will not lead to large increases in the cost of HMA. State, county and local

governments should not be expected to incur excessive additional costs

under these new requirements.

Some commenters expressed the difficulty the industry would have in

meeting the compliance date of the original proposal, particularly due to

the uniqueness of plants and the configuration of new technologies that

would have to be assessed at each site. The Department has included a

prolonged compliance period in the re-proposal.

Commenters were concerned about the consistency with which the

control technology assessment would be reviewed and interpreted by the

Department's regional offices. They cited a lack of reconciliation

procedures if the owner and Department disagree on the outcome of the

control technology analysis. The Department has also not provided a definition of ‘‘low NOx burner’’ or stated specific emission rate targets, which

could add to inconsistency. In the re-proposal, the control technology assessment has been simplified to an economic feasibility analysis for a low

NOx burner. For consistency in the economic feasibility test, the Department will utilize the approach contained in its Air Guide 20 guidance document and the value of Reasonable Available Control Technology (RACT)

at the time the analysis is done. Burner manufacturers contacted by the

Department have dedicated models which they refer to as ‘‘low NOx,’’

which should remove ambiguity. Department staff will also be encouraged to share information on which burners get approved as being ‘‘low

NOx.’’ If the plant owner and Department staff differ in their interpretation of the results of the assessment, the parties will work together in an

effort to reach a common conclusion as is the case with most of the Department air pollution control requirements.

A comment was received that the Department should not require plants

to operate with natural gas to reduce NOx emissions, as not all sites are

serviced by natural gas and the cost of new infrastructure at these plants

would be exorbitant. The Department had never intended to use this as a

requirement, and clarifying language has been added to the RIS to that

effect.

It was noted by commenters that some HMA plants maintain active

permits yet are non-operational for long periods of time. They noted that

the proposed regulations do not offer stipulations for such plants, and suggested that inactive plants be exempted from the control technology assessment until they are scheduled for reactivation. The Department has

included conditions in the revised express terms to account for inactive

plants.

Numerous commenters discussed how, in the last five years, the

industry has made concerted efforts to develop and promote the use of

warm mix asphalt (WMA), which heats the aggregate to temperatures approximately 35 percent lower than traditional HMA and reduces fuel

consumption by approximately 25 percent and NOx emissions by 34

percent. The industry expects to see increased use of WMA over the next

few years as it becomes more commonly accepted for large paving

projects. Commenters noted that the use of WMA will reduce emissions

without a large capital investment, will reduce fuel consumption and will

not greatly affect blacktop costs.

The Department finds the potential growing use of WMA to be

encouraging, and recognizes that the industry will naturally devote more

and more of its production to WMA as its use becomes accepted for a

greater number of projects. The New York State Department of Transportation (NYSDOT) is still conducting testing on the use of WMA to ensure

that it can be used as a suitable replacement for HMA on large jobs, and

handle the most severe weather and traffic conditions. Because NYSDOT

has yet to finalize its specifications for WMA and define where it can be

acceptably applied, the Department is unable to explicitly require its production and use; WMA will likely have varying levels of demand in different parts of the state as well, further complicating any attempts to

regulate its use. The Department encourages its expanded production when

possible. However, the Department is retaining the requirement for a low

NOx burner analysis in the re-proposal because NOx emissions from the

largest plants will likely remain high enough to justify the installation of a

low NOx burner.

In light of the low levels of NOx emissions from this source category,

commenters stated that the Department should focus on regulating NOx

emissions from larger sources to achieve compliance with the ozone

NAAQS. The Department is currently undertaking a number of additional

rulemakings to seek NOx and volatile organic compound (VOC) reductions from other sources for the purpose of attaining the NAAQS. This

includes the other source categories identified in the OTC's Resolution

06-02. The Department has determined that it is necessary to regulate

smaller and smaller sources to obtain adequate reductions of ozone precursors so that air quality in all areas of New York State can reach healthy

levels within the NAAQS.

