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6 NYCRR Part 232 Regulatory Impact Statement

The New York State Department of Environmental Conservation (Department) is proposing to repeal and replace existing Part 232, entitled: "Perchloroethylene Dry Cleaning Facilities," of Title 6 of the Official Compilation of Codes, Rules and Regulation of the State of New York (6 NYCRR). Major changes to the dry cleaning industry have taken place since the regulation went into effect in 1997. Accordingly, many of the requirements in Part 232 have become outdated and are, therefore, in need of revision. Additionally, the U.S. Environmental Protection Agency (EPA) classifies perchloroethylene (perc) as a likely human carcinogen; airborne exposure continues to be a public health concern to residents and commercial occupants at co-located dry cleaning facilities; spills and groundwater contamination continue to be a potential remedial problem; and occupational exposure to employees of perc dry cleaning facilities is a well-documented health issue. This rulemaking will revise the existing regulation and add several new components to improve compliance and program delivery; reduce perc and alternative solvent emissions to the environment; and address advancements in technology and changes in the industry regarding the use of alternative dry cleaning solvents. This proposal applies to any entity that operates, or proposes to operate, approved alternate solvent or perc dry cleaning machines.

Statutory Authority:

New York State's statutory authority for this regulation is found in Environmental Conservation Law (ECL) Sections 3-0301, 3-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0302, 19-0303, 19-0305, 71-2103, and 71-2105.

Section 3-0301. This section states that it shall be the responsibility of the Department to carry out the environmental policy of the state. In furtherance of that mandate, section 3-0301(1)(a) gives the Commissioner authority to "[c]oordinate and develop policies, planning and programs related to the environment of the state and regions thereof . . . ." Section 3-0301(1)(b) directs the Commissioner to "[p]romote and coordinate management of[, among other things,] air resources to assure their protection, enhancement, provision, allocation, and balanced utilization consistent with the environmental policy of the state and take into account the cumulative impact upon all of such resources in making any determination in connection with any license, order, permit, certification or other similar action or promulgating any rule or regulation, standard or criterion." Pursuant to ECL Section 3-0301(1)(i), the Commissioner is charged with promoting and protecting the air resources of New York State by providing for the prevention and abatement of air pollution. Section 3-0301(2)(a) authorizes the Commissioner to adopt rules and regulations "to carry out the purposes and provisions" of the ECL. Section 3-0301(2)(g) allows the Commissioner to enter and inspect sources of air pollution and to verify their compliance with applicable regulations. Section 3-0301(2)(m) gives the Commissioner authority to "[a]dopt such rules, regulations, and procedures as may be necessary, convenient, or desirable to effectuate the purposes of this chapter."

Section 3-0303. This section requires that the Department "formulate and from time to time, revise a statewide environmental plan for the management and protection of the quality of the environment and the natural resources of the state." In formulating this plan and any revisions, the Department is required to conduct public hearings; cooperate with other departments, agencies, government officials and any other interested parties; and obtain assistance and data as may be necessary from any "department, division, board, bureau, commission or other agency of the state or [any] political subdivision [thereof] or any public authority to enable the Department to carry out its responsibilities."

Section 19-0103. This section is a declaration of the state's environmental policy with specific reference to air pollution. "It is declared to be the policy of the state of New York to maintain a reasonable degree of purity of the air resources of the state . . . and to that end to require the use of all available practical and reasonable methods to prevent and control air pollution."

Section 19-0105. This section sets out the purpose of Article 19 of the ECL, which is "to safeguard the air resources of the state from pollution[.]" This is consistent with the policy expressed in Section 19-0103 and other provisions of Article 19.

Section 19-0107. This section provides definitions to be used in the application of the requirements of Article 19 of the ECL.

Section 19-0301. This section states that, "[c]onsistent with the policy of the state as it is declared in section 19-0103, the [D]epartment shall have power to formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution." This section also requires that permits be obtained from the Department and establishes the degree of air pollution or air contamination that may be permitted.

