[Federal Register: December 13, 2004 (Volume 69, Number 238)]
[Rules and Regulations]
[Page 72118-72128]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de04-10]
[[Page 72118]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NY70-279, FRL-7845-8]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision; 1-Hour Ozone Control Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving 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 title 6 of the New York Codes, Rules and
Regulations, part 205, ``Architectural and Industrial Maintenance
Coatings.'' This SIP revision consists of a control measure 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 a control strategy required by New York's SIP
which will result in emission reductions that will help achieve
attainment of the national ambient air quality standard for ozone.
EFFECTIVE DATE: This rule will be effective January 12, 2005.
ADDRESSES: A copy of the New York's submittal is 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,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3381 or Wieber.Kirk@epa.gov.
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 (the Act) specifies the mandatory
State Implementation Plan (SIP) submittal requirements for areas
classified as nonattainment for the 1-hour ozone national ambient air
quality standards (NAAQS) and when SIP submissions must be made 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 1-hour 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 six model rules which identified control
measures 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.
EPA is aware that concerns have been raised about the achievability
of VOC content limits of some of the product categories. Although we
are approving this rule today, the Agency is concerned that if the rule
limits make it impossible for manufacturers to produce coatings that
are desirable to consumers, there is a possibility that users may
misuse the products by adding additional solvent, thereby circumventing
the rule's intended VOC emission reductions. We intend to work with the
states and manufacturers to explore ways to ensure that the rules
achieve the intended VOC emission reductions, and we intend to address
this issue in evaluating the amount of VOC emission reduction credit
attributable to the rules.
II. What Was Included in New York's Submittal?
On November 4, 2003 Carl Johnson, Deputy Commissioner, New York
State Department of Environmental Conservation (NYSDEC), submitted to
EPA a revision to the SIP which included revisions to title 6 of the
New York Codes, Rules and Regulations (NYCRR), part 205,
``Architectural and Industrial Maintenance (AIM) Coatings.'' It was
supplemented on November 21, 2003. The revisions to part 205 (also
referred to as the New York AIM coatings rule) will provide volatile
organic compound (VOC) emission reductions to address, in part, the
shortfall identified by EPA. New York used the OTC model rule as a
guideline to develop part 205.
On January 13, 2004, EPA determined that the SIP revision submitted
by New York containing revisions to part 205 was administratively
complete pursuant to the criteria found in title 40, part 51, appendix
V of the Code of Federal Regulations. On January 16, 2004 (69 FR 2557),
EPA proposed approval of part 205. For a detailed discussion on the
content and requirements of the revisions to New York's part 205, the
reader is referred to EPA's proposed rulemaking action.
III. What Comments Did EPA Receive in Response to Its Proposal?
In response to EPA's January 16, 2004 proposed rulemaking action,
EPA received comments from two interested parties; (1) Richard M.
Cogen, Nixon Peabody LLP, on behalf of the Sherwin-Williams Company,
and (2) James Sell, on behalf of the National Paint and Coating
Association. A summary of the comments received and EPA's responses are
as follows:
A. Comment: The New York AIM Coatings Rule Is Based on Flawed Data
A commenter asserts that the New York AIM coatings rule is based on
flawed data and that the use of this data violates the Data Quality
Objectives Act (``DQOA'') (section 515(a) of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554;
H.R. 5658)). The data at issue is contained in what the commenter has
characterized as ``a study prepared by E.H. Pechan and Associates''
(``Pechan Study'') in 2001. The alleged flaws relate to emissions
reductions calculated in the Pechan Study; certain of the underlying
data and data analyses are allegedly ``unreproduceable.'' Further, the
commenter asserts that if better data were used, the OTC model AIM
coatings rule would achieve greater VOC emissions reductions, relative
to the Federal AIM coatings rule, than was calculated in the Pechan
Study (51 percent reduction versus 31 percent reduction), even if
certain source categories were omitted from regulation under the OTC
rule. For these reasons, the commenter states that EPA must not
[[Page 72119]]
approve the New York AIM coatings rule as a revision to the SIP.\1\
---------------------------------------------------------------------------
\1\ This commenter has submitted a ``Request for Correction of
Information'' (RFC), dated June 2, 2004, to EPA's Information
Quality Guidelines Office in Washington, DC. EPA is evaluating and
will respond separately to the RFC, which raises substantively
similar issues to those raised by this comment.
---------------------------------------------------------------------------
Response: EPA disagrees with this comment. The Pechan Study is not
at issue in this rulemaking. The Pechan Study was not submitted to EPA
by the State in support of its AIM coatings rule. Further, even if the
Pechan Study had been submitted by the State, the validity of that data
would not be at issue because, at this time, New York is not asking for
approval of any quantified amount of VOC emission reduction from the
enactment of its regulation. Rather, this regulation has been submitted
by the State, and is being considered by EPA, on the basis that it
strengthens the existing New York SIP. The commenter does not dispute
that the New York AIM coatings rule will, in fact, reduce VOC
emissions.
Section 110 of the Act provides the statutory framework for
approval/disapproval of SIP revisions. Under the Act, EPA establishes
NAAQS for certain pollutants. The Act establishes a joint Federal and
state program to control air pollution and to protect public health.
States are required to prepare SIPs, for each designated ``air quality
control region'' within their borders. The SIP must specify emission
limitations and other measures necessary for that area to meet and
maintain the required NAAQS. Each SIP must be submitted to EPA for its
review and approval. EPA will review and must approve the SIP revision
if it is found to meet the minimum requirements of section 110 of the
Act. See also Union Electric Co. v. EPA, 427 U.S. 246, 265, 96 S.Ct.
2518, 49 L.Ed.2d 474 (1976). The Act expressly provides that the states
may adopt more stringent air pollution control measures than the Act
requires with or without EPA approval. See section 116 of the Act. EPA
only has the authority to disapprove specific SIP revisions that are
less stringent than a standard or limitation provided by Federal law
(Section 110(k) of the Act). See also Duquesne Light v. EPA, 166 F.3d
609 (3d Cir. 1999).
The Pechan Study is not part of New York's submission in support of
its AIM coatings rule. Because New York at this time is not claiming a
specific amount of emissions reductions, the level of emissions
reductions rightly or wrongly calculated by the Pechan Study, is
irrelevant to whether EPA can approve this SIP revision.\2\ The only
relevant inquiry at this time is whether this SIP revision meets the
minimum criteria for approval under the Act, including the requirement
that the State AIM coatings rule be at least as stringent as the
Federal AIM coatings rule set forth at 40 CFR 59.400.
---------------------------------------------------------------------------
\2\ After submission of a request for approval of a quantified
amount of emissions reductions credit due to the AIM coatings rule,
EPA will evaluate the credit attributable to the rule. Whatever
methodology and data the State uses in such a request, the issue of
proper credit will become ripe for public comment and any comments
received will be responded to at that time.