Citing reasons such as excessive cost and minimal reductions in NOx

emissions, a couple of commenters recommended that the regulation be

withdrawn. Others called for a review of more practical options of NOx

control from HMA. In the latter case, it was suggested that the Department

work with NYMaterials, which represents many HMA plants throughout

the state, to identify alternative compliance methods which achieve more

cost-effective NOx reductions. The Department explains in the ‘‘Alternatives’’ section of the RIS why the ‘‘no action’’ option is not practicalnamely, that these emission reductions are necessary to aid in reaching attainment of the ozone NAAQS. In considering alternative compliance

options for the re-proposal, the Department has been having discussions

with NYMaterials, beginning with a meeting at the Department's central

office on February 8, 2010. These conversations have been very productive and helpful for the purposes of this re-proposal.

One commenter claimed the proposed language did not go far enough

in separating cases where application of RACT requirements would serve

the important purpose of NOx reduction from cases where application of

RACT would be wasteful. For cases where low emission rates have been

achieved without the use of a low NOx burner, the commenter felt an

economical and technical analysis along with the permit modification

would be onerous, and that provisions for annual tune-ups and stockpile

management should be sufficient. The Department is taking steps in its reproposal to manage the costs to small, well-managed plants. Investigation

of controls beyond low NOx burners is no longer a requirement. For

example, the economic analysis required for the installation of a low NOx

burner will prevent such small and efficient plants from installing equipment which will lead to minimal emission reductions, because the costper-ton figure for these plants would exceed the threshold established as

RACT. Annual burner tune-up and stockpile management requirements

have been included in the re-proposal.

A commenter noted that the HMA provisions should be expanded to

apply to all plants throughout the state, as the applicability was currently

limited by subdivision 212.10(a). The re-proposal applies to all HMA

plants throughout the state.

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

Limiting Emissions of Volatile Organic Compounds (VOCs) from

Commercial and Industrial Adhesives, Sealants and Primers

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

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

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

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

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

and 71-2105

Subject: Limiting emissions of Volatile Organic Compounds (VOCs)

from commercial and industrial adhesives, sealants and primers.

Purpose: To continue making progress towards reducing the eight hour

ozone levels for New York's designated nonattainment areas.

Substance of revised 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 in

Part 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 New

York State, or units of any adhesive, sealant or primer product, less

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

16 ounces.

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

2006 model rule for commercial and industrial adhesives and sealants,

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

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

in 1998. In addition, the proposed rule incorporates EPA recommendations contained in its Control Technique Guidelines (CTG) document

released in 2008 entitled, ‘‘Control Technique Guidelines for Miscellaneous Industrial Adhesives’’ (EPA 453/R-08-005), including adheRule Making Activities NYS Register/June 16, 2010

10
sive application methods, and work practices for adhesive-related

handling activities and cleaning materials. The proposed revisions

have the following requirements:

A. Regulates the application of commercial and industrial adhesives,

sealants, adhesive primers and sealant primers by providing options

for appliers to either to use a product with a VOC content equal to or

less than a specified limit or to use add-on controls;

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

weight;

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

adhesives, thinners and adhesive-related waste materials;

D. Establishes a VOC limit for surface preparation solvents;

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

at least 85 percent overall control efficiency (capture and destruction

efficiency), by weight;

F. Requires that VOC containing materials must be stored or

disposed of in closed containers;

G. Prohibits the sale of any commercial or industrial adhesive, sealant, adhesive primer or sealant primer which exceeds the VOC content

limits listed in the rule;

H. Establishes that manufacturers must label containers with the

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

content on an as-applied basis when used in accordance with the

manufacturer's recommendations regarding thinning, reducing, or

mixing with any other VOC containing material; and

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

J. 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 associated

with research and development, solvent welding operations for medical devices, plaque laminating operations, products or processes

subject to other New York State rules, low-VOC products (less than

20 g/l), and adhesives subject to the New York State rules based on

the OTC 2001 consumer products model rule. Additionally, the model

rule provides an exemption for adhesive application operations at

emissions sources that use less than 55 gallons per 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.

Revised rule compared with proposed rule: Substantial revisions were

made in sections 228-2.1(a), (b), 228-2.2(b), 228-2.3(a), (b), (d), (g), 228-

2.4(a)(6), (c)(1), (2), (g) and 228-2.7(a).

