[Federal Register Volume 75, Number 140 (Thursday, July 22, 2010)]
[Proposed Rules]
[Pages 42672-42676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2010-0310, FRL-9178-6]
Approval and Promulgation of Implementation Plans; New Jersey; 8-
hour Ozone Control Measures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a request by New Jersey to revise the State Implementation Plan
(SIP) for ozone involving the control of volatile organic compounds
(VOCs). The proposed SIP revision consists of two new rules,
``Subchapter 26, Prevention of Air Pollution From Adhesives, Sealants,
Adhesive Primers and Sealant Primers,'' and ``Subchapter 34, TBAC
Emissions Reporting,'' (TBAC means tertiary butyl acetate or t-butyl
acetate) and revisions to ``Subchapter 23, Prevention of Air Pollution
From Architectural Coatings,'' ``Subchapter 24, Prevention of Air
Pollution From Consumer Products,'' and ``Subchapter 25, Control and
Prohibition of Air Pollution by Vehicular Fuels,'' of the New Jersey
Administrative Codes. The intended effect of this action is to approve
control strategies that will result in VOC emission reductions that
will help achieve attainment of the national ambient air quality
standard for ozone.
DATES: Comments must be received on or before August 23, 2010.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2010-0310, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected]
Fax: 212-637-3901.
Mail: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866.
Hand Delivery: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866. Such deliveries are only accepted
during the Regional Office's normal hours of operation. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30 excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2010-0310. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Region II Office, Air Programs Branch, 290 Broadway,
25th Floor, New York,
[[Page 42673]]
New York 10007-1866. EPA requests, if at all possible, that you contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Paul Truchan, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
The following table of contents describes the format of this
rulemaking:
I. What was included in New Jersey's submittal?
II. What is EPA's evaluation of ``Subchapter 24, Prevention of Air
Pollution From Consumer Products?''
III. What is EPA's evaluation of ``Subchapter 26, Prevention of Air
Pollution From Adhesives, Sealants, Adhesive Primers and Sealant
Primers?''
IV. What is EPA's evaluation of ``Subchapter 34, TBAC Emissions
Reporting?''
V. What other rules are affected by the VOC definition change and
EPA's evaluation?
VI. What action is EPA proposing?
VII. Statutory and Executive Order Reviews
For detailed information on New Jersey's proposed SIP revision and
EPA's evaluation see the Technical Support Document (TSD), prepared in
support of today's action. The TSD can be viewed at http://www.regulations.gov.
I. What was included in New Jersey's submittal?
On April 9, 2009, Mark N. Mauriello, Commissioner, New Jersey
Department of Environmental Protection (NJDEP), submitted to EPA a
revision to the New Jersey State Implementation Plan (SIP) that
included:
--``Subchapter 24, Prevention of Air Pollution From Consumer
Products,''
--``Subchapter 26, Prevention of Air Pollution From Adhesives,
Sealants, Adhesive Primers and Sealant Primers,''
--``Subchapter 34, TBAC Emissions Reporting,'' and
--Amending the definition of VOC throughout Title 7, Chapter 27 of the
New Jersey Administrative Codes (N.J.A.C.) and Chapter 27A, and Chapter
27B.
The State adopted these rules on October 30, 2008 and published the
adoption in the New Jersey Register on December 1, 2008 (40 New Jersey
Register 6769). These rules became operative on December 29, 2008. Also
published in the New Jersey Register was a summary of the comments
received, the State response to the comments and any changes to the
proposed rule resulting from the comments. This SIP revision will
provide statewide volatile organic compound (VOC) emission reductions
that New Jersey used in the SIP to address reasonable further progress
goals and for attaining the 1997 8-hour ozone national ambient air
quality standard.
This proposed SIP revision completes the commitment New Jersey made
as part of its RACT analysis and 8-hour Ozone Attainment Demonstration
that EPA conditionally approved. See 74 FR 22837 (May 15, 2009). If EPA
approves this proposed SIP revision, the RACT analysis will be fully
approved in its entirety and EPA will replace the conditionally
approved RACT in the SIP with a full approval.
II. What is EPA's evaluation of ``Subchapter 24, Prevention of Air
Pollution From Consumer Products?''
A. Was Subchapter 24 previously approved by EPA?
The most recent approval of Subchapter 24 occurred on January 25,
2006 (71 FR 4045). EPA had previously approved Subchapter 24 provisions
for accepting innovative products exemptions (IPEs), alternative
compliance plans (ACPs), and variances that have been approved by the
California Air Resources Board (CARB) or other states with adopted
consumer product regulations based on the Ozone Transport Commission
(OTC) ``Model Rule for Consumer Products.'' These provisions were fully
discussed in previous rulemakings. As part of a previous SIP revision,
New Jersey committed to forwarding all innovative product exemptions,
alternative compliance plans and variances that the State accepts to
EPA Region 2, in order for EPA to be able to determine what the
compliance requirements are for all sources regulated by the New Jersey
SIP. There have been no changes to these provisions in the current
rulemaking and EPA's previous findings still stand.
