00-16068. Approval and Promulgation of Implementation Plans: Oregon

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA or we) approves the following revisions to the Oregon State Implementation Plan (SIP): the repeal of Oregon's Consumer Products Rules, the repeal of the Architectural Coatings Rules, the revision and partial repeal of the Motor Vehicle Refinishings Rules, and definition revisions. The Oregon Department of Environmental Quality (ODEQ) forwarded this submittal to EPA for inclusion in the Oregon SIP on June 18, 1999. These revisions were submitted for the purposes of complying with section 110 and part D of the Clean Air Act.

DATES:

This direct final rule is effective on September 5, 2000 without further notice, unless EPA receives adverse comment by August 4, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be addressed to: Debra Suzuki, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101.

Documents which are incorporated by reference are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. Copies of material submitted to EPA and other information supporting this action may be examined during normal business hours at the following locations: EPA, Region 10, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101 and Oregon Department of Environmental Quality, 811 SW Sixth Avenue, Portland, Oregon 97204-1390.

FOR FURTHER INFORMATION CONTACT:

Debra Suzuki, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Consumer and Commercial Products Rules

1. What revisions to the Oregon SIP are we approving?

2. What Are Consumer and Commercial Products Rules?

3. What is Ozone?

4. Why are Consumer and Commercial Products regulated?

5. Why are we repealing Oregon's Consumer and Commercial Products Rules from the SIP now?

6. What are the differences between EPA's and Oregon's rules?

a. General

b. Consumer Products (OAR 340-022-0800 through OAR 340-022-0860)

c. Architectural Coatings (OAR 340-022-1000 through OAR 340-022-1050)

d. Aerosol Spray Paint (OAR 340-022-0900 through OAR 340-022-0950)

e. Automobile Refinishing Coatings (OAR 340-022-0700 through OAR 340-022-0760)

7. How will these differences affect VOC emissions in Portland?

B. VOC Definitions

1. What revisions to the Oregon SIP are we approving?

2. Why are the VOC Definitions changing?

Summary of Action

Administrative Requirements

A. Consumer and Commercial Products Rules

1. What Revisions to the Oregon SIP Are We Approving?

We are approving the repeal of Oregon's Consumer Products Rules, the repeal of the Architectural Coatings Rules, and a revision and partial repeal of the Motor Vehicle Refinishings Rules.

2. What Are Consumer and Commercial Products Rules?

Consumer and Commercial Products Rules reduce Volatile Organic Compound (VOC) emissions from categories of products such as consumer products, architectural coatings, automobile refinishing coatings, aerospace coatings, aerosol spray paints, industrial cleaning solvents, and metal furniture coatings. VOCs contribute significantly to the formation of ground-level ozone.

3. What Is Ozone?

Ozone is an odorless, colorless gas composed of three atoms of oxygen. Ozone is major component of smog and causes adverse health and environmental impacts when present in high concentrations at ground level. Ground-level ozone is not emitted directly into the air but forms when VOCs and Nitrogen Oxides (NOX) mix and react chemically in the presence of sunlight. Therefore, ozone is controlled by reducing VOC or NOX emissions.

The federal Clean Air Act requires EPA to set health-based standards for six commonly occurring air pollutants, including ozone. These standards are referred to as the National Ambient Air Quality Standards (NAAQS). The Clean Air Act also requires each state to develop and implement a SIP for meeting and maintaining the NAAQS within their state.

4. Why Are Consumer and Commercial Products Regulated?

The Clean Air Act Amendments of 1990 included a new requirement (Section 183(e)) for regulating consumer and commercial products. Section 183(e) directs EPA to conduct a study of VOC emissions from consumer and commercial products. Based on this study, EPA is required to schedule for regulation the categories of products that have the potential to contribute to ozone nonattainment. EPA completed the study and a report to Congress in 1995 and also published the schedule for regulation in a Federal Register document (60 FR 15264) on March 23, 1995. The schedule was subsequently revised on March 18, 1999 (64 FR 13422).

