[Federal Register Volume 75, Number 40 (Tuesday, March 2, 2010)]
[Proposed Rules]
[Pages 9373-9376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4306]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2010-0131, FRL-9120-9]


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 proposed revision to the New York State Implementation Plan 
(SIP) for ozone concerning the control of volatile organic compounds. 
The proposed SIP revision consists of amendments to Title 6 of the New 
York Codes, Rules and Regulations Part 235, ``Consumer Products'' and 
Part 239, ``Portable Fuel Container Spillage Control.'' 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 standards for 
ozone.

DATES: Comments must be received on or before April 1, 2010.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2010-0131, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 212-637-3901
     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 
a.m. to 4:30 p.m. excluding Federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2010-
0131. 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 or 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

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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: Kirk J. Wieber ([email protected]), 
Air Programs Branch, Environmental Protection Agency, 290 Broadway, 
25th Floor, New York, New York 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is Required by the Clean Air Act (Act) and How Does it Apply 
to New York?
    A. What is the History and Time Frame for State Implementation 
Plan (SIP) Submissions?
    B. What are the Moderate Area Requirements?
II. What was Included in New York's Submittals?
    A. What do the Revisions to Part 235, ``Consumer Products'' 
Consist Of?
    B. What do the Requirements of Part 239, ``Portable Fuel 
Container Spillage Control'' Consist Of?
III. What is EPA's Conclusion?
IV. Statutory and Executive Order Reviews

I. What is Required by the Clean Air Act (Act) and How Does it Apply to 
New York?

A. What Is the History and Time Frame for State Implementation Plan 
(SIP) Submissions?

    In 1997, EPA revised the health-based national ambient air quality 
standards (NAAQS or standard) for ozone, setting it at 0.08 parts per 
million averaged over an 8-hour period. EPA set the 8-hour ozone 
standard based on scientific evidence demonstrating that ozone causes 
adverse health effects at lower ozone concentrations and over longer 
periods of time than was understood when the pre-existing 1-hour ozone 
standard was set. EPA determined that the 8-hour standard would be more 
protective of human health, especially with regard to children and 
adults who are active outdoors, and individuals with a pre-existing 
respiratory disease, such as asthma. On April 30, 2004 (69 FR 23951), 
EPA finalized its attainment/nonattainment designations for areas 
across the country with respect to the 8-hour ozone standard. These 
actions became effective on June 15, 2004. The three 8-hour ozone 
moderate nonattainment areas located in New York State are: the New 
York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area; the 
Poughkeepsie nonattainment area; and the Jefferson County nonattainment 
area. The New York portion of the New York-Northern New Jersey-Long 
Island, NY-NJ-CT nonattainment area is composed of the five boroughs of 
New York City and the surrounding counties of Nassau, Suffolk, 
Westchester and Rockland. This is collectively referred to as the New 
York City Metropolitan Area or NYMA. The Poughkeepsie nonattainment 
area is composed of Dutchess, Orange and Putnam counties. On March 25, 
2008 (73 FR 15672) EPA determined that Jefferson County attained the 8-
hour ozone standard.
    These designations triggered the Act's requirements under section 
182(b) for moderate nonattainment areas, including a requirement to 
submit a demonstration of attainment. To assist States in meeting the 
Act's requirements for ozone, EPA released an 8-hour ozone 
implementation rule in two Phases. EPA's Phase 1 8-hour ozone 
implementation rule, published on April 30, 2004 (69 FR 23951) and 
referred to as the Phase 1 Rule, specifies that States must submit 
these attainment demonstrations to EPA by no later than three years 
from the effective date of designation, that is, submit them by June 
15, 2007.\1\
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    \1\ On December 22, 2006, the United States Court of Appeals for 
the District of Columbia Circuit (the Court) vacated the Phase 1 
Rule. South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 
(DC Cir. 2006). Subsequently, in South Coast Air Quality Management 
Dist. v. EPA, 489 F.3d 1295 (DC Cir. 2007), in response to several 
petitions for rehearing, the Court clarified that the Phase 1 Rule 
was vacated only with regard to those parts of the rule that had 
been successfully challenged. The court upheld the portions of the 
Phase 1 Rule relating to EPA's classification system under subpart 
2. The portions of the rule that were vacated do not affect this 
proposed action.
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B. What Are the Moderate Area Requirements?

