Regulatory Impact Statement 6 NYCRR Parts 228, 200 and 201
The New York State Department of Environmental Conservation (Department) proposes to revise Parts 200, 'General Provisions,' and 201, 'Permits and Registrations'; and Subparts 228-1, 'Surface Coating Processes' and 228-2, 'Commercial and Industrial Adhesives, Sealants and Primers,' of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York (6 NYCRR). The proposed changes to Subpart 228-1 and attendant revisions to Parts 200 and 201 will incorporate seven Control Techniques Guidelines (CTGs) issued by the U.S. Environmental Protection Agency (EPA) between April 1996 and September 2008. Each of the federal CTGs establish Reasonably Available Control Technology (RACT) for volatile organic compounds (VOCs) emitted by surface coating processes identified in the CTGs. Pursuant to the Clean Air Act (CAA), the Department is required to incorporate the revisions to Subparts 228-1 and Parts 200 and 201 into its state implementation plan (SIP), and then provide the revised SIP to EPA for review and approval. The revisions to Subpart 228-1 conform to, and are not stricter than, federal requirements. The proposed revisions to Subpart 228-2 will make clarifying and non-substantive changes.
Generally, surface coatings are any mixture of film-forming materials plus pigments, solvents, and other chemical additives applied to the surface of a material, such as plastic or metal, for functional or decorative purposes. Examples of coatings include paints, stains, thinners, and sealants. Coatings are applied to the surfaces of consumer and commercial products, such as refrigerators, furniture, and automobiles, via assembly lines, paint booths, or other coating application systems. Application of surface coatings typically results in the release of VOCs into the atmosphere, as caused by release of those VOCs contained within the coating itself, or from activities related to the surface coating process such as during cleanup activities.
Currently, Subpart 228-1 requires those surface coating facilities subject to the rule to reduce VOC emissions from surface coating process by implementing one or a combination of RACT controls. These RACT controls are based largely on CTGs issued in 1977, as well as the 1980s and 90s, and include using coatings that contain less VOCs than the limit enumerated in the rule; utilizing pollution control devices and VOC capture systems ("add-on" controls); or obtaining a process-specific RACT variance from the Department. Subpart 228-1 also sets forth general rules that apply to all surface coating facilities such as opacity limits, recordkeeping requirements, and storage and handling procedures.
As discussed in more detail throughout this and other rulemaking documents, the proposed revisions will update Subpart 228-1 to, among other things, include the latest RACT requirements established in seven federal CTGs referenced below in order to further limit VOCs emitted by surface coating processes in New York. In particular, the proposed revisions to Subpart 228-1 will:
1) Restructure the rule to improve clarity and streamline administrative review;
2) Lower some of the current applicability threshold limits, thus expanding the types of RACT regulated surface coating processes;
3) Lower the current VOC content limits for certain coatings, thereby requiring affected surface coating processes to switch to lower-VOC coatings;
4) Regulate the VOC content of several new subcategories of coatings, thereby expanding the coating type and content limit options available to regulated industry; and
5) Increase the "overall removal efficiency rating" for add-on controls from 80 percent to 90 percent, which will require greater VOC reduction efficiencies for facilities which choose to utilize add-on controls.
The proposed revisions are consistent with the federal CTGs. Incorporating the latest RACT requirements for surface coating processes under Subpart 228-1 will allow the Department to submit a revised SIP to EPA, thus furthering state and federal legislative objectives by reducing VOCs and assisting the State in attaining the ozone NAAQS as required by the CAA.
The New York State (NYS) statutory authority for these regulations are found in the Environmental Conservation Law (ECL) Sections 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0302, 19-0303, 19-0305, 71-2103, and 71-2105.
Section 1-0101. This Section outlines the policy declaration for the Department regarding the protection of New York State's environment and natural resources, including the control of "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." Section 1-0101 further requires that it is the policy of the State to coordinate the State's environmental plans, functions, powers and programs with those of the federal government and other regions and manage air resources to the end that the State may fulfill its responsibility as trustee of the environment for present and future generations. This Section provides that it is the policy of the State to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by providing that care is taken for air resources that are shared with other states.
