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Regulatory Impact Statement Parts 226 and 201

Introduction

The New York State Department of Environmental Conservation (Department) proposes to revise Part 226 'Solvent Metal Cleaning Processes', and Part 201 'Permits and Registrations' of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York (6 NYCRR). The proposed changes to Part 226, and attendant revisions to Part 201, will incorporate the Control Techniques Guidelines (CTG) Industrial Cleaning Solvents issued by the Environmental Protection Agency (EPA) in September 2006 and suggested changes made by the Ozone Transport Commission's (OTC) Model Rule for Solvent Degreasing issued in 2012. Federal CTGs establish Reasonably Available Control Technology (RACT) for volatile organic compounds (VOCs) emitted by solvent cleaning processes. Pursuant to the Clean Air Act (CAA), the Department is required to incorporate the revisions to Parts 226 and 201 into its state implementation plan (SIP). These revisions to Subpart 226 conform to, and are not stricter than, federal requirements. The OTC provides guidance to member states on methods of reducing VOC emissions and, through its model rule, has suggested changes to the applicability and VOC content for solvent degreasing.

The first New York air regulation applying to solvent cleaning processes was issued in April of 1972; designated 6 NYCRR Part 226 Solvent Metal Cleaning Processes. It has undergone several revisions since then, the most recent in April 2003. The 2003 version was based on an OTC Model Rule issued in 2001. Part 226, Solvent Metal Cleaning Processes, applies to a specific group of machines that use solvents to clean grease and other materials from metal parts, as part of a larger manufacturing or servicing industry. Solvent cleaning machines such as cold cleaning, remote reservoir, open-top vapor, and conveyorized are all types of machines subject to Part 226. The revisions brought on by the most recent OTC model rule include removing the requirement that the rule only applies to the cleaning metal parts; hence, the first revision to the rule is its name, removing 'metal' as a descriptor. It is further amended by re-designating it from Part 226 to Subpart 226-1. This is to accommodate adding another Subpart 226-2, which will apply to the new regulations applicable to industrial cleaning solvents, the subject of EPA's CTG by that name.

The Industrial Cleaning Solvent CTG (the new Subpart 226-2) applies to the use of solvents for cleaning that are not covered by any other New York State air regulation. Both solvent cleaning processes and use of industrial cleaning solvents result in the release of VOCs into the atmosphere, thus contributing to the formation of ground level ozone or smog.

The proposed revisions are consistent with the federal CTG and OTC model rule, incorporating the latest RACT requirements for solvent cleaning processes and industrial cleaning solvents under Part 226. This 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 National Ambient Air Quality Standard (NAAQS) as required by the CAA.

Statutory Authority

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 "coordinate 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.

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 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 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 this case. 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 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 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 industrial cleaning solvents.

Part 226 - New York's RACT for Solvent Metal Cleaning Processes

New York State currently regulates VOCs emitted by solvent metal cleaning processes under 6 NYCRR Subpart 226; first issued in April of 1972. It has undergone several revisions since then, the most recent in April 2003. This 2003 version was based on an OTC Model Rule issued in 2001. Part 226, Solvent Metal Cleaning Processes, applies to a specific group of machines that use solvents to clean grease and other materials from metal parts, as part of a larger manufacturing or servicing industry. Solvent cleaning machines such as cold cleaning, remote reservoir, open-top vapor, conveyorized, air-tight and airless cleaning are all types of machines subject to Part 226. The revisions as suggested by the most recent OTC model rule include removing the requirement that the rule only applies to the cleaning of metal parts; hence, the first revision to the rule is the removal of 'metal' as a descriptor in the rule title. It is further amended by re-designating it from Part 226 to Subpart 226-1. This is to accommodate adding another Subpart 226-2, which will apply to the new regulations applicable to industrial cleaning solvents, the subject of EPA's CTG by that name.

The Industrial Cleaning Solvent CTG (the new Subpart 226-2) applies to the use of solvents for cleaning that are not covered by any other New York State air regulation. Both solvent cleaning processes and use of industrial cleaning solvents result in the release of VOCs into the atmosphere, contributing to the formation of ground level ozone or smog.

The proposed revisions are consistent with the federal CTG and OTC model rule. Incorporating the latest RACT requirements for solvent cleaning processes and industrial cleaning solvents under Part 226 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.

