[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Rules and Regulations]
[Pages 48792-48806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22658]
[[Page 48791]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Chapter I
Consumer and Commercial Products: Schedule for Regulation; Final Rule
40 CFR Parts 9 and 59
National Volatile Organic Compound Emission Standards for Automobile
Refinish Coatings and Consumer Products; Final Rules
40 CFR Part 59
National Volatile Organic Compound Emission Standards for Architectural
Coatings; Final Rule
Federal Register / Vol. 63, No. 176 / Friday, September 11, 1998 /
Rules and Regulations
[[Page 48792]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I
[AD-FRL-6149-6]
RIN 2060-AE24
Consumer and Commercial Products: Schedule for Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final listing of product categories for regulations.
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SUMMARY: This document announces the EPA's final decision to list the
consumer products, architectural coatings, and automobile refinish
coatings categories for regulation in the first group of consumer and
commercial product categories for which regulations are mandated under
section 183(e) of the Clean Air Act. The final rules for these three
categories are published elsewhere in today's Federal Register.
DATES: This decision is effective September 11, 1998.
ADDRESSES: Technical Support Document. The background information
document (BID) containing the Administrator's responses to significant
comments on the section 183(e) study and Report to Congress (referred
to as the ``183-BID'') may be obtained from the docket; the United
States Environmental Protection Agency Library (MD-35), Research
Triangle Park, North Carolina 27711, telephone (919) 541-2777; or from
the National Technical Information Services, 5285 Port Royal Road,
Springfield, Virginia 22151, telephone (703) 487-4650. Please refer to
``Response to Comments on Section 183(e) Study and Report to
Congress.'' The 183-BID contains a summary of all the significant
public comments made on the section 183(e) study and Report to Congress
and the list and schedule for regulation as well as the Administrator's
responses to the comments.
Docket. Docket No. A-94-65 contains information considered by the
EPA in development of the consumer and commercial products study and
the subsequent list and schedule for regulation. Comments on the
section 183(e) Report to Congress (Report) and the list and schedule of
consumer product categories to be regulated were received in four
different dockets: (1) the consumer and commercial product Report
docket (A-94-65); (2) the architectural coatings rulemaking docket (A-
92-18); (3) the consumer products rulemaking docket (A-95-40); and (4)
the automobile refinishing coatings rulemaking docket (A-95-18). The
dockets are available for public inspection and copying from 8:00 a.m.
to 5:30 p.m., Monday through Friday, excluding legal holidays. The
dockets are located at the EPA's Air and Radiation Docket and
Information Center, Waterside Mall, Room M1500, 1st Floor, 401 M Street
SW, Washington, DC 20460; telephone (202) 260-7546 or fax (202) 260-
4400. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. Bruce Moore at (919) 541-5460,
Coatings and Consumer Products Group, Emission Standards Division (MD-
13), United States Environmental Protection Agency, Research Triangle
Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Background
Under section 183(e) of the Act, the EPA was required to conduct a
study of volatile organic compounds (VOC) emissions from the use of
consumer and commercial products to assess their potential to
contribute to levels of ozone that violate the national ambient air
quality standards (NAAQS) for ozone, and to establish criteria for
regulating VOC emissions from these products. Section 183(e) also
directed the EPA to list for regulation those categories of products
that emit at least 80 percent of the VOC emissions into nonattainment
areas, and to schedule those categories for regulation in four groups.
Ozone is a major component of smog which causes negative health and
environmental impacts when present in high concentrations at ground
level.
On March 23, 1995, the EPA submitted the consumer and commercial
products Report to Congress required by section 183(e) of the CAA. On
March 23, 1995, the EPA also published in the Federal Register a
summary of the Report to Congress along with the list of product
categories and the schedule for their regulation. As stated by the EPA,
the March 23, 1995 notice did not represent a final Agency action on
the listing determination. The notice announced that the EPA would take
comment on the listing in connection with its rulemakings on emission
standards for the categories on the initial list, and that final Agency
action on the listing for each product category would occur upon
publication of a final regulation for that category. The EPA received
comments on the section 183(e) study, the Report to Congress, and the
list and schedule of consumer and commercial products for regulation in
response to the three proposed section 183(e) rules for the categories
of consumer products, architectural coatings, and automobile refinish
coatings, and the March 23, 1995 notice. This notice presents a summary
of significant public comments and the EPA's responses. Based upon the
study and the Report to Congress, the EPA has concluded that these
three categories are properly within the first group of product
categories for regulation.
Regulated Entities. Entities potentially affected by this action
are manufacturers and distributors of consumer products, manufacturers
and importers of architectural coatings, and manufacturers and
importers of automobile refinish coatings or their components.
Regulated categories and entities include:
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Category Examples of regulated entities
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Industry..................... Manufacturers or distributors of consumer
products. Manufacturers, packagers,
repackagers, or importers of
architectural coatings. Manufacturers or
importers of automobile refinishing
coatings or their components.
State/local/tribal State Agencies that manufacture their own
governments. consumer products or coatings.
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This table is not intended to be exhaustive, but rather to provide
a guide for readers regarding entities likely to be interested in this
action. This table lists the types of entities that the EPA is now
aware could potentially be interested in this action. Other types of
entities not listed in the table could also be interested. For
additional information on applicability of these rules, please see the
final rules published elsewhere in this Federal Register for these
three categories of products. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section of this
preamble.
Judicial review. The initial listing of product categories and
schedule for regulation was published on March 23,
[[Page 48793]]
1995 (60 FR 15264). This document announces the EPA's final decision to
list consumer products, architectural coatings, and autobody
refinishing categories for regulation under the first group of consumer
and commercial product categories for which regulations are mandated
under section 183(e) of the Act. Under section 307(b)(1) of the Act,
judicial review of this final action is available only by filing a
petition for review in the United States Court of Appeals for the
District of Columbia Circuit by November 10, 1998. Under section
307(d)(7)(B) of the Act, only an objection to this action which was
raised with reasonable specificity during the period for public comment
can be raised during judicial review. Moreover, under section 307(b)(2)
of the Act, the requirements established by today's final action may
not be challenged separately in any civil or criminal proceeding
brought by the EPA to enforce these requirements.
Technology Transfer Network. The Technology Transfer Network (TTN)
provides information and technology exchange in various areas of air
pollution control, including copies of the Report to Congress, all the
proposed and final actions under section 183(e), and supporting
documents. The TTN is free and is accessible through the Internet at
``http://www.epa.gov/ttn/oarpg/ramain.html.'' For more information on
the TTN, call the HELP line at (919) 541-5384.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. Purpose of regulation.
