sional standards ‘‘in all material respects.’’ Therefore it is not necessary to

include the suggested level of specificity in the proposed regulation.

COMMENT: Professional standards require that a letter of comments

be issued by the review team, if deficiencies were found during a quality

review and if the quality review was commenced prior to January 1, 2009.

To conform to these professional standards, the commenter suggested that

the Department clarify that in addition to a quality review report, the letter

of comments should also be submitted to the Department for those firms

falling into this category.

RESPONSE: The Department believes that because the implementation

date of the quality review requirement is January 1, 2012, many of the

firms submitting reports under the regulation will have had their quality

reviews commenced after January 1, 2009 and this requirement will not

affect many of the firms submitting reports in compliance with the

regulation. However to address this concern, the Department will clarify

the need to submit a letter of comments in guidance for firms that fall into

this category.

Department of Environmental

Conservation

NOTICE OF ADOPTION

Asphalt Pavement and Asphalt Based Surface Coating

Regulation and Update of VOC Lists

I.D. No. ENV-16-10-00013-A

Filing No. 975

Filing Date: 2010-09-21

Effective Date: 2011-01-01

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

Action taken: Addition of Part 241; and amendment of Parts 200, 205 and

211 of Title 6 NYCRR.

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

3-0301, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, 71-2103 and 71-

2105

Subject: Asphalt Pavement and Asphalt Based Surface Coating regulation

and update of VOC lists.

Purpose: Adopt asphalt pavement VOC limitations, asphalt based surface

coating VOC content and labeling requirements and update VOC lists.

Text of final rule: Subdivisions 200.1(a) through 200.1(af) remain

unchanged.

The table under 200.1(ag) is revised to remove the following entry:

78933 Methyl ethyl ketone (2-Butanone)

Sections 200.1(ah) through 200.1(cf) remain unchanged.

New paragraphs are added to subdivision 200.1(cg) as follows:

(34) dimethyl carbonate

(35) 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (known as HFE7000)

(36) 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-

(trifluoromethyl) hexane (known as HFE-7500, HFE-s702, T-7145, and

L-15381)

(37) 1,1,1,2,3,3,3-heptafluoropropane (known as HFC 227ea)

(38) methyl formate

(39) propylene carbonate

Sections 200.2 through 200.8 remain unchanged.

Table 1 of existing Section 200.9 is amended as follows:

Regulation Referenced Material Availability

241.3 ASTM, D977 (Re-approved 2005) ****

ASTM, D2397 (Re-approved 2005)  

ASTM, D6997 (Re-approved 2004) ** **

241.5(b)(3) 40 CFR Part 60, Appendix A, method

24 (July 1, 2009) *

Sections 205.1(a) through 205.1(b)(1) remain unchanged.

Paragraphs 205.1(b)(2) and (3) are modified to read as follows:

(2) any aerosol coating product; [and]

(3) any architectural coating that is sold in a container with a volume

of one liter (1.057 quart) or less[.]; and

A new section 205.1(b)(4) is added to read as follows:

(4) any asphalt pavement and asphalt based surface coating regulated under Part 241 of this Title.

Sections 205.2 through 205.8 remain unchanged.

Section 211.1 [Definitions

(a) ‘Asphalt.' The dark brown to black cementitious material (solid,

semisolid or liquid in consistency) of which the main constituents are

bitumens which occur naturally or as a residue of petroleum refining.

(b) ‘Cutback asphalt.' Any asphalt which has been liquefied by blending with petroleum solvents (Diluents) or, in the case of some slow cure

asphalts (road oils), which have been produced directly from the distillation of petroleum.

(c) ‘Penetrating prime coat.' An application of low viscosity asphalt to

an absorbent surface in order to prepare it for paving with an asphalt

concrete.

Section 211.2] Air pollution prohibited

No person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are

injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property.

Notwithstanding the existence of specific air quality standards or emission

limits, this prohibition applies, but is not limited to, any particulate, fume,

gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either

alone or in combination with others.

Section 211.[3] 2 Visible emissions limited

Except as permitted by a specific part of this Subchapter and for open

fires for which a restricted burning permit has been issued, no person shall

cause or allow any air contamination source to emit any material having

an opacity equal to or greater than 20 percent (six minute average) except

for one continuous six-minute period per hour of not more than 57 percent

opacity.

[Section 211.4 Volatile organic compounds prohibited

(a) The use of volatile organic compounds to liquefy asphalt used for

paving is prohibited, except for:

(1) asphalt used in the production of long-life stockpile material for

pavement patching and repair;

(2) asphalt applied at low ambient temperature from October 16th to

May 1st; and

(3) asphalt used as a penetrating prime coat for the purpose of preparing an untreated absorbent surface to receive an asphalt surface.

(b) The amount of volatile organic compounds in emulsified asphalt, as

determined by testing methods of the ASTM (American Society for Testing and Materials), may not exceed the following amounts in percent by

weight:

(1) two percent for ASTM grades RS-1, SS-1, SS-1h, CSS-1, and

CSS-1h;

(2) three percent for ASTM grades RS-2, CRS-1, CRS-2, HFRS-2

and HFMS-2h;

(3) 10 percent for ASTM grades MS-2 and HFMS-2; and

(4) 12 percent for ASTM grades CMS-2 and CMS-2h.]

6 NYCRR Part 241, Asphalt Pavement and Asphalt Based Surface Coating

241.1 Applicability

This Part applies to:

(a) any person who applies, supplies, sells, offers for sale, or manufactures any asphalt pavement; and

(b) any person who applies, supplies, sells, offers for sale, or manufactures any asphalt-based surface coating.

241.2 Definitions

(a) ‘Asphalt'. The dark brown to black cementitious material (solid,

semisolid or liquid in consistency) of which the main constituents are

bitumens which occur naturally or as a residue of petroleum refining.

(b) ‘Asphalt pavement.' Pavement that is composed of stone, sand, and

gravel bound together by asphalt.

