[Federal Register: June 21, 2004 (Volume 69, Number 118)]
[Proposed Rules]
[Page 34323-34326]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn04-20]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 287-0445; FRL-7775-3]
Revisions to the California State Implementation Plan, Antelope
Valley Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the Antelope Valley Air Quality Management District's
(AVAQMD) portion of the California State Implementation Plan (SIP).
These revisions concern volatile organic compound (VOC) emissions from
architectural coatings. In accordance with the Clean Air Act as amended
in 1990 (CAA or the Act), we are proposing action on a local rule that
regulates these emission sources. We are taking comments on this
proposal and plan to follow with a final action.
DATES: Any comments must arrive by July 21, 2004.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
You can inspect copies of the submitted SIP revisions and EPA's
technical support document (TSD) at our Region IX office during normal
business hours. You may also see copies of the submitted SIP revisions
at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Antelope Valley Air Quality Management District, 43301 Division Street,
Suite 206, Lancaster, CA 93535-4649.
A copy of the 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 version of the rules that were
submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Francisco D[oacute][ntilde]ez, EPA
Region IX, (415) 972-3956.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
A. How is EPA evaluating the rule?
B. Does the rule meet the evaluation criteria?
C. What are the rule's deficiencies?
D. EPA recommendations to further improve the rule
E. Proposed action and public comment
III. Background information
A. Why was this rule submitted?
IV. Administrative Requirements
I. The State's Submittal
A. What Rule Did the State Submit?
Table 1 shows the rule addressed by this proposal with the dates
that it was adopted by the local air agencies and submitted to us by
the California Air Resources Board (CARB).
Table 1.--Submitted Rules
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Local agency Rule No. Rule title Adopted Submitted
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AVAQMD.......................... 1113 Architectural Coatings................... 03/18/03 06/05/03
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On July 18, 2003, this rule submittal was found to meet the
completeness criteria in 40 CFR part 51, appendix V, which must be met
before formal EPA review.
B. Are There Other Versions of This Rule?
We approved a version of AVAQMD Rule 1113 into the SIP on January
24, 1985. The AVAQMD adopted revisions to the SIP-approved version of
this rule on March 18, 2003. CARB submitted the rule revision to us on
June 5, 2003.
C. What Is the Purpose of the Submitted Rule Revisions?
The rule revisions primarily modify the rule for consistency with
the Suggested Control Measure for Architectural Coatings (SCM). The SCM
is a model rule developed by CARB which seeks to provide statewide
[[Page 34324]]
consistency for the regulation of architectural coatings. The
recommended VOC content limits and other provisions of the SCM are the
results of an extensive investigation of architectural coatings which
included a statewide survey of architectural coatings sold in
California and several technology assessments. CARB adopted the SCM on
June 22, 2000. The TSD has more information about this rule.
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rule?
Generally, SIP rules must be enforceable (see section 110(a) of the
Act), must require Reasonably Available Control Technology (RACT) in
moderate to extreme nonattainment areas for major sources of volatile
organic compounds (VOC) and VOC sources covered by a Control Technique
Guideline (CTG)(see section 182(b)(2)), must not relax requirements
adopted before the 1990 CAA amendments in nonattainment areas (section
193), and must not interfere with attainment, reasonable further
progress or other applicable requirements of the CAA (section 110(l)).
The AVAQMD regulates an ozone nonattainment area (see 40 CFR part 81),
however, because this rule regulates sources that are not covered by a
CTG and that are nonmajor area sources, it is not subject to CAA RACT
requirements.
Guidance and policy documents that we used to help evaluate this
revised rule to ensure enforceability and compliance with other CAA
requirements include the following:
1. Portions of the proposed post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044, November 24, 1987.
2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook).
3. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
4. National Volatile Organic Compound Emission Standards for
Architectural Coatings, September 11, 1998 (40 CFR part 59, subpart D).
5. ``Suggested Control Measure for Architectural Coatings,'' CARB,
June 22, 2000.
6. ``Improving Air Quality with Economic Incentive Programs,'' EPA-
452/R-01-001, EPA, January 2001 (the EIP).
B. Does the Rule Meet the Evaluation Criteria?
This rule improves the SIP by establishing more stringent emission
limits and by clarifying labeling and reporting provisions. It is
largely consistent with the relevant policy and guidance regarding
enforceability and SIP relaxations. Provisions of the rule which do not
meet the evaluation criteria are summarized below and discussed further
in the TSD.