B. Section 183(e) of the Act.
C. Publication of the list and schedule for regulation.
D. Regulatory criteria and ranking of product categories.
II. Significant Comments on Section 183(e) Study and Report to
Congress
A. Legitimacy of the Environmental Protection Agency's section
183(e) study.
1. Reactivity.
2. Role of consumer and commercial products in contributing to
ozone nonattainment.
3. Consideration of ``emission magnitude'' and ``regulatory
efficiency.''
B. Consumer and commercial product inventory.
1. Role of biogenic emissions.
2. Listing of biogenic products.
C. The Environmental Protection Agency's regulatory strategy.
1. Nitrogen oxides versus volatile organic compounds emissions
control strategies.
a. Background: The current ozone control policy.
b. Effectiveness of a national volatile organic compounds
control strategy.
c. Recent scientific studies.
d. Contribution of biogenic volatile organic compounds sources
versus anthropogenic sources to ozone nonattainment.
e. The role of long-range transport of nitrogen oxides in ozone
nonattainment.
f. The Environmental Protection Agency's approach in determining
the effects of precursor emissions on ozone nonattainment.
2. Regulation of attainment areas via national rules.
III. Administrative Requirements
A. Docket.
B. Paperwork Reduction Act.
C. Executive Order 12866.
D. Executive Order 12875.
E. Regulatory Flexibility Act/Small Business Regulatory
Enforcement Fairness Act of 1996.
F. Unfunded Mandates Reform Act of 1995.
G. Submission to Congress and the General Accounting Office.
H. National Technology Transfer and Advancement Act.
I. Executive Order 13045.
I. Background
A. Purpose of Regulation
Ground-level ozone, which is a major component of ``smog,'' is
formed in the atmosphere by reactions of VOC and oxides of nitrogen
(NOX) in the presence of sunlight. The formation of ground-
level ozone is a complex process that is affected by many variables.
Exposure to ground-level ozone is associated with a wide variety of
human health effects, agricultural crop loss, and damage to forests and
ecosystems. Acute health effects are induced by short-term exposures to
ozone (observed at concentrations as low as 0.12 parts per million
(ppm)), generally while individuals are engaged in moderate or heavy
exertion, and by prolonged exposures to ozone (observed at
concentrations as low as 0.08 ppm), typically while individuals are
engaged in moderate exertion. Moderate exertion levels are more
frequently experienced by individuals than heavy exertion levels. The
acute health effects include respiratory symptoms, effects on exercise
performance, increased airway responsiveness, increased susceptibility
to respiratory infection, increased hospital admissions and emergency
room visits, and pulmonary inflammation. Groups at increased risk of
experiencing such effects include active children, outdoor workers, and
others who regularly engage in outdoor activities and individuals with
preexisting respiratory disease. Currently available information also
suggests that long-term exposures to ozone may cause chronic health
effects (e.g., structural damage to lung tissue and accelerated decline
in baseline lung function).
In accordance with section 183(e) of the Act, the Administrator has
determined that VOC emissions from the use of consumer products,
architectural coatings, and automobile refinishing coatings have the
potential to contribute to ozone levels that violate the NAAQS for
ozone. Under authority of section 183(e), the EPA conducted a study of
the VOC emissions from consumer and commercial products to determine
their potential to contribute to ozone levels which violate the NAAQS
for ozone. Based on the results of the study, the EPA determined that
these categories of consumer products account for about 30 percent of
the emissions from all consumer and commercial products. The EPA's
determination that VOC emissions from the use of these categories of
consumer and commercial products have the potential to contribute to
nonattainment of the ozone NAAQS and the decisions to regulate these
categories were discussed in the preambles to the proposed rules (61 FR
4531; 61 FR 19005; 61 FR 32729), in the Report to Congress on Consumer
and Commercial Products (EPA 453/R-94-066A), and in the Federal
Register document announcing the schedule for regulation (60 FR 15264).
B. Section 183(e) of the Act
Section 183(e) of the Act mandates a new regulatory program for
controlling VOC emissions. Through this provision, Congress required
the EPA to conduct a study of emissions of VOC into the ambient air
from consumer and commercial products and to list for regulation, based
on the study, certain categories of products that have the potential to
contribute to ozone nonattainment.
The term ``consumer and commercial products'' is defined in section
183(e) of the Act to mean:
* * * any substance, product (including paints, coatings, and
solvents), or article (including any containers or packaging) held
by any person, the use, consumption, storage, disposal, destruction,
or decomposition of which may result in the release of volatile
organic compounds.
The statutory definition of consumer and commercial products thus
includes a much broader array of products than those usually considered
to be consumer products (e.g., personal care products, household
cleaning products, or household pesticides) because it encompasses all
VOC-emitting products used in the home, by businesses, and by
institutions.
The stated objectives of the consumer and commercial products study
mandated in section 183(e) of the Act were: (1) to determine the
potential of VOC emissions from consumer and
[[Page 48794]]
commercial products to contribute to ozone levels which violate the
ozone NAAQS; and (2) to establish criteria for regulating consumer and
commercial products. In establishing criteria for regulating products,
the Act required the Administrator to consider the following five
factors: (1) the uses, benefits, and commercial demand of products; (2)
the health or safety functions served by such products; (3) whether
products emit highly reactive VOC into the ambient air; (4) the
relative cost-effectiveness of controls for products; and (5) the
availability of alternative products which are of comparable costs,
considering health, safety, and environmental impacts.
Upon completion of the study, section 183(e) required the EPA to
submit a report to Congress documenting the results of the study. The
Act further required the EPA to list those categories of products that
it determined, based on the study, account for at least 80 percent of
the total VOC emissions, on a reactivity-adjusted basis, from consumer
and commercial products in areas that violate the ozone NAAQS. In
addition, section 183(e) required the EPA to divide the list of
products into four groups establishing priority for regulation. Every 2
years following publication of the list, the EPA is required to
regulate one group of categories until all four groups are regulated.
C. Publication of the List and Schedule for Regulation
In March 1995, the EPA submitted the consumer and commercial
products Report to Congress required by section 183(e) of the Act. A
summary of the 6-volume report (EPA-453/R-94-066-a through f) was
published in the Federal Register on March 23, 1995 (60 FR 15264). In
the same document, the list of products and the schedule for their
regulation was published (60 FR 15267). Consumer products,
architectural coatings, and autobody refinishing were included in Group
1 of the schedule for which the Act requires the EPA to promulgate
regulations within 2 years of publication of the Report to Congress
(i.e., by March 1997). The March 23, 1995 document stated that the list
and schedule for regulation were not final EPA actions. As stated in
the March 23 document:
Although today's document identifies consumer and commercial
products that potentially could be regulated, this list and schedule
may be amended as further information becomes available or is
submitted to the EPA. The public will have an opportunity to comment
on the listing and possible regulation of a particular product at
the time the EPA proposes to regulate that particular product. Thus,
today's action does not represent final Agency action. Final Agency
action occurs upon publication of a final regulation for each
product.
