The Department of Environmental Conservation (Department) proposes to create a new 6 NYCRR Part 494, Hydrofluorocarbon Standards and Reporting, adopting regulatory provisions previously promulgated by the United States Environmental Protection Agency (EPA), which were partially vacated in 2017. This proposal would prohibit certain hydrofluorocarbon substances in the specific end-uses identified by the EPA as having safe and available alternatives. The proposal would also require that certain manufacturers include a written disclosure statement and maintain specific records.

Section 494.1 Purpose

This section provides the purpose of the rulemaking, which includes mitigation of greenhouse gas pollution.

Section 494.2 Applicability

This section lists the regulated entities as persons who sell, offer for sale, enter into commerce, use, or install the substances in specific end-uses that would be prohibited pursuant to this Part.

Section 494.3 Definitions

This section lists the definitions to be used for this Part, which are primarily derived from EPA regulatory language or other related regulations.

Section 494.4 Prohibitions

This section lists the prohibitions on certain hydrofluorocarbon substances in specific end-uses.

Section 494.5 Exemptions

This section exempts certain hydrofluorocarbon substances in specific end-uses from the prohibitions listed in Section 494.4. Exemptions include medical, industrial, military, space, and aviation end-uses that may not have safe and available alternatives.

Section 494.6 Disclosure Requirements

This section mandates certain manufacturers to provide a label or written disclosure statement to buyers regarding the regulated substances and established prohibitions under this Part.

Section 494.7 Recordkeeping Requirements

This section requires certain manufacturers maintain specific records, including records pertaining to the sale and type of product or equipment containing regulated substances in the specific end-uses listed in Section 494.4.

Section 494.8 Severability

This section establishes that the sections of the rule are severable.

A key source of greenhouse gases (GHGs) are hydrofluorocarbons (HFCs). Part 494 would adopt regulatory provisions similar to those promulgated by the United States Environmental Protection Agency (EPA) pursuant to the Clean Air Act and Significant New Alternatives Program (SNAP) but have since been partially vacated by the courts. Specifically, Part 494 would prohibit specific HFCs in certain refrigerants, aerosol propellants, and foam-blowing agents uses. In the absence of national policies and federal action, New York State has the opportunity to adopt an action that will have a significant impact on GHG emissions in the State while building off of the extensive analysis and public review that formed the basis of the EPA rulemakings.

1. Statutory Authority

The statutory authority to promulgate this rulemaking is derived from the Department's obligations set out in the Environmental Conservation Law (ECL) at Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 71-2103, 71-2105.

ECL Section 1-0101. This section declares that it is a policy of New York State to conserve, improve and protect its natural resources and environment and control air pollution. This section further declares that the Department shall promote patterns of development and technology which minimize adverse impact on the environment. The proposed rulemaking prohibits HFCs in certain end-uses, which minimizes the adverse impact on the environment from HFC emissions, thereby protecting the State's natural resources and environment.

ECL Section 1-0303. This section defines the term "pollution" as “the presence in the environment of conditions and or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout such areas of the state as shall be affected thereby." Part 494 will remove contaminants in the form of HFC emissions and associated atmospheric concentrations of GHGs from the environment which are injurious to human, plant and animal life or to property throughout the State.

ECL Section 3-0301. This section empowers the Department to carry out the environmental policy of New York State set forth in section 1-0101. Section 3-0301 specifically empowers the Department to, among other things: provide for the prevention and abatement of air pollution; monitor the environment to afford more effective and efficient control practices; identify changes in ecological systems and to warn of emergency conditions; and adopt such regulations as may be necessary, convenient or desirable to effectuate the environmental policy of the State. The proposed rulemaking is necessary, convenient, and desirable to effectuate the State's policy of reducing GHG emissions.

ECL Section 19-0103. This section declares that it is the policy of New York State to maintain a reasonable degree of purity of air resources. In carrying out such policy, the Department is required to balance public health and welfare, the industrial development of the State, propagation and protection of flora and fauna, and the protection of personal property and other resources. To that end, the Department is required to use all available practical and reasonable methods to prevent and control air pollution in the State. The proposed rulemaking meets this requirement by preventing and controlling HFC emissions in the State, while also balancing interests through the establishment of specific exemptions.

ECL Section 19-0105. This section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of New York State under a program which is consistent with the policy expressed in section 19-0103 and in accordance with other provisions of Article 19. The proposed rulemaking serves to establish a regulatory program of limiting HFCs in certain end-uses, consistent with the policy expressed in Article 19 of preventing and controlling air pollution, including GHGs such as HFCs.

