[Federal Register: January 2, 2004 (Volume 69, Number 1)]
[Rules and Regulations]
[Page 34-40]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ja04-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 259-0425; FRL-7598-1]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified, Ventura County, Santa Barbara County, and
Monterey Bay Unified Air Pollution Control Districts and Yolo Solano,
Bay Area, and Mojave Desert Air Quality Management Districts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a limited approval and limited disapproval
of revisions to the San Joaquin Valley Unified (SJVUAPCD), Ventura
County (VCAPCD), Santa Barbara County (SBCAPCD), and Monterey Bay
Unified (MBUAPCD) Air Pollution Control Districts and to the Yolo
Solano (YSAQMD), Bay Area (BAAQMD), and Mojave Desert (MDAQMD) Air
Quality Management Districts' portions of the California State
Implementation Plan (SIP). These actions were proposed in the Federal
Register on September 20, 2002 and August 8, 2003 and concern volatile
organic compound (VOC) emissions from architectural coatings. Under
authority of the Clean Air Act as amended in 1990 (CAA or the Act),
this action approves local rules that regulate these emission sources.
EFFECTIVE DATE: This rule is effective on February 2, 2004.
ADDRESSES: You can inspect copies of the administrative record for this
action at EPA's Region IX office during normal business hours by
appointment. You can inspect copies of the submitted SIP revisions by
appointment at the following locations:
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901.
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail
Code 6102T), Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 E.
Gettysburg, Fresno, CA 93726.
Ventura County Air Pollution Control District, 669 County Square Drive,
2nd Floor, Ventura, CA 93003.
Santa Barbara County Air Pollution Control District, 26 Castilian
Drive, Suite B-23, Goleta, CA 93117.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud
Court, Monterey, CA 93940.
Yolo Solano Air Quality Management District, 1947 Galileo Court, Suite
103, Davis, CA 95616.
Bay Area Air Quality Management District, 939 Ellis Street, San
Francisco, CA 94109.
Mojave Desert Air Quality Management District, 14306 Park Avenue,
Victorville, CA 92392.
Copies of these rules may also be available via the Internet at
http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is
not an EPA website and may not contain the same versions of these rules
that were submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Yvonne Fong, EPA Region IX, (415) 947-
4117, fong.yvonnew@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On September 20, 2002 (67 FR 59229) and August 8, 2003 (68 FR
47279), EPA proposed limited approvals and limited disapprovals of the
following rules that were submitted for incorporation into the
California SIP.
Table 1.--Submitted Rules
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Local agency Rule No. Rule title Adopted Submitted
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SJVUAPCD.................................. 4601 Architectural Coatings....... 10/31/01 03/15/02
VCAPCD.................................... 74.2 Architectural Coatings....... 11/13/01 03/15/02
SBCAPCD................................... 323 Architectural Coatings....... 11/15/01 03/15/02
MBUAPCD................................... 426 Architectural Coatings....... 04/17/02 06/18/02
YSAQMD.................................... 2.14 Architectural Coatings....... 11/14/01 01/22/02
BAAQMD.................................... 8-3 Architectural Coatings....... 11/21/01 06/18/02
MDAQMD.................................... 1113 Architectural Coatings....... 02/24/03 04/01/03
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We proposed limited approvals because we determined that these
rules improve the SIP and are largely consistent with the relevant CAA
requirements. We simultaneously proposed limited disapprovals because
some rule provisions conflict with section 110 and part D of the Act.
These rules were all based on the same model--the California Air
Resources Board's (CARB) Suggested Control Measure for Architectural
Coatings (SCM)--and as a result, they contain many of the same rule
deficiencies. These deficiencies relate to the averaging provisions
incorporated into the rules. The deficient provisions common to all
seven rules listed in Table 1 include the following:
1. High-VOC coatings sold under the general sell-through provision
cannot necessarily be distinguished from coatings sold under an
averaging program based on the information explicitly required to be
maintained under the rules. This compromises the enforceability of the
rules as manufacturers may claim that emissions from coatings sold
under the sell-through provision should be excluded from averaged
emissions.
