants, and primers.

Regulatory Flexibility Analysis

1. Effects on Small Businesses and Local Governments. No small businesses or local governments will be directly affected by the proposed

amendment to 6 NYCRR Part 228, Subpart 228-2, Commercial and

Industrial Adhesives, Sealants and Primers, and attendant revisions to 6

NYCRR Part 200, General Provisions. Small businesses that manufacture

affected products must comply with the VOC content limits, labeling and

reporting requirements of Subpart 228-2. Since this can represent a small

portion of their total business and the burden of reformulation falls on the

major manufacturers, the impact on small businesses will be minimal, if

any. For any cases where changes are made to products through reformulation, there is the possibility that these same small businesses would be

able to provide the required alternative products. After January 1, 2010,

small businesses that sell commercial or industrial adhesives, sealants and

primers shall only offer for sale, complying products made after January

1, 2010. Small businesses and local governments that purchase affected

products will be affected by the increased prices of affected commercial

and industrial adhesives, sealants and primers resulting from the Subpart

228-2 amendment.

2. Compliance Requirements. Local governments will not be directly

affected by the revisions to 6 NYCRR Part 228. This is not a mandate on

local governments. It applies to any entity that owns or operates a subject

source. Small businesses directly affected by Subpart 228-2 will need to

comply with the provisions of the program, as described below. Small

businesses that manufacture commercial or industrial adhesives, sealants

and primers generally only manufacture one or a small number of affected

products.

Small businesses that manufacture affected products will need to

comply with the VOC content limits and regulatory standards of Subpart

228-2. The proposed amendment regulates commercial and industrial

adhesives, sealants and primers primarily by imposing reduced VOC

content limits. The affected manufacturers, including small businesses,

must document that their commercial and industrial adhesive, sealant and

primer products comply with the VOC content limits contained in the

Subpart 228-2 amendment. This is done through the equations and test

methods referenced in the amendment.

Small businesses that manufacture commercial or industrial adhesives,

sealants and primers products must comply with the labeling requirements

of Subpart 228-2. This entails displaying the maximum VOC content (as

supplied and as applied when used in accordance to the manufacturer's

recommendations) on the label, lid or bottom of the container.

Small businesses that use commercial or industrial adhesives, sealants

and primers must comply with certain reporting requirements contained in

Subpart 228-2. Affected users must maintain a list of each adhesive, sealant, adhesive primer, sealant primer, cleanup solvent and surface preparation solvent in use and in storage, and also record the monthly volume of

each adhesive, sealant, adhesive primer, sealant primer, cleanup or surface

preparation solvent used.

3. Professional Services. It is not anticipated that small businesses that

manufacture or use commercial or industrial adhesives, sealants and primers will need to contract out for professional services to comply with this

regulation.

4. Compliance Costs. The California Air Resources Board (CARB)

determined that most manufacturers and users of commercial or industrial

adhesives, sealants and primers would be able to absorb the cost of the

proposed regulation with no significant adverse impacts on profitability.

In performing this analysis it is assumed that all of the costs are borne by

the manufacturers and/or users of subject products. The available compliance alternatives in the proposed rule are: VOC content limits by product

group; add-on control equipment; and work practice procedures. CARB

developed cost estimates with the assumption that all facilities will choose

the low-VOC adhesive materials alternate. The vast majority of facilities

may use low-VOC adhesives that can meet the recommended control

levels. These low-VOC adhesives are believed to be already available at a

cost that is not significantly greater than the cost of adhesives with higher

VOC content. The cost effectiveness of the amended Part 228-2 rule is

estimated to be in a range of $265 to $2,320 per ton of VOC emission

reduction.

