03-8826. Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a revision to the New York State Implementation Plan (SIP) for ozone concerning the control of volatile organic compounds. The SIP revision consists of amendments to New York Codes, Rules and Regulations part 226, “Solvent Metal Cleaning,” part 235, “Consumer Products” and the adoption of new rule part 239, “Portable Fuel Container Spillage Control.” This SIP revision consists of control measures needed to meet the shortfall emissions reduction identified by EPA in New York's 1-hour ozone attainment demonstration SIP. The intended effect of this action is to approve control strategies required by the Clean Air Act which will result in emission reductions that will help achieve attainment of the national ambient air quality standard for ozone.

DATES:

Comments must be received on or before May 12, 2003.

ADDRESSES:

All comments should be addressed to: Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

A copy of the New York submittals are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.

New York State Department of Environmental Conservation, Division of Air Resources, 625 Broadway, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT:

Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, [phone].

SUPPLEMENTARY INFORMATION:

I. What Is Required by the Clean Air Act and How Does It Apply to New York?

Section 182 of the Clean Air Act (Act) specifies the required State Implementation Plan (SIP) submissions and requirements for areas classified as nonattainment for ozone and when these submissions and requirements are to be submitted to EPA by the states. The specific requirements vary depending upon the severity of the ozone problem. The New York-Northern New Jersey-Long Island area is classified as a severe ozone nonattainment area. Under section 182, severe ozone nonattainment areas were required to submit demonstrations of how they would attain the 1-hour standard. On December 16, 1999 (64 FR 70364), EPA proposed approval of New York's 1-hour ozone attainment demonstration SIP for the New York-Northern New Jersey-Long Island nonattainment area. In that rulemaking, EPA identified an emission reduction shortfall associated with New York's 1-hour ozone attainment demonstration SIP, and required New York to address the shortfall. In a related matter, the Ozone Transport Commission (OTC) developed control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing these model rules. These model rules were designed for use by states in developing their own regulations to achieve additional emission reductions to close emission shortfalls.

On February 4, 2002 (67 FR 5170), EPA approved New York's 1-hour ozone attainment demonstration SIP. This approval included an enforceable commitment submitted by New York to adopt additional control measures to close the shortfall identified by EPA for attainment of the 1-hour ozone standard.

II. What Was Included in New York's Submittal?

On December 30, 2002, Carl Johnson, Deputy Commissioner, New York State Department of Environmental Conservation (NYSDEC), submitted to EPA a revision to the SIP which included state adopted revisions to two regulations. The two regulations consist of New York Codes, Rules and Regulations (NYCRR), part 235, “Consumer Products” and part 239, “Portable Fuel Container Spillage Control.” In addition, on January 17, 2003, Deputy Commissioner Johnson submitted to EPA a revision to the SIP which included state proposed revisions to NYCRR, part 226, “Solvent Metal Cleaning.” All of these revisions will provide volatile organic compound (VOC) emission reductions to address, in part, the shortfall identified by EPA. New York used the OTC model rules as guidelines to develop its rules.

A. What Do the Revisions to Part 226, “Solvent Metal Cleaning” Consist of?

Part 226 is intended to establish hardware and operating requirements for vapor cleaning machines used to clean metal parts as well as solvent volatility limits and operating practices for cold cleaners. The revisions to part 226 include clarifications to the general requirements; equipment specifications; and operating requirements, including recordkeeping requirements for cold cleaning degreasers; and exemptions. The revisions to part 226 also include a solvent vapor pressure specification of 1.0 millimeters of mercury at 20 degrees Celsius which becomes mandatory January 1, 2004, unless a process-specific Reasonably Available Control Technology (RACT) demonstration has been approved by the NYSDEC and EPA. The alternate RACT provision is available for situations in which it can be demonstrated that a solvent metal cleaning process cannot be controlled to comply with the requirements of part 226 for reasons of technological and economic infeasibility.

B. What Do the Revisions to Part 235, “Consumer Products” Consist of?

The revisions to part 235 include VOC content limits for 43 separate consumer product categories. Revised part 235 establishes that no person shall sell, supply, offer for sale, or manufacture consumer products on or after January 1, 2005, which contain VOCs in excess of the VOC content limits specified by New York for those products. Part 235 includes specific exemptions, as well as certification and product labeling requirements, recordkeeping and reporting requirements, and test methods and procedures, and provisions for acquiring variances and approvals of innovative products exemptions (IPEs) and alternative compliance plans (ACPs).

The part 235 IPE and ACP provisions provide alternatives to complying with the VOC content limits specified in the Table of Standards in part 235. The State has provided criteria for documentation of emissions and the VOC content limit of the product as well as procedures for submissions to apply for IPEs and ACPs. Part 235 also allows a manufacturer who was granted an IPE or ACP pursuant to the California Air Resource Board (CARB) provisions in sections 94511, 94503.5 and 94540-94555 of title 17 of the California Code of Regulations to apply for and obtain an IPE or ACP in New York State. The IPE or ACP can become effective in New York State for the period of time that the CARB IPE or ACP remains in effect, provided that all the consumer products within the CARB IPE or ACP are regulated by part 235. Any manufacturer seeking such an exemption on this basis must submit to the NYSDEC, a copy of the CARB IPE or ACP decision (i.e., the Executive Order) which includes all conditions established by CARB applicable to the IPE or ACP. For those consumer products that have not been granted an exemption by CARB, the manufacturer may apply to the NYSDEC for an IPE or ACP in accordance with the criteria specified in part 235.

