Approval and Promulgation of Implementation Plans; Revision to the New York State Implementation Plan for Ozone

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 127; SIPTRAX NY4-2-6503, FRL-5004-7]

Approval and Promulgation of Implementation Plans; Revision to

the New York State Implementation Plan for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is announcing the limited

approval of a request by the State of New York to revise its State

Implementation Plan (SIP) for ozone related to the control of volatile

organic compound emissions from architectural coatings. EPA is also

finding that the State has partially met a commitment made in its 1982

ozone and carbon monoxide SIP for the New York City Metropolitan Area

to regulate architectural coatings. This revision deleted part 205

(1979 version) ``Photochemically Reactive Solvents and Organic Solvents

from Certain Processes-New York City Metropolitan Area'' and added part

205 ``Architectural Surface Coatings.'' This regulation will result in

additional reductions in emissions of volatile organic compounds which

will help to attain the national ambient air quality standard for

ozone.

EFFECTIVE DATE: This action will be effective September 6, 1994.

ADDRESSES: Copies of the State submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

26 Federal Plaza, Room 1034A, New York, New York 10278.

New York State Department of Environmental Conservation, Division of

Air Resources, 50 Wolf Road, Albany, New York 12233.

Environmental Protection Agency, Air and Radiation Docket and

Information Center (MC 6102), 401 M Street SW., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs

Branch, Environmental Protection Agency, 26 Federal Plaza, Room 1034A,

New York, New York 10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION: On July 27, 1993 (58 FR 40107) the

Environmental Protection Agency (EPA) proposed limited approval of a

request by the State of New York to revise its State Implementation

Plan (SIP) for ozone. This revision deleted part 205 (1979 version)

``Photochemically Reactive Solvents and Organic Solvents from Certain

Processes-New York City Metropolitan Area'' and added new part 205

``Architectural Surface Coatings,'' effective September 15, 1988 to

Title 6 of the New York Code of Rules and Regulations. EPA also

proposed finding that the State has partially met a commitment made in

its 1982 ozone and carbon monoxide SIP for the New York City

Metropolitan Area (NYCMA) to regulate architectural coatings.

New part 205 provides for the regulation of architectural surface

coatings, sold, offered for sale, or used in the NYCMA. Architectural

surface coatings applied to stationary structures, buildings, houses,

mobile homes, pavement or curbs are regulated by part 205. These

coatings are not applied in a factory or manufacturing operation. The

regulation requires any architectural coating manufactured after July

1, 1989 that is to be sold, offered for sale or used in the NYCMA to

meet the designated volatile organic compound (VOC) content limitations

in part 205.

Paint manufacturers must include on the container the VOC content

limitations, date of manufacture or date code, along with any

instructions concerning thinning. Compliance with part 205 can be

determined visually by checking the paint containers and by taking

samples of the paint and calculating the volatile content of the

coating and comparing it with the limit in the regulation. In some

instances it is necessary to measure certain coating parameters. The

EPA recommended test method for determining these parameters is EPA

Reference Method 24 (40 CFR part 60 Appendix A). Part 205 inadvertently

omitted this reference which New York uses in performing similar

testing for other regulations. Therefore, EPA cannot fully approve the

regulation. However, because EPA believes that the regulation

strengthens the SIP by providing for additional reductions of VOCs, EPA

is granting a limited approval to the regulation.

EPA also finds that the State has partially fulfilled its

commitment in the SIP to adopt an architectural coatings control

measure (contained in part 205). Adoption of a specific test procedure,

as discussed above, is necessary to completely fulfill this commitment.

The basis for EPA's limited approval is further explained in the

proposed rulemaking on July 27, 1993 (58 FR 40107). In that proposed

rulemaking, EPA asked for comments on its proposed action. EPA received

one comment, from the Consumer Policy Institute (CPI).

CPI raises three issues in its comments: the timeliness of New

York's submission, the difference between the emission reductions New

York committed to and the emission reductions actually obtained, and

whether New York is enforcing the regulation.

First, CPI notes that New York has failed to meet the commitment

made in its 1982 SIP in a timely manner, and questions whether New York

will further ``slip'' in meeting other SIP requirements.

New York's 1982 SIP committed to develop and adopt an architectural

regulation by January, 1986. New York did not meet this date for a

variety of reasons. The Clean Air Act, as revised in 1977, provided

limited remedies for a state which failed to meet Act and SIP

requirements, but these were sufficient to result in New York adopting

part 205 on August 15, 1988. The amendments of 1990 substantially

strengthen EPA's enforcement abilities by providing specific

procedures, time frames for SIP submittals and sanctions should a state

fail to submit or implement their SIPs. The sanctions which the Act

mandates are: restrictions on new growth of industries which generate

air pollutants and a loss of federal highway funds. EPA believes these

new strengthened procedures and sanctions will induce the states to

fulfill their obligations.

Second, CPI notes that New York committed to obtaining 11,682 tons

of reductions in VOCs in its 1982 SIP, yet New York now estimates that

part 205 will only result in emission reductions of 3,000 tons per

year. CPI questions how New York will meet this commitment for

equivalent tonnage reductions in VOCs.