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 promote 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 including providing for the prevention and abatement of air pollution. Section 3-0301(2)(a) permits 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 compliance. Section 3-0301(2)(m) gives the Commissioner authority to "adopt 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 and 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 political subdivision 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 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, "to safeguard the air resources of the State from pollution" consistent with the policy expressed in Section 19-0103 and in accordance with 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 consistent with the policy of the State as it is declared in Section 19-0103, the Department shall have power to formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution, 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 will 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 difference in the State's air quality areas 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 of the ECL.
In enacting the Title I ozone control requirements of the 1990 CAA amendments, Congress recognized the hazards of ground-level ozone pollution and mandated that States implement stringent regulatory programs in order to meet the National Ambient Air Quality Standard (NAAQS) for ozone. The Department is undertaking this rulemaking to satisfy New York's obligations under the CAA and in a manner consistent with ECL Article 19. This Section discusses the legislative objectives of the rulemaking, including overview of relevant Federal and state statutes and regulations.
New York State Environmental Conservation Law
Articles 1 and 3 of the ECL establish the overall State policy goal of reducing air pollution and providing clean air for the citizens of New York; and provide general authority to adopt and enforce measures to do so. In addition to the general powers and duties of the Department and the Commissioner to prevent and control air pollution found in Articles 1 and 3, Article 19 of the ECL was specifically adopted to safeguard the air 'quality' of New York from pollution. Under Article 19, the Department is authorized to formulate, adopt, promulgate, amend and repeal regulations for preventing, controlling and prohibiting air pollution. This Department is also authorized to promulgate rules and regulations for preventing, controlling or prohibiting air pollution in such areas of the State as shall or may be affected by air pollution; and provisions establishing areas of the State and prescribing for such areas (1) the degree of air pollution or air contamination that may be permitted therein, and (2) the extent to which air contaminants may be emitted to the air by any air contamination source. In addition, this authority also includes the preparation of a general comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution recognizing various requirements for different areas of the State.
Federal Clean Air Act (CAA)
In 1970, Congress amended the CAA "to provide for a more effective program to improve the quality of the Nation's air." The statute directed EPA to adopt National Ambient Air Quality Standards (NAAQS) and required states to develop implementation plans known as State Implementation Plans (SIPs) which prescribed the measures needed to attain the NAAQS. In 1977 the Act was amended to provide additional safeguards to protect the nation's air quality. The 1977 amendments required states to identify areas that did not meet the NAAQS; these areas would then be designated as "nonattainment" areas. States with these "nonattainment" areas were then required to include specific requirements in their SIPs, including requirements relating to new source review, reasonably available control technology, emission inventories and projections, and contingency measures. Congress again amended the Act in 1990 with the goal of setting more realistic deadlines that recognized the differences among areas while requiring reasonable progress towards attainment. To accomplish this, the 1990 CAA amendments, among other things, divided nonattainment areas into different classifications depending on the severity of the pollution in each area, and established a separate deadline for attainment and incrementally more stringent control requirements for each such classification.
RACT and Federal CTGs
The 1990 CAA amendments require states to implement stringent regulatory programs associated with one of the chemical precursors of ozone: VOCs. In particular, CAA section 172(c)(1) provides that, for certain nonattainment areas, states must revise their SIPs to include reasonably available control measures as expeditiously as possible, including emissions reductions achievable by requiring "reasonably available control technology" (RACT) for sources of VOC emissions.
While RACT is not defined in the CAA, EPA policies govern those sources that are required to apply RACT controls under a nonattainment SIP. According to EPA, RACT is the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. Depending on site specific considerations, such as geographic constraints, RACT can differ for similar sources. 45 Fed. Reg. 59329, 59331 (September 9, 1980).