There is a limited possibility that some facilities may need to install

add-on controls, which is a more costly alternative. Add-on devices

include, for example, oxiders, adsorbers, and concentrators. For some

industrial manufacturing applications, low-VOC adhesives do not meet

performance requirements, and add-on controls must be employed. Facilities may elect to comply with the proposed rule's requirements by using

add-on control equipment. It is expected that most users will not select

this option due to the availability of compliant adhesives, especially those

that will meet the rule's standards, and due to the high cost of installing

and operating the control equipment. At a cost-effectiveness of $9,000 to

$110,000 per ton of VOC reduced, the use of add-on control equipment to

comply with the requirements of the proposed rule may be a cost-effective

option for only a few facilities.

A negligible impact on affected business owners' equity (BOE) is

anticipated. A decrease of 10 percent or more in BOE indicates a

potentially significant impact on profitability. The impact of this proposed

amendment is negligible, and noticeable changes in employment, business

creation, elimination or expansion, and business competitiveness are not

expected.

The Department of Environmental Conservation (Department) undertook no special cost analysis for small business and local government

because the costs associated with Subpart 228-2 are not expected to vary

for them. Small businesses and local governments will need to pay the

increased prices for affected commercial and industrial adhesives, sealants

and primers resulting from compliance with the new, more restrictive

VOC content limits.

5. Minimizing Adverse Impact. The promulgation of Subpart 228-2

does not particularly affect small business or local government. The

regulation has statewide applicability. Therefore, small businesses and local governments are not particularly impacted, adversely or otherwise, by

this regulation.

To further mitigate adverse impacts, Ozone Transport Commission

(OTC) implementation options were included in Subpart 228-2 to minimize the impact of this regulation on the regulated parties, including

manufacturers that are small businesses. In addition, the proposed

implementation date allows additional time for manufacturers to reformulate their products to comply with the new VOC content limits. This will

be especially helpful to small manufacturers who have limited research

and development budgets.

6. Small Business and Local Government Participation. The OTC

workgroup that developed the OTC model rule, which the Subpart 228-2

amendment is based, held informal regulatory development meetings with

stakeholders and other interested parties, such as the National Adhesive

and Sealant Council, the National Paint and Coatings Association, and the

EPDM Roofing Association. These associations and its member companies provided the OTC workgroup comments during the development of

both the OTC model rules and the individual regulations of participating

OTC states. The OTC Stationary/Area Source Committee established a

public comment period and held a public stakeholder meeting to take comment on the draft model rules. Since this regulation does not particularly

Rule Making Activities NYS Register/December 23, 2009

26
affect small businesses and local governments, no special outreach efforts

were made. This is not a mandate on local governments. It applies to any

entity that owns or operates a subject source.

7. Economic and Technological Feasibility. As mentioned above, the

Department undertook no independent cost analysis. The Department

utilized the work performed by EPA in its ‘Control Techniques Guidelines

for Miscellaneous Industrial Adhesives,' dated September 2008, to

identify and incorporate the most cost-effective control technologies and

work processes. In the document, EPA concluded that most manufacturers

or marketers of commercial and industrial adhesives, sealants and primers

would be able to absorb the cost of the proposed regulation with no significant adverse impacts on profitability. The estimated overall costeffectiveness of the proposed amendment to Part 228 is relatively low, in a

range from $265 to $2320/ton of VOC reduced. Nevertheless, not all the

potential costs can be captured in any analysis, as economic analyses are

inherently imprecise. Also adding to the uncertainty is the potential for

pollution control innovations that can occur over time. It is impossible to

estimate how much of an impact, if any, emerging technologies may have

in lowering compliance costs. There also is the uncertainty regarding

future costs that exists due to the flexibility that is allowed under the

proposed regulation.

Rural Area Flexibility Analysis

On April 30, 2004, the United States Environmental Protection Agency

(EPA) published a final rule designating and classifying all nonattainment

areas for the 1997 8-hour ozone national ambient air quality standard (8-

hour ozone NAAQS). For the various nonattainment areas in New York

State, the Department of Environmental Conservation (Department) is

required to submit revisions to the State Implementation Plan (SIP) that

show that New York State will attain the 8-hour ozone NAAQS by the applicable date, and that the state is making reasonable progress toward this

goal. These SIP revisions must include the establishment of new or revised

control requirements for emissions of the precursors of ground-level ozone

pollution: nitrogen oxides (NOx) and volatile organic compounds (VOCs).

