[Federal Register: November 23, 2004 (Volume 69, Number 225)]
[Rules and Regulations]
[Page 68080-68089]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no04-12]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA211-4231; FRL-7835-4]
Approval and Promulgation of Air Quality Implementation Plans,
Pennsylvania; Control of Volatile Organic Compound Emissions From AIM
Coatings
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania. This revision pertains
to the control of volatile organic compounds (VOC) emissions from
architectural and industrial maintenance (AIM) coatings. EPA is
approving this SIP revision in accordance with the Clean Air Act (CAA
or the Act).
EFFECTIVE DATE: This final rule is effective on December 23, 2004.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460;
and Pennsylvania Department of Environmental Protection, Bureau of Air
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania
17105.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 11, 2004 (69 FR 11580), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed
approval of a Pennsylvania regulation pertaining to the control of VOC
from AIM coatings. The formal SIP revision was submitted by the
Pennsylvania Department of Environmental Protection (PADEP) on December
3, 2003. The specific requirements of Pennsylvania's SIP revision for
AIM coatings and the rationale for EPA's proposed action are explained
in the NPR and will not be restated here. On April 12, 2004, EPA
received timely comments from two parties on the March 11, 2004 NPR.
Some of the timely comments were adverse to EPA's March 11, 2004
proposed rulemaking. EPA also received late comments from one party.
While EPA is not obligated to consider late comments, EPA has elected
to do so in this instance. A summary of the comments submitted and
EPA's responses are provided in Section II of this document.
On October 19, 2004, the PADEP submitted a supplement to its
December 3, 2003 SIP revision. The supplement includes a nonsubstantive
correction notice published in the Pennsylvania Bulletin, 33 Pa. B.
5618 (November 15, 2003) which corrects numbering and typographical
errors that appeared at 33 Pa. B. 5297 (October 25, 2003) in the
adoption of Chapter 130, Subchapter C. (relating to architectural and
maintenance coatings). The subsections in Subchapter C. Architectural
and Industrial Maintenance Coatings have been corrected to number as
subsections 130.601--130.611. The supplement also includes the codified
version of the Pennsylvania AIM coating regulation, 25 Pa. Code,
Subchapter C. Subsections 130.601-130.611, effective October 25, 2003.
EPA is aware that concerns have been raised about the achievability
of VOC content limits of some of the product categories under the
Pennsylvania AIM coatings rule. EPA understands that under the
Commonwealth's rule these concerns may be addressed through a variance
process, which we support, that may result in changes to the limits for
certain categories. Although we are approving this rule today, the
Agency is concerned that if the rule's limits make it impossible for
manufacturers to produce coatings that are desirable to consumers,
there is a possibility that users may misuse the products by adding
additional solvent, thereby circumventing the rule's intended VOC
emission reductions. We intend to work with the Commonwealth and
manufacturers to explore ways to ensure that the rule achieves the
intended VOC emission reductions, and we intend to address this issue
in evaluating the amount of VOC emission reduction credit attributable
to the rule.
II. Public Comments and EPA Responses
A. Comment: Request for Clarification--One commenter, the
Department of the Navy on behalf of the Department of Defense (DOD),
compliments PADEP and EPA for their effort to ensure that Pennsylvania
attains and maintains compliance with the National Ambient Air Quality
Standards (NAAQS). The DOD requests clarification of the Applicability
subsection of Pennsylvania's rule (citing to 25 Pa. Code subsection
130.601). The DOD states that in response to the difficulty military
installations have had with managing hazardous materials, the military
services adopted and implemented an innovative approach to managing
hazardous materials, including AIM coatings that are used in the
military installations. The DOD explains that this approach establishes
a single point of control and accountability over the purchase, receipt
and distribution of hazardous materials to the various organizations
around a military installation. This ``single point of control''
receives, approves, and processes all requests for hazardous materials
submitted by the various organizations on an installation. The DOD goes
on to state that once the materials are ordered, purchased and obtained
by this ``single point of control,'' this unit ``supplies'' the various
organizations with requested amounts of particular hazardous material
for use. The DOD requests that a definition be added to Pennsylvania's
regulation that would state that the term ``Supply'' or ``Supplied''
does not include internal transactions within a business or government
entity, and that the term only applies to transactions between
manufacturers/commercial distributors that sell, or otherwise provide
AIM coating products to businesses/governmental entities/individuals.
Alternatively, the DOD requests that either PADEP provide a written
reply clarifying whether the terms ``supply or ``supplied'' apply to
``the single point of contact'' at military installations, or that EPA
clarify this issue in its response to comments.
Response: Throughout its comments to EPA, the DOD refers to the
Pennsylvania AIM coatings rule as a proposed regulation. In fact, this
AIM coatings regulation has been fully adopted by the Commonwealth of
Pennsylvania (see 33 Pa. B. 5297, October 25, 2003, 33 Pa. B. 5618,
[[Page 68081]]
November 15, 2003 and 25 Pa. Code Subsections 130.601-130.611) and was
submitted to EPA for approval as revision to the Pennsylvania SIP on
December 3, 2003. EPA's March 11, 2004 NPR proposed approval of
Pennsylvania's request that its fully adopted AIM coatings regulation
be made part of the SIP. EPA can only take action on a SIP revision as
it is submitted by a state, and cannot, through its rulemaking action,
alter the state's submission. EPA, however, does hereby clarify that it
interprets that the ``single point of control'' system that the
military services have developed to manage hazardous materials does not
subject military installations to the rule in as much as they do not
sell, offer for sale or manufacture architectural coating products. The
DOD does have the obligation under section 130.601 of the rule to
ensure that the products a person ``applies or solicits'' meet the
requirements of the rule.
B. Comment: Paperwork Requirements for End Users--The DOD comments
that a few scattered references to the ``end user'' in Pennsylvania's
AIM coatings rule subject the end user of AIM coatings to additional
reporting and monitoring requirements (e.g., prove that every time a
coating is used, it is not thinned beyond allowable limits). The DOD
goes on to state that as it is DOD's practice to use coatings as
specified by the manufacturer, as an end user it will be subjected to
additional burdensome paperwork requirements without any demonstrable
reductions in VOC emissions. The DOD, therefore request that 25 Pa.
Code subsection 130.603 (c) Thinning and (d) Rust Preventative Coatings
be deleted from Pennsylvania's AIM coatings rule. (From its context, it
is clear that the DOD's comment is in reference to 130.603(d) Thinning
and (e) Rust Preventative Coatings in Pennsylvania's AIM coatings
regulation.)