Under EPA's current RACT scheme, controls are required for emission sources listed in designated source categories under EPA's Control Techniques Guidelines (CTGs). CAA section 183(e)(3)(C) authorizes the EPA to issue CTGs in lieu of a national regulation of a source category if EPA determines that the CTGs will be "substantially as effective as regulations." CTGs are not standards, but rather a collection of technical information and recommendations used to inform states about the best available pollution control techniques. In essence, the recommended pollution control techniques found in each of the CTGs represents a presumptive norm, or "presumptive RACT," for a particular source category, 'i.e.', if a state adopts RACT control measures, EPA presumes that the proposed SIP will be in compliance with the CAA.
Furthermore, CTGs are the EPA's primary mechanism for regulating emissions that ordinarily escape EPA's purview. Pursuant to CAA section 183(e)(1)(C), EPA may only regulate manufacturers, processors, distributors, and importers of consumer and commercial products; and not end-users. Unlike national regulations, CTGs are guidance documents that recommend presumptive RACT measures that states may adopt and apply to end-users of consumer and commercial products. As a result, since 1975, EPA has issued over 40 CTGs establishing presumptive RACT for designated source categories of known VOC emitters. 'See', http://www.epa.gov/ttn/naaqs/ozone/ctg_act/index.htm. New York State has incorporated many of the presumptive RACT requirements established in the federal CTGs, for example in its regulation of surface coatings, in order to comply with the CAA and further the goal of attaining the NAAQS for ozone.
New York's Ozone NAAQS Non-Attainment SIP
The CAA requires states to revise their SIPs to include reasonably available control measures as expeditiously as possible, including RACT, for sources of VOCs. Furthermore, CAA section 182(b)(2)(A) requires that, for certain nonattainment areas, states must revise their SIPs to include RACT for sources of VOC emissions covered by any CTGs issued between November 15, 1990 and the area's date of attainment. As a result, the Department has implemented many VOC regulatory programs to help bring all areas of the State into attainment with the NAAQS for ozone, such as requiring RACT controls for major sources; Stage I and Stage II gasoline vapor recovery; maximum volatility requirements for gasoline; limits on auto body and architectural points; limits on consumer products such as hair sprays, deodorants and urinal cakes; control on small industrial facilities such as bakeries; and implementing the emission vehicle program and the enhanced inspection and maintenance (I/M) program.
Additionally, CAA section 184(b)(1)(B) requires implementation of RACT statewide in states that are located within an Ozone Transport Region (OTR). OTR States are therefore required to implement RACT for VOC emission sources covered by CTGs issued both before and after November 15, 1990. New York is one of the several states located in the OTR required under the CAA to revise its SIP to include RACT requirements statewide for each of the source categories identified in the federal CTGs, including RACT for surface coating processes.
Part 228-1 - New York's RACT for Surface Coating Processes
New York State currently regulates VOCs emitted by surface coating processes under 6 NYCRR Subpart 228-1. Since its adoption in 1979, Part 228 has incorporated RACT controls for surface coating processes based largely on CTGs issued by EPA, including RACTs from 1977, as well as the 1980s and 1990s. This proposed rulemaking will update the current rule by incorporating the latest RACT requirements for surface coating processes established in seven different CTGs issued by EPA from April 1996 to September 2008. These CTGs establish presumptive RACT for surface coating processes in each of the product categories identified below:
1) Wood Finishing [EPA 453/R-96-007 (April 1996); 61 Fed. Reg. 25223 (May 20, 1996)];
2) Flat Wood Paneling [EPA 453/R-06-004 (September 2006); 71 Fed. Reg. 58745 (Oct. 5, 2006)];
3) Metal Furniture [EPA 453/R-07-005 (September 2007); 72 Fed. Reg. 57215 (Oct. 9, 2007)];
4) Large Appliance [EPA 453/R-07-004 (September 2007); 72 Fed. Reg. 57215 (Oct. 9, 2007)];
5) Paper, Film and Foil Coatings [EPA 453/R-07-003 (September 2007); 72 Fed. Reg. 57215 (Oct. 9, 2007)];
6) Automobile and Light-Duty Truck Assembly [EPA-453/R-08-006 (September 2008); 73 FR 58481 (Oct. 7, 2008)]; and
7) Miscellaneous Metal and Plastic Parts [EPA-453/R-08-003 (September, 2008); 73 FR 58481 (Oct. 7, 2008)].
