Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No.129, NY10-1-6212, FRL-5210-1]

Approval and Promulgation of Implementation Plans; New York State

Implementation Plan Revision

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to approve a

revision to the New York State Implementation Plan (SIP) related to the

control of volatile organic compounds. The SIP revision consists of

amendments to Part 200, ``General Provisions,'' Part 201, ``Permits and

Certificates,'' Part 228, ``Surface Coating Processes,'' Part 229,

``Petroleum and Volatile Organic Liquid Storage,'' Part 233,

``Pharmaceutical and Cosmetic Manufacturing Processes,'' and Part 234,

``Graphic Arts.'' The amendments extend reasonably available control

technology rules to enlarged nonattainment areas and to areas of the

Northeast Ozone Transport Region as required by the Clean Air Act. In

addition, the amendments to Part 228 correct deficiencies in New York's

existing SIP, as required by the Clean Air Act.

DATES: Comments must be received on or before June 23, 1995.

ADDRESSES: All comments should be addressed to: William S. Baker, Chief

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

290 Broadway, New York, New York 10007-1866.

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, 290 Broadway,

20th Floor, New York, New York 10007-1866.

New York State Department of Environmental Conservation, Division

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

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, State Implementation

Plan Section, Air Programs Branch, Environmental Protection Agency, 290

Broadway, 20th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Background

The Clean Air Act (Act) as amended in 1990 sets forth a number of

requirements that states with areas designated as nonattainment for

ozone must satisfy and a timetable for satisfying these requirements.

These requirements are further explained in the General Preamble to the

Act (57 FR 13513), which was published on April 16, 1992. The specific

requirements vary depending upon the severity of the ozone problem. One

of the requirements, and the subject of this proposed rulemaking, is

for states to adopt reasonably available control technology (RACT)

rules for various volatile organic compound (VOC) [[Page 27465]] source

categories. Section 182 sets forth two separate RACT requirements for

ozone nonattainment areas. The first requirement, contained in Section

182(a)(2)(A) and referred to as RACT fix-up, requires the correction of

RACT rules for which EPA identified deficiencies before the Act was

amended in 1990. The second requirement, set forth in Section

182(b)(2), applies to moderate (and above) ozone nonattainment areas.

The goal of this latter requirement is to ensure that areas not

required previously to adopt RACT for some or all of the major

stationary sources, adopt rules and ``catch-up'' to those areas subject

to more stringent RACT requirements. In addition, the RACT catch-up

provision requires certain areas to apply RACT to smaller sources

because the definition of major source has been changed to include

smaller sources.

The State has previously adopted regulations addressing some of

these requirements and EPA has approved many of these revisions to the

New York State Implementation Plan (SIP). On March 8, 1993, New York

submitted a SIP revision addressing more of these requirements. This

SIP revision is the subject of this proposed action.

In New York the applicability of these requirements varies

depending on whether the source category is in an area previously

designated nonattainment (New York City and the counties of Nassau,

Suffolk, Westchester and Rockland), a nonattainment area where the

boundaries have been extended by the Act (the towns of Blooming Grove,

Chester, Highlands, Monroe, Tuxedo, Warwick and Woodbury in Orange

County), or an area within the Northeast Ozone Transport Region (the

entire State). There are also areas in New York which are designated as

marginal nonattainment (parts or all of the counties of Albany, Greene,

Montgomery, Rensselaer, Saratoga, Schenectady, Erie, Niagara, Essex,

and Jefferson.) There are no RACT requirements for these areas because

of their marginal designation, but these areas are subject to the RACT

requirements for an area within the Northeast Ozone Transport Region.

On October 6, 1994, Dutchess and Putnam counties and portions of Orange

County were reclassified as moderate nonattainment (See section ahead

entitled ``Requirements for nonattainment areas with expanded

boundaries'').

Requirements for Previously Designated Nonattainment Areas

The New York portion of the ``New Jersey, New York, Connecticut

interstate metropolitan air quality control region'' (composed of New

York City and the counties of Nassau, Suffolk, Westchester and

Rockland) was previously designated nonattainment for ozone. Under the

amended Act, EPA included these areas as part of the New York-Northern

New Jersey-Long Island Nonattainment Area and classified it as severe

nonattainment for ozone.