Although not requested, the EPA received some public comments in
response to the preliminary listing document (60 FR 15264). These
comments were placed in a docket (A-94-65). However, because the EPA
intended the list and schedule to be an interim step in the development
of regulations rather than final EPA action, the EPA held no public
hearing on the Report to Congress and the listing and schedule, and
prepared no responses to the comments at that time. Instead, the EPA
requested that the public submit comments on the section 183(e) list
and schedule resulting from the study at the time of proposal of
regulations for each particular consumer and commercial product
category.
Final regulations are being published today for the consumer
products, architectural coatings, and autobody refinishing categories.
In developing these regulations, the EPA has taken into account all of
the public comments received on the criteria for listing and regulating
these categories, including comments submitted on the March 23, 1995
document. Thus, today's action represents a final EPA listing action on
these three categories.
D. Regulatory Criteria and Ranking of Product Categories
As directed in section 183(e)(2)(B) of the Act, the EPA utilized
the five factors in the statute to develop the following eight criteria
for use in establishing the list of consumer and commercial product
categories to be regulated:
(1) Utility,
(2) commercial demand,
(3) health and safety functions,
(4) emissions of highly reactive VOC,
(5) availability of alternatives,
(6) cost-effectiveness of controls,
(7) magnitude of annual VOC emissions, and
(8) regulatory efficiency and program considerations.
The first factor (uses, benefits, and commercial demand of
products) stipulated by section 183(e) is reflected in two criteria
developed by the EPA. Criterion 1 (utility) considers uses and benefits
and Criterion 2 addresses commercial demand. The remaining four factors
stipulated in section 183(e) are addressed individually by Criteria 3
through 6.
Criteria 7 and 8 (magnitude of emissions and regulatory efficiency)
reflect additional considerations not specifically prescribed in the
Act. The EPA has exercised its discretion to include these criteria,
because the EPA concluded that they are important in prioritizing
product categories for regulation in a manner that best effectuates
Congress's intent under section 183(e). The EPA's interpretation of
each of the five factors and the rationale and intent of each of the
eight criteria are discussed in detail in the section 183(e) Report to
Congress.
The EPA developed Criteria 1 through 7 to allow each product
category to be ranked numerically. The numerical ranking process
involved objective and subjective considerations. Criteria 2, 4, 6, and
7 are objective in nature and could be scored quantitatively based on
annual sales, VOC emissions, and cost of control. Application of
Criteria 1, 3, and 5 included some subjective considerations. Scoring
of these criteria could be affected by the scorer's background,
knowledge of the category, or other considerations. In order to ensure
consistency and fairness, the EPA convened the National Air Pollution
Control Techniques Advisory Committee (NAPCTAC) to assist the EPA in
application of these criteria. Because of the balance afforded by the
diversity of the NAPCTAC membership, the EPA concluded that it was an
appropriate and convenient choice. The NAPCTAC met in July 1994 in
Durham, North Carolina, to assign preliminary scores for Criteria 1
through 7 to each of the product categories. Results of the preliminary
scoring exercise are available in the docket (A-95-40). The EPA used
NAPCTAC to provide expert advice on the question of product ranking,
but exercised its own independent judgment to assign the final ranking
of products for regulation.
Once the initial ranking of products based on exercise of Criteria
1 through 7 was completed, the EPA applied Criterion 8, regulatory
efficiency and program considerations, to prioritize the products in
the schedule for regulation, and thereby identify which product
categories comprised at least 80 percent of VOC emissions in
nonattainment areas. As required by section 183(e) of the Act, the EPA
grouped the listed categories of consumer and commercial products into
four groups for regulation in 2-year intervals. Although the statute
does not require that the list be divided into 4 equal groups, the EPA
placed product categories into the 4 groups as equally as possible with
the goal of achieving VOC emissions reductions as early as possible
given available EPA resources. Thus, nearly two-thirds of the
cumulative emissions from consumer and commercial products result from
[[Page 48795]]
products in the first two groups of categories.
II. Significant Comments on Section 183(e) Study and Report to
Congress
The EPA received 85 letters commenting on the section 183(e) Report
to Congress and the regulatory list and schedule. These letters were
submitted as part of comments on the three rules discussed in this
action as well as comment on the Report to Congress. In addition, a
total of 12 people testified about the listing of consumer and
commercial products at three public hearings for the three rules being
published today. The EPA has carefully considered all these comments in
publishing today's final listing. The 183-BID, which is referenced in
the ADDRESSES section of this preamble, contains full responses to each
significant issue raised by commenters. A summary of the more
significant comments and the EPA's responses to them are presented
here.
Approximately half of the comments received on the section 183(e)
list and regulatory schedule were submitted by a consortium of
architectural coating manufacturers, including a regional firm and a
number of smaller manufacturers. For purposes of clarity and simplicity
of language, the following discussion refers to these commenters
collectively as ``the consortium.'' These companies dispute the EPA's
basis for the architectural coatings rule being promulgated today in a
separate Federal Register document. By contrast, a national paint and
coatings association that represents approximately 225 companies of all
sizes strongly supports promulgation of the architectural coatings
rule.
Many of the individual comment letters from the consortium
addressed several different issues, and many of these issues were
raised by all of these parties. In addition, the comments were
submitted to the EPA over several years, beginning before proposal of
the three rules addressed in this action and extending throughout the
respective comment periods and beyond. Over time, the arguments posed
were repeated and expanded. Moreover, many of the comments are
interrelated in terms of technical issues and policy implications.
Therefore, the EPA decided to consolidate and combine the comments from
these parties so as to present them and respond to them in an organized
manner.
A. Legitimacy of the Environmental Protection Agency's Section 183(e)
Study
Some commenters contended that the EPA failed to perform a proper
study as mandated by the Act and that the EPA, therefore, lacks
authority to propose regulations under section 183(e) of the Act until
it conducts a proper study. The primary alleged deficiencies suggested
by these commenters are that: (1) the EPA did not perform speciated
reactivity studies of all VOC in consumer and commercial products; (2)
the EPA failed to demonstrate that consumer and commercial products
have the potential to contribute to ozone nonattainment; and (3) the
EPA considered VOC emissions magnitude and regulatory efficiency, which
was allegedly contrary to Congressional intent. Three other commenters
testified that the EPA had fulfilled all necessary requirements of
section 183(e) of the Act. These commenters agreed with the EPA's
efforts in the section 183(e) study and Report to Congress.
