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Declaratory Ruling 19-16: Seaboard Asphalt Products Company

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Petition of DECLARATORY RULING
Seaboard Asphalt Products Company 19-16
for a Declaratory Ruling

INTRODUCTION

Seaboard Asphalt Products Company ("Petitioner"), through its representative Mr. Shawn R. Campbell, petitions the Department pursuant to 6 NYCRR Part 619 for a declaratory ruling with respect to the application of regulations implemented by the Department to its product "LN-11 - Equinox Asphalt Gilsonite Sealer" (hereinafter "LN-11"). Petitioner seeks a ruling that (1) LN-11 should be categorized as a "Waterproofing Concrete/Masonry Sealer" for purposes of 6 NYCRR Part 205- Architectural and Industrial Maintenance (AIM) Coatings ("Part 205"), and (2) LN-11 not be subject to regulation 6 NYCRR Part 211 - General Prohibitions.

Pursuant to Section 204 of the State Administrative Procedure Act (SAPA), on petition of any person, any agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. A declaratory ruling is binding upon the agency unless it is altered or set aside by a court. An agency may not retroactively change a valid declaratory ruling, but nothing in SAPA prevents an agency from prospectively changing any declaratory ruling.

The Department implements Section 204 of SAPA through 6 NYCRR Part 619. For the purposes of issuing a declaratory ruling only, the Department will assume that the facts alleged in the petition are true, subject to the caveat that the Department may take official notice of any fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified (6 NYCRR 619.2[b]). The binding effect of the ruling is limited by the assumed or readily verifiable fact predicate (see Power Auth. of State of N. Y. v New York State Dept. Envtl. Conservation, 58 NY2d 427, 434, 461 NYS2d 769, 772 [1983]). The Department will not assume the truth of statements which are legal conclusions. In addition to setting forth the procedures for issuing a declaratory ruling, Part 619 sets forth grounds for declining to issue a declaratory ruling. 6 NYCRR 619.3. Among other enumerated grounds, the General Counsel may decline to issue a declaratory ruling if a response to the petition is not in the public interest. 6 NYCRR 619.3(e).

For reasons explained more fully below, Petitioner's request that LN-11 be classified as a Waterproofing Concrete/Masonry Sealer is declined on the grounds that it would not be in the public interest to issue such a ruling. 6 NYCRR 619.3(e). Petitioner's request for a declaratory ruling that 6 NYCRR 211.4 does not apply to LN-11 is denied and the determination of this declaratory ruling is that 6 NYCRR 211.4 does apply to LN-11.

STATEMENT OF FACTS

Petitioner, a privately owned corporation based in the State of Maryland, is the manufacturer of LN-11, referred to in this petition as "LN-11 Equinox Asphalt Gilsonite Sealer". The petition is comprised of a letter setting forth Petitioner's request for a ruling on the applicability of Parts 205 and 211 to LN-11 and supporting information contained in six attachments - Attachment A, B, C, D, E and F.

Attachments A, B, and C consist of correspondence from representatives of environmental regulatory agencies in Pennsylvania, Delaware, and Virginia which purport to state that the agencies will consider LN-11 to be a waterproofing concrete/masonry sealer for purposes of regulation as an Architectural and Industrial Maintenance Coating with a Volatile Organic Compound (VOC) limit of 400 grams per liter (g/l).

Attachment D is entitled "STATEMENT OF USAGE LIMITATIONS LN-11 EQUINOX ASPHALT GILSONITE SEALER" and sets forth the following:

The LN-11 EQUINOX ASPHALT GILSONITE SEALER cannot be used for paving or in the paving process. The use of cutback asphalts in paving and the paving process is to act as a tack coating adhesive for the application of hot mix asphalt or cold mix asphalt in new construction and asphalt overlay application. LN-11 cannot be used for this purpose and would not work for either application.

