[Federal Register Volume 87, Number 154 (Thursday, August 11, 2022)]
[Proposed Rules]
[Pages 49570-49573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16975]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2021-0483; FRL-9158-01-R2]


Approval of Air Quality Implementation Plans; New York; Revision 
to 6 NYCRR Part 205, Architectural and Industrial Maintenance Coatings

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 
the purposes of implementing control of air pollution for volatile 
organic compounds (VOC). The proposed SIP revision consists of 
amendments to regulations outlined within New York's Codes, Rules, and 
Regulations that implement control measures for architectural and 
industrial maintenance coatings. The intended effect of this action is 
to approve control strategies which will result in VOC emission 
reductions that will help attain and maintain the national ambient air 
quality standards for ozone. These actions are being taken in 
accordance with the requirements of the Clean Air Act.

DATES: Written comments must be received on or before September 12, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-0483, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not

[[Page 49571]]

consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Linda Longo, at (212) 637-3356, or by 
email at [email protected], or by mail at Environmental Protection 
Agency, Region 2, 290 Broadway, New York, New York 10007-1866.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. What was included in New York's submissions for part 205?
III. What is the EPA's evaluation of part 205?
IV. What is the EPA's evaluation of part 200?
V. The EPA's Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

Ozone Requirements

    In March 2008, the EPA revised the health-based National Ambient 
Air Quality Standard (NAAQS) for ozone to 0.075 parts per million (ppm) 
averaged over an 8-hour time frame (2008 8-hour Ozone Standard). See 73 
FR 16435 (March 27, 2008). In October 2015, the EPA revised this 
standard to 0.070 ppm averaged over an 8-hour time frame (2015 8-hour 
Ozone Standard). See 80 FR 65291 (October 26, 2015).
    On May 21, 2012, the EPA finalized its attainment/nonattainment 
designations for areas across the country with respect to the 2008 8-
hour Ozone Standard, which became effective on July 20, 2012. See 77 FR 
30160 (May 21, 2012). The New York-Northern New Jersey-Long Island-
Connecticut metropolitan area (NYMA) was designated by the EPA as a 
``marginal'' nonattainment area for the 2008 ozone NAAQS.\1\ In 2016, 
the EPA determined that the NYMA did not attain the 2008 ozone standard 
by the July 20, 2015 attainment date and was reclassified from a 
``marginal'' to a ``moderate'' nonattainment area. See 81 FR 26697 (May 
4, 2016). SIPs for ``moderate'' nonattainment areas were due by January 
1, 2017. See id. On April 30, 2018, the EPA finalized its attainment/
nonattainment designations for most areas across the country as to the 
2015 8-hour Ozone Standard, in which the NYMA was designated by the EPA 
as a ``moderate'' nonattainment area. See 83 FR 25776 (June 4, 2018). 
On September 23, 2019, the EPA reclassified the NYMA to ``serious'' 
nonattainment as to the 2008 8-hour Ozone Standard. See 84 FR 44238 
(August 23, 2019). The serious area attainment date and the deadline 
for Reasonably Available Control Technology measures not tied to 
attainment was July 20, 2021. See id.
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    \1\ The New York portion of the NYMA is composed of the five 
boroughs of New York City and the surrounding counties of Nassau, 
Suffolk, Westchester, Rockland, and the Shinnecock Indian Nation. 
See 40 CFR 81.333.
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II. What was included in New York's submission for part 205?

    On October 15, 2020, New York submitted a proposed SIP revision to 
title 6 of the New York Codes, Rules, and Regulations (6 NYCRR), part 
205, ``Architectural and Industrial Maintenance Coatings.'' New York 
also submitted attendant revisions to Part 200, Section 200.9, 
``General Provisions, Reference materials.'' The State's submission is 
complete. The proposed rulemaking applies statewide to any person who 
supplies, sells, offers for sale, or manufacturers any architectural 
coating for use within the State of New York, and any person who 
applies or solicits the application of any architectural coating within 
the State of New York.