Response: Pennsylvania's AIM coatings rule does not use the term
``end user'' but rather the term ``the person who solicits and
applies.'' As indicated in EPA's response to Comment A, EPA's March 11,
2004 NPR proposed approval of Pennsylvania's request that its fully
adopted AIM coatings rule be made part of the SIP. EPA can only take
action on a SIP revision as it is submitted by a state, and cannot,
through its rulemaking action, alter the state's submission. EPA,
cannot, therefore, delete paragraphs (d) Thinning and (e) Rust
Preventative Coatings from section 130.603 of the Pennsylvania AIM
coatings rule by its rulemaking on the SIP revision submission. EPA,
however, does hereby clarify that it does not interpret 130.603 (d) and
(e) to require the person who solicits and applies to keep records ``to
prove that every time a coating is used, it is not thinned beyond
allowable limits.'' Rather each manufacturer is to comply with
subsection 130.604(a)(2) Thinning Recommendations, and indicate on the
label or lid its recommendations regarding thinning of the coating or
specify that the coating is to be applied without thinning. So long as
the person who solicits and applies coatings (or end user) does so in
accordance with the VOC limits found in Table 1 of Pennsylvania's AIM
coatings rule, that person would be in compliance.
C. Comment: Container Labeling Requirements--In its final comment,
the DOD states that while manufacturers of any architectural coatings
are required to display certain information, such as VOC content, on
the container, they are not required to identify the applicable coating
category on the container. The DOD comments that for easy verification
of VOC compliance by the user, 25 Pa. Code subsection 130.604 should be
amended to require the coating category be listed next to VOC content.
Response: For the purposes satisfying the requirements for approval
as a SIP revision, EPA has determined that the container labeling
requirements found at section 130.604 of Pennsylvania's AIM coatings
rule are adequate.
D. Comment: The Pennsylvania AIM Coatings Rule is Based on Flawed
Data--Additional comments on EPA's March 11, 2004 NPR proposing
approval of Pennsylvania's AIM coatings rule have been submitted on
behalf of the Sherwin Williams Company and from the National Paint and
Coatings Association (NPCA), hereafter referred to as the commenters.
The comments from NPCA reference and endorse the comments submitted on
behalf of the Sherwin Williams Company and reiterate the comments made
to the Commonwealth by NPCA during Pennsylvania's rule adoption
process. The commenters assert that the Pennsylvania AIM coatings rule
is based on flawed data and that the use of this data violates the Data
Quality Objectives Act (``DQOA'') (Section 515(a) of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Public Law
106-554; H.R. 5658)). The data at issue is contained in what the
commenters characterize as a ``study prepared by E.H. Pechan &
Associates'' (``Pechan Study'') in 2001. The alleged flaws relate to
emissions reductions calculated in the Pechan Study; certain of the
underlying data and data analyses are allegedly ``unreproduceable.''
Further, the commenters assert that if better data were used, the OTC
model AIM coatings rule would achieve greater VOC emissions reductions,
relative to the Federal AIM coatings rule, than was calculated in the
Pechan Study (51 percent reduction versus 31 percent reduction), even
if certain source categories were omitted from regulation under the OTC
rule. For these reasons, the commenters state that EPA must not approve
the proposed Pennsylvania AIM coatings rule as a revision to the
SIP.\1\
---------------------------------------------------------------------------
\1\ One of the commenters has submitted a ``Request for
Correction of Information'' (RFC) dated June 2, 2004, to EPA's
Information Quality Guidelines Office in Washington, DC. EPA is
evaluating and will respond separately to the RFC, which raises
substantively similar issues to those raised by this comment.
---------------------------------------------------------------------------
Response: EPA disagrees with this comment. What the commenters
characterize as the Pechan Study is not at issue in this rulemaking.
The Pechan Study was not submitted to EPA by the Commonwealth in
support of its AIM coatings rule. Further, even if the Pechan Study had
been submitted by the Commonwealth the validity of that data would not
be at issue because, at this time, Pennsylvania is not asking for
approval of any quantified amount of VOC emission reduction from the
enactment of its regulation. Rather, this regulation has been submitted
by the Commonwealth, and is being considered by EPA, on the basis that
it strengthens the existing Pennsylvania SIP. The commenters do not
dispute that the Pennsylvania AIM coatings rule will, in fact, reduce
VOC emissions.
Section 110 of the Act provides the statutory framework for
approval/disapproval of SIP revisions. Under the Act, EPA establishes
NAAQS for certain pollutants. The Act establishes a joint Federal and
state program to control air pollution and to protect public health.
States are required to prepare SIPs for each designated ``air quality
control region'' within their borders. The SIP must specify emission
limitations and other measures necessary for that area to meet and
maintain the required NAAQS. Each SIP must be submitted to EPA for its
review and approval. EPA will review and must approve the SIP revision
if it is found to meet the minimum requirements of the Act. See Section
110(k)(3) of the Act; see also Union Elec. Co. v. EPA, 427 U.S. 246,
265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). The Act expressly provides
that the states may adopt more stringent air pollution control measures
than the Act requires with or without EPA approval. See Section 116 of
the Act. EPA only has power to disapprove state plans,
[[Page 68082]]
and revisions thereto, that are less stringent than a standard or
limitation provided by Federal law. See Section 110(k) of the Act; see
also Duquesne Light v. EPA, 166 F.3d 609 (3d Cir. 1999).
The Pechan Study is not part of the Commonwealth's submission in
support of its AIM coatings rule. Because the Commonwealth's December
3, 2003 submission is not claiming a specific amount of emissions
reductions, the level of emissions reductions that might be calculable
using data contained in the Pechan Study is irrelevant to whether EPA
can approve this SIP revision.\2\ The only relevant inquiry at this
time is whether this SIP revision meets the minimum criteria for
approval under the Act, including the requirement that the
Commonwealth's AIM coatings rule be at least as stringent as the
Federal AIM coatings rule set forth at 40 CFR 59.400, subpart D.
---------------------------------------------------------------------------
\2\ After submission of a request for approval of a quantified
amount of emissions reductions credit due to the AIM coatings rule,
EPA will evaluate the credit attributable to the rule. Whatever
methodology and data the State uses in such a request, the issue of
proper credit will become ripe for public comment and any comments
received will be responded to at that time.