2. The requirement that manufacturers describe the records being
used to calculate coating sales under averaging programs is not
sufficiently specific and represents executive officer discretion.
3. The rules' language regarding how violations of the averaging
compliance option shall be determined is ambiguous.
4. The rules grant the Executive Officer of CARB authority to
approve or disapprove initial averaging programs, program renewals,
program modifications, and program terminations, raising jurisdictional
issues and creating enforceability problems since CARB has not been
granted authority by the state Legislature under the California Health
and Safety Code to regulate architectural coatings.
5. The rules allow manufacturers to average coatings based on
statewide or district-specific data which makes enforceability more
difficult and conflicts with other rule provisions which imply that
averaging will only be
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implemented by CARB and conducted on a statewide basis.
Deficiency 5 was identified in our 2003 proposal (68 FR 47279)
but not specifically noted in our 2002 proposal (67 FR 59229). This
deficiency, however, was described in each of the Technical Support
Documents (TSDs) for the three rules that were the subject of our 2002
proposal (67 FR 59229) and was a basis for our limited disapproval of
each of the first three rules listed in Table 1. Because the language
contained in all seven of these rules is similar and they are all
components of a larger statewide program, we are now clarifying that
this last deficiency is a basis for our limited disapproval of all
seven rules listed in Table 1. Our proposed actions contain more
information on the basis for this rulemaking and on our evaluation of
the submittals.
The deficiencies identified in our 2002 proposal (67 FR 59229) of
the first three rules listed in Table 1 also differed slightly from the
deficiencies identified in our 2003 proposal (68 FR 47279) for the last
four rules listed in Table 1. Other deficient provisions identified in
our 2002 proposal (67 FR 59229) but not in our 2003 proposal (68 FR
47279) included the following:
1. The rules allow the VOC content displayed on a coating to be
calculated using product formulation data but lack a clear and
enforceable definition for the term formulation data.
2. The rules contain typographical errors that make the rules
confusing to regulated sources and less enforceable.
Based on information received during and after the comment period of
our 2002 proposal, we no longer consider these to be deficiencies in
these rules. See Comments and Responses 2 and 8.
II. Public Comments and EPA Responses
EPA's proposed actions provided 30-day public comment periods.
During the comment period for the 2002 proposal (67 FR 59229), we
received comments from the following parties.
1. Howard Berman, Environmental Mediation, Inc. (EM) representing
Dunn-Edwards (DE), a California based manufacturer and retailer of
coatings; letter dated October 17, 2002.
2. Madelyn K. Harding, Sherwin Williams (SW), a worldwide
manufacturer of coatings; letter dated October 17, 2002.
3. Mike Villegas, VCAPCD; letter dated October 17, 2002.
4. Scott Nester, SJVUAPCD; letter dated October 17, 2002.
5. Ellen Garvey, Bay Area Air Quality Management District (BAAQMD);
letter dated October 18, 2002.
6. Michael P. Kenny, CARB; letter dated October 21, 2002.
We did not receive any comments during the comment period for the 2003
proposal (68 FR 47279) although we made clear that comments submitted
on our 2002 proposal would be considered to apply to our 2003 proposal
where appropriate. The comments and our responses are summarized below.
Comment #1: EM comments that their client, DE, disagrees, as does
CARB, with our conclusion that these rules are subject to EPA's
Economic Incentive Program Guidance (EIP Guidance). DE and CARB filed
extensive comments as to why these rules do not fall within the scope
of the EIP Guidance. CARB comments further that the EIP Guidance is a
non-binding guidance document.