These comments are summarized and addressed in the following
sections.
1. Reactivity
The consortium claimed that the EPA failed to conduct a speciated
relative reactivity study of all consumer and commercial product VOC
and that such a study was mandated by section 183(e)(2)(A) of the Act.
The consortium argued that the lack of a relative reactivity study
precludes the EPA from determining which, if any, VOC from consumer and
commercial products are logical targets for regulation. The consortium
also disagreed with the EPA's conclusion that it was impossible to
perform reactivity studies on all individual consumer and commercial
product ingredients within the time frame allowed by Congress and the
EPA's available budget. The consortium contended that the EPA could
have developed a more effective regulatory program based on
substitution of lower reactivity VOC for higher reactivity VOC if
additional reactivity studies had been undertaken.
Another commenter, however, believed that the EPA met the
requirements of section 183(e) of the Act regarding the consideration
of reactivity, and noted what was included in the section 183(e) Report
to Congress with respect to reactivity.
In response to these comments, the EPA believes that it has met all
reactivity-related requirements of section 183(e) of the Act, and that
relative reactivity was taken into account to the extent that currently
available scientific data and understanding allow. As required in
section 183(e), the EPA considered reactivity in prioritizing and
selecting product categories to be listed for regulation. The EPA
disagrees that a speciated study of all consumer and commercial product
VOC should have been performed; such a study is not required by the Act
and would have been impractical to undertake. The EPA's analysis of the
state of knowledge regarding reactivity and use of available reactivity
data allowed the EPA to fulfill the requirements of the Act and to
complete the mandated study and Report to Congress. Finally, currently
available speciated reactivity data are not adequate to support the
suggested regulations based on substitution of lower reactivity VOC for
higher reactivity VOC. An analysis of whether such a system would
result in more efficient regulation would need to consider all costs
associated with implementing a speciated regulatory system (e.g.,
monitoring and recordkeeping). Also, it would be necessary to consider
the ability of compounds to form ozone over a several-day period under
different sets of environmental conditions in designing such an
approach and considering its efficiency.
Consideration of reactivity in prioritizing product categories for
possible regulation. Section 183(e)(2)(B)(iii) of the Act requires the
EPA to consider five factors in establishing criteria for selecting
product categories to be regulated. One factor is ``those consumer and
commercial products which emit highly reactive volatile organic
compounds (VOC) into the ambient air.'' Accordingly, the EPA
established ``Emissions of Highly Reactive Compounds'' as one of the
criteria used to rank consumer and commercial products for possible
regulation.
In its consumer and commercial products study, the EPA
distinguished between three groups of compounds: highly reactive,
reactive, and negligibly reactive. Negligibly reactive compounds, a
category established by the EPA regulations, are certain listed
compounds the EPA has formally determined to have insignificant ozone-
forming potential and excluded from the definition of VOC. Compounds
that were identified as negligibly reactive were excluded from the
consumer and commercial product VOC emissions inventory, and will be
excluded from any related regulation.
To identify highly reactive VOC, the EPA used available information
to identify 10 classes of volatile organic
[[Page 48796]]
compounds--some of which represent very broad groups--as ``highly
reactive'' under most conditions. In the study the EPA thus
differentiated among classes of VOCs that were known to be reactive and
those that were known to be highly reactive, using the most current,
generally accepted reactivity scales. The EPA then identified those
product categories known to contain quantities of these highly reactive
compounds, and estimated the quantity of highly reactive compounds
emitted by these product categories.
The EPA also took into consideration highly reactive VOC under
another criterion, ``Magnitude of Annual VOC Emissions.'' For product
categories known to contain highly reactive VOC, the EPA adjusted the
mass emissions figures for those VOC to reflect their high reactivity.
The EPA subsequently ranked product categories for possible
regulation, considering the criteria established by the EPA and advice
from the independent NAPCTAC advisory group. In conducting the ranking,
the EPA gave product categories containing highly reactive compounds a
higher priority for regulation. In addressing the two criteria cited
above, the EPA assigned a range of scores based on the number of tons
of highly reactive VOCs emitted per year by a product category. The EPA
included the scores from these criteria in the calculation of the total
scores for each product category in considering the regulatory priority
of each category.
Chapter 3 of the March 1995 Report to Congress provides a more
detailed discussion of reactivity and the rationale for the list of
highly reactive compounds on which the EPA relied. Chapter 4 of the
Report to Congress discusses in more detail how the EPA applied each of
the criteria.
Adjustment for reactivity in listing product categories. Section
183(e)(3)(A) of the Act requires the EPA to ``list those categories of
consumer or commercial products that the Administrator determines,
based on the study, account for at least 80 percent of the VOC
emissions, on a reactivity-adjusted basis, from consumer or commercial
products in areas that violate the NAAQS for ozone.'' The EPA fulfilled
the reactivity adjustment requirement in the following manner. As
previously noted, the EPA grouped all VOC into three divisions--highly
reactive, reactive, and negligibly reactive. The EPA identified those
product categories known to contain highly reactive compounds and
estimated the mass quantity of these compounds found in each category.
The EPA adjusted emissions data for these product categories by
applying a reactivity adjustment factor to the mass emissions of highly
reactive ingredients. Compounds that were identified as negligibly
reactive, which are not within the definition of VOC, were excluded
from the emission inventory. After ranking the product categories based
on the eight regulatory criteria, the EPA developed the list of
categories for regulation starting with the highest ranked categories
and proceeding through successive categories until 80 percent of the
total emissions--including the aforementioned adjustments for
reactivity--was accounted for. In this way, the EPA, fulfilled the
reactivity adjustment requirement of section 183(e)(3)(A) of the Act.
Additional study was not required. The statutory requirements
regarding reactivity are clearly stated in the Act. They are:
1. To consider consumer and commercial products that emit highly
reactive VOC, and
2. To list those products that account for at least 80 percent of
VOC emissions from consumer and commercial products in non-attainment
areas, on a reactivity-adjusted basis.