Text of revised proposed rule and any required statements and analyses

may be obtained from Robert Waterfall, P. E., NYS DEC - Division of

Air Resources, 625 Broadway, Albany, NY 12233, (518) 402-8403, email:

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

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

Public comment will be received until: July 16, 2010.

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

Environmental Quality Review Act, a Short Environmental Assessment

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

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

Summary of 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). The

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

that would help progress toward attainment. The adoption of the

proposed Subpart 228-2 amendment, Commercial and Industrial

Adhesives and Sealants, and attendant revisions to Part 200, General

Provisions, marks the latest action in a sustained series of actions undertaken by New York State, in concert with EPA and other States, in

an effort to control emissions of ozone precursors, NOx and VOCs, so

that the New York State may attain the ozone NAAQS.

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

programs established by other States and Federal Implementation

Plans (FIP)s imposed by EPA, lower levels of ozone in New York

State and will decrease adverse public health and welfare effects. In

enacting the Title I ozone control requirements of the 1990 CAA

amendments, Congress recognized the hazards of ozone pollution and

mandated that States, especially those in the Northeast U.S. Ozone

Transport Region (OTR), implement stringent regulatory programs in

order to meet the ozone NAAQS.

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

manufacturers or buys applicable commercial or industrial adhesives,

sealants and primers in New York State. The cost per ton of VOC

reduced and cost increase per unit will vary, depending on the specific

adhesive category and compliance strategy chosen. It should be noted

that a number of products already comply with the OTC model rule

for VOC content limits, and would not require reformulation. An EPA

analysis of the impacts of implementing the recommended levels of

controls in its Control Technology Guidelines (CTG) for Miscellaneous Industrial Adhesives, based on CARB developed cost

estimates, assumes that all facilities will choose the low-VOC adhesive materials compliance alternate. With the belief that low-VOC

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

of adhesives with higher VOC contents, the cost effectiveness is

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

VOC emission reduction. EPA also anticipates that work practice

recommendations will result in a net cost savings, but these savings

could not be accurately estimated.

There are no direct costs to state and local governments associated

with this proposed regulation. However, state and local governments,

like other consumers, will need to pay the increased prices for

consumer products that are manufactured using commercial and

industrial adhesives, sealants and primers resulting from compliance

with the new, more restrictive VOC content limits. No additional record keeping, reporting, or other requirements will be imposed on local

governments under the rulemaking. The authority and responsibility

for implementing and administering the proposed Subpart 228-2

resides solely with the Department. Requirements for record keeping,

reporting, etc. are applicable only to the person(s) who manufactures,

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

sealants and primers. This is not a mandate on local governments. It

applies to any entity that owns or operates a subject source.

The OTC workgroup assigned to the adhesives and sealants area

source rule development evaluated four alternatives in its model rule.

These are:

1. No action taken.

2. VOC content limits by product category.

3. Add-on air pollution control equipment.

4. Work practices to reduce VOC emissions.

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

these alternatives will allow industrial and commercial users of the

regulated adhesives and sealants greater flexibility in reducing VOC

emissions. Facilities presently operating control equipment in their

NYS Register/June 16, 2010 Rule Making Activities

11
operations can continue to use this alternate for compliance with the

proposed rules. At the same time, to achieve compliance, affected facilities can also pursue the use of reduced VOC or low-VOC adhesives

and sealants, add-on control equipment, as well as adoption of

prescribed work practices. In addition, the proposed rule incorporates

EPA recommendations contained in its Control Technique Guidelines

(CTG) document released in 2008 entitled, ‘‘Control Technique

Guidelines for Miscellaneous Industrial Adhesives’’ (EPA 453/R-08-

005), including adhesive application methods, and work practices for

adhesive-related handling activities and cleaning materials. Facilities

using less than 55 gallons of noncompliant commercial or industrial

adhesives, sealants, primers and cleanup solvents in a 12-month period are exempt from the product VOC content requirements of the

proposed rule.