The LN-11 is manufactured with asphalt whose penetration level is 0-8 PENS. The penetration of asphalt used for paving ranges from 60-70 PENS. The asphalt used in manufacturing LN-11 is much too hard to be used for paving. The pavement would become brittle and crack with traffic upon contact.

The LN-11 is manufactured with asphalt whose softening point is 200-210 F. The softening point of asphalt used for paving is 120-130 F. The asphalt used in manufacturing the LN-11 has softening much too high to be used for paving. The application equipment would not be able to [sic] keep this product hot enough to keep it pliable for application in the paving process.

The specifications included in Attachment E of this package do not meet Construction Specifications for the New York State Department of Transportation for use in paving. The LN-11 is not approved for use in paving.

The distributors, wholesalers, and contractors who use this product do not use LN-11 for paving and would not work for paving application.

Attachment E is a document labeled "PRODUCT DATA ASPHALT SEALER LN-11 EQUINOX ASPHALT GILSONITE SEALER". Attachment E sets forth product information concerning LN-11 and states in relevant part:

PRODUCT DESCRIPTION: Seaboard Equinox Sealer is a film forming waterproof asphalt sealer formulated to meet Federal Specifications TTC-494 Types I, II and III.

BASIC USES: Seaboard Equinox Sealer is used as a tough weather resistant pigmented coating on all types of steel, piping, industrial equipment, chassis, radiators, burial vaults, pigmented coating, septic tanks, and concrete manholes, masonry and bituminous concrete surfaces. Equinox Sealer provides resistance against water, alkalis, acids ultraviolet light and staining.

LIMITATIONS: DO NOT HEAT container. DO NOT APPLY on bituminous surfaces before they oxidize 60 - 90 days, inclined driveways, or over surfaces with a coal tar coating.

Attachment F is a carbon copy of an invoice sheet for LN-11 on which the word "Sample" is handwritten in a felt-tipped marker across the bottom of the page. Attachment F is not an actual invoice and does not show actual order or customer information. The words "Waterproofing Concrete/Masonry Sealer Maximum VOC content 400 g/l" are printed on Attachment F.

DECLINATION TO ISSUE DECLARATORY RULING WITH RESPECT TO 6 NYCRR PART 205

The promulgation of Part 205 was one of several actions undertaken by New York State, in concert with EPA and other States, to control and reduce emissions of ozone precursors such as VOCs so that New York State and States in the Ozone Transport Region may attain the national ambient air quality standards for ozone. Part 205 regulates the amount of VOCs in AIM Coatings and sets forth standards for 52 specified AIM coating categories as well as VOC content limits for uses not described by any of the enumerated coating categories. VOCs contribute to the formation of ground-level ozone. Ozone pollution is a particular concern during the summer months when the weather conditions needed for formation of ground-level ozone - lots of sun and hot temperatures - normally occur. Ozone is unhealthy to breathe, especially for people with respiratory diseases and for children and adults who are active outdoors. Symptoms include reduced lung function and chest pain, and can lead to respiratory diseases such as bronchitis or asthma. Even death can result from exposure to excess amounts of ground-level ozone.

Part 205 is applicable not only to the manufacturer of an AIM coating, but also any person who "supplies, sells, offers for sale, . . . any architectural coating for use within the State of New York, as well as anyone who applies or solicits the application of any architectural coating within the State of New York." 6 NYCRR 205.1(a). A declaratory ruling on the application of Part 205 to LN-11 thus has the potential to affect the manufacturer of a product as well as the distributors and retailers who sell the product, contractors-for-hire who apply the product and consumers who use or contract for the application of the product. Consequently, the Department has a significant stake in ensuring that the public interest would be served by a response to a petition for a declaratory ruling. A ruling based on facts which are misleading or untrue could cause confusion among members of the regulatory community, many of whom might view the ruling in absolute terms rather than as a determination confined to a narrow set of alleged facts as intended by 6 NYCRR Part 619.