(c) ‘Cutback asphalt'. Any asphalt which has been liquefied by blending with petroleum solvents (diluents) or, in the case of some slow cure

asphalts (road oils), has been produced directly from the distillation of

petroleum.

(d) ‘Asphalt-based surface coating'. A coating labeled and formulated

for application to worn asphalt pavement surfaces including, but not

limited to, highway, driveway, parking, curb and/or berm surfaces to

perform one or more of the following functions:

(1) fill cracks,

(2) seal, coat, or cover the surface to provide protection or prolong

its life, or

(3) restore or preserve the appearance.

(e) ‘Emulsified asphalt'. An emulsion of asphalt and water that contains

an emulsifying agent; it is a heterogeneous system containing two

normally immiscible phases (asphalt and water) in which the water forms

the continuous phase of the emulsion, and minute globules of asphalt form

the discontinuous phase.

Rule Making Activities NYS Register/October 6, 2010

28
(f) ‘Penetrating prime coat'. An application of low viscosity asphalt to

an absorbent surface in order to prepare the surface for application of

asphalt pavement.

241.3 Asphalt pavement. No emulsified asphalt, as classified under

ASTM International standard specifications D 977 or D 2397 (see Table

1, section 200.9 of this Title), may be applied, sold, offered for sale, or

manufactured that contains oil distillate, as determined by ASTM

International standard test method D 6997, in amounts that exceed the

following limits (milliliters of oil distillate per 200 gram sample):

(a) three milliliters for ASTM grades RS-1, SS-1, SS-1h, CRS-1, CSS-1,

and CSS-1h;

(b) five milliliters for ASTM grades RS-2, CRS-2, and HFRS-2;

(c) sixteen milliliters for ASTM grades MS-2, HFMS-2 and HFMS-2h;

and

(d) twenty milliliters for ASTM grades CMS-2 and CMS-2h.

241.4 Cutback asphalt prohibition. The use of cutback asphalt in paving activities is prohibited except in the following circumstances:

(a) when the asphalt is used in the production of long-life stockpile material for pavement patching and repair; or

(b) when the asphalt is used as a penetrating prime coat for the purpose

of preparing a surface to receive asphalt pavement.

241.5 Asphalt based surface coating.

(a) VOC limitation. No asphalt based surface coating may be applied,

sold, offered for sale, or manufactured if it contains more than 100 grams

of VOC per liter.

(b) VOC content determination.

(1) Except as provided in paragraph (2) of this subdivision, the VOC

content of an asphalt based surface coating must be determined through

the use of the following equation:

( Ws)

VOC Content = ------------

( Vm - Vw)

where:

VOC content = grams of VOC per liter of coating

Ws = weight of VOCs, in grams

Vm = volume of coating, in liters

Vw = volume of water, in liters

The VOC content of a tint base shall be determined prior to the addition

of the colorant.

(2) An alternative method may be used if approved by the Department and the Administrator.

(3) The Department may additionally require the manufacturer to

conduct a 40 CFR part 60, appendix A, method 24 (see Table 1, section

200.9 of this Title) analysis to verify the VOC content.

(c) Product labeling and recordkeeping.

(1) Small container asphalt-based surface coating labeling. Any

manufacturer of an asphalt based surface coating that is supplied, sold, or

offered for sale in containers less than or equal to ten gallons in size must

display on the container the following information:

(i) the product name, and

(ii) the VOC content. Each container must display either the

maximum or the actual VOC content of the coating, as supplied, including

the maximum thinning as recommended by the manufacturer. VOC content

shall be displayed in grams of VOC per liter of coating. VOC content

displayed shall be calculated using manufacturer's formulation data, or

shall be determined according to subdivision (b) of this section.

(2) Bulk asphalt-based surface coating recordkeeping.

(i) Any person who sells or offers for sale any asphalt-based

surface coating in quantities greater than 10 gallons in size must provide

to the purchaser, and the Department upon request, the following information regarding the coating:

(a) the invoice sheet, bill of sale, or product manifest document;

(b) the name of the supplier;

(c) the name of the manufacturer;

(d) the product name;

(e) the VOC content; and

(f) the Material Safety Data Sheet.

(ii) Any person who applies an asphalt-based surface coating from

a container greater than 10 gallons in size must have available for inspection by Department staff the documentation described in paragraph

(c)(2)(i) of this section until the time that all the relevant coating is applied or discarded.

Final rule as compared with last published rule: Nonsubstantive changes

were made in sections 200.9, 241.5(c)(1) and (2).

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

from: Kenneth Newkirk, 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.

Summary of Revised Regulatory Impact Statement

The New York State Department of Environmental Conservation

(Department) is revising the State Implementation Plan (SIP) to show that

New York State will attain the 8-hour ozone national ambient air quality

standard (NAAQS) by 2012 in the New York City metropolitan area and

by 2009 in the other nonattainment areas across the State. 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). This

rulemaking proposal is aimed at achieving some of the VOC emission

reductions necessary to do this.

Under the federal Clean Air Act (CAA), ozone pollution in the Northeast is recognized as a regional problem. Under CAA section 176A(b)(2),

the region is required to assess the degree of interstate transport of ozone

or its precursors throughout the region, assess strategies for mitigating the

interstate pollution, and recommend to EPA measures to reduce pollution.

According to the Environmental Conservation Law (ECL), the Department has the authority to undertake rules and regulations to protect the

natural resources and environment and control air pollution in order to

enhance the health, safety and welfare of the people of New York State

and their overall economic and social well being. ECL sections 1-0101,

3-0301, 19-0103, 19-0105, 19-0301, and 19-0303 establish the authority

of the Department to regulate air pollution and air contamination sources.

ECL section 19-0305 authorizes the Department to enforce the codes,

rules and regulations, and ECL sections 71-2103 and 71-2105 set forth the

applicable civil and criminal penalty structures. Together, these sections

of the ECL set out the overall state policy goal of reducing air pollution

and providing clean, healthy air for the citizens of New York and provide

general authority to adopt and enforce measures to do so.

