Assessment of Public Comments 6 NYCRR Parts 228, 200, and 201
Comments received from October 31, 2012 through 5:00 P.M., December 28, 2012
Comment 1: For Auto Refinish, the rule seems to mimic the Federal National Rule that was passed many years ago, and does not take the next step into compliance with other OTC states adopting rules or considering adopting rules that align more closely with the California Suggested Control Measures. Can we expect further rule-making to drop limits to align with the California SCM? (Commenter 1)
Response to Comment 1: The proposed rule does not change auto refinishing VOC limit criteria from the current Part 228-1 requirements. Any changes to the auto refinishing requirements of Part 228-1, including provisions from the OTC model rule or California's rule, would be the subject of a future rule-making.
Comment 2: The DEC should not remove the current exemption for contact bond adhesives under Subpart 228-2. Currently, subsection 228-2.4(a)(6) exempts contact bond adhesives that are sold or supplied by the manufacturer or supplier in a container with a net volume of one gallon or less. The proposed change is substantive, overly burdensome, not consistent with the OTC model rule, and provides insufficient time to comply. (Commenters 2 and 3)
Response to Comment 2: The DEC agrees with the commentor. The removal of the exemption under the proposal was inadvertent. As indicated in the Regulatory Impact Statement (RIS), the changes to Subpart 228-2 were merely intended to provide clarity to existing law. The exemption under current subsection 228-2.4(a)(6) will be retained in the final rule.
Comment 3: Three of the proposed Motor Vehicle Materials VOC limits in Table B8 - including motor vehicle adhesive, glass bonding primer, and weather strip adhesive categories - are not contained in the USEPA's CTG. ACA urges NYSDEC to align the VOC limits and units to be consistent with the CTG's. (Commenter 4)
Response to Comment 3: The DEC agrees with the commenter that the proposed VOC limits and units should be consistent with those of the CTG's. The three categories identified by the commenter were inadvertently added to Table B8 from USEPA's final CTG for "Miscellaneous Industrial Adhesives" issued September 2008 (the "Miscellaneous Industrial Adhesives" CTG was not part of this rulemaking). The other categories in Table B8 are derived from USEPA's final CTG for "Miscellaneous Metal and Plastic Parts" and correctly included as part of this rule-making. Since USEPA's final CTG for "Miscellaneous Industrial Adhesives" was not intended as part of this rule-making process, they will be removed in the final version. They may however, be considered in future rule-makings.
Comment 4: The Wood Finishing proposed VOC limit units in Table C-1 (lbs VOC/lb (solids)) are not consistent with the CTG. ACA urges NYSDEC to align the VOC limits and units to be consistent with the CTG's. (Commenter 4)
Response to Comment 4: While the Wood Finishing CTG considers a number of unit conventions in regulating VOC content, the recommended convention is mass of VOC per mass of solids (or lbs VOC/lbs solids); and is the convention used by the proposed rule.
Comment 5: NYSDEC should adopt the Ozone Transport Commissions (OTC) Model rule limits for mobile equipment repair and refinishing (Commenter 5)
Response to Comment 5: The proposed rule does not change auto refinishing VOC limit criteria from the current Subpart 228-1 requirements. Any changes to the auto refinishing requirements of Subpart 228-1 (such as the OTC model rule or California's rule) would be the subject of a future rule-making.
Comment 6: The language of subsection 228-1.1(b)(2) should be modified to exempt aerosol spray cans rather than exempt coating lines where coatings are applied by aerosol cans. (Commenter 6)
Response to Comment 6: Subpart 228-1.1(b) exempts certain coating lines. The coatings themselves are still counted with respect to actual or potential VOC emissions for the purpose of applicability.
Comment 7: The definition of 'Certification' under subsection 228-1.2(b)(27) should be amended to allow approval by the administrator "or" the department as opposed to the current - administrator "and" the department. (Commenter 6)
Response to Comment 7: This requirement is unchanged from the existing regulation (section 228-1.5(c)).
