[Federal Register Volume 60, Number 161 (Monday, August 21, 1995)]
[Rules and Regulations]
[Pages 43379-43383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20598]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA105-5-7055; 5270-6]
Approval and Promulgation of State Implementation Plans;
California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final and interim final rule.
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SUMMARY: EPA is approving state implementation plan (SIP) revisions
submitted by the State of California on November 15, 1994, relating to
antiperspirants and deodorants and other consumer products sold in
California; reformulated gasoline and diesel fuel sold or supplied as
motor vehicle fuels in California; and certain new-technology measures
adopted by the California Air Resources Board (CARB) and South Coast
Air Quality Management District (SCAQMD). EPA is finalizing the
approval of these revisions to the California SIP under provisions of
the Clean Air Act (CAA) regarding EPA action on SIP submittals, SIPs
for national primary and secondary ambient air quality standards, and
plan requirements for nonattainment areas.
DATES: Effective dates. The final and interim final SIP actions are
effective on September 20, 1995.
[[Page 43380]]
Comments. The deadline for written comments on the interim final
SIP actions (40 CFR 52.220(c)(204)(i)(A)(4) and 40 CFR
52.220(c)(204)(i)(B)(1)) is September 20, 1995.
ADDRESSES: Written comments on the interim final SIP actions must be
received by EPA at the address below on or before the close of the
public comment period. Comments should be submitted (in duplicate, if
possible) to: Regional Administrator, Attention: Office of Federal
Planning (A-1-2), Air and Toxics Division, Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the rules and additional background materials are
available for review at EPA's Region IX office at the above address
during normal business hours. Interested persons may make an
appointment with Ms. Virginia Petersen at (415) 744-1265, to inspect
the materials at EPA's San Francisco office on weekdays between 9 a.m.
and 4 p.m.
Copies of the rules are also available for inspection at the
addresses listed below:
Environmental Protection Agency, Air Docket (6102), 401 M Street, SW.,
Washington, DC
California Air Resources Board, 2020 L Street, Sacramento, California
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, California
FOR FURTHER INFORMATION CONTACT: Julia Barrow, (415) 744-2434, at the
Office of Federal Planning (A-1-2), Air and Toxics Division, U.S. EPA,
Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1994, CARB submitted as a revision to the
California SIP:
(1) The California Antiperspirants and Deodorants regulations and
Consumer Products regulations, as contained in Title 17 of the
California Code of Regulations, Sections 94500-94506.5 and 94507-94517,
adopted on December 27, 1990, August 14, 1991, and September 21, 1992;
(2) The California Diesel Fuel regulations, as contained in Title
13 of the California Code of Regulations, Sections 2281 and 2282,
adopted on August 22, 1989, June 21, 1990, April 15, 1991, October 15,
1993, and August 24, 1994;
(3) The California Reformulated Gasoline regulations, as contained
in Title 13 of the California Code of Regulations, Sections 2250, 2252,
2253.4, 2254, 2257, 2260, 2261, 2262.1, 2262.2, 2262.3, 2262.4, 2262.5,
2262.6, 2262.7, 2263, 2264, 2266-2272, 2296, and 2297, initially
approved by CARB on November 17, 1988, and formally adopted on August
22, 1989, June 21, 1990, April 15, 1991, October 15, 1993, and August
24, 1994;
(4) California new-technology measures M-2, M-9, CP-4, and
Additional Measures, adopted on November 15, 1994; and
(5) SCAQMD new-technology measures ADV-CTS-01, ADV-FUG, ADV-PRC,
ADV-UNSP, and ADV-CTS-02, adopted on September 9, 1994.
All of these rules and measures were submitted as part of the 1994
California SIP for Ozone. These portions of the California ozone
submittal were found to be complete on January 13, 1995, January 30,
1995, and April 18, 1995, pursuant to EPA's completeness criteria that
are set forth in 40 CFR Part 51 Appendix V.1
\1\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
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On February 14, 1995, the Administrator signed a final approval
action on all of these rules and measures, as part of the Notice of
Final Rulemaking (NFRM) issuing Federal Implementation Plans (FIPs) for
Sacramento, Ventura, and the South Coast. On April 10, 1995,
legislation was enacted mandating that these FIPs ``shall be rescinded
and shall have no further force and effect'' (Public Law 104-6, Defense
Supplemental Appropriation, H.R. 889), prior to publication of the FIP
and SIP actions in the Federal Register. In the Notices Section of this
issue of the Federal Register, EPA announces the FIP rescission and
cancellation of the FIP public hearing. EPA is in this action reissuing
the SIP approvals, which were integrated into the FIP NFRM.