Response #1: An EIP is any program which may include State
established measures directed toward stationary, area, and/or mobile
sources, to achieve emissions reductions milestones, to attain and
maintain ambient air quality standards, and/or to provide more
flexible, lower-cost approaches to meeting environmental goals (EIP
Guidance, page 158). These rules (1) regulate architectural coatings,
an area source, (2) were submitted to EPA in order to meet the National
Ambient Air Quality Standards (NAAQS), and (3) allow manufacturers to
reduce emissions from their products to comply with the requirements of
the rules in a more flexible and lower-cost manner. Furthermore, these
rules fall under the category of emission averaging EIPs because they
enable a source, in this case a particular coating, emitting above its
allowable emission rate limit to comply with that rate limit by
averaging its emissions with a second source, a different coating,
emitting below that second source's regulatory rate limit (EIP
Guidance, page 91). Clearly, these rules meet the definition of an EIP
and it is, therefore, appropriate to apply the EIP Guidance. Any
comments submitted by DE and CARB on the EIP Guidance were considered
by us before finalization of the guidance and do not need to be
reconsidered in the current context. The EIP Guidance is EPA's most
recent guidance for economic incentive programs. It is being used to
help ensure consistent interpretation of the CAA where its application
to detailed EIP requirements is unclear.
Comment #2: EM and BAAQMD state that formulation data is a reliable
means for calculating a product's VOC content because manufacturers
know how their products are formulated and that everyone understands
what is required to calculate VOC content. SW and CARB state that
defining the term formulation data is unnecessary because the EPA's
National Volatile Organic Compound Emission Standards for Architectural
Coatings (40 CFR part 59 subpart D, the National Rule) also allows
formulation data to be used without including a separate definition for
the term. SW adds and VCAPCD, SJVUAPCD, BAAQMD and CARB also comment
that the VOC content is ultimately determined by testing with Method 24
of appendix A of 40 CFR part 60. If EPA requires a definition of
formulation data, DE would want EPA to state that formulation data is
preferred over Method 24 because of the inherent unreliability and wide
margin of error associated with Method 24.
Response #2: While manufacturers may know exactly what goes into
their products, they often report paint formulation data by indicating
a range for each component within a product. These ranges may often be
quite wide, making the particular VOC content of a product difficult to
determine. The National Rule does not, in fact, have a separate
definition for formulation data. As with all analytical methods, there
is some uncertainty associated with Method 24; however, it is a
reliable method that has gone through extensive quality assurance and
round robin testing to ensure that it is replicable and reliable for
determining VOC content. Because the National Rule and these rules
ultimately rely on Method 24 to validate the VOC content of coatings
for compliance purposes, we concur that a separate definition for the
term formulation data is not necessary. As a result, we are not
finalizing our concern regarding formulation data as a deficiency. We
encourage DE to submit an alternative test method to EPA for
consideration if they deem another method to be more reliable than
Method 24.
Comment #3: EM, SW, VCAPCD, BAAQMD and CARB comment that the sell
through of averaged coatings is not problematic. SJVUAPCD, BAAQMD and
CARB state that labeling on coatings indicating the date of manufacture
and the coating's participation in an averaging program is sufficient
to determine compliance. SW and CARB state that averaging plans
calculate emissions based on shipments into the state and that all
emissions are counted at the start of an averaging program even though
the coating may not yet have been sold. EM claims that the standard
sell through provision of all coatings is more problematic.
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Response #3: EPA is primarily concerned with the sell through of
averaged coatings because it may make certain compliance determinations
difficult or impossible. In order to determine compliance for an
averaged coating, an inspector would have to be able to associate the
emissions from that particular can of coating with a particular
compliance year. While a can of coating may have been manufactured
within a certain compliance period, a manufacturer may not necessarily
include it among the averaged emissions for that year. It is therefore
important that each can of coating in an averaging plan be specifically
attributable to a particular compliance year. The date code and other
labeling on a coating does not provide this information. EPA notes,
contrary to SW and CARB's claims, that several of these rules were not
written such that the volume of coating used as the basis for emissions
calculations is, in fact, the volume of coating sold [see sections A1
of the CARB's Suggested Control Measure (SCM) and all rules, section
A.3.3 of SCM, section 8.4.3 of SJVUAPCD Rule 4601, section AA.3.6 of
VCAPCD Rule 74.2, section A.3.3 of SBCAPCD Rule 323, and section A.3.3
of MBUAPCD Rule 426]. If at the end of a compliance period, a
manufacturer finds that they have exceeded the allowable emissions,
they may argue that some emissions from a coating that did not sell in
the current compliance year should be advanced into the next compliance
year because of sell through. Alternatively, if a manufacturer
determined that more high-VOC products were sold than projected in
their averaging plan, they could argue that they were sold under the
sell-through provision.