The EPA believes that the Act does not require the speciated
reactivity study suggested by the commenters. Nor does the Act include
any requirements for the EPA to fill gaps in scientific understanding
before proceeding with prioritizing and listing categories for
regulation. The Act's language regarding a study requires the EPA to
address ``emissions of volatile organic compounds into the ambient air
from consumer and commercial products* * *'' The EPA considered
reactivity a significant issue in this study and assessed all
reasonably available reliable data on reactivity of individual VOC
species. The EPA does not believe that it was required to delay its
listing decisions until it could conduct extensive research to quantify
the reactivity of each VOC species.
To meet these requirements, the EPA ascertained which consumer and
commercial products have the potential to contribute to ozone
nonattainment and took reactivity into consideration to the extent that
reasonably available information allows. As described in the preceding
section, the EPA's study of relative reactivity included assessment of
currently available data and ozone formation models. Furthermore, since
the study and Report to Congress were, in essence, a screening exercise
to identify the EPA's priorities for regulating categories of consumer
and commercial products, the EPA judged that the consideration of
relative reactivity should be limited to currently available data and
should not involve exhaustive testing of relative reactivity of all
consumer and commercial products. The EPA does not believe that
Congress could have intended to delay regulation of VOC emissions from
consumer and commercial products indefinitely, pending development of
complete information regarding reactivity for all individual species of
VOC. As more complete information on the relative reactivity of
consumer and commercial product VOC is developed over time, the EPA can
incorporate it into the regulatory program. For example, if data become
available to prove that a currently regulated VOC is negligibly
reactive, the EPA will exempt that compound from the regulatory
definition of VOC.
Impracticality of additional study. Some consortium members claim
that the EPA should have attempted in the section 183(e) study to
conduct a quantitative analysis of the relative reactivity of each of
the thousands of VOC species in consumer and commercial products. Such
a detailed, costly, and time-consuming analysis is not needed to
justify listing of product categories for regulation and is not
required by the statute. The effect of such a requirement would be to
postpone for years promulgation of pollution control requirements
needed to help the Nation achieve clean air. This would be inconsistent
with Congress's direction that the EPA complete the study within three
years and expeditiously issue regulations for consumer and commercial
products within deadlines set in the statute.
Even if the EPA could have determined reactivity values for the
extremely large number of compounds in consumer and commercial
products, the results would be of limited utility. Available computer
models generally aggregate chemical compounds or consider them as
general categories. As a result, models have limited use for evaluating
the effects of reducing emissions of specific VOC species from a
particular product category.
2. Role of Consumer and Commercial Products in Contributing to Ozone
Nonattainment
The consortium also argued that the EPA's section 183(e) study
failed to determine the potential of VOC emissions from consumer and
commercial products to contribute to ozone levels that violate the
ozone NAAQS. Their argument included points that the EPA should have
[[Page 48797]]
determined the reactivity of each species of VOC and should have done a
detailed study of the role of other factors, including the role of
NOX and biogenic emissions in ozone formation. In addition,
the consortium asserted that the EPA should have determined which
products and control strategies have the greatest ozone reduction
potential in each individual nonattainment area and related the
estimated cost of any proposed regulations to the amount of ozone
reduced. As a result of these exercises, the consortium claimed the EPA
would have listed for regulation only those products that have the
greatest effect on ozone reduction for the least cost.
The EPA disagrees with the consortium that these studies are needed
for proper implementation of the section 183(e) program, and disagrees
that section 183(e) of the Act directs the EPA to undertake such a
detailed level of analysis. The statutory mandate is to study the
``emissions of VOC from consumer and commercial products * * * in order
to determine their potential to contribute to ozone levels which
violate the NAAQS for ozone.''
The EPA has concluded that VOC emissions from consumer and
commercial products have the potential to contribute to ozone
nonattainment, based on the section 183(e) study and a large body of
scientific knowledge on photochemical reactivity and the role of VOC in
ozone formation.
The EPA is not alone in its assessment. A 1989 report by the
Congressional Office of Technology Assessment, ``Catching Our Breath:
Next Steps for Reducing Urban Ozone,'' identified VOC emissions from
solvents in paints and coatings, and from other types of products, as a
significant contributor to the ozone pollution problem that had largely
escaped regulation at the federal level. Several States have moved on
their own to limit VOC emissions from paints and coatings because they
contribute to ozone pollution. The National Governors' Association and
Environmental Council of States, and the associations representing
State and local air program administrators, have called upon the EPA to
expedite adoption of national rules for architectural coatings and
other consumer and commercial products. Further, in June 1997, the 37-
State Ozone Transport Assessment Group (OTAG) recommended that the EPA
proceed with finalizing the proposed national rules for architectural
coatings, consumer products, and automobile refinish coatings, and even
develop more stringent future requirements for these categories.
The following considerations and scientific studies are among those
supporting the EPA's position that the VOC in consumer and commercial
products have the potential to contribute to the ozone pollution
problem:
(i) Ozone pollution is caused by the reaction of VOC and
NOX. All VOC species have the potential to form ozone (i.e.,
are reactive) to some degree. Since the late 1940s, the scientific
community has recognized this basic tenet of atmospheric chemistry. For
example, the 1996 EPA document entitled ``Air Quality Criteria for
Ozone and Related Photochemical Oxidants'' and its 1970 and 1977
predecessors include discussions of the atmospheric chemistry leading
to formation of ozone and the important role of VOC in that formation.
These documents have been extensively reviewed by independent
scientific experts on the Clean Air Scientific Advisory Committee.
(ii) The EPA's consumer and commercial products study includes a
broad inventory of VOC emissions from consumer and commercial products.
The study showed that emissions from consumer and commercial products
in 1990 were large-- an estimated 28 percent (6 million tons per year)
of total manmade VOC emissions nationwide. In ozone nonattainment
areas, these emissions in 1990 totaled 3.3 million tons per year (tpy).
These totals consist of contributions from a large number of individual
pollution sources that are relatively small.
Architectural coatings--the category of principal interest to
consortium members--are one of the largest identifiable unregulated
sources of VOC in many States' emissions inventories, and one of the
largest sources of VOC emissions among categories of consumer and
commercial products. The EPA's section 183(e) study estimated
nonattainment area emissions from this category at 315,000 tpy in 1990.
(iii) Both the amount of VOC emitted, and the reactivity of the VOC
(which is dependent on ambient conditions that vary at different times
and places), affect the amount of ozone formed. It is important to note
that low-reactivity VOC can still be significant ozone producers if
they occur at high concentrations and under favorable conditions. This
is documented, for example, in a 1991 article by R.G. Derwent and M.E.
Jenkin, ``Hydrocarbons and the Long Range Transport of Ozone and PAN
Across Europe,'' in Atmospheric Environment (25A, p.1661) and in the
most recent ``National Air Quality and Emissions Trends Report, 1996,''
(EPA-454/R-97-013).
