Certain Substances that Contain Hydrofluorocarbons, Highly-Potent Greenhouse Gases
10/14/20 N.Y. St. Reg. ENV-53-19-00016-A
NEW YORK STATE REGISTER
VOLUME XLII, ISSUE 41
October 14, 2020
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-53-19-00016-A
Filing No. 620
Filing Date. Sept. 24, 2020
Effective Date. s , 30 d
Certain Substances that Contain Hydrofluorocarbons, Highly-Potent Greenhouse Gases
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Addition of Part 494 to Title 6 NYCRR.
Environmental Conservation Law, sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 71-2103 and 71-2105
Certain substances that contain hydrofluorocarbons, highly-potent greenhouse gases.
Remove greenhouse gas emission sources that endanger public health and the environment.
Substance of final rule:
Part 494, Hydrofluorocarbon Standards and Reporting
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 rule adopts prohibitions on certain hydrofluorocarbon substances in the specific end-uses identified by the EPA as having safe and available alternatives. The rule also requires 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. This section also provides that except in the case of retrofitted equipment, this rule does not apply to products or equipment containing a prohibited substance acquired or manufactured prior to the applicable prohibition dates.
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 Administrative 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 Record-Keeping 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.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 492.2, 492.3, 494.4, 494.6 and 494.7.
Text of rule and any required statements and analyses may be obtained from:
Suzanne Hagell, NYSDEC Office of Climate Change, 625 Broadway, Albany, NY 12233-3251, (518) 402-8448, email: email@example.com
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file.
Summary of Revised Regulatory Impact Statement
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 end 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.
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.
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 million. 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, 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 regulation 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 record-keeping 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 staff.
The proposed rule will impose minimal additional paperwork on certain manufacturers for recording-keeping 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.
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 partially vacated by courts or failed implementation by EPA.
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 regulation and compliance schedule are 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
Federal rules or restrictions for the provisions in Part 494 are not applied or enforced in all contexts. The regulation does not result in requirements that exceed any federal minimum standards because the rule is substantially based on previously promulgated federal regulations.
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), retrofitted vending machines, and refrigerated food processing and dispensing equipment.
January 1, 2022: Household refrigerators and freezers (other than built-in or compact) and new vending machines.
January 1, 2023: Cold storage warehouses and household refrigerators and freezers (built-in).
January 1, 2024: Centrifugal chillers and positive displacement chillers.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Job Impact Statement
The edits made to the Express Terms do not require any changes to the Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Job Impact Statement.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2023, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The New York State Department of Conservation (Department) proposed Part 494 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Part 494) in December 2019, held three public hearings on March 4, 6, and 9, 2020, and received comments to the proposed rule through March 16, 2020. The Department received 41 sets of comments on the proposed rule.
The Department received comments from individuals, manufacturers, trade organizations, environmental advocacy groups, community groups, and others. Almost all commenters voiced their support for the proposed rule. Other commenters expressed the opinion that the proposed rule would be more effective if implemented nationwide and by the federal government. The Department agrees and the proposed rule adopts a set of prohibitions that were in place at the federal level and have since been partially vacated by federal courts. New York State and other states have proposed adopting these prohibitions to prevent backsliding and to thereby mitigate emissions that would have otherwise been avoided if the federal government had maintained its policy. Some of the commenters who support the proposed rule indicated that the rule does not go far enough to address the emissions of hydrofluorocarbons, a potent greenhouse gas, and suggested several additional policies that should be considered by New York State. The Department agrees that additional State policies will be required, however these are beyond the scope of the proposed rule, which is focused on specific prohibitions that were in place at the federal level. Some commenters expressed concern over State policies to promote heat pumps, which are a source of hydrofluorocarbon emissions, or to argue that the proposed policy would endanger their adoption. The proposed rule does not impose any prohibition on heat pumps.
Several commenters suggested revisions to definitions to provide additional clarity as well as consistency with other Departmental regulations. The Department made these revisions to the proposed rule, where appropriate. The manufacturers and trade organizations requested that additional language should be included in the regulations to clarify the applicability in certain cases, for example, that products and equipment that are manufactured prior to the applicable prohibition dates are not affected by this rule. Although this was already implicit to the terms of this regulation as originally proposed, the Department added explicit language addressing this in order to provide additional clarity. In some cases, commenters requested that some prohibition dates be either delayed or go into effect sooner. The proposed rule adopts specific prohibitions and a timeline finalized at the federal level that reflects the availability of safe alternatives. The only revision to the original proposal is to postpone the prohibitions related to new vending machines from January 1, 2021 to January 1, 2022, given the potential for further emission reductions and lower global warming potential alternatives that may be enabled by updated building codes.
Finally, many commenters requested revisions to the administrative requirements and the record-keeping requirements. Others requested that these requirements be waived, contending that the requirements are ineffective and burdensome to manufacturers or redundant with other requirements. The Department made revisions for the purposes of clarity and to indicate that it is acceptable to label a product’s packaging, as requested. However, these requirements are necessary in order to enable the Department to enforce the proposed rule and provide notice to persons about the prohibitions. Additionally, the Department has endeavored to align these requirements with those of other states that have adopted or proposed similar rules, thereby avoiding any additional burdens on regulated entities.
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