    On November 9, 2005, EPA published Phase 2 of the 8-hour ozone 
implementation rule (70 FR 71612) and referred to as the Phase 2 Rule, 
which addressed the control obligations that apply to areas designated 
nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and 
Phase 2 Rules outline the SIP requirements and deadlines for various 
requirements in areas designated as moderate nonattainment. For such 
areas, reasonably available control technology (RACT) plans were due by 
September 2006 (40 CFR 51.912(a)(2)). The rules further require that 
modeling and attainment demonstrations, reasonable further progress 
plans, reasonably available control measure (RACM) analysis, projection 
year emission inventories, motor vehicle emissions budgets and 
contingency measures were all due by June 15, 2007 (40 CFR 51.908(a), 
and (c)).
    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.

II. What Was Included in New York's Submittals?

    On October 21, 2009 and November 23, 2009, the New York State 
Department of Environmental Conservation (NYSDEC), submitted to EPA 
proposed revisions to the SIP which included State adopted revisions to 
two regulations which consist of, respectively, Title 6 of the New York 
Code of Rules and Regulations (6 NYCRR) Part 235, ``Consumer Products'' 
with an effective date of October 15, 2009 and 6 NYCRR Part 239, 
``Portable Fuel Container Spillage Control'' with an effective date of 
July 30, 2009. These revisions will provide volatile organic compound 
(VOC) emission reductions to address, in part, attainment of the 1997 
8-hour ozone standard in the NYMA and towards meeting the RACT and RACM 
requirement. New York used the OTC model rules as guidelines to develop 
its rules.

A. What Do the Revisions to Part 235, ``Consumer Products'' Consist Of?

    On January 23, 2004 (69 FR 3237), EPA approved the previous version 
of Part 235 that included VOC content limits for 43 separate consumer 
product categories. New York's recent revisions to Part 235 includes 
VOC content limits for eleven new categories of products and includes 
revised VOC content limits for contact adhesives. The new categories of 
products, some of which include subcategories, are: adhesive remover, 
anti-static (non-aerosol), electrical cleaner, electronic cleaner, 
fabric refresher, footwear or leather care,

[[Page 9375]]

graffiti remover, hair styling, shaving gel, toilet/urinal care, and 
wood cleaner.
    New York also revised subpart 235-2.1, ``Definitions'' to 
accommodate the new and revised categories as well as to provide 
clarification on some existing definitions.
    Revised subpart 235-3.1, ``Standards'' establishes that no person 
shall sell, supply, offer for sale, or manufacture for sale in the 
State of New York consumer products manufactured on or after January 1, 
2010 which contain VOC's in excess of the VOC content limits specified 
by New York State for the eleven new and revised categories. The VOC 
standards for products registered under FIFRA (Federal Insecticide, 
Fungicide, and Rodenticide Act) will have an effective date of January 
1, 2011.
    The revisions to subpart 235-3.1 include an unlimited sell through 
for products that are manufactured before January 1, 2010, except for 
products that do not display on the container or package the date, or a 
code indicating the date, on which the product was manufactured (see 
subpart 235-3.1(d)); solid air fresheners and toilet/urinal care 
products that contain para-dichlorobenzene (see subpart 235-3.1(d) and 
(n)); adhesive removers, contact adhesives, electrical cleaners, 
electronic cleaners, footwear or leather care products, graffiti 
removers and general purpose degreasers (a category already included in 
the SIP) that contain methylene chloride, perchloroethylene; or 
trichloroethylene (see subpart 235-3.1(l) and (m)). Products containing 
these compounds will have a one year limited sell through until January 
1, 2011. Other revisions to Part 235 include some administrative 
changes to the labeling/date coding provisions (subpart 235-6.1), an 
innovative products exemption (subpart 235-5.1), a variance provision 
(subpart 235-8.1), alternative test methods (subpart 235-9.1) and 
alternate control plan provisions (subpart 235-11). Subparts 235-5.1, 
235-8.1, 235-9.1 and 235-11.1 require that after NYSDEC approves an 
application for an innovative product exemption, a variance, an 
alternative test method or alternative control plan, it must be 
submitted to the EPA for approval as a SIP revision. In the event that 
the State adopts a less stringent requirement and it is not approved 
into the SIP by EPA through a source-specific SIP mechanism, the rule 
in the SIP is operative under Federal law and is Federally enforceable.