Part 235 also establishes procedures for obtaining a variance. Any person who cannot comply with requirements set forth in part 235, due to extraordinary reasons that are beyond that person's reasonable control, may apply in writing to the NYSDEC for a variance. An application for a variance must specify the grounds upon which the variance is sought, the proposed date(s) by which compliance with the part 235 VOC limits will be achieved and a compliance report reasonably detailing the method(s) by which compliance will be achieved.

C. What Do the Requirements of Part 239, “Portable Fuel Container Spillage Control” Consist of?

Part 239 is intended to reduce refueling emissions from those equipment and engines in the off-road categories that are predominantly refueled with portable fuel containers. Part 239 applies to any person who sells, supplies, offers for sale, or manufactures for sale in New York State portable fuel container(s) or spout(s) or both for use in New York State. Part 239 includes exemptions; administrative requirements which include date coding; compliance certification; labeling; recordkeeping requirements; a manufacturer warranty requirement; and test methods and procedures.

Part 239 establishes performance standards applicable on or after January 1, 2003, which are divided into two sections. One standard specifically addresses spill-proof systems and the other addresses spill-proof spouts for use in portable fuel containers. Included are performance standards for automatic shut off, automatic closure, container openings, fuel flow rates and fill levels. Part 239 also includes a permeation rate for spill-proof systems only.

Part 239 allows the manufacturers of noncompliant products a one year sell-through period. Manufacturers may continue to sell an existing product provided that the products were manufactured before January 1, 2003, and the date of manufacture or a date code representing the date of manufacture is clearly displayed on that product.

Part 239 also establishes IPE provisions which allow for alternatives to complying with the performance standards specified in part 239. As in the case of part 235, if a manufacturer was granted an IPE pursuant to the CARB provisions, the IPE can become effective in New York State for the period of time that the CARB IPE remains in effect. Section 2467.4 of title 13 of the California Code of Regulations, specifies the CARB provisions applicable to portable fuel containers. Any manufacturer seeking such an exemption on this basis must submit to the NYSDEC, a copy of the CARB IPE decision (i.e., the Executive Order), which includes all conditions established by CARB applicable to the IPE. For those portable fuel containers or spouts that have not been granted an exemption by CARB, the manufacturer may apply to the NYSDEC for an IPE in accordance with the criteria specified in part 239.

In addition, part 239 provides procedures for obtaining a variance. Any person who cannot comply with the performance standards set forth in part 239, due to extraordinary reasons that are beyond that person's reasonable control, may apply in writing to the NYSDEC for a variance. An application for a variance must specify the grounds upon which the variance is sought, the proposed date(s) by which compliance with the part 239 VOC limits will be achieved and a compliance report reasonably detailing the method(s) by which compliance will be achieved.

III. What Is EPA's Conclusion?

EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA has determined that the revisions made to part 226, part 235 and new part 239 of title 6 of the New York Codes, Rules and Regulations, entitled, “Solvent Metal Cleaning”, “Consumer Products” and “Portable Fuel Container Spillage Control”, respectively, meet the SIP revision requirements of the Act with the following exception. While the provisions related to alternate test methods, variances, innovative products and alternate compliance plans pursuant to part 235, “Consumer Products” or part 239, “Portable Fuel Container Spillage Control” are acceptable, the specific application of those provisions (those that are granted or accepted by NYSDEC) will not be recognized as meeting Federal requirements until they are approved by EPA on a case-by-case basis as a SIP revision. Therefore, EPA is proposing to approve the regulations as part of the New York SIP with the exception that the specific application of provisions associated with alternate test methods, variances, innovative products and alternate compliance plans, must be submitted as SIP revisions.

In addition, the revisions to part 226, “Solvent Metal Cleaning” are being proposed under a procedure called parallel processing, whereby EPA proposes rulemaking action concurrent with the state's procedures for amending its regulations. If the proposed revision is substantially changed in areas other than those identified in this document, EPA will evaluate those changes and may publish another notice of proposed rulemaking. If no substantial changes are made to part 226 as cited in this document, EPA will publish a final rulemaking on the revisions. The final rulemaking action by EPA will occur only after the SIP revision has been adopted by New York and submitted formally to EPA for incorporation into the SIP. It should be noted, that if for some reason the adoption process by New York for part 226 is delayed, it is likely that EPA will proceed with a final rulemaking action on the revisions to parts 235 and 239 and address the final rulemaking action for part 226 separately.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Authority: 42 U.S.C. 7401-7671q.

Dated: March 31, 2003.

Jane M. Kenny,

Regional Administrator, Region 2.