ECL Section 19-0107. "Air contaminant" is defined as "a dust, fume, gas, mist, odor, smoke, vapor, pollen, noise or any combination thereof." "Air pollution" is defined as "the presence in the outdoor atmosphere of one or more air contaminants in quantities, of characteristics and of a duration which are injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout the State or throughout such areas of the State as shall be affected thereby." HFC is an "air contaminant" that causes "air pollution" as defined in the ECL because it is a gas that is present in the atmosphere in quantities that engender climate change.

ECL Section 19-0301. This section declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution. This section provides authority for the Department to establish the proposed rulemaking because it furthers preventing and control of air pollution in the form of HFC emissions and associated atmospheric concentrations of GHGs.

ECL Section 19-0303 also establishes procedures for adopting any code, rule or regulation which contains a requirement that is more stringent than the Clean Air Act or regulations issued pursuant to the Act by the EPA. This requires the Department to include analysis in the Regulatory Impact Statement (RIS) explaining state regulatory requirements that are more stringent than those found in the Clean Air Act or its implementing regulations. The Federal Standards section, as well as elsewhere in this RIS, also explains how Part 494 would meet criteria in Section 19-0303(4), if it was applicable to this rulemaking. Further, the cost-effectiveness of the proposed revisions and whether reasonably available alternatives exist is discussed in the RIS.

ECL Section 19-0305. This section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19.

Finally, Sections 71-2103 and 71-2105 set forth the civil and criminal penalty structures for violations of Article 19, as well as regulations promulgated thereunder.

2. Legislative Objectives

There is strong scientific evidence that the earth's climate is changing and that GHGs from HFCs and other human activities are the major contributor to this change. Climate change represents an enormous environmental challenge for the State because, unabated, it will have serious adverse impacts on the State's natural resources, public health, and infrastructure. HFCs are potent GHGs with up to 14,800 times the climate forcing ability of carbon dioxide.

Articles 1 and 3 of the ECL set out the overall state policy of protection of the environment and provide general authority to adopt and enforce measures to achieve this goal, including the regulation of air pollution originating from consumer products. Article 19 of the ECL was specifically adopted for the purpose of safeguarding the air resources of New York from pollution. Further, to meet the State's commitments regarding the reduction of GHG emissions, and consistent with existing legislative enactments in the Climate Leadership and Community Protection Act, Part 494 will control emissions of fluorinated greenhouse gases that contribute to climate change.

3. Needs and Benefits

Analyses conducted by the California Air Resources Board on behalf of the United State Climate Alliance suggests that the proposed action would result in annual emissions of HFCs in New York State that are 16% lower in 2030 compared to a Business As Usual scenario. Between 2020 and 2030, 17 million metric tons of CO2-equivalent emissions would be avoided by the proposed action.

Stakeholder Outreach

The Department conducted pre-proposal, stakeholder outreach throughout 2019, beginning with two public webinars held on November 14 and 18, 2018 to discuss the likely provisions of Part 494. The stakeholder groups consisted of the regulated community to be affected by the proposed regulation, consultants, and interested environmental advocacy groups.

4. Costs

The EPA estimated that the nationwide implementation of these prohibitions would result in a cumulative cost over the lifetime of affected equipment of up to $114.6 million¹. New York State’s share of these costs could be up to $6.9 million, as New York State makes up 6% of the U.S. population. However, this likely overestimates actual costs as: a) EPA’s estimate of costs are primarily applied to manufacturers that are not located in New York State; b) the current proposal is more limited in scope than the EPA rules; and c) EPA rules began going into effect in 2016.

EPA determined that the majority of affected businesses would be retail food operations, but fewer than 0.1% of these businesses would incur any new costs, or costs greater than those already incurred as a result of other federal regulations. Instead, 79% of the total estimated cost from the EPA program would be incurred on manufacturers of stationary air-conditioning equipment ($63 million) and polystyrene foam products ($27.5 million), which represent fewer than 20 businesses nationwide.

For the largest set of businesses affected by this action, or retail food businesses, the EPA considered that there would be no new costs as these entities are also in the process of replacing the affected equipment pursuant to the phase-down of ozone-depleting substances. The affected businesses may choose to transition to other, more climate-friendly and energy-efficient alternatives that would involve new costs.

The proposed action could indirectly affect consumers and businesses as it may affect the availability of products and equipment on the market, but such costs are also limited. In the case of consumer products, the proposed action applies to the sale and use of products manufactured after an effective date, not the continued sale of previously-manufactured products already in the State. In the case of equipment, the proposed action would not affect systems already installed or their servicing.

This proposed action may also impose new administrative and recordkeeping costs for certain manufacturers, however, the costs are limited. The Department may incur costs to issue and enforce the proposed action but can properly administer the regulation with the application of existing resources and current Department staff.

5. Paperwork

The proposed rule will impose minimal additional paperwork on certain manufacturers for recordkeeping and the creation and distribution of a written disclosure statement but is not expected to be unduly burdensome.