Needs and Benefits
As discussed below, adoption of the proposed revisions to Subpart 228-1 will help fulfill state and federal legislative objectives by imposing RACT controls on surface coating processes in the source categories identified in the latest federal CTGs thereby further reducing New York's VOCs emissions from surface coating processes, reducing harmful ground-level ozone pollution, and allowing the State to attain the NAAQS for ozone.
Public Health and Welfare Needs and Benefits
There are two types of ozone, stratospheric and ground level ozone. Ozone in the stratosphere is naturally occurring and desirable because it shields the earth from carcinogenic ultraviolet radiation. In contrast, ground level ozone, or smog, results from the mixing of VOCs and NOx on hot, sunny, summer days, and can harm humans and plants. As a result, EPA established the primary ozone NAAQS to protect public health. In the northeastern United States the ozone non-attainment problem is pervasive; concentrations of ozone often exceed the NAAQS by mid-afternoon on a summer day.
Ground-level ozone severely impacts human longevity and respiratory health. 'See generally' Senate Committee on Environment and Public Health, S. Rep. No. 101-228 (1990), 'reprinted in' 1990 U.S.C.C.A.N. 3385. Long term, chronic exposure to ozone may produce accelerated aging of the lung analogous to that produced by cigarette smoke exposure. 'Id.' In 1995, EPA recognized that "[m]uch of the ozone inhaled reacts with sensitive lung tissues, irritating and inflaming the lungs, and causing a host of short-term adverse health consequences including chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections." 60 Fed. Reg. 4712-13 (Jan. 24, 1995). Moreover, two recent studies have shown a definitive link between short-term exposure to ozone and human mortality. 'See' 292 'Journal of the American Medical Asssn.' 2372-78 (Nov. 17, 2004); 170 'Am. J. Respir. Crit. Care Med.' 1080-87 (July 28, 2004) (observing significant ozone-related deaths in the NYCMA). Even exercising healthy adults can experience a 15 to 20 percent reduction in lung function from exposure to low levels of ozone over several hours.
Children and outdoor workers are especially at risk for damaging effects caused by ozone exposure. A child's developing respiratory system is more susceptible than an adult's. Additionally, ozone is a summertime phenomenon. Children are outside playing and exercising more often during the summer which results in greater exposure to ozone than many adults. Outdoor workers are also more susceptible to lung damage because of their increased exposure to ozone during the summer months.
In 2006, EPA reaffirmed the serious public health consequences of ozone. EPA recognized a number of epidemiological and controlled human exposure studies that: suggest that asthmatic individuals are at greater risk for a variety of ozone-related effects including increased respiratory symptoms, increased medication usage, increased doctor and emergency room visits, and hospital admissions; provide highly suggestive evidence that short-term ambient ozone exposure contributes to mortality; and report health effects at ozone concentrations lower than the level of the current standards, as low as 0.04 parts per million (ppm) for some highly sensitive individuals. 'See Fact Sheet: Review of National Ambient Air Quality Standards for Ozone Second Draft Staff Paper, Human Exposure and Risk Assessments and First Draft Environmental Report', U.S. Environmental Protection Agency, July 2006.
Ground level ozone also interferes with the ability of plants to produce and store food. This compromises growth, reproduction and overall plant health. By weakening sensitive vegetation, ozone makes plants more susceptible to disease, pests and environmental stresses. Ozone has been shown to reduce yields for many economically important crops (e.g., corn, kidney beans, soybeans). Ozone damage to long-lived species such as trees (by killing or damaging leaves) can significantly decrease the natural beauty of an area, such as the Adirondacks. Implementation of the Subpart 228-1 revisions will help lower levels of ozone in NYS and decrease these adverse public health and welfare effects.