---------------------------------------------------------------------------
As set forth herein, EPA has concluded that the Pennsylvania AIM
coatings rule meets the criteria for approvability. It is worth noting
that EPA agrees with the commenters' conclusion that the Pennsylvania
AIM coatings rule is more stringent than the Federal AIM coatings rule,
though not for the reasons given by the commenters, i.e., that the
commenters' ``better'' data demonstrates that OTC Model AIM coatings
Rule achieves a 51 percent, as opposed to the Pechan Study's 31 percent
reduction in VOC emissions beyond that required by the Federal AIM
coatings rule. Rather, the Pennsylvania AIM coatings rule is, on its
face, more stringent than the Federal AIM coatings rule. The preamble
of the Pennsylvania AIM coatings rule states: ``This final-form
rulemaking sets specific VOC content limits, in grams per liter, for 48
AIM coating categories and requires more stringent VOC content limits
than the Federal rule.'' 33 Pa. B. 5297 (October 25, 2003). Examples of
where Pennsylvania's AIM coatings rule is facially more stringent than
the Federal AIM coatings rule include, but are not limited to, the VOC
content limit for non-flat high gloss coatings and antifouling
coatings. The Federal AIM coatings rule VOC content limit for non-flat
high gloss coatings is 380 grams/liter while the Pennsylvania AIM
coatings rule's limit is 250 grams/liter, and the Federal AIM coatings
rule's VOC content limit for anti-fouling coatings is 450 grams/liter
while the Pennsylvania AIM coatings rule's is 400 grams/liter. Examples
of where Pennsylvania AIM coatings rule is as stringent, but not more
stringent, than the Federal AIM coatings rule include, but are not
limited to, the VOC content limit for antenna coatings and low-solids
coatings. In both rules the VOC content limits for these categories are
530 grams/liter and 120 grams/liter, respectively. Thus, on a category
by category basis, the Pennsylvania AIM coatings rule is as stringent
or more stringent than the Federal AIM coatings rule. Further, EPA has
received no comments that the Pennsylvania AIM coatings rule is less
stringent than the Federal rule.
E. Comment: Approval of the Pennsylvania AIM Coatings rule as a SIP
Revision Violates Clean Air Act Sections 110(a)(2)(A) and
110(a)(2)(E)--With respect to Sections 110(a)(2)(A) and 110(a)(2)(E) of
the Act, the commenters assert that Pennsylvania cannot give the
assurances required by these provisions of the Act since each provision
requires that a state be able to assure that SIP revisions ``meet
applicable requirements'' of the Act, and that no ``Federal or State
law'' prohibits the state from ``carrying out such implementation plan
or portion thereof.'' Such assurance cannot be given, the commenters
allege, because the Pennsylvania AIM coatings rule violates the DQOA,
Sections 183(e)(9) and 184(c) of the Act, and Sections 4004.2 and 4005
of the Pennsylvania Air Pollution Control Act (PAPCA).
Response: For the reasons set forth herein and in responses to
comments D. and F.-J., EPA disagrees that the Pennsylvania AIM coatings
rule violates the DQOA, the provisions of the CAA or the PAPCA.
Therefore, nothing prevents Pennsylvania from giving the assurances
contemplated by Sections 110(a)(2)(A) and (a)(2)(E) of the Act.
Section C. of the preamble of Pennsylvania's rule states: `` The
final form rulemaking is being made under section 5 of the Air
Pollution Control Act ( 35 P.S. subsection 4005), which grants the
[Pennsylvania Environmental Quality Board (the EQB)] the authority to
adopt regulations for the prevention, control, reduction and abatement
of air pollution.'' See C. Statutory Authority, 33 Pa. B. 5297 (October
25, 2003). The EQB made the Finding that ``This rulemaking is necessary
and appropriate for administration and enforcement of the authorizing
acts identified in Section C of this preamble.'' See J. Findings,
paragraph (4), 33 Pa. B. 5306 (October 25, 2003).
Under 4004.2 of the PAPCA, in order for the Commonwealth to adopt a
rule for the State Implementation Plan that is more stringent than its
comparable Federal requirement, the EQB must find that the rule is
reasonably necessary to achieve and maintain the NAAQS or find the rule
is necessary to avoid the impositions of sanctions under the Act. For
the Pennsylvania AIM coatings rule, the EQB made those Findings. See J.
Findings, paragraphs (5) and (6), 33 Pa. B. 5306 (October 25, 2003).
The EQB, acting under the authorizing statutes, ordered that the
regulations of the PADEP are amended by adding Subsections 130.601-
130.611 (as correctly renumbered 33 Pa. B. 5618, November 18, 2003) as
set forth in Annex A, which has been codified as 25 Pa. Code Chapter
130, Subchapter C--the Pennsylvania AIM coatings rule--that is the
subject of this SIP revision. Further the EQB ordered that its
Chairperson submit the Order and Annex A to the Office of the General
Counsel and the Office of the Attorney General for review and approval
as to legality and form, as required by law. The EQB also ordered that
its Chairperson submit its Order and Annex A to the Independent
Regulatory Review Committee (IRRC) and the Senate and House
Environmental Resources and Energy Committees as required by
Pennsylvania's Regulatory Review Act. The EQB also ordered that its
Chairperson certify the Order and Annex A and deposit them with the
Legislative Reference Bureau as required by law. Finally the EQB
ordered that its Order shall take effect immediately upon publication
in the Pennsylvania Bulletin. See K. Order, paragraphs (a)-(e), 33
Pennsylvania Bulletin 5306 (October 25, 2003). The Order was adopted by
the Board at its July 15, 2003 meeting. Between the July 15, 2003
adoption date of the Order and the October 25, 2003 date of its
publication in the Pennsylvania Bulletin, the reviews as to legality
and form of 25 Pa. Code Chapter 130, Subchapter C--the Pennsylvania AIM
coatings rule were performed. The PADEP Office of General Counsel
approved 25 Pa. Code, Chapter 130, Subchapter C as to its legality and
form on July 24, 2003. The IRRC approved 25 Pa. Code, Chapter 130,
Subchapter C as to its legality and form on September 12, 2003. The
Office of the Attorney General for the Commonwealth of Pennsylvania
approved 25 Pa. Code, Chapter 130, Subchapter C as to its legality and
form on October 3, 2003. EPA, in its review of the SIP revision
submission of the Pennsylvania AIM coatings rule, has
[[Page 68083]]
found no reason to indicate that the review performed by PADEP's Office
of the General Counsel, the IRRC and the Office of the Attorney General
for the Commonwealth of Pennsylvania as to the legality of its AIM
coatings rule under State law, is insufficient. (Documentation of the
approvals by the Office of General Counsel, the IRRC and the Office of
the Attorney General have been made part of the administrative record
of this final rulemaking).
F. Comment: The PA AIM Coatings Rule Was Adopted in Violation of
Clean Air Act Section 183(e)(9)--The commenters state that in 1998,
after a seven-year rule development process, EPA promulgated its
nationwide regulations for AIM coatings pursuant to Section183(e) of
the Act. The commenters note that Pennsylvania's AIM coatings rule
imposes numerous VOC emission limits that will be more stringent than
the corresponding limits in EPA's regulation. The commenters assert
that Section 183(e)(9) of the Act requires that any state which
proposes regulations to establish emission standards other than the
Federal standards for products regulated under Federal rules shall
first consult with the EPA Administrator. The commenters believe that
Pennsylvania failed to engage in that required consultation, and,
therefore (1) Pennsylvania violated Section 183(e)(9) in its adoption
of the Pennsylvania AIM coatings rule, and (2) approval of the AIM
coatings rule by EPA would violate, and is, therefore, prohibited by
Sections 110(a)(2)(A) and (a)(2)(E) of the Act.