Section 19-0302. This section states that permit applications, renewals, modifications, suspensions and revocations will be governed by rules and regulations adopted by the Department, and that permits issued may not "include performance, emission or control standards more stringent than any established by the Act or by [EPA] unless such standards are authorized by rules or regulations."

Section 19-0303. This section provides that "[a] code, rule or regulation or any amendment or repeal thereof shall not be adopted until after a public hearing" is held and may not become effective until filed with the Secretary of State. The Department may also recognize the different levels of air quality found throughout the state in its rulemaking. Finally, this section prescribes procedures for adopting any code, rule or regulation which contains a requirement that is more stringent than the Act or regulations issued pursuant to the Act by the EPA.

Section 19-0305. This section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19 of the ECL.

Sections 71-2103 and 71-2105 set forth the civil and criminal penalty structures for violations of Article 19.

42 U.S.C. Section 7416 declares it to be the policy of the federal government that states can adopt or enforce any standard or limitation respecting emissions of air pollutants from stationary sources or any requirement respecting control or abatement of air pollution under a federally-approved implementation plan. When implementing requirements that involve the control or abatement of air pollution under a federally-approved implementation plan, a state may not adopt or enforce any emission standard or limitation that is less stringent than the standard or limitation under such plan.

U.S. Constitutional Amendment X declares that those powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states respectively. This Amendment protects the capacity of a state to regulate behavior and enforce order within the state for the betterment of health, safety, and the general welfare of the citizens and natural resources of the state.

Legislative Objectives:

The legislature authorized the Department to formulate, adopt, amend, and repeal codes, rules, and regulations for preventing, controlling, or prohibiting air pollution for the purpose of safeguarding the air resources of the State. The legislative policy, as set forth in the ECL, is to maintain a reasonable degree of purity of air resources which is consistent with public health and welfare, industrial development of the state, propagation and protection of flora and fauna, and the protection of physical property and other resources.

Article 1 of the ECL was adopted to establish the environmental policy of the state, which is to conserve, improve and protect its natural resources and environment and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being. Additionally, Article 1 directs that the state improve and coordinate the environmental programs of the state to manage the basic resources of water, land, and air.

Article 3 of the ECL establishes the organization, functions, powers, duties and jurisdiction of the Department. Additionally, it requires the formulation of an environmental plan for the management and protection of the environment and natural resources of the state, and the submission of periodic revisions of such plan to the governor and to the Department of State.

Article 19 of the ECL was adopted for the purpose of safeguarding the air resources of the state from pollution in accordance with Article 1. To facilitate this purpose, the Legislature bestowed general and specific powers and duties on the Department, including the power to formulate, adopt, promulgate, amend, and repeal regulations for preventing, controlling or prohibiting air pollution.

Proposed amendments to Part 232 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York will make the state's requirements for perchloroethylene and alternate solvent dry cleaning equipment consistent with the "National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities" (40 CFR Part 63, Subpart M) as amended July 11, 2008 and the "Standards of Performance for Petroleum Dry Cleaners" (40 CFR Part 60, Subpart JJJ) last amended October 17, 2000. The existing federal regulation requires the elimination of all perc dry cleaning machines at co-located residential locations after December 21, 2020. In addition to adopting this federal requirement, the Department is proposing changes to further reduce perc emissions including: phasing-out the few remaining older third generation perc dry cleaning machines by December 31, 2021; and improving compliance with the emission standards in the existing regulation. Other changes are proposed that establish an approval process for alternative dry cleaning solvents in addition to equipment standards and specifications for the design, operation and maintenance of alternative solvent dry cleaning equipment.

Needs and Benefits:

The Department proposes to re-title Part 232 from "Perchloroethylene Dry Cleaning Facilities" to "Dry Cleaning Facilities," since the proposed changes to Part 232 will include the regulation of alternative solvent dry cleaning equipment. Alternative solvent dry cleaning machines are currently regulated under 6 NYCRR Part 212, "General Process Emission Sources." Consolidating these regulations under Part 232 will facilitate implementation of, and public access to, all dry cleaning regulations. The proposed revised regulation will contain four subparts: Subpart 232-1 for "General Provisions", Subpart 232-2 for "Perchloroethylene Dry Cleaning Equipment", Subpart 232-3 for "Alternative Solvent Dry Cleaning Equipment" and Subpart 232-4 for Severability.

