[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Proposed Rules]
[Pages 27464-27468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12772]



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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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