III. What is the EPA's evaluation of part 205?

    The most recent federally approved revision of 6 NYCRR part 205, 
``Architectural and Industrial Maintenance coatings'' regulations was 
published in the Federal Register on March 8, 2012, as an attendant 
revision to avoid redundancy and conflict of the asphalt paving and 
coating provisions included in the new part 241, ``Asphalt Pavement and 
Asphalt Based Surface Coating.'' See 70 FR 13974 (March 8, 2012). The 
current proposed rulemaking submitted by the State on October 15, 2020, 
is intended to be consistent with the Ozone Transport Region (OTR) 
Model Rule for Architectural and Industrial Maintenance (AIM) coatings 
(OTR Model Rule for AIM) \2\ by reducing the VOC limit for 12 coating 
categories, creating VOC limits for 12 additional coating categories, 
eliminating 15 coating categories without relaxation of the regulation, 
and narrowing the exemption previously provided to coatings sold in 
one-liter (or quart-size) containers, referred to the as the ``quart 
exemption.'' See ``Revisions to the quart exemption for bundling of 
quart-sized containers,'' below, for further details.
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    \2\ The EPA provides the OTC Model Rule for AIM in the docket.
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OTC Model Rule and Neighboring States

    The OTC Model Rule for AIM was developed by the Ozone Transport 
Commission through stakeholder involvement to address the needs of 
ozone transport states. The OTR Model Rule for AIM was amended in 2011 
to address VOC content limits based on the California Air Resource 
Board's (CARB) Suggested Control Measures (SCM) for architectural 
coatings. The EPA reviewed New York State's October 15, 2020, SIP 
submission and confirms its consistency with the OTR Model Rule for 
AIM. Furthermore, neighboring states Connecticut (CT), New Jersey (NJ), 
and Pennsylvania (PA), also followed the OTC Model Rule for AIM and 
have equivalent provisions, VOC limits, and measures. For example, the 
NJ, PA, and CT floor coating category content limit is 250 grams of 
VOC/liter, compared to the New York State Department of Environmental 
Law and Conservation's (NYSDEC) floor coatings category of 100 grams of 
VOC/liter; NJ's exemptions apply to contact adhesives in containers 
with a net volume of one gallon or less, compared to New York's 
retention of the one-liter-or-less exemption except for floor coatings, 
along with PA and CT.

Reduced VOC Limits

    The proposed revision includes reduced VOC limits on the following 
coating categories: (1) Flat coatings, whose limit was reduced from 100 
to 50 grams of VOC/liter; (2) non-flat coatings, whose limit was 
reduced from 150 to 100 grams of VOC/liter; (3) non-flat high gloss 
coatings, whose limit was reduced from 250 to 150 grams of VOC/liter; 
(4) bituminous roof coatings, whose limit was reduced from 300 to 270 
grams of VOC/liter; (5) dry fog coatings, whose limit was reduced from 
400 to 150 grams of VOC/liter; (6) floor coatings, whose limit was 
reduced from 250 to 100 grams of VOC/liter; (7) industrial maintenance 
coatings, whose limit was reduced from 340 to 250 grams of VOC/liter; 
(8) mastic texture coatings, whose limit was reduced from 300 to 100 
grams of VOC/liter; (9) primers, sealers, and undercoaters, whose limit 
was reduced from 200 to 100 grams of VOC/liter; (10) rust preventative 
coatings, whose limit was reduced from 400 to 250 grams of VOC/liter; 
(11) specialty primers, sealers, and undercoaters, whose limit was 
reduced from 350 to 100 grams of VOC/liter; and (12) traffic marking 
coatings, whose limit was reduced from 150 to 100 grams of VOC/liter.

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Creation of New Coating Categories

    The proposed revision includes the following new coating 
categories: (1) aluminum roof coating, with a limit of 450 grams of 
VOC/liter; (2) basement specialty coating, with a limit of 400 grams of 
VOC/liter; (3) concrete/masonry sealer, with a limit of 100 grams of 
VOC/liter; (4) conjugated oil varnish, with a limit of 450 grams of 
VOC/liter; (5) driveway sealers, with a limit of 50 grams of VOC/liter; 
(6) reactive penetrating sealer, with a limit of 350 grams of VOC/
liter; (7) reactive penetrating carbonate stone sealer, with a limit of 
500 grams of VOC/liter; (8) stone consolidate, with a limit of 450 
grams of VOC/liter; (9) tub and tile refinish, with a limit of 420 
grams of VOC/liter; (10) waterproofing membranes, with a limit of 250 
grams of VOC/liter; (11) wood coatings, with a limit of 275 grams of 
VOC/liter; and (12) Zinc-Rich Primer, with a limit of 340 grams of VOC/
liter.