The compliance schedule for this rulemaking specifies that three

months 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 for

use 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 the

proposed amendment to 6 NYCRR Part 228, Subpart 228-2, Commercial and Industrial Adhesives, Sealants and Primers, and attendant

revisions to 6 NYCRR Part 200, General Provisions. Small businesses

that manufacture affected products must comply with the VOC content

limits, labeling and reporting requirements of Subpart 228-2. Since

this can represent a small portion of their total business and the burden

of reformulation falls on the major manufacturers, the impact on small

businesses will be minimal, if any. For any cases where changes are

made to products through reformulation, there is the possibility that

these same small businesses would be able to provide the required

alternative products. 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 the

maximum VOC content (as supplied and as applied when used in accordance to the manufacturer's recommendations) on the label, lid or

bottom of the container.

Small businesses that use commercial or industrial adhesives, sealants and primers must comply with certain reporting requirements

contained in Subpart 228-2. Affected users must maintain a list of

each adhesive, sealant, adhesive primer, sealant primer, cleanup

solvent and surface preparation solvent in use and in storage, and also

record the monthly volume of each adhesive, sealant, adhesive primer,

sealant primer, cleanup or surface preparation solvent used.

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

that manufacture or use commercial or industrial adhesives, sealants

and primers will need to contract out for professional services to

comply with this regulation.

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

determined that most manufacturers and users of commercial or

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

cost of the proposed regulation with no significant adverse impacts on

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

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

The available compliance alternatives in the proposed rule are: VOC

content limits by product group; add-on control equipment; and work

practice procedures. CARB developed cost estimates with the assumption that all facilities will choose the low-VOC adhesive materials

alternate. The vast majority of facilities may use low-VOC adhesives

that can meet the recommended control levels. These low-VOC

adhesives are believed to be already available at a cost that is not

significantly greater than the cost of adhesives with higher VOC

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

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

reduction.

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

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

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

industrial manufacturing applications, low-VOC adhesives do not

meet performance requirements, and add-on controls must be

employed. Facilities may elect to comply with the proposed rule's

requirements by using add-on control equipment. It is expected that

most users will not select this option due to the availability of compliant adhesives, especially those that will meet the rule's standards, and

due to the high cost of installing and operating the control equipment.

At a cost-effectiveness of $9,000 to $110,000 per ton of VOC reduced,

the use of add-on control equipment to comply with the requirements

of the proposed rule may be a cost-effective option for only a few

facilities. 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 this

proposed amendment is negligible, and noticeable changes in employment, business creation, elimination or expansion, and business

competitiveness are not expected.

The Department of Environmental Conservation (Department)

undertook no special cost analysis for small business and local government because the costs associated with Subpart 228-2 are not expected

to vary for them. Small businesses and local governments will need to

pay the increased prices for affected commercial and industrial

adhesives, sealants and primers resulting from compliance with the

new, more restrictive VOC content limits.

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

does not particularly affect small business or local government. The

regulation has statewide applicability. Therefore, small businesses

and local governments are not particularly impacted, adversely or

otherwise, by this regulation.

To further mitigate adverse impacts, Ozone Transport Commission

(OTC) implementation options were included in Subpart 228-2 to

minimize the impact of this regulation on the regulated parties, including manufacturers that are small businesses. In addition, the proposed

Rule Making Activities NYS Register/June 16, 2010

12
implementation date allows additional time for manufacturers to

reformulate their products to comply with the new VOC content limits.

This will be especially helpful to small manufacturers who have

limited research and development budgets.

6. Small Business and Local Government Participation. The OTC

workgroup that developed the OTC model rule, which the Subpart

228-2 amendment is based, held informal regulatory development

meetings with stakeholders and other interested parties, such as the

National Adhesive and Sealant Council, the National Paint and Coatings Association, and the EPDM Roofing Association. These associations and its member companies provided the OTC workgroup comments during the development of both the OTC model rules and the

individual regulations of participating OTC states. The OTC

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

draft model rules. Since this regulation does not particularly 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 air

quality standard (8-hour ozone NAAQS). For the various nonattainment areas in New York State, the Department of Environmental Conservation (Department) is required to submit revisions to the State