Comment #4: EM comments that the jurisdictional issue created by
CARB approving, disapproving, renewing, modifying or terminating
averaging programs could be seen as an extension of their advisory role
to local air pollution control districts. VCAPCD, BAAQMD, and CARB
comment that CARB is merely providing administrative functions. CARB
notes that they are assuming some administrative functions at the
request of the California Air Pollution Control Officers Association
(CAPCOA). SJVUAPCD and CARB state CARB's involvement simplifies the
implementation of averaging programs and that CARB's purely
administrative role is clarified in a draft Memorandum of Understanding
(MOU) between the districts and CARB. SJVUAPCD, BAAQMD, and CARB also
note that the districts retain ultimate enforcement authority.
Response #4: As currently written, these rules give CARB many
decision making powers that have not been delegated to it. A draft MOU
clarifying the responsibilities of the districts and CARB is
unenforceable. If districts and CARB do not fulfill an enumerated
responsibility described in the MOU, no agency, including EPA could
take action to require the districts or CARB to perform that duty.
Furthermore, while districts and CAPCOA may wish and agree to release
these powers to the CARB, we have received no legal assurances that the
CARB may assume these powers without an act of the State Legislature.
EPA's recommendation to the districts to resolve this deficiency was to
scale CARB's involvement to a more advisory role by structuring the
program so that CARB would be responsible for making recommendations
which each district would then formally adopt or reject. In this way,
the districts, not CARB, maintain their authority as the decision
making and regulatory body. Alternatively, we would consider a
certification by the State Attorney General that CARB has these
authorities. Furthermore, the district's ability to enforce an
averaging program could be hampered if it was not the entity that
originally approved the program.
Comment #5: EM believes that the problem of not specifying exactly
what records are being used to calculate emissions is resolved if
manufacturers commit before implementing their averaging programs to
use only one form of distribution as the basis for calculating
emissions under an averaging program.
Response #5: According to various provisions of these rules,
averaging is a provision that operates on a statewide basis by a
statewide agency, CARB. It is therefore most consistent to require that
emissions calculations also rely on statewide data. Allowing
manufacturers to choose to use either district-specific or statewide
data gives them the ability to manipulate emissions calculations by
choosing the data type that shows fewer emissions. We note,
additionally, that the existing rules do not require manufacturers to
select one form of distribution as the basis for calculating emissions.
Comment #6: EM, VCAPCD, SJVUAPCD, BAAQMD, and CARB comment that
under an averaging program, an exceedance occurs when the entire
program shows on the whole that the actual emissions exceed the
allowable emissions. The excess emissions cannot be attributable to any
one product in the program.
Response #6: It is precisely because excess emissions cannot be
attributed to any one product that it must be assumed that all products
under an averaging program that were sold with a VOC content greater
than the effective VOC limit contributed to the exceedance. For
example, if an averaging program balances the emissions from three
coatings that exceed the limits of the rule against the emissions of
two super-compliant coatings, then all three non-compliant coatings
were partially responsible for the exceedance and a violation for each
of these coatings should be assessed for each day of the compliance
period.
Comment #7: SW comments that EPA's proposed language for clarifying
how violations of averaging provisions are determined would result in
penalties that are too large and not in balance with the damage done to
the environment. CARB comments that the magnitude of potential
penalties under the current rule language is a sufficient disincentive
for willful violations. BAAQMD states that any difficulties with
enforcement and assessment of penalties can be corrected during the
following compliance period.