In the past, the Portland area failed to meet the ozone NAAQS and was designated as a non-attainment area in 1978. The Governor of Oregon appointed a Task Force in 1992 to ensure the maintenance of the ozone standard. One of the strategies the Task Force selected was to reduce VOCs from consumer and commercial products. The promulgation of EPA's Consumer and Commercial Products Rules was delayed beyond the time when Portland needed the VOC reductions to meet its emission targets. Therefore, in 1995, Oregon adopted its own rules for Portland for Consumer Products, Architectural Coatings, Aerosol Spray Paint, and Motor Vehicle Refinishings in the Portland Ozone Maintenance Plan. On May 19, 1997, after Oregon had demonstrated that the Portland area had attained the ozone NAAQS, EPA redesignated the area as an ozone attainment area and approved the maintenance plan as a part of the SIP (62 FR 27204).

5. Why Are We Repealing Oregon's Consumer and Commercial Products Rules From the SIP Now?

Oregon developed its rules with the intention of repealing them when EPA's rules took effect. On September 11, 1998, EPA finalized federal rules for Consumer Products (63 FR 48819), Architectural Coatings (63 FR 48848), and Automobile Refinishing Coatings (63 FR 48806). These measures apply nationwide and provide consistency for the regulated community. In May of 1999, Oregon adopted revisions to their administrative rules to amend and repeal their Consumer and Commercial Products Rules.

6. What Are the Differences Between EPA's and Oregon's Rules?

a. General: EPA's national rules apply to the manufacturers, importers, and distributors (for the Consumer Products Rule) of the products, so VOC content is controlled at the source. Since Oregon's rules only applied in the Portland area, they also had to restrict the sale and commercial application of the products.

b. Consumer Products (OAR 340-022-0800 through OAR 340-022-0860): The Consumer Products Rules establish VOC limits for a variety of household products such as hair sprays, air fresheners, windshield washer fluids, cleaners, and antiperspirants. Oregon's rules are more stringent than EPA's rules in two categories of products, windshield washer fluid and nail polish remover.

c. Architectural Coatings (OAR 340-022-1000 through OAR 340-022-1050): The Architectural Coatings Rules establish VOC limits for paint for all “stationary structures” (houses, industrial equipment, traffic markings, etc.). The EPA VOC limits are more stringent than Oregon in four categories (alkali resistant primers, swimming pool coatings, opaque below ground wood preservatives, and lacquer stains), while Oregon's limits are more stringent in nine categories (antenna coatings, calcimine recoaters, clear shellacs, concrete curing and sealing compounds, concrete surface retarders, conversion varnishes, faux finishes, stain controllers, and zone marking coatings).

EPA's rules allow manufacturers to produce high VOC coatings if they pay an “exceedance fee” of $2,500 per ton of VOC in excess of the applicable VOC content limit. EPA's rules also allow each manufacturer and importer to exempt the VOC used in small volume products. The exemption begins at twenty-five tons per year for each manufacturer and importer, but decreases to ten tons per year in 2002. Oregon's rules do not contain either of these provisions.

d. Aerosol Spray Paint (OAR 340-022-0900 through OAR 340-022-0950): The Aerosol Spray Paint Rules limit the VOC content of paint sold in aerosol cans. EPA's rules for aerosol spray paint is not scheduled to be promulgated until 2001. Therefore, this portion of Oregon's rules is retained.

e. Automobile Refinishing Coatings (OAR 340-022-0700 through OAR 340-022-0760): The Automobile Refinishing Coatings Rules set VOC limits for automotive coatings. Oregon's rules require painters to use efficient High Volume/Low Pressure (HVLP) spray guns and spray gun cleaning equipment to further reduce solvent emissions, which is not required in the EPA rules. Therefore, the provisions of Oregon's regulations regarding the use of HVLP spray guns and spray gun cleaning equipment are retained in the SIP. Additionally, EPA's rules exempt lacquer topcoats, while Oregon's rules do not.

7. How Will These Differences Affect VOC Emissions in Portland?

ODEQ submitted a demonstration showing that the EPA rules will achieve VOC reductions at least as significant as the existing Consumer and Commercial Products Rules in the Portland Ozone Maintenance Plan (based on EPA's VOC reduction estimates published in the Final Rules). ODEQ's rules only apply to the Portland area, so noncomplying products inevitably leak into Portland from the outlying region. EPA's rules apply uniformly across the nation and consequently achieve a much higher degree of rule effectiveness. Therefore, Oregon's Consumer and Commercial Products Rules can be removed from the SIP with no deleterious effect on any NAAQS, Prevention of Significant Deterioration increment, or visibility in Class I areas.