Needs and Benefits

As discussed below, adoption of the proposed revisions to Part 226 will help fulfill state and federal legislative objectives by imposing RACT controls on solvent cleaning processes and industrial cleaning solvents in the source categories identified in the latest federal CTGs and OTC model rules, thereby further reducing New York's VOCs emissions from these sources, 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 Assn.' 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 Part 226 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

The proposed revisions to Subpart 226 will allow the state to satisfy state and federal legislative objectives by imposing RACT controls on solvent cleaning processes and industrial cleaning solvents 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 226 to include the latest RACT requirements as established in the federal CTG and recommended by the OTC model rule.

All owners or operators of solvent cleaning processes subject to the current Part 226 will be subject to the proposed subpart 226-1. Currently, Part 226 only applies to the cleaning of "metal". This proposal removes this distinction, opening applicability to any material cleaned by solvent cleaning processes. If a solvent cleaning process was not subject to Part 226 because objects other than metal were being cleaned, they will now be subject to Subpart 226-1.

A new/replacement VOC requirement is being proposed for Part 226 cold cleaners, including remote reservoir cleaners. The proposed rule will change the current requirement of using a solvent with a maximum vapor pressure of 1.0 mm Hg, or less, at 20°C, to using a cleaner with no more than 25 grams of VOC per liter (25g/l) of cleaning solution. No changes are being proposed for the other Part 226 solvent cleaning processes (open top vapor or conveyorized).

The proposed Subpart 226-2 'Industrial Cleaning Solvents' will be a new regulation. Any owner or operator of a facility that emits three (3) tons or more of VOCs from cleaning solvents, on an annual basis, may be subject. Specifically, the provisions apply to cleaning, by hand or mechanical means, foreign materials from surfaces of unit operations including large and small manufactured components, parts, equipment, floors, tanks, and vessels. All methods of cleaning, including by hand, are counted toward the applicability criteria of three tons per year. The use of cleaning solvents that are already subject to other regulatory provisions are not subject to any new requirements from this proposal.

Owners or operators subject to the proposed Subpart 226-2 'Industrial Cleaning Solvents' will have work practice, recordkeeping and storage requirements for their cleaners that contain VOCs. Cleaning solutions will also have a maximum VOC content limit of fifty (50) grams of VOC per liter (0.42 pounds of VOC per gallon) of cleaning material; or, as an alternative to this maximum VOC content, an industrial cleaning solvent with a maximum composite vapor pressure of eight (8) millimeters of mercury (mmHg) at 20 degrees Celsius may also be used.

Costs

Costs to Regulated Parties

Costs associated with changes to solvent cleaning processes (proposed Subpart 226-1) are expected to be on the order of $1,400 per ton of VOC reduced. This is based on review of the cost information provided by the OTC and is well within costs considered to be RACT.

The EPA concluded in its Industrial Cleaning Solvent CTG (addressed by proposed Subpart 226-2) that facilities may incur minimal additional cost or realize a savings on a case by case basis. It estimated that replacing high VOC content cleaning materials with low VOC cleaning materials for large manufactured surfaces, tank cleaning and gun cleaning would result in a coast savings of $1,330 per ton of VOC used. For this calculation, only cleaning material and waste disposal costs were considered. These costs are also well within the framework of RACT.

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 and is applicable 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 226-1 and Subpart 226-2 in New York resides solely with the Department. Requirements for record keeping, reporting, etc. are applicable only to the person(s) who conduct solvent cleaning processes and use industrial cleaning solvents.

Costs to the Regulating Agency

Administrative costs to the regulating agency will not increase.

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.

Paperwork

No additional paperwork will be imposed on the solvent cleaning process industry. Owners or operators of industrial cleaning solvent processes will have minimal paperwork requirements consisting of mainly recordkeeping of quantities of cleaning materials used.

Duplication

No other regulations address the specific requirements to reduce VOC emissions from the affected industry.

Alternatives

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 Part 226 contain alternatives for compliance. Both solvent cleaning processes and industrial cleaning solvent regulations have compliant material requirements and a RACT variance provision; solvent cleaning processes also have the option of using add-on controls for compliance. These alternative compliance provisions are preferable because they are consistent with the federal CTGs and OTC model rule, will help New York State achieve necessary VOC emission reductions, and will satisfy the State's obligations under the CAA.

Federal Standards

The revisions are designed to conform to the requirements outlined in the federal 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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