Implementation Plan (SIP) that show that New York State will attain

the 8-hour ozone NAAQS by the applicable date, and that the state is

making reasonable progress toward this goal. These SIP revisions

must include the establishment of new or revised control requirements

for emissions of the precursors of ground-level ozone pollution:

nitrogen oxides (NOx) and volatile organic compounds (VOCs). The

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

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

would help progress toward attainment in SIPs already submitted to

EPA for the New York-New Jersey-Long Island, NY-NJ-CT and

Poughkeepsie nonattainment areas. This rule revision will also be

included in the SIPs for the Jamestown and Buffalo-Niagara Falls

nonattainment areas. Additionally, these more stringent requirements

for production and use of commercial and industrial adhesives, sealants and primers will provide a necessary component of realizing the

recently announced 2008 NAAQS for ozone, which will require that

ambient concentrations throughout the state meet a 0.075 ppm

standard.

This VOC control strategy is an outgrowth of the Ozone Transport

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

At the June 7, 2006 OTC Annual Meeting, OTC member states

adopted Resolution 06-02 which set forth guidelines for emission

reduction strategies for six source sectors, including industrial

adhesives, sealants and primers. OTC member states agreed to pursue

state rulemakings or other implementation methods to achieve emission reductions consistent with the guidelines. The Department is

proposing to develop regulations to require VOC emission reductions

consistent with the OTC guidelines for commercial and industrial

adhesives, sealants and primers. In addition, the proposed rule

incorporates EPA recommendations contained in its Control Technique Guidelines (CTG) document released in 2008 entitled, ‘‘Control

Technique Guidelines for Miscellaneous Industrial Adhesives’’ (EPA

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

practices for adhesive-related handling activities and cleaning

materials. Facilities using less than 55 gallons of noncompliant commercial or industrial adhesives, sealants, primers and cleanup solvents

in a 12- month period are exempt from the product VOC content

requirements of the proposed rule.

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

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

emissions from commercial and industrial adhesives, sealants and

primers to address the above emission shortfalls and make progress

towards reducing 8-hour ozone levels.

1. Types and estimated number of rural areas: The criteria and

procedures in the proposed Subpart 228-2 apply statewide. Rural areas are not particularly affected.

2. Reporting, recordkeeping and other compliance requirements:

The criteria and procedures in Subpart 228-2 apply statewide. Reporting requirements are applicable to the company, firm or establishment

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

companies, firms, or establishments, the ‘‘Responsible Party’’ is the

party which the product was ‘‘manufactured for’’ or ‘‘distributed by,’’

as noted on the label. For 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 for sale, or manufactures these products. One such applicable requirement will be for compliance with the VOC content

limits for each of the commercial and industrial adhesives, sealants

and primers specified in the proposed Subpart 228-2. Although these

products are used in rural areas, rural areas are not particularly

affected. Professional services are not anticipated to be necessary to

comply with this rule.

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

that most manufacturers and users of industrial adhesives, sealants

and primers will be able to absorb the cost of the proposed regulation

with no significant adverse impacts on profitability. EPA adopted and

incorporated the CARB developed cost analysis in its ‘Control

Techniques Guidelines for Miscellaneous Industrial Adhesives'

(CTG), September, 2008. In performing this analysis it is assumed

that all of the costs are borne by the manufacturers and/or users of

subject products. The available compliance alternatives in the

proposed rule are: VOC content limits by product group; add-on

control equipment; and work practice procedures. CARB developed

cost estimates with the assumption that all facilities will choose the

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

adhesives that can meet the recommended control levels are already

available at a cost that is not significantly greater than the cost of

adhesives with higher VOC content, the cost effectiveness is estimated

to be relatively low, in a range of $265 to $2320 per ton of VOC emission reduction. 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 this

proposed amendment is negligible, and noticeable changes in employment, business creation, elimination or expansion, and business

competitiveness are not expected.

The Department undertook no special cost analysis for rural areas

as the costs associated with the proposed Subpart 228-2 are not

expected to vary for rural areas. However, small businesses and local

governments will need to pay the increased prices for consumer

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products resulting from compliance with the new, more restrictive

VOC content limits. This is not a mandate on local governments. It

applies to any entity that owns or operates a subject source.