B. VOC Definitions

1. What Revisions to the Oregon SIP Are We Approving?

The June 18, 1999 submittal included revisions to the VOC definitions in OAR 340-022-0102 and OAR 340-028-0110. The VOC definitions were revised to delist 17 compounds from the definitions of VOC. The delisted compounds are: difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1-chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C4F9OCH3); 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OCH3); 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C4F9OC2H5); 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OC2H5); and methyl acetate. The proposed amendments also add a technical clarification that these VOC definitions relate to ground-level (tropospheric) ozone and not to ozone depleting reactions in the stratosphere.

2. Why Are the VOC Definitions Changing?

EPA modified the federal definition of VOC in 40 CFR 51.100(s) by adding additional compounds that are exempted from the VOC definition due to their negligible photochemical reactivity. This SIP revision will make the state and federal definitions of VOC consistent.

Summary of Action

While EPA's Consumer and Commercial Products Rules are slightly less stringent than ODEQ's rules as detailed above, ODEQ has demonstrated that the VOC reductions relied upon in the Portland Ozone Maintenance Plan will not be adversely affected by the substitution of EPA's national rules for Oregon's rules. Therefore, we are approving the repeal of Oregon's Consumer Products Rules, the repeal of the Architectural Coatings Rules, and a revision and partial repeal of the Motor Vehicle Refinishings Rules. The SIP revision to the VOC definitions will make the state and federal definitions consistent, and therefore we are also approving this revision.

The list below identifies the revisions we are approving and the rules we are repealing from the SIP, with the state effective date of the rules in parentheses. The effective date of Oregon's repeal of the Consumer Products Rules was June 10, 1999. The effective date of Oregon's revision and partial repeal of the Motor Vehicle Refinishings Rules was July 12, 1999. The effective date of Oregon's repeal of the Architectural Coatings Rules was March 13, 2000.

Please note that since these SIP revisions were adopted by the state, other modifications to Oregon's rules may have been adopted by the Environmental Quality Commission and submitted to the EPA for approval (e.g. the rule recodification package). Approval of the SIP revisions discussed in this action does not rescind any local rule amendments that were subsequently filed and submitted.

A. The Revisions EPA is Approving Into the SIP

OAR 340-022-0102 (73)—Definitions (5-21-99)

OAR 340-028-0110 (139)—Definitions (5-21-99)

Motor Vehicle Refinishing

OAR 340-022-0700—Applicability (7-12-99)

OAR 340-022-0710—Definitions (7-12-99)

OAR 340-022-0740—Requirements for Motor Vehicle Refinishing in Portland AQMA (7-12-99)

OAR 340-022-0760—Inspecting and Testing Requirements (7-12-99)

B. The Revisions EPA is Removing From the SIP

OAR 340-022-0102 (73)—Definitions (5-9-97)

OAR 340-028-0110 (139)—Definitions (10-14-98)

Consumer Products

OAR 340-022-0800—Applicability (5-25-95)

OAR 340-022-0810—Definitions (8-14-96)

OAR 340-022-0820—Consumer Product Standards and Exemptions (5-25-95)

OAR 340-022-0830—Requirements for Manufacture and Sale of Consumer Products (5-25-95)

OAR 340-022-0840—Innovative Products (10-22-96)

OAR 340-022-0850—Recordkeeping and Reporting Requirements (5-25-95)

OAR 340-022-0860—Inspection and Testing Requirements (5-25-95)

Motor Vehicle Refinishing

OAR 340-022-0700—Applicability (5-25-95)

OAR 340-022-0710—Definitions (8-14-96)

OAR 340-022-0720—Coating Standards and Exemptions (5-25-95)

OAR 340-022-0730—Requirements for Manufacture and Sale of Coatings (5-25-95)

OAR 340-022-0740—Requirements for Motor Vehicle Refinishing in Portland AQMA (5-25-95)

OAR 340-022-0750—Recordkeeping and Reporting Requirements (5-25-95)

OAR 340-022-0760—Inspecting and Testing Requirements (5-25-95)

Architectural Coatings

OAR 340-022-1000—Applicability (5-25-95)

OAR 340-022-1010—Definitions (8-14-96)

OAR 340-022-1020—Standards (5-25-95)

OAR 340-022-1030—Requirements for Manufacture, Sale and Use of Architectural Coating (5-25-95)

OAR 340-022-1040—Recordkeeping and Reporting Requirements (5-25-95)

OAR 340-022-1050—Inspection and Testing Requirements (5-25-95)

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective September 5, 2000 without further notice unless the Agency receives adverse comments by August 4, 2000.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 5, 2000 and no further action will be taken on the proposed rule.