Clean Air Act and Regulatory Needs and Benefits
As discussed above, the proposed revisions to Subpart 228-1 will allow the state to satisfy state and federal legislative objectives by imposing RACT controls on surface coating processes in New York, thus furthering the goal of attaining the federally-mandated ozone NAAQS. Primarily, the proposed revisions will address the requirements set forth in CAA sections 172(c)(1), 182(b)(2)(A), and 184(b)(1)(B). In accordance with these sections, New York will revise its SIP to expeditiously include reasonably available control measures to control VOC emissions. Specifically, the proposed revisions will update Subpart 228-1 to include the latest RACT requirements as established in the seven federal CTGs issued between 1996 and 2008. Additionally, the proposed revisions include a restructuring of the rule to improve clarity and streamline administrative review. The following discusses the current requirements of Subpart 228-1 and details the revisions proposed in this rulemaking.
Current Part 228-1
6 NYCRR Part 228 has been amended several times to update the categories and means of VOC regulation. In 1979, the Department adopted 6 NYCRR Part 228 to regulate VOC emissions from surface coating processes; conforming to the various presumptive RACT requirements established under CTGs issued prior to that date. See e.g., May 1977: CTG No. EPA-450-2-77-008 (Cans, Coil, Paper, Fabric, and Auto); December 1977: CTG Nos. EPA-450-2-77-032 (Metal Furniture), EPA-450-2-77-33 (Magnetic Wire), and EPA-450-2-77-34 (Large Appliances); and June 1978: CTG Nos. EPA-450-2-78-015 (Misc. Metal Parts) and EPA-450-2-78-32 (Flat Wood Panels).
Part 228 was last amended in 2010 to incorporate new Subpart 228-2, "Commercial and Industrial Adhesives, Sealants and Primers," to address VOC emissions in accordance with a federal CTG establishing presumptive RACT for that category. At that time, the RACT requirements for surface coating processes was moved to Subpart 228-1 without any substantive revisions. The current rule, therefore, reflects RACT requirements for surface coating processes established in both pre- and post-1990 CTGs.
Under current Subpart 228-1, the regulated industry must determine first whether there are RACT control requirements applicable to their surface coating processes. Determinative factors include whether the facility is located within an ozone non-attainment area and the amount of VOCs emitted by the facility annually, as expressed in tons per year, either in actual emissions or potential to emit. 'See' Section 228-1.1(b). For example, RACT control requirements currently apply to surface coating processes that are: listed in Table 1 of Section 228-1.7; located outside the New York City and Lower Orange County metropolitan areas; and whose annual potential to emit VOCs equals or exceeds 10 tons per year. 'See' Section 228-1.1(b)(4).
Not all facilities need to implement RACT controls. A facility may not be located in an ozone non-attainment area, or it may not emit a significant quantity of VOCs. Furthermore, the current rule exempts certain types of facilities such as those that manually apply coatings; research and development facilities; and certain facilities using low-use coatings of 55 gallons or less on a 12-month rolling basis. 'See' Section 228-1.1 (e). However, even if a facility is not required to implement RACT controls, all in-state facilities must comply with the general requirements of the rule, such as opacity limits, recordkeeping requirements, and VOC storage and handling requirements. 'See' Sections 228-1.4, -1.5, and -1.10.
If the RACT provisions of the rule are applicable to the facility, the regulated entity has many options to control VOC emissions including: complying with the VOC content limits as set forth in Sections 228-1.7 and -1.8; applying an alternative control strategy under Sections 228-1.3 (b) and (d), such as using "add-on controls" which require a demonstration of an "overall removal efficiency rating" of at least 80 percent; or the facility may request a process-specific RACT variance from the Department under Section 228-1.3 (e). The regulated industry may choose also to apply one or a combination of these VOC emission control strategies.
