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Regulatory Impact Statement Summary 6 NYCRR Parts 228, 200, and 201

Statutory Authority

The New York State (NYS) statutory authority for these regulations is 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. Descriptions of these referenced ECL sections are contained in the Regulatory Impact Statement.

Legislative Objectives

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.

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. 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.

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 require 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 while requiring reasonable progress towards attainment. The 1990 CAA amendments required 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. Under EPA's current RACT scheme, pollution controls are required for VOC emission sources listed in designated source categories under EPA's Control Techniques Guidelines (CTGs), including CTGs establishing RACT for surface coating processes.

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. Additionally, CAA section 184(b)(1)(B) requires implementation of RACT statewide in states that are located within an Ozone Transport Region (OTR). 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.

Needs and Benefits

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.

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.

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).

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 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, which 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). Also, 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.

As discussed above, the proposed revisions to Subpart 228-1 will also allow the state to satisfy state and federal legislative objectives by imposing RACT to control VOC emissions from surface coating processes in New York, thus furthering the goal of attaining the federally-mandated ozone NAAQS. A discussion of CAA and regulatory needs and benefits are further detailed in the "Regulatory Impact Statement" (RIS) and other rulemaking documents.


Costs to Regulated Parties and Consumers

According to EPA estimates, the cost to industry from the changes to Subpart 228-1 is estimated to be in the range of $200 and $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 entities 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.

Federal Standards

The revisions are designed to comply with the requirements outlined in the CTGs.

Compliance Schedule

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.

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