In the northeastern United States the ozone nonattainment problem is

pervasive as concentrations of ozone often exceed the level of the national

ambient air quality standard by mid-afternoon on a summer day. The contiguous metropolitan areas of Washington, D.C., Baltimore, Philadelphia,

New York, and Hartford are designated ozone nonattainment areas. Unlike other pollutants, ozone is a secondary pollutant - not emitted directly

but formed in the atmosphere by a variety of photochemical reactions

involving VOCs and NOx in the presence of sunlight.

The Department is obligated to protect public health and satisfy federal

regulatory requirements intended to support that goal. The proposed

regulatory revisions are necessary to reduce VOC emissions to improve

air quality, protect public health, and meet the State's SIP obligations.

Revisions to Parts 205, 211, and promulgation of the new Part 241.

The Department is proposing to revise 6 NYCRR Parts 205 and 211

and promulgate a new Part 241 that will provide VOC emissions reductions from asphalt pavement and asphalt based surface coatings as part of

the effort to reduce ozone pollution in the state and reach attainment of the

8-hour ozone NAAQS. It applies to any entity that manufactures, sells, or

supplies asphalt pavement and asphalt based surface coatings.

These revisions are among a series of sustained actions undertaken by

New York State, in conjunction with EPA and other States, to control

emissions of ozone precursors, including nitrogen oxides and VOCs, so

that New York State and States in the Ozone Transport Region may attain

the ozone NAAQS. The effective date of the regulation is anticipated to be

January 1, 2011.

Hot mix asphalt paving is sometimes ‘‘cutback’’ (thinned) with volatile

organic solvents to ensure the mix can be properly applied. Since August

21, 1983, the use of cutback asphalt during the summer months is

prohibited pursuant to the provisions of section 211.4(a)(2). The Department intends to retain and clarify this prohibition in the present rule

making.

Currently, the maximum amount of VOCs that may be contained in

asphalt is limited by the provisions of section 211.4(b). The VOC content

of asphalt based surface coatings is currently subject to the limit established in Part 205, Architectural and Industrial Maintenance (AIM) Coatings, for the general category of flat coatings.

The proposed Part 241, Asphalt Pavement and Asphalt Based Surface

Coating, will contain all regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. The proposal requires that all

asphalt based surface coatings contain no more than 100 grams of VOC

per liter and requires labeling and documentation of the products.

The proposed regulatory revision of VOC emissions from asphalt pavement and asphalt based surface coating is expected to have a minimal

impact on consumers since formulations already exist that meet the

proposed limits. EPA provided guidance on the reduction of VOC from

asphalt, and included cost information in their ‘‘Control of VOCs from

NYS Register/October 6, 2010 Rule Making Activities

29
Use of Cutback Asphalt’’ EPA - 450 / 2-77-037. The reduction of VOC

emissions from asphalt formulations is expected to result in either a

decrease in the cost of production for manufacturers of asphalt formulations, or no cost impact at all. The Department is not aware of any additional costs that may cause price increases for asphalt formulations.

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

the proposed revisions to Parts 205, 200, and the promulgation of the new

Part 241, as discussed in the previous paragraph. The regulatory amendments will apply equally to all entities that manufacture, sell, or supply

asphalt pavement and asphalt based surface coatings. The regulatory

amendments will not impose a mandate on local governments, since

compliance obligations of local governments will be no different than

those of any other subject entities. The authority and responsibility for

implementing and administering Part 241 will reside solely with the

Department.

The requirements for recordkeeping and reporting under proposed Part

241 will only be applicable to persons who manufacture, sell, or supply

asphalt pavement and asphalt based surface coatings.

Under the proposed regulatory revisions, minor additional paperwork

will be imposed on manufacturers of asphalt pavement and sellers and applicators of asphalt based surface coatings. Sellers and applicators of any

asphalt based surface coating that is sold in a bulk container (greater than

10 gallons in size) will be required to retain the associated Material Safety

Data Sheet as well as other specific information about the coating until

such time that the entire amount of the coating in the bulk container is applied or finally discarded.

Revisions to Part 200

Concurrently, Part 200 is being revised to incorporate Federal requirements by adding six organic compounds to the section 200.1(cg) list of

compounds that are not VOCs. Similarly, the Hazardous Air Pollutant

(HAP) listing is being revised to remove methyl ethyl ketone. These revisions are being made to remain consistent with EPA's definition of volatile organic compounds (VOC) for purposes of preparing State implementation plans (SIPs) to attain the NAAQS for ozone under title I of the Clean

Air Act (CAA).

The Department is proposing to revise section 200.1(cg) to make it consistent with the federal definition of VOC that may be found at 40 CFR

51.100(s). EPA added various compounds to the list that specifies certain

compounds that are not to be considered VOCs. The department is proposing to add these compounds to the section 200.1(cg) list of compounds

that are not VOCs. The six added compounds include: dimethyl carbonate; 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C3F7OCH3) (known

as HFE-7000); 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-

(trifluoromethyl) hexane (known as HFE-7500, HFE-s702, T-7145, and

L-15381); 1,1,1,2,3,3,3-heptafluoropropane (known as HFC 227ea);

methyl formate (HCOOCH3); and propylene carbonate.

The CAA allows individuals to petition EPA to add or delete chemicals

from the HAPs list under CAA section 112(b)(3)(A). Pursuant to such a

petition process, methyl ethyl ketone was deleted from the list of HAPs

established in CAA 112(b). See 40 CFR 63.21, Deletion of methyl ethyl

ketone from the list of hazardous air pollutants. The Department, as a

result, is proposing to revise the list of HAPs at 200.1(ag) in order to

remove methyl ethyl ketone to be consistent with EPA. Methyl ethyl

ketone has been regulated and billed as both a VOC and a HAP in New

York State, but will be removed from the HAP list. Methyl ethyl ketone

will continue to be regulated as a VOC.

No new costs are being imposed as a result of these revisions to the

VOC and HAP lists in Part 200. It is possible that some Title V facilities

might experience a small decrease in the amount of their fee bill, and

consequently a reduction in operating costs, based upon the removal of the

six compounds from the VOC list. In the case of methyl ethyl ketone,

which the Department is proposing to remove from the HAP list, the

compound will remain billable as a regulated VOC.

