[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Proposed Rules]
[Pages 71764-71766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27170]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. R02-OAR-2004-NJ-0004, FRL-7847-1]


Approval and Promulgation of Implementation Plans; New Jersey 
Consumer Product Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the New Jersey State Implementation Plan (SIP) 
for ozone concerning the control of volatile organic compounds. The SIP 
revision consists of amendments to Subchapter 24 ``Prevention of Air 
Pollution From Consumer Products'' of 7:27 of the New Jersey 
Administrative Codes. This SIP revision consists of two control 
measures, consumer products and portable fuel containers, needed to 
meet the shortfall emissions reduction identified by EPA in New 
Jersey'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 January 10, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2004-NJ-0004 by one of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    1. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    2. E-mail: [email protected].
    3. Fax: (212) 637-3901.
    4. Mail: ``RME ID Number R02-OAR-2004-NJ-0004'', Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    5. Hand Delivery or Courier. Deliver your comments to: 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.
    A copy of the New Jersey submittal is 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 Jersey Department of Environmental Protection, Office of Air 
Quality Management, Bureau of Air Quality Planning, 401 East State 
Street, CN418, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3711.

SUPPLEMENTARY INFORMATION:

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

    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 and Philadelphia-Trenton 
nonattainment areas are nonattainment areas classified as a severe. 
Under section 182, severe ozone nonattainment areas were required to 
submit demonstrations of how they would attain the 1-hour ozone 
standard. On December 16, 1999 (64 FR 70380), EPA proposed approval of 
New Jersey's 1-hour ozone attainment demonstration SIP for the New 
Jersey portion of the New York-Northern New Jersey-Long Island 
nonattainment area and the New Jersey portion of the Philadelphia-
Trenton nonattainment area. In that rulemaking, EPA identified an 
emission reduction shortfall associated with New Jersey's 1-hour ozone 
attainment demonstration SIPs, and required New Jersey to address the 
shortfalls. 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 5152), EPA approved New Jersey's 1-hour 
ozone attainment demonstration SIPs. This approval included an 
enforceable commitment submitted by New Jersey to adopt additional 
control measures to close the shortfalls identified by EPA for 
attainment of the 1-hour ozone standard.

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

    On June 22, 2004, Bradley M. Campbell, Commissioner, New Jersey 
Department of Environmental Protection (NJDEP), submitted to EPA a 
revision to the SIP which included an adopted revision to subchapter 
24, ``Prevention of Air Pollution From Consumer Products,'' which 
contained two control programs. The two control programs are consumer 
products and portable fuel container spillage control. This SIP 
revision will provide volatile organic compound (VOC) emission 
reductions to address, in part, the shortfall identified by EPA when 
New Jersey's one-hour ozone attainment demonstrations were approved. 
New Jersey used the OTC model rules as guidelines to develop its rules.

[[Page 71765]]

III. Was Subchapter 24 Previously Aproved by EPA?

    On May 2, 1997 as part of the New Jersey SIP EPA previously 
approved subchapter 24 (62 FR 24036) which included the innovative 
product exemption as a method of compliance and the option of 
variances. The innovative product exemption and variance provision was 
fully discussed in the proposed approval (January 21, 1997, 62 FR 
2984). As part of the SIP revision, New Jersey commited to forwarding 
all innovative product exemptions and variances that the State accepts 
to EPA, Region 2, in order for EPA to be able to determine compliance 
with the New Jersey SIP.