Perchloroethylene dry cleaning facilities are located throughout the state, and many of these facilities are located in close proximity to, or in the same building as, residences and other sensitive occupancies. Perc has been identified as a likely human carcinogen by the EPA and the potential for involuntary exposure to perc from these facilities is high. Perc is an unsaturated, chlorinated hydrocarbon used by approximately 70 percent of the dry cleaning industry in the state because it has good cleaning properties, is nonflammable, and is cost effective.

The "National Perchloroethylene Air Emissions Standards for Dry Cleaning Facilities" (40 CFR Part 63, Subpart M) mandates the elimination of perc dry cleaning machines in co-located residential buildings (approx. 315 statewide, 290 of which are in New York City) as of December 21, 2020. This provision will require either relocation of affected perc dry cleaning facilities or the purchase and installation of new alternative solvent machines or wet cleaning equipment at the existing locations. Those owners that choose to remain in their existing residential building location may also become "drop shops", and ship their clothing to another location where the clothes can be cleaned. Under existing Part 232, relocated facilities may install only new fourth generation perc machines unless a variance is granted to allow the re-installation of used machines for cited extraordinary circumstances. Used alternative solvent equipment may be installed without a variance under the existing provisions of Part 212, whereas wet cleaning equipment is exempt from all air permitting requirements. Although the mandated December 21, 2020 elimination of perc machines in residential buildings is included in this proposed rule revision, it is an existing federal requirement and is only included in the state regulation for ease of compliance. This federal requirement will have a significant impact on both the dry cleaning industry and public health. To help off-set the adverse economic impact on affected dry cleaners, the Department proposes to grant variances to allow the relocation of used compliant fourth generation perc dry cleaning machines, less than 10 years old, to any stand-alone location under the same ownership.

The Department proposes to phase-out older third generation perc machines by December 31, 2021 to achieve greater perc emission reductions. Presently there are 22 third generation machines in operation at 17 facilities throughout New York State. All of these machines were installed before May 15, 1997 and are at least 19 years old, which is long after the typical 15 year useful life of the these machines. Facilities that are required to retire third generation machines will achieve greater perc emission reductions from switching to wet cleaning or installing new perc (fourth generation) or new alternative solvent dry cleaning machines that meet the proposed regulatory requirements.

In order to improve year round compliance, the Department proposes to require additional monthly end-of-cycle drum testing of perc dry cleaning machines at the 1,007 co-located residential, and commercial, non-major facilities, throughout the state. This testing could be done by the owner, or owner's representative, with a relatively inexpensive colorimetric tube sampling pump. Federal regulation already requires weekly owner/operator testing at major perc dry cleaning facilities. While Part 232 currently requires yearly drum testing by independent third party contractors, the Department has found this one-day-of-the-year testing requirement is not sufficient to achieve year-round compliance as dry cleaning machines can become non-compliant very quickly even with diligent care and maintenance. This became evident from the Department's recent unscheduled tests of more than 100 fourth generation dry cleaning machines, most of which failed to meet the end-of-cycle perc drum concentration standard.

In recognition of the changes that have occurred to the dry cleaning industry, the Department proposes to end all future Department certifications of untested and uncertified perc dry cleaning machine models. After the new changes are adopted, only perc machine models that have been previously certified by the Department, or which have been issued a Statement of Compliance, may be installed in New York State. Statements of Compliance will be issued by machine manufacturers, or their representative, affirming compliance with the regulation's machine performance standards. Currently, the Department certifies dry cleaning machine models based on testing done by a single independent contractor. This contractor has never tested a machine model that failed to meet the regulation's design and performance standards. Further, since few new models of perc dry cleaning machines are being manufactured, not enough work will be available in the near future to support the contractors' certification testing business. Consequently, the proposed Statement of Compliance system is more efficient.

