02-4402. Revisions to the California State Implementation Plan, Bay Area Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of a revision to the Bay Area Air Quality Management District's (BAAQMD) portion of the California State Implementation Plan (SIP). This revision was proposed in the Federal Register on September 12, 2001 and concerns volatile organic compound (VOC) emissions from adhesives and sealants. We are approving a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

EFFECTIVE DATE:

This rule is effective on March 28, 2002.

ADDRESSES:

You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted SIP revision at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” 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), U.S. Environmental Protection Agency, Region IX, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

I. Proposed Action

On September 12, 2001 (66 FR 47419), EPA proposed to approve the following rules into the California SIP.

Local agency	Rule No.	Rule title	Adopted	Submitted
BAAQMD	8-51	Adhesive and Sealant Products	05/02/01	05/31/01
South Coast Air Quality Management District (SCAQMD)	443.1	Labeling of Materials Containing Organic Solvent	12/05/86	06/09/97

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements.

On September 12, 2001 (66 FR 47392), we also published a direct final approval of the above rules because we believed that the rules were not controversial.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we did not receive comments on SCAQMD Rule 443.1. The direct final approval became effective and SCAQMD Rule 443.1 was incorporated into the SIP on November 13, 2001. During the comment period, we did receive comments regarding BAAQMD Rule 8-51. As a result, we removed our direct final action for BAAQMD Rule 8-51 on November 15, 2001 (66 FR 57387). We received comments from the following parties.

1. Mark Chytilo, Counsel for TRANSDEF, a Bay Area community group; letter dated October 12, 2001.

2. Julia May, Lead Scientist for Communities for a Better Environment (CBE); letter dated October 12, 2001.

The comments and our responses are summarized below.

Comment 1: Both parties comment that handheld aerosol adhesives, if exempted by the BAAQMD, will be exempt from emission controls because the Air Resources Board's (ARB) Consumer Products regulation (California Code of Regulations Title 17 Sections 94507-94528) has not been approved into the SIP. The provisions controlling these products are removed from the local regulation without adequate replacement provisions which violates CAA requirements regarding enforceability and backsliding. TRANSDEF also questioned BAAQMD's ability to regulate adhesives in general and requested clarification from EPA.

Response 1: On November 4, 1999 (64 FR 60109), EPA originally incorporated a version of BAAQMD Rule 8-51 into the SIP. That version, adopted by the BAAQMD on January 7, 1998 and submitted to us by the ARB on June 23, 1998, contained two similar provisions exempting aerosol adhesive products from the requirements of Rule 8-51. Section 8-51-113 generally exempted all adhesives subject to the ARB's Consumer Products regulation, while Section 8-51-111 specifically exempted aerosol adhesive products. The current version of BAAQMD Rule 8-51, adopted by the BAAQMD on May 2, 2001 and submitted to us by the ARB on May 31, 2001, deletes Section 8-51-111 because that provision expired on January 1, 2000. However, the aerosol adhesive product category is still exempt under the SIP-approved exemption in Section 8-51-113. Because the SIP-approved version of 8-51 never regulated the aerosol adhesive product category, the removal of Section 8-51-111 does not violate CAA section 193 requirements regarding backsliding. Furthermore, the submitted version of the rule which still includes Section 8-51-113, is very clear that aerosol adhesives are exempt. There is no ambiguity about how this provision is to be enforced and, therefore, no conflict with the enforceability requirement of CAA section 110(a).

On January 1, 1997, Section 41712 of the California Health and Safety Code was amended by Assembly Bill 1849, to apply the ARB's aerosol adhesive standard statewide. On or after January 1, 2000, Assembly Bill 1849 allows local districts, like the BAAQMD, to adopt and enforce stricter standards for aerosol adhesives. Section 39002 of the California Health and Safety Code, in fact, specifically provides that “local and regional authorities have the primary responsibility for control of air pollution from all sources other than vehicular sources” and that “local and regional authorities may establish stricter standards than those set by law or by the state board.” The local agency's ability to regulate the larger adhesives and sealants source category granted under Section 39002 was unaffected by Assembly Bill 1849. With the expiration of ARB's limited jurisdiction over the aerosol adhesive subcategory, the authority to regulate the entire adhesive and sealant source category, including aerosols, reverts back to the BAAQMD.

Comment 2: Because VOC is defined more narrowly in BAAQMD's Rule 8-51 than in the ARB's Consumer Products rule, the use of certain toxic compounds and/or environmentally harmful materials, including greenhouse gases, would not be allowed under Rule 8-51 but would be allowed under the ARB's Consumer Products rule. Both parties comment that EPA should not allow the use of these harmful compounds as replacements for ozone depletors and that EPA is, in fact, required by the Pollution Prevention Act to review regulations with source reduction in mind.

Response 2: This comment is only relevant if activities previously subject to Rule 8-51 are now subject to ARB's Consumer Products rule. As discussed in Response 1, this is not the case.

Comment 3: TRANSDEF noted that the BAAQMD has failed to complete the required RACT fix up which was due in 1992 because Rule 8-51 remains unapproved and urged EPA to impose sanctions pursuant to § 179.

Response 3: EPA proposed full approval of BAAQMD Rule 8-51 on September 12, 2001 partly because we believe it fulfills all RACT fix-up requirements. No comments were submitted that change that assessment. Therefore, there is no basis for imposing sanctions regarding this rule.

Comment 4: TRANSDEF requested that EPA convene a public hearing process to gain clarity about the rule citing confusion about Rule 8-51's overlap with ARB's Consumer Products regulation and compliance with RACT fix-up requirements.

Response 4: As discussed in Responses 1 and 3, overlap with ARB's Consumer Products regulation and RACT fix-up commitments are not substantive issues.

III. EPA Action

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP. This action permanently terminates all sanctions and FIP clocks associated with EPA's November 4, 1999 limited disapproval of a previous version of this rule.

IV. Administrative 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 32111, “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.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

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 April 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: January 30, 2002.

Wayne Nastri,

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 paragraphs (c)(282)(i)(B) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(282) * * *

(i) * * *

(B) Bay Area Air Quality Management District.

(1) Rule 8-51, revised on May 2, 2001.

* * * * *