Comment 8: DEC should amend proposed subsection 228-1.3(b)(1) to replace 'certification' with 'maintain documentation from supplier/manufacturer' and to extend the period of time for submitting requested information from 30 days to 180 days or at least 90 days which is consistent with Part 205. (Commenter 6)
Response to Comment 8: The proposed requirement for submitting a certification is unchanged from the existing regulation. However, DEC agrees that the submission time should be made consistent with similar information request submission times such as under Part 205.5(a) and Subpart 228-2.5(c). The submission time in proposed subsection 228-1.3(b)(1) will be changed in the final rule from 30 days to 90 days.
Comment 9: Facilities utilizing add-on control equipment should be exempted from high efficiency application techniques that are currently required under subsection 228-1.3(e)(3). (Commenter 6)
Response to Comment 9: Under the proposed (and existing) regulation, facilities complying with the add-on controls requirements pursuant to proposed section 228-1.5 are not additionally required to comply with the application techniques requirement pursuant to subsection 228-1.3(e)(3). The application techniques requirement under subsection 228-1.3(e)(3) is only required if the facility is controlling VOCs using compliant materials pursuant to section 228-1.4
Comment 10: The prohibition of 'sale' should be removed from proposed subsection 228-1.3(c)(1), but leave the prohibition of 'specification'. (Commenter 6)
Response to Comment 10: The prohibition of sale under proposed subsection 228-1.3(c)(1) is unchanged from the existing regulation under current section 228-1.6(a). DEC agrees that the prohibition on 'specification' should be added as proposed under subsection 228-1.3(c)(1), as well as the other terms proposed therein.
Comment 11: The proposed section 228-1.6(a) should remain consistent with USEPA and other states. (Commenter 6)
Response to Comment 11: Section 228-1.6(a) is unchanged from the existing regulation (see current section 228-1.5(b)) and is consistent with USEPA and other states.
Comment 12: DEC should remove the requirement under proposed section 228-1.6(a), requiring testing to be done 'during a compliance demonstration' because such removal would allow for the collection of a sample by a third party. (Commenter 6)
Response to Comment 12: The identified provision under proposed section 228-1.6(a) is unchanged from the existing regulation (see current section 228-1.5(b)). It does not preclude the collection of a sample by a third party.
Comment 13: The language of proposed section 228-1.6(f), which lists required measurements associated with the operation of a VOC control devices, should be clarified to omit facilities using only filters/water wash booths from its requirements. (Commenter 6)
Response to Comment 13: DEC agrees with the commenter and will clarify in the final rule that the requirements of proposed section 228-1.6(f) applies to air cleaning devices used to comply with section 228-1.5.
Comment 14: The VOC limits proposed in Table B7 'Marine Pleasure Craft Surface Coating', for the 'finish primer/surfacer' and 'Marine Pleasure Craft Surface Coating', for the 'extreme high gloss topcoat' categories should be increased from 420 g/l to 600 g/l due to various reasons, including the added material and labor costs, lower aesthetic and performance results from using lower VOC coatings and for some paints, a reduced lifetime resulting from using lower VOC coatings. Commenter also notes that the Ozone Transport Commission (OTC) states of Maryland and Connecticut recently issued rules that raised the high gloss topcoat category to 600 g/l. (Commenter 7)
Response to Comment 14: The DEC does not concur with increasing the VOC RACT limits of 'finish primer/surfacer' or 'extreme high gloss topcoat' to 600 g/l. The proposed limits of 420 g/l for finish primer, and 490 g/l for extreme high gloss top coat are consistent with EPA's CTG, and is also the limit specified in South Coast Air Quality Management District (SCAQMD) rule 1106.1 - Pleasure Craft Coating Operations; a RACT limit in effect since January 1, 2001. The proposed rule sets forth exemptions which may allow a facility to use the higher VOC content coatings on a limited basis. There are also other prescribed approaches, such as coating systems, which may allow their use on a larger scale. The proposed RACT limits will be retained.