Response: EPA disagrees with this comment. Contrary to the
implication of the commenters, Section 183(3)(9) does not require
states to seek EPA's permission to regulate consumer products. By its
explicit terms, the statute contemplates consultation with EPA only
with respect to ``whether any other state or local subdivision has
promulgated or is promulgating regulations or any products covered
under [section 183(e)].'' The commenters erroneously construe this as a
requirement for permission rather than informational consultation.
Further, the final Federal architectural coatings regulations at 40 CFR
59.410 explicitly provides that States and their political subdivisions
retain authority to adopt and enforce their own additional regulations
affecting these products. See also, 63 FR 48848, 48884. In addition, as
stated in the preamble to the final rule for architectural coatings,
Congress did not intend Section 183(e) to preempt any existing or
future State rules governing VOC emissions from consumer and commercial
products. See 63 FR 48848, 48857. Accordingly, PADEP retains authority
to impose more stringent limits for architectural coatings as part of
its SIP, and its election to do so is not a basis for EPA to disapprove
the SIP. See, Union Elec Co. v. EPA, 427 U.S. at 265-66 (1976).
Although national uniformity in consumer and commercial product
regulations may have some benefit to the regulated community, EPA
recognizes that some localities may need more stringent regulation to
combat more serious and more intransigent ozone nonattainment problems.
Further, there was ample consultation with EPA prior to the
Commonwealth's adoption of its AIM coatings rule. On March 28, 2001 the
OTC adopted a Memorandum of Understanding (MOU) on regional control
measures, signed by all the member states of the OTC, including
Pennsylvania, which officially made available the OTC model rules,
including the AIM coatings model rule. See the discussion of this MOU
in the Report of the Executive Director, OTC, dated July 24, 2001, a
copy of which has been included in administrative record of this final
rulemaking.
That MOU includes the following text, ``WHEREAS after reviewing
regulations already in place in OTC and other States, reviewing
technical information, consulting with other States and Federal
agencies, consulting with stakeholders, and presenting draft model
rules in a special OTC meeting, OTC developed model rules for the
following source categories * * * architectural and industrial
maintenance coatings * * *'' (a copy of the signed March 28, 2001 MOU
has been placed in the administrative record of this final rulemaking).
EPA Region III and the Commonwealth of Pennsylvania negotiated the
adoption of the OTC model rules in the FY 2003 Work Plan for PADEP's
annual State Assistance Grant under Section 105 of the Act. The
commitment included in the Grant Work Plan (which was approved and
funded by EPA under Section 105 of the Act) stated that the PADEP would
continue to submit outstanding rules developed in accordance with the
March 28, 2001 OTC MOU as SIP revisions by September 9, 2003. The
relevant page of the FY 2003 Grant Work Plan has been placed in the
administrative record of this final rulemaking.
Therefore, there is no validity to the commenters' assertion that
Pennsylvania failed to consult with EPA in the adoption of its AIM
coatings rule. EPA was fully cognizant of the requirements of the
Pennsylvania AIM coatings rule before its formal adoption by the
Commonwealth.\3\ For all these reasons, EPA disagrees that Pennsylvania
violated Section 183(e)(9) in its adoption of the its AIM coatings
rule, and disagrees that approval of the Pennsylvania AIM coatings rule
by EPA is in violation of or prohibited by Section 110(a)(2)(A) and
(a)(2)(E) of the Act.
---------------------------------------------------------------------------
\3\ While EPA reviewed the model AIM coatings rule and the draft
Pennsylvania version of that rule, EPA had no authority conferred
under the Clean Air Act to dictate the exact language or
requirements of the rule beyond the general requirement that the
Pennsylvania rule, in order to be approvable as a SIP revision, must
be at least as stringent as its Federal counterpart.
---------------------------------------------------------------------------
G. Comment: The PA AIM Coatings Rule Was Adopted in Violation of
Clean Air Act Section 184(c), and Approval of the SIP Revision Would,
Itself, Violate That Section--The commenters believe the OTC violated
Section 184(c)(l) of the Act by failing to ``transmit'' its
recommendations to the Administrator, and that the OTC's violation was
compounded by the Administrator's failure to review the Model Rule
through the notice, comment and approval process required by CAA
Sections 184(c)(2)-(4). These alleged violations of the Act should have
prevented Pennsylvania from adopting the Pennsylvania AIM coatings
Rules, and now prevent EPA from validly approving them as a revision to
the Pennsylvania SIP.
Response: EPA disagrees with this comment. Section 184(c)(1) of the
Act states that ``the [OTC] may, after notice and opportunity for
public comment, develop recommendations for additional control measures
to be applied within all or a part of such transport region if the
commission determines such measures are necessary to bring any area in
such region into attainment by the dates provided by this subpart.'' It
is important to note that the OTC model AIM coatings rule was not
developed pursuant to Section 184(c)(1), which provision is only
triggered ``[u]pon petition of any State within a transport region
established for ozone * * *.'' No such petition preceded the
development of the model AIM coatings rule. Nor, for that matter, was
development of a rule upon State petition under Section 184(e)(1) meant
to be the exclusive mechanism for development of model rules within the
OTC. Nothing in Section 184 prevents the voluntary development of model
rules without the prerequisite of a state petition. This provision of
the Act was not intended to prevent OTC's
[[Page 68084]]
development of model rules which states may individually choose to
adapt and adopt on their own, as Pennsylvania did, basing its AIM
coatings rule on the model developed within the context of the OTC. In
developing its State rule from the OTC model, Pennsylvania was free to
adapt that rule as it saw fit (or to leave the OTC model rule
essentially unchanged), so long as its rule remained at least as
stringent as the Federal AIM coatings rule.
As previously stated, on March 28, 2001, the OTC member states
signed a MOU on regional control measures, including the AIM coatings
model rule. The OTC did not develop recommendations to the
Administrator for additional control measures. The MOU stated that
implementing these rules will help attain and maintain the 1-hour
standard for ozone and were therefore made available to the states for
use in developing their own regulations.
Even though the OTC did not develop the model AIM coatings rule
pursuant to Section 184(c)(1) of the Act, nevertheless it provided
ample opportunity for OTC member and stakeholder comment by holding
several public meetings concerning the model rules including the AIM
coatings model rule. The sign-in sheets or agenda for four meetings
held in 2000 and 2001 at which the OTC AIM coatings model was discussed
(some of which reflect the attendance of a representative of the EPA
and/or the commenters), have been placed in the administrative record
for this final rulemaking.
H. Comment: The PA AIM Coatings Rule Was Adopted in Violation of
the Pennsylvania Air Pollution Control Act (PAPCA)--The commenters
assert that the General Assembly of the Commonwealth of Pennsylvania,
when it amended the PAPCA in 1992, addressed the issue of consumer
product regulation, not by delegating rulemaking authority to the EQB,
but by conferring limited enforcement authority upon PADEP. The
commenters state that the Legislature authorized PADEP to enforce the
Federal standards, not to promulgate its own more stringent standards.
