Home » 2009 Issues » July 15, 2009 » ENV-43-08-00008-A Portable Fuel Containers Which Are Used by New York State Residents to Transport Gasoline and Fill Fuel Tanks
ENV-43-08-00008-A Portable Fuel Containers Which Are Used by New York State Residents to Transport Gasoline and Fill Fuel Tanks
7/15/09 N.Y. St. Reg. ENV-43-08-00008-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 28
July 15, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-43-08-00008-A
Filing No. 751
Filing Date. Jun. 30, 2009
Effective Date. s , 30 d
Portable Fuel Containers Which Are Used by New York State Residents to Transport Gasoline and Fill Fuel Tanks
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Portable fuel containers which are used by New York State residents to transport gasoline and fill fuel tanks.
Purpose:
Make NYS regulations consistent with applicable federal regulations, minimize VOC emissions from gas cans.
Substance of final rule:
The proposed revisions to Parts 239 and 200 are consistent with the Federal Rule, 40 CFR Part 59, which will be effective January 1, 2009.
The Department is proposing to revise Section 239-1.1, "Applicability," to expand the applicability of Part 239 to advertising of portable fuel containers (PFCs).
Revisions are also proposed for Section 239-2.1, "Definitions." The proposed rulemaking adds a definition for "kerosene" to Part 239 and expands the definition of "portable fuel container" to include a container which holds kerosene.
The Department is proposing to replace Subpart 239-3, "Performance Standards for Portable Fuel Containers and Spill-Proof Spouts," to establish updated performance standards. The current language in Subpart 239-3 describes very specific design requirements and more complex testing for spouts and containers. The proposed new language defines the more broad standards described in 40 CFR Part 59 which result in lower volatile organic compound (VOC) emissions.
The Department is proposing to eliminate those portions of Subpart 239-4, "Exemptions," and Subpart 239-5, "Innovative Products," which allow exemptions based on California Air Resources Board (CARB). These proposed revisions are necessary in order to conform with the Federal Rule, 40 CFR Part 59, which will be effective January 1, 2009.
The Department is also proposing to revise Subpart 239-6, "Administrative requirements," and Subpart 239-8, "Test procedures," in order to conform with the Federal Rule, 40 CFR Part 59. The proposed revisions to Subpart 239-8 remove references to the CARB test methods.
Throughout the proposed rulemaking, revisions have been made to indicate that the regulations would take effect on September 1, 2009.
Section 200.9 of 6 NYCRR Part 200 contains a list of documents that have been referenced by the Department in regulations contained in 6 NYCRR Chapter III, Air Resources. The Department is proposing to amend this list to reflect references necessary to amending Part 239.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 239-3.1, 239-4.1(b)(2), (c) and 200.9.
Text of rule and any required statements and analyses may be obtained from:
Ona Papageorgiou, NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email: airregs@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file. This rule was approved by the Environmental Board.
Revised Regulatory Impact Statement
STATUTORY AUTHORITY
The following sections of the Environmental Conservation Law (ECL), taken together, authorize the New York State Department of Environmental Conservation (Department) to establish and implement the Portable Fuel Container Spillage Control regulations: 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, and 19-0305.
LEGISLATIVE OBJECTIVES
The Legislative goal of these ECL provisions, as stated in 19-0103, is to maintain the purity of New York's air resources. The proposed revisions to Part 239 are intended to meet this goal.
The revisions to Part 239 are among a series of sustained actions undertaken by New York State, in conjunction with EPA and other States, to control emissions of ozone precursors, including nitrogen oxides and volatile organic compounds (VOCs), so that New York State and States in the Ozone Transport Region (OTR) may attain the ozone national ambient air quality standards (NAAQS).
NEEDS AND BENEFITS
New York faces a significant public health challenge from ground-level ozone, which causes health effects ranging from respiratory disease to death. In response to this public health problem, New York has enacted a series of regulations designed to control ozone and its chemical precursors which include VOCs.
In 2002, the Department promulgated regulations designed to limit or reduce the amount of VOCs released into the atmosphere from portable fuel containers. 'See 6 NYCRR Part 239 (PFC regulation)'. Consistent with New York's obligations under the Act, New York submitted its PFC regulation to EPA as part of New York's State Implementation Plan (SIP). In turn, EPA approved the incorporation of Part 239 into New York's SIP.
The Department now proposes to revise Part 239 to implement consistent regulations limiting the amount of VOCs released into our atmosphere. Since the adoption of Part 239 in 2002, problems have been identified relating to spillage from the new, compliant, PFCs. The automatic shutoff feature was intended to help eliminate spillage while starting/stopping fuel flow, but it has been found to be incompatible with many types of target fuel tanks. Furthermore, customers have found them difficult to use, resulting in increased spillage. Current regulation requires testing for both evaporation and permeation. This requires more testing than necessary. In addition, PFCs have been manufactured with a large amount of variability in the quality of their parts. The revisions modify the existing spout requirements by eliminating the current automatic shutoff feature, fill height and flow rate standards. This allows the manufacturers more design flexibility to produce PFCs that are easier to use and compatible with target tanks. To address the complicated testing, the revisions combine evaporation and permeation standards into a new diurnal standard to simplify compliance testing. Two test methods will be replaced by one that represents both losses. Finally, to address variability in quality, PFC certification will be required.
