RACT analysis will be submitted to the Department for review andapproval. The Department does not anticipate that the proposed rule revisions would adversely affect jobs or employment opportunities in the

State.

COSTS: The proposed NO

x RACT revisions to Part 220 will apply to major facilities only. Major facilities are those that have a potential to emit NO

x 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 thecontrol options that are reasonably available for that source. The Department is proposing these revisions to require NO

x 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 NO

x 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 costestimates are based upon the application of selective non-catalytic reduction technology for portland cement plants, and the application of oxy-fuelfiring technology for glass manufacturing facilities. Below are the cost effectiveness estimates for the portland cement and glass manufacturing

NO

x 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 reducedBased 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

NO

x emissions will experience additional costs associated with the purchase, installation, and operation of a NO

x 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 NO

x 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 makingprocess. 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 (NO

x) from portland cement kilns. The existing NO

x RACT requirements for portland cement kilns have been in place since 1995. The Department is proposing to revise Part 220 to require updated NO

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

NO

x RACT for glass furnaces at glass plants (Subpart 220-2). TheseRACT 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 NAAQS 1 . On March 12, 2009, the Department after analyzing measured ozone data for the years 2006 – 2008 recommended that the New YorkCity, 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 NO

x 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 NO

x, 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 permitreviews. 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 NO

x 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 employmentopportunities. Through the proposed revisions, the Department is requiring facilities to re-examine their existing NO

x 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 NO

x RACT requirements thathave 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: 

## NYS Register/December 23, 2009 Rule Making Activities

**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 atDepartment of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129-B, Albany, NY; 2:00 p.m., Feb. 10, 2010 at Departmentof 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 hearingimpaired 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 MiscellaneousIndustrial 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 atleast 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 productsmodel 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 beencompleted 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) thatshow 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 (NO

x) 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, NO

x 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, Congressrecognized 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 andcost 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 ofimplementing 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 regulatedadhesives 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-oncontrol 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 IndustrialAdhesives’’ (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 afterJanuary 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 suchadhesive, 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 inthe 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, ifany. 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 inSubpart 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 thatmanufacture 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 bythe 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 meetperformance 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. Theregulation 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 proposedimplementation 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 theEPDM 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 apublic comment period and held a public stakeholder meeting to take comment on the draft model rules. Since this regulation does not particularly 

## NYS Register/December 23, 2009 Rule Making Activities

**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 primerswould 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) thatshow 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 (NO

x) 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 theNew 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. Atthe 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 requireVOC 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 primersto 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 notparticularly 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 primerswill 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 forMiscellaneous 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-VOCadhesives 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 nota 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 onthe 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-VOCadhesives that can meet the recommended control levels are already avail

## NYS 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 incorporatedthe 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 notexpect 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); andwork 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 inthe 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 atDepartment of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129-B, Albany, NY; 2:00 p.m., Feb. 10, 2010 at Departmentof 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 hearingimpaired 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 beingreduced 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 thedefinition 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 revisionof 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 (preliminarycontinuous 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-sizeboiler 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 NYCRRSubparts 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 portablecombustion 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 NO

x from seven categories of stationary combustion installations. These RACT limits are a componentof 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 

## NYS Register/December 23, 2009 Rule Making Activities

**28**