The Department has listed this regulatory amendment, Subpart 228-2,

Commercial and Industrial Adhesives, Sealants and Primers, and attendant revisions to Part 200, General Provisions, as a measure that would

help progress toward attainment in SIPs already submitted to EPA for the

New York-New Jersey-Long Island, NY-NJ-CT and Poughkeepsie nonattainment areas. This rule revision will also be included in the SIPs for the

Jamestown and Buffalo-Niagara Falls nonattainment areas. Additionally,

these more stringent requirements for production and use of commercial

and industrial adhesives, sealants and primers will provide a necessary

component of realizing the recently announced 2008 NAAQS for ozone,

which will require that ambient concentrations throughout the state meet a

0.075 ppm standard.

This VOC control strategy is an outgrowth of the Ozone Transport

Commission's (OTC) ongoing efforts to reduce ground-level ozone. At

the June 7, 2006 OTC Annual Meeting, OTC member states adopted Resolution 06-02 which set forth guidelines for emission reduction strategies

for six source sectors, including industrial adhesives, sealants and primers.

OTC member states agreed to pursue state rulemakings or other implementation methods to achieve emission reductions consistent with the

guidelines. The Department is proposing to develop regulations to require

VOC emission reductions consistent with the OTC guidelines for commercial and industrial adhesives, sealants and primers. In addition, the

proposed rule incorporates EPA recommendations contained in its Control

Technique Guidelines (CTG) document released in 2008 entitled,

‘‘Control Technique Guidelines for Miscellaneous Industrial Adhesives’’

(EPA 453/R-08-005), including adhesive application methods, and work

practices for adhesive-related handling activities and cleaning materials.

Facilities using less than 55 gallons of noncompliant commercial or

industrial adhesives, sealants, primers and cleanup solvents in a 12- month

period are exempt from the product VOC content requirements of the

proposed rule.

Promulgation of the proposed new Subpart 228-2, Commercial and

Industrial Adhesives, Sealants and Primers, is intended to reduce VOC

emissions from commercial and industrial adhesives, sealants and primers

to address the above emission shortfalls and make progress towards reducing 8-hour ozone levels.

1. Types and estimated number of rural areas: The criteria and procedures in the proposed Subpart 228-2 apply statewide. Rural areas are not

particularly affected.

2. Reporting, recordkeeping and other compliance requirements: The

criteria and procedures in Subpart 228-2 apply statewide. Reporting

requirements are applicable to the company, firm or establishment which

is listed on the product's label. If the label lists two or more companies,

firms, or establishments, the “Responsible Party” is the party which the

product was “manufactured for” or “distributed by,” as noted on the label.

For recordkeeping, as well as labeling, the responsibility will reside with

the manufacturers of commercial and industrial adhesives, sealants and

primers. Other compliance requirements exist as well that are applicable

to any person who sells, supplies, offers for sale, or manufactures these

products. One such applicable requirement will be for compliance with

the VOC content limits for each of the commercial and industrial

adhesives, sealants and primers specified in the proposed Subpart 228-2.

Although these products are used in rural areas, rural areas are not

particularly affected. Professional services are not anticipated to be necessary to comply with this rule.