Department Staff have been in discussions with Petitioner concerning its LN-11 product and its regulation under 6 NYCRR Part 205 since 2005. By letter dated April 8, 2005, Petitioner submitted what it termed to be a "Request for Evaluation", seeking the Department's assistance "in placing the Seaboard LN-11 - Equinox Asphalt Gilsonite Rejuvenator into the proper category for compliance requirements". Petitioner's letter contained product information for LN-11, describing it as follows:

PRODUCT INFORMATION. The LN-11 Equinox Asphalt Gilsonite Rejuvenator functions unlike any other pavement surface coating. Driveway coatings are needed to prevent the deterioration of bituminous pavement surfaces. Bituminous pavement surfaces are deteriorated by UV rays, which oxidize the asphalt. You have probably noticed that when a driveway is laid the surface is jet black. Then over a year or two the pavement becomes gray in coloration and loose stones begin to appear on the surface. This condition is from the oxidizing of the asphalt and you begin to see the light colored stones appearing as the asphalt is turned to powder and blown away. The stones then have no asphalt to hold them in place and they become free roaming and no longer held to the pavement surface. . . .

One month later, by letter dated May 4, 2005, Petitioner provided additional information to the Department "to demonstrate that 'LN-11 EQUINOX ASPHALT GILSONITE REJUVENATOR' conforms to the Pennsylvania Code for VOC Compliance Category for WATERPROOF CONCRETE/MASONRY SEALER with an obtainable VOC level of 400 grams/liter." Attached to the May 4th letter was a product data sheet (PDS) for LN-11 "PRODUCT DATA DRIVEWAY SEALER LN-11 EQUINOX ASPHALT GILSONITE DRIVEWAY SEALER" (the 2005 LN-11 PDS). Subsequently, Petitioner also supplied the Department with a five gallon metal container with what appears to be a lithograph label for "LN-11 - Equinox Quick-Set Driveway Top-Dressing and Sealer".

A declaratory ruling is made based on facts alleged in the petition and those facts are assumed to be true. The Department may also take official notice of a fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified. For example, in addition to information Petitioner submitted to the Department, Petitioner maintains a public website which contains detailed product information and descriptions (http://seaboardasphalt.com/Driveway.html). Information available to the public via the website is relevant for determining the applicability of Part 205 to an AIM Coating because it indicates how the manufacturer is marketing a product for sale and use to potential customers, including retailers, distributors and contractors. LN-11 is found on the homepage of Petitioner's website under the heading "Driveway Sealers and Complimentary Products". Department Staff consulted Petitioner's website on several occasions for information concerning LN-11. This information is relevant for purposes of assessing Petitioner's request for a declaratory ruling.

The facts alleged in Attachments D, E, and F in the instant petition are inherently suspect because they contradict: (1) the product information which Petitioner has previously provided to Department Staff and (2) product information which is available on Petitioner's public website. Significantly, among the Petition, Petitioner's April 8, 2005 and May 4, 2005 submittals to the Department and Petitoner's public website, the Department has found no less than three different and contradictory product descriptions for LN-11 (see attachments). The LN-11 PDS in Attachment E, as noted above, describes LN-11 as a "film forming waterproof asphalt sealer formulated to meet Federal Specifications TTC-494 Types I, II and III". The May 4, 2005 LN-11 PDS describes LN-11 as "a superior gilsonite driveway sealer that dries to a beautiful black glossy finish". The five gallon container describes LN-11 as "[a] superior gilsonite driveway sealer that dries to a beautiful black glossy surface". According to Petitioner's public website, LN-11 is marketed and intended exclusively for use as a driveway sealer. PDSs and Material Safety Data Sheets (MSDS) found on the public website dated May 4, 2005, May 12, 2005, June 6, 2005, June 11, 2007, June 26, 2007, and July 2, 2007 consistently refer to LN-11 as "LN-11 EQUINOX ASPHALT GILSONITE DRIVEWAY SEALER" and describe it as "a superior gilsonite driveway sealer that dries to a beautiful black glossy surface". Thus, while the five gallon container and the web-based product information consistently describe LN-11 as a driveway sealer, Attachments D and E in this petition set forth a different product description for LN-11.