---------------------------------------------------------------------------
As set forth above, EPA has concluded that the New York AIM
coatings rule meets the criteria for approvability. It is worth noting
that EPA agrees with the commenter's conclusion that the New York AIM
coatings rule is more stringent than the Federal AIM coatings rule,
though not for the reasons given by the commenter (i.e., that its
``better'' data demonstrates that OTC model AIM coatings rule achieves
a 51 percent, as opposed to the Pechan Study's 31 percent reduction in
VOC emissions beyond that required by the Federal AIM coatings rule).
Rather, the New York AIM coatings rule is, on its face, more stringent.
The preamble of the New York AIM coatings rule states: ``The revisions
set specific VOC limits (in grams per liter) for 52 coating categories
and require compliance with those limits by January 1, 2005. These new
limits are more stringent than the Federal AIM coatings rule for 40
categories and more stringent than the current State rule for 31
categories (page 4, New York State Register, Rule Making Activities,
November 12, 2003).'' Examples of where New York's AIM coatings rule is
facially more stringent than the Federal AIM coatings rule include, but
are not limited to, the VOC content limit for non-flat high gloss
coatings and antifouling coatings. The Federal AIM coatings rule VOC
content limit for non-flat high gloss coatings is 380 grams/liter while
the New York AIM coatings rule's limit is 250 grams/liter, and the
Federal AIM coatings rule's VOC content limit for anti-fouling coatings
is 450 grams/liter while the New York AIM coatings rule is 400 grams/
liter. An example of where the New York AIM coatings rule is as
stringent, but not more stringent, than the Federal AIM coatings rule
is the VOC content limit for antenna coatings and low-solids coatings.
In both the State and Federal rules, the VOC content limits for these
categories is 530 grams/liter and 120 grams/liter, respectively. Thus,
on a category by category basis, the New York AIM coatings rule is as
stringent or more stringent than the Federal AIM coatings rule.
Further, EPA has received no comments that the New York AIM coatings
rule is less stringent than the Federal rule.
B. Comment: Approval of the New York AIM Coatings Rule as a SIP
Revision Violates Sections 110(a)(2)(A) and 110(a)(2)(E) of the Clean
Air Act
With respect to sections 110(a)(2)(A) and 110(a)(2)(E) of the Act,
the commenter asserts that New York cannot give the assurances required
by these provisions of the Act since each provision requires that a
state be able to assure that a SIP revision meets applicable
requirements of the Act, and that no ``Federal or State law'' prohibits
the state from ``carrying out such implementation plan or portion
thereof.'' Such assurance cannot be given, the commenter alleges, the
New York AIM coatings rule violates the DQOA, sections 183(e)(9), and
184(c) of the Act, the New York State Environmental Quality Review Act,
the New York State Administrative Procedures Act and the New York
Environmental Conservation Law.
Response: For the reasons set forth in responses to comments A, C,
D, E and F, EPA disagrees that the New York AIM coatings rule violates
the DQOA, the Act, the New York State Environmental Quality Review Act,
the New York State Administrative Procedures Act, and the New York
Environmental Conservation Law. Therefore, nothing prevents New York
from giving the assurances under sections 110(a)(2)(A) and (a)(2)(E) of
the Act.
C. Comment: The New York AIM Coatings Rule Was Adopted in Violation of
Section 183(e)(9) of the Clean Air Act
A commenter states that in 1998, after a seven-year rule
development process, EPA promulgated its nationwide regulations for AIM
coatings pursuant to section 183(e) of the Act. The commenter notes
that New York's AIM coatings rule imposes numerous VOC emission limits
that will be more stringent than the corresponding limits in EPA's
regulation. The commenter asserts that section 183(e)(9) requires that
any state which proposes regulations to establish emission standards
other than the Federal standards for products regulated under Federal
rules shall first consult with the EPA Administrator. The commenter
believes that New York failed to engage in that required consultation,
and therefore, (1) New York violated section 183(e)(9) in its adoption
of the New York AIM coatings rule, and (2) EPA
[[Page 72120]]
approval of this rule would violate, and be prohibited by sections
110(a)(2)(A) and (a)(2)(E) of the Act.
Response: EPA disagrees with this comment. Contrary to the
implication of the commenter, section 183(e)(9) does not require states
to seek EPA's permission to regulate consumer products. By its explicit
terms, the statute contemplates consultation with EPA only with respect
to ``whether any other state or local subdivision has promulgated or is
promulgating regulations on any products covered under [section
183(e)].'' The commenter erroneously construes this as a requirement
for permission rather than informational consultation. Further, the
final Federal architectural coatings regulations at 40 CFR 59.410,
explicitly provides that states and their political subdivisions retain
authority to adopt and enforce their own additional regulations
affecting these products. See also 63 FR 48848, 48884. In addition, as
stated in the preamble to the final rule for architectural coatings,
Congress did not intend section 183(e) of the Act to preempt any
existing or future state rules governing VOC emissions from consumer
and commercial products. See 63 FR 48848, 48857. Accordingly, NYSDEC
retains authority to impose more stringent limits for architectural
coatings as part of its SIP, and its election to do so is not a basis
for EPA to disapprove the SIP. See, Union Electric Co. v. EPA, 427 U.S.
246, 265-66 (1976). EPA favors national uniformity in consumer and
commercial product regulation, but recognizes that some localities may
need more stringent regulations to combat more serious and more
intransigent ozone nonattainment problems.
Further, there was ample consultation with EPA prior to the State's
adoption of its AIM coatings rule. On March 28, 2001, the OTC adopted a
Memorandum of Understanding (MOU) on regional control measures, signed
by all the member states of the OTC, including New York, which
officially made available the OTC model rules, including the AIM model
rule. See the discussion of this MOU in the Report of the Executive
Director, OTC, dated July 24, 2001, a copy of which has been included
in administrative record of this final rulemaking. It should also be
noted that the March 28, 2001 MOU, was transmitted to Robert Brenner,
Assistant Administrator for the Office of Air and Radiation of EPA, and
to various EPA Regional offices, as was the July 24, 2001 Report of the
Executive Director. That MOU includes the following text: ``WHEREAS
after reviewing regulations already in place in OTC and other States,
reviewing technical information, consulting with other states and
Federal agencies, consulting with stakeholders, and presenting draft
model rules in a special OTC meeting, OTC developed model rules for the
following source categories * * * architectural and industrial
maintenance coatings * * *'' (a copy of the signed March 28, 2001 MOU
has been placed in the administrative record of this final rulemaking).
Moreover, NYSDEC provided EPA Region 2 the opportunity to review
and comment on the New York AIM coatings rule in its draft and proposed
versions. Given all of the above, there is no validity to the
commenter's assertion that New York failed to consult with EPA in the
adoption of its AIM coatings rule. EPA was fully cognizant of the
requirements of the New York AIM coatings rule before its formal
adoption by the State.\3\ For all of the above mentioned reasons, EPA
disagrees that New York violated section 183(e)(9) in its adoption of
its AIM coatings rule, and disagrees that approval of the New York AIM
coatings rule by EPA is in violation of or prohibited by sections
110(a)(2)(A) and (a)(2)(E) of the Act.