3. Costs: The California Air Resources Board (CARB) determined that

most manufacturers and users of industrial adhesives, sealants and primers

will be able to absorb the cost of the proposed regulation with no significant adverse impacts on profitability. EPA adopted and incorporated the

CARB developed cost analysis in its ‘Control Techniques Guidelines for

Miscellaneous Industrial Adhesives' (CTG), September, 2008. In performing this analysis it is assumed that all of the costs are borne by the

manufacturers and/or users of subject products. The available compliance

alternatives in the proposed rule are: VOC content limits by product group;

add-on control equipment; and work practice procedures. CARB developed cost estimates with the assumption that all facilities will choose the

low-VOC adhesive materials alternate. With the belief that low-VOC

adhesives that can meet the recommended control levels are already available at a cost that is not significantly greater than the cost of adhesives

with higher VOC content, the cost effectiveness is estimated to be

relatively low, in a range of $265 to $2320 per ton of VOC emission

reduction.

A negligible impact on affected business owners' equity (BOE) is

anticipated. A decrease of 10 percent or more in BOE indicates a

potentially significant impact on profitability. The impact of this proposed

amendment is negligible, and noticeable changes in employment, business

creation, elimination or expansion, and business competitiveness are not

expected.

The Department undertook no special cost analysis for rural areas as the

costs associated with the proposed Subpart 228-2 are not expected to vary

for rural areas. However, small businesses and local governments will

need to pay the increased prices for consumer products resulting from

compliance with the new, more restrictive VOC content limits. This is not

a mandate on local governments. It applies to any entity that owns or operates a subject source.

4. Minimizing adverse impact: The proposed Subpart 228-2 does not

particularly affect rural areas. The regulation has statewide applicability.

Therefore, rural areas are not particularly impacted, adversely or otherwise,

by this regulation.

5. Rural area participation: The OTC workgroup that developed the

OTC model rule (from which the proposed Subpart 228-2 is based) held

informal regulatory development meetings with stakeholders and other

interested parties, such as the National Adhesive and Sealant Council, the

National Paint and Coatings Association, and the EPDM Roofing

Association. These associations and its member companies provided the

OTC workgroup with comments during the development of both the OTC

model rules and the individual regulations of participating OTC states.

The OTC Stationary/Area Source Committee established a public comment period and held a public stakeholder meeting to take comments on

the draft model rules. Since this regulation does not particularly affect rural areas, no special rural area outreach efforts were made.

Job Impact Statement

1. Nature of impact:

The New York State Department of Environmental Conservation

(Department) proposes to amend 6 NYCRR Part 228 with a new Subpart

228-2, Commercial and Industrial Adhesives and Sealants, and attendant

revisions to 6 NYCRR Part 200, General Provisions. This proposal will

not have an adverse impact on job and employment opportunities. The

Department expects there to be slightly higher costs associated with the

manufacture and/or marketing and the purchase of commercial/industrial

adhesives, sealants and primers. Since the proposed Subpart 228-2 reflects

the California Air Resources Board (CARB) and the Ozone Transport

Commission (OTC) adhesives and sealants products emissions program in

most respects, the Department utilized cost information that supported the

CARB program. CARB evaluated and quantified the economic impact on

affected businesses through the use of three compliance alternatives from

their commercial and industrial adhesives and sealants program. A

comprehensive analysis was performed by OTC, based on the CARB

adhesives and sealants program relating to the proposed Subpart 228-2.

CARB determined that most manufacturers and users of commercial

and industrial adhesives, sealants and primers would be able to absorb the

cost of the proposed regulation with no significant adverse impacts on

profitability. In performing this analysis it is assumed that all of the costs

are borne by the manufacturers and/or users of subject products. CARB

developed cost estimates, with the assumption that all facilities will choose

the low-VOC adhesive materials alternate. With the belief that low-VOC

adhesives that can meet the recommended control levels are already availNYS Register/December 23, 2009 Rule Making Activities

27
able at a cost that is not significantly greater than the cost of adhesives

with higher VOC content, the cost effectiveness is estimated to be in a

range of $265 to $2,320 per ton of VOC emission reduction.

