[Federal Register: April 10, 2003 (Volume 68, Number 69)]
[Proposed Rules]
[Page 17573-17576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10ap03-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NY57-252, FRL-7480-4]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the New York State Implementation Plan (SIP) for
ozone concerning the control of volatile organic compounds. The SIP
revision consists of amendments to New York Codes, Rules and
Regulations part 226, ``Solvent Metal Cleaning,'' part 235, ``Consumer
Products'' and the adoption of new rule part 239, ``Portable Fuel
Container Spillage Control.'' This SIP revision consists of control
measures needed to meet the shortfall emissions reduction identified by
EPA in New York's 1-hour ozone attainment demonstration SIP. The
intended effect of this action is to approve control strategies
required by the Clean Air Act which will result in emission reductions
that will help achieve attainment of the national ambient air quality
standard for ozone.
DATES: Comments must be received on or before May 12, 2003.
ADDRESSES: All comments should be addressed to: Raymond Werner, Chief,
Air Programs Branch, Environmental Protection Agency, Region 2 Office,
290 Broadway, 25th Floor, New York, New York 10007-1866.
A copy of the New York submittals are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division
of Air Resources, 625 Broadway, Albany, New York 12233.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,
[[Page 17574]]
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3381.
SUPPLEMENTARY INFORMATION:
I. What Is Required by the Clean Air Act and How Does It Apply to New
York?
Section 182 of the Clean Air Act (Act) specifies the required State
Implementation Plan (SIP) submissions and requirements for areas
classified as nonattainment for ozone and when these submissions and
requirements are to be submitted to EPA by the states. The specific
requirements vary depending upon the severity of the ozone problem. The
New York-Northern New Jersey-Long Island area is classified as a severe
ozone nonattainment area. Under section 182, severe ozone nonattainment
areas were required to submit demonstrations of how they would attain
the 1-hour standard. On December 16, 1999 (64 FR 70364), EPA proposed
approval of New York's 1-hour ozone attainment demonstration SIP for
the New York-Northern New Jersey-Long Island nonattainment area. In
that rulemaking, EPA identified an emission reduction shortfall
associated with New York's 1-hour ozone attainment demonstration SIP,
and required New York to address the shortfall. In a related matter,
the Ozone Transport Commission (OTC) developed control measures into
model rules for a number of source categories and estimated emission
reduction benefits from implementing these model rules. These model
rules were designed for use by states in developing their own
regulations to achieve additional emission reductions to close emission
shortfalls.
On February 4, 2002 (67 FR 5170), EPA approved New York's 1-hour
ozone attainment demonstration SIP. This approval included an
enforceable commitment submitted by New York to adopt additional
control measures to close the shortfall identified by EPA for
attainment of the 1-hour ozone standard.
II. What Was Included in New York's Submittal?
On December 30, 2002, Carl Johnson, Deputy Commissioner, New York
State Department of Environmental Conservation (NYSDEC), submitted to
EPA a revision to the SIP which included state adopted revisions to two
regulations. The two regulations consist of New York Codes, Rules and
Regulations (NYCRR), part 235, ``Consumer Products'' and part 239,
``Portable Fuel Container Spillage Control.'' In addition, on January
17, 2003, Deputy Commissioner Johnson submitted to EPA a revision to
the SIP which included state proposed revisions to NYCRR, part 226,
``Solvent Metal Cleaning.'' All of these revisions will provide
volatile organic compound (VOC) emission reductions to address, in
part, the shortfall identified by EPA. New York used the OTC model
rules as guidelines to develop its rules.
A. What Do the Revisions to Part 226, ``Solvent Metal Cleaning''
Consist of?
Part 226 is intended to establish hardware and operating
requirements for vapor cleaning machines used to clean metal parts as
well as solvent volatility limits and operating practices for cold
cleaners. The revisions to part 226 include clarifications to the
general requirements; equipment specifications; and operating
requirements, including recordkeeping requirements for cold cleaning
degreasers; and exemptions. The revisions to part 226 also include a
solvent vapor pressure specification of 1.0 millimeters of mercury at
20 degrees Celsius which becomes mandatory January 1, 2004, unless a
process-specific Reasonably Available Control Technology (RACT)
demonstration has been approved by the NYSDEC and EPA. The alternate
RACT provision is available for situations in which it can be
demonstrated that a solvent metal cleaning process cannot be controlled
to comply with the requirements of part 226 for reasons of
technological and economic infeasibility.
B. What Do the Revisions to Part 235, ``Consumer Products'' Consist of?
The revisions to part 235 include VOC content limits for 43
separate consumer product categories. Revised part 235 establishes that
no person shall sell, supply, offer for sale, or manufacture consumer
products on or after January 1, 2005, which contain VOCs in excess of
the VOC content limits specified by New York for those products. Part
235 includes specific exemptions, as well as certification and product
labeling requirements, recordkeeping and reporting requirements, and
test methods and procedures, and provisions for acquiring variances and
approvals of innovative products exemptions (IPEs) and alternative
compliance plans (ACPs).
The part 235 IPE and ACP provisions provide alternatives to
complying with the VOC content limits specified in the Table of
Standards in part 235. The State has provided criteria for
documentation of emissions and the VOC content limit of the product as
well as procedures for submissions to apply for IPEs and ACPs. Part 235
also allows a manufacturer who was granted an IPE or ACP pursuant to
the California Air Resource Board (CARB) provisions in sections 94511,
94503.5 and 94540-94555 of title 17 of the California Code of
Regulations to apply for and obtain an IPE or ACP in New York State.