Response #7: EPA's proposed language would clarify that violations
could be assessed for any coating that was sold above the limits of the
rule. The benefits of allowing manufacturers to continue to sell
coatings that do not meet the limits of the rule under an averaging
program must be balanced by significant deterrents against non-
compliance. These rules currently limit the violations that can be
assessed to only one per day. By clarifying the language in the rule,
agencies may assess larger penalties, however, they are also in no way
precluded from using their enforcement discretion to weigh the
significance of the overall environmental damage to assess a penalty
that is appropriate based on the overall circumstances of the
violation.
Comment #8: VCAPCD, SJVUAPCD, BAAQMD and CARB comment that the
typographical errors in the rules should not be considered a
deficiency, but a rule improvement issue, since the correct language
can be determined.
Response #8: We concur that the correct language can ultimately be
surmised despite the typographical errors. As a result, we are not
finalizing this issue as a deficiency.
Comment #9: VCAPCD, BAAQMD, and CARB comment that all deficiencies
associated with averaging become moot after 2005 when the averaging
provisions of these rules sunset. CARB
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asserts that there are ultimately no SIP implications from these
temporary programs.
Response #9: EPA is required to ensure that SIP regulations fully
comply with enforceability and other requirements of CAA section 110
and part D. Because of the near-term sunset date of the averaging
provisions, however, we concur that it will not be necessary to impose
sanctions because the deficient rule provisions will vacate before the
sanction clocks would expire. For further discussion see our 2003
proposal (68 FR 47279).
Comment #10: VCAPCD and CARB state that EPA should not examine the
averaging programs based on the possibility that the averaging programs
would be extended and notes that an extension of the averaging programs
would require a revision to the rules through action by their
respective Boards.
Response #10: The evaluation of these rules was not based on the
possibility of the extension of the averaging provisions. All
evaluation of these rules was based on the programs as they exist under
current rule language. EPA noted in our TSDs for these rules one
additional recommendation to evaluate these programs after three years
if the averaging programs were to be extended beyond 2005. We clearly
stated that this was a recommendation to improve the rule and that it
was not an issue affecting our current action.
Comment #11: In response to Deficiency 5, VCAPCD and CARB
comment that district-specific data is equally enforceable as statewide
data. CARB believes that district-specific data should be allowed so
that smaller regional manufacturers may utilize the averaging
provisions of these rules.
Response #11: Submitting statewide data does not prevent smaller
regional manufacturers from averaging their coatings. If these
manufacturers do not have sales in particular areas of the state then
the sales in those areas would be assumed to be zero and statewide data
could be generated. In part, we are concerned that the existing
language would allow manufacturers to game the system and moderate
overall emission calculations by using district-specific or statewide
data, depending on whichever produced more favorable results. Also see
Response 5.
Comment #12: VCAPCD and CARB comment that the language that
describes which records may be used to calculate emissions is
sufficient for determining compliance when coupled with the Statewide
Averaging Guidance Document and active cooperation with individual
manufacturers. BAAQMD states that this language is meant to recognize
the unique nature of a specific manufacturers' program and does not
constitute executive officer discretion because the stringency of the
rule cannot be affected by an administrative decision. SJVUAPCD
comments that many rule provisions allow inspectors to verify the
accuracy of records for determining compliance. CARB notes that a
definition for enforceable sales record proposed by EPA is essentially
what is being followed when approving acceptable records and cites this
as an example of where EPA should have raised this concern earlier
during the development of South Coast Air Quality Management Districts'
(SCAQMD) Rule 1113.