There are two types of ozone: stratospheric and ground level ozone. Ozone in the stratosphere is naturally occurring and is desirable because it shields the earth from harmful ultraviolet rays from the sun which may cause skin cancer. In contrast, ground level ozone or smog, which results from the mixing of VOCs and NOx on hot, sunny summer days, can harm humans and plants. The primary ozone NAAQS was established by EPA at a level where the attainment and maintenance of which is requisite to protect the public health. In the northeastern United States the ozone nonattainment problem is pervasive as concentrations of ozone often exceed the level of the NAAQS by mid-afternoon on a summer day.
It is well-settled that ground-level ozone causes a host of major health problems, and recent studies have demonstrated a definitive link between even short-term ozone exposure and death in humans. 'See generally' Senate Committee on Environment and Public Health, S. Rep. No. 101-228 (1990), 'reprinted in' 1990 U.S.C.C.A.N. 3385. The United States Senate has recognized that a growing body of scientific evidence indicates that over the long term, chronic exposure to ozone may produce accelerated aging of the lung analogous to that produced by cigarette smoke exposure. 'Id'. In 1995, EPA recognized that "[m]uch of the ozone inhaled reacts with sensitive lung tissues, irritating and inflaming the lungs, and causing a host of short-term adverse health consequences including chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections" '60 Fed. Reg. 4712-13 (Jan. 24, 1995)'. Moreover, two recent studies have shown a definitive link between short-term exposure to ozone and human mortality. 'See' 292 'Journal of the American Medical Asssn.' 2372-78 (Nov. 17, 2004); 170 'Am. J. Respir. Crit. Care Med.' 1080-87 (July 28, 2004) (observing significant ozone-related deaths in the New York City Metropolitan Area). Even exercising healthy adults can experience 15 percent to 20 percent reductions in lung function from exposure to low levels of ozone over several hours.
Children and outdoor workers are especially at risk from exposure to ozone. Because children's respiratory systems are still developing, they are more susceptible than adults; this problem is exacerbated because ozone is a summertime phenomenon. Children are outside playing and exercising more often during the summer which results in children being exposed to ozone more than adults. Outdoor workers are also more susceptible to lung damage because of their increased exposure to ozone during the summer months when they are more likely to be working outdoors.
In July 2006, EPA again reaffirmed the serious public health consequences of ozone. EPA recognized a number of epidemiological and controlled human exposure studies that: suggest that asthmatic individuals are at greater risk for a variety of ozone-related effects including increased respiratory symptoms, increased medication usage, increased doctors' visits, emergency department visits, and hospital admissions; and provide highly suggestive evidence that short-term ambient ozone exposure contributes to mortality. 'See' 'Fact Sheet: Review of National Ambient Air Quality Standards for Ozone Second Draft Staff Paper, Human Exposure and Risk Assessments and First Draft Environmental Report', U.S. Environmental Protection Agency, July 2006.
Furthermore, on March 12, 2008, EPA Administrator Stephen Johnson announced a new ozone NAAQS of 0.075 ppm. In announcing a lower ozone standard, EPA recognized that scientific evidence indicates that adverse health effects occur with ozone levels below the current standard, particularly in those with respiratory illnesses. EPA also recognized that repeated exposures to low levels of ozone damage vegetation, trees and crops, leading to susceptibility to disease, damaged foliage and reduced crop yields.
Ground level ozone also interferes with the ability of plants to produce and store food. This compromises growth, reproduction and overall plant health. By weakening sensitive vegetation, ozone makes plants more susceptible to disease, pests and environmental stresses. Ozone has been shown to reduce yields for many economically important crops ('e.g.', corn, kidney beans, soybeans). Ozone damage to long-lived species such as trees (by killing or damaging leaves) can significantly decrease the natural beauty of an area, such as the Adirondacks.
Implementation of the Part 239 revisions will, in concert with similar regulations adopted by other States and other measures undertaken by New York, lower levels of ozone in New York State and will decrease the adverse public health and welfare effects described above. In enacting the Title I ozone control requirements of the 1990 CAA amendments, Congress recognized the hazards of ozone pollution and mandated that States, especially those in the OTR, implement stringent regulatory programs in order to meet the ozone NAAQS.
COSTS
Costs to Regulated Parties and Consumers:
The cost of the proposed regulations will affect all manufacturers in a similar way. There are currently eight manufacturers that are members of the Portable Fuel Container Manufacturers Association (PFCMA). Most of these members have already designed PFCs which are compliant with the proposed regulation because the State of California is already enforcing these requirements in its regulations. Furthermore, all manufacturers will be required to have compliant PFCs as of January 1, 2009, when the federal regulations take effect. The State of New York will not be placing any additional cost requirements on the manufacturers or consumers.