B. How was ``Subchapter 24, Prevention of Air Pollution From Consumer
Products'' revised?
1. Chemically Formulated Consumer Products
New Jersey revised Subchapter 24's provisions consistent with the
OTC's 2007 model rules that were in turn based on the 2005 CARB rules.
The revisions to Subchapter 24 add eleven new categories of consumer
products not previously regulated and revise one existing category.
Other revisions adopted by New Jersey include adding/clarifying
definitions, requiring notifications for products sold toward the end
of a sell-through period, prohibiting solid air fresheners or toilet/
urinal care products from containing para-dichlorobenzene (a toxic air
contaminant/hazardous air pollutant). In addition, any contact
adhesive, electronic cleaner, footwear or leather care product, general
purpose degreaser, adhesive remover, electrical cleaner, graffiti
remover or automotive consumer product manufactured on and after
January 1, 2009 is prohibited from containing chlorinated toxic air
contaminants. Products manufactured before this date that do not meet
the new standards can be sold until December 31, 2011 provided the
product or packaging displays the date on which the product was
manufactured.
All requirements apply statewide. Subchapter 24 requires that, on
or after January 1, 2009, no person shall sell, supply, offer for sale,
or manufacture consumer products that contain VOCs in excess of the VOC
content limits specified by New Jersey for those products sold in New
Jersey. Subchapter 24 includes specific exemptions, as well as
registration and product labeling requirements, recordkeeping and
reporting requirements, and test methods and procedures. Consumer
products that are sold in New Jersey for shipment and use outside of
the State of New Jersey are exempt from the VOC content limits. This
exemption reflects the intent to regulate only the manufacture and
distribution of consumer products that actually emit VOCs into New
Jersey's air and not to interfere in the transportation of goods that
are destined for use outside of the State.
2. Portable Fuel Containers
Subchapter 24 regulates portable fuel containers and/or spouts. New
Jersey revised Subchapter 24's provisions consistent with the OTC's
2007 model rule that was in turn based on the 2006 CARB regulation. The
revised rule requires that portable fuel containers and/or spouts must
now be certified for use and sale by the manufacturer through CARB or
the EPA as meeting performance standards or specifically exempted by
either CARB or EPA. The revised rule also applies to containers labeled
for kerosene use. Other revisions incorporated into Subchapter 24
include: modifying the existing spout regulations in order to improve
spillage control; elimination of the fuel flow rate and fill level
performance standards; elimination of the automatic shutoff performance
standard; and new portable
[[Page 42674]]
fuel container testing procedures to streamline testing. Portable fuel
containers or spouts or both portable fuel containers and spouts, that
do not meet the new specifications, manufactured before January 28,
2009 may continue to be sold until December 29, 2009 provided it is
labeled or designated for use solely with kerosene and the date of
manufacture or a date-code representing the date of manufacture is
clearly displayed on the product. Subchapter 24 includes administrative
requirements, such as labeling, recordkeeping, and reporting
requirements.
C. What is EPA's evaluation?
The revisions to Subchapter 24 expand the number of consumer
product categories that are regulated and revised and improved the
portable fuel container requirements consistent with the OTC Model
rules and CARB rules. These changes will result in additional VOC
emission reductions.
EPA has evaluated New Jersey's revisions to Subchapter 24 for
consistency with the Act, EPA regulations, and EPA policy. EPA has
determined that the revisions to Subchapter 24 meet the section 110 SIP
revision requirements of the Act. EPA is proposing to approve this
rule.
III. What is EPA's evaluation of ``Subchapter 26, Prevention of Air
Pollution From Adhesives, Sealants, Adhesive Primers and Sealant
Primers?''
A. Background
The OTC States developed a Model Rule entitled ``OTC Model Rule For
Adhesives and Sealants'' dated 2006 which was based on the 1998 CARB
reasonably available control technology determination. This RACT
determination applied to both the manufacture and use of adhesives,
sealants, adhesive primers or sealant primers, in both industrial/
manufacturing facilities and in the field. California air districts
used this determination to develop regulations for this category. The
EPA addressed this source category with a Control Techniques Guideline
(CTG) document for Miscellaneous Industrial Adhesives dated September
2008. This CTG was developed in response to the Section 183(e)
requirement for EPA to study and regulate consumer and commercial
products included in EPA's Report to Congress, ``Study of Volatile
Organic Compound Emissions from Consumer and Commercial Products--
Comprehensive Emissions Inventory.'' The section 183(e) miscellaneous
industrial adhesives category was limited to adhesives and adhesive
primers used in industrial/manufacturing operations and did not include
products applied in the field. Therefore, the OTC Model Rule and state
efforts in developing individual regulations preceded EPA's CTG for
this source category and were broader in applicability.