Section 182(a)(2)(A) of the Act requires states with ozone

nonattainment areas classified as marginal or above, to fix their

deficient RACT rules for ozone precursors in accordance with EPA's pre-

enactment guidance by May 15, 1991. New York made SIP submittals

addressing this requirement and EPA approved this submittal with the

exception of two remaining deficiencies for the New York portion of the

New York-Northern New Jersey-Long Island Nonattainment Area on July 27,

1993 (58 FR 40057 and 58 FR 40062). New York's March 8, 1993 SIP

revision corrects these two remaining deficiencies as described later

in this proposal.

Section 182(b)(2) of the Act requires states with ozone

nonattainment areas classified as moderate or above to develop RACT for

(1) all pre-enactment Control Technology Guideline (CTG) source

categories; (2) all sources subject to post-enactment CTGs; and (3) all

other major sources in those areas.

With regard to the first requirement, the pre-amended Act required

ozone nonattainment areas to adopt RACT rules for certain sources of

VOC emissions. EPA issued three sets of CTGs, establishing a

``presumptive norm'' for RACT for various categories of VOC sources.

The three sets of CTGs were (1) Group I--issued before January 1978 (15

CTGs); (2) Group II--issued in 1978 (9 CTGs); and (3) Group III--issued

in the early 1980's (5 CTGs). New York was required to adopt RACT rules

for all of the CTG sources. New York had already developed RACT rules

for the pre-enactment CTG sources. Therefore nothing further is

required to fulfill this portion of the requirement.

With regard to the second requirement, New York has followed the

process set forth by EPA in its CTG document issued as Appendix B to

the General Preamble. In Appendix B, EPA provides that states could

delay submission of non-CTG rules for those sources the state

anticipates will be covered by one of EPA's 11 proposed post-enactment

CTGs. Section 183(a) requires EPA to issue these 11 CTGs by November

15, 1993 and, when each is issued to establish a schedule for state

adoption. Therefore, New York would be required to adopt by that

schedule. Should EPA not issue a CTG by November 15, 1994, then New

York would have to adopt RACT for those major source categories by

November 15, 1994.

On November 15, 1993, EPA published a CTG for reactor processes and

distillation operations in the synthetic organic chemical manufacturing

industry. On March 23, 1994, in 56 FR 13717, EPA published an addendum

to that CTG. In that addendum EPA explained that states are required to

adopt RACT rules for this CTG category by March 23, 1995 and that

sources must be in compliance with these rules no later than November

15, 1996. EPA did not issue any additional CTGs by the November 15,

1993 deadline. Therefore, in order to meet the Appendix B requirement,

New York must adopt RACT rules for reactor processes and distillation

operations in the synthetic organic chemical manufacturing industry by

March 23, 1995. In addition, New York must adopt RACT rules for all

major sources which would be subject to other post-enactment CTG

categories by November 15, 1994.

With regard to the third requirement, Section 182(d) of the Act

defines major sources in severe ozone nonattainment areas as sources

capable of emitting 25 tons or more of VOC per year. Therefore, New

York was required to adopt RACT rules for all sources that exceed this

25 ton per year cut-off by November 15, 1992.

New York had already developed RACT rules for the pre-enactment CTGs in

this area. These rules all meet the 25 ton per year cutoff or a lower

cutoff specified by the applicable CTG, therefore, nothing further is

needed to fulfill this portion of the requirement for pre-enactment CTG

sources. New York's March 8, 1993 submittal is intended to address some

of the RACT requirements for non-CTG major sources including: volatile

organic liquid storage (other than gasoline), marine tanker loading and

pharmaceutical manufacturing processes (other than synthesized

processes). These regulations are addressed in this proposal. In a

January 15, 1992 letter, EPA notified the Governor of New York that it

was starting the sanction process required by Section 179(a) of the

Act,\1\ because of [[Page 27466]] New York's failure to completely

address the requirement to develop RACT regulations for all non-CTG

major sources. On July 8, 1994, New York submitted the necessary

regulations which EPA found complete on July 13, 1994 thereby stopping

the sanction process. These regulations will be the subject of a future

Federal Register notice.

\1\ Section 179(a) of the Act requires that EPA impose sanctions

18 months after finding: that a state has failed to submit a SIP or

an element of a SIP that is required by the Act; that a State has

submitted a SIP or an element of a SIP that is incomplete; or that

EPA disapproves a SIP submission for a nonattainment area.