The commenters cite to a provision of the PAPCA which confers upon the
PADEP the power and duty to develop and submit to EPA procedures to
implement and enforce the regulations which EPA adopts under Section
183(e) of the Act to reduce emissions from consumer and commercial
products, provided the PADEP will receive the credits attributed to the
Federal consumer and commercial products regulations under Section 182
of the CAA regulations, and that the PADEP has the resources to
implement and enforce the program. 35 P.S. subsection 4004. The
commenters also cite to the PAPCA subsection 4005 for the proposition
that the EQB's rulemaking authority powers are specifically enumerated
in thirteen explicit subsections, none of which mention consumer
products (with a footnote to an exception in 4005(a)(13) related to
aerospace coatings). The commenters also point to PAPCA subsection
4004.2 to note that it is the Legislature's expressed intent that
delegated rulemaking authority not be broadly construed but is limited
by a requirement that any rule adopted by the EQB under the PAPCA be no
more stringent than a specific Federal rule. The commenters conclude,
therefore, that if Pennsylvania chooses to regulate AIM coatings beyond
the levels set by EPA, that choice must be made by the Pennsylvania
General Assembly in the form of a specific statute or by delegating
additional specific rulemaking authority to the EQB, and as such
delegation is absent, the Pennsylvania AIM coatings rule is unlawful as
a matter of Pennsylvania law.
Response: EPA disagrees with this comment. The commenters'
citations to the PAPCA are incomplete with regard to the ability of the
Commonwealth to adopt air pollution control regulations that are more
stringent than comparable Federal requirements. The commenters fail to
note the provisions under PAPCA subsection 4004.2(b) whereby the
Commonwealth may adopt a rule for the State Implementation Plan that is
more stringent than its comparable Federal requirement, if the EQB
finds that the rule is reasonably necessary to achieve and maintain the
NAAQS or necessary to avoid the impositions of sanctions under the Act.
Pennsylvania adopted its AIM coatings rule to achieve additional VOC
reductions from AIM coatings. The Pennsylvania AIM coatings rule is a
part of the Commonwealth's strategy to achieve and maintain the ozone
standard throughout the Commonwealth. The Federal AIM coatings rule was
promulgated in 1998. To capture additional VOC emission reductions, the
Commonwealth adopted its more stringent AIM coatings rule in October of
2003. As EPA notes in its response to Comment B., the Pennsylvania AIM
coatings rule sets specific VOC content limits, in grams per liter, for
48 AIM coating categories and requires, for certain categories, more
stringent VOC content limits than the Federal Rule. As indicated in
EPA's response to Comment D., EPA acknowledges that under the PAPCA, in
order for the EQB to adopt a rule for the State Implementation Plan
that is more stringent than its comparable Federal requirement, the EQB
must find that the rule is reasonably necessary to achieve and maintain
the NAAQS or to avoid the imposition of sanctions. For the Pennsylvania
AIM coatings rule, the EQB made those Findings. See J. Findings,
paragraphs (5) and (6), 33 Pennsylvania Bulletin 5306 (October 25,
2003). Consequently, EPA believes that the EQB has made the requisite
findings for the adoption of rules and regulations more stringent than
those required by the Act. Moreover, the Office of General Counsel for
PADEP, the Commonwealth's IRRC, and the Office of the Attorney General
for the Commonwealth of Pennsylvania have each approved the
Pennsylvania AIM coatings rule with regard to its legality and form
under Pennsylvania law. See EPA's response to Comment E. EPA, in its
review of the SIP revision submission of the Pennsylvania AIM coatings
rule, has found no reason to indicate that the review performed by
PADEP's Office of the General Counsel, the IRRC and the Office of the
Attorney General for the Commonwealth of Pennsylvania as to the
legality of its AIM coatings rule under State law, is insufficient. EPA
has, therefore, determined pursuant to Section 110(a)(2)(E) of the
Clean Air Act and 40 CFR section 51, appendix V, that Pennsylvania has
provided the necessary assurances that it has adequate authority to
implement the SIP revision and that it has followed all the procedural
requirements of Pennsylvania's laws and constitution in adopting the
SIP revision submitted to EPA.
I. Comment: The Pennsylvania AIM Coatings Rule Violates the
Commerce Clause of the U.S. Constitution--The commenters claim that the
Pennsylvania AIM coatings rule violates the Commerce Clause of Article
I, Section 8, of the U.S. Constitution, because it imposes an
unreasonable burden on interstate commerce. The commenters assert that
because the Pennsylvania AIM coatings rule contains VOC limits and
other provisions that differ from the Federal AIM coatings rule in 40
CFR 59.400, the rule causes an unreasonable restriction on coatings in
interstate commerce. The commenters further assert that the burdens of
the Pennsylvania AIM coatings rule are excessive and outweigh the
benefits of the rule. The commenters suggest that EPA should disapprove
the SIP revision on this basis.
[[Page 68085]]
Response: EPA agrees with this comment only to the extent that it
acknowledges that AIM coatings are products in interstate commerce and
that state regulations on coatings therefore have the potential to
violate the Commerce Clause. EPA understands the commenters' practical
concerns caused by differing state regulations, but disagrees with the
commenters' view that the Pennsylvania AIM coatings rule impermissibly
impinges on interstate commerce. A state law may violate the Commerce
Clause in two ways: (i) By explicitly discriminating between interstate
and intrastate commerce; or (ii) even in the absence of overt
discrimination, by imposing an incidental burden on interstate commerce
that is markedly greater than that on intrastate commerce. The
Pennsylvania AIM coatings rule does not explicitly discriminate against
interstate commerce because it applies evenhandedly to all coatings
manufactured or sold for use within the state. At most, therefore, the
Pennsylvania AIM coatings rule could have an incidental impact on
interstate commerce. In the case of incidental impacts, the Supreme
Court has applied a balancing test to evaluate the relative impacts of
a state law on interstate and intrastate commerce. See, Pike v. Bruce
Church, Inc., 397 U.S. 137 (1970). Courts have struck down even
nondiscriminatory state statutes when the burden on interstate commerce
is ``clearly excessive in relation to the putative local benefits.''
Id. at 142.
