of an associated permit modification should be removed from the regulations. As many facilities currently employ some form(s) ofmoisture management, this component seems better suited for a guidance document rather than a vague regulation that will be extremely difficult to comply with and enforce uniformly throughout New York State because of its ambiguity. Commenter: 1

Response: As noted by the commenter, many facilities currently employ some form(s) of moisture management. Such measures resultin the burning of less fuel, and are therefore accepted means of reducing NOx emissions where feasible. Placing this requirement in a regulation form will encourage those operators who do not presently practice moisture management to assess whether this is a feasible means of reducing emissions. Placing the requirement in a guidance document will carry less weight.

Comment: The re-proposed regulations state that a permit modification application must be submitted by March 1, 2011, presumably for the ‘‘intended practices plan.’’ The preparation and implementation of management practices for moisture control in aggregate stockpiles does not appear to be a significant facility modification that requires a modification to an air permit or registration under the existing regulations. Since the new requirements will apply uniformly to allcurrent permitted facilities, the Department should issue a Departmentinitiated modification to all existing permits rather than create unnecessary paperwork, as well as eliminate the unneeded time-consuming process of preparing and reviewing the numerous applications throughout New York State. Commenter: 1

Response: The revisions to Section 212.12 will be submitted to the United States Environmental Protection Agency (EPA) for inclusion in New York's State Implementation Plan (SIP). As such, it becomes a federal applicable requirement and will need to be addressed in each facility's permit (depending on the type it has) as required under 6 NYCRR Part 201. The Department may consider a mechanism by which the new requirements could be applied to multiple facilities to

the extent allowed under Part 201.

Comment: Part 212.12(b) goes well beyond the 57 months established in the Final Implementation Rule for Reasonably Available Control Technology (RACT) implementation. New York should tighten the compliance schedule allowed for facilities to implementRACT to a more expeditious timeframe before the 2020 date established in the re-proposed rule (i.e., within 18 months from effectivedate of regulation or 1 year from when compliance plans are duewhichever is sooner).

Part 212.12(b) is also unacceptable because it does not provide for increments of progress nor sufficient time from when the economic analyses are to be submitted to when controls are to be installed. If New York were to adopt a compliance date beyond 18 months or 1 year from when compliance plans are due then New York should include in the regulation, increments of progress similar to those identified in 40 CFR Part 51, Subpart F-Procedural Requirements, Section 51.100(q), with specific dates.

New York's proposed Part 212 rule contains generic RACT provisions applicable to asphalt production. New York should commit to submit the case-by-case RACT determinations approved by the Department to EPA as SIP revisions by a date certain. In 212.12(b), we understand that facilities will be required to perform an annual tune-up on the dryer-burners and also reduce the moisture content of the aggregate stockpile. While both of these practices will help reduce facility NOx emissions, New York should establish a facility wide NOx reduction level as prescribed RACT (i.e., an overall reduction of 35 percent of NOx emissions at each facility not already equipped with NOx controls). Facilities may achieve this by utilizing the best practices mentioned above in conjunction with installation of a low NOx burner or establish emission limits that reflect the application of the suggested control technology, with the option of alternate RACT (i.e., using warm mix asphalt).[2]

Response: Applying RACT on an approximately six month timeframe isn't feasible for the proposed requirements to hot mix asphalt plants. The Department heard from many commenters on the initial Part 212 proposal on this issue. Commenters' primary concerns were that facilities which had just replaced their burners would potentially be required to replace them again within a very short timeframe, and that additional time was needed for plants to budget accordingly. The requirements for best practices go into effect as quickly as possible (next operating year), but a longer timeframe for the low NOx burner assessment and installation was necessary.

The commenter refers to the continued application of Clean Air ActSections 182(b)(2) and 182(f) as the basis for these comments regarding RACT. Section 182(f) specifically refers to major sources of NOx: ‘‘The plan provisions required under this subpart for major stationary sources of volatile organic compounds shall also apply to major stationary sources...of oxides of nitrogen.’’ (Section 182(b)(2) refersonly to volatile organic compound sources.) Because these requirements target minor sources of NOx, the Section 182(f) requirements do not apply. Hot mix asphalt plants that are major sources of NOx would already have been captured by the general RACT requirements under the Department's Section 212.10.

Comment: 212.12(c) should be revised to read as follows: The RACT determinations, including the economic feasibility analyses, which are acceptable to the Department will be submitted to the United States Environmental Protection Agency for review and approval as a revision to the State Implementation Plan. Commenter: 2

Response: In their comments on the initial proposal of Part 212 in December, 2009, EPA suggested the addition of a clause very similar to the above. Because the Department already incorporated EPA's language into the rule for the re-proposal, EPA's suggested revisions

to their own statement will not be made.