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Requirements for Nonattainment Areas With Expanded Boundaries

On November 6, 1991 (56 FR 56694), EPA extended the boundaries of

the New York-Northern New Jersey-Long Island Nonattainment Area to

include Putnam and Orange counties. New York, however, requested time

to study the boundaries and classification under Section

187(d)(4)(A)(iv). Based on New York's study, EPA confirmed that the

southern part of Orange County (the towns of Blooming Grove, Chester,

Highlands, Monroe, Tuxedo, Warwick and Woodbury) should remain in the

New York-Northern New Jersey-Long Island Nonattainment Area with a

nonattainment classification of severe and that Putnam County should be

included in the Poughkeepsie Area with a nonattainment classification

of marginal. The northern portion of Orange County was classified as

attainment for ozone. Therefore, only the southern portion of Orange

County described previously was covered by the extended nonattainment

area boundary provisions.

The southern portion of Orange County was not subject to the

Section 182(a)(2)(A) RACT fix-up requirement. However, under Section

182(b)(2), the State was required to submit RACT rules for all sources

subject to a pre-enactment CTG or a post-enactment CTG and to submit

RACT rules for all other major VOC sources. For this area, a major

source is one that has the potential to emit greater than 25 tons per

year.

New York's March 8, 1993 SIP revision extended the applicability of

New York's RACT rules for sources covered by pre-enactment CTGs to the

towns in the southern portion of Orange County and it also adds control

requirements for some non-CTG RACT sources in this area. These

regulations are addressed in this proposal. As was explained earlier

for the previously designated portion of the New York-Northern New

Jersey-Long Island Nonattainment Area, the State needed to make

additional submissions with respect to non-CTG RACT rules. This was

also true for the expanded portion of the New York-Northern New Jersey-

Long Island Nonattainment Area. The State has now made the necessary

submissions which will be the subject of a future Federal Register

notice.

It should be noted that on October 6, 1994 (59 FR 50848), EPA

reclassified Dutchess, Putnam and the northern portion of Orange County

as moderate nonattainment for ozone. The new moderate classification

changes the requirements for these areas. However, since these areas

are in the Northeast Ozone Transport Region there will be a minimum of

changes needed to the regulations. The State should still review the

regulations to determine if administrative changes are needed.

Requirements for Areas in the Northeast Ozone Transport Region

Because ozone is a regional problem, Section 184(a) of the Act

included all of New York State in the Northeast Ozone Transport Region.

Section 184(b)(1)(B) requires areas that are part of the Ozone

Transport Region to implement RACT rules for VOC sources. This

requirement includes sources subject to pre-enactment CTGs, sources

subject to post-enactment CTGs, and all non-CTG sources with the

potential to emit more than 50 tons of VOCs per year.

New York's March 8, 1993, SIP revision extended the applicability

of New York's RACT rules for sources covered by pre-enactment CTGs

statewide and it also adds control requirements for some non-CTG RACT

sources. These regulations are addressed in this proposal. As was

explained earlier for the portions of New York which are designated as

severe, the State needed to make additional submissions with respect to

non-CTG RACT rules. This was also true for the remainder of the State.

The State has now made the necessary submissions which will be the

subject of a future Federal Register notice.

SIP Deficiencies

EPA has identified a number of deficiencies in New York's Ozone

SIP. New York made a number of submittals intending to address these

deficiencies but on October 16, 1991, EPA wrote to the Governor of New

York, informing him that New York had missed the May 15, 1991 deadline

to correct all of the RACT deficiencies that EPA had previously

identified. This initiated the sanction process required by Section

179(a) of the Act.

The specific problems that EPA identified were the failure to

develop a control measure regulating the detection and repair of

component leaks at synthetic organic chemical manufacturing industry

(SOCMI) facilities, an inadequate definition for VOC, and inadequate

emission limitations for certain surface coatings.

On January 8, 1992, New York submitted SIP revisions that addressed

the missing control measures for SOCMI facilities and the inadequate

definition of VOC. EPA approved this SIP revision on July 27, 1993 (58

FR 40057).

