[Federal Register Volume 64, Number 213 (Thursday, November 4, 1999)]
[Rules and Regulations]
[Pages 60109-60112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28723]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 211-0189; FRL-6466-4]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Bay Area Air Quality Management
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing limited approval and limited disapproval of
a revision to the California State Implementation Plan (SIP) proposed
in the Federal Register on March 17, 1999. This final action will
incorporate this rule into the federally approved SIP. The intended
effect of finalizing this action is to regulate emissions of volatile
organic compounds (VOCs) in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). The revised rule
controls VOC emissions from adhesive and sealant products. Thus, EPA is
finalizing a simultaneous limited approval and limited disapproval
under CAA provisions regarding EPA action on SIP submittals and general
rulemaking authority because this revision, while strengthening the
SIP, also does not fully meet the CAA provisions regarding plan
submissions and requirements for nonattainment areas. As a result of
this limited disapproval EPA will be required to impose highway funding
or emission offset sanctions under the CAA unless the State submits and
EPA approves corrections to the identified deficiencies within 18
months of the effective date of this disapproval. Moreover, EPA will be
required to promulgate a Federal implementation plan (FIP) unless the
deficiencies are corrected within 24 months of the effective date of
this disapproval.
EFFECTIVE DATE: This action is effective on December 6, 1999.
ADDRESSES: Copies of the rule revisions and EPA's evaluation report are
available for public inspection at EPA's Region IX office during normal
business hours. Copies of the submitted rule revisions are available
for inspection at the following locations:
Rulemaking Office, [AIR-4], Air Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
SW., Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814
Bay Area Air Quality Management District, 939 Ellis Street, San
Francisco, CA 94109
FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office,
[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1199.
SUPPLEMENTARY INFORMATION:
I. Applicability
The rule being approved into the California SIP is Bay Area Air
Quality Management District, BAAQMD, Rule 8-51, Adhesive and Sealant
Products. This rule was submitted by the California Air Resources
Board, CARB, to EPA on June 23, 1998.
II. Background
On March 17, 1998 in 64 FR 13143, EPA proposed granting limited
approval and limited disapproval of BAAQMD Rule 8-51, Adhesive and
Sealant Products into the California SIP. Rule 8-51 was adopted by the
BAAQMD on January 7, 1998. This rule was submitted by the CARB to EPA
on June 23, 1998. This rule was submitted in response to EPA's 1988 SIP
Call and the CAA section 182(a)(2)(A) requirement that nonattainment
areas fix their reasonably available control technology (RACT) rules
for ozone in accordance with EPA guidance that interpreted the
requirements of the pre-amendment Act. A detailed discussion of the
background for this rule and nonattainment area is provided in the
proposed rule (PR) cited above.
EPA has evaluated the rule for consistency with the requirements of
the CAA and EPA regulations and EPA's interpretation of these
requirements as expressed in the various EPA policy guidance documents
referenced in the PR. EPA is finalizing the limited approval of this
rule in order to strengthen the SIP and finalizing the limited
disapproval requiring the correction of the remaining deficiencies. The
rule contains inadequate recordkeeping, director's discretion, and
unsubstantiated deviations from RACT level controls. A detailed
discussion of the rule provisions and evaluation have been provided in
the PR and in the February 1999 technical support document (TSD)
available at EPA's Region IX office.
III. Response to Public Comments
A 30-day public comment period was provided in 64 FR 13143. EPA
received one comment letter on the PR from the BAAQMD. The comments
have been evaluated by EPA and a summary of the comments and EPA's
responses are set forth below.
Comment: The BAAQMD commented that no clear guidance on
recordkeeping intervals exists for rules like Rule 8-51 which specify
product VOC limits. The BAAQMD argues that, although section 113(b) of
the CAA establishes a daily penalty limit of $25,000 and might serve as
a rationale for a daily recordkeeping requirement, no regulatory
language compels daily recordkeeping. BAAQMD asserts that monthly
recordkeeping as required by Section 501 is sufficient. Furthermore,
BAAQMD emphasized that daily recordkeeping is burdensome for small
businesses and does not enhance enforceability.
