[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18957]
[[Page Unknown]]
[Federal Register: August 4, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. 127; SIPTRAX NY4-2-6503, FRL-5004-7]
Approval and Promulgation of Implementation Plans; Revision to
the New York State Implementation Plan for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is announcing the limited
approval of a request by the State of New York to revise its State
Implementation Plan (SIP) for ozone related to the control of volatile
organic compound emissions from architectural coatings. EPA is also
finding that the State has partially met a commitment made in its 1982
ozone and carbon monoxide SIP for the New York City Metropolitan Area
to regulate architectural coatings. This revision deleted part 205
(1979 version) ``Photochemically Reactive Solvents and Organic Solvents
from Certain Processes-New York City Metropolitan Area'' and added part
205 ``Architectural Surface Coatings.'' This regulation will result in
additional reductions in emissions of volatile organic compounds which
will help to attain the national ambient air quality standard for
ozone.
EFFECTIVE DATE: This action will be effective September 6, 1994.
ADDRESSES: Copies of the State submittal are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs Branch,
26 Federal Plaza, Room 1034A, New York, New York 10278.
New York State Department of Environmental Conservation, Division of
Air Resources, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and
Information Center (MC 6102), 401 M Street SW., Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs
Branch, Environmental Protection Agency, 26 Federal Plaza, Room 1034A,
New York, New York 10278, (212) 264-2517.
SUPPLEMENTARY INFORMATION: On July 27, 1993 (58 FR 40107) the
Environmental Protection Agency (EPA) proposed limited approval of a
request by the State of New York to revise its State Implementation
Plan (SIP) for ozone. This revision deleted part 205 (1979 version)
``Photochemically Reactive Solvents and Organic Solvents from Certain
Processes-New York City Metropolitan Area'' and added new part 205
``Architectural Surface Coatings,'' effective September 15, 1988 to
Title 6 of the New York Code of Rules and Regulations. EPA also
proposed finding that the State has partially met a commitment made in
its 1982 ozone and carbon monoxide SIP for the New York City
Metropolitan Area (NYCMA) to regulate architectural coatings.
New part 205 provides for the regulation of architectural surface
coatings, sold, offered for sale, or used in the NYCMA. Architectural
surface coatings applied to stationary structures, buildings, houses,
mobile homes, pavement or curbs are regulated by part 205. These
coatings are not applied in a factory or manufacturing operation. The
regulation requires any architectural coating manufactured after July
1, 1989 that is to be sold, offered for sale or used in the NYCMA to
meet the designated volatile organic compound (VOC) content limitations
in part 205.
Paint manufacturers must include on the container the VOC content
limitations, date of manufacture or date code, along with any
instructions concerning thinning. Compliance with part 205 can be
determined visually by checking the paint containers and by taking
samples of the paint and calculating the volatile content of the
coating and comparing it with the limit in the regulation. In some
instances it is necessary to measure certain coating parameters. The
EPA recommended test method for determining these parameters is EPA
Reference Method 24 (40 CFR part 60 Appendix A). Part 205 inadvertently
omitted this reference which New York uses in performing similar
testing for other regulations. Therefore, EPA cannot fully approve the
regulation. However, because EPA believes that the regulation
strengthens the SIP by providing for additional reductions of VOCs, EPA
is granting a limited approval to the regulation.
EPA also finds that the State has partially fulfilled its
commitment in the SIP to adopt an architectural coatings control
measure (contained in part 205). Adoption of a specific test procedure,
as discussed above, is necessary to completely fulfill this commitment.
The basis for EPA's limited approval is further explained in the
proposed rulemaking on July 27, 1993 (58 FR 40107). In that proposed
rulemaking, EPA asked for comments on its proposed action. EPA received
one comment, from the Consumer Policy Institute (CPI).
CPI raises three issues in its comments: the timeliness of New
York's submission, the difference between the emission reductions New
York committed to and the emission reductions actually obtained, and
whether New York is enforcing the regulation.
First, CPI notes that New York has failed to meet the commitment
made in its 1982 SIP in a timely manner, and questions whether New York
will further ``slip'' in meeting other SIP requirements.
New York's 1982 SIP committed to develop and adopt an architectural
regulation by January, 1986. New York did not meet this date for a
variety of reasons. The Clean Air Act, as revised in 1977, provided
limited remedies for a state which failed to meet Act and SIP
requirements, but these were sufficient to result in New York adopting
part 205 on August 15, 1988. The amendments of 1990 substantially
strengthen EPA's enforcement abilities by providing specific
procedures, time frames for SIP submittals and sanctions should a state
fail to submit or implement their SIPs. The sanctions which the Act
mandates are: restrictions on new growth of industries which generate
air pollutants and a loss of federal highway funds. EPA believes these
new strengthened procedures and sanctions will induce the states to
fulfill their obligations.
Second, CPI notes that New York committed to obtaining 11,682 tons
of reductions in VOCs in its 1982 SIP, yet New York now estimates that
part 205 will only result in emission reductions of 3,000 tons per
year. CPI questions how New York will meet this commitment for
equivalent tonnage reductions in VOCs.