This point concerning low-reactivity VOC also is supported by
empirical data from this country. The most recent ``National Air
Quality and Emissions Trends Report, 1996,'' (EPA-454/R-97-013),
suggests that reducing low-reactivity VOC emissions from gasoline was
effective in reducing national ozone levels. The report shows that
national VOC emissions decreased 9 percent from 1987 to 1991, while
national composite ozone levels decreased approximately 8 percent. A
closer look at the VOC reductions over this period shows that they are
primarily due to reductions in the transportation category, and this is
due in large part to reductions in the vapor pressure of gasoline (Reid
vapor pressure, or RVP) which were implemented nationally in 1989 and
1990. These RVP reductions are primarily achieved by reducing the
content of short-chain hydrocarbons in gasoline. While these compounds
are generally considered of lesser importance in the formation of ozone
than their more highly-reactive hydrocarbon counterparts, their
reduction seems to have been very effective in the reduction of ozone
levels nationally between 1987 and 1991. This is an example of how the
control of certain VOC emissions which are considered less reactive
than other VOC emissions in isolation can, nonetheless, be effective in
significantly reducing levels of ozone pollution. In any case, it has
long been apparent that these ``less reactive'' VOC emissions (such as
those which can be found in many paint solvent formulations) cannot be
ignored when considering the need to control VOC to reduce ozone
pollution.
(iv) It has been well documented that both VOC and NOX
control are needed to combat the national ozone problem. This point is
further discussed elsewhere in this preamble.
The EPA is continuing to support research on atmospheric chemistry,
including photochemical reactivity, to further improve models for
predicting ozone formation. In the meantime, the EPA believes that
there is ample scientific evidence that VOC emissions from consumer and
commercial products have the potential to contribute to ozone
nonattainment.
In the consumer and commercial products study, the EPA studied two
indicators of a product category's relative potential to form ozone.
These indicators, which the EPA identified as two of the criteria to be
used in listing product categories for regulation, were (1) the
quantity of VOC emissions
[[Page 48798]]
(adjusted for highly reactive emissions), and (2) the quantity of
highly reactive emissions. In the study, the EPA determined the
quantity of VOC emissions from each product category and created a
comprehensive VOC emissions inventory for consumer and commercial
products. In addition, using available data, the EPA identified classes
of highly reactive VOC and determined the quantities of those compounds
emitted by each product category.
The EPA subsequently considered both of these criteria in
prioritizing and listing product categories for regulation. As detailed
elsewhere in this preamble, product categories that had greater
emissions of VOCs, or greater emissions of highly reactive VOCs,
received higher priority scores on those two criteria and, therefore,
were more likely to be listed for regulation.
In other words, the EPA studied indicators of product categories'
relative potential to form ozone in conducting the consumer and
commercial products study, and considered those indicators in
prioritizing and listing product categories for regulation.
Some consortium members claim that the EPA should have attempted in
the section 183(e) study to conduct a quantitative analysis of the
amount of ozone formed by each of the thousands of VOC species in
consumer and commercial products, for each product, in each airshed or
nonattainment area--and do so for a range of control strategies. The
Act does not require the EPA to establish quantitatively the
contribution of each product to ozone nonattainment prior to listing.
As previously noted, such a detailed, costly, and time-consuming
analysis is not needed to justify the listing of product categories for
regulation. The effect of such a requirement would be to postpone for
years promulgation of pollution control requirements needed to help the
Nation achieve clean air. This would be inconsistent with Congress's
direction that the EPA complete the study within 3 years and
expeditiously issue regulations for consumer and commercial products
within deadlines set in the statute.
In this context, it is relevant to note that the types of VOC in
consumer and commercial products are not unique-- these same VOC are
among the pollutants emitted by major industrial facilities. Consumer
and commercial products are made from VOC-containing chemical feed
stocks made at chemical manufacturing plants and refineries, for which
VOC emission control regulations are comprehensive and stringent.
Other reasons that the extremely detailed analysis suggested was
not feasible or appropriate involve data limitations and scientific
complexities and uncertainties. Such an analysis would require, for
example, substantial addditional data on the types and quantities of
individual VOC in each product within the broad universe of consumer
and commercial products. To obtain this information would have placed
an additional burden upon industries that the EPA believes was not
necessary for the listing process. Also, studies to quantify the
reactivity of a large number of individual VOC species would have been
required for this analysis. In addition, many complexities make it
difficult to make reliable predictions of the ozone-forming potential
of individual VOC species. One reason is that this potential varies
depending on ambient conditions--on an absolute scale, and occasionally
on a relative scale as well. These conditions affecting reactivity
include ambient conditions such as VOC-to-NOX ratios, the
presence of other VOC, and sunlight intensity. Each of these factors
can vary widely. Also, in multiple day pollution episodes in an area, a
VOC species that has low reactivity (based on a one-day reactivity
scale) may continue to form ozone over several days. Even if the EPA
could have obtained the needed data and accounted for these
complications, the results would have been of limited utility. As
mentioned previously, available computer models generally aggregate
chemical compounds or consider them as general categories. As a result,
models have limited use for evaluating the effects of reducing
emissions of specific VOC species from a particular product category.
Finally, the EPA believes that an intensive study to quantify each
product's effect on ozone levels in nonattainment areas is inconsistent
with Congress' intent in enacting the section 183(e) program. Congress
recognized that small quantities of VOC emissions from a very large
number of products add up--and together make up a significant portion
of ozone-forming VOC emissions. Congress created the 183(e) program to
reduce the VOC emissions from consumer and commercial products as a
group. Under section 183(e), it is not necessary to quantify the effect
of each species of VOC, or each product, on ozone levels in each
nonattainment area to make a reasoned selection of product categories
to list for regulation.
The EPA has procedures available for considering evidence that a
particular compound is not reactive enough to warrant regulation as an
ozone precursor under the Act. Existing EPA regulations allow persons
or companies to apply to have a compound excluded from the definition
of VOC--in effect, exempted from regulation--based on evidence that it
is negligibly reactive. (See 40 CFR 51.100(s).) Working with industry,
the EPA has exempted 42 compounds and two classes of compounds under
this provision; 21 exemptions have been granted since 1990.
In summary, the EPA believes that the potential for the listed
categories of products to contribute to ozone nonattainment has been
established in accordance with the requirements of section 183(e).