6. Local Government Mandates

Part 494 will not create any mandates for local governments as compared to other entities.

7. Duplication

This proposal does not duplicate, overlap, or conflict with any other existing federal or State regulations or statutes. As stated earlier, while Part 494 is based on regulations previously promulgated by EPA, such applicable regulatory provisions and HFC restrictions have since been vacated by courts and/or removed by the agency.

8. Alternatives

The Department considers the no action alternative infeasible because HFC emissions would further increase 36% in New York State by 2030, based on a Business as Usual scenario, reaching 10% of total allowable GHG emissions in the State. The proposed action and compliance schedule were primarily based on EPA’s SNAP rules, which considered a rigorous evaluation of available alternatives as well as extensive public review. An alternative that relies on voluntary actions and incentives to achieve the same level of reduction would be cost-prohibitive at this scale.

9. Federal Standards

As discussed, there are no enforced federal rules or other restrictions for the provisions proposed in Part 494. Therefore, this proposal does not result in the imposition of requirements that exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule

This regulation will adopt a compliance schedule that prohibits specific substances in certain equipment and products:

January 1, 2021: Aerosol propellants; supermarket systems, remote condensing units, stand-alone units; one-component spray foam sealant and high-pressure two-component spray foams; rigid polyurethane and polyisocyanurate laminated boardstock, rigid polyurethane slabstock and other, rigid polyurethane appliance foam, rigid polyurethane commercial refrigeration and sandwich panels, rigid polyurethane marine flotation foam, flexible polyurethane, integral skin polyurethane, polystyrene extruded sheet, phenolic insulation board and bunstock, and polyolefin; low-pressure, two-component spray foam; polystyrene extruded boardstock and billet (XPS); household refrigerators and freezers (compact), vending machines, and refrigerated food processing and dispensing equipment.

January 1, 2022: Household refrigerators and freezers (other than built-in or compact).

January 1, 2023: Cold storage warehouses and household refrigerators and freezers (built-in).

January 1, 2024: Centrifugal chillers and positive displacement chillers.

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¹ Supporting documents in EPA Docket ID Nos. EPA–HQ–OAR–2014–0198 and EPA–HQ–OAR–2015–0663

1. Effect of Rule:

The New York State Department of Environmental Conservation is proposing to adopt prohibitions on the use of certain hydrofluorocarbon (HFC) substances in certain end-uses. The proposed rulemaking applies statewide. Part 494 would adopt provisions similar to those in rules promulgated by the United States Environmental Protection Agency (EPA) pursuant to the Clean Air Act and Significant New Alternatives Program (SNAP) in 2015 and 2016 but have since been partially vacated by the courts. The EPA analyzed the nationwide economic impacts of these rules in their rulemakings and found that there would be no significant costs to small businesses. Specifically, the majority of businesses, including small businesses, affected by the national rules were retail food operations that were not expected to incur a change in costs, for example because ‘drop-in’ alternatives would still be allowed. In total, 99% of the small business that EPA determined would be affected by their rule were found to have zero additional costs. Of the remaining 442 small businesses nationwide that would incur a cost, 69 were expected to have costs in excess of 3% of annual sales, i.e., fewer than 100 businesses nationwide and fewer than 20% of affected entities. Therefore, the Department believes that the effects are mitigated by the scope of the proposed rule, which only applies to newly-manufactured or installed products or equipment and to end-uses for which safe alternatives are already available on the market, as determined by the EPA. The proposed rule also provides flexibility based on safety and other considerations and includes the exemptions that accompanied these prohibitions when they were adopted in the EPA SNAP Program. Finally, in order to ensure compliance and provide for enforceability, the proposed rule requires disclosure and recordkeeping requirements on covered end-uses.

2. Compliance Requirements:

This is not a mandate on local governments. Local governments have no additional compliance obligations as compared to other subject entities. The proposed rulemaking establishes prohibitions on certain hydrofluorocarbon substances in specific end-uses, including equipment or products in air-conditioning, refrigeration, aerosol propellant, or foam-blowing. The proposed rulemaking further mandates recordkeeping and written disclosure statement requirements on certain manufacturers.

3. Professional Services:

There is no specific requirement or need for entities to contract for professional services in order to comply with the proposed rule., and the Department does not believe that regulated entities would need to acquire professional services to comply with Part 494.

4. Compliance Costs:

Based on the analysis of costs and economic impacts conducted by the EPA, compliance costs are expected to be insignificant.

5. Economic and Technological Feasibility:

Compliance with this rule is technologically feasible for all entities, including small businesses and local governments. The feasibility of this rule was determined in the EPA rulemaking processes, during which the specific end-uses included in the rules were determined to be those for which alternatives are available on the market.