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

the proposed revisions to the VOC and HAP lists in Part 200. The proposed

revisions to Part 200 impose no compliance requirements on any entity.

These regulatory actions are not expected to impose additional costs, and

could potentially result in a decrease in billed amounts.

Due to the addition of the six compounds to the list of compounds that

are not considered to be VOCs, some facilities might experience a small

decrease in the amount of paperwork that needs to be maintained.

Revised Regulatory Flexibility Analysis

New York faces a significant public health challenge from ground-level

ozone, which causes health effects ranging from respiratory disease to

death. In response to this public health problem, New York has enacted a

series of regulations designed to control ozone and its chemical precursors

which include volatile organic compounds (VOCs). Among other regulatory actions, New York is proposing to promulgate regulations designed

to limit the VOCs emitted by various grades of asphalt pavement and in

asphalt based surface coating in a new Part 241. Concurrently, Department regulations will be revised to align VOC and hazardous air pollutant

(HAP) listings with federal requirements in Part 200.

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

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

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

ozone NAAQS). The New York State Department of Environmental Conservation (Department) is revising the State Implementation Plan (SIP) to

show that New York State will attain the 8-hour ozone NAAQS by 2012

in the New York City metropolitan area and by 2009 in the other nonattainment areas across the State (Buffalo-Niagara Falls, Rochester, Capital

District, Poughkeepsie, Jamestown, Jefferson County, and Essex County).

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 VOCs.

Currently, the maximum amount of VOCs that may be contained in

asphalt is limited by the provisions of section 211.4(b). The VOC content

of asphalt based surface coatings is currently subject to the limit established in Part 205, Architectural and Industrial Maintenance (AIM) Coatings, for the general category of flat coatings.

The proposed Part 241, Asphalt Pavement and Asphalt Based Surface

Coating, will contain all regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. A new applicability section will

accompany the provisions that are being removed from Part 211 and

placed in Part 241. With two exceptions, proposed section 241.3 contains

the new, lower VOC content limits for various grades of asphalt pavement.

Proposed section 241.4 prohibits the use of cutback asphalt throughout the

year. Proposed section 241.5 mandates that all asphalt based surface coating applied in New York State contain no more than 100 grams of VOC

per liter and requires labeling and documentation of the asphalt based

surface coating products.

The Department is proposing to revise section 200.1(cg) to make it consistent with the federal definition of VOC that may be found at 40 CFR

51.100(s). Six compounds are considered to have negligible photochemical reactivity, and will be added to the list of compounds that are not

VOCs. Also, EPA has specified that methyl ethyl ketone will no longer be

considered a hazardous air pollutant (HAP), and the Department is revising its regulations to remain consistent. The compound will continue to be

regulated as a VOC.

Together, these modifications will ensure that the State achieves the

VOC emission reductions from asphalt pavement and asphalt based

surface coating needed so the State can make immediate progress towards

attaining the eight-hour ozone NAAQS statewide.

1. Effects on Small Businesses and Local Governments. This is not a

mandate on local governments. It applies to any entity that manufactures,

sells or applies asphalt pavement and asphalt based surface coatings.

Asphalt pavement reformulation is anticipated to provide a cost savings

for the manufacturers. Any small businesses or local governments

contracting to have asphalt paving or asphalt based surface coating

performed on their premises will incur potentially lower costs.

No new costs are being imposed as a result of the revisions to the VOC

and HAP lists in Part 200. All major facilities in New York State that emit

air pollutants are required to obtain a Title V permit under Part 201 and

pay a per-ton monetary fee according to the amount of regulated air pollutants they emit. The fee assessment includes all of the compounds listed

in Part 200. By removing a pollutant from the list, facilities are able to

realize a cost saving if they previously emitted the delisted compound.

In the case of methyl ethyl ketone, which the Department is proposing

to remove from the HAP list, the compound will remain billable as a

regulated VOC. As a result, there will be no additional costs to any

regulated entity.

2. Compliance Requirements. Local governments are not directly affected by the revisions to 6 NYCRR Parts 205, 211, or 241. Small businesses are required to comply with the same requirements as larger businesses, individuals, or any others. Anyone specifically contracting for

asphalt pavement or asphalt based surface coating, will acquire compliant

asphalt with low VOC content from manufacturers. All manufacturers of

asphalt pavement and asphalt based surface coating will be required to

reformulate their products. Small businesses or local governments

contracting for pavement will purchase compliant products from their

existing suppliers.

The proposed revisions to Part 200 will not impose a mandate on local

governments. The proposed revisions will impose no compliance obligation on any entity.

3. Professional Services. Local governments are not directly affected by

the revisions to 6 NYCRR Parts 205, 211 and 241. It is not anticipated that

small businesses that manufacture asphalt pavement and asphalt based

surface coating will need to contract out for professional services to

comply with this regulation. In the few cases where small manufacturers

do not already have compliant formulations, alternate asphalt formulations are readily available.

Rule Making Activities NYS Register/October 6, 2010

30
The proposed revisions to Part 200 will not require any entity to obtain

any professional services. No additional compliance burden is associated

with these regulatory actions, as the Department implements them.

4. Compliance Costs. There are no additional compliance costs for small

businesses and local governments as a result of this rule. Since there are

compliant asphalt formulations now available, small businesses and local

governments are not expected to see a price increase for the purchase of

compliant asphalt pavement.

The proposed revisions to Part 200 impose no compliance requirements

on any entity. These regulatory actions are not expected to impose additional costs, and could potentially result in a decrease in billed amounts.

It should be noted that the impact to consumers is expected to be

minimal since compliant asphalt pavement and asphalt based surface coatings formulations are already available. EPA, in its guidance (‘‘Control of

VOCs from Use of Cutback Asphalt’’ EPA - 450 / 2-77-037) recognizes

that existing reformulations will likely reduce costs to manufacturers, and

not cause any price increases.