Response #12: These rules do not specify what records may be
submitted as an enforceable record. Any record, including those that
may be unverifiable, may be submitted to substantiate emission
calculations and it is the purview of the Executive Officer to approve
any of these records as acceptable. This unlimited executive officer
discretion is unenforceable. There is currently no provision under
these rules to verify the accuracy of a particular record before an
averaging program is approved. While the Statewide Averaging Guidance
Document may further delineate and limit the records that may be
submitted, the Statewide Averaging Guidance Document is not an
enforceable element of the SIP and could not be relied upon for
enforcement purposes. EPA raised this concern regarding enforceable
records to SCAQMD during the development of Rule 1113 in a May 13, 1999
letter and notes that this provision was not proposed as an amendment
to Rule 1113 until the March 31, 1999 Working Group meeting. This same
concern was raised to the CARB in a June 21, 2000 letter after it
proposed a similar provision in a draft of the SCM emailed on June 14,
2000 for consideration. Although not relevant to this rulemaking, our
review of these provisions as they were developed was timely and
responsive.
Comment #13: SJVUAPCD, BAAQMD, and CARB comment that the emissions
reductions associated with these rules are valuable. CARB comments that
these rules are significantly more stringent that the National Rule.
SJVUAPCD asserts that approval of these rules would encourage other
districts to adopt similar rules which could achieve up to 10 tons of
emission reductions per day across California. CARB claims that EPA's
proposed limited disapproval of these rules is discouraging districts
from submitting their architectural coating rules as SIP revisions.
BAAQMD indicates that the development of the SCM and these rules were
the result of over two years of work and that the difficulties
historically encountered in adopting architectural coatings rules
should be balanced against the marginal benefits of EPA's suggested
rule changes.
Response #13: EPA does not dispute that these rules reduce VOC
emissions by putting more restrictive VOC content limits into effect
for architectural coatings and we recognize the significant efforts of
the CARB and districts to develop the SCM and these rules modeled on
it. At the same time, EPA's role is to ensure that all rules approved
into the SIP meet the statutory requirements of the CAA. Because these
programs provide the regulated industry considerable compliance
flexibility, this must be balanced by enforcement certainty and
adequate penalties for non-compliance. It is not EPA's intention to
discourage the submittal of similar rules, and note that no sanctions
will be imposed due to our action on these rules. Also see Response
9.
Comment #14: BAAQMD comments that EPA should have submitted
comments to CARB and districts at the time of SCM adoption or shortly
thereafter. CARB comments that the averaging provisions in these rules
were based on SCAQMD Rule 1113 and that timely action by EPA on
SCAQMD's February 18, 2000 submittal of Rule 1113 would have allowed
the districts to consider EPA's concerns when they were adopting their
rules.
Response #14: EPA did participate in the regulatory development
process for the SCM and SCAQMD's Rule 1113. We note that the bulk of
the deficiencies that we have identified in these rules relate to the
averaging program which was added to the SCM one week before the SCM
was adopted by the CARB. After only limited review, EPA did express
concerns regarding the program to the CARB before adoption of the SCM.
We were informed that our issues would be addressed through various
means such as the Statewide Averaging Guidance Document and the MOU.
The discussions with CARB and districts during the development of these
documents has, instead, brought even more issues to light. EPA notes
that our comments during rule development are not final and that our
ultimate evaluation and approval or disapproval of rules only occurs
after formal submittal. EPA did receive submittals of SCAQMD's Rule
1113 on February 18, 2000 and on December 14, 2001. The CAA prevents
EPA from acting on the 2000 submittal of Rule 1113. EPA is
[[Page 38]]
only allowed to act on the more recent 2001 submittal since this is the
district's most current regulation for this source category. EPA was in
the process of acting on the SCAQMD's 2001 submittal when that version
was recently vacated by the Court. National Paint and Coatings
Association, Inc. v. SCAQMD, (June 24, 2002, G029462). Also see
Response 12.
Comment #15: CARB notes that confirmation of the volume of high VOC
products sold is additional information that is not typically required
for determining compliance with architectural coatings rules but that
it is similar to the additional record verification that is necessary
to determine compliance with the National Rule's exceedance fee and
tonnage exemption options.