---------------------------------------------------------------------------
\3\ While EPA reviewed the AIM model rule and the draft New York
version of that rule, EPA had no authority conferred under the Clean
Air Act to dictate the exact language or requirements of the rule
beyond the general requirement that the New York rule, in order to
be approvable as a SIP revision, must be at least as stringent as
its Federal counterpart.
---------------------------------------------------------------------------
D. Comment: The New York AIM Coatings Rule Was Adopted in Violation of
Section 184(c) of the Clean Air Act, and Approval of the SIP Revision
Would, Itself, Violate That Section
The commenter believes the OTC violated section 184(c)(l) of the
Act by failing to ``transmit'' its recommendations to the
Administrator, and that the OTC's violation was compounded by the
Administrator's failure to review the model rule through the notice,
comment and approval process required by section 184(c)(2)-(4) of the
Act. These alleged violations of the Act should have prevented New York
from adopting its AIM coatings rule, and now prevent EPA from validly
approving them as a revision to the New York SIP.
Response: EPA disagrees with this comment. Section 184(c)(1) of the
Act states that ``the Commission (OTC) may, after notice and
opportunity for public comment, develop recommendations for additional
control measures to be applied within all or a part of such transport
region if the commission determines such measures are necessary to
bring any area in such region into attainment by the dates provided by
this subpart.'' It is important to note that the OTC model AIM coatings
rule was not developed pursuant to section 184(c)(1), which provision
is only triggered ``Upon petition of any State within a transport
region established for ozone * * *'' No such petition preceded the
development of the model AIM coatings rule. Nor, for that matter, was
development of a rule upon State petition under section 184(c)(1) meant
to be the exclusive mechanism for development of model rules within the
OTC. Nothing in section 184 prevents the voluntary development of model
rules without the prerequisite of a state petition. This provision of
the Act was not intended to prevent OTC's development of model rules
which states may individually choose to adapt and adopt on their own,
as New York did, basing its AIM coatings rule on the model developed
within the context of the OTC. In developing its State rule from the
OTC model, New York was free to adapt that rule as it saw fit (or to
leave the OTC model rule essentially unchanged), so long as its rule
remained at least as stringent as the Federal AIM coatings rule.
As stated above, on March 28, 2001, the OTC and member states,
signed a MOU on regional control measures which officially made
available to the public the model rules, including the AIM model rule.
The OTC did not develop recommendations to the Administrator for
additional control measures. The MOU stated that implementing these
rules will help attain and maintain the 1-hour standard for ozone and
were therefore made available to the states for use in developing its
own regulations.
Even though the OTC did not develop the model AIM coatings rule
pursuant to section 184(c)(1) of the Act, nevertheless it provided
ample opportunity for OTC member and stakeholder comment by holding
several public meetings concerning the model rules including the AIM
coatings model rule. The sign-in sheets or agenda for four meetings
held in 2000 and 2001 at which the OTC AIM coatings model was discussed
(some of which reflect the attendance of a representative of the EPA
and/or the commenter), have been placed in the administrative record
for this final rulemaking.
E. Comment: The New York AIM Coatings Rule Was Adopted in Violation of
Section 19-0303 of the New York Environmental Conservation Law (ECL)
The Commenter asserts that NYSDEC violated section 19-0303(3) of
the ECL
[[Page 72121]]
because the New York AIM coatings rule applies statewide even though
additional control measures are needed only for the New York City
metropolitan area. The commenter contends that by failing to adequately
consider comments which suggested that the rules could be tailored more
closely to that metropolitan area, the State failed to observe the
law's requirement to ``give due recognition to the fact that'' relevant
differences in air quality or emission characteristics among
geographical areas in the State may call for differential applicability
of emission reduction requirements among differing geographical areas.
The commenter also asserts that NYSDEC violated section 19-0303(4)
of the ECL because it failed to prepare a sufficient regulatory impact
assessment. Specifically, the commenter contends that among other
failings, New York relied upon grossly inadequate data as discussed
above, failed to perform any State-specific cost or impact studies, and
failed to analyze the cost-effectiveness of any reasonably available
alternatives to the New York AIM coatings rule.
In addition, the commenter asserts that NYSDEC violated section 19-
0303(5) of the ECL because it failed to provide notice in the State
Environmental Notice Bulletin of the OTC's March 2001 recommendation
with respect to the OTC model rule on which the New York AIM coatings
rule is closely based, or to solicit public review of the model rule.
Response: EPA disagrees with this comment. The New York final AIM
coatings rule was adopted by the State pursuant to the provisions of
sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, and 19-0305 of the
ECL, which grants the NYSDEC the authority to adopt regulations for the
prevention, control, reduction and abatement of air pollution. NYSDEC
has found that this regulation is necessary for the State to attain
ambient air quality standards (New York State Register, Rule Making
Activities, March 19, 2003, page 8 and New York State Register, Rule
Making Activities, November 12, 2003, page 7, both of which are part of
NYSDEC's AIM coatings rule SIP revision submittal). With respect to the
commenter's assertion that the AIM coatings rule was only needed for
the New York City metropolitan area, it is the State's prerogative as
to whether it adopts a rule applicable statewide or nonattainment area
specific. New York adopted its AIM coatings rule to achieve VOC
emission reductions necessary to attain the 1-hour ozone standard in
the New York--Northern New Jersey--Long Island nonattainment area, but
also, New York adopted its AIM coatings rule applicable statewide in
order to make progress towards reducing 8-hour ozone levels in recently
designated nonattainment areas located in New York State that are
outside of the New York City metropolitan area. See New York State
Register, Rule Making Activities, March 19, 2003, page 8.
In addition, though the State could have decided to limit the
application of the rule to selected areas of the State, it elected to
apply its AIM coatings rule statewide. Rather than opting for a county
by county variation in regulatory limits affecting the sales and use of
products, New York opted for a unitary system. Doing so may reduce the
burden on manufacturers to have to track the point of sale and use of
products and enhances the effectiveness and enforceability of the rule
by helping to minimize the opportunity for use of noncomplying products
within nonattainment areas. We do not consider the State's decision to
opt for statewide applicability of the limits unreasonable. In any
event, New York's decision to implement its AIM coatings rule with
wider geographic scope than that of a specific nonattainment area is
simply not a grounds for EPA to disapprove the regulation under section
110 of the Act. As explained elsewhere, states retain the ability under
the Act to regulate such products so long as they at least meet the
requirements of the Federal AIM rule.
With respect to the commenter's assertion concerning the need for a
regulatory impact statement, EPA disagrees. NYSDEC did prepare a
regulatory impact statement which included a cost impact study. Since
in most respects the New York AIM coatings rule is very similar to the
California Air Research Board (CARB) ``Suggested Control Measure for
Architectural Coatings,'' NYSDEC utilized the cost information that
supported the CARB action. Though NYSDEC undertook no independent cost
analysis, it reviewed and analyzed the information used by CARB and
included this information in its regulatory impact statement. The CARB
cost information reflects information supplied by manufacturers who
market AIM coatings nationally. These manufacturers are representative
of those affected by the New York AIM coatings rule. Therefore, EPA has
determined that the analysis and conclusions provided for the CARB
action are sufficient for the New York AIM coatings rule.