B. What Does Subchapter 26 Require?
Subchapter 26 is a new rule based on the OTC model rule that in
turn was based on the CARB model rule. Subchapter 26 addresses
adhesive, sealants, adhesive primers and sealant primers that are sold
in larger containers and used primarily in commercial/industrial
applications, but includes residential applications of these products,
such as carpet and flooring installations, roofing installations, etc.
Small container household adhesives are regulated by ``Subchapter 24,
Prevention of Air Pollution from Consumer Products.''
Subchapter 26 is applicable to those who sell, supply, offer for
sale or manufacture for sale, in New Jersey, any adhesives, sealants,
adhesive primer or sealant primer, for use in New Jersey. It is also
applicable to any person who uses or applies any adhesive, sealant,
adhesive primer or sealant primer for compensation within New Jersey.
This rule will not apply to homeowners who may be using these products
for home repair and renovations. The VOC limits apply to those products
manufactured for sale and use in New Jersey on and after January 1,
2009 and allows for the unlimited sell-through and use of non-compliant
products manufactured before January 1, 2009 provided they contain a
date or date code when they were manufactured. These limits are
identical to those in the OTC and CARB model rules. The limits also
apply to all products manufactured after January 1, 2009 in New Jersey
for sale and use in New Jersey.
As an alternative to the VOC limits established in Table 1 of
Subchapter 26, operators of stationary sources that use or apply
adhesives, sealants, or adhesive or sealant primers have the option of
using add-on pollution control equipment rather than complying with the
Table 1 limits. Requirements applying to air pollution control
equipment include: an overall capture and control efficiency of at
least 85 percent, by weight; the continuous monitoring of combustion
temperature, inlet and exhaust gas temperatures and control device
efficiency, depending upon the type of add-on controls used; and the
maintenance of operation records to demonstrate compliance.
Subchapter 26 contains requirements for work practices, surface
preparation and cleanup solvent composition. Subchapter 26 also
includes specific exemptions, as well as registration and product
labeling requirements, recordkeeping requirements, and test methods and
compliance procedures.
C. What is EPA's evaluation?
Subchapter 26 contains the required elements for a federally
enforceable rule: emission limitations, compliance procedures and test
methods, compliance dates and record keeping provisions.
In comparison to the CTG, Subchapter 26 is applicable to all
stationary sources including those applications that occur outside of
the factory setting, that is, applied in the field. In addition there
are provisions that apply to the selling, supplying, offering for sale
or manufacture for sale in New Jersey of adhesives, sealants, adhesive
primers and sealant primers along with container labeling requirements
and product registrations. The VOC content restrictions for these
products apply to both their manufacture and application. Stationary
sources also have the option of using add-on control equipment that
achieves 85 percent control. Subchapter 26 also regulates the VOC
content/vapor pressure of surface-preparation and clean-up solvents for
which the CTG did not make recommendations for other than including
work practices.
EPA recommends that when the states evaluate RACT, as required by
section 182(b) when implementing a revised 8-hour ozone standard,\1\
that they review the VOC content limits for wood adhesives and evaluate
the benefit of requiring improved methods for applying coatings
regulated by Subchapter 26.
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\1\ See 75 FR 2938 (January 19, 2010). In this proposed rule,
based upon reconsideration of the primary and secondary ozone
standards, EPA proposed to set different primary and secondary
standards than those promulgated in March 2008 to provide requisite
protection of public health and welfare, respectively.
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Overall, Subchapter 26: (1) Regulates the same adhesives and
adhesive primers as the CTG with the addition of regulating sealants
and sealant primers, (2) applies to additional stationary sources, and
(3) provides for similar exemptions as the CTG recommends.
EPA has evaluated New Jersey's submittal for consistency with the
Act, EPA regulations, and EPA policy. EPA has determined that
Subchapter 26 is as effective in regulating this source category as the
CTG and proposes to
[[Page 42675]]
approve it as part of the SIP and as meeting the requirement to adopt a
RACT rule for the Miscellaneous Industrial Adhesives CTG category.
IV. What is EPA's evaluation of ``Subchapter 34, TBAC Emissions
Reporting?''
A. What does EPA require?
The EPA revised the definition of VOC to exclude tertiary butyl
acetate or t-butyl acetate (TBAC) from VOC emissions limitations or VOC
content requirements, but requires that TBAC be considered a VOC for
purposes of recordkeeping, emissions reporting, photochemical
dispersion modeling and inventory requirements. See 69 FR 69298
(November 29, 2004). While TBAC is now considered ``negligibly
reactive,'' EPA is concerned that should TBAC usage substantially
increase it may contribute significantly to ozone formation even with
its lower reactivity. For this reason it is necessary to track and
account for TBAC emissions.