Administrative Requirements

A. 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. 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). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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. 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. 804(2). This rule will be effective September 5, 2000 unless EPA receives adverse written comments by August 4, 2000.

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 September 5, 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 enforce its requirements. (See section 307(b)(2).)

B. Oregon Notice Provision. During EPA's review of a SIP revision involving Oregon's statutory authority, a problem was detected which affected the enforceability of point source permit limitations. EPA determined that, because the five-day advance notice provision required by ORS 468.126(1) (1991) bars civil penalties from being imposed for certain permit violations, ORS 468 fails to provide the adequate enforcement authority that a state must demonstrate to obtain SIP approval, as specified in section 110 of the Clean Air Act and 40 CFR 51.230. Accordingly, the requirement to provide such notice would preclude federal approval of a section 110 SIP revision.

To correct the problem the Governor of Oregon signed into law new legislation amending ORS 468.126 on September 3, 1993. This amendment added paragraph ORS 468.126(2)(e) which provides that the five-day advance notice required by ORS 468.126(1) does not apply if the notice requirement will disqualify a state program from federal approval or delegation. ODEQ responded to EPA's understanding of the application of ORS 468.126(2)(e) and agreed that, because federal statutory requirements preclude the use of the five-day advance notice provision, no advance notice will be required for violations of SIP requirements contained in permits.

C. Oregon Audit Privilege. Another enforcement issue concerns Oregon's audit privilege and immunity law. Nothing in this action should be construed as making any determination or expressing any position regarding Oregon's Audit Privilege Act, ORS 468.963 enacted in 1993, or its impact upon any approved provision in the SIP, including the revision at issue here. The action taken herein does not express or imply any viewpoint on the question of whether there are legal deficiencies in this or any other Clean Air Act Program resulting from the effect of Oregon's audit privilege and immunity law. A state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities. EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by a state audit privilege or immunity law.

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

Note:

Incorporation by reference of the Implementation Plan for the State of Oregon was approved by the Director of the Office of Federal Register on July 1, 1982.

Dated: May 22, 2000.

Chuck Clarke,

Regional Administrator, Region 10.

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 MM—Oregon

2. Section 52.1970 is amended by adding paragraph (c)(132) to read as follows:

§ 52.1970

Identification of plan.

* * * * *

(c) * * *

(132) On June 18, 1999, the Director of the Oregon Department of Environmental Quality (ODEQ) submitted a SIP revision to repeal the Consumer Products Rules, repeal the Architectural Coatings Rules, revise and partially repeal the Motor Vehicle Refinishings Rules, and revise the Volatile Organic Compounds definitions.

(i) Incorporation by reference.

(A) Oregon Administrative Rule (OAR) 340-022-0102 (73) and OAR 340-028-0110 (139), as effective May 21, 1999; and OAR 340-022-0700, OAR 340-022-0710, OAR 340-022-0740, and OAR 340-022-0760, as effective July 12, 1999.

(B) Remove the following provisions from the current incorporation by reference: OAR 340-022-0102 (73), as effective May 9, 1997; OAR 340-028-0110 (139), as effective October 14, 1998; OAR 340-022-0800, OAR 340-022-0820, OAR 340-022-0830, OAR 340-022-0850, and OAR 340-022-0860, OAR 340-022-0700, OAR 340-022-0720, OAR 340-022-0730, OAR 340-022-0740, OAR 340-022-0750, OAR 340-022-0760, OAR 340-022-1000, OAR 340-022-1020, OAR 340-022-1030, OAR 340-022-1040, and OAR 340-022-1050 as effective May 25, 1995; OAR 340-022-0840, as effective October 22, 1996; and OAR 340-022-710, OAR 340-022-810, OAR 340-022-1010, as effective August 14, 1996.