With respect to the comment concerning the OTC model rule, EPA does
not agree that New York should have solicited public review of the OTC
model rule. In development of the model rule, the OTC Stationary and
Area Sources Committee met with numerous stakeholders on several
occasions (See EPA's response to Comment D) to discuss and to solicit
comments on specific aspects of the control measures being considered,
including the AIM model rule. It is also important to note that the
NYSDEC held public hearings on April 28, 2003, April 30, 2003, and May
2, 2003, for the proposed New York AIM coatings rule.
In addition, in its review of the SIP revision submission of the
New York AIM coatings rule, EPA has found no reason to indicate that
the review performed by NYSDEC's Counsel's Office, as to the legality
of its AIM coatings rule under State law, is insufficient. Therefore,
EPA has determined, pursuant to section 110(a)(2)(E) of the Act and 40
CFR part 51, appendix V, that New York has provided the necessary
assurances that it has adequate authority to implement the SIP revision
and that it has followed all the procedural requirements of the New
York constitution and laws in adopting the SIP revision submitted to
EPA.
F. Comment: The State Violated the State Administrative Procedure Act
(SAPA) and State Environmental Quality Review Act (SEQRA) in Its
Adoption of the New York AIM Coatings Rule
The commenter states that NYSDEC's adoption of the New York AIM
coatings rule was subject to SAPA. Section 202(5)(b) of the SAPA
requires that NYSDEC publish and make available to the public an
assessment of public comment on the proposed rule, including a summary
and analysis of the issues raised by the comments and significant
alternatives suggested in the comments. Section 202(5)(b) of the SAPA
also required that the assessment include a statement of the reasons
why any significant alternatives were not incorporated into the rule.
The commenter stated that NYSDEC violated section 202(5)(b) of the SAPA
because its assessment of public comments (the ``Response to Comments''
document) failed completely to identify or respond to a number of
comments and failed to provide a statement as to why several
alternatives suggested by the commenter and others were not
incorporated into the rule.
Section 202-a(1) of the SAPA requires that, in promulgating the New
York AIM coatings rule, NYSDEC consider utilizing approaches designed
to avoid
[[Page 72122]]
undue deleterious economic effects or overly burdensome impacts on
affected persons. The commenter stated that NYSDEC violated section
202-a(1) of the SAPA by failing to give adequate consideration to
approaches suggested by the commenters that would have avoided undue
deleterious economic effect and other undue impacts on the regulated
community.
SEQRA requires that agencies in New York review the environmental
impact of actions that they propose to take ``as early as possible in
the formulation of a proposal for actions.'' Section 8-0109(4) of the
ECL. Such review must evaluate whether the proposed action ``may have a
significant effect'' on the environment. To fulfill its obligations
under SEQRA, State agencies in New York must take a ``hard look'' at
the potential environmental impact of their proposals and make a
reasoned elaboration of the basis for their impact determination.
The commenter stated that in promulgating the New York AIM coatings
rule, NYSDEC violated these basic requirements of SEQRA. The commenter
contends that NYSDEC failed to review the impact of the rule early
enough in its rulemaking process. The commenter further asserted that
NYSDEC should have performed, but failed to perform, an environmental
impact analysis, and should have rendered a determination of
significance at the point at which it endorsed a proposal for action in
March 2001 (when it approved the OTC's MOU, committing to pursue
adoption of the OTC model rule). The commenter went on to state that
NYSDEC compounded this ``violation'' by failing to perform an adequate
evaluation of the environmental impacts of the New York AIM coatings
rule either at the time that it formally proposed them or at the time
of adoption. It contends that NYSDEC's failings in that regard
included, but were not limited to, its failure to obtain or consider
any State-specific information, its failure to assess the impacts of
requiring use of products that will not be suitable for their intended
purpose, the reliance on data of insufficient quality, and its failure
to reasonably consider available alternatives. It is the commenter's
position that these violations of SAPA and SEQRA are grounds to
invalidate the New York AIM coatings rule under State law and cause the
State to be without sufficient authority to implement them.
Response: EPA disagrees with the commenter's assertion concerning
SAPA. New York did in fact include an assessment of public comments in
its November 4, 2003, SIP revision submittal which was also included in
the November 12, 2003, New York State Register for the State's final
approval of the New York AIM coatings rule. This assessment included
responses to specific comments and to comments in general. Failure to
quote comments provided to NYSDEC verbatim does not constitute failure
to respond to such comments. After review of the comments and NYSDEC's
responses, EPA has determined that the NYSDEC responses are sufficient.
In addition, NYSDEC does not have to consider every conceivable
alternative to the rulemaking proposal (McKinney's section 8-0109,
subdivisions 2(d), 4 of the ECL; 6 NYCRR section 617.14(f)(5)), but can
focus on those alternatives which can be implemented and which are
consistent with the objectives of the rulemaking.
EPA also disagrees with the commenter's assertion concerning SEQRA.
SEQRA requires that ``all agencies determine whether the actions they
directly undertake, fund or approve may have a significant impact on
the environment, and, if it is determined that the action may have a
significant adverse impact, prepare or request an environmental impact
statement.'' Adoption of the New York AIM coatings rule will result in
a positive impact to the environment by achieving VOC emission
reductions necessary to attain the 1-hour standard in the New York-
Northern New Jersey-Long Island nonattainment area and will also make
progress towards reducing 8-hour ozone levels statewide. Therefore,
since the impact will not be adverse, an environmental impact statement
was not necessary.
As stated earlier, in its review of the SIP revision submission of
the New York AIM coatings rule, EPA has found no reason to indicate
that the review performed by NYSDEC's Counsel's Office, as to the
legality of its AIM coatings rule under State law, is insufficient.
Therefore, EPA has determined, pursuant to section 110(a)(2)(E) of the
Act and 40 CFR part 51, appendix V, that New York has provided the
necessary assurances that it has adequate authority to implement the
SIP revision and that it has followed all the procedural requirements
of the New York constitution and laws in adopting the SIP revision
submitted to EPA.
G. Comment: The New York AIM Coatings Rule Violates the Equal
Protection Clause of the U.S. Constitution
A commenter claimed that the New York AIM coatings rule violates
The Equal Protection Clause of the United States Constitution because
the Equal Protection Clause entitles persons, including corporate
entities, to equal protection under the law. The New York AIM coatings
rule allows only ``small manufacturers'' (defined as those who
manufacture less than 3,000,000 gallons per year) to seek a limited
short-term exemption from the rules based on an inability to meet the
VOC content limits due to economic and/or technical infeasibility. This
exemption would provide small manufacturers with additional time to
acquire the technology for producing compliant coatings. The commenter
contends that this exemption, which is not available to large
manufacturers (even if they could satisfy the economic and/or technical
infeasibility requirement) is not rationally related to any legitimate
legislative purpose. The commenter further states that it also is
unconstitutionally protectionist and discriminates against both large
manufacturers and out-of-state manufacturers. It is the commenter's
position that large manufacturers, like small manufacturers, should not
be required to comply with infeasible limits, and should be provided
with equal protection under the law. The commenter suggested that EPA
should disapprove the New York AIM coatings rule SIP revision because
of this alleged abridgment of its Constitutional rights.