The recommended uses for LN-11 also vary. The five gallon container recommends LN-11 for "bituminous asphalt driveways and pavements". The web-based PDSs dated May 4, 2005, May 12, 2005, June 6, 2006, June 11, 2007, June 26, 2007 and July 2, 2007 (see attachments), similarly state that LN-11 "is used as a rejuvenator and sealer on bituminous asphalt parking lots and driveways." The May 4, 2005 PDS states that LN-11 is "used as a rejuvenator and waterproofing sealer on bituminous concrete parking lots, driveways and other concrete and masonry surfaces" (see attachments). The April 8, 2005 letter makes no mention of LN-11's use on "other concrete and masonry surfaces", stating that LN-11 is a surface coating for driveways and bituminous pavement surfaces (see attachments). Attachment E in the petition presents another, significantly different product description for LN-11. According to Attachment E, LN-11 "is used as a tough weather resistant pigmented coating on all types of steel, piping, industrial equipment, chassis, radiators, burial vaults, pigmented coating , septic tanks, and concrete manholes, masonry and bituminous concrete surfaces. Equinox Sealer provides resistance against water, alkalis, acids ultraviolet light and staining."

The information on both the five gallon container and Petitioner's website indicating that LN-11 is marketed and intended for use as a driveway sealer is consistent with Department Staff's understanding of how LN-11 is marketed for sale and use and actually used in New York State. Petitioner now represents to the Department that LN-11 has a multitude of uses, but such a product description for LN-11 as contained in this petition appears nowhere on Petitioner's website or the five gallon container in which LN-11 is sold and marketed in New York State. Even Petitioner's previous submittals to the Department did not describe LN-11 as Petitioner has now described it in the petition.

The issuance of a declaratory ruling must be scrupulously undertaken given its ramifications for the larger regulated community, ie. retailers, contractors, distributors, and suppliers who would rely on it in making their own compliance decisions. A declaratory ruling based on incomplete and misleading facts has the potential to cause great confusion among members of the regulated community and would not serve the public interest. With such divergent and conflicting product information, and an alleged set of facts which are plainly contradicted by publically available information, a response to this petition is not in the public interest. In accordance with 6 NYCRR 619.3(e), Petitioner's request for a declaratory ruling that LN-11 be classified as a "Waterproofing concrete/masonry sealer" is declined.

APPLICATION OF 6 NYCRR PART 211 TO LN-11

Petitioner's second issue concerns the application of Part 211 to LN-11, specifically Section 211.4, which prohibits the use of VOCs to liquefy asphalt used for paving from May 2nd through October 15th (the ozone season) except under certain enumerated circumstances. Asphalt to which VOCs have been added, such as LN-11, is also known as cutback asphalt. Petitioner does not raise any issues with respect to the few noted exceptions to the prohibitions contained in Section 211.4. Similarly, Petitioner does not raise the issue whether LN-11 is a cutback asphalt. The composition of LN-11 noted on the PDS in Attachment E document clearly states that LN-11 includes Asphalt CAS 8052-42-4, Solvent (mineral spirits) CAS 64741-41-9, and Gilsonite CAS 12002-43-6. The Solvent (mineral spirits) constitutes a VOC within the meaning of 6 NYCRR 200.1(cg) and is included in LN-11 for the purposes of liquefying the Asphalt so it can be applied to bituminous surfaces. Because LN-11 is an asphalt product which has been liquified with VOCs, its use in paving applications falls squarely within the prohibition in Section 211.4.