IV. What Are the Requirements for ``Consumer Products'' ?

    The revised Subchapter 24 now regulates 45 separate consumer 
product categories and applies statewide. It requires that, on or after 
January 1, 2005, no person shall sell, supply, offer for sale, or 
manufacture consumer products which contain VOCs in excess of the VOC 
content limits specified by New Jersey for those products. 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, and administrative and testing requirements of Subchapter 24. 
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.
    In addition, subchapter 24 contains 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'' dated November 29, 2001.
    The Subchapter 24 IPE and ACP provisions provide alternatives to 
complying with the VOC content limits specified in the Table 1--VOC 
Content Limits For Chemically Formulated Consumer Products of 
Subchapter 24. The IPE provisions require a manufacturer to demonstrate 
that due to some characteristics of the formulation, design, delivery 
system or other factor, VOC emissions resulting from the use of the 
innovative product would be less than the emissions resulting from the 
use of a representative product that meets the VOC content standard. 
The ACP provisions specify a method for averaging the emissions from 
several consumer products manufactured by the same company such that 
the total emissions from the products included in the plan will have 
emissions equal to or less than the sum of emissions from products that 
actually complied with the individual product emission limitations. The 
variance provision allows for a temporary exemption based on an 
extraordinary economic hardship that is beyond the reasonable control 
of the manufacturer of the regulated consumer product.
    The State provisions specify the required documentation that must 
be submitted and the conditions under which New Jersey will recognize a 
IPE, ACP or variance that was granted by CARB or another state with 
equivalent provisions. The IPE, ACP or variance can become effective in 
New Jersey for the period of time that the approved IPE, ACP or 
variance remains in effect, provided that all the consumer products 
within the IPE, ACP or variance are regulated by Subchapter 24.
    Paragraph 24.7(b)(2) of subchapter 24 provides for alternate test 
methods for consumer products provided that the alternate method is at 
least as accurate, precise, and appropriate as the test methods 
included in Subchapter 24 and that the alternate test method is first 
approved by both the NJDEP and the EPA.

V. What Are the Requirements for ``Portable Fuel Containers and Spill 
Proof Spouts''?

    Subchapter 24 (sections 24.8-24.12) also reduces refueling 
emissions from those equipment and engines in the off-road categories 
that are predominantly refueled with portable fuel containers. 
Subchapter 24 applies to any person who sells, supplies, offers for 
sale, or manufactures for sale in New Jersey portable fuel container(s) 
or spout(s) or both for use in New Jersey. Subchapter 24 includes 
exemptions; administrative requirements which include date coding and 
labeling; recordkeeping and reporting requirements; a manufacturer 
warranty requirement; and test methods and procedures.
    Subchapter 24 establishes performance standards applicable on or 
after January 1, 2005, 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. 
Subchapter 24 also includes a permeation rate for spill-proof systems 
only.
    Portable fuel containers or spouts or both portable fuel containers 
and spouts manufactured before January 1, 2005 may continue to be sold 
until January 1, 2006 provided the date of manufacture or a date-code 
representing the date of manufacture is clearly displayed on the 
product.
    Subchapter 24 also establishes IPE provisions which allow for 
alternatives to complying with the performance standards specified in 
subchapter 24 and a variance provision for situations where there is 
extraordinary economic hardships. Also as in the case for consumer 
products, the portable fuel container provisions provide for accepting 
IPE or variances that have been granted by CARB or another state with 
equivalent provisions. The IPE or variance can become effective in New 
Jersey for the period of time that the approved IPE or variance remains 
in effect in the state which originally granted the IPE or variance.
    Paragraph 24.11(c) of subchapter 24 provides for alternate test 
methods for portable fuel containers provided that the alternate method 
is at least as accurate, precise, and appropriate as the test methods 
included in subchapter 24 and that the alternate test method is first 
approved by both the NJDEP and the EPA.

VI. What Is EPA's Conclusion?

    EPA has evaluated New Jersey's submittal for consistency with the 
Act, EPA regulations, and EPA policy. EPA has determined that the 
revisions made to subchapter 24 ``Prevention of Air Pollution From 
Consumer Products'' of title 7, Chapter 27 of the New Jersey 
Administrative Codes, meet the SIP revision requirements of the Act 
with the following exception. While the provisions related to 
variances, IPE and ACP pursuant to subchapter 24, ``Consumer Products'' 
are acceptable, each specific application of those provisions will not 
be recognized as meeting Federal requirements until it is approved by 
EPA as a SIP revision. Therefore, EPA is proposing to approve the 
regulation as part of the New Jersey SIP with the exception that any 
specific application of provisions associated with variances, IPE and 
ACP, must be submitted as SIP revisions.

[[Page 71766]]

VII. 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: November 30, 2004.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. 04-27170 Filed 12-9-04; 8:45 am]
BILLING CODE 6560-50-P