Response: EPA disagrees with the commenter's allegations that the
New York AIM coatings rule violates the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution. The mere fact that the
State has elected to treat ``small'' and ``large'' manufacturers of
coatings differently does not, in and of itself, constitute a violation
of the Constitution.
The Equal Protection Clause provides, inter alia, that ``[n]o State
shall * * * deny to any person within its jurisdiction the equal
protection of the laws.'' U.S. Const. amend XIV section 1. This clause
is generally understood to mean that similar persons will be dealt with
in a similar fashion under a state law. This does not mean, however,
that a government may never classify persons and treat them
differently. The ability of a state to differentiate between persons
depends upon the nature of the classification scheme and the nature of
[[Page 72123]]
the rights at issue. The New York AIM coatings rule does not affect
fundamental rights and it does not adversely affect suspect classes. In
the case of state statute that relates solely to matters of economics
or general social welfare, the statute need only rationally relate to a
legitimate governmental purpose.
It is primarily the role of the courts to decide when a state
action is rationally related to a legitimate governmental purpose.
Nevertheless, based upon the administrative record for the New York AIM
coatings rule, EPA believes that the State would pass that test. First,
the State had a legitimate interest in drawing a distinction between
large and small manufacturers. Its stated purpose for treating small
manufacturers differently was to provide them with assistance to comply
with the rule. See, ``Assessment of Public Comments on Proposed
Revisions to 6 NYCRR part 205, Architectural and Industrial Maintenance
(AIM) Coatings,'' Response 48.
The State explained that it is obligated, by State law, to:
``consider implementation approaches that will minimize adverse impacts
* * * on small businesses * * * including establishing different
compliance or reporting requirements or timetables that take into
account the resources available to small businesses * * * and exempt
such entities from compliance with the rule so long as the public
health, safety, or general welfare is not endangered.'' Id.,
(explaining requirements of section 202-b of the New York
Administrative Procedures Act). Following this statutory requirement,
the State indicated that it had identified the small manufacturers in
the State, evaluated their product lines, and targeted the regulatory
exemption in such a way that it would provide necessary relief to small
businesses, yet not undermine the overall VOC emission reduction
objectives of the New York AIM coatings rule.
The State noted that it elected to create the exemption in order:
``To ensure that those businesses which have limited product lines and
little if any research and development resources do not face crippling
financial impacts from the adoption of the rule and have an opportunity
and sufficient time to come into compliance.'' In addition, the State
also explained why it decided not to extend the exemption to all
manufacturers, regardless of size and economic resources: ``[t]he
effect of adopting such a broad based exemption would be to swallow the
whole rule. The [state] could not rely on any VOC reductions from the
adoption of the proposed rule if every manufacturer could apply for an
exemption that would never expire.'' Id. The State thus has a number of
legitimate interests in creation of the small business exemption,
including: (i) Compliance with State law; (ii) assuring that small
manufacturers are not unnecessarily put out of business with the
attendant economic and social costs; and (iii) assuring the overall
effectiveness of the rule to achieve the intended VOC emission
reduction goals for protection of public health.
To achieve these legitimate goals, EPA believes that the State has
chosen an approach that is rationally related to the intended effect.
The State targeted the exemption to what it decided were companies that
would have more limited research and development resources. It made the
exemption temporary so that these small companies would eventually
manufacture coatings that would meet the VOC limits. One might disagree
with the approach that the State has taken, but EPA concludes that the
approach is rationally related to the intended goals. Courts have
required that a such law need only have such a rational basis to pass
muster under the Equal Protection Clause, not that it be perfect. See,
NPCA v. City of Chicago, 45 F.3d 1124, 1127-28 (7th Cir. 1994), cert.
denied, 515 U.S. 1143 (1995) (local restriction on sales of paints used
by graffiti artists may not be the most effective means, but also not
irrational to meet the objective).
In addition, EPA believes the commenter has not shown that there is
no rational basis for this distinction. The commenter simply asserts
that larger manufacturers should be treated in the same way as smaller
manufacturers and that the provision is not related to any legitimate
legislative purpose. EPA notes, however, that Congress and EPA have
drawn distinctions in control requirements applicable under the Act
based on the size of the entities subject to the requirements and
either exempted smaller entities or subjected them to less stringent
requirements. See, e.g., section 182(b)(3) of the Act which provides
exempting smaller service stations from certain requirements; 40 CFR
86.708-94(a)(1)(i)(B)(1)(iv) which provides for exemptions for small
volume motor vehicle manufacturers from certain requirements. EPA also
notes that the Regulatory Flexibility Act requires Federal agencies to
examine the impacts of regulations on small entities, including small
businesses, and determine whether small businesses should be subject to
different and less burdensome regulatory requirements than larger
entities. Consequently, there is a rational basis for a distinction
between larger and smaller entities.
Finally, EPA notes that the commenter asserts without any
justification that this provision of the New York AIM coatings rule
discriminates against out-of-state manufacturers. EPA does not believe
that this provision does so. The New York AIM coatings rule's limited
short-term exemption provision applies to small manufacturers, as
defined by the rule, regardless of whether they are located within or
outside of New York State.
Given the legitimate interest of the State, and the rational
relationship between the goals and the State's approach, EPA concludes
that it should not disapprove the New York AIM coatings rule based upon
the Equal Protection Clause.
H. Comment: The New York AIM Coatings Rule Violates the Commerce Clause
of the U.S. Constitution
The commenter claimed that the New York AIM coatings rule violates
the Commerce Clause of Article I, section 8, of the U.S. Constitution,
because it imposes an unreasonable burden on interstate commerce. The
commenter asserted that because the New York AIM coatings rule contains
VOC limits and other provisions that differ from the Federal AIM
coatings rule in 40 CFR 59.400, the rule causes an unreasonable
restriction on coatings in interstate commerce. The commenter further
asserted that the burdens of the New York AIM coatings rule are
excessive and outweigh the benefits of the rule. The commenter
suggested that EPA should disapprove the SIP revision on this basis.
Response: EPA agrees that AIM coatings are products in interstate
commerce and that state regulations on coatings therefore have the
potential to violate the Commerce Clause. EPA understands the
commenter's practical concerns caused by differing state regulations,
but disagrees with the commenter's view that the New York AIM coatings
rule impermissibly impinges on interstate commerce.