EPA, in its ‘‘Control Techniques Guidelines for Miscellaneous

Industrial Adhesives’’ (CTG), September 2008, adopted and incorporated

the CARB developed cost estimates. A negligible impact on affected business owners' equity (BOE) is anticipated. A decrease of 10 percent or

more in BOE indicates a potentially significant impact on profitability.

The impact of this proposed amendment is negligible, and noticeable

changes in employment; business creation, elimination or expansion; and

business competitiveness are not expected.

2. Categories and numbers affected: Because of the lack of significant

impact on BOE and the small increase in the prices of commercial and

industrial adhesives, sealants and primers, the Department does not expect

this regulation to have any effect on employment.

3. Regions of adverse impact: There is no adverse employment opportunity impact attributable to this rulemaking.

4. Minimizing adverse impact: Although the Department does not

expect this regulation to have any effect on employment, flexibility provisions have been included in the regulation to facilitate compliance. These

flexibility provisions, including: VOC content limits by product category;

allowing the use of add-on air pollution control equipment for those facilities needing the operational flexibility to use high-efficiency add-on

controls instead of low-VOC content adhesives (especially when the use

of high VOC adhesives is necessary or desirable for product efficacy); and

work practices to reduce VOC emissions, are expected to lower compliance costs and, therefore, mitigate any adverse impacts on employment.

To assure the continuation of the achievement of quality construction in

the State of New York until alternative low VOC products become available, a phased-in seasonal implementation shall be provided for the use

and sale of adhesives, sealants, and primers for use with single-ply roofing

membranes; and permissible time periods for the manufacture, sale and

distribution of the existing adhesives, sealants, and primers.

5. Self-employment opportunities: Not Applicable.

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

Stationary Combustion Installations

I.D. No. ENV-51-09-00011-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: Amendment of Parts 200 and 201 and Subpart 227-2 of

Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, sections 1-0101,

19-0103, 19-0105, 19-0301, 19-0303, 19-0305 and 19-0311

Subject: Stationary Combustion Installations.

Purpose: Reduce emission limits for all boilers & combustion turbines,

redefine the mid-size boiler size, & allow a replacement option.

Public hearing(s) will be held at: 2:00 p.m., Feb. 8, 2010 at Department

of Environmental Conservation, Region 8, Office Conference Rm., 6274

E. Avon-Lima Rd. (Rtes. 5 and 20), Avon, NY; 2:00 p.m., Feb. 9, 2010 at

Department of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129-B, Albany, NY; 2:00 p.m., Feb. 10, 2010 at Department

of Environmental Conservation Annex, Region 2, 11-15 47th Ave., Hearing Rm. 106, Long Island City, NY

Interpreter Service: Interpreter services will be made available to hearing

impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request

must be addressed to the agency representative designated in the paragraph

below.

Accessibility: All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State

website:www.dec.ny.gov): The proposed Part 200 amendments will add

the definitions for the terms boiler, combined cycle combustion turbine,

combustion turbine, continuous emissions monitoring system (CEMS)

certification protocol, continuous emissions monitoring system plan,

emergency power generating stationary internal combustion engine,

simple cycle combustion turbine, and very large boiler. These definitions

are being included under Part 200 for consistency due to their use in

multiple regulations. The proposed revisions will also add a reference in

section 200.9, Table 1 under clause 227-2.6(b)(3)(i)('b') and streamline

the existing reference under subparagraph 227-2.6(b)(3)(v).

The proposed Subpart 201-3 revisions will change the exemptions for

‘‘stationary or portable combustion installations’’ and ‘‘emergency power

generating stationary internal combustion engines.’’ In order to qualify for

the exemption for stationary or portable combustion installations, the

maximum rated heat input capacity limitation for such sources is being

reduced from less than 20 mmBtu/hr to less than 10 mmBtu/hr. The provision exempting emergency power generating stationary internal combustion engines is being revised to reflect the change in the citation for the

definition of ‘‘emergency power generating stationary internal combustion engine.’’