Comment 15: The VOC limit proposed in Table B7 'Marine Pleasure Craft Surface Coating', for the 'other substrate antifouling coating' category needs to be increased from 330 g/l to 400 g/l due to significantly reduced performance resulting from a number of problems with lower VOC content coatings. Commenter states that the National Emissions Standard for HAP's (NESHAPs) for Shipbuilding and Ship Repair (40 CFR Part 63) and SCAQMD rule 1106 limits antifouling in the US to 400g/l; and the OTC States of Maryland and Connecticut recently issued rules that raised the 'other substrate antifouling coating' category to 400 g/l. (Commenter 7)
Response to Comment 15: The DEC does not concur with increasing the VOC RACT limit of 'other substrate antifouling coating' to 400 g/l. The proposed limit of 330 g/l is consistent with EPA's CTG; and is also the RACT limit specified in SCAQMD rule 1106.1 - Pleasure Craft Coating Operations, a RACT limit in effect since January 1, 2001. While the VOC limit for antifouling in the SCAQMD 1106.1 rule was 400 g/l prior to 2001, the limit has been 330 g/l since then. The NESHAPs currently limit antifouling coatings to 400 g/l. This limit has not changed since it was originally proposed in December 1994. The proposed rule sets forth exemptions which would allow a facility to use the higher VOC content coatings on a limited basis. There are also other prescribed approaches, such as coating systems, which may allow their use on a larger scale. The proposed RACT limit will be retained.
Comment 16: A VOC limit should be added to Table B7 'Marine Pleasure Craft Surface Coating', for marine varnish and wood sealers; and they should be considered 'high gloss coatings'. (Commenter 7)
Response to Comment 16: The proposed 'Marine Pleasure Craft Surface Coating' VOC RACT limits were taken from EPA's CTG for 'Misc. Metal & Plastics Parts Coatings'; which contains limits for pleasure craft, derived from SCAQMD rule 1106.1 - Pleasure Craft Coating Operations. The wood coating VOC limits are not included in the CTG because it is outside the scope of the document (misc. metal & plastic) and similarly wood coatings are not included in the proposed Table B7.
Comment 17: A VOC limit category should be added to Table B7 'Marine Pleasure Craft Surface Coating' for a specialty (newly introduced) 'antifouling sealer/tie coat'; with a VOC limit of 420 g/l; and an associated definition. The new category will accommodate the International Maritime Organization Antifouling Systems (IMO AFS) convention ratified in 2007. The convention bans the use of certain biocides in antifouling coatings and bans marine vessel with such coatings on their hulls from entering members' waters. The suggested new category coating is used to seal in old antifouling coatings containing banned substances. The OTC states of Maryland and Connecticut recently issued rules that added an 'antifouling sealer/tie coat' category. (Commenter 7)
Response to Comment 17: The 'antifouling sealer/tie coat' category is a new development not specifically addressed by EPA's CTG. It is referenced as an environmentally driven coating requirement for protecting marine environments; though not specifically driven by the need to reduce VOC emissions. While the limit proposed by ACA and used by the International Maritime Organization Antifouling Systems convention (420 g/l) appears to be reasonable; there is limited information available to establish a RACT VOC limit for this coating at this time. As proposed, the 'Marine Pleasure Craft Surface Coating' section allows the use of such coating under the 'All other pleasure craft surface coatings for metal and plastics' with a VOC limit of 420 g/l.
Comment 18: The proposed definition of 'pretreatment wash primer' may restrict development of alternative products which may be less toxic to humans and the environment. (Commenter 7)
Response to Comment 18: The proposed definition is based on current, well established primers commonly used.
Comment 19: There should be an exemption for coatings from small containers to allow minor repairs and touch ups. (Commenter 7)
Response to Comment 19: Proposed subsection 228-1.1(b)(9) provides an exemption for any coatings (regardless of container size); up to a facility total of 55 gallons (or 400 pounds of actual VOC usage) on an annual rolled monthly total basis.
Comment 20: The commenter seeks clarification of the scope of emissions that must be considered in making determinations of applicability of requirements; specifically, what emissions are considered toward the three ton per year actual VOC emissions de minimums threshold for facilities located outside the New York State Metropolitan Area. The commenter suggests a definition of "process emissions" and questions the inclusion of VOC emissions from multiple "Class Coating Lines"; VOC emissions associated with non-coating operations and non-combustion sources; and exempt coating lines. (Commenter 8)
Response to Comment 20: In proposed subsection 228-1.1(a)(1), as well as in existing section 228-1.1(b), applicability is based on potential to emit (PTE) or actual emissions of volatile organic compounds (VOCs), from all sources at the facility, regardless of process type, excluding combustion installations. This includes emissions from coating lines not subject to the regulation under proposed section 228-1.1(b).