Response #15: Determining a manufacturer's compliance with an
averaging program requires knowing the total volume sold to verify that
the actual emissions do not exceed the allowable emissions. This cannot
be accomplished and compliance cannot be determined if reliable and
specific sales records are not required and available. Also see
Responses 3 and 13.
Comment #16: CARB comments that EPA's proposed language to rectify
Deficiency 2 by clarifying that records must be made available
to the Executive Officer upon request is equivalent to the current rule
language. CARB contends that requirements on manufacturers to describe
the records being used to calculate coating sales under averaging
programs are sufficiently specific and do not represent executive
officer discretion.
Response #16: The current language in these rules is not equivalent
to EPA's proposed language. While the current language requires that
records be maintained, there is currently no language requiring that
these records be surrendered to the Executive Officer.
Comment #17: CARB states that the public release of sales data is
not necessary to demonstrate compliance. While CARB believes that all
emissions data should be made publicly available, they argue that sales
data which does not constitute ``emissions data'' is confidential and
not necessary for determining compliance.
Response #17: EPA's proposed limited disapproval actions did not
specifically identify California's treatment of information claimed
confidential as a deficiency. Rather, Deficiency 2 focuses on
the fact that the California rules do not specify which records must be
maintained to quantify sales. It may well be, as CARB believes, that
the rules can be revised to provide adequate certainty about record
maintenance without changing California's treatment of certain records
as confidential material. Also see Response 15.
III. EPA Action
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is
finalizing a limited approval of the submitted rules. This action
incorporates the submitted rules into the California SIP, including
those provisions identified as deficient. Several submitted comments
did change our assessment of the rules as originally described in our
proposed actions. Therefore, as authorized under section 110(k)(3), we
are only finalizing the five deficiencies identified in our 2003
proposal (68 FR 47279), and these five deficiencies apply to all seven
rules. Sanctions will not be imposed under section 179 of the Act
according to 40 CFR 52.31, even if EPA does not approve subsequent SIP
revisions that correct the rule deficiencies within 18 months of the
effective date of this action because, according to specific language
incorporated into the rules, the deficient provisions will expire in
January 2005, in advance of the end of the 18-month period allowed to
correct the deficiencies. Similarly, EPA also will not promulgate a
federal implementation plan (FIP) under section 110(c) if subsequent
SIP revisions that correct the rule deficiencies are not approved
within 24 months. Note that the submitted rules have been adopted by
the local agencies, and EPA's final limited disapproval does not
prevent the local agencies from enforcing their rules.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.)
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the Clean Air 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 create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental
[[Page 39]]
Partnership). Executive Order 13132 requires EPA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective February 2, 2004.
K. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 2, 2004. 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 action may not be challenged later in proceedings
to enforce its requirements. (See section 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: November 17, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(293)(i)(B),
(c)(297)(i)(A)(5), (c)(297)(i)(E), (c)(297)(i)(F), (c)(300)(i)(B),
(c)(300)(i)(C), and (c)(315)(i)(C) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(293) * * *
(i) * * *
(B) Yolo-Solano Air Quality Management District.
[[Page 40]]
(1) Rule 2.14, adopted on November 14, 2001.
* * * * *
(297) * * *
(i) * * *
(A) * * *
(5) Rule 74.2, adopted on November 13, 2001.
* * * * *
(E) San Joaquin Valley Unified Air Pollution Control District.
(1) Rule 4601, adopted on October 31, 2001.
(F) Santa Barbara County Air Pollution Control District.
(1) Rule 323, adopted on November 15, 2001.
* * * * *
(300) * * *
(i) * * *
(B) Bay Area Air Quality Management District.
(1) Rule 8-3, adopted on November 21, 2001.
(C) Monterey Bay Unified Air Pollution Control District.
(1) Rule 426, adopted on April 17, 2002.
* * * * *
(315) * * *
(i) * * *
(C) Mojave Desert Air Quality Management District.
(1) Rule 1113, adopted on February 24, 2003.
* * * * *
[FR Doc. 03-32212 Filed 12-31-03; 8:45 am]
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