4. Minimizing adverse impact: The proposed Subpart 228-2 does

not particularly affect rural areas. The regulation has statewide

applicability. Therefore, rural areas are not particularly impacted,

adversely or otherwise, by this regulation.

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

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

held informal regulatory development meetings with stakeholders and

other interested parties, such as the National Adhesive and Sealant

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

Roofing Association. These associations and its member companies

provided the OTC workgroup with comments during the development

of both the OTC model rules and the individual regulations of

participating OTC states. The OTC Stationary/Area Source Committee established a public comment period and held a public stakeholder

meeting to take comments on the draft model rules. Since this regulation does not particularly affect rural areas, no special rural area

outreach efforts were made.

Revised Job Impact Statement

1. Nature of impact: The New York State Department of Environmental Conservation (Department) proposes to amend 6 NYCRR Part

228 with a new Subpart 228-2, Commercial and Industrial Adhesives

and Sealants, and attendant revisions to 6 NYCRR Part 200, General

Provisions. This reproposal will not have an adverse impact on job

and employment opportunities. The Department expects there to be

slightly higher costs associated with the manufacture and/or marketing and the purchase of commercial/industrial adhesives, sealants and

primers. Since the proposed Subpart 228-2 reflects the California Air

Resources Board (CARB) and the Ozone Transport Commission

(OTC) adhesives and sealants products emissions program in most

respects, the Department utilized cost information that supported the

CARB program. CARB evaluated and quantified the economic impact

on affected businesses through the use of three compliance alternatives from their commercial and industrial adhesives and sealants

program. A comprehensive analysis was performed by OTC, based on

the CARB adhesives and sealants program relating to the proposed

Subpart 228-2.

CARB determined that most manufacturers and users of commercial and industrial adhesives, sealants and primers would be able

to absorb the cost of the proposed regulation with no significant

adverse impacts on profitability. In performing this analysis it is assumed that all of the costs are borne by the manufacturers and/or users

of subject products. CARB developed cost estimates, with the assumption that all facilities will choose the low-VOC adhesive materials

alternate. With the belief that low-VOC adhesives that can meet the

recommended control levels are already 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 Miscellaneous

Industrial Adhesives’’ (CTG), September 2008, adopted and incorporated the CARB developed cost estimates. A negligible impact on affected business owners' equity (BOE) is anticipated. A decrease of 10

percent or more in BOE indicates a potentially significant impact on

profitability. The impact of this proposed amendment is negligible,

and noticeable changes in employment; business creation, elimination

or expansion; and business competitiveness are not expected.

2. Categories and numbers affected: Because of the lack of significant impact on BOE and the small increase in the prices of commercial

and industrial adhesives, sealants and primers, the Department does

not expect this regulation to have any effect on employment.

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

4. Minimizing adverse impact: Although the Department does not

expect this regulation to have any effect on employment, flexibility

provisions have been included in the regulation to facilitate

compliance. These flexibility provisions, including: VOC content

limits by product category; allowing the use of add-on air pollution

control equipment for those facilities needing the operational flexibility to use high-efficiency add-on controls instead of low-VOC

content adhesives (especially when the use of high VOC adhesives is

necessary or desirable for product efficacy); and work practices to

reduce VOC emissions, are expected to lower compliance costs and,

therefore, mitigate any adverse impacts on employment. 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.

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

The Department received four comments to the proposed revisions

to Part 228.

The comments were grouped as follows:

1. Comment: With regard to the sell-through period identified in

‘‘Section 228-2.3 (b) Requirements’’, Oatley and the America Coatings Association (ACA) are requesting that the sell-through period

language be modified to allow for an indefinite sell-through period.

NRLA is requesting a nine month sell-through period. The request is

being made to allow for wholesalers, retailers and plumbing contractors throughout New York State to continue to receive value from

products that were manufactured prior to the implementation date for

the regulation. ACA claims that the states that have adopted a regulation for industrial adhesives and sealants, including Delaware, Maryland, New Jersey, Rhode Island, and Maine, allow for an unlimited

sell-through, use and application, so long as the product is date-coded

in compliance with certain requirements. Commenters: 1, 2, 3

Response: The Department wishes to clarify its timing of both the

effective date of proposed Subpart 228-2 and the subsequent sellthrough period, and also to express its position on the allowance for

indefinite product sell-through periods.