Response: Rule 8-51 was evaluated against the CAA and the documents
cited in the TSD. The EPA's recordkeeping policies have been further
interpreted and clarified in other EPA rulemakings and communications,
including a June 19, 1996 guidance document on recordkeeping which was
distributed to all air districts in Region IX including the BAAQMD
(Rule Development Recordkeeping Policy, under June 27, 1996 cover
letter from Daniel Meer). The June 19, 1996
[[Page 60110]]
guidance document states that ``if a source uses only compliant
materials, recordkeeping on a less frequent basis than daily may be
acceptable.'' Records kept on a less frequent basis than daily are not
acceptable when noncompliant materials are used. Daily records are the
rule and monthly records are the exception to that rule. Requiring
daily records does not impose any additional burden; rather, allowing
monthly records provides relief for sources that use only compliant
materials. On a practical level, we expect most sources will take
advantage of this relief because compliant materials are widely
available. EPA's recordkeeping requirements may allow flexibility for
sources that operate in compliance with prohibitory rules, however,
rules that allow additional flexibility must sufficiently deter sources
that operate in a deliberately noncompliant manner by designating
significant monetary penalties. EPA maintains that daily records are
necessary for enforcement purposes whenever noncompliant materials are
used.
Comment: BAAQMD contends that section 501.4 which allows for
alternate recordkeeping plans was previously approved into the SIP in a
similar rule. BAAQMD believed that it had addressed all approvability
issues concerning this provision. The District indicated that rule
revisions consume valuable time and limited resources and are less
justifiable when little or no emissions reductions will result.
Response: Each EPA action on State submitted SIP revisions clearly
notes that nothing in that particular action should be construed as
permitting or allowing or establishing a precedent for any future
request for revision to any SIP. Each request for revision to the SIP
is considered independently in light of specific technical, economic,
and environmental factors. Therefore, approval of certain language in
one rule does not justify or necessitate the approval of similar
language in another rule. Section 501.4 currently fails to indicate
what constitutes an acceptable reporting period and allows the
Executive Officer to approve changes to the reporting period without
submitting a SIP revision. This violates the requirement in section 110
of the CAA that SIPs must be enforceable. Minimally, section 501.4
should require monthly records for sources using only compliant
coatings and daily records for sources using any noncompliant coatings.
Furthermore, any violation of rule standards should constitute a
violation for each day of the reporting period. Modification of this
provision will not impose an undue burden on the District since other
areas of the rule already need to be modified as discussed in this
rulemaking.
Comment: BAAQMD acknowledges that several VOC content limits
contained in Rule 8-51 exceed the limits contained in the State of
California's guidance document and attribute this to the fluidity of
that document. BAAQMD contends that all deviations from the state's
guidance were substantiated in an equivalency determination using the
best available data. BAAQMD asserts that a source-by-source accounting
of emissions is impossible since Rule 8-51 regulates thousands of
sources in many industrial categories. BAAQMD indicates that they will
revise Rule 8-51 to be consistent with the state's guidance document
for deviations (a) and (d) through (i) as identified in the TSD. With
regard to deviation (b), BAAQMD states that the 540 g/L limit complies
with the state's guidance document and that a 250 g/L limit represents
best available retrofit control technology (BARCT) which is more
stringent than federal RACT. To justify deviation (c), BAAQMD provided
additional information to indicate that the 100 g/L limit for
retreading large tires is technologically infeasible because
chlorinated solvents are regulated in BAAQMD as hazardous air
pollutants. Other districts comply with the 100 g/L limit by allowing
the use of certain chlorinated solvents. Furthermore, BAAQMD commented
that the costs to abate emissions from large tire retreading were
economically infeasible. BAAQMD asserted that the 480 g/L limit
identified in the TSD as deviation (j) was included in the rule to
accommodate a product that functions to both bond and seal polyvinyl
chloride (PVC). BAAQMD asserts that the product should be allowed to
meet the 480 g/L limit, instead of the 420
g/L limit which applies to other sealants, in order to account for the
product's ability to bond PVC. The manufacturer had two customers in
1997, both outside the BAAQMD, and sold their product in containers
with a capacity less than 16 ounces. BAAQMD states that it will adopt a
small container exemption allowed by the state's guidance document
during the next revision to Rule 8-51 to address deviation (j).