Comment 21: The commenter seeks clarification on the use of the 55 gallon exemption in proposed subsection 228-1.1(b)(9); specifically if this is in addition to other coating line exemptions enumerated in section 228-1.1(b). (Commenter 8)
Response to Comment 21: The 55 gallon exemption in proposed subsection 228-1.1(b)(9) can be used in two ways. For very small surface coating operations (less than 55 gallons or 400 lbs of actual VOC materials used on a 12 month rolling total) the facility would not be subject to Subpart 228-1, provided they maintain records of material or VOC use as proposed in section 228-1.3 'General Requirements'. Facilities that use more than this, may use proposed subsection 228-1.1(b)(9) to exclude any 55 gallons or 400 lbs of actual VOC materials, used on a 12-month rolling total, from the requirements of Subpart 228-1. This is intended for coatings that would normally be subject to Subpart 228-1 requirements; in other words, not already excluded from Subpart 228-1 requirements as in other section 228-1.1(b) exclusions.
Comment 22: The VOC limit proposed in Table B4 'Miscellaneous Metal Parts Coatings', for the 'military specification' category should be increased from 0.34 Kg/l to 0.42 Kg/l for air dried coatings. The commenter states that availability of air-dried military specification coatings is currently limited to coatings with VOC content of 0.42 Kg/l; due to lack of available federal stock numbers to order the product. (Commenter 8)
Response to Comment 22: The proposed limit of 0.34 Kg/l is taken from EPA's CTG; and is also the RACT limit specified in SCAQMD rule 1107 - Coatings of Metal Parts and Products, a RACT limit in effect since July 1, 2007. By the proposed definition, a military specification coating is 'a coating which has a formulation approved by a United States Military Agency, for use on military equipment'. The DEC does not find the lack of a federal stock number for purchase to be a compelling reason to increase the proposed RACT limit.
Comment 23: Commenter questions the lack of mention of ultra-violet and electron beam coatings (UV/EB coatings) in the proposed regulation. They request an exemption of this process in Part 201 and Subparts 228-1 and 228-2; and request numerous inclusions in the regulation as being exempt or compliant, or as compliant alternatives within the regulation. (Commenter 9)
Response to Comment 23: While Part 228 regulates VOC emissions, it is the Department's understanding that UV/EB coatings have minimal VOC emissions and that the proposed regulation would not typically apply to them. The definition of powder coatings in proposed Subpart 228-1 is broad and includes UV/EB as a coating 'applied as dry finely divided solid (without solvent or other carrier) which, when melted or fused, adheres to the substrate as a paint film'. The exclusion in Subpart 228-2 for coatings with less than 20 gm/l excludes the vast majority of UV/EB coatings.
List of Commentors
1. Steve Gaver, Technical Director, SEM Products, Inc.
2. Gregory J. Kulka, Sr. Project Environmental Engineer, GM Components Holdings, LLC
3. Darren Suarez, Director Government Affairs, The Business Council of New York State.
4. David Darling, PE, Senior Director, Environmental Affairs and Tim Serie, Esq. Counsel, Government affairs, American Coatings Association (ACA).
5. Marie Hobson, Counsel, Government Affairs and John Hopewell Assistant Director, Environmental and International Programs, American Coatings Association (ACA), ANNEX 3.
6. David Darling, PE, Senior Director, Environmental Affairs and Marie Hobson, Counsel, Government Affairs, American Coatings Association (ACA).
7. Marie Hobson, Counsel, Government Affairs and John Hopewell Assistant Director, Environmental and International Programs, American Coatings Association (ACA), ANNEX 2.
8. David A. Glass, Acting DoD Regional Environmental Coordinator, Federal Region 2, Department of The Air Force, Office of the Assistant Secretary.
9. Rita M. Loof, Director of Environmental Affairs, Radtech - The Association for UV/EB Technology.