The Department proposes to adopt new Subpart 232-3 for the regulation of "Alternative Solvent Dry Cleaning Equipment." Alternative solvent dry cleaning equipment is presently regulated under 6 NYCRR Part 212 as a "General Process Emission Source." This new subpart will help consolidate the regulatory requirements for all dry cleaning facilities under a single regulation and will ease the burden on the regulated industry.

New Subpart 232-3 will propose equipment standards and performance specifications for the installation and operation of new and existing alternative solvent dry cleaning machines. Additionally, operator leak inspection, self-monitoring, recordkeeping and operation and maintenance requirements will be proposed to ensure machines are operated in compliance with the revised regulation. Older technology alternative solvent transfer equipment will be phased-out by December 31, 2031 to reduce facility emissions. Unless a facility is relocating, in order to comply with this phase-out, the regulation will only allow the installation of new compliant machines. Used compliant alternative solvent machines, less than 10 years old, will be allowed to relocate from a permitted dry cleaning facility and reinstalled at any facility under the same ownership if the facility meets all other applicable requirements and a new or modified air permit is first obtained. Department staff learned from implementing existing Part 232 that old-to-new machine replacement is the most effective strategy for reducing emissions. All new alternative solvent dry cleaning machines must be non-vented, closed loop and equipped with a refrigerated condenser. Secondary control systems are not mandatory and are only needed to address potential odor problems; this is a self-regulating industry requirement as customers will likely never revisit a shop if their clothes smell. In order to be protective of public health, the new machine standards will ensure greater reductions in volatile organic compounds and species-specific contaminant emissions.

To ensure that alternative solvent dry cleaning machines meet the revised regulation's design and performance standards, we propose to adopt manufacturer machine testing requirements. The Department is not proposing Department certification or a Statement of Compliance for alternative solvent machines because the equipment standards, required by the proposed regulation, are common to the industry and the additional paperwork was deemed unnecessary for machines using the approved lower toxicity solvents.

The Department anticipates increased use of alternative solvents within the dry cleaning industry. In order to establish clear regulatory requirements for the acceptability and use of alternative dry cleaning solvents, the Department proposes to adopt a solvent approval process. This will place the approval process in regulation and phase out the use of unapproved dry cleaning solvents 180 days after the effective date of the revised regulation. A small percentage of dry cleaners are presently using unapproved solvents that have escaped a rigorous Department toxicological review. This proposed approval process will require solvent manufacturers, or vendors, to submit documentation to the Department that demonstrates that the solvent meets the approval criteria for flash point, solvent toxicity and acceptable batch-to-batch consistency. The proposed solvent approval process will protect the public from exposure to potentially dangerous chemicals that have not been evaluated or approved by Department toxicologists for use in dry cleaning facilities.

To ensure public disclosure, the Department proposes to add posting notice requirements to inform the public about the use of alternative dry cleaning solvents. This requirement is in addition to the current posting requirements for the use of perc. Although the use of approved alternative solvents in compliant dry cleaning machines is protective of public health, the public has a right to know about the use of regulated chemicals in their community. In recent years, some producers of alternative solvent dry cleaners have created some confusion by misleading the public and advertising the use of organic, environmentally friendly or green solvents. Other dry cleaners have typically not informed the public of the chemical solvents being used at their facilities. The New York City Department of Environmental Protection (DEP) and many states have adopted similar posting notice requirements, in an effort to keep the public fully informed.

Costs:

Repeal and replacement of existing Part 232 will impose additional costs on individual business owners. No additional cost is attributed to manufacturers for required machine testing because they already test their machines for compliance with equipment standards and required control efficiencies.

Business owners/operators at the 1,007 non-major, co-located facilities will be required to test their fourth generation perc dry cleaning machines, once each month, for perc drum concentrations at the end of the dry cleaning cycle. Owners will have to purchase a $400 air sampling pump and single use colorimetric sampling tubes, costing about $7 apiece, in order to conduct the required testing. If a measured end of cycle perc drum concentration exceeds the allowable limit, the regulation requires the source owner to have the machine repaired and brought into compliance.