Costs to State and Local Governments:
There are no direct costs to State and local governments associated with this proposed regulation. No record keeping, reporting, or other requirements will be imposed on local governments. The authority and responsibility for implementing and administering Part 239 resides solely with the Department. Requirements for recordkeeping and reporting are applicable only to the person(s) who manufactures, sells, supplies, or offers for sale portable fuel containers.
Costs to the Regulating Agency:
There will be no increase in administrative costs to the regulating agency.
LOCAL GOVERNMENT MANDATES
No mandates will be imposed on local governments.
PAPERWORK
No additional paperwork will be imposed by this rulemaking on manufacturers, distributors or sellers of PFCs beyond what will be required under federal regulations that take effect on January 1, 2009. Manufacturers will be required maintain records relating to:
1) applications to EPA;
2) construction and origin of all components of the PFC;
3) all emission tests;
4) all tests to diagnose emission control performance;
5) all other relevant information or events; and
6) lot numbers.
All records must be kept for at least five years.
DUPLICATION
The proposed revisions to Part 239 are consistent with the federal rule, 40 CFR Part 59.600-59.699.
ALTERNATIVES
The following alternatives have been evaluated to address the goals set forth above. These are:
1. Take No Action:
The "Take No Action" alternative is not acceptable because New York needs the additional emissions reductions as soon as possible in order to meet its attainment goals. Moreover, this alternative would not address the spillage concerns associated with portable fuel containers under the current regulations and would allow New York residents to continue use of non user-friendly PFCs. It would also result in state regulations which are inconsistent with the federal regulations that will take effect on January 1, 2009. Lastly, failing to adopt the proposed regulations would leave New York without authority to enforce against the sale of PFCs in the State of New York that are not compliant with federal requirements. For these reasons, DEC rejected this option.
2. Adopt the proposed revisions to Part 239:
Under this option, Part 239 will be consistent with 40 CFR Part 59.600-59.699. This will provide the manufacturers with more flexibility to manufacture a more user-friendly PFC. While the regulations will be the same as federal requirements, maintaining Part 239 will allow NYSDEC to enforce this regulation in the future. This enforcement option is necessary because the EPA has not shown any willingness to enforce its consumer products regulations adopted under 40 CFR Part 59. This is the alternative that DEC has elected to pursue.
FEDERAL STANDARDS
The proposed revisions to Part 239 are necessary to comply with the Federal Rule (40 CFR Part 59).
COMPLIANCE SCHEDULE
The proposed revisions would take effect on September 1, 2009, and compliance with the proposed changes would be required as of that date. However, federal regulations also apply to PFCs, and recent changes to those regulations take effect on January 1, 2009. All PFCs manufactured on or after January 1, 2009 will have to be compliant with the federal standards set forth in 40 CFR Part 59.
This proposed rulemaking contains a "sell-through" provision. Between September 1, 2009 and December 31, 2009, PFCs manufactured prior to January 1, 2009 could be sold or distributed if they were compliant on December 31, 2008. As of January 1, 2010, only PFCs compliant with the proposed revisions to Part 239 could be distributed or sold.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
No changes have been made to the Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement since the last publication.
Assessment of Public Comment
1) Comment: The gas cans that are currently available are difficult to use and present spill risks during use. There are some target tanks which do not allow the entire spout to enter the tank and result in spilling along the sides of the particular tank. The commenter is encouraged that the Department is acting to revise the regulations concerning "spill-proof" portable fuel containers (PFCs).
Response: The Department appreciates this comment.
2) Comment: Allow the sale of regular flexible spouts until the new better designed spouts are available. To allow the sale of the spill-prone spouts that have demonstrated adverse impacts is worse than allowing the sale of regular flexible spouts that were available before these requirements took effect.
Response: 40 CFR 59.602 and 6 NYCRR Part 239-3.1 prohibit the sale and use of non compliant spouts. Allowing the sale and use of flexible spouts, which are non compliant, would violate the Federal and state law cited above, and result in increased VOC emissions and risk to human health.
3) Comment: The commenter expressed uncertainty as to what the testing requirements proposed in 239-8.1 will involve. The commenter expressed that the testing should include consumer testing of spout designs under real world conditions before they are put to market to ensure they are practical to use and work as intended.
Response: Testing procedures may be found at 40 CFR 59.650-59.653, which are incorporated into the revised rule by reference. The testing procedures consider numerous conditions, including conditions associated with a typical user. To ensure that the easier to use products are made available to New York State residents the Department has reached out to the Portable Fuel Container Manufacturers Association and has already granted Innovative Product status defined in 6 NYCRR Part 239-5 to portable fuel containers which meet the new federal standard and are easier to use. The Department anticipates that the revised rule will enable manufactures to produce user-friendly and compliant PFCs.