The following change to Subpart 201-3 is unrelated to the Subpart 227-2

revisions. The reference to Subpart 231-2 in the text of paragraph 201-

3.1(c)(2) will be replaced by a reference to Part 231 generally. This revision is meant to align the text of paragraph 201-3.1(c)(2) with the revisions to Part 231 that became effective in early 2009.

The proposed Subpart 227-2 revisions will include the removal of several definitions (to be relocated in Part 200, as stated above) and revision

of other definitions, a change in the application and permitting requirements, a change in emission limits for most boiler categories and combined

cycle combustion turbines, and revisions to the compliance options.

Section 227-2.2 will be revised to remove the definitions of boiler,

combined cycle combustion turbine, combustion turbine, continuous emissions monitoring system (CEMS) certification protocol, emergency power

generating stationary internal combustion engine, preliminary continuous

emissions monitoring system plan, simple cycle combustion turbine, and

very large boiler. These definitions will be moved to Part 200 (preliminary

continuous emissions monitoring system plan will be changed to continuous emissions monitoring system plan), as stated above. Also, the revisions will modify the terms mid-size boiler and small boiler. A mid-size

boiler will now be defined as ‘‘a boiler with a maximum heat input capacity greater than 25 million Btu per hour and equal to or less than 100 million Btu per hour. A small boiler will now be defined as ‘‘a boiler with a

maximum heat input capacity equal to or greater than one million Btu per

hour and equal to or less than 25 million Btu per hour.’’

Section 227-2.3 will be revised to specifically require that subject facilities must submit an application for a Title V permit or permit modification (depending on the current facility status). The requirement to submit a

compliance plan will be removed.

Section 227-2.4 will be revised to change the presumptive RACT emission limits for very large, large, mid-size boilers, and combined cycle

combustion turbines. Also, the revisions will remove the 500-hour nonozone season presumptive emission limit exemption for simple cycle

combustion turbines. These turbines will now be required to meet the

existing presumptive emission limits on an annual basis.

Section 227-2.5 will be revised to include a shutdown option for any

subject emission source. The intent to shut down an emission source must

be recorded as part of a permit modification prior to October 1, 2010,

wherein the owner or operator commits to permanently shut down the

emission source prior to December 31, 2012.

Text of proposed rule and any required statements and analyses may be

obtained from: Robert Stanton, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3254, (518) 402-8403, email:

227ract@gw.dec.state.ny.us

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: February 17, 2010.

Additional matter required by statute: Pursuant to Article 8 of the State

Environmental Quality Review Act, a Short Environmental Assessment

Form, a Negative Declaration and a Coastal Assessment Form have been

prepared and are on file. This rule must be approved by the Environmental

Board.

Summary of Regulatory Impact Statement

INTRODUCTION

The New York State Department of Environmental Conservation

(Department) proposes to revise 6 NYCRR Part 200 and 6 NYCRR

Subparts 201-3 and 227-2. 6 NYCRR Part 200, General provisions is being revised to include definitions that were previously only found in 6

NYCRR Subpart 227-2 but are now used in multiple Department

regulations. Part 200 is also being revised to include all new citations of

federal regulations. The revisions to 6 NYCRR Subpart 201-3, Exempt &

Trivial Activities are being made to the emergency power generating

stationary internal combustion engines exemption to cite the new location

of the definition in Part 200. Also the exemption for stationary or portable

combustion installations will be revised by lowing the applicability threshold to 10 million Btu per hour heat input. 6 NYCRR Subpart 227-2, Reasonably Available Control Technology (RACT) for Oxides of Nitrogen

imposes RACT limits for emissions of NOx from seven categories of

stationary combustion installations. These RACT limits are a component

of the State Implementation Plan (SIP) for New York State directed at attainment of the 1997 ozone national ambient air quality standard (NAAQS)

and are expected to be part of the SIP that will be submitted with respect

Rule Making Activities NYS Register/December 23, 2009

28