In order to meet federal NAAQS standards for reduction of ground

level ozone levels in non attainment areas in New York State, reductions of VOC emissions from several identified area sources must be

achieved, one of which is adhesives and sealants. In 2006 the Ozone

Transport Commission issued several model rules for member states

to use in developing their individual State Implementation Plans (SIP).

Hence, each state has its own requirements and is not obligated to follow the model rules exactly.

It is imperative that non-compliant products be taken off the retail

market as soon as possible so that New York State may take credit for

the quantities of VOC reductions it has committed to in its SIP.

Therefore, New York State cannot agree to an indefinite sell-through

period. In fact, the OTC Adhesives and Sealants Model Rule are not

configured for the incorporation of an indefinite sell-through period.

Section VII, ‘‘Container Labeling’’, of the model rule (OTC Model

Rule for Adhesives and Sealants, Ozone Transport Commission, 2006)

has no provisions for product container dating or date-coding. In other

words, non-compliant products could continue to be produced and

sold after the rule's effective date, with no way of determining if any

given individual adhesive or sealant container was manufactured

before or after the effective date of the rule. As for the individual OTC

state adhesive and sealant rules currently in effect, only New Jersey

has specified dating/date- code requirements in its adhesives and sealants product labeling requirements.

For the above reasons, a permanent sell-through of existing noncompliant products has not been included in the reproposal of the rule.

However, a one year sell-through period starting three months after

the rule's effective date, is included to give retailers and distributers

time to reorganize their adhesive and sealant stocks and sell remaining

stocks of non-compliant products.

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2. Comment: The methyl ethyl ketone (MEK) used in plastic solvent

welding operations should be excluded from the definition of

‘‘adhesive’’. In the applicable rule, a plastic cement welding adhesive

is defined as ‘‘any adhesive labeled for use to dissolve the surface of

plastic to form a bond between mating surfaces. The MEK used in this

operation is not ‘‘labeled’’ as an adhesive. Commenter: 4

Response: The language used to identify our intent to prevent the

use of non-compliant products, inadvertently failed to address other

materials used to perform the same function as the listed adhesives

(e.g., general-use industrial solvents, as alternative plastic solvent

welding adhesives). Modifications of certain rule definitions and other

changes to the terms of the adhesives and sealants rule to restrict the

use of adhesives, sealants, primers and other materials with VOC

content higher than those of the applicable limits of Table 1 are

included in the reproposal.

3. Comment: If the MEK used at the Sonoco facility is considered

by NYS DEC to be applicable under the Part 228 rule as a plastic cement welding adhesive, there is absolutely no way for a compliant

material to be substituted because the compound contains 100% VOC.

New York could add an exemption for all solvent welding operations

where the only viable adhesive consists of 100 percent solvent.

Commenter: 4

Response: Incorporation of an exemption to allow the use of alternative plastic welding solvents with very high VOC content would likely

defeat the purpose of the rule, which is to effect an overall reduction

of VOC emissions from this particular industrial product group in order to reduce the formation of ground level ozone. However, OTC

states have the opportunity to incorporate other options, including

variances and alternative control plans to grant partial relief to facilities with certain hardship cases, such as those adhesive applications

where alternative products are not available and where incorporation

of add-on controls would not enable the achievement of the control efficiency required by the rule. New York is incorporating provisions

allowing process-specific RACT demonstrations in the reproposal of

the Part 228 rule.

4. Comment: Other RACT provisions have a variance element that

allow for a demonstration of economic infeasibility (see, e.g., (Part

223.3(e)). If an otherwise regulated facility were able to make a demonstration to the state's satisfaction that there is no other way to come

into compliance, we suggest that the new Subpart 228-2 should make

similar allowances. If this were allowed, Sonoco would be able to

conduct a site-specific RACT analysis (with vendor quotations) to

determine economic feasibility. Commenter: 4

Response: As stated in the response to comment 3, provisions allowing process-specific RACT demonstrations are incorporated in the

reproposal of the Part 228 rule.