A. California Antiperspirant and Deodorant and Consumer Product Rules
At the time of the California FIP proposal (59 FR 23318-23220, May
5, 1994), CARB had not yet submitted its antiperspirant and deodorant
and consumer products rules. Therefore, EPA had no choice but to
propose equivalent federal measures to achieve federally enforceable
VOC emission reductions from consumer products (40 CFR 52.2957(a)) and
antiperspirants and deodorants (40 CFR 52.2957(b)). As discussed above,
CARB submitted on November 15, 1994, the California Consumer Products
and Antiperspirant and Deodorant rules.
Because the proposed FIP measures were virtually identical to the
CARB submittal, EPA did not finalize its FIP proposal but invoked the
``good cause'' provision in the Administrative Procedures Act (APA, 5
U.S.C. 551 et seq.) to approve, in final action, the CARB Consumer
Products and Antiperspirant and Deodorant rules without further
opportunity for comment. Further comment is unnecessary under section
553(b)(1)(B) of the APA, since EPA cannot envision any comment on the
CARB measure which could not have been made with respect to EPA's FIP
proposal. It is therefore unnecessary to solicit additional comment on
the CARB submittal, especially since EPA's role with respect to the SIP
approval is narrower than for FIP promulgation. EPA has considered the
comments on the FIP proposal as applicable to the CARB SIP submittal
and has found that submittal to be approvable.
The FIP proposal generated several comments. EPA believes that very
similar or identical comments would have been received if EPA had
proposed a Notice of Proposed Rulemaking to approve the CARB submittal
as a SIP revision. EPA believes that the appropriate issues for comment
on the SIP rule are whether it is enforceable and how much credit is
deserved. Since the proposed FIP rule was based on the CARB rule, and
the FIP proposal was enforceable and claimed the same amount of credit
as the SIP rule, these issues have already been addressed. Therefore,
further public comment regarding today's action of approving the nearly
indistinguishable State rules is unnecessary and not in the public
interest.
Several commenters expressed a preference for CARB administration
of the consumer products and antiperspirant/deodorant rules. Although
CARB always would have maintained primary responsibility for
administering the rule regardless of the FIPs, EPA concurs and through
this approval action reaffirms CARB's primary administrative role.
Several commenters stated their opposition to perceived technology
forcing limits adopted by CARB and proposed in the FIPs. EPA believes
that CARB's approach of adopting future effective limits is appropriate
given the need to reduce VOC emissions in California's ozone
nonattainment areas. In addition, the State rule allows time for
manufacturers to make the necessary adjustments to meet the
requirements of the rule. CARB's inclusion of flexibility in their
rules (i.e., the Innovative Products provision and Alternative
[[Page 43381]]
Compliance Plan 2 provision) also affords manufacturers compliance
options if they are unable to reformulate a given product. In the event
that a future effective limit is revised by CARB, EPA will work with
CARB to help develop an alternative strategy for achieving the needed
reductions.
\2\ Although CARB did not submit the Alternative Compliance Plan
(ACP) regulation to EPA as part of their November 15th submittal,
CARB indicated their intent to submit it to EPA in early 1995. EPA
intends to act on the ACP regulation as soon as it is received.
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Several commenters recommended changing the consumer products and
antiperspirant and deodorant rules to allow automatic acceptance by EPA
of innovative product exemptions, alternative test methods, and
variances approved by CARB. In order to make the innovative product and
variance provisions federally enforceable, EPA worked closely with the
State to add the ``Federal Enforceability'' language to the rule. EPA
will expedite review of actions covered under these provisions. EPA is
also working with CARB to explore options to further streamline EPA
review of innovative product applications.
One commenter indicated that EPA's action should not subvert its
efforts under 183(e) of the Act. EPA believes that approving the SIP
submittal is consistent with section 183(e), which does not prohibit
states from adopting consumer product measures nor does it prohibit EPA
from acting on such submittals.