A state law may violate the Commerce Clause in two ways: (i) by
explicitly discriminating between interstate and intrastate commerce;
or (ii) even in the absence of overt discrimination, by imposing an
incidental burden on interstate commerce that is markedly greater than
that on intrastate commerce. The New York AIM coatings rule does not
explicitly discriminate against interstate commerce, because it
[[Page 72124]]
applies evenhandedly to all coatings manufactured or sold for use
within the state. The New York AIM coatings rule's limited short-term
exemption provision applies to small manufacturers, as defined by the
rule, regardless of whether they are located within or outside of New
York State. In the case of incidental impacts, the Supreme Court has
applied a balancing test to evaluate the relative impacts of a state
law on interstate and intrastate commerce. See, Pike v. Bruce Church,
Inc., 397 U.S. 137 (1970). Courts have struck down even
nondiscriminatory state statutes, when the burden on interstate
commerce is ``clearly excessive in relation to the putative local
benefits.'' Id. at 142.
At the outset, EPA notes that it is unquestionable that the State
has a substantial and legitimate interest in obtaining VOC emissions
reductions for the purpose of attaining the Ozone NAAQS. The adverse
health consequences of exposure to ozone are well known and well
established and need not be repeated here. See, e.g., National Ambient
Air Quality Standards for Ozone: Final Response to Remand, 68 FR
614620-61425 (January 6, 2003). Thus, the New York AIM coatings rule is
protective of the public health of the citizens of New York State. The
courts have recognized a presumption of validity where the state
statute affects matters of public health and safety. See, e.g., Kassel
v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662, 671
(1980). Moreover, even where the state statute in question is intended
to achieve more general environmental goals, courts have upheld such
statutes notwithstanding incidental impacts on out of state
manufacturers of a product. See, e.g, Minnesota v. Clover Leaf
Creamery, et al., 449 U.S. 456 (1981) (upholding state law that banned
sales of milk in plastic containers to conserve energy and ease solid
waste problems).
The commenter asserts, without reference to any facts, that the New
York AIM coatings rule imposes burdens and has impacts on consumers
that are ``clearly excessive in relation to the purported benefits * *
*'' By contrast, EPA believes that the burdens of the New York AIM
coatings rule are not so overwhelming as to trump the State's interest
in the protection of public health. First, the New York AIM coatings
rule does not restrict the transportation of coatings in commerce
itself, only the sale of nonconforming coatings within the State's own
boundaries. The State's rule excludes coatings sold or manufactured for
use outside the State or for shipment to others. New York AIM Coatings,
subpart 205.1(b). The New York AIM coatings rule cannot be construed to
interfere with the transportation of coatings through the State en
route to other states. As such, EPA believes that the cases concerning
impacts on the interstate modes of transportation themselves are
inapposite. See, e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520
(1938).
Second, the New York AIM coatings rule is not constructed in such a
way that it has the practical effect of requiring extraterritorial
compliance with the state's VOC limits. The New York AIM coatings rule
only governs coatings manufactured or sold for use within the State's
boundaries. The manufacturers of coatings in interstate commerce are
not compelled to take any particular action, and they retain a wide
range of options to comply with the rule, including but not limited to:
(i) Ceasing sales of nonconforming products in New York; (ii)
reformulating nonconforming products for sale in New York and passing
the extra costs on to consumers in that state; (iii) reformulating
nonconforming products for sale more broadly; (iv) developing new lines
of conforming products; or (v) entering into production, sales or
marketing agreements with companies that do manufacture conforming
products. Because manufacturers or retailers of coatings in other
states are not forced to meet New York's regulatory requirements
elsewhere, the rule does not impose the type of obligatory
extraterritorial compliance that the courts have considered
unreasonable. See, e.g., NEMA v. Sorrell, 272 F.3d 104 (2nd Cir. 2000)
(state label requirement for light bulbs containing mercury sold in
that state is not an impermissible restriction). The New York AIM
coatings rule may have the effect of reducing the availability of
coatings or increasing the cost of coatings within the State, but
courts typically view it as the prerogative of the state to make
regulatory decisions with regard to such impacts upon its own citizens.
See NPCA v. City of Chicago, 45 F.3d 1124 (7th Cir. 1994), cert.
denied, 515 U.S. 1143 (1995) (while local restriction on sales of
paints used by graffiti artists may not be the most effective means to
meet objective, it is up to the local government to decide).
Third, the burdens of the New York AIM coatings rule do not appear
to fall more heavily on interstate commerce than upon intrastate
commerce. The effect on manufacturers and retailers will fall on
manufacturers and retailers, regardless of location, if they intend
their products for sale within New York, and does not appear to have
the effect of unfairly benefitting instate manufacturers or retailers.
The mere fact that there is a burden on some companies in other states
does not alone establish impermissible interference with interstate
commerce. See Exxon Corp. v. Maryland, 437 U.S. 117, 126 (1978).
In addition, EPA notes that courts have not found violations of the
Commerce Clause in situations where states have enacted state laws with
the authorization of Congress. See, e.g., Oxygenated Fuels Assoc., Inc.
v. Davis, 63 F. Supp. 1182 (E.D. Cal. 2001) (state ban on MTBE
authorized by Congress); NEMA v. Sorell, 272 F.3d 104 (2nd Cir. 2000)
(RCRA's authorization of more stringent state regulations confers a
``sturdy buffer'' against Commerce Clause challenges). Section 183(e)
of the Act governs the Federal regulation of VOCs from consumer and
commercial products, such as coatings covered by the New York AIM
coatings rule. EPA has issued a Federal regulation that provides
national standards, including VOC content limits, for such coatings.
See 40 CFR 59.400 et seq. Congress did not, however, intend section
183(e) to pre-empt additional state regulation of coatings, as is
evident in section 183(e)(9) which indicates explicitly that states may
regulate such products. EPA's regulations promulgated pursuant to the
Act recognized that states might issue their own regulations, so long
as they meet or exceed the requirements of the Federal regulations.
See, e.g., the National Volatile Organic Compound Emission Standards
for Architectural Coatings, 40 CFR 59.410, and Federal Register which
published the standards, 63 FR 48848, 48857 (September 11, 1998). Thus,
EPA believes that Congress has clearly provided that a state may
regulate coatings more stringently than other states.
In section 116 of the Act, Congress has also explicitly reserved to
states and their political subdivisions the right to adopt local rules
and regulations to impose emissions limits or otherwise abate air
pollution, unless there is a specific Federal preemption of that
authority. When Congress intends to create such Federal preemption, it
does so through explicit provisions. See, e.g., section 209(a) of the
Act which pertains to state or local emissions standards for motor
vehicles; section 211 of the Act which pertains to fuel standards.
Moreover, the very structure of the Act is based upon ``cooperative
federalism,'' which contemplates that each state will develop its own
state implementation plan, and that states retain a large degree of
flexibility in choosing which
[[Page 72125]]
sources to control and to what degree in order to attain the NAAQS by
the applicable attainment date. See Union Electric Co. v. EPA, 427 U.S.
246 (1976). Given the structure of the Act, the mere fact that one
state might choose to regulate sources differently than another state
is not, in and of itself, contrary to the Commerce Clause.
