[Federal Register Volume 68, Number 69 (Thursday, April 10, 2003)]
[Proposed Rules]
[Pages 17573-17576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8826]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY57-252, FRL-7480-4]


Approval and Promulgation of Implementation Plans; New York State 
Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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,

[[Page 17574]]

Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3381.

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.

[[Page 17575]]

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.


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

    Dated: March 31, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 03-8826 Filed 4-9-03; 8:45 am]
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