5. Comment: The state could place a lower threshold for very small

facilities. For instances, facilities with actual emissions of less than 10

tons of VOC per year could be exempted entirely from the regulation.

Commenter: 4

Response: The proposed Subpart already contains a low-usage

exemption for sources using less than 55 gallons of noncompliant

products per year. In addition, the provisions in the reproposal allowing process-specific RACT demonstrations require the applicant to

address the technical and economic feasibility of alternatives. This

will result in requiring facilities that can comply to do so, while allowing facilities that truly cannot comply to have some level of relief

from the requirements.

APPENDIX

LIST OF COMMENTERS

Commenter number Name and Affiliation

1. Sara Morgan, Oatley Company

2. Thomas Lindberg, Northeast Retail Lumber

Association (NRLA)

3. Heidi K. McAuliffe, Esq., American Coatings

Association, Inc.

4. Scott T. Lundy, Sonoco Crellin Corporation

Department of Health

NOTICE OF ADOPTION

Environmental Testing for Critical Agents Using Autonomous

Detection Systems (ADS)

I.D. No. HLT-49-09-00006-A

Filing No. 573

Filing Date: 2010-05-28

Effective Date: 2010-06-16

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

Action taken: Amendment of Subpart 55-2 of Title 10 NYCRR.

Statutory authority: Public Health Law, section 502

Subject: Environmental Testing for Critical Agents Using Autonomous

Detection Systems (ADS).

Purpose: Establishes standards for certification of environmental labs using new technologies to analyze samples for critical agents.

Substance of final rule: This amendment to Subpart 55-2, which revises

Sections 55-2.10 and 55-2.13, as well as adds a new Section 55-2.14,

establishes standards for the certification and operation of environmental

laboratories that seek approval to engage in critical agent testing by means

of new technologies, including polymerase chain reaction (PCR)-based

methods and immune-based bioassays employed at a fixed-base facility,

or by use of an autonomous detection system (ADS) deployed in the field.

An ADS is, generally speaking, an automated, real-time, self-contained

sampling and analytical system for detection of critical agents situated

outside a fixed-base laboratory.

Section 55-2.10(d) is amended by replacing ‘‘section’’ with

‘‘Subpart’’ to clarify that the requirement to designate a temporary

director in the extended absence of the technical director, with notice

to the Department whenever the absence exceeds sixty-five days, applies to environmental laboratories whose technical directors qualify

under Section 55-2.13 or 55-2.14.

Section 55-2.13(a) is amended by adding ‘‘component of an organism’’ to the definition of critical agent, and clarifying that select agents

as designated by the federal Centers for Disease Control and Prevention are also included within that definition. The amendment also clarifies that the terms ‘‘chemical element’’ and ‘‘chemical compound’’

include radioactive substances.

Subdivisions (b) through (d) of Section 55-2.13 are amended to

incorporate several references to ADSs in written policies and

procedures already prescribed in Subpart 55-2, and to authorize the

Department to consider, as part of the certification process, a laboratory's capacity to assume an appropriate role in the public health and

safety emergency response to detection of critical agents. Air is added

to the list of example sample matrices, as all ADSs now commercially

available sample air. Time of specimen collection is added to requisite

report content. The timeframe for reporting results is changed to ‘‘as

soon as practicable, but no later than 24 hours,’’ and a maximum of

one hour is specified for the laboratory's notification following an

ADS signal. Definitions are included for ‘‘supplemental testing’’ and

‘‘confirmatory testing,’’ and laboratories conducting such testing in

response to an ADS signal are required to make available their findings to the approved laboratory operating the ADS.

Personnel requirements in existing Section 55-2.13(f) have been

modified to include, as director-qualifying experience, work performed using technologies other than conventional microbiologic

techniques, i.e., experience in analysis using the specific technology

of the device, instrument or system for which the laboratory is seeking

approval (e.g., nucleic acid detection by the PCR technique). ‘‘Conventional microbiologic techniques’’ are defined as culture, use of differential media, stains and/or biochemical reactions, and morphologic

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