At the outset, EPA notes that it is unquestionable that the
Commonwealth has a substantial and legitimate interest in obtaining VOC
emissions for the purpose of attaining the ozone NAAQS. The adverse
health consequences of exposure to ozone are well known and well
established and need not be repeated here. See, e.g., National Ambient
Air Quality Standards for Ozone: Final Response to Remand, 68 FR 614,
620-25 (January 6, 2003). Thus, the objective of the Commonwealth in
adopting the Pennsylvania AIM coatings rule is to protect the public
health of the citizens of Pennsylvania. The courts have recognized a
presumption of validity where the state statute affects matters of
public health and safety. See, e.g., Kassel v. Consolidated Freightways
Corp. of Delaware, 450 U.S. 662, 671 (1980). Moreover, even where the
state statute in question is intended to achieve more general
environmental goals, courts have upheld such statutes notwithstanding
incidental impacts on out of state manufacturers of a product. See,
e.g, Minnesota v. Clover Leaf Creamery, et al., 449 U.S. 456
(1981)(upholding state law that banned sales of milk in plastic
containers to conserve energy and ease solid waste problems).
The commenters assert, without reference to any facts, that the
Pennsylvania AIM coatings rule imposes burdens and has impacts on
consumers that are ``clearly excessive in relation to the purported
benefits * * *'' By contrast, EPA believes that any burdens and impacts
occasioned by the Pennsylvania AIM coatings rule are not so
overwhelming as to trump the state's interest in the protection of
public health. First, the Pennsylvania AIM coatings rule does not
restrict the transportation of coatings in commerce itself, only the
sale of nonconforming coatings within the state's own boundaries. The
state's rule excludes coatings sold or manufactured for use outside the
state or for shipment to others. 25 Pa. Code. 130.601(1). The
Pennsylvania AIM coatings rule cannot be construed to interfere with
the transportation of coatings through the state en route to other
states. As such, EPA believes that the cases concerning impacts on the
interstate modes of transportation themselves are inapposite. See,
e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1938).
Second, the Pennsylvania AIM coatings rule is not constructed in
such as way that it has the practical effect of requiring
extraterritorial compliance with the state's VOC limits. The
Pennsylvania AIM coatings rule only governs coatings manufactured or
sold for use within the state's boundaries. The manufacturers of
coatings in interstate commerce are not compelled to take any
particular action, and they retain a range of options to comply with
the rule, including, but not limited to: (1) Ceasing sales of
nonconforming products in Pennsylvania; (2) reformulating nonconforming
products for sale in Pennsylvania and passing the extra costs on to
consumers in that state; (3) reformulating nonconforming products for
sale more broadly; (4) developing new lines of conforming products; or
(5) entering into production, sales or marketing agreements with
companies that do manufacture conforming products. Because
manufacturers or sellers of coatings in other states are not forced to
meet Pennsylvania's regulatory requirements elsewhere, the rule does
not impose the type of obligatory extraterritorial compliance that the
courts have considered unreasonable. See, e.g., NEMA v. Sorrell, 272
F.3d 104 (2nd Cir. 2000) (state label requirement for light bulbs
containing mercury sold in that state not an impermissible
restriction). It may be that the Pennsylvania AIM coatings rule will
have the effect of reducing the availability of coatings or increasing
the cost of coatings within the State, but courts typically view it as
the prerogative of the state to make regulatory decisions with such
impacts upon its own citizens. NPCA v. City of Chicago, 45 F.3d 1124
(7th Cir. 1994), cert. denied, 515 U.S. 1143 (1995) (local restriction
on sales of paints used by graffiti artists may not be the most
effective means to meet objective, but that is up to the local
government to decide).
Third, the burdens of the Pennsylvania AIM coatings rule typically
do not appear to fall more heavily on interstate commerce than upon
intrastate commerce. The effect on manufacturers and retailers will
fall on all manufacturers and retailers regardless of location if they
intend their products for sale within Pennsylvania, and does not appear
to have the effect of unfairly benefitting in-state manufacturers and
retailers. The mere fact that there is a burden on some companies in
other states does not alone establish impermissible interference with
interstate commerce. See, Exxon Corp. v. Maryland, 437 U.S. 117, 126
(1978).
In addition, EPA notes that courts do not typically find violations
of the Commerce Clause in situations where states have enacted state
laws with the authorization of Congress. See, e.g., Oxygenated Fuels
Assoc., Inc. v. Davis, 63 F. Supp. 1182 (E.D. Cal. 2001) (state ban on
MTBE authorized by Congress); NEMA v. Sorell, 272 F.3d 104 (2nd Cir.
2000) (RCRA's authorization of more stringent state regulations confers
a ``sturdy buffer'' against Commerce Clause challenges). Section 183(e)
of the Act governs the Federal regulation of VOCs from consumer and
commercial products, such as coatings covered by the Pennsylvania AIM
coatings rule. EPA has issued a Federal regulation that provides
national standards, including VOC content limits, for such coatings.
See 40 CF 59.400 et seq. Congress did not, however, intend Section
183(e) to pre-empt additional state regulation of coatings, as is
evident in Section 183(e)(9) which indicates explicitly that states may
regulate such products. EPA's regulations promulgated pursuant to the
Act recognized that states might issue their own regulations, so long
as they meet or exceed the requirements of the Federal regulations.
See, e.g., the National Volatile Organic Compound Emission Standards
for Architectural Coatings, 40 CFR 59.410, and the
[[Page 68086]]
Federal Register which published the standards, 63 FR 48848, 48857
(September 11, 1998). Thus, EPA believes that Congress has clearly
provided that a state may regulate coatings more stringently than other
states.
In Section 116 of the Act, Congress has also explicitly reserved to
states and their political subdivisions the right to adopt local rules
and regulations to impose emissions limits or otherwise abate air
pollution, unless there is a specific Federal preemption of that
authority. When Congress intended to create such Federal preemption, it
does so through explicit provisions. See, e.g., Section 209(a) of the
Act, which pertains to state or local emissions standards for motor
vehicles; and Section 211 of the Act which pertains to fuel standards.
Moreover, the very structure of the Act is based upon ``cooperative
federalism,'' which contemplates that each state will develop its own
state implementation plan, and that states retain a large degree of
flexibility in choosing which sources to control and to what degree in
order to attain the NAAQS by the applicable attainment date. Union
Electric Co. v. EPA, 427 U.S. 246 (1976). Given the structure of the
Act, the mere fact that one state might choose to regulate sources
differently than another state is not, in and of itself, contrary to
the Commerce Clause.
Finally, EPA understands that there may be a practical concern that
a plethora of state regulations could create a checkerboard of
differing requirements would not be the best approach to regulating
VOCs from AIM coatings or other consumer products. Greater uniformity
of standards does have beneficial effects in terms of more cost
effective and efficient regulations. As EPA noted in its own AIM
coatings rule, national uniformity in regulations is also an important
goal because it will facilitate more effective regulation and
enforcement, and minimize the opportunities for undermining the
intended VOC emission reductions. 63 FR 48856-48857. However, EPA also
recognizes that Pennsylvania and other states with longstanding ozone
nonattainment problems have local needs for VOC reductions that may
necessitate more stringent coatings regulations. Under Section 116 of
the Act, states have the authority to do so, and significantly, many
states in the Northeast have joined together to prepare and promulgate
regulations more restrictive than the Federal AIM coatings rule to
apply uniformly across that region. This regional collaboration
provides regional uniformity of standards. Pennsylvania may have
additional burdens to insure compliance with its rule, but for purposes
of this action EPA presumes that the Commonwealth take appropriate
actions to enforce it as necessary. The EPA has no grounds for
disapproval of the SIP revision based upon the commenters' Commerce
Clause comment.