Finally, EPA understands that there may be a practical concern that
a plethora of state regulations could create a checkerboard of
differing requirements that might not be the simplest approach to
regulating VOCs from AIM coatings or other consumer products. Greater
uniformity of standards does have beneficial effects in terms of more
cost effective and efficient regulations. As EPA noted in its own AIM
coatings rule, national uniformity in regulations is also an important
goal because it will facilitate more effective regulation and
enforcement, and minimize the opportunities for undermining the
intended VOC emission reductions. 63 FR 48856-48857. However, EPA also
recognizes that New York and other states with longstanding ozone
nonattainment problems have local needs for VOC reductions that may
necessitate more stringent coatings regulations. Under section 116 of
the Act, states clearly have the authority to do so. New York may have
additional burdens to insure compliance with its rule, but for purposes
of this action EPA presumes that the State will take appropriate
actions to enforce it as necessary. Because the New York AIM coatings
rule meets the requirements of section 110(a)(2) of the Act, EPA has an
obligation to approve the rule. EPA has no grounds for disapproval of
the New York AIM coatings rule based upon the commenters commerce
clause comment.
I. Comment: The Emission Limits and Compliance Schedule in the New York
AIM Coatings Rule Are Neither Necessary Nor Appropriate to Meet
Applicable Requirements of the Clean Air Act
The commenter claims that the New York AIM coatings rule is not
``necessary or appropriate'' for inclusion in the New York SIP, because
EPA did not direct New York to achieve VOC reductions through the AIM
coatings rule, but left it to the State to decide how such reduction
can be achieved. The commenter further asserts that the New York AIM
coatings rule is also not necessary or appropriate for inclusion in the
New York SIP because of the numerous procedural and substantive
failings on the part of NYSDEC in promulgating the rule.
Response: EPA disagrees with this comment. If fulfillment of the
``necessary or appropriate'' condition of section 110(a)(2)(A) required
EPA to determine that a measure was necessary or appropriate and
require a state to adopt that measure, this condition would present a
``catch 22'' situation. EPA does not generally have the authority to
require the state to enact and include in its SIP any particular
control measure, even a ``necessary'' one.\4\ However, under section
110(a)(2)(A) a control measure must be either ``necessary or
appropriate,'' (emphasis added); the use of the disjunctive ``or'' does
not provide that a state must find that only a certain control measure
and no other measure will achieve the required reduction. Rather, a
state may adopt and propose for inclusion in its SIP any measure that
meets the other requirements for approvability so long as that measure
is at least an appropriate (and not necessarily exclusive), means of
achieving emissions reduction. See also, Union Electric Co. v. EPA, 427
U.S. 246, 264-266 (1976) in which the Court held that ``necessary''
measures are those that meet the ``minimum conditions'' of the Act, and
that a state ``may select whatever mix of control devices it desires,''
even ones more stringent than Federal standard, to achieve compliance
with a NAAQS, and that ``the Administrator must approve such plans if
they meet the minimum requirements of section 110(a)(2).'' Clearly, in
light of the Act and the caselaw, EPA's failure to specify state
adoption of a specific control measure cannot dictate whether a control
measure is necessary or appropriate.
---------------------------------------------------------------------------
\4\ As noted in Virginia v. EPA, EPA does have the authority
within the mechanism created by section 184 of the Act to order
states to adopt control measures recommended by the OTC, if EPA
agrees with and approves that recommendation. 108 F.3d, n.3 at 1402.
As previously stated, the OTC AIM model rule was not developed
pursuant to the section 184 mechanism; EPA therefore has no
authority to order that New York or any other state adopt this
measure in order to reduce VOC emissions.
---------------------------------------------------------------------------
In this particular instance, 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. See,
64 FR 70364 and 67 FR 5170. It is the State's prerogative to develop
whatever rule or set of rules it deems necessary or appropriate such
that the rule or rules will collectively achieve the additional
emission reductions for attainment of the 1-hour ozone standard as
identified by EPA.
As stated previously, the State's November 4, 2003, SIP revision
submittal provides evidence that it has the legal authority to adopt
the New York AIM coatings rule and that it has followed all of the
requirements in the State's law and constitution that are related to
adoption of the New York AIM coatings rule.
J. Comment: Comments Submitted to the NYSDEC on New York's Proposal of
Its AIM Coatings Rule Are Incorporated by Reference in Sherwin-
Williams' Letter to EPA Submitted as Comment to EPA's January 16, 2004
Proposed Approval of the New York AIM Coatings Rule
In its February 17, 2004, letter submitted to EPA as comment to
EPA's proposed approval of the New York AIM Coatings Rule, the
commenter incorporated by reference a ``Statement on behalf of the
Sherwin-Williams Company on proposed 6 NYCRR Part 205'' presented to
the NYSDEC at the Legislative Public Hearing, dated May 2, 2003 and
``Comments of the Sherwin-Williams Company'' to the NYSDEC, dated May
12, 2003. The following summarizes the comments that were presented to
the NYSDEC and thereby incorporated by reference by the commenter:
(1) The commenter has significant concerns with the proposed
standards for interior wood clear and semi-transparent stains, interior
wood varnishes, interior wood sanding sealers, exterior wood primers,
and floor coatings. The commenter asserts that New York's proposed AIM
coatings rule is based upon the inaccurate assumption that compliant
coatings are available or can be developed which will satisfy customer
requirements and meet all of the performance requirements of these
categories. The commenter contends that such coatings are not
effectively within the limits of current technology and that this
``inaccurate assumption'' will result in increased and earlier
repainting which can damage floors in New York due to seasonal
variations in temperature and humidity.
(2) The commenter contends that NYSDEC has not considered the
increase in emissions resulting from the performance issues and
repainting.
(3) The commenter has suggested changes to the VOC standards for
only a few of the 52 product categories proposed by New York in its AIM
coatings rule, and claims that the version of the AIM coatings rule it
counter-proposes will achieve significant reductions beyond the
National AIM coatings rule.
(4) The commenter states that New York's proposed AIM coatings rule
will
[[Page 72126]]
have a significant adverse impact on the commenter and the NYSDEC can
issue another regulation that achieves substantial VOC reductions
beyond the Federal AIM coatings rule without causing serious adverse
impact on potential sales of certain products.
(5) The commenter contends that the reporting requirements and
related compliance provisions of New York's proposed AIM coatings rule
are unreasonable.
(6) The commenter states that New York's proposed AIM coatings rule
is arbitrary and capricious because it does not include reasonable
alternatives and because the small business limited short-term
exemption provision should be available to all manufacturers.
(7) The commenter asserts that the economic analysis of New York's
proposed AIM coatings rule is inaccurate because it uses a cost figure
of $6400 per ton of emissions reduced based upon an economic analysis
done for California. It contends that the cost figure is inappropriate
given the differences in the stringency of the current requirements for
AIM coatings in New York versus California, and therefore, New York
needs to make an independent determination of the cost of VOC
reductions from its proposed AIM coatings regulation.