Elimination of Coating Categories

    The proposed revision eliminates 15 coating categories without 
relaxation of the regulation because the VOC limit associated with the 
eliminated category is being absorbed by either a new or existing 
coating category: (1) antenna coatings (absorbed by industrial 
maintenance); (2) antifouling coatings (absorbed by industrial 
maintenance); (3) clear wood coatings/clear brushing lacquers (absorbed 
by wood coatings); (4) clear wood coatings/lacquers, including lacquer 
sanding sealers (absorbed by wood coatings); (5) clear wood coatings/
sanding sealers, other than lacquer sanding sealers (absorbed by wood 
coatings); (6) clear wood coatings/varnishes (absorbed by wood 
coatings); (7) fire-retardant coatings/clear (absorbed by industrial 
maintenance); (8) fire-retardant coatings/opaque (absorbed by 
industrial maintenance); (9) flow coatings (absorbed by industrial 
maintenance); (10) quick-dry enamels (absorbed by flat, non-flat, and 
non-flat high gloss); (11) quick-dry primers, sealers, and undercoaters 
(absorbed by specialty primers, sealers, and undercoaters); (12) 
swimming pool repair and maintenance coatings (absorbed by swimming 
pool coatings); (13) temperature-indicator safety coatings (absorbed by 
industrial maintenance and concrete masonry sealer); (14) waterproofing 
sealers (absorbed by waterproofing membrane and basement specialty); 
and (15) waterproofing concrete/masonry sealers (absorbed by concrete 
masonry sealer and waterproofing membrane).

Revisions to the Quart Exemption for Bundling of Quart-Sized Containers

    In the revised proposed part 205.1(b)(3), singular quart-sized 
containers continue to be exempt, but applicability of the regulation 
is expanded to include quart-sized containers that are packaged 
together in a bundle. Under part 205.1(b)(3)(i), the bundling of 
coating kits is addressed. The purpose of a coating kit is to be sold 
and marketed as a unit, which implies that multiple containers with a 
volume of one liter or less will be combined into one container; as 
such, the bundling of quart-sized containers for the purpose of a 
coating kit is not exempt and will need to comply with part 205. 
Accordingly, the proposed regulation addresses the concern that 
manufacturers and suppliers may circumvent the VOC limits in part 205 
by selling the coatings in bundles of quart-sized containers inside a 
larger pail. The requirements for bundling quart-sized containers are 
expanded under part 205.1(b)(3)(i-iii), as follows: (1) under subpart 
(i), coating kits that typically are composed of multiple small 
containers, but are marketed as a single coating kit, must comply with 
part 205; (2) under subpart (ii), the use of a container that is not 
intended to hold a coating product is not allowed; and (3) under 
subpart (iii), floor coatings can be sold in any sized container and 
must comply with part 205.\3\ Part 205 contains a few examples where 
bundling is permitted, as follows: (1) shipping pallets containing 
multiple quart-sized containers that are not sold as one unit; (2) 
multiple quart-sized containers that are shipped together and then 
placed on the retail shelf to be sold separately; (3) instances in 
which the quart-sized containers are bundled into a unified package 
that is marketed as a coating kit and sold and used as a coating kit. 
Part 205 contains at least one example where bundling is not allowed, 
as follows: packaging coating (e.g., paint) in small disposable juice-
like containers and placing them inside a larger pail to be sold as one 
unit. This scenario is specifically addressed by part 205.1(b)(3)(ii), 
``packaging from which the coating cannot be applied,'' because juice-
like containers are not designed to hold coatings, since it is 
difficult, if not impossible, to dip a paint brush into the container. 
Thus, excluding products contained in ``packaging from which the 
coating cannot be applied'' is intended to address potential 
circumvention of the regulation, which was raised as a concern in the 
public comments.
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    \3\ Floor coatings are commonly sold in quart-sized (one liter 
or less) containers. Any sized floor coating container must adhere 
to the VOC content limits under part 205.3(a), including all other 
part 205 requirements.
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EPA Review of State's Public Comments