Proposed Revisions to Subpart 228-1
The proposed revisions to Subpart 228-1 will include EPA's latest RACT requirements for surface coating processes under the product categories identified in the seven CTGs. The proposed revisions will update certain RACT requirements for certain product categories identified in the referenced CTGs without changing the core programmatic provisions of the current rule. The proposed rule will: 1) restructure the current rule to improve readability and streamline administrative review; 2) lower the applicability thresholds for some of the product categories identified in the CTGs; 3) lower the VOC content limits for some of the product categories identified in the CTGs; 4) add numerous new subcategories of coatings and accompanying content limits; and 5) increase the "overall removal efficiency rating" for add-on controls from 80 percent to 90 percent.
Restructured Provisions. The proposed revisions restructure the current rule to improve readability and streamline Department staff's administrative review. Over the years, the Department has received many comments from the regulated industry that criticize the current rule for obscuring the industry's liability and duties. The restructured provisions will help the regulated industry determine whether the RACT requirements are applicable to the facility; whether the rule provides any process-specific RACT control requirement exemptions; and, if the RACT rules are applicable, which process-specific RACT controls are required. Similarly, the proposed rule will help Department staff streamline applicability review for the same reasons.
For example, the applicability section under current Section 228-1.1(b) requires the reader to determine applicability based on review of the product categories listed under two separate tables, each located in a different section within the rule. The proposed restructure will place all components of the applicability section at the beginning of the rule, in an easy-to-read table format, which is cross-referenced to the specific RACT requirements. The new table will allow both the regulated industry and program staff to easily determine which specific RACT rules or exemptions are applicable to that grouping of surface coating processes.
The proposed rule also groups all applicable process-specific RACT rules into easily identifiable sections under proposed Section 228-1.4, rather than spread throughout the rule as under current Subpart 228-1. For example, all RACT rules applicable to "class a" surface coating processes will be located in Section 228-1.4(a), and all rules for "class b" processes will be located in Subdivision 228-1.4(b). Within each of these "class" subsections, facilities can more easily determine the applicable RACT rules, including, for example: the content limits for each type of surface coating within the product category or subcategory; any process-specific RACT requirements, such as allowable coating application techniques and any available coating-specific exemptions.
Other provisions of the proposed rule are also organized to improve readability: all rule applicability exemptions are grouped under Section 228-1.1(b); all definitions are placed in Section 228-1.2; the general rules applicable to all surface coating facilities are grouped together under Section 228-1.3; all RACT alternative control strategies such as add-on controls, coating systems, and RACT variances are grouped under Section 228-1.5; and all monitoring and reporting requirements are located in Section 228-1.6.
Applicability Thresholds. The proposed rule lowers the current applicability thresholds for some surface coating processes under the product categories identified in the seven CTGs, thus making the rule stricter. More surface coating processes will become subject to the content limits of the rule than are currently. The proposed rule lowers the VOC applicability thresholds from the current 10 tpy (tons per year) PTE (potential to emit) to three tpy (actual emissions); the VOC applicability threshold for "miscellaneous plastic parts" is reduced from 50 tpy PTE to three tpy actual; and the VOC applicability threshold for "wood finishing" is reduced from 50 tpy PTE to 25 tpy PTE. As a result, there will be an expansion of surface coating facilities that are liable to the rule, and they must subsequently choose one or a combination of the various VOC control methods.
VOC Content Limits. The proposed rule lowers the current content limit for some of the product categories indentified in the CTGs, thus lessening the amount of VOC emissions from those products. For example, the content limit for surface coating processes in the "large appliance" category will be lowered from 2.8 pounds of VOCs per gallon (lbs/gal) to 2.3 lbs/gal. Absent a process-specific exemption or utilization of an alternative control strategy, those facilities that apply surface coatings to large appliances would be required to accommodate lower VOC content coatings. As discussed in the "New Subcategories" section below, a surface coating facility may benefit from the proposed rule's addition of several new subcategories of coatings.