The IPE or ACP can become effective in New York State for the period of
time that the CARB IPE or ACP remains in effect, provided that all the
consumer products within the CARB IPE or ACP are regulated by part 235.
Any manufacturer seeking such an exemption on this basis must submit to
the NYSDEC, a copy of the CARB IPE or ACP decision (i.e., the Executive
Order) which includes all conditions established by CARB applicable to
the IPE or ACP. For those consumer products that have not been granted
an exemption by CARB, the manufacturer may apply to the NYSDEC for an
IPE or ACP in accordance with the criteria specified in part 235.
Part 235 also establishes procedures for obtaining a variance. Any
person who cannot comply with requirements set forth in part 235, due
to extraordinary reasons that are beyond that person's reasonable
control, may apply in writing to the NYSDEC for a variance. An
application for a variance must specify the grounds upon which the
variance is sought, the proposed date(s) by which compliance with the
part 235 VOC limits will be achieved and a compliance report reasonably
detailing the method(s) by which compliance will be achieved.
C. What Do the Requirements of Part 239, ``Portable Fuel Container
Spillage Control'' Consist of?
Part 239 is intended to reduce refueling emissions from those
equipment and engines in the off-road categories that are predominantly
refueled with portable fuel containers. Part 239 applies to any person
who sells, supplies, offers for sale, or manufactures for sale in New
York State portable fuel container(s) or spout(s) or both for use in
New York State. Part 239 includes exemptions; administrative
requirements which include date coding; compliance certification;
labeling; recordkeeping requirements; a manufacturer warranty
requirement; and test methods and procedures.
Part 239 establishes performance standards applicable on or after
January 1, 2003, which are divided into two sections. One standard
specifically addresses spill-proof systems and the other addresses
spill-proof spouts for use in portable fuel containers. Included are
performance standards for automatic shut off, automatic closure,
container openings, fuel flow rates and fill levels.
[[Page 17575]]
Part 239 also includes a permeation rate for spill-proof systems only.
Part 239 allows the manufacturers of noncompliant products a one
year sell-through period. Manufacturers may continue to sell an
existing product provided that the products were manufactured before
January 1, 2003, and the date of manufacture or a date code
representing the date of manufacture is clearly displayed on that
product.
Part 239 also establishes IPE provisions which allow for
alternatives to complying with the performance standards specified in
part 239. As in the case of part 235, if a manufacturer was granted an
IPE pursuant to the CARB provisions, the IPE can become effective in
New York State for the period of time that the CARB IPE remains in
effect. Section 2467.4 of title 13 of the California Code of
Regulations, specifies the CARB provisions applicable to portable fuel
containers. Any manufacturer seeking such an exemption on this basis
must submit to the NYSDEC, a copy of the CARB IPE decision (i.e., the
Executive Order), which includes all conditions established by CARB
applicable to the IPE. For those portable fuel containers or spouts
that have not been granted an exemption by CARB, the manufacturer may
apply to the NYSDEC for an IPE in accordance with the criteria
specified in part 239.
In addition, part 239 provides procedures for obtaining a variance.
Any person who cannot comply with the performance standards set forth
in part 239, due to extraordinary reasons that are beyond that person's
reasonable control, may apply in writing to the NYSDEC for a variance.
An application for a variance must specify the grounds upon which the
variance is sought, the proposed date(s) by which compliance with the
part 239 VOC limits will be achieved and a compliance report reasonably
detailing the method(s) by which compliance will be achieved.
III. What Is EPA's Conclusion?
EPA has evaluated New York's submittal for consistency with the
Act, EPA regulations, and EPA policy. EPA has determined that the
revisions made to part 226, part 235 and new part 239 of title 6 of the
New York Codes, Rules and Regulations, entitled, ``Solvent Metal
Cleaning'', ``Consumer Products'' and ``Portable Fuel Container
Spillage Control'', respectively, meet the SIP revision requirements of
the Act with the following exception. While the provisions related to
alternate test methods, variances, innovative products and alternate
compliance plans pursuant to part 235, ``Consumer Products'' or part
239, ``Portable Fuel Container Spillage Control'' are acceptable, the
specific application of those provisions (those that are granted or
accepted by NYSDEC) will not be recognized as meeting Federal
requirements until they are approved by EPA on a case-by-case basis as
a SIP revision. Therefore, EPA is proposing to approve the regulations
as part of the New York SIP with the exception that the specific
application of provisions associated with alternate test methods,
variances, innovative products and alternate compliance plans, must be
submitted as SIP revisions.
In addition, the revisions to part 226, ``Solvent Metal Cleaning''
are being proposed under a procedure called parallel processing,
whereby EPA proposes rulemaking action concurrent with the state's
procedures for amending its regulations. If the proposed revision is
substantially changed in areas other than those identified in this
document, EPA will evaluate those changes and may publish another
notice of proposed rulemaking. If no substantial changes are made to
part 226 as cited in this document, EPA will publish a final rulemaking
on the revisions. The final rulemaking action by EPA will occur only
after the SIP revision has been adopted by New York and submitted
formally to EPA for incorporation into the SIP. It should be noted,
that if for some reason the adoption process by New York for part 226
is delayed, it is likely that EPA will proceed with a final rulemaking
action on the revisions to parts 235 and 239 and address the final
rulemaking action for part 226 separately.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This action also does not
have federalism implications because it does not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Act. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
[[Page 17576]]
Authority: 42 U.S.C. 7401-7671q.
Dated: March 31, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 03-8826 Filed 4-9-03; 8:45 am]
BILLING CODE 6560-50-P