Response: EPA appreciates the difficulty of regulating and
characterizing the emissions from this varied source category. BAAQMD
committed to remedying deviations (a) and (d) through (i) and should
proceed with those rule corrections in a timely manner to avoid the
sanctions described above. With regard to deviation (b), EPA agrees
with BAAQMD that the 250 g/L limit is BARCT and is not required to meet
federal RACT requirements. The additional information provided in
relation to deviation (c) adequately justifies this exemption for
retreading large tires. BAAQMD should also correct the deficiency
identified as deviation (j) as promised possibly by adopting a small
container exemption. However, EPA questions the need to revise the rule
to accommodate a product that BAAQMD indicates is not sold in the
District.
III. EPA Action
EPA is finalizing a limited approval and a limited disapproval of
the above-referenced rule. The limited approval of this rule is being
finalized under section 110(k)(3) in light of EPA's authority pursuant
to section 301(a) to adopt regulations necessary to further air quality
by strengthening the SIP. The approval is limited in the sense that the
rule strengthens the SIP. However, the rule does not meet the section
182(a)(2)(A) CAA requirement because of the rule deficiencies which are
discussed above. Thus, in order to strengthen the SIP, EPA is granting
limited approval of this rule under sections 110(k)(3) and 301(a) of
the CAA. This action approves the rule into the SIP as a federally
enforceable rule.
At the same time, EPA is finalizing the limited disapproval of this
rule because it contains deficiencies that have not been corrected as
required by section 182(a)(2)(A) of the CAA, and, as such, the rule
does not fully meet the requirements of Part D of the Act. As stated in
the PR, upon the effective date of this final rule, the 18 month clock
for sanctions and the 24 month FIP clock will begin. Sections 179(a)
and 110(c). If the State does not submit the required corrections and
EPA does not approve the submittal within 18 months of the effective
date of the final rule, either the highway sanction or the offset
sanction will be imposed at the 18 month mark. It should be noted that
the rule covered by this final rulemaking has been adopted by the
BAAQMD and is currently in effect in the BAAQMD. EPA's limited
disapproval action will not prevent the BAAQMD or EPA from enforcing
this rule.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
[[Page 60111]]
B. Executive Order 12875
Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA
may not issue a regulation that is not required by statute and that
creates a mandate upon a State, local or tribal government, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by those governments, or EPA consults with
those governments. If EPA complies by consulting, E.O. 12875 requires
EPA to provide to the OMB a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on State, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
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 E.O.
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 E.O. 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under E.O. 13084, Consultation and Coordination with Indian Tribal
Governments, EPA may not issue a regulation that is not required by
statute, that significantly or uniquely affects the communities of
Indian tribal governments, and that imposes substantial direct
compliance costs on those communities, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this rule.
E. 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 final 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
CAA, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The CAA
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).
F. Unfunded Mandates
Under section 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
annual 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 annual 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.
G. 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).
H. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 3, 2000. 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
[[Page 60112]]
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compound.
Dated: October 20, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
2. Section 52.220 is amended by adding paragraph (c)(256)(i)(A)(2)
to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(256) * * *
(i) * * *
(A) * * *
(2) Rule 8-51, adopted on November 18, 1992 and amended on January
7, 1998.
* * * * *
[FR Doc. 99-28723 Filed 11-3-99; 8:45 am]
BILLING CODE 6560-50-P