J. Comment: The Emission Limits and Compliance Schedule in the
Pennsylvania AIM Coatings Rule are Neither Necessary nor Appropriate to
Meet Applicable Requirements of the Clean Air Act--The commenters claim
that the Pennsylvania AIM coatings rule is not ``necessary or
appropriate'' for inclusion in the Pennsylvania SIP, because EPA did
not direct Pennsylvania to achieve VOC reductions through the AIM
coatings rule, but left it to the State to decide how such reduction
can be achieved. The commenters further assert that the Pennsylvania
AIM coatings rule is not necessary or appropriate for inclusion in the
Pennsylvania SIP because of the numerous procedural and substantive
failings on the part of PADEP in promulgating the rule.
Response: EPA disagrees with this comment. If fulfillment of the
``necessary or appropriate'' condition of Section 110(a)(2)(A) required
EPA to determine that a measure was necessary or appropriate and
require a state to adopt that measure, this condition would present a
``catch 22'' situation. EPA does not generally have the authority to
require the State to enact and include in its SIP any particular
control measure, even a ``necessary'' one.\4\ However, under Section
110(a)(2)(a) a control measure must be either ``necessary or
appropriate'' (emphasis added); the use of the disjunctive ``or'' does
not provide that a state must find that only a certain control measure
and no other measure will achieve the required reduction. Rather, a
state may adopt and propose for inclusion in its SIP any measure that
meets the other requirements for approvability so long as that measure
is at least as appropriate, though not exclusive, means of achieving
emissions reduction. See also, Union Elec. Co. v. EPA, 427 U.S. 246,
264-266 (1976) (holding that ``necessary'' measures are those that meet
the ``minimum conditions'' of the Act, and that a state ``may select
whatever mix of control devices it desires,'' even ones more stringent
than Federal standard, to achieve compliance with a NAAQS, and that
``the Administrator must approve such plans if they meet the minimum
requirements'' of Section 110(a)(2) of the Act). Clearly, in light of
the Act and the case law, EPA's failure to specify the state adoption
of a specific control measure cannot dictate whether a measure is
necessary or appropriate.
---------------------------------------------------------------------------
\4\ As noted in Virginia v. EPA, 108 F.3d 1397 (DC Cir. 1997),
EPA does have the authority within the mechanism created by Section
184 of the Act to order states to adopt control measures recommended
by the OTC, if EPA agrees with and approves that recommendation. 108
F.3d, n.3 at 1402. As we have previously stated, the OTC model AIM
coatings rule was not developed pursuant to the Section 184
mechanism; EPA therefore has no authority to order that Pennsylvania
or any other state adopt this measure in order to reduce VOC
emissions.
---------------------------------------------------------------------------
In this particular instance, EPA identified an emission reduction
shortfall associated with Pennsylvania's 1-hour ozone attainment
demonstration SIP, and required Pennsylvania to address the shortfall
(See, 64 FR 70428 and 66 FR 54143). It is the Commonwealth's
prerogative to develop whatever rule or set of rules it deems necessary
or appropriate such that the rule or rules will collectively achieve
the additional emission reductions for attainment of the 1-hour ozone
standard as identified by EPA.
As stated previously, the Commonwealth's December 3, 2003 SIP
revision submittal, supplemented by further documentation added to the
administrative record by EPA to respond to comments submitted on its
March 11, 2004 NPR, provides evidence that it that it has the legal
authority to adopt its AIM rule and that it has followed all of the
requirements in the Commonwealth law and constitution that are related
to adoption of the plan.
K. Comment: The Written Comments Submitted by the Commenters to the
Pennsylvania EQB, the Pennsylvania IRRC and the PADEP on Pennsylvania's
Proposed Version of its AIM Coatings Rule Are Incorporated by Reference
into the Comments Submitted to EPA on its March 11, 2004 NPR Proposing
Approval of the Final, Adopted Pennsylvania AIM Coatings Rule--In their
letters submitted to EPA as comment to EPA's proposed approval of the
Pennsylvania AIM coatings rule, the commenters incorporate by reference
a letter from Madelyn K. Harding, Sherwin Williams Company to the
Pennsylvania EQB dated February 20, 2002 and its attachments; a letter
from W. Lance H. Hernsarth, Sherwin Williams Company to Kathleen
McGinty, Secretary of the Pennsylvania DEP, dated April 21, 2003 and
its attachment; a letter from Harvey P. Sass, Sherwin Williams Company
to Commissioner John R. McGinley, Jr., IRRC, dated September 5, 2003
and its attachment; and NPCA's Statement Before Pennsylvania
Independent
[[Page 68087]]
Regulatory Review Commission, dated September 12, 2003. The following
summarizes the comments presented to Pennsylvania and incorporated by
reference by the commenters:
(1) The commenters have significant concerns with the proposed
standards for certain paints and coatings, e.g., interior wood clear
and semi-transparent stains, interior wood vanishes, interior wood
sanding sealers, exterior wood primers, and floor coatings. The
commenters assert that Pennsylvania's proposed AIM coatings regulation
is based upon the inaccurate assumption that compliant coatings are
available or can be developed which will satisfy customer requirements
and meet all of the performance requirements of these categories. The
commenters contend that such coatings are not effectively within the
limits of current technology and that this inaccurate assumption will
result in increased and earlier repainting which can damage floors in
Pennsylvania due to seasonal variations in temperature and humidity.
(2) The commenters contend that PADEP has not considered the
increase in emissions resulting from the performance issues and
consequential repainting.
(3) The commenters suggest changes to the VOC standards for only a
few of the product categories proposed by Pennsylvania in its AIM
coatings regulation, and claim that the version of the AIM coatings
rule it counter-proposes will achieve significant reductions beyond the
Federal AIM coatings rule (26.5 tons/day) which is very close to the
amount of emission reductions determined by PADEP for the Pennsylvania
proposed regulation.
(4) The commenters state that Pennsylvania's proposed AIM coatings
rule is unreasonably stringent and unnecessary for the protection of
public health, welfare and safety, and it is arbitrary and capricious
as the record does not support the emission reduction claims.
(5) The commenters contend that Pennsylvania's proposed AIM
coatings rule will have a significant adverse impact on the commenters,
and that the PADEP can issue a regulation that achieves substantial VOC
reductions beyond the Federal AIM coatings rule without causing serious
adverse impact on potential sales of certain products. A further
comment contends that due to Pennsylvania's climate, the added costs of
heating trucks and warehouses to transport and store coatings will
adversely impact manufacturers, shippers, end users and on society in
the form of more energy consumption.