5. Minimizing Adverse Impact. Local governments are not directly affected by the revisions to Parts 205 and 211 and addition of the new 241.

The Department does not anticipate any issues regarding reformulation of

asphalt products. This regulation will provide manufacturers with consistent VOC formulations, and potentially cost savings.

The revision of the VOC and HAP listings will provide consistency for

all areas of the state, and facilities could potentially select compounds

with lower photochemical reactivity. The authority and responsibility for

implementing and administering the changes to Part 200 will reside solely

with the Department.

6. Small Business and Local Government Participation. The requirement for reduced VOC content in asphalt pavement and asphalt based

surface coating is consistent for all manufacturers statewide. The Department will also be giving official notice of this rulemaking to the public,

including businesses and each of the facilities that manufacture asphalt in

the state. The authority and responsibility for implementing and administering Part 241 and the changes to Part 200 will reside solely with the

Department.

As a member of the Ozone Transport Commission (OTC), the Department participated in outreach through development of regulatory guidance.

The Department participated in outreach to the regulated community

through this process, including the solicitation of comments from affected

industry and a public meeting. A specific New York State process will be

undertaken, extending public notice, hearing, and comment opportunities

to all areas of the state as part of this rulemaking.

7. Economic and Technological Feasibility. Local governments are not

directly affected by the revisions to Parts 205 or 211, or the addition of the

new Part 241. Compliant asphalt pavement and asphalt based surface coating are available to meet all consumer needs. The VOC content limits are

consistent with other OTC states. Asphalt pavement products at or below

the specific VOC content limits are currently available.

The revised listing of VOCs in Part 200 that are considered to have

negligible photochemical reactivity was determined by a specific EPA

process. Similarly, EPA has reviewed sufficient information regarding

methyl ethyl ketone to determine that it no longer needs to be considered a

HAP.

Revised Rural Area Flexibility Analysis

New York faces a significant public health challenge from ground-level

ozone, which causes health effects ranging from respiratory disease to

death. In response to this public health problem, New York has enacted a

series of regulations designed to control ozone and its chemical precursors

which include volatile organic compounds (VOCs). Among other regulatory actions, New York is proposing to promulgate regulations designed

to limit the VOCs emitted by various grades of asphalt pavement and in

asphalt based surface coating in a new Part 241. Concurrently, Department regulations will be revised to align VOC and hazardous air pollutant

(HAP) listings with federal requirements in Part 200.

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

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

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

ozone NAAQS). The New York State Department of Environmental Conservation (Department) is revising the State Implementation Plan (SIP) to

show that New York State will attain the 8-hour ozone NAAQS by 2012

in the New York City metropolitan area and by 2009 in the other nonattainment areas across the State (Buffalo-Niagara Falls, Rochester, Capital

District, Poughkeepsie, Jamestown, Jefferson County, and Essex County).

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 VOCs.

Currently, the maximum amount of VOCs that may be contained in

asphalt is limited by the provisions of section 211.4(b). The VOC content

of asphalt based surface coatings is currently subject to the limit established in Part 205, Architectural and Industrial Maintenance (AIM) Coatings, under the general category of flat coatings.

The proposed Part 241, Asphalt Pavement and Asphalt Based Surface

Coating, will contain all regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. A new applicability section will

accompany the provisions that are being removed from Part 211 and

placed in Part 241. With two exceptions, proposed section 241.3 contains

the new, lower VOC content limits for various grades of asphalt pavement.

Proposed section 241.4 prohibits the use of cutback asphalt throughout the

year. Proposed section 241.5 mandates that all asphalt based surface coatings contain no more than 100 grams of VOC per liter and requires labeling and documentation of the asphalt based surface coating products.

The proposal includes reducing the VOC content of, and consequently

emissions from, asphalt pavement and asphalt based surface coatings for

all classifications of these products. The reduction is consistent with a

regional effort to reduce VOC emissions from asphalt products, agreed

upon through the Ozone Transport Commission (OTC).

The Department is proposing to revise section 200.1(cg) to make it consistent with the federal definition of VOC that may be found at 40 CFR

51.100(s). Six compounds are considered to have negligible photochemical reactivity, and will be added to the list of compounds that are not

VOCs. Also, EPA has specified that methyl ethyl ketone will no longer be

considered a HAP, and the Department is revising its regulations to remain

consistent. The compound will continue to be regulated as a VOC.

These changes are a necessary part of the Department's strategy to bring

the New York City Metropolitan area into attainment with the ozone

NAAQS by 2012 and the upstate nonattainment areas by 2009.

The proposal will ensure that the State achieves the VOC emission

reductions from asphalt pavement and asphalt based surface coatings and

cutback asphalt needed to make immediate progress towards attaining the

eight-hour ozone NAAQS statewide.

1. Types and estimated number of rural areas: Rural areas are not

adversely affected by the revisions to Parts 205, 211, and 241. The proposal will apply on a statewide basis. The impact to rural consumers, if

any, is expected to be minimal since compliant asphalt formulations are

currently available from the existing asphalt pavement production plants.

The revisions to Part 200 do not impose any compliance obligations on

any facility. They apply consistently throughout the state, with no adverse

impact on rural areas.

2. Reporting, recordkeeping and other compliance requirements: Parts

205, 211, and 241 will apply on a statewide basis. Rural area businesses

are not expected to be affected by these revisions. Professional services

are not anticipated to be necessary to comply with this rule. Part 241

imposes minor recordkeeping requirements on all manufacturers and suppliers of asphalt pavement and asphalt based surface coatings. These

requirements apply consistently statewide.

The revisions to Part 200 do not impose any compliance obligations on

any facility, and will not adversely affect rural areas.

3. Costs: The cost of proposed regulations regarding reduction of VOC

content in asphalt pavements will be minimal. Compliant asphalt pavement products exist and are readily available to replace higher VOC

content asphalt pavement. No additional costs will be incurred by the

industry and the elimination of petroleum based VOC content reduces

product cost. According to Environmental Protection Agency Control

Technology Guidance (EPA-450/2-77-037) the use of lower VOC asphalts

are more cost effective for users. The same mixing plant that formulates

mixtures can prepare compliant pavement mixtures without any equipment changes.