New Subcategories. The proposed revisions add numerous new subcategories of coatings with specific VOC content limits. Currently, there are a total of 50 distinct product categories with associated VOC content limits, 30 of which are associated with subcategories. For example, the automobile assembly coating line is currently divided into four subcategories, each with its own content limit as follows: prime coat (1.9 lbs/gal); primer-surfacer (2.8 lbs/gal); top coat (2.8 lbs/gal); and repair coat (4.8 lbs/gal). 'See' Section 228-1.7, Table 1.
The proposed revisions will expand the current 50 categories and sub-categories with associated content limits to a total of 176. The addition of over a hundred new subcategories will allow surface coating facilities to more accurately identify the specific type of coating being used in its surface coating process, thus ensuring better overall compliance by the regulated industry and minimizing penalties for noncompliance as caused by industry confusion.
Using the "large appliance" coatings example above, a large appliance surface coating facility is required under the proposal to comply with a stricter content limit of 2.3 lbs/gal if it continues to use a "general, one-component" coating. Under the current rule, there are no subcategories for large appliances; so all such facilities currently comply with the "general, one-component" content limit. Under the proposed rule, however, the facility may choose to use one of 16 different types of coatings under the newly created subcategories, which expands a facility's regulatory options and may minimize the facility's overall costs.
Overall Removal Efficiency Rating. The proposed revisions to Subpart 228-1 will increase the minimum "overall removal efficiency rating" of add-on controls from 80 percent to 90 percent. Surface coating facilities have the option of using VOC capture and control devices, also known as add-on controls, to reduce the amount of VOCs emitted by the surface coating process, rather than using lower-VOC content coatings. The current rule requires that a facility's add-on controls achieve a minimum overall removal efficiency rating of 80 percent, which is measured as the removal, by weight, of VOCs generated by the source of the emissions. 'See' Subpart 228-1.3. The overall removal efficiency rating is defined under current Section 228-1.2 (39) as "the total reduction of volatile organic compound emissions attributable to the use of both the capture system and the control equipment." According to EPA, certain add-on controls were already meeting overall control efficiency ratings as high as 95 percent at the time the CTGs were issued. Also, EPA estimates that most surface coating facilities will likely chose to utilize low-VOC coatings rather than add add-on controls or make changes to their current pollution control systems, which are generally more expensive.
The proposed revisions to Subpart 228-1 as detailed above will incorporate the required RACT controls in conformance with the latest CTGs issued by EPA in order to control VOCs emitted by surface coating processes; allowing New York to revise its SIP in accordance with the CAA and furthering the goal of ozone NAAQS attainment. The proposed revisions to Part 200 are non-substantive, adding only three references in Table 1 of Section 200.9 and updating the publication date and page numbers of existing referenced documents to the 2006 Code of Federal Regulations. The proposed revisions to Part 201 are also non-substantive and supplement the criteria for a facility performing surface coating processes to qualify as an exempt activity pursuant to 6 NYCRR Part 201-3.2(c)(17). The existing provisions exempt facilities using less than 25 gallons per month of coating materials (paints) and cleaning solvents, combined. The proposed revision provides an optional equivalent exemption basis for facilities with 1,000 pounds or less of actual facility-wide VOC usage on a 12-month rolling basis. The proposed revisions to Subpart 228-2 make clarifying changes and are non-substantive. The Department has determined that Subsection 228-2.7(a)(1), the labeling provision requiring that manufacturers specify the category name, is unnecessary and is therefore removing that provision.
