2010-17949. Approval and Promulgation of Implementation Plans; New Jersey; 8-hour Ozone Control Measures

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

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: [e-mail]
• Fax: [phone].
• 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, 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, [phone].

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 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.

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 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 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.

Footnotes

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.