3. Consideration of ``Emission Magnitude'' and ``Regulatory
Efficiency''
The consortium contended that the EPA lacked authority to use the
``emission magnitude'' and the ``regulatory efficiency and program
considerations'' criteria because they do not directly reflect any of
the five factors listed in section 183(e)(2)(B) of the Act. For this
reason the consortium concluded that any EPA action relying on these
criteria is illegal and invalid.
Although the Act requires that the EPA consider the five factors
enumerated in section 183(e)(2)(B) of the Act in establishing criteria
for regulating products, the statute does not require that the EPA
establish criteria that precisely mirror the five factors, nor does it
require that the EPA consider the list of factors to be exclusive. The
EPA fulfilled its duty to establish criteria and to consider each of
the five listed factors in developing the criteria. In addition, the
EPA exercised its discretion by establishing two criteria that did not
specifically mirror the five listed factors. The EPA believes these two
criteria are important for the purposes of establishing priorities for
regulation as instructed by Congress.
The EPA established Criterion 7, Magnitude of Annual VOC Emissions,
to give greater regulatory priority to products that emit relatively
large amounts of VOC. Magnitude of annual VOC emissions is a reasonable
criterion for determining which product categories to regulate. It is
logical to take into consideration how much VOC product categories emit
relative to other products because the greater the emissions from a
category, the greater the potential to achieve significant emission
reductions and the corresponding reduction in ozone concentrations in
areas violating the ozone standard.
[[Page 48799]]
The EPA established Criterion 8, Regulatory Efficiency and Program
Considerations, to assure that the EPA continues to use resources in
the most effective manner to meet the mandates of section 183(e) of the
Act. It is reasonable for the EPA to consider whether a given product
category has already been the subject of State, local, or Federal
regulations. Such categories would have been well-characterized,
alternatives of control would have been explored, and costs and
economic impacts would have been investigated. The EPA believes it is
also reasonable to consider the existence of this information because
the EPA must regulate the first group of products in a relatively short
time. The EPA carries out all of its activities mandated by the Act
within budgetary and time constraints. It is the EPA's policy to focus
regulatory activities so as to optimize the use of time and resources.
Section 183(e)(2)(B) does not prohibit the EPA from considering this
factor.
B. Consumer and Commercial Product Inventory
The consortium expressed the opinion that consumer and commercial
products are not a significant VOC source. According to the consortium,
many consumer and commercial products, such as architectural coatings,
would not be listed for regulation had the EPA performed the inventory
correctly, because such products may not be in the top 80 percent of
consumer and commercial product emissions on a reactivity-adjusted
basis. The consortium listed two alleged deficiencies with the consumer
and commercial product inventory. First, the EPA's overall inventory
did not include biogenic VOC. Second, the EPA excluded certain man-
controlled biogenic VOC sources, such as plant nurseries and orchards,
from the list of consumer and commercial products to be regulated.
1. Role of Biogenic Emissions
The consortium stated that a major deficiency existed in the
consumer and commercial product inventory because the EPA failed to
provide Congress with information about the insignificance of VOC from
consumer and commercial products relative to the larger amount of
biogenic VOC in the atmosphere. According to the consortium, the EPA's
failure to list the specific sources of all VOC, including those from
the global background, biogenic, and anthropogenic sources, along with
the role that each source played in ozone formation, resulted in
Congress being uninformed of the supposed insignificance of
anthropogenic emissions compared to biogenic emissions.
The EPA believes that the inclusion of biogenic emissions in the
inventory of national VOC emission sources is one possible approach,
but does not believe that such inclusion changes the proper analysis
for controlling VOC from consumer and commercial products. The EPA
estimated biogenic emissions in 1990 to be about 34 million tpy.
Considering the 21 million tons of anthropogenic emissions, total VOC
emissions nationwide are greater than 56 million tpy. For the purpose
of determining relative contribution of consumer and commercial
products, the EPA revised the inventory of all VOC sources to include
biogenic emissions and included the revised table in the section 183(e)
comment response document. These biogenic emissions are not amenable to
control, because they emanate from sources for which there is no
practical control option (i.e., forests, swamps, grasslands, etc.);
therefore, the proportion of controllable VOC has remained unchanged.
Of the 21 million tons of anthropogenic VOC emissions emitted
nationwide in 1990, consumer and commercial products account for 6
million tons, or about 28 percent. Therefore, consumer and commercial
products are still among the most significant Federally unregulated VOC
sources for which additional VOC reductions are achievable.
Consumer and commercial product VOC contribute to ozone formation
regardless of the precise amount of biogenic VOC in the inventory. In
some regions of the country, biogenic VOC contribute significantly to
ozone nonattainment. In other areas, biogenic VOC are emitted in the
presence of limited amounts of NOX, resulting in a limited
amount of ozone formation. Moreover, under the right conditions,
biogenic VOC tends to scavenge ozone from polluted air as well as form
new ozone. Anthropogenic VOC, on the other hand, are usually emitted in
the presence of NOX, resulting in rapid ozone formation and
are generally unreactive with ozone under most conditions. For these
reasons, anthropogenic VOC contribute to ozone nonattainment in urban
areas and other locations, regardless of any concomitant contribution
by biogenic sources. Thus, VOC emissions from anthropogenic sources
will play a proportionately greater role in ozone formation than is
indicated by their percentage contribution to total national emissions.
The EPA concluded that the existence of biogenic VOC does not negate
the fact that VOC from consumer and commercial products have the
potential to contribute to ozone nonattainment as contemplated by
section 183(e) of the Act.
2. Listing of Biogenic Products
The consortium argued that a second deficiency in the consumer and
commercial product inventory and list for regulation was that the EPA
excluded man-controlled biogenic sources (i.e., flowers, trees, food,
etc.). The consortium argued that this exclusion is contrary to the
Act, which required the EPA to conduct a complete inventory of all
sources of VOC emissions from consumer and commercial products. The
consortium stated that these biogenic sources, if included in the
study, would have been a more significant source of VOC contribution to
ozone than some of the consumer and commercial products that the EPA
listed for regulation.
The EPA disagrees that biogenic products should be listed as
categories of consumer and commercial products. It is reasonable to
list only those products from which emission reductions are possible.
In general, the EPA has interpreted the statutory definition of
consumer and commercial products very broadly, and considers products
ranging from hair sprays to automotive coatings to asphalt paving
materials to fall within the definition of consumer and commercial
products. These ``products'' differ greatly from man-controlled
biogenic sources of VOC.