List of Commenters
1. Hanson Aggregates New York LLC
2. United States Environmental Protection Agency, Region 2



### NOTICE OF ADOPTION

Emissions of Ozone Precursor VOCs From Commercial and

Industrial Adhesives and Sealants

I.D. No. ENV-51-09-00010-A
Filing No. 902
Filing Date: 2010-08-31

Effective Date: 30 days after filing

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

Action taken: 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: Emissions of ozone precursor VOCs from commercial and
industrial adhesives and sealants.
Purpose: To lower levels of ozone in New York State and decrease adverse public health and welfare effects.
Substance of final rule: 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 inPart 200, General Provisions, applies to any person who sells, supplies, offers for sale, or manufactures commercial or industrial adhesives, sealants and primers, three months after the effective date of this rule, 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 NewYork State, or units of any adhesive, sealant or primer product, packing excluded, 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 

## NYS Register/September 15, 2010 Rule Making Activities

**19**in 1998. In addition, the proposed rule incorporates EPA recommendations contained in its Control Technique Guidelines (CTG) documentreleased 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 either to use a product with a VOC content equal to or less than a specified limit or to use add-on controls;

B. Sets forth work practices for mixing and handling operations for adhesives, thinners and adhesive-related waste materials;

C. Establishes a VOC limit for surface preparation solvents;
D. Establishes an alternative add-on control system requirement of at least 85 percent overall control efficiency (capture and destruction efficiency), by weight;

E. Requires that VOC containing materials must be stored or disposed of in closed containers;

F. 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;

G. 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;

H. Prohibits the specification of any commercial or industrial adhesive, sealant or primer that violates the provisions of the rule; and

I. The reproposal adds provisions allowing for process-specific

RACT determinations.

Several adhesive and sealant applications and products are exempt from this model rule: tire repair, testing and evaluation associatedwith 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 year (12-month rolling average) 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.

On and after the effective date of this rule, a 15 month sell-through period will allow the sale and use of non-compliant industrial and commercial adhesives, sealants and primers.

Final rule as compared with last published rule: Nonsubstantive changes were made in sections 228-2.1(a),(b), 228-2.3(a),(b), 228-2.4(g)(1),(2), 228-2.7(a), 200.9 Table 1 and 228-2.6(a).
Revised rule making(s) were previously published in the State Register

on June 16, 2010.
Text of rule and any required statements and analyses may be obtained from: Ralph F. Itzo, New York State Department of Environmental Conservation, Division of Air Resources, 625 Broadway, 2nd Floor, Albany, NY 12233, (518) 402-8403, email: airregs@gw.dec.state.ny.us
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 was approved by the Environmental
Board.
Summary of Revised 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). TheDepartment 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, GeneralProvisions, 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 ofcontrols in its Control Technology Guidelines (CTG) for Miscellaneous Industrial Adhesives, based on CARB developed costestimates, 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 compliancewith 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 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 

## NYS Register/September 15, 2010 Rule Making Activities

**20**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 theproposed 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) documentreleased 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 threemonths after the effective date of this rule, no person shall sell, supply, offer for sale, or manufacture for sale in New York State any commercial or industrial adhesive, sealant, adhesive primer or sealant primer manufactured on or after that date, unless it 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 foruse with single-ply roofing membranes and an additional twelvemonth permissible time period for the distribution, sale and/or use of the existing adhesives, sealants, and primers.

Revised Regulatory Flexibility Analysis

1. Effects on Small Businesses and Local Governments. No small businesses or local governments will be directly affected by theproposed 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. Three months after the effective date of this rule, small businesses may not sell, supply, offer for sale, or manufacture for sale in New York State, any commercial or industrial adhesive, sealant, adhesive primer or sealant primer manufactured on or after that date, unless it complies with the applicable VOC content limits specified in the rule. 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 also comply with the labeling requirements of Subpart 228-2. This entails displaying themaximum 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 workpractice 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 thatmost 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 fewfacilities. In the event a facility cannot economically achieve compliance with this rule by the use of low VOC adhesive products or by the installation of add-on controls, an available hardship exemption may be granted to the facility in accordance with a process-specific RACT demonstration provision included in the reproposal.

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 thisproposed 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 

## NYS Register/September 15, 2010 Rule Making Activities

**21**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 theNational 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 OTCStationary/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 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 cost-effectiveness 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.

Revised 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 airquality 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 requirementsfor 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 pursuestate 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 ruleincorporates 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 cleaningmaterials. 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 andprocedures 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 record keeping, 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 forsale, or manufactures these products. One such applicable requirement will be for compliance with the VOC content limits for each ofthe 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 estimatedto be relatively low, in a range of $265 to $2320 per ton of VOC emission reduction. In the event a facility cannot economically achieve compliance with this rule by the use of low VOC adhesive products or by the installation of add-on controls, an available hardship exemption may be granted to the facility in accordance with a process-specific RACT demonstration provision included in the reproposal.