B. What does Subchapter 34 require?
New Jersey proposed and adopted a new rule, Subchapter 34, to meet
these requirements along with a revised definition of VOC that is
consistent with EPA's definition in 40 CFR 51.100(s). It requires
manufacturers located in New Jersey who manufacture TBAC or a product
containing TBAC, or manufacturers who produce a product containing TBAC
that is sold in New Jersey, to report the estimated amount of actual
emissions in pounds per ozone-season day and pounds per year that is
emitted in New Jersey. The rule also contains methods for calculating
the amount of TBAC and recordkeeping requirements.
C. What is EPA's evaluation?
Generally the rule satisfies EPA requirements and guidance with one
exception. The rule requires the reporting of ``pounds per ozone-season
day,'' but only contains a definition for ``ozone season.'' In the
``Background'' section of the proposed rulemaking (39 New Jersey
Register 4492, November 5, 2007), New Jersey states that in developing
the TBAC rule, it based its requirements on the Department of
Environment Protection's other air pollution control rules with similar
reporting requirements, such as the Subchapter 21 ``Emission
Statements'' rule. EPA suggests that the next time Subchapter 34 is
revised, that the definition for ``ozone-season'' be clarified to refer
to peak ozone season as used in Subchapter 21. In the meantime, should
there be any confusion with the term ozone-season, users should use the
definition in Subchapter 21 ``Emission Statements'' and as used
specifically in Subchapter 21.5(f). With this clarification, Subchapter
34 addresses all EPA requirements necessary to account for TBAC
emissions. EPA is proposing to approve this rule.
V. What other rules are affected by the VOC definition change and EPA's
evaluation?
A. What other rules include the VOC definition change?
The term VOC is used in several other New Jersey regulations:
``Subchapter 8, Permits and Certificates for Minor Facilities (and
Major Facilities without an Operating Permit);''
``Subchapter 16, Control and Prohibition of Air Pollution by Volatile
Organic Compounds;''
``Subchapter 17, Control and Prohibition of Air Pollution By Toxic
Substances;''
``Subchapter 18, Control and Prohibition of Air Pollution from New or
Altered Sources Affecting Ambient Air Quality (Emission Offset Rule);''
``Subchapter 19, Control and Prohibition of Air Pollution From Oxides
of Nitrogen;''
``Subchapter 21, Emission Statements;''
``Subchapter 22, Operating Permits;''
``Subchapter 23, Prevention of Air Pollution From Architectural
Coatings;'' and
``Subchapter 25, Control and Prohibition of Air Pollution by Vehicular
Fuels.''
These rules have been amended to include the revised definition of
VOC that addresses the TBAC requirements.
B. What is EPA's evaluation?
EPA has evaluated New Jersey's revised VOC definition for
consistency with the Act, EPA regulations, and EPA policy. The revised
definition of VOC as used in the above rules is consistent with EPA's
definition in 40 CFR 51.100(s).
At this time EPA is only proposing to approve as part of the SIP
``Subchapter 23, Prevention of Air Pollution From Architectural
Coatings,'' and ``Subchapter 25, Control and Prohibition of Air
Pollution by Vehicular Fuels.'' Subchapters 16, 19, and 21 were
proposed for approval as part of the SIP on April 23, 2010 (78 FR
21197). Subchapter 22 is not part of the SIP. EPA will act on the other
rules in a separate Federal Register at a later date.
VI. What action is EPA proposing?
These new and revised rules will strengthen the SIP by providing
additional VOC emission reductions and fulfilling commitments New
Jersey made in its 8-hour Ozone Attainment Demonstration SIP (1997
standard) to adopt these rules. EPA is proposing to approve
``Subchapter 23, Prevention of Air Pollution From Architectural
Coatings,'' ``Subchapter 24, Prevention of Air Pollution From Consumer
Products,'' ``Subchapter 25, Control and Prohibition of Air Pollution
by Vehicular Fuels,'' ``Subchapter 26, Prevention of Air Pollution From
Adhesives, Sealants, Adhesive Primers and Sealant Primers,'' and
``Subchapter 34, TBAC Emissions Reporting,'' of title 7, chapter 27 of
the New Jersey Administrative Codes. While the changes made to the VOC
definition in the other rules included in this SIP revision are also
acceptable, EPA will act on those rules in separate Federal Register at
a later date.
EPA is also proposing to fully approve New Jersey's RACT analysis
as New Jersey has fulfilled its commitment to adopt the identified RACT
rules, the last of which are being proposed for approval in this
action. These revisions meet the requirements of the Act and EPA's
regulations, and are consistent with EPA's guidance and policy. EPA is
taking this action pursuant to section 110 and part D of the Act and
EPA's regulations.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described
[[Page 42676]]
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 12, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-17949 Filed 7-21-10; 8:45 am]
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