A commenter noted that in the proposed FIP measure if a product
label indicates that the product is suitable for use in more than one
consumer product category, the applicable VOC content limit will be the
lowest of the categories for which suitability is claimed. EPA believes
that this provision, which is also in the CARB rules, is important to
ensure that manufacturers do not make multiple claims just to allow for
a higher limit. EPA believes that the ``Most Restrictive Limit''
provision is justified in order to prevent labeling abuses.
One commenter indicated that the definition of VOC is not clear
with respect to the handling of negligibly photochemically reactive
compounds and asked for clarification regarding whether pre-market
clearance was needed from EPA. EPA believes the handling of these
compounds in the SIP rule is adequate but could be further clarified.
EPA will work with CARB to this end during its next rule revision. EPA
believes that there was no intent to require a pre-market clearance but
rather that, for compliance purposes, manufacturers may be required to
demonstrate to regulators the amount of negligibly reactive compounds
claimed to be in a given product.
A commenter suggested that EPA should consider removing the VOC
content standard for the dual purpose Air Freshener/Disinfectant
product category. Another commenter suggested that EPA extend the
compliance date for aerosol fabric protectants to January 1, 1997. EPA
believes that removing or adjusting these standards would not be
prudent, and that CARB was technically justified in creating the
content standards. In addition, because this is a SIP action, it is not
appropriate for EPA to modify CARB's rule.
A commenting organization noted its concern that the consumer
product measure has a disproportionate impact on aerosols because CFCs
and HCFCs cannot legally be used as propellants and HFCs are not a
viable option for use in consumer products because of US Department of
Transportation regulations and limited availability of the product. The
commenter recommended that EPA maintain the February 1995 HVOC limits
in place beyond 1999. EPA supports the future effective VOC content
limits originally established by CARB. In this instance, alternative
product forms are readily available or the source can seek an
alternative compliance option.
A commenter requested the removal of the ``grandfather clause'' for
companies using ethanol prior to January 1, 1994, and stated that the
antiperspirant and deodorant MVOC standards should be modified to allow
fair competition among firms. EPA and CARB are aware that the
grandfather clause may affect some manufacturers more than others. CARB
has acknowledged that the ethanol issue will be reexamined in the near
future. EPA believes that this issue can best be addressed by the
affected parties working with CARB to develop suggested changes which
will accomplish or enhance the same overall reduction goals. CARB's
expected reexamination does not affect EPA's SIP approval at this time.
A commenter stated that the antiperspirant and deodorant limits are
not technologically feasible or realistic and amount to a ban on the
aerosol form of these products. As mentioned previously, EPA supports
the future effective limits originally established by CARB. In this
instance, alternative product forms are readily available, or the
source can seek an alternative compliance option.
B. California Diesel Fuel and Reformulated Gasoline Rules
In EPA's proposed FIP (see 59 FR 23385-6), EPA concluded that fuels
meeting California's diesel fuel specifications would likely produce
lower emissions of oxides of nitrogen (NOX) than fuels meeting
EPA's current low sulfur diesel specifications. Similarly, California's
Phase I and Phase II gasoline standards appear to provide at least as
great emission reductions as the federal Phase I and Phase II standards
prescribed by section 211(k) of the Act (see 59 FR 23384-5).
In EPA's FIP proposal California's diesel fuel and reformulated
gasoline programs were continued without amendment and were fully
credited. No negative comments were received regarding the CARB
programs. Following the proposal, CARB submitted these programs to EPA.
Approval of these programs as part of the SIP has the same effect as
the original proposal on all regulated and otherwise affected parties.
Therefore, approval of the submitted fuels programs into the SIP may be
finalized without further opportunity for public comment.
C. CARB and SCAQMD New-Technology Measures
The 1990 Amendments to the Act added section 182(e)(5), which
applies exclusively to ``Extreme'' ozone areas. This provision
authorizes the State to use conceptual, as yet unadopted measures for
its ozone attainment demonstration and rate-of-progress after the year
2000, if these measures anticipate new or improved technology or
control techniques and are not needed to meet the progress requirements
for the first 10 years.
The South Coast Air Quality Management Plan (AQMP) generally
discusses control areas and approaches that are appropriate for long-
range development and adoption in accordance with section 182(e)(5). To
illustrate the SCAQMD's commitment in this area, the AQMP also includes
a summary of a broad range of clean technology development projects
sponsored by the SCAQMD's Technology Advancement Office (TAO) (Appendix
IV-G) and lists of TAO current or recently-completed projects for
mobile sources (Executive Summary, Table 7-5) and stationary sources
(Executive Summary, Table 7-6).