Costs to Regulated Parties and Consumers
EPA set forth its cost estimates for various industries based on each of the product categories identified in the seven CTGs. 'See', CTGs for: Wood Finishing [EPA 453/R-96-007 (April 1996)]; Metal Furniture [EPA 453/R-07-005 (September 2007)]; Large Appliance [EPA 453/R-07-004 (September 2007)]; Flat Wood Paneling [EPA 453/R-06-004 (September 2006)]; Paper, Film and Foil Coatings [EPA 453/R-07-003 (September 2007)]; Automobile and Light-Duty Truck Assembly [EPA-453/R-08-006 (September 2008)]; and Miscellaneous Metal and Plastic Parts [EPA-453/R-08-003 (September, 2008)]. EPA evaluated the emissions reductions and cost effectiveness of control options for all affected industries nationwide. According to EPA estimates, the cost to industry from the proposed changes to Subpart 228-1 is in the range of $200 to $1,758 per ton of VOC reduction.
Based on an inventory of existing facilities and current requirements, no cost increase is expected for the Flat Wood Paneling, Paper Film and Foil, or Automobile and Light Duty Truck Assembly coating industries. The remaining industries have estimated cost efficiencies as follows (all in dollars per ton of VOC reduction): Metal Furniture $200 [EPA 453/R-07-005, p.26]; Large Appliance $500 [EPA 453/R-07-004, p.21]; Wood Finishing $280 [EPA 453/R-96-007, pgs.6-2, 'et seq'.]; and Miscellaneous Metal and Plastic Coating $1,758 [EPA-453/R-08-003, p.40]. These cost estimates are based on facilities using lower VOC content materials rather than more expensive control technologies to comply with the new requirements.
It is estimated that facilities switching to low VOC content coatings will have a 30 to 35 percent reduction in VOC emissions. The annual cost estimate for a facility will depend greatly on their current emissions. It may cost a miscellaneous plastics facility, currently emitting 50 tons per year of VOC, up to $30,000 to switch to a low VOC content coating; a 50 ton per year wood finishing facility $3,500; a 10 ton per year miscellaneous metal facility up to $6,328; and 10 ton per year VOC emission metal furniture and large appliance facilities $700 and $1,750 respectively. No significant increases in costs to consumers are anticipated. There are no costs associated with the changes proposed to Subpart 228-2.
Costs to State and Local Governments
As discussed above, this requirement flows from the State's obligations under the CAA. This is not a mandate on local governments. It applies equally to any entity that owns or operates a subject source; applying statewide to all surface coating processes located in the State. State and local entities are not expected to be affected by the proposed revisions. There are no expected direct costs to State and local governments associated with this proposed regulation. No record keeping, reporting, or other requirements will be imposed on local governments. The authority and responsibility for implementing and administering Subpart 228-1 and Subpart 228-2 in New York resides solely with the Department. Requirements for record keeping, reporting, etc. are applicable only to the person(s) who conduct surface coating.
Costs to the Regulating Agency
Administrative costs to the regulating agency will not increase.
No additional paperwork will be imposed on the surface coating industry.
Local Government Mandates
This is not a mandate on local governments. It applies equally to any entity that owns or operates a subject source. Local governments are not expected to be affected by the proposed revisions.
No other regulations address the specific requirements to reduce VOC emissions from the affected industry.
The following alternatives have been evaluated to address the goals set forth above. These are:
1. Take no action. The "no action" alternative does not comply with the CAA. Failure to comply with the CAA will result in an EPA imposed Federal Implementation Plan (FIP) pursuant to CAA section 110(c), sanctions in the form of an increase in the new source review offsets ratio to 2 to 1, and the loss of Federal highway funding pursuant to CAA section 179.
2. The proposed revisions to Subpart 228-1 contain alternatives for compliance, including the compliant materials requirement, the option of using add-on controls or the utilization of a coating system, as well as a RACT variance provision. These alternative compliance provisions contained in the proposed rule are preferable because they are consistent with the federal CTGs, will help NYS achieve necessary VOC emission reductions, and will satisfy the State's obligations under the CAA.
The revisions are designed to conform to the requirements outlined in the federal CTGs.
In accordance with the CTGs and the CAA, States should submit SIP revisions within one year of the date of issuance of these final CTGs. Based on the various dates of issuance of the CTGs, the Department should submit SIP revisions as soon as practicable.