In its March 8, 1993, SIP revision, New York addressed the

remaining SIP deficiencies. EPA's April 9, 1993, determination that

this submittal was complete stopped the sanctions process initiated on

October 16, 1991. EPA's action on these rules is addressed in this

proposal.

State Submittals

On March 8, 1993, New York submitted to EPA a request to revise its

SIP. The revisions consisted of amendments to Part 200, ``General

Provisions,'' Part 201 ``Permits and Certificates,'' Part 228,

``Surface Coating Processes,'' Part 229 ``Petroleum and Volatile

Organic Liquid Storage and Transfer,'' Part 233, ``Pharmaceutical and

Cosmetic Manufacturing Processes,'' and Part 234, ``Graphic Arts'' of

Title 6 of the New York Code of Rules and Regulations. These

regulations were adopted on February 27, 1993, and became effective on

March 29, 1993. These regulations address, in part, the requirements of

the Clean Air Act explained previously. It should be noted that because

the specific requirements of the Act which New York must address vary

by the severity of the ozone problem in a specific area, the

applicability of New York's regulations also vary by area. A summary of

EPA's review and findings concerning these regulations follows. For a

more detailed analysis, see the technical support document which is

available at EPA's Region 2 office.

Part 200--General Provisions

A definition for ``Lower Orange County Metropolitan Area'' was

added to Part 200. The definition is consistent with EPA's current non-

attainment designation. In addition, Part 200 was updated to reflect

numbering changes made previously to other regulations dealing with

references to test methods. EPA proposes to fully approve Part 200.

Part 201--Permits and Certificates

EPA's past approval of Part 201 dates back to 1981 and the

regulation has been revised from time to time since then. Some of the

current revisions were [[Page 27467]] necessary to extend the

applicability of Part 201 to source categories which were previously

exempted from these requirements. Other changes were made which clarify

when a certificate to operate is required, when a certificate to

construct or operate can be transferred, and when a certificate to

operate ceases to be valid. On June 28, 1989 (54 FR 27274), EPA

provided guidance on what requirements a state operating permit program

must meet in order to part of a SIP. There are, however, certain

inconsistencies between Part 201 and EPA's guidance pertaining to

public participation procedures. EPA is in the process of preparing

additional guidance which may necessitate changes to state permit

programs similar to Part 201. EPA is proposing to approve the current

revisions to Part 201 because they are necessary for the efficient

administration of the expanded RACT regulations discussed later in this

proposal. EPA may in the near future notify New York that Part 201 must

be revised in order for Part 201 to remain in the SIP.

Part 228--Surface Coating Processes

New York has made two corrections to Part 228 to address existing

deficiencies in New York's RACT rules as required by Section

182(a)(2)(A) of the Act. These corrections involve removing an

exemption for high performance aluminum architectural coatings

previously contained in 228.3(a)(2)(v), and removing an emission limit

for clear coating of metal furniture previously contained in 228.8

table 1. Sources that were previously regulated under these provisions

must now meet the requirements for miscellaneous metal parts and metal

furniture respectively contained in the revised Part 228. EPA is

proposing to approve both of these changes. These changes correct the

last of the deficiencies in New York's SIP that were required to be

corrected under Section 182(a)(2)(A). New York's submission of a SIP

which met EPA's completeness criteria (40 CFR 51 Appendix V) stopped

the sanction process required by Section 179(a).

New York has also extended the applicability of sources regulated

by Part 228 to cover unregulated sources in upstate New York. Depending

upon the type of surface coating operation, the regulation applies to

sources with potential annual emissions of VOCs of either 10 tons or 50

tons. New York has required that certain surface coating operations

must be regulated at sources with potential annual emissions of 10 tons

to meet requirements set forth in CTGs for surface coating operations.

New York has regulated additional types of surface coating operations

at facilities with the potential annual emissions of 50 tons to satisfy

the Section 184(b) requirement to require RACT for all major sources of

VOCs. The applicability of Part 228 has also been extended to include

the seven towns in southern Orange County that have been added to the

New York-Northern New Jersey-Long Island Nonattainment area. The

applicability in southern Orange County extends to sources with

potential annual emissions of either 10 tons or 25 tons, depending upon

the type of surface coating source being regulated. Sources must comply

with these new requirements by June 1, 1995. This date is consistent

with the Act's requirement that sources required to be regulated be in

compliance with RACT requirements ``as expeditiously as practicable but

no later than May 31, 1995.''