No new costs are being imposed as a result of the revisions to the VOC

and HAP lists in Part 200. All major facilities in New York State that emit

air pollutants are required to obtain a Title V permit under Part 201 and

pay a per-ton monetary fee according to the amount of regulated air pollutants they emit. The fee assessment includes all of the compounds listed

in Part 200. By removing a pollutant from the list, facilities are able to

realize a cost saving if they previously emitted the delisted compound.

In the case of methyl ethyl ketone, which the Department is proposing

to remove from the HAP list, the compound will remain billable as a

regulated VOC. As a result, there will be no additional costs to any

regulated entity.

4. Minimizing adverse impact: The proposal is not anticipated to have

an adverse effect on rural areas. The rule is intended to create air quality

benefits for the entire state, including rural areas, through the reduction of

ozone forming pollutants and the allowance of compounds with minimal

photochemical reactivity. These revisions are not expected to have adverse

impacts on rural areas since compliant asphalt pavement and asphalt based

surface coatings will be available statewide. The regulation ensures a fair

and level playing field for all asphalt pavement and asphalt based surface

coatings manufacturers, and provides consistent VOC and HAP lists for

facilities throughout the state.

5. Rural area participation: Rural areas are not specifically affected by

the revisions. Reformulations of asphalt pavement will potentially provide

a cost savings to asphalt manufacturers and the existing facilities providNYS Register/October 6, 2010 Rule Making Activities

31
ing asphalt pavement will remain. VOC and HAP listings are consistent

for all areas of the state, and facilities could potentially select compounds

with lower photochemical reactivity.

As a member of the OTC, the Department participated in outreach

through development of regulatory guidance in the form of a model rule.

The Department participated in outreach to the regulated community

through this process, including the solicitation of comments from affected

industry and a public meeting. The Department plans on holding public

hearings at various locations throughout New York State once the regulation is proposed. Some of these locations will be convenient for persons

from rural areas to participate. Additionally, there will be a public comment period in which interested parties can submit written comments.

Revised Job Impact Statement

1. Nature of impact: The Department of Environmental Conservation

(the Department) proposes to revise Parts 205 and 211 and add a new Part

241 to reduce volatile organic compound (VOC) emissions from asphalt

pavement and asphalt based surface coatings. Part 200 will be revised to

be consistent with federal requirements regarding organic compounds and

remove methyl ethyl ketone from the Hazardous Air Pollutants (HAP) list.

The proposal includes reducing the VOC content of, and consequently

emissions from, asphalt paving for all classifications of asphalt. The reduction is consistent with a regional effort to reduce VOC emissions from

asphalt paving, agreed upon through the Ozone Transport Commission

(OTC). These changes are a necessary part of the Department's strategy to

bring the New York City Metropolitan area into attainment with the ozone

NAAQS by 2012 and the upstate nonattainment areas by 2009.

Currently, the maximum amount of VOCs that may be contained in

asphalt is limited by the provisions of section 211.4(b). The VOC content

of asphalt based surface coatings is currently subject to the limit established in Part 205, Architectural and Industrial Maintenance (AIM) Coatings, under the general category of flat coatings.

The proposed Part 241, Asphalt Pavement and Asphalt Based Surface

Coating, will contain all regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. A new applicability section will

accompany the provisions that are being removed from Part 211 and

placed in Part 241. With two exceptions, proposed section 241.3 contains

the VOC content limits for various grades of asphalt pavement. Proposed

section 241.4 prohibits the use of cutback asphalt throughout the year.

Proposed section 241.5 mandates that all asphalt based surface coatings

contain no more than 100 grams of VOC per liter and requires labeling

and documentation of the asphalt based surface coating products.

These efforts will help New York to make immediate progress towards

attaining ozone standards statewide. Asphalt formulations which meet the

lower VOC content limits are currently available, therefore manufacturers

will not be adversely impacted by this rule. These revisions are not

expected to have an adverse impact on jobs and employment opportunities

in the State. Part 211 has applied Statewide since it was promulgated in

1983. Part 241 will likewise be applied statewide. Since the proposed

lower VOC content limits are anticipated to reduce costs to asphalt pavement and asphalt based surface coatings producers, there are no expected

adverse impact on jobs.

The Department is proposing to revise section 200.1(cg) to make it consistent with the federal definition of VOC that may be found at 40 CFR

51.100(s). The Environmental Protection Agency (EPA) added various

compounds to the list that specifies certain compounds not to be considered

VOCs. The Department is proposing to add these compounds to the section 200.1(cg) list of compounds that are not VOCs. The six added

compounds include: dimethyl carbonate; 1,1,1,2,2,3,3-heptafluoro-3-

methoxy-propane (n-C3F7OCH3) (known as HFE-7000); 3-ethoxy1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (known

as HFE-7500, HFE-s702, T-7145, and L-15381); 1,1,1,2,3,3,3-

heptafluoropropane (known as HFC 227ea); methyl formate (HCOOCH3);

and propylene carbonate. These compounds are considered to have

negligible photochemical reactivity.

The federal Clean Air Act (CAA) allows individuals to petition EPA to

add or delete chemicals from the HAPs list under CAA section

112(b)(3)(A). Pursuant to such a petition process, methyl ethyl ketone was

deleted from the list of HAPs established in CAA 112(b). See 40 CFR

63.21, Deletion of methyl ethyl ketone from the list of hazardous air

pollutants. The Department is proposing to revise the list of HAPs at 200.1

(ag) in order to remove methyl ethyl ketone and to maintain consistency

with the federal list. Methyl ethyl ketone has been regulated and billed as

both a VOC and a HAP in New York State, but will be removed from the

HAP list. Methyl ethyl ketone will continue to be regulated as a VOC.

2. Categories and numbers affected: This rule will affect approximately

70 in-State asphalt pavement and asphalt based surface coating manufacturing facilities. The VOC listing and HAP delisting affects any facility

utilizing the compounds listed.