This comment raises concerns regarding the level of controls that

have been required and the ability of New York to demonstrate

attainment (i.e., rectify the shortfall). The Clean Air Act addresses

both of these concerns. The Act uses a fundamental concept that sources

should apply reasonably available control technology (RACT), as defined

in control techniques guidelines (CTGs) or as determined by a state

through a specific technical and economic review of the industry. As

EPA explained in its proposed action, New York's original emission

reduction was based on 1975 data which New York believes overestimated

the amount of solvent based coatings used in the NYCMA, and on which

the projected emission reductions were based. The present emission

reduction estimate reflects current coating usage and solvent content

which EPA believes is more accurate. EPA also notes that New York has

regulated all the high volume coatings as well as most of the lower

usage coatings that the original commitment intended. In addition, EPA

has found that New York's VOC limitations are consistent with

regulations of the limited number of states that have also regulated

these coatings. Furthermore, section 183(e) of the Act requires EPA to

regulate consumer products, which include architectural coatings. EPA

has a major rule development effort underway to develop a national

architectural coatings regulation that will provide more extensive and

current data on coating content and usage. Once this data is available,

New York will be able to reevaluate its rule to determine if additional

reductions are achievable.

In terms of New York's ability to reach attainment, Congress, in

recognizing that many states, including New York were having problems

solving their air pollution problems, set forth a procedure for states

to follow in the Act as amended in 1990. This procedure consists of

requirements to develop accurate current emission inventories that can

be used in selecting control strategies, to adopt specific control

measures, to develop reasonable further progress plans, and to develop

any additional control measures needed to attain the standard by the

specified dates. These requirements will address any shortfalls that

remain from the previously approved SIP and insure that states, like

New York, attain the ozone standard in an expeditious manner.

Third, CPI raises its concern that, while New York State has

adopted the regulation, it may not actually be enforcing it.

Part 205 contains labeling requirements with which manufacturers of

architectural coatings must comply. This provides a quick method of

screening the coatings being sold. In addition, after the regulation

became effective, New York State performed random checks of retail

stores to ensure that only compliant coatings were being sold. New York

has continued to take action to ensure that retailers and manufacturers

are complying with part 205.

In addition, by incorporating this regulation into New York's SIP,

it becomes federally enforceable. Thus EPA has the authority to take

enforcement action should EPA determine there is any lack of

compliance.

Conclusion

The Agency has reviewed New York's request for revision of the

federally-approved SIP for conformance with the provisions of the 1990

Amendments enacted on November 15, 1990. The Agency has determined that

this action conforms with those requirements irrespective of the fact

that the submittal preceded the date of enactment. The revision

incorporates a control program consistent to the one committed to in

the 1982 SIP and results in emission reductions. Therefore, New York's

submittal meets the requirements of section 193. Beyond that, the

revision will not interfere with the SIP's ability to meet the new

Act's requirements, and thus it meets the test in section 110(i) of the

Act.

Because of a missing test method, EPA cannot grant full approval to

this regulation under section 110(k)(3). Because the submitted

regulation is not composed of separable parts which meet all the

applicable requirements of the Act, EPA cannot grant partial approval

for the rule under section 110(k)(3). However, EPA may grant limited

approval of the submittal under section 110(k)(3) in light of EPA's

authority pursuant to section 301(a) to adopt regulations necessary to

further air quality by strengthening the SIP.

EPA also finds that the State has partially fulfilled its

commitment in the SIP to adopt an architectural coatings control

measure (contained in part 205). Adoption of the missing test

procedure, as discussed above, is necessary to fulfill this commitment

in whole.

Section 183(e)(3) of the Clean Air Act requires that EPA develop

either national regulations or CTG for consumer and commercial

products, which may include architectural coatings. If EPA promulgates

a federal regulation for architectural coatings under this authority,

then sources covered by New York's part 205 would also be required to

comply with the federal regulation. New York does retain the right to

promulgate regulations that are more stringent than either a federal

regulation or a CTG.

Nothing in this rule should be construed as permitting, allowing or

establishing a precedent for any future request for revision to any

SIP. Each request for revision to any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors, and in relation to relevant statutory and regulatory

requirements.

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

Under section 307(b)(1) of the Act, petitions for judicial review

of this rule must be filed in the United States Court of Appeals for

the appropriate circuit within 60 days from date of publication. Filing

a petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed and shall not postpone the effectiveness of such

rule or action. This rule may not be challenged later in proceedings to

enforce its requirements. (See 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: June 13, 1994.

William J. Muszynski,

Deputy Regional Administrator.

Title 40, chapter I, part 52, Code of Federal Regulations is

amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(87) to

read as follows:

Sec. 52.1670 Identification of plan.

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(c) * * *

* * * * *

(87) A revision to the New York State Implementation Plan (SIP) for

attainment and maintenance of the ozone standard dated October 14,

1988, submitted by the New York State Department of Environmental

Conservation.

(i) Incorporation by reference:

(A) New part 205 of title 6 of the New York Code of Rules and

Regulations of the State of New York, entitled ``Architectural Surface

Coatings,'' effective on September 15, 1988.

(ii) Additional material.

(A) December 5, 1988 letter from Thomas Allen, to Conrad Simon,

EPA, requesting EPA approval of the amendments to part 205.

3. Section 52.1679 is amended by revising the entry for part 205 in

the table to read as follows:

Sec. 52.1679 EPA-approved New York State regulations.

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State

New York State regulation effective date Latest EPA approval date Comments

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Part 205 ``Architectural 9/15/88 8/4/94, [insert citation of Until EPA approves State

Surface Coatings''. this notice]. adopted coating test method,

EPA will use 40 CFR part 60,

App. B, Method 24.

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[FR Doc. 94-18957 Filed 8-3-94; 8:45 am]

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