New York has also removed from the rule, a facility wide reduction

plan (bubble) as a compliance option. Part 228 previously contained

generic provisions allowing for the mathematical combination of VOC

emissions or ``bubble'' provisions. These provisions were not

consistent with EPA's Emission Trading Policy (51 FR 43814, December 4,

1986) because New York had not attained the national ambient air

quality standard for ozone by December 31, 1987 and its SIP was found

to be substantially inadequate. New York decided to eliminate these

bubble provisions as a control option. This change makes Part 228

consistent with EPA's Emission Trading Policy.

In addition to making changes required by the Act, New York has

made a number of other changes to Part 228. New York added a low use

specialty coating exemption. To be exempted: each low-use specialty

coating to be exempted must be identified in the plants permit and

approved by the State prior to exemption, the plant-wide total exempted

coating usage cannot exceed 55 gallons from all coatings, the source

must maintain records on an as used basis for each exempted and non-

exempted coating, and the annual potential to emit of these exempt

coatings can not exceed five percent of the facility's total annual

potential to emit. Since this is consistent with EPA's August 10, 1990

guidance, EPA is proposing to approve it. New York also revised Part

228 to clarify that sources are allowed the option of either

reformulating coatings or using control equipment to reduce VOC

emissions. The control efficiency required is the lesser of the control

efficiency required to meet the coating limits required for

reformulated coatings calculated on a solids as applied basis or 85%.

EPA proposes to fully approve Part 228.

Part 229--Petroleum Liquid Storage Facilities

Control requirements were added for the transfer of gasoline at

gasoline bulk plants and loading terminals in upstate New York that

were previously uncontrolled. Control requirements were also added for

the storage of volatile organic liquids (other than gasoline) and

marine gasoline loading facilities statewide. Marine gasoline loading

facilities at all gasoline storage and distribution facilities which

have a daily throughput of greater than 20,000 gallons must be equipped

with and operating a vapor control system. The final compliance date

for newly regulated sources is June 1, 1995, except for marine vessel

loading facilities which must be in compliance by November 15, 1994.

EPA proposes to fully approve Part 229.

Part 233--Pharmaceutical Manufacturing Processes

The applicability of Part 233 was extended to control unregulated

sources in upstate New York. In addition, control requirements were

added for non-synthesized pharmaceutical manufacturing processes and

for cosmetic manufacturing processes statewide. These sources must

control emissions from: process equipment, air dryer and production

equipment exhausts, VOC transfers, centrifuges and filters, in process

tanks and leaks. All newly regulated sources must comply with these

requirements by June 1, 1995. New York has also removed facility wide

emission reduction plans (bubbles) as a compliance option. EPA proposes

to fully approve Part 233.

Part 234--Graphic Arts

The applicability of Part 234 was extended to control unregulated

sources in upstate New York that have potential annual emissions of 50

tons or more. In addition, the applicability has been extended to

sources located in the seven towns in southern Orange County that are

part of the New York-Northern New Jersey-Long Island Nonattainment

area. The applicability to these sources extends down to those with 25

tons or more of potential annual emissions. Statewide control

requirements were also added for screen printing operations and offset

lithographic printing operations. New York has also added provisions

regulating the handling, storage and disposal of VOCs. An opacity

limitation was also added [[Page 27468]] for all sources subject to

this regulation. EPA proposes to fully approve Part 234.

Conclusion

EPA is proposing full approval of Parts 200, 201, 228, 229, 233 and

234 because they are consistent with EPA policy and guidance and also

meet the requirements of Sections 110, 182(a)(2)(A), 182(b)(2) and

184(b) of the Act.

Nothing in this proposal should be construed as permitting or

allowing or establishing a precedent for any future request for

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

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et. seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under Section 110 and subchapter I, Part D of the Act

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moveover,

due to the nature of the federal-state relationship under the Act,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

Act forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. US EPA, 427 US 246, 256-66 (S.Ct. 1976); 42

U.S.C. Sec. 7410(a)(2).

The Office of Management and Budget has exempted these actions from

review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

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

Dated: May 2, 1995.

William Muszynski,

Acting Regional Administrator.

[FR Doc. 95-12772 Filed 5-23-95; 8:45 am]

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