[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Proposed Rules]
[Pages 42019-42021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14406]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. R02-OAR-2005-NJ-0002, FRL-7942-7]


Approval and Promulgation of Implementation Plans; New Jersey 
Architectural Coatings Rule

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 Jersey State Implementation Plan (SIP) 
for ozone concerning the control of volatile organic compounds. The SIP 
revision consists of amendments to Subchapter 23 ``Prevention of Air 
Pollution From Architectural Coatings'' of 7:27 of the New Jersey 
Administrative Codes, which are needed to meet the shortfall in 
emissions reduction identified by EPA in New Jersey's 1-hour ozone 
attainment demonstration SIP. The intended effect of this action is to 
approve a control strategy 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 August 22, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2005-NJ-0002 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.eps.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 research,'' then key in the appropriate RME Docket

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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-2005-NJ-0002'', 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, Wilmington, 
Trenton nonattainment areas are nonattainment areas classified as 
severe. Under section 182, severe 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, 
Wilmington, Trenton attainment 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 reduction 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 July 28, 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 
23, ``Prevention of Air Pollution From Architectural Coatings.'' This 
SIP revision will provide volatile organic compound (VOC) emission 
reductions to address, in part, the shortfall identified by EPA when 
New Jersey's 1-hour ozone attainment demonstrations were approved. New 
Jersey used the OTC model rules as guidelines to develop its rules.

III. Was Subchapter 23 Previously Approved by EPA?

    On August 2, 1997 EPA approved subchapter 23 (62 FR 42414) as part 
of the New Jersey SIP. The July 20, 2004 submittal modifies subchapter 
23 as previously approved.

IV. How Was Subchapter 23 Promulgated?

    The NJDEP published the proposed rulemaking in the New Jersey 
Register on July 21, 2003 (35 N.J.R. 2983) and announced that a public 
hearing would be held, on September 9, 2003, in Trenton, New Jersey. 
NJDEP provided copies of the newspaper announcements and certification 
of publication. The public hearing was held on September 9, 2003 and 
thirteen individuals provided written and/or oral comments. The NJDEP 
prepared a summary of the comments and then evaluated the comments. 
NJDEP then prepared a response to the comments. The State adopted the 
revisions to Subchapter 23 on May 21, 2004 and published the adoption 
in the New Jersey Register on June 21, 2004 (36 N.J.R. 3078). 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.

V. What Are the Requirements for ``Architectural Coatings''?

    The revised Subchapter 23 now regulates 53 separate coating 
categories, some contain additional subcategories, which apply 
statewide. These categories are based on the original New Jersey 
subchapter 23, from the National AIM rule (see CFR part 59, subpart D), 
and the OTC Model rule. The revised subchapter 23 requires that, on or 
after January 1, 2005, no person shall sell, supply, offer for sale, or 
manufacture architectural coatings or apply architectural coatings for 
compensation which contain VOC's in excess of the VOC content limits. 
Subchapter 23 includes specific exemptions, as well as registration and 
product labeling requirements, recordkeeping and reporting 
requirements, and test methods and procedures.
    Architectural coatings 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 23. 
This exemption reflects the intent to regulate only the manufacture and 
distribution of architectural coatings 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, aerosol coating 
products and architectural coatings sold in containers holding one 
liter or less are also exempt.
    Subchapter 23 contains provisions for accepting limited timeframe 
variances or exemptions that have been approved by another state or one 
of the California air quality management districts that have rules 
substantially equivalent to subchapter 23 and that have product 
categories and VOC content limits identical to subchapter 23. The State 
provisions specify the required documentation that must be submitted 
and the conditions under which New Jersey will recognize a limited 
timeframe variance or exemption that

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was granted by another state or California air management district with 
equivalent provisions. The variance or exemption can become effective 
in New Jersey for the period of time that the approved variance or 
exemption remains in effect, provided that all the architectural 
coatings within the variance or exemption are regulated by subchapter 
23.
    Paragraph 23.4(c) of subchapter 23 provides for alternate test 
methods for architectural coatings provided that the alternate method 
is demonstrated to provide results that are acceptable for purposes of 
determining compliance 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 23 ``Prevention of Air Pollution From 
Architectural Coatings'' 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 
exemptions and variances pursuant to subchapter 23, ``Architectural 
Coatings'' are acceptable, each specific application of those 
provisions will only be recognized as meeting Federal requirements 
after it is approved by EPA as a SIP revision. Therefore, EAP 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 or exemptions, must be submitted as SIP revisions.
    Since submittal of this SIP revision, an issue arose concerning the 
quantity of emission reductions that would result from adopting an 
architectural coatings regulation, such as New Jersey's subchapter 23, 
that was more stringent than EPA's National AIM rule. Incorporating a 
regulation into a SIP that is more stringent, such as this one, 
strengthens the SIP and will result in further decreases in VOC 
emissions which will beneficially impact the ambient ozone 
concentrations. The exact amount of reductions attributed to 
implementation of the rule depends on what overall percent reduction is 
achieved and the quantity of coatings that meet these new standards.
    EPA recognizes the need to resolve conclusively how to determine 
the amount of VOC emission reductions achieved from the implementation 
of AIM coatings rules in a given ozone nonattainment area. This remains 
an issue of concern to the states, the regulated sector, and other 
interested parties. Therefore, EPA will address the issue of exactly 
what quantity of emission reductions New Jersey can attribute to the 
revised subchapter 23 in a future Federal Register action. These 
emission reductions are required to meet the additional emission 
reductions EPA identified as needed to meet the 1-hour ozone standard. 
In addition, the entire State of New Jersey is classified as 
nonattainment for the 8-hour ozone standard. In order to attain this 
standard, New Jersey will need to achieve further reductions in VOC and 
nitrogen oxides.

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 of 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: July 12, 2005.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. 05-14406 Filed 7-20-05; 8:45 am]
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