The 17 business owners that are still operating the 22 third generation perc dry cleaning machines will have to discontinue operation of these machines prior to December 31, 2021. Phased-out third generation perc dry cleaning machines may be sold out of state or properly disposed of as scrap metal. To continue in business, owners would have to purchase and install new compliant alternative solvent machines, new compliant perc dry cleaning machines or wet cleaning equipment. However, as noted above affected facilities may minimize these compliance costs by selling noncompliant perc machines out of state or properly disposing of them as scrap metal.

New compliant fourth generation perc dry cleaning machines typically cost between $25,000, for a 25 pound machine, and $90,000, for a 90 pound machine. These machines are only available by special order and require a 50% down payment. Equipment removal costs for retired equipment range from $1,000 to $7,000.

The ten facility owners still operating alternative solvent transfer equipment must phase-out: all dip tanks, drying cabinets, vented waterproofing operations and uncontrolled dryers by December 31, 2021; vented solvent recovery dryers by December 31, 2026; and all washing, extracting and unvented solvent recovery dryers by December 31, 2031. Should these facilities wish to continue dry cleaning operations on-site, they must purchase new equipment. All phase-out dates are after the "typical" 15 year useful life of the equipment.

New compliant alternate solvent dry cleaning machines, without a still, cost between $32,000, for a 25 pound machine, and $100,000, for a 90 pound machine. Costs for alternative solvent dry cleaning machines are therefore approximately only 10 percent more than perc dry cleaning machines. Stills are recommended by the National Cleaners Association (NCA) for solvent recovery and quality cleaning purposes and range in price from $12,000 to $23,000.

In New York City (NYC), the costs are higher for the installation of alternative solvent dry cleaning machines. Engineering fees can range from $8,000 to $15,000 for machines installed in New York City. Aside from the permit required from the New York City Department of Environmental Protection, permits are also required from the City's building, electrical, plumbing, health and fire departments. All of these permits must be prepared by a licensed architect or engineer. Additionally, the 2014 NYC fire code requires the installation of an automatic sprinkler system in every facility. The cost of these sprinkler systems range from $1,200 to $1,500 for each sprinkler head one of which may be required for every 100 square feet of floor space. The installation of a new water line can add another $20,000 to the cost of installation. Costs for an automatic sprinkler system can exceed $100,000 for larger facilities, but it is largely the uncertainty in the approval process and permitting delays that are slowing the transition from perc to alternative solvent machines in New York City. Outside of New York City, automatic sprinkler systems are not required by the state fire code for alternative solvent machines equipped with integrated fire extinguishing systems and/or safety features that minimize the fire/explosion risk. Consequently, the higher compliance costs, outlined above, for NYC dry cleaners are conditioned upon the current NYC fire code and could therefore change before the federal ban on co-located residential perc dry cleaning facilities goes into effect.

The cost of physical installation for both perc and alternative solvent machines can range from $2,500 to $5,500 and concrete machine pads cost from $2,500 to $3,000. Outside of New York City, engineering and permitting fees range from $3,500 to $5,000.

A typical owner would need to spend about $47,000 for professional wet cleaning equipment; this includes a washer, dryer and tensioning forms necessary to restore original clothing shape. Installation costs are normally between $2,000 and $2,500 and are, therefore, less expensive than installing perc or alternative solvent dry cleaning equipment. Wet cleaning operational costs are also generally lower than those for perc or alternative cleaning methods. Automatic sprinklers are not required. Therefore, switching to wet cleaning is a viable option for facilities that are looking to minimize their compliance costs.

Paperwork:

This rulemaking imposes new paperwork, record keeping and reporting requirements on dry cleaning facility owners and dry cleaning equipment manufacturers or vendors.

In addition to existing paperwork requirements, the proposed regulation requires owners of co-located perc dry cleaning facilities, or their representatives, to test perc dry cleaning machines, monthly, for end of cycle perc drum concentrations and record those readings on a department provided form. The regulation also requires manufacturers of new uncertified models of perc dry cleaning machines that are proposed to be installed in New York State to issue a notarized Statement of Compliance affirming that a model was tested and found to comply with all design and performance standards in the revised regulation.