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 thisproposed 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 

## NYS Register/September 15, 2010 Rule Making Activities

**22**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 ofparticipating OTC states. The OTC Stationary/Area Source Committee established a public comment period and held a public stakeholdermeeting 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.

Revised Job Impact Statement1. 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 reproposal will not have an adverse impact on job and employment opportunities. The Department expects there to beslightly 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 impacton 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 significantadverse impacts on profitability. In performing this analysis it is assumed that all of the costs are borne by the manufacturers and/or usersof 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 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 in a range of $265 to $2,320 per ton of VOC emission reduction.

EPA, in its ‘‘Control Techniques Guidelines for MiscellaneousIndustrial 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 pollutioncontrol 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. In the event a facility cannot economically achieve compliance with this rule by the use of low VOC adhesive products or by the installation of add-oncontrols, an available hardship exemption may be granted to the facility in accordance with a process-specific RACT demonstration provision included in the reproposal.

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 distribution, sale and/or use of the existing adhesives, sealants, and primers.

5. Self-employment opportunities: Not Applicable.

Assessment of Public Comment

Comments received from June 16, 2010 through 5:00PM, July 16,

2010

The Department received three comments to the reproposed revisions to Part 228.

The comments were grouped as follows:

1.) Comment: 228-2.4(g)(2) - should be revised to read as follows: Department approved process specific RACT demonstrations underthis subdivision shall be submitted to the EPA Administrator for approval as State Implementation Plan revisions. Commenter: 1.

Response: The Department concurs. The word ‘‘Administrator’’ will be deleted from paragraph 228-2.4(g)(2) of the re-proposed rule.

2.) Comment: NLRA's larger members have tens of thousands of products in their inventories that need to be checked for compliance with the new Part 228 Adhesives rule product requirements, whilesmaller members do not have the manpower or computerized purchasing and inventory systems to easily check for compliance. Without guidance on the products impacted by the Part 228 regulation beyond the general category list in Table 1, such as a listing of products by UPC code, its members will have difficulty checking their inventory for compliance without spending significant time and manpower. NRLA remains concerned that its members will face penalties for violations of the regulations because they did not receive sufficient guidance on impacted products. Commenter: 2.

Response: Commenter's concerns are duly noted. Although providing guidance to the regulated community for compliance with Department regulations is not part of the scope of its rulemaking activities, the commenter's requests will be taken into consideration during the rule's implementation and enforcement phases.

3.) Comment: Subpart 228-2 should clarify the applicability of theregulations to internal transfers and transactions that occur at hazardous material pharmacy-type operations on military bases. Commenter recommended amendment of the subpart to either include a definition for the term ‘‘distributor’’, or else include a definition for the terms ‘‘supplies’’ or ‘‘supply.’’ Commenter: 3.

Response: The Commenter's concerns are duly noted and directs this Commenter to the possible exemptions available pursuant to. 228- 2.4(g) of the rule: ‘‘Process-specific RACT Demonstrations.’’

APPENDIX

LIST OF COMMENTERS

Commenter number Name and Affiliation

1. Kirk Wieber, EPA Region 2 Air Programs
Branch

2. Thomas Lindberg, Northeastern Retail Lumber Association (NLRA) 

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### NOTICE OF ADOPTION

Emissions Verification. 202-1 Emissions Testing, Sampling, and Analytical Determinations and 202-2 Emission Statements

I.D. No. ENV-08-10-00012-A
Filing No. 901
Filing Date: 2010-08-31

Effective Date: 30 days after filing

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

Action taken: Amendment of Part 202 of Title 6 NYCRR.
Statutory authority: Environmental Conservation Law, sections 1-0101, 3-0301, 19-0301, 19-0103, 19-0105, 19-0301, 19-0302, 19-0303, 19-0305, 19-0311, 71-2103, 71-2105 and 72-0303
Subject: Emissions verification. 202-1 Emissions testing, sampling, and analytical determinations and 202-2 Emission Statements.
Purpose: Details the applicability, acceptable procedures, required contents and record keeping for testing and reporting of emissions.
Text or summary was published in the February 24, 2010 issue of the Register, I.D. No. ENV-08-10-00012-P.
Final rule as compared with last published rule: No changes.
Text of rule and any required statements and analyses may be obtained from: Michael Miliani, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email: airregs@gw.dec.state.ny.us
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 was approved by the Environmental
Board.
Assessment of Public Comment

INTRODUCTION
The New York State (NYS) Department of Environmental Conservation (Department) is proposing to revise 6 NYCRR Part 202, Emissions Verification. Specifically, in 202-1, the Department is proposingto change the word ‘Commissioner' to ‘Department' to more accurately represent the Department's ability to require stack tests for inventory purposes as part of the permitting process, and to be moreconsistent with the language used in 202-2. Within 202-2, the Department is proposing to clarify language and include the reporting ofgreenhouse gases (GHGs) as part of the existing annual emission statement process. The GHGs include: carbon dioxide (CO 2 ), methane (CH4), nitrous oxide (N2 0), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF 6 ).