(6) The commenters assert that the economic analysis of
Pennsylvania's proposed AIM coatings rule is inaccurate because it uses
a cost figure of $6400 per ton of emissions reduced based upon an
economic analysis done for California. The commenters contend that the
cost figure is inappropriate given the differences in the stringency of
the current requirements for AIM coatings in Pennsylvania versus
California, and therefore, Pennsylvania needs to make an independent
determination of the cost of VOC reductions from its proposed AIM
coatings regulation.
(7) The commenters indicate that both the Consumer Products
regulation and AIM coatings rule proposed by Pennsylvania are based on
rule developments in California. However, Pennsylvania's proposal
includes the California averaging provision for consumer products but
does not do so for AIM. The commenters assert that the failure to
include the California averaging provision in the Pennsylvania AIM
coatings rule is arbitrary and capricious, and places an unequal burden
on the architectural coating industry.
(8) The commenters also submitted comments to the Commonwealth of
Pennsylvania regarding its proposed AIM coatings rule asserting that
the EQB and PADEP do not have authority under the Commerce Clause and
the Pennsylvania Air Pollution Control Act (PAPCA) to adopt the
proposed AIM coatings rule.
Response: As previously stated in this document, EPA disagrees with
the commenter's assertion that the adoption of the AIM coatings
regulation by the Commonwealth is in violation of the PAPCA. Please see
EPA's response to Comment H. With regard to the comments regarding the
Commerce Clause, please see EPA's response to Comment I.
With regard to the other comments submitted by the commenters to
the Commonwealth on its proposed AIM coatings rule that they have
incorporated by reference in their comments to EPA on EPA's March 11,
2004 proposed approval, EPA's response is that it is important to
understand EPA's role and responsibilities with regard to the review
and approval, or disapproval, of rules submitted as SIP revisions.
Prior to approving a SIP revision request submitted by a state, EPA
reviews the submission to ensure that the state provided the
opportunity for comment and held a hearing(s) on the proposed state
regulation that is at issue in the SIP revision pursuant to Section
110(a) of the Act. In this case, the Commonwealth of Pennsylvania's
December 3, 2003 submission of its AIM coatings rule to EPA includes
the necessary documentation to demonstrate that it met these
requirements. The Commonwealth's December 3, 2003 SIP revision
submission is included in docket of this rulemaking. A complete SIP
revision submission from a state includes copies of timely comments
properly submitted to the state on the proposed SIP revision and the
state's responses to those comments. The Commonwealth of Pennsylvania's
December 3, 2003 submission of its AIM coatings rule as a SIP revision
to EPA properly includes both the comments submitted on its proposed
AIM coatings rule and the Commonwealth's responses to those comments.
(See both the document entitled, Architectural and Industrial
Maintenance (AIM) Coatings, Comment and Response Document prepared by
the DEP, dated February 27, 2003 and 33 Pennsylvania Bulletin 5297
(October 25, 2003)).
The Commonwealth of Pennsylvania's SIP revision submission of its
AIM coatings rule does not request that EPA approve a specific amount
of VOC emission reduction credit. As such, the comments regarding the
Commonwealth's emission reduction calculations are not germane to EPA's
rulemaking to approve Pennsylvania's requested SIP revision. The
Commonwealth's responses to the timely comments on the proposed
Pennsylvania AIM coatings rule made by the commenters to Pennsylvania
are included in the Commonwealth's December 3, 2003 submission to EPA
for approval of the SIP revision.
The cost per ton figure determined by the Commonwealth in its
economic analysis, its decision to rely upon information from
California and its decision whether to include averaging provisions in
its final AIM coatings rule are all decisions which fall within a
state's purview, and issues regarding those decisions are rightfully
raised by interested parties to the State during its regulatory
adoption process. Therefore, it was appropriate that the commenters
commented to the Commonwealth on these matters during the adoption of
its AIM coatings rule. EPA has reviewed the SIP revision submitted and
has determined that the commenters' comments on those issues they have
incorporated by reference on this rulemaking, along with the
Commonwealth's responses to those issues, are included therein. In the
context of a SIP approval, EPA's review of these state decisions is
limited to whether the SIP revision meets the
[[Page 68088]]
minimum criteria of the Act. Provided that the rule adopted by the
state satisfies those criteria, EPA must approve such a SIP revision.
See, Union Elec Co. v. EPA.
With regard to the comments concerning the availability of
complying coatings and the ability to develop complying coatings that
can meet customer requirements and performance requirements, EPA notes
(as did the Commonwealth in its responses to such comments) that the
final version of the Pennsylvania AIM coatings regulation includes
variance provisions at 130.606-130.610. These provisions allow for
variances from the VOC standards found in 130.603 to be granted by the
PADEP to applicants which demonstrate technological infeasibility. EPA
finds that the Commonwealth's approach to address demonstrated
technological infeasibility in its AIM coatings rule by the variance
provisions of 130.606-130.610 is both reasonable and within its
purview, and therefore approvable as a SIP revision.
III. Final Action
EPA is approving the Pennsylvania SIP revision for the control of
VOC emissions from AIM coatings submitted on December 3, 2003 and
supplemented on October 19, 2004. The Pennsylvania AIM coatings rule is
part of the Commonwealth's strategy to achieve and maintain the 1-hour
ozone standard throughout the Commonwealth.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, 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,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
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 (64 FR 43255, August 10, 1999).
This action 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. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant. In reviewing SIP
submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the Clean Air Act. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a SIP
submission for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews a SIP submission, to use VCS in
place of a SIP submission that otherwise satisfies the provisions of
the Clean Air Act. Thus, the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply. 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.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. 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 January 24, 2005. 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, pertaining to Pennsylvania's AIM coatings
rule, 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 1, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 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 NN--Pennsylvania
0
2. Section 52.2020 is amended by adding paragraph (c)(227) to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(227) Revisions pertaining to the control of volatile organic
compound emissions from architectural and industrial maintenance
coatings submitted on December 3, 2003 and October 19, 2004 by the
Commonwealth of Pennsylvania Department of Environmental Protection:
(i) Incorporation by reference.
(A) Letters of December 3, 2003 and October 19, 2004 from the
Pennsylvania Department of Environmental Protection transmitting
Pennsylvania's Architectural and Industrial Maintenance Coatings
regulations.
[[Page 68089]]
(B) 25 Pa. Code Chapter 130, Subchapter C. Architectural and
Industrial Maintenance Coatings, Subsections 130.601-130.611,
inclusive, effective October 25, 2003.
(ii) Additional Material.--Remainder of the Commonwealth's
submittals pertaining to the revisions listed in paragraph (c)(227)(i)
of this section.
[FR Doc. 04-25815 Filed 11-22-04; 8:45 am]
BILLING CODE 6560-50-P