3. Regions of adverse impact: The Department does not expect there to

be regions of adverse impact in the State. The VOC emission limits in Part

211 have applied statewide since 1983 and there has been no resulting

adverse impact on any particular region of the State. Of the approximately

70 in-state asphalt pavement and asphalt based surface coating manufacturers, three are located in the New York City Metropolitan Area. The Department, however, expects that compliant asphalt products will be readily

available and that there will potentially be a cost savings.

The VOC listing revision and removal of methyl ethyl ketone from the

HAP list will not adversely impact employment. The facilities utilizing

the compounds will be able to avoid the associated emissions fee,

potentially reducing facility operating costs.

There will be no adverse impact on employment as a result of this

rulemaking.

4. Minimizing adverse impact: The Department is providing an

implementation date of January 1, 2011 in order to provide sufficient time

for the regulated community to prepare for compliance with Part 241. The

facilities must reformulate asphalt pavement products, but compliant

formulations already exist. The Department, therefore, does not anticipate

any adverse impacts on employment from the adoption of these rule

revisions. The Department, moreover, believes that this rule will have a

positive economic impact on the asphalt pavement industry because there

is a potential reduction in operating costs.

As a member of the OTC, the Department participated in outreach

through development of regulatory guidance, in the form of a model rule.

The Department participated in outreach to the regulated community

through this process, including the solicitation of comments from affected

industry and a public meeting. A specific New York State process will be

undertaken, including public notice, hearing, and comment opportunities

to all areas of the state as part of this rulemaking.

There are no adverse impacts expected from either the listing of VOC

compounds or from the elimination of methyl ethyl ketone from the HAP

list. Facilities will be allowed to use these compounds, with reduced

photochemical reactivity, as alternatives to other compounds, reducing

their environmental impact and, potentially, operating costs.

In sum, the Department does not expect this regulation to have an

adverse effect on employment in the State.

5. Self employment opportunities: Not applicable.

Assessment of Public Comment

The New York State Department of Environmental Conservation's

(NYSDEC) received a set of comments from the US EPA regarding the

proposed regulation.

1. Comment: EPA recommends that New York achieve regional consistency by adopting a similar VOC limit to the other member states of the

OTC which limits the emulsified asphalt to a 0.1 percent VOC by weight

(or comparable limit in milliliters of oil distillate per 200 gram sample)

during the ozone season months.

Response: Department staff representing New York in the Ozone

Transport Commission (OTC) entered into a ‘Memorandum of Understanding Among the States of the Ozone Transport Commission Regarding the Development of Specific Control Measures to Support Attainment

and Maintenance of the Ozone National Ambient Air Quality Standards'

on June 1, 2000 (the MOU) to address the regional problem of ozone

nonattainment across the Ozone Transport Region. The MOU recognized

EPA-identified emission reduction shortfalls in the attainment demonstrations of some OTC states, and that regional control measures could best

help to address these shortfalls.

The OTC member states issued a formal resolution during the June 7,

2006 OTC Annual Meeting in which they agreed to pursue rulemakings or

other implementation methods to achieve reductions of emissions from

various categories of VOCs and NOx. See ‘Resolution 06-02 Of The

Ozone Transport Commission Concerning Coordination And Implementation Of Regional Ozone Control Strategies For Certain Source Categories'.

By Resolution 06-02, the OTC member states agreed to establish a VOC

content limit (emission rate) for asphalt pavement of 4 percent.

Approximately 75 percent of all asphalts used in NYS are limited by

the proposed regulation to 2.5 percent or less VOC content by weight (five

or three milliliters oil distillate) as follows: First, approximately 50 percent

of all asphalt emulsions in NYS are in the first category in the regulation

under subdivision 241.3(a) (RS-1, SS-1, SS-1h, CRS-1, CSS-1, and CSS1h) and are used primarily as penetrating prime coats between layers of

asphalt pavement. Second, approximately 25 percent of asphalts are from

the second category under subdivision 241.3(b) (RS-2, CRS-2, and HFRS2).

The remaining 25 percent of asphalts are known as ‘‘mixing grade’’

emulsions. These asphalts are used with a dense graded aggregate in a variety of cold mix paving and recycling operations. These grades need more

solvent to appropriately mix the aggregate and emulsion. The solvent is

primarily needed to coat the fine aggregate. As the amount of fine aggregrate in the mix is increased, more solvent must be added to the mix to

sufficiently saturate it. This is of particular concern to localities as they are

more apt to use stone with high fine aggregate proportions. These types of

Rule Making Activities NYS Register/October 6, 2010

32
asphalts are included in the last 2 categories under subdivisions 241.3(c)

and 241.3(d) (MS-2, HFMS-2 and HFMS-2h) and (CMS-2 and CMS-2h).

Division of Air Resources staff used a value of four percent for asphalt

when they performed modeling for the OTC to determine whether these

proposed reductions, along with all of the other control measures, would

be enough to demonstrate attainment of air quality standards. The categories in the proposed regulation (subdivisions 241.3(a), (b), (c), and (d))

represent reductions of 25 percent, 17 percent, 20 percent, and 17 percent,

respectively.

The Department chose to reduce VOC content by these percentages

because the Department believes, based on input from the New York State

Department of Transportation, that requiring further VOC reductions

would hamper the development of emerging technologies. NYSDOT is

experimenting with the use of emulsified asphalt in recycled-in-place

asphalt pavements and warm mix asphalt and has concluded that further

VOC reductions at this time will limit the development of these

technologies.

2. Comment: Proposed subpart 241.4, ‘‘Cutback Asphalt’’ prohibits the

use of cutback asphalt except in certain circumstances. EPA recommends

that New York establish a VOC content limit for those certain circumstance exceptions, i.e., 0.1 percent ( or equivalent limit expressed in milliliters of oil distillate per 200 gram sample) from April 15 to October 15.

Response: This rulemaking does not specifically address the VOC

content limit for cutback asphalt. The Department merely continued the

prohibition on the use of cutback asphalt that already existed (along with

the limited exemptions).