(8) The commenter has indicated that both the Consumer Products
regulation and AIM coatings rule proposed by New York are based on
rulemakings in California. However, New York's proposal includes the
California averaging provision for consumer products but does not do so
for AIM. The commenter asserts that failure to include the California
averaging provisions in the New York AIM coatings rule is arbitrary and
capricious, and places an unequal burden on the architectural coating
industry.
(9) The commenter also submitted comments to NYSDEC regarding it
proposed AIM coatings rule challenging that the NYSDEC does not have
authority under the State ECL to adopt the proposed AIM coatings rule.
Response: As previously stated in this document, EPA disagrees with
the commenter's assertion that the adoption of the AIM coatings
regulation by the NYSDEC is in violation of the ECL. Please see EPA's
response to Comment E. With regard to the other comments submitted by
the commenter to the NYSDEC on its proposed AIM coatings rule that it
has incorporated by reference in its comments to EPA on EPA's February
16, 2004, proposed approval, EPA's response is that , it is important
to understand EPA's role and responsibilities with regard to the review
and approval, or disapproval, of rules submitted as SIP revisions.
Prior to approving a state submitted SIP revision, pursuant to section
110(a) of the Act, EPA reviews the submission to ensure that the state
provided the opportunity for comment and held a hearing(s) on the state
regulation that is at issue in the proposed SIP revision. In this case,
New York's November 4, 2003, SIP submittal and its November 21, 2003,
supplemental SIP submittal to EPA, of its AIM coatings rule include the
necessary documentation to demonstrate that it met these requirements.
New York's SIP revision submissions are included in the docket of this
rulemaking.
A complete SIP revision submission from a state includes copies of
timely comments properly submitted to the state on the proposed SIP
revision and the state's responses to those comments. New York's
November 4, 2003, submission of its AIM coatings rule as a SIP revision
to EPA properly includes both the comments submitted on its proposed
AIM coatings rule and the States responses to those comments. See both
the documents entitled, Assessment of Public Comments on Proposed
Revisions to 6 NYCRR part 205, Architectural and Industrial Maintenance
(AIM) Coatings and New York State Register, Rule Making Activities,
Notice of Adoption, pg. 2, November 12, 2003.
The New York SIP revision submission of its AIM coatings rule does
not request that EPA approve a specific amount of VOC emission
reduction credit. As such, the comments regarding the State's emission
reduction calculations are not germane to EPA's current rulemaking to
approve New York's November 4, 2003, and the supplemental November 21,
2003, SIP revision. The State's responses to the comments made by the
commenter in its May 12, 2003, letter submitted to the NYSDEC as part
of its timely comments on the proposed New York AIM coatings rule are
included in the States' submission to EPA for approval of the SIP
revision. (Comments were to be submitted to the NYSDEC on its proposed
SIP revision by May 12, 2003).
The cost per ton figure determined by New York in its regulatory
impact statement, its decision to rely upon information from
California, its decision on whether to include reasonable alternatives,
its choice not to include averaging provisions in its AIM coatings
rule, its choice of reporting requirements and its choice to include a
small business limited short-term exemption are all decisions which
fall within the State's purview, and issues regarding those decisions
are rightfully raised by interested parties to the State during its
regulatory adoption process. Therefore, it was appropriate that the
commenter comment to the State on these matters during the adoption of
its AIM coatings rule. EPA has reviewed the SIP revision submitted and
has determined that the commenter's comments on those issues it has
incorporated by reference in this rulemaking, along with the NYSDEC's
responses to those issues, are included therein. In the context of a
SIP approval, EPA's review of state decisions is limited to whether the
rule meets the minimum criteria of the Act. Provided that the rule
adopted by the state satisfies this criteria, EPA must approve such
plans. See, Union Electric Co. v. EPA.
With regard to the commenter's comments concerning the availability
of complying coatings and the ability to develop complying coatings
that can meet customer requirements and performance requirements, EPA
notes that NYSDEC addressed these comments in its Assessment of Public
Comments document. NYSDEC researched various AIM coatings surveys and
performance studies which ``demonstrate the technical feasibility of
the proposed limits and that coatings reformulated to meet these limits
perform as expected.'' NYSDEC determined that quality AIM coatings are
available in all categories which comply with the VOC content limits
specified in the proposed New York AIM coatings rule, and therefore,
New York adopted the proposed limits into its final AIM coatings rule.
It is the State's prerogative to impose more stringent limits for
architectural coatings as part of its SIP, and its election to do so is
not a basis for EPA to disapprove the SIP. EPA has determined that New
York's SIP revision was complete in that it included the commenter's
comments and NYSDEC sufficiently responded to them. EPA has also
determined that this SIP revision meets the minimum criteria for
approval under the Act, including the requirement that the revision be
at least as stringent as the Federal AIM coatings rule set forth at 40
CFR 59.400.
IV. What Is EPA's Conclusion?
EPA has determined that the comments, received in response to the
January 16, 2004 proposed rulemaking action, do not alter its proposed
determination that the SIP revision submitted by New York is fully
approvable. EPA has evaluated New York's submittal for consistency with
the Act, EPA regulations, and EPA
[[Page 72127]]
policy. EPA has determined that the revisions made to title 6 of the
New York Codes, Rules and Regulations, part 205, entitled,
``Architectural and Industrial Maintenance Coatings'', effective
November 22, 2003, meet the SIP revision requirements of the Act and,
therefore, EPA has made the final determination that New York's AIM
coatings rule is approvable.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this 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 approves 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 (Public Law 104-4).
This 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 approves 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 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 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.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 11, 2005. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: November 23, 2004.
Kathleen Callahan,
Acting Regional Administrator, Region 2.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. Section 52.1670 is amended by adding new paragraph (c)(105) to read
as follows:
Sec. 52.1670 Identification of plans.
* * * * *
(c) * * *
(105) Revisions to the State Implementation Plan submitted on
November 4, 2003 and supplemented on November 21, 2003, by the New York
State Department of Environmental Conservation, which consists of a
control strategy that will achieve volatile organic compound emission
reductions that will help achieve attainment of the national ambient
air quality standard for ozone.
(i) Incorporation by reference:
(A) Regulation Part 205, ``Architectural and Industrial Maintenance
Coatings.'' of title 6 of the New York Code of Rules and Regulations,
filed on October 23, 2003, and effective on November 22, 2003.
0
3. In Sec. 52.1679, the table is amended by revising the entry under
title 6 for part 205 to read as follows.
Sec. 52.1679 EPA-approved New York State regulations.
[[Page 72128]]
----------------------------------------------------------------------------------------------------------------
Latest EPA
New York State regulation State effective date approval date Comments
----------------------------------------------------------------------------------------------------------------
Title 6:
* * * * * * *
Part 205, Architectural and 11/22/2004........................... 12/13/2004 and FR
Industrial Maintenance page citation.
Coatings.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 04-27261 Filed 12-10-04; 8:45 am]
BILLING CODE 6560-50-P