6. Minimizing Adverse Impact:

The Department has considered the issues and determined that Part 494 will not have an adverse impact on small businesses or local governments. The ability to comply with Part 494 will not be influenced by whether the regulatory provisions apply to a local government or small business, as compared to some other entity. Additionally, most if not all of the small businesses directly affected by Part 494, i.e. retail food operations, are required under the federal phase-down of ozone-depleting substances to replace non-compliant equipment. These businesses will not be required under this proposal to make a full transition away from HFC-based refrigerants, but are allowed to continue to use many existing HFC refrigerants that are lower cost than the climate-friendly alternatives. Additionally, the national prohibitions on aerosol propellants went into effect in 2016. As such, this rulemaking should not have an adverse impact as the affected businesses, such as the retailers of consumer products, were already expected be in compliance.

7. Small Business and Local Government Participation:

The Department conducted pre-proposal, stakeholder outreach throughout 2019, beginning with two public webinars held on November 14 and 18, 2018 to discuss the likely provisions of Part 494. Additional meetings regarding specific sectors also occurred, such as a meeting with the equipment manufacturing sector on December 11, 2018 and the foam-blowing sector on February 26, 2019. The stakeholder groups consisted of the regulated community to be affected by the proposed regulation, consultants, and interested environmental advocacy groups. The Department will hold public hearings on Part 494 and small businesses and local governments will be able to comment on the proposed rule during the notice and comment period.

1. Types and Estimated Numbers of Rural Areas:

The proposed rulemaking will apply statewide, and there are no requirements in the proposed rule that would apply only to rural areas.

2. Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:

The proposed rulemaking establishes prohibitions on certain hydrofluorocarbon substances in specific end-uses and mandates recordkeeping and written disclosure statement requirements on certain manufacturers. There are no specific prohibitions in the proposed regulation that apply exclusively to rural areas, and the compliance requirements apply regardless of whether the regulated entity is located in a rural area.

3. Costs:

Although the largest number of affected businesses are food stores, which may also be located in rural areas, the EPA analysis did not consider the regulatory provisions of Part 494 to incur new costs on those stores. This conclusion was found the EPA’s nationwide economic impacts analysis conducted in its rulemakings promulgated pursuant to the Clean Air Act and Significant New Alternatives Program (SNAP) in 2015 and 2016 adopting similar provisions in Part 494 but have since been partially vacated by the courts.

4. Minimizing Adverse Impact:

The Department has considered the issues and determined that Part 494 will not have an adverse impact on rural areas.

5. Rural Area Participation:

The Department conducted pre-proposal, stakeholder outreach throughout 2019, beginning with two public webinars held on November 14 and 18, 2018 to discuss the likely provisions of Part 494. Additional meetings regarding specific sectors also occurred, such as a meeting with the equipment manufacturing sector on December 11, 2018 and the foam-blowing sector on February 26, 2019. The stakeholder groups consisted of the regulated community to be affected by the proposed regulation, consultants, and interested environmental advocacy groups. The Department will hold public hearings on Part 494 in upstate and other rural areas and will notify interested parties of this proposed rulemaking.

1. Nature of Impact:

The New York State Department of Environmental Conservation is proposing to adopt prohibitions on the use of certain hydrofluorocarbon (HFC) substances in certain end-uses. This rulemaking would adopt provisions similar to those promulgated by the United States Environmental Protection Agency (EPA) pursuant to the Clean Air Act and Significant New Alternatives Program (SNAP) in 2015 and 2016 but have since been partially vacated by the courts. Specifically, Part 494 would adopt prohibitions of certain products and equipment that use certain hydrofluorocarbon substances, specifically those prohibitions on air-conditioning, refrigeration, aerosol propellant, and foam-blowing applications. These prohibitions apply to new or retrofitted equipment and new products only, the State is not proposing prohibitions on the sell-through of previously-manufactured products or equipment, or on the servicing of previously installed equipment. The proposed rulemaking applies statewide.

2. Categories and Numbers Affected:

To estimate the potential impacts on jobs and local communities, the Department relied on EPA’s analysis conducted during the promulgation of the SNAP rules. Part 494 is not expected to impact jobs and employment opportunities in New York State. The Department believes that potential job impacts are mitigated by the scope of the proposed rule, which only applies to newly-manufactured or installed products and equipment and to end-uses for which safe alternatives are already available on the market, as determined by the EPA. The rule does not prohibit the sale of products or equipment manufactured prior to the effective year indicated in the proposed rule or to the continued maintenance of existing equipment.

3. Regions of Adverse Impact:

The proposed rulemaking applies statewide. There are no regions of the State where jobs or employment opportunities are expected to be adversely impacted by this rule.

4. Minimizing Adverse Impact:

As detailed above, this rule is not expected to have a significant adverse impact on jobs and employment.