    The State conducted public outreach and worked with AIM 
stakeholders for over two years prior to the part 205 proposed 
rulemaking amendment. The leading public concerns covered the sell-
through provisions and clarification on bundling of quart-sized 
containers. The sell-through provisions are in place for part 205 to 
help minimize the potential impact on small businesses and allow 
manufacturers to sell products compliant with the current standard 
through May 1, 2023. Sell-through of AIM coatings refers to a coating 
that was manufactured prior to the effective date specified for that 
coating category and may be sold, supplied, or offered for sale until 
May 1, 2023, so long as the coating complies with standards in effect 
at the time the coating was manufactured. The State extended the sell-
through date of AIM coatings to May 1, 2023, as recommended by 
commenters, to allow for the sell-through of AIM products for two years 
and four months from the compliance date for the revised VOC content 
limits under part 205.3(a). The AIM sell-through provision will also 
help minimize the environmental and economic impact of disposing 
potentially usable products on the shelves sooner than they may need to 
be disposed of if not sold. Regarding the concern around bundling of 
quart-sized containers, see above section titled, ``Revisions to the 
quart exemption for bundling of quart-sized containers'' for a complete 
explanation. The EPA reviewed the public comments and is satisfied with 
the State's responses thereto.

IV. What is EPA's evaluation of subpart 200?

    The current proposed rulemaking includes attendant revisions to 6 
NYCRR part 200, Subpart 200.9, ``General Provisions,'' Table 1, 
``Referenced material,'' which include the American Society for Testing 
Materials procedures, the South Coast Air Quality Management District 
methods, the Bay Area Air Quality Management District method, and other 
updated references to part 205. The EPA is satisfied that the revisions 
to section 200.9 are appropriate.

V. The EPA's Proposed Action

    The EPA has evaluated New York's proposed submittal for consistency 
with the Clean Air Act, the EPA regulations,

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and policy. The EPA is proposing to approve revisions to the New York 
State Implementation Plan (SIP) to include amendment to 6 NYCRR part 
205, ``Architectural and Industrial Maintenance Coatings,'' and 
attendant revisions to 6 NYCRR part 200, ``General Provisions,'' with a 
state effective date of January 11, 2020.\4\ Specifically, this 
rulemaking proposes to reduce the VOC limit for 12 coating categories, 
create VOC limits for 12 additional coating categories, eliminate 15 
coating categories, and eliminate the quart exemption and bundling of 
small containers.
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    \4\ Although the NYSDEC exercised its discretion not to enforce 
the proposed revision of the rule until July 1, 2022, due to the 
Governor's emergency declaration as a result of the COVID-19 
pandemic, New York has confirmed that the enforcement discretion 
period concluded, and the rule is being enforced as of July 1, 2022. 
See the NYSDEC enforcement discretion bulletins, dated December 30, 
2020, and December 23, 2021, as well as email correspondence from 
the NYSDEC's Robert D. Bielawa, dated July 8, 2022, in the docket.
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    The proposed revisions will help the State to comply with federal 
requirements pertaining to attainment and maintenance of the ozone 
NAAQS. The EPA is soliciting public comments on the issues discussed in 
this document. These comments will be considered before taking final 
action.

VI. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference revisions to 6 NYCRR part 205, ``Architectural and Industrial 
Maintenance coatings'' and 6 NYCRR part 200, subpart 200.9 ``General 
Provisions,'' Table 1, ``Referenced Materials,'' as described in 
paragraphs III through IV of this preamble. The EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 2 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act (CAA), the Administrator is required to 
approve a SIP submission that complies with the provisions of the CAA 
and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves state law as meeting federal requirements 
and does 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 this action does not involve technical standards; and
     Does not provide the 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 proposed rulemaking, addressing New York's 6 
NYCRR part 205, ``Architectural and Industrial Maintenance coatings,'' 
is not approved to apply on any Indian reservation land or in any other 
area where the EPA or an Indian tribe has demonstrated that a tribe has 
jurisdiction. In those areas of Indian country, the proposed rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2022-16975 Filed 8-10-22; 8:45 am]
BILLING CODE 6560-50-P