Home » 2010 Issues » June 16, 2010 » ENV-51-09-00010-RP Limiting Emissions of Volatile Organic Compounds (VOCs) from Commercial and Industrial Adhesives, Sealants and Primers
ENV-51-09-00010-RP Limiting Emissions of Volatile Organic Compounds (VOCs) from Commercial and Industrial Adhesives, Sealants and Primers
6/16/10 N.Y. St. Reg. ENV-51-09-00010-RP
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 24
June 16, 2010
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-51-09-00010-RP
Limiting Emissions of Volatile Organic Compounds (VOCs) from Commercial and Industrial Adhesives, Sealants and Primers
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
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 adhesive application methods, and work practices for adhesive-related handling activities and cleaning materials. The proposed revisions have the following requirements:
A. Regulates the application of commercial and industrial adhesives, sealants, adhesive primers and sealant primers by providing options for appliers to either to use a product with a VOC content equal to or less than a specified limit or to use add-on controls;
B. Limits the VOC content of aerosol adhesives to 25 percent by weight;
C. Sets forth work practices for mixing and handling operations for adhesives, thinners and adhesive-related waste materials;
D. Establishes a VOC limit for surface preparation solvents;
E. Establishes an alternative add-on control system requirement of at least 85 percent overall control efficiency (capture and destruction efficiency), by weight;
F. Requires that VOC containing materials must be stored or disposed of in closed containers;
G. Prohibits the sale of any commercial or industrial adhesive, sealant, adhesive primer or sealant primer which exceeds the VOC content limits listed in the rule;
H. Establishes that manufacturers must label containers with the maximum VOC content as supplied, as well as the maximum VOC content on an as-applied basis when used in accordance with the manufacturer's recommendations regarding thinning, reducing, or mixing with any other VOC containing material; and
I. Prohibits the specification of any commercial or industrial adhesive, sealant or primer that violates the provisions of the rule.
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 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 twelve-month 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 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 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 sell-through 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 non-compliant 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.
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.