This comment raises concerns regarding the level of controls that
have been required and the ability of New York to demonstrate
attainment (i.e., rectify the shortfall). The Clean Air Act addresses
both of these concerns. The Act uses a fundamental concept that sources
should apply reasonably available control technology (RACT), as defined
in control techniques guidelines (CTGs) or as determined by a state
through a specific technical and economic review of the industry. As
EPA explained in its proposed action, New York's original emission
reduction was based on 1975 data which New York believes overestimated
the amount of solvent based coatings used in the NYCMA, and on which
the projected emission reductions were based. The present emission
reduction estimate reflects current coating usage and solvent content
which EPA believes is more accurate. EPA also notes that New York has
regulated all the high volume coatings as well as most of the lower
usage coatings that the original commitment intended. In addition, EPA
has found that New York's VOC limitations are consistent with
regulations of the limited number of states that have also regulated
these coatings. Furthermore, section 183(e) of the Act requires EPA to
regulate consumer products, which include architectural coatings. EPA
has a major rule development effort underway to develop a national
architectural coatings regulation that will provide more extensive and
current data on coating content and usage. Once this data is available,
New York will be able to reevaluate its rule to determine if additional
reductions are achievable.
In terms of New York's ability to reach attainment, Congress, in
recognizing that many states, including New York were having problems
solving their air pollution problems, set forth a procedure for states
to follow in the Act as amended in 1990. This procedure consists of
requirements to develop accurate current emission inventories that can
be used in selecting control strategies, to adopt specific control
measures, to develop reasonable further progress plans, and to develop
any additional control measures needed to attain the standard by the
specified dates. These requirements will address any shortfalls that
remain from the previously approved SIP and insure that states, like
New York, attain the ozone standard in an expeditious manner.
Third, CPI raises its concern that, while New York State has
adopted the regulation, it may not actually be enforcing it.
Part 205 contains labeling requirements with which manufacturers of
architectural coatings must comply. This provides a quick method of
screening the coatings being sold. In addition, after the regulation
became effective, New York State performed random checks of retail
stores to ensure that only compliant coatings were being sold. New York
has continued to take action to ensure that retailers and manufacturers
are complying with part 205.
In addition, by incorporating this regulation into New York's SIP,
it becomes federally enforceable. Thus EPA has the authority to take
enforcement action should EPA determine there is any lack of
compliance.
Conclusion
The Agency has reviewed New York's request for revision of the
federally-approved SIP for conformance with the provisions of the 1990
Amendments enacted on November 15, 1990. The Agency has determined that
this action conforms with those requirements irrespective of the fact
that the submittal preceded the date of enactment. The revision
incorporates a control program consistent to the one committed to in
the 1982 SIP and results in emission reductions. Therefore, New York's
submittal meets the requirements of section 193. Beyond that, the
revision will not interfere with the SIP's ability to meet the new
Act's requirements, and thus it meets the test in section 110(i) of the
Act.
Because of a missing test method, EPA cannot grant full approval to
this regulation under section 110(k)(3). Because the submitted
regulation is not composed of separable parts which meet all the
applicable requirements of the Act, EPA cannot grant partial approval
for the rule under section 110(k)(3). However, EPA may grant limited
approval of the submittal under section 110(k)(3) in light of EPA's
authority pursuant to section 301(a) to adopt regulations necessary to
further air quality by strengthening the SIP.
EPA also finds that the State has partially fulfilled its
commitment in the SIP to adopt an architectural coatings control
measure (contained in part 205). Adoption of the missing test
procedure, as discussed above, is necessary to fulfill this commitment
in whole.
Section 183(e)(3) of the Clean Air Act requires that EPA develop
either national regulations or CTG for consumer and commercial
products, which may include architectural coatings. If EPA promulgates
a federal regulation for architectural coatings under this authority,
then sources covered by New York's part 205 would also be required to
comply with the federal regulation. New York does retain the right to
promulgate regulations that are more stringent than either a federal
regulation or a CTG.
Nothing in this rule should be construed as permitting, allowing or
establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors, and in relation to relevant statutory and regulatory
requirements.
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
Under section 307(b)(1) of the Act, petitions for judicial review
of this rule must be filed in the United States Court of Appeals for
the appropriate circuit within 60 days from date of publication. 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 rule may not be challenged later in proceedings to
enforce its requirements. (See 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: June 13, 1994.
William J. Muszynski,
Deputy Regional Administrator.
Title 40, chapter I, part 52, Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart HH--New York
2. Section 52.1670 is amended by adding new paragraph (c)(87) to
read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
* * * * *
(87) A revision to the New York State Implementation Plan (SIP) for
attainment and maintenance of the ozone standard dated October 14,
1988, submitted by the New York State Department of Environmental
Conservation.
(i) Incorporation by reference:
(A) New part 205 of title 6 of the New York Code of Rules and
Regulations of the State of New York, entitled ``Architectural Surface
Coatings,'' effective on September 15, 1988.
(ii) Additional material.
(A) December 5, 1988 letter from Thomas Allen, to Conrad Simon,
EPA, requesting EPA approval of the amendments to part 205.
3. Section 52.1679 is amended by revising the entry for part 205 in
the table to read as follows:
Sec. 52.1679 EPA-approved New York State regulations.
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State
New York State regulation effective date Latest EPA approval date Comments
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* * * * * * *
Part 205 ``Architectural 9/15/88 8/4/94, [insert citation of Until EPA approves State
Surface Coatings''. this notice]. adopted coating test method,
EPA will use 40 CFR part 60,
App. B, Method 24.
* * * * * * *
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[FR Doc. 94-18957 Filed 8-3-94; 8:45 am]
BILLING CODE 6560-50-P