In each of the categories identified by the EPA to be consumer and
commercial products for regulation, the products share at least one
characteristic that sets them apart from biogenic sources. In every
case, the ``products'' are formulated and manufactured using
combinations of ingredients. The manufacturers have control over the
VOC contents of these products, and, therefore, can reformulate or
modify the products to emit less VOC. Plants, trees, and shrubs are not
manufactured and, therefore, have inherent VOC emission
characteristics, both in volume and speciation of emissions. These
naturally occurring sources cannot be reformulated or modified to
reduce VOC emissions. Options to control VOC emissions from plants,
trees, and shrubs would be limited primarily to banning sale or
distribution of such products which the EPA believes would not reflect
Congress's intent in enacting Section 183(e).
The VOC emissions from biogenic sources could not be mitigated
through regulation; therefore, it is highly unlikely that these sources
would ever
[[Page 48800]]
be listed for regulation. Consequently, the EPA's decision not to
identify these sources as consumer and commercial products under
section 183(e) of the Act has not affected the selection of nor the
priorities for those categories the EPA did list for regulation.
C. The Environmental Protection Agency's Regulatory Strategy
1. Nitrogen oxides versus volatile organic compounds emissions
control strategies. As part of their comments opposing the EPA's
approach to the section 183(e) study and Report to Congress, the
consortium submitted a series of letters presenting a number of
different arguments that the EPA is using the wrong regulatory policy
for attainment of the ozone NAAQS. The common theme in these arguments
was that the consortium believed that the EPA should control
NOX instead of VOC because, in their opinion, controlling
NOX is the most scientifically valid and the most effective
strategy for achieving long term ground-level ozone attainment. The
consortium's specific arguments are summarized and addressed in
sections II.C.1.(b) through (f) of this document. An overview of the
EPA's response to this group of arguments is presented below before
discussion of the specific arguments.
The EPA believes that the present policy, which focuses on control
of both NOX and VOC, reflects the latest knowledge on
factors affecting ozone formation and the technical feasibility of
controls. The present policy, which relies on a combination of
national, regional, and local control strategies, has been effective in
improving ozone attainment and will achieve further improvements in
ozone air quality. The consortium is correct in that scientific studies
since the Clean Air Act Amendments of 1990 have more clearly recognized
the role of NOX and biogenic emissions in ozone
nonattainment. The findings of these studies have been factored into
the national ozone control policy. The EPA's policy has continuously
evolved since the 1970's to recognize improved scientific understanding
of this complex issue and will continue to evolve as the science
advances. The EPA continues to believe that regulation of both
NOX and VOC is appropriate and that regulation of VOC
through section 183(e) of the Act will contribute to reduced ozone
levels. The consortium's position that the ozone NAAQS can be achieved
at all locations by NOX control alone is based, in part, on
a misunderstanding of the ozone formation mechanism in urban air.
a. Background: The current ozone control policy. Unlike other
criteria pollutants, ozone is not directly emitted into the air. Ozone
forms in the air when NOX and VOC react in a complex set of
reactions in the presence of sunlight and heat. The ozone reactions are
initiated by the breakdown of nitrogen dioxide by sunlight and
subsequent reaction with oxygen. In the absence of VOC, an equilibrium
exists between NOX and ozone, by which ozone is consumed in
the series of photochemical reactions soon after formation. This
equilibrium prevents the buildup of high concentrations of ozone in the
air. Introduction of VOC disrupts this equilibrium (i.e., disrupts the
reactions that scavenge ozone), thus resulting in accumulation of high
concentrations of ozone.
The EPA's ozone reduction policy is to control both NOX
and VOC emissions. The EPA's policy is consistent with recent
scientific studies and with explicit statutory directives to reduce
both VOC and NOX. Ozone control is a complex problem that
must address a number of factors, including meteorological conditions,
the relative concentrations of NOX and VOC in the air, and
the proximity of emission sources to one another. The EPA's policy
recognizes that NOX control is an effective means for
reducing ozone. The EPA's policy also recognizes that VOC control, with
or without NOX control, is essential or beneficial in many
areas for reducing peak ozone concentrations. The EPA believes that its
ozone reduction policy is a scientifically valid strategy and that the
consortium has mischaracterized the EPA's ozone policy and the past
results of the policy.
Several of the comment letters implied that national standards for
VOC are the only component of the EPA's policy. This implication is
incorrect. The section 183(e) regulations are just one part of a
reasoned ozone control plan consisting of national, regional, and local
controls. First and foremost, ozone attainment is a State
responsibility. States are responsible for designing control strategies
for each nonattainment area in their jurisdiction. The strategies must
consider local conditions, including contribution of biogenic VOC
emissions, in determining an appropriate mix of NOX and VOC
controls and the level of control needed. States have developed
emission regulations to achieve emission reductions necessary to
demonstrate attainment through modeling studies. Multi-State planning
zones in several regions of the country are being established to
develop coordinated strategies to address interstate transportation of
pollution. The Act also requires that State plans contain provisions
that prevent sources from contributing significantly to nonattainment
or maintenance of attainment in other States.
The State and Regional plans are supplemented by Federal measures
to reduce emissions for certain source categories. Federal programs may
address source categories that are more efficient to regulate
nationally than on a State-by-State basis. States rely on these
reductions from the Federal measures in conducting their atmospheric
modeling for control strategy development and attainment
demonstrations. Examples of Federal VOC control measures include mobile
source controls under title II of the Act, new source performance
standards (NSPS), the marine vessel loading rule, and the consumer and
commercial product regulations under section 183(e) of the Act. Federal
NOX controls include regulations for mobile sources, NSPS,
and acid rain controls on utility boilers. Section 183(e) standards,
therefore, are but one element of a coordinated Federal and State
program for ozone control.
Recent regional ozone modeling studies over the 37-State region of
the eastern United States have shown that additional emission
reductions of both NOX and VOC will be needed beyond the
currently applicable State and Federal controls. The study was
conducted by the Ozone Transport Assessment Group (OTAG), which
included representatives of the 37 easternmost States, the EPA, and the
public--in total, more than 700 public and private sector stakeholders.
The OTAG States recommended in July 1997 that the EPA continue to adopt
and implement stringent national control measures for a number of VOC
emission sources, including consumer and commercial products.
b. Effectiveness of a national volatile organic compound control
strategy. The consortium claimed that VOC control is ineffective and
should be abandoned because the policy of controlling VOC has not
achieved ozone attainment in all areas of the country. The consortium
further maintained that, in some cases, VOC controls are
counterproductive and will increase ozone formation.
The EPA disagrees with the conclusion that VOC control is
ineffective. Past control strategies have improved air quality. Ozone
trends data show that reductions in peak ozone concentrations are
occurring across the country. Monitoring data from more than 700 sites
show that composite averages of the second highest maximum