The regulation will require alternative solvent dry cleaning facility owners to post notices, supplied by the Department, informing the public of the regulated alternative solvent chemicals being used at the facility. Owners will also be required to keep records of solvent purchases, leak inspections, emergency response and corrective action, and required operation and maintenance activities. These records must be retained on-site for at least five years. Facilities will also have to retain, on-site, a copy of the design specifications and operating manual for each dry cleaning system and emission control device located at the dry cleaning facility.

Local Government Mandates:

The proposed revisions to Part 232 do not create any local government mandates beyond those already incurred under the existing requirements

Duplication Between this Regulation and Other Regulations and Laws:

This proposal does not duplicate any other state regulations or statutes. Changes to this regulation are being proposed for consistency and ease of compliance with the "National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities" (40 CFR Part 63, Subpart M) and the "Standards of Performance for Petroleum Dry Cleaners" (40 CFR Part 60, Subpart JJJ). The Department has been delegated the authority to enforce both of these federal regulations.

Alternatives:

Should the Department not revise the regulation, the operation of perc dry cleaning machines in residential buildings will still be prohibited starting December 21, 2020, as required by the federal NESHAP standard for perc dry cleaning facilities. However, alternative solvent transfer machines would not be phased out; and the enforcement provisions of the regulation would not adequately address exceedances of the perc drum concentration emission standards. The use of door fans could continue and obsolete design and performance standards would remain in place for alternative solvent dry cleaning machines. Finally, the approval process for alternative solvents would not be codified in regulation and the Department's ability to effectively regulate alternative dry cleaning solvents would be greatly diminished.

Federal Standards:

Proposed amendments to Part 232 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York will make the State's requirements for perchloroethylene and alternative solvent dry cleaning equipment, consistent with the "National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities" (40 CFR Part 63, Subpart M) as amended July 11, 2008 and the "Standards of Performance for Petroleum Dry Cleaners" (40 CFR Part 60, Subpart JJJ) last amended October 17, 2000.

Compliance Schedule:

The proposed revisions to Part 232 set forth new deadlines for compliance with proposed new provisions of the regulation. Compliance deadlines from existing Part 232 for past compliance dates are not listed below but were retained in the proposed regulation for enforcement purposes. The following are the new compliance deadlines for existing/new dry cleaning facilities in the proposed regulation:

1. After the effective date of the proposed regulation:

(a) the installation of a door fan on any fourth generation perc dry cleaning machine is prohibited;
(b) the installation of any uncertified perc dry cleaning machine that belongs to an equipment model not issued a manufacturer's Statement of Compliance is prohibited;
(c) the use of any dip tank that uses perc solvent is prohibited; and
(d) the installation or replacement of any alternative solvent transfer machine in which washing, washing with extraction, extraction, or drying is performed in a single machine that requires the transfer of articles from one machine to another to complete the dry cleaning process is prohibited.

2. One hundred and eighty (180) days after the effective date of the proposed regulation, all unapproved alternative solvents are prohibited from use in dry cleaning equipment.

3. Perc dry cleaning machines, which are operated at a facility that is co-located in a building with a residence must be removed by December 21, 2020 as mandated in the "National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities" (40 CFR Part 63, Subpart M).

4. After December 31, 2021, all third generation perc dry cleaning machines must be removed from service.

5. After December 31, 2021, the following equipment and operations are prohibited:

(a) all alternative solvent transfer machine dryers without a primary control system;
(b) all alternative solvent dip tanks and solvent drying cabinets; and
(c) all water proofing operations in any vented machine.

6. After December 31, 2026, the operation of any alternative solvent recovery dryer that vents to the outdoor atmosphere or workroom at any time other than when a vacuum pump is exhausting to maintain a continuous vacuum is prohibited.

7. After December 31, 2031, the operation of any alternative solvent transfer machine in which washing, washing with extraction, extraction, or drying is performed in a single machine that requires the transfer of articles from one machine to another to complete the dry cleaning process is prohibited.


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