The GHG reporting requirement under Subpart 202-2 is consistent with EPA's rule and other federal and voluntary programs, and will enable the Department to identify large sources of GHG emissions, establish baseline emission levels, and track trends to determine the effectiveness of Department efforts at reducing GHG emissions.

COMMENTS

1. Comment - NYSDEC should be able to obtain GHG emissions data from US EPA. Facility wide GHG emission information must be reported by facilities to USEPA electronically under 40 CFR Part 98Mandatory Reporting of Greenhouse Gases rule. Reporting to NYSDEC in addition to US EPA would be an extra cost and burden of time, especially in times of economic crisis and/or recession. (1, 2, 3, 4)
Response - Currently, the timing, format and availability of GHG emissions data collected by EPA are uncertain. Furthermore, the Department collects emissions data in a different format than EPA's Mandatory GHG Reporting Rule will. EPA's rule will collect GHGs aggregated at a facility level in metric tons of carbon equivalents, while the Department collects emissions data at a process level in pounds per year. The emission data reported to EPA would not be at the level of detail the Department is proposing to collect and wouldnot enable the Department to assess GHG emission levels and reduction needs at a unit or process level. Facility level data is limited, and does not provide sufficient data for analysis. Most of the regulations the Department develops and enforces are based at the unit level and not the facility level. The proposed requirement to report GHGs aspart of the annual emission statement may create some duplication between this regulation and EPA's Mandatory GHG Reporting Rule, in that both rules require Title V sources to report annual GHG emissions. However, the facilities subject to the Federal and State rules may
differ.

Affected sources have been completing annual emissions statements in NYS for many years. Therefore, the cost of compliance with this regulation is not expected to appreciably increase as a result of the proposed amendments.

For combustion sources, providing GHG emissions data is optional - these emissions can be estimated by the Department. Most of NY's

affected sources should be able to utilize an EPA emission factor to calculate GHG emissions from these source types.

2. Comment - NYSDEC should be able to calculate GHG emissionsinformation using the fuel throughput data submitted as a part of emission statements. As there is no direct measurement of GHG emissions, emissions can be calculated for all sources in NYS using fuel throughput and appropriate emission factor. (1)

Response - The Department agrees with this comment and has indicated in the annual emission statement that providing emission estimates of process contaminants is optional for combustion sources. The Department will calculate emissions for combustion processes where actual annual throughput and operational data is provided.

3. Comment - Each subpart in 40 CFR 98 lists the specific greenhouse gases (out of the six gases requiring reporting) that a categoryof sources is required to report. For example, electric generating stations only report CO 2 , N2 O and CH4 . NYSDEC should use the same logic when requesting emissions reporting to be consistent with USEPA 40 CFR Part 98. (1)

Response - The Department agrees that certain GHGs are typically emitted from specific process types. The Department is requesting that facility representatives include any GHG emissions that they areaware of from processes they are reporting for in their annual emission statements. The Department collects emission data at the process level, where USEPA 40 CFR Part 98 collects data at the facility level. The Department is unable to list the specific GHGs for each process in NYS and identify the GHGs that are expected to be emitted from each of those processes.

4. Comment - Although most data in DEC's emission statements is reported in pounds, emissions of CO 2 (especially) should be reported in tons. Reporting CO 2 emissions in pounds a) results in reporting ludicrously large values and b) implies more accuracy to the emission values than is warranted. All GHG emissions should be reported as

CO 2 e as reported to USEPA. (1)

Response - The Department is requiring GHGs to be reported in pounds to be consistent with the other pollutants collected under Part 202 and for proper management in the database system that is used to maintain emissions information. Large emissions can be reported in scientific notation to provide a more manageable value for inclusion

in the annual emission statement submittal.

5. Comment - Any Department rulemaking should permit the submittal to the Department of emissions data provided to either the EPA or The Climate Registry as a valid and acceptable compliance alternative under Part 202. The Department should include language in the final rule to allow it to accept equivalent GHG information, such as information already provided to EPA. (2, 3, 4)

Response - The Department will accept emissions data in the format and level of detail already collected as part of the annual emission statement. This information should be able to be aggregated and converted to meet the reporting requirements identified by EPA.

List of Commenters
1. Christopher Wentlent, AES Eastern Energy
2. Pamela F. Faggert, Dominion Transmission, Inc. (DTI) 

## NYS Register/September 15, 2010 Rule Making Activities

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