As required by the Act, the SCAQMD's 1994 AQMP Board Resolution 94-
36, includes the following finding:
[[Page 43382]]
That the District is committed to develop contingency measures
for the Section 182(e)(5) long-term measures and submit them to the
U.S. Environmental Protection Agency no later than three years
before implementation of the Section 182(e)(5) measures. Finding 33,
page 11.
CARB also submitted a commitment to develop the required
contingency measures for implementation in the event that the State or
South Coast new-technology measures are unsuccessful (1994 California
SIP for Ozone, Volume I, page I-34).
To qualify for the section 182(e)(5) authorization, the State
submitted a demonstration that reductions from both the CARB and SCAQMD
new-technology measures are not needed to achieve the first 10 years of
progress required under the Act.
EPA interprets the Act to allow EPA to approve the State's new-
technology measures and credit them toward the SIP's attainment
demonstration, even before EPA determines that the South Coast ozone
SIP attainment demonstration is fully approvable. Assuming the State
makes the required commitment to submit contingency measures and the
Administrator concludes that the measures are not needed to achieve the
first 10 years of progress, the provisions of section 182(e)(5)
authorize the Administrator to approve and credit the State's
conceptual measures at this time.
These measures necessarily are preliminary, and as such lack both
regulations and technical support or even decisions regarding specific
directions and approaches. Complete SIP rule elements are dependent
upon future years of research projects, analyses of technologies and
associated commercial feasibility, public workshops, and public
decisionmaking. Eventually, the measures must become federally
enforceable regulations, and in that process undergo full public
involvement both at the State and local level and through formal EPA
SIP approval action.
CARB and SCAQMD have undertaken the new-technology measure
obligations to achieve, in conjunction with other elements of the SIP
submittal, ozone attainment in the South Coast by the year 2010. These
initiatives rest upon past accomplishments and extensive present
investments of both CARB and SCAQMD in developing new clean
technologies through the commercialization and regulatory stages.
In the final FIP document, EPA took ``interim final'' action to
approve the SCAQMD and CARB new-technology provisions listed below. EPA
found that good cause existed to approve the State's measures,
deferring further notice and comment until after promulgation, because
of the impending court deadline for FIP issuance and the Agency's
belief that the public interest strongly favored approval of the newly-
adopted SIP measures rather than promulgation of Federal alternatives.
In the final FIP action, therefore, EPA invoked the good cause
exception under the APA, which allows for issuance of ``interim final''
rules in cases where it is ``impracticable, unnecessary, or contrary to
the public interest'' to provide an opportunity for notice and comment
before issuing the final rule (see 5 U.S.C. 702).
Thus, EPA determined that California's section 182(e)(5) measures
warranted approval in an interim final rulemaking. The rescission of
the FIP does not alter EPA's view. For EPA to formally withdraw its
approval pending comment, simply because the FIP has been rescinded,
would amount to an empty exercise. It would also confuse the public and
retard progress on the state plan for reasons having nothing to do with
the merits of the approval. Commenters will not be disadvantaged, since
EPA intends to give them a full and immediate opportunity to be heard
during the comment period.
Although these interim final SIP actions are effective on September
20, 1995, EPA invites public comments on the approval actions. Under
the APA, interim final rules are final for the interim period lasting
until the Agency takes further action following consideration of post-
promulgation comments. Public comments must be submitted in writing to
EPA at the address indicated at the beginning of this document on or
before September 20, 1995. As discussed above, further and more
extensive opportunities for public involvement will arise as the CARB
and SCAQMD new-technology measures are developed and adopted in
regulatory form, and again as EPA takes SIP rulemaking action on the
submitted regulations.
1. SCAQMD New-Technology Measures
Advance Tech-CTS (Coating Technologies), ADV-CTS-01, adoption 2003,
23.9 tpd ROG 3;
\3\ ROG (reactive organic gases) is used by California in lieu
of EPA's VOC. Unlike VOC, ROG includes ethane.
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Advanced Tech-Fugitives, ADV-FUG, adoption 2003, 23.1 tpd ROG;
Advance Tech-Process Related Emissions, ADV-PRC, adoption 2003,
12.3 tpd ROG;
Advance Tech-Unspecified, Stationary Sources, ADV-UNSP, adoption
2003, 67 tpd ROG;
Advance Tech-CTS (Coatings Technologies), ADV-CTS-02, 54.7 tpd ROG.