3. Comment: Proposed subpart 214.5, ‘‘Asphalt Based Surface Coating’’ establishes a 100 gram of VOC per liter limit. New York should

consider revising the limit to 50 gram per liter, consistent with the CARB's

SCM and the July 1, 2009 California Bay Area AQMD Regulation 8,

Organic Compounds Rule 3, Architectural Coatings ‘‘driveway sealer’’

limit with a future effective date of 1/1/2011.

Response: The Department is currently participating in an ongoing OTC

process to develop model rules to update the Architectural and Industrial

Maintenance coatings regulations, in coordination with other states in the

region. Department staff chair a subcommittee charged with investigating

lower limitations for a number of coatings, including asphalt based surface

coatings. The subcommittee is considering the VOC content limit for

asphalt coatings at 50 grams per liter. Once the model rules are developed

and an MOU among the OTC states has been signed by the OTC member

commissioners, the Department will consider revising Part 241

accordingly.

4. Comment: If New York decides to adopt a seasonal limit for the

cutback or emulsified asphalt - New York should then include a provision

which requires that any noncompliant asphalt be stored in sealed containers during the ozone season.

Response: The Department appreciates the suggestion.

Department of Health

EMERGENCY

RULE MAKING

NYS Newborn Screening Panel

I.D. No. HLT-40-10-00008-E

Filing No. 964

Filing Date: 2010-09-17

Effective Date: 2010-09-17

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

Action taken: Amendment of section 69-1.2 of Title 10 NYCRR.

Statutory authority: Public Health Law, section 2500-a

Finding of necessity for emergency rule: Preservation of public health.

Specific reasons underlying the finding of necessity: Advancing technology, and emerging and rising public expectations for this critical public

health program demand that the panel of screening conditions be expanded

through this amendment of 10 NYCRR Section 69-1.2, which would add

one inherited disorder of the immune system to the scope of newborn

screening services already provided by the Department's Wadsworth

Center. This regulatory amendment adds one condition - severe combined

immunodeficiency (SCID) - to the 44 genetic/congenital disorders and

one infectious disease that comprise New York State's newborn screening

test panel. The Department of Health finds that immediate adoption of this

rule is necessary to preserve the public health, safety and general welfare,

and that compliance with State Administrative Procedure Act (SAPA)

Section 202(1) requirements for this rulemaking would be contrary to the

public interest.

Immediate implementation of the proposed screening for SCID is both

feasible and obligatory at this time. A laboratory test method using a dried

blood spot specimen was recently validated by the Department's Newborn

Screening Program. The Program has determined that a scaled-up version

of the recently developed test method reproducibly generates reliable

results for the large number of newborns' specimens accepted by the

Program. The required instrumentation (i.e., robots to prepare DNA and

thermal cyclers to detect TRECs) is already in operation at the Department's Wadsworth Center laboratory and dedicated to newborn screening.

A system for follow-up and ensuring access to necessary treatment for

identified infants is fully established and adequately staffed.

Early detection through screening is critical to successful treatment of

SCID. A survey of more than 150 patients commissioned by the Immune

Deficiency Foundation found that SCID patients who were diagnosed

early and treated by 3.5 months showed a 91-percent survival rate; those

treated after 3.5 months had a 76-percent survival rate. Average costs for a

bone marrow transplant also increase significantly after the infant reaches

3.5 months of age, exceeding $300,000 because of additional complications and the need for more supportive care. Now that the Program is

technically proficient in DNA technology, data collection and interpretation, and has demonstrated proficiency in triage and referral procedures,

failure to include SCID screening immediately would mean infants would

go untested, undetected, and may suffer serious systemic infections and

even succumb to an early death. Accordingly, the Department is obligated

to avoid further delays in implementing screening for SCID.

Subject: NYS Newborn Screening Panel.

Purpose: Adds Severe Combined Immunodeficiency (SCID) to NYS

Newborn Screening Panel.

Text of emergency rule: Section 69-1.2(b) is amended as follows:

(b) Diseases and conditions to be tested for shall include:

argininemia (ARG);

****

propionic acidemia (PA);

severe combined immunodeficiency and other inherited T-cell deficiencies (SCID)

short-chain acyl-CoA dehydrogenase deficiency (SCADD);

tyrosinemia (TYR); and

very long-chain acyl-CoA dehydrogenase deficiency (VLCADD)

This notice is intended to serve only as a notice of emergency adoption.

This agency intends to adopt this emergency rule as a permanent rule and

will publish a notice of proposed rule making in the State Register at some

future date. The emergency rule will expire December 15, 2010.

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

from: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs

Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-

7488, email: regsqna@health.state.ny.us

Summary of Regulatory Impact Statement

Statutory Authority:

Public Health Law (PHL) Section 2500-a (a) provides statutory authority for the Commissioner of Health to designate in regulation diseases or

conditions for newborn testing in accordance to the Department's mandate

to prevent infant and child mortality, morbidity, and diseases and disorders

of childhood.

Legislative Objectives:

In enacting PHL Section 2500-a, the Legislature intended to promote

public health through mandatory screening of New York State newborns

to detect those with serious but treatable neonatal conditions and to ensure

their referral for medical intervention. Emerging medical treatments and

the complexity of genetic testing require periodic reassessments of the

benefits of newborn screening. These reassessments ensure that the New

York State's Newborn Screening Program (the NYS Program) meets the

legislative intent of preventing childhood diseases and disorders by early

detection. This proposal, which would modify the newborn screening

panel currently in regulation by adding severe combined immunodeficiency (SCID), is in keeping with the legislature's public health aims of

early identification and timely medical intervention for all the State's

youngest citizens.

Needs and Benefits:

Severe Combined Immunodeficiency (SCID) is a primary immune deficiency, which results in the infant's failure to develop a normal immune

system. The defining characteristic for SCID is a severe defect in the production and function of T-cells and/or B-cells. Affected infants are

susceptible to a wide range of infections that are typically controlled by a

NYS Register/October 6, 2010 Rule Making Activities

33