Petitioner does not contest the application of Section 211.4 to prohibit the use of VOCs to liquefy asphalt used for paving. Rather, Petitioner contends that Part 211 is not applicable to its product because LN-11 is not used for paving. Attachment D, discussed above, sets forth Petitioner's representations on the limitations on the use of LN-11. Attachment D focuses on the application of LN-11 as a hot mix asphalt on roads used in transportation, ie., roads subject to NYSDOT specifications, and provides a litany of reasons why the product would not perform well for such purposes. Even assuming Petitioner's representations in Attachment D are true, the statements in Attachment D alone are not dispositive.

According to Petitioner's Attachment E, LN-11 can be used on "bituminous concrete surfaces". In its April 8, 2005 letter to the Department, Petitioner explained that:

The average driveway sealer is a protective coating for the pavement surface. It attempts to slow the oxidation process and prevent additional seepage of water through oxidized cracts into the pavement surface. However, these sealers do not help repair the surface damage already done. Also, due to build and tracking problems these types of sealers can only [be] applied once every five years. The average life span of a driveway surface before needed repair by repaving with hot mix is approximately 7-10 years.

The LN-11 is a rejuvenating coating. This product penetrates the surface of the bituminous surface up to a depth of 1/4 inch and adds asphalt back into the oxidized surface. It also adds asphalt with a harder penetration level than the original pavement asphalt to help deter further deterioration. The standard oxidized level of a pavement surface is 1/8 [inch]; therefore, the LN-11 helps to bond the deteriorated level of pavement surface to the portion not affected by oxidation. The LN-11 can be applied every year with no problems with build up or tracking. This in turn has dramatically increased the life span of pavement surfaces with proper coating programs to 20 to 30 years.

Thus the question that must be addressed is whether the described use of LN-11 on such bituminous surfaces as described by Petitioner constitutes paving within the meaning of 6 NYCRR 211-4.

EPA's 1977 guidance document entitled Control of volatile Organic Compounds From Use of Cutback Asphalt, EPA-450/2-77-037, provided the genesis for the adoption of 6 NYCRR 211.4. According to EPA guidance, cutback asphalts were responsible for copious amounts of VOC emissions nationwide in 1975, estimated at 655,000 metric tons. EPA also recognized that cutback asphalts were predominately used during the warm weather months when the formation of ozone is more likely and predicted that the decreased use of cutback asphalts could provide "major assistance" in attainment of the national ambient air quality standards. The document also noted the following concerning the application of cutback asphalts:

Liquefied asphalts are generally prepared by cutting back or blending asphalt cement with petroleum distillate or by emulsifying asphalt cement with water and an emulsifying agency. Heated asphalt cement is generally used to make asphalt pavements such as asphalt concrete. Cutback and emulsified asphalt are used in nearly all paving applications. In most applications, cutback and emulsified asphalt are sprayed directly on the road surface . . ..VOCs evaporate to the atmosphere as the cutback asphalts cure. The VOC in cutback asphalt will range from 20 to 50 percent by volume averaging 35 percent.

Id. at 1-2 - 1-3.

The prohibition on the use of cutback asphalts was one of several strategies proposed by EPA in the late 1970s utilizing reasonably available control technology (RACT) considering technological and economic feasibility. EPA's intention was that cutback asphalts would be replaced by emulsified asphalts. Emulsified asphalts have a much lower content of petroleum distillate, and thus significantly lower VOC content. They can be used as a substitute for cutback asphalt and at a lower cost.

The Department revised Part 211 in 1979, two years after the publication of EPA's guidance, to adopt a provision prohibiting the use of cutback asphalts, and continues to implement the regulation today as a measure to reduce emissions of VOCs. See 6 NYCRR 211.4. VOC's contribute to the formation of ozone, a criteria air pollutant under the Clean Air Act. At the time of the Part 211 amendments, areas of the State, notably the New York City Metropolitan Area, had levels of ozone that exceeded the National Ambient Air Quality Standards (NAAQS). NAAQS are established by EPA and prescribe the maximum permissible concentration of a pollutant in the ambient air requisite to protect the public health. High levels of ground-level ozone cause a host of major public health problems, and recent studies have demonstrated a definitive link between even short-term ozone exposure and death in humans. The Department estimated that annual VOC emissions in the State could be reduced by as much as 10,800 tons by the adoption of 6 NYCRR 211.4. Since then, the use of cutback asphalt has largely been eliminated in New York State with the widespread availability of low VOC compliant asphalt-based products.