C. What Are the Rule's Deficiencies?
This rule was based on the SCM and, as a result, contains many of
the same deficiencies as the SCM. The deficiencies relate to the
averaging provisions incorporated into this rule. While we believe the
VOC limits contained in these rules to be feasible and substantiated by
a significant investigation of architectural coatings, the averaging
provisions provide a valuable alternative compliance mechanism for the
VOC limits contained in this rule and may reduce the overall economic
impact of compliance with the VOC limits on manufacturers. We have
identified five specific problems with these provisions. The first four
could be addressed through relatively minor changes to the averaging
provisions which we have described below. The fifth could also be
addressed by relatively minor changes or by clarification of the
State's authority. The following provisions in AVAQMD Rule 1113
conflict with section 110 of the Act and prevent full approval of the
SIP revisions.
1. The rule allows for the sell-through of coatings included in
approved averaging programs. Because emissions from coatings sold under
the sell-through provision cannot be distinguished based on the
information explicitly required to be maintained under the rule from
emissions from coatings sold under an averaging program, the
enforceability of the rules may be compromised by manufacturers
claiming that a certain portion of emissions from coatings sold under
the sell-through provision should be excluded from averaged emissions.
One way to correct this is to clarify that manufacturers with an
approved averaging program cannot also use the sell-through provision.
2. The provisions of the averaging compliance option that require
manufacturers to describe the records being used to calculate emissions
are not specific enough to verify compliance with the rule and
represent executive officer discretion. More specificity as to the
types of suitable records is needed to verify compliance with the
averaging compliance option.
3. The rule's language regarding how violations of the averaging
compliance option shall be determined is ambiguous. The language should
be clarified to specify that an exceedance for each coating that is
over the limit shall constitute a separate violation for each day of
the compliance period.
4. The rule allows 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 implemented by CARB and conducted on a statewide
basis. The rule should clarify whether emissions from averaging
programs will be calculated using statewide or district-specific data.
5. The rule grants the Executive Officer of CARB authority to
approve or disapprove initial averaging programs, program renewals,
program modifications, and program terminations. This raises
jurisdictional issues which could create enforceability problems since
CARB has not been granted authority by the state Legislature under the
California Health and Safety Code to regulate architectural coatings.
D. EPA Recommendations to Further Improve the Rule
The TSD describes additional rule revisions that do not affect
EPA's current action but are recommended for the next time the local
agencies modify the rule.
E. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is
proposing a limited approval of the submitted rule to improve the SIP.
If finalized, this action would incorporate the submitted rules into
the SIP, including those provisions identified as deficient. This
approval is limited because EPA is simultaneously proposing a limited
disapproval of the rules under section 110(k)(3). Note that the
submitted rule has been adopted by the district and EPA's final limited
disapproval would not prevent the local agencies from enforcing it.
All of the identified deficiencies are associated with the
averaging program in this rule which sunsets on January 1, 2005. If we
finalize this notice as proposed, the effective date of our action will
be after July 1, 2003 and would trigger CAA section 179 sanction clocks
that expire 18 and 24 months later. However, we believe that sunsetting
the averaging program effectively corrects all the deficiencies
associated with averaging, and revisions to this rule are not needed to
avoid associated sanctions.
[[Page 34325]]
We will accept comments from the public on the proposed limited
approval and limited disapproval for the next 30 days. EPA finalized a
similar limited approval and limited disapproval for seven other
California architectural coating rules on January 2, 2004 (69 FR 34).
While the eight California rules are very similar, we divided them into
several actions for internal administrative and workload management
reasons.
III. Background Information
A. Why Was This Rule Submitted?
VOCs help produce ground-level ozone and smog, which harm human
health and the environment. EPA has established a National Ambient Air
Quality Standard (NAAQS) for ozone. Section 110(a) of the CAA requires
states to submit regulations necessary to achieve the NAAQS. Table 2
lists some of the national milestones leading to the submittal of these
local agencies' VOC rules.
Table 2.--Ozone Nonattainment Milestones
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Date Event
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March 3, 1978....................... EPA promulgated a list of ozone
nonattainment areas under the
Clean Air Act as amended in 1977.
43 FR 8964; 40 CFR 81.305.
May 26, 1988........................ EPA notified Governors that parts
of their SIPs were inadequate to
attain and maintain the ozone
standard and requested that they
correct the deficiencies (EPA's
SIP-Call). See section
110(a)(2)(H) of the pre-amended
Act.
November 15, 1990................... Clean Air Act Amendments of 1990
were enacted. Pub. L. 101-549,
104 Stat. 2399, codified at 42
U.S.C. 7401-7671q.
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IV. Administrative Requirements
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
title 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 section 202 of the Unfunded Mandates Reform Act of 1995,
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 proposed 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 proposes to
approve 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
Executive Order 13132 (64 FR 43255, August 10, 1999) revokes and
replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental 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
[[Page 34326]]
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 proposed 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.
EPA specifically solicits additional comment on this proposed rule
from tribal officials.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (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 and is not ``economically significant'' under Executive
Order 12866.
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compound.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 4, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-13932 Filed 6-18-04; 8:45 am]
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