B. What do the Requirements of Part 239, ``Portable Fuel Container 
Spillage Control'' Consist Of?

    On January 23, 2004 (69 FR 3237), EPA approved the previous version 
of Part 239 that is intended to reduce refueling emissions from 
equipment and engines in the off-road categories that are predominantly 
refueled with portable fuel containers. New York's recent revisions to 
Part 239 make certain provisions (i.e., applicability, performance 
standards, exemptions, test procedures and administrative procedures) 
consistent with Federal Rule, 40 CFR Part 59 Subpart F--Control of 
Evaporative Emissions From New and In-Use Portable Fuel Containers. 
Pursuant to Sections 110(l) and 193 of the Act, EPA is not authorized 
to approve a revision to the SIP unless the modification insures 
equivalent or greater emission reductions and the revision would not 
interfere with an applicable requirement concerning attainment and 
reasonable further progress as defined in title I of the Act or any 
other applicable requirement of the Act.
    In the event that the State adopts a less stringent rule and it is 
not approved into the SIP by EPA through a source-specific SIP 
mechanism, the rule in the SIP is operative under Federal law and is 
Federally enforceable. Part 239 also differs from 40 CFR Part 59 
Subpart F in that it establishes innovative product exemption 
provisions that allow for alternatives to complying with the 
performance standards specified in Part 239. If a manufacturer 
demonstrates by clear and convincing evidence that, due to the 
product's design, delivery system, or other factors, the use of the 
product will result in cumulative VOC emissions below the highest 
emitting representative spill-proof system or representative spill-
proof spout in its product category, the manufacturer may apply to the 
NYSDEC for an innovative product exemption in accordance with the 
criteria specified in Part 239-5.
    In addition, subpart 239-7 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 235 and Part 239 of Title 6 of the New York 
Codes, Rules and Regulations, entitled, ``Consumer Products'' and 
``Portable Fuel Container Spillage Control'', respectively, meet the 
SIP revision requirements of the Act with the following exceptions.
    The provisions related to innovative products exemptions in subpart 
239-5, variances in subpart 239-7 and alternate test methods in subpart 
239-8 do not explicitly require submission of an innovative product 
exemption, variance or alternative test method to EPA for approval into 
the SIP. Since the rule does not explicitly state that innovative 
product exemptions, variances or alternative test methods have to be 
submitted to EPA for approval in the SIP, there is the possibility that 
such exemptions, variances and alternatives will not be submitted for 
review and approval into the SIP and therefore will not, if approved, 
become Federally enforceable. Failure to submit such exemptions, 
variances or alternatives to EPA for review and approval can lead to 
sources not understanding that the original rule still applies and can 
be enforced by the United States. In order to be Federally enforceable, 
any exemption, variance or alternative test method approved by NYSDEC 
must be approved by EPA into the SIP.
    While Part 239 may create some uncertainty regarding which 
provisions in subpart 239-5, 239-7 or 239-8 are enforceable, EPA has 
determined that there is no certainty that sources will use these 
provisions in the future. Therefore, EPA is proposing to approve the 
proposed revisions to Part 239 as part of the New York SIP with the 
understanding that the specific application of provisions associated 
with innovative product exemptions, variances, and alternate test 
methods, pursuant to Part 239, must be submitted to EPA as SIP 
revisions.

IV. Statutory and Executive Order Reviews

    Under the 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 Act. Accordingly, this 
proposed action merely approves State law as meeting Federal 
requirements and does

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not impose additional requirements beyond those imposed by State law. 
For that reason, this proposed 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 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
Nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: February 18, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-4306 Filed 3-1-10; 8:45 am]
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