EPA did not define the term paving in its guidance document, however, there is no indication that EPA intended to restrict the application of RACT exclusively to the application of hot-mix asphalt to roads used in transportation. The term asphalt is defined broadly defined under Part 211 as "[t]he dark brown to black cementitious material (solid, semisolid or liquid) of which the main constituents are bitumens which occur naturally or as a resident of petroleum refining." Depending on its form (solid, semisolid, or liquid ), asphalt can be used for different purposes and applied by different methods to different surfaces. For example, asphalt can be used in construction and maintenance applications in numerous ways, including, but not limited to, cold-mix asphalt mixtures, hot and cold mixtures (ie., recycled road mixtures), and surface treatments, including seal coats, chip seals, slurry seals and fog-coats. When used as described by the Petitioner, LN-11 is applied directly to the bituminous surface ( i.e., road, driveway or parking lot surface), VOCs evaporate to the atmosphere as the cutback asphalts cure and a new layer of asphalt is left behind. (Note how this language matches the EPA guidance language above). Part 211 does not differentiate between a paving activity that leaves a very thin layer of new surface or a layer that has a significant thickness. Paving is paving, no matter how thin the resulting layer of asphalt. Given the broad definition in Part 211, and the remedial purposes for which the 1979 amendments were adopted, the regulation of paving under Part 211 should also be liberally construed to recognize that asphalt can be applied in various forms for various purposes.

According to the Petition, LN-11 is used on bituminous concrete surfaces. Bituminous concrete surfaces are essentially concrete surfaces that are comprised of bituminous materials. According to the Civil Engineering Handbook, bituminous materials refer to substances in which bitumen is present or from which it can be derived:

Bitumen is defined as an amorphous black or dark-colored (solid, semisolid, or viscous) cementitious substance, composed principally of high molecular weight hydrocarbons, and soluble in carbon disulfide [ASTM 1994]. For civil engineering applications, bituminous materials include primarily asphalt and tars.

W.F. Chen (editor), Civil Engineering Handbook, at 1329 [1995]). Thus, bituminous concrete surfaces includes all types asphalt or asphaltic concrete surfaces, including roads used for transportation, the principal subject of Attachment D, as well as similar types of surfaces used for other purposes such as parking lots, driveways, and bike paths. Although LN-11 may not be used in road construction, according to Petitioner (Attachment D), Attachment E clearly indicates that LN-11 is appropriate for use on bituminous concrete surfaces. The use of asphalt on bituminous concrete surfaces includes the application of liquefied asphalt to seal driveways and parking lots. This activity leaves a layer of new asphalt over the existing driveway or parking lot , i.e., paving.

Accordingly, because the Petition establishes that LN-11 is or can be used in paving activities, as that term has been construed for purposes of Part 211, Petitioner's request for a declaratory ruling that LN-11 is not subject to regulation under Part 211 is denied and a declaratory ruling is made that 6 NYCRR 211.4 does apply to the use of LN-11 on bituminous concrete and bituminous pavement surfaces, including, but not limited to, driveways and parking lots.

SUMMARY

  1. Petitioner's request for a declaratory ruling that LN-11 is a "Waterproofing proofing/concrete masonry sealer" for purposes of regulation under 6 NYCRR Part 205 is declined.
  2. Petitioner's request for a declaratory ruling that LN-11 is not used for paving and thus not subject to regulation under 6 NYCRR Part 211 is denied and it is determined that LN-11 is subject to regulation under 6 NYCRR 211.4 for the uses discussed herein.

Attachments (PDF document, file size: 2,691MB)

Dated July 20, 2007

Alison H. Crocker
Deputy Commissioner and General Counsel

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