2. CARB New-Technology Measures
Improved Control Technology for LDVs, M-2, adoption 2000,
implementation 2004-5, 2010 emission reductions--10 tpd ROG, 15 tpd
NOX;
Off-road diesel equipment--2.5 g/bhp-hr NOX standard, M-9,
adoption 2001, implementation 2005, 2010 emission reductions--3 tpd
ROG, 31 tpd NOX;
Consumer products advanced technology and market incentives
measure, CP-4, adoption 2005, implementation 2009, 2010 emission
reductions--46 tpd ROG;
Additional measures, 2009-2010 emission reductions--79 tpd ROG, 60
tpd NOX. The measures include possible market-incentive measures
and possible operational measures applicable to heavy-duty vehicles.
II. EPA Action
EPA is here finalizing action to approve the above rules and
measures for inclusion into the California SIP. EPA is approving the
submittals under section 110(k)(3) as meeting the requirements of
section 110(a) of the CAA. This approval action will incorporate these
rules and measures into the federally approved SIP. The intended effect
of approving these rules and measures is to regulate emissions of VOCs,
NOX, sulfur oxides (SOX), particulate matter, and air toxics
in accordance with the requirements of the CAA.
Nothing in this 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 shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
III. Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small business, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
[[Page 43383]]
SIP approvals under sections 110 and 301 and subchapter I, part D
of the CAA, do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, it does not
have a significant impact on any small entities affected. Moreover, due
to the nature of the Federal state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIP's on such grounds.
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
The OMB has exempted this action from review under Executive Order
12866.
IV. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of these SIP revisions, the State and any
affected local or tribal governments have elected to adopt the program
provided for under section 110 and 182(b) of the CAA. These rules may
bind State, local, and tribal governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being approved by this action will impose any
mandate upon the State, local, or tribal governments either as the
owner or operator of a source or as a regulator, or would impose any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these requirements
under State law. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
EPA has also determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Oxides of nitrogen, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: July 5, 1995.
Felicia Marcus,
Regional Administrator.
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. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraph (c)(204) to read
as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(204) New and amended plans and regulations for the following
agencies were submitted on November 15, 1994, by the Governor's
designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) Title 17, California Code of Regulations, Subchapter 8.5,
Consumer Products, Article 1, Antiperspirants and Deodorants, Sections
94500-94506.5 and Article 2, Consumer Products, Sections 94507-94517,
adopted on December 27, 1990, August 14, 1991, and September 21, 1992.
(2) Title 13, California Code of Regulations, Diesel Fuel
Regulations, Sections 2281-2282, adopted on August 22, 1989, June 21,
1990, April 15, 1991, October 15, 1993, and August 24, 1994.
(3) Title 13, California Code of Regulations, Reformulated Gasoline
Regulations, Sections 2250, 2252, 2253.4, 2254, 2257, 2260, 2261,
2262.1, 2262.2, 2262.3, 2262.4, 2262.5, 2262.6, 2262.7, 2263, 2264,
2266-2272, and 2296, 2297, adopted on April 1, 1991, May 23, 1991, and
September 18, 1992.
(4) Long Term Measures, Improved Control Technology for Light-Duty
Vehicles (Measure M2), Off-Road Industrial Equipment (Diesel), Consumer
Products Long-Term Program (Measure CP4), and Additional Measures
(Possible Market-Incentive Measures and Possible Operational Measures
Applicable to Heavy-Duty Vehicles), as contained in ``The California
State Implementation Plan for Ozone, Volume II: The Air Resources
Board's Mobile Source and Consumer Products Elements,'' adopted on
November 15, 1994.
(B) South Coast Air Quality Management District.
(1) Long Term Measures, Advance Technology for Coating Technologies
(Measure ADV-CTS-01), Advance Technology for Fugitives (Measure ADV-
FUG), Advance Technologies for Process Related Emissions (Measure ADV-
PRC), Advance Technologies for Unspecified Stationary Sources (Measure
ADV-UNSP), and Advance Technology for Coating Technologies (Measure
ADV-CTS-02), as contained in the ``1994 Air Quality Management Plan,''
adopted on September 9, 1994.
* * * * *
[FR Doc. 95-20598 Filed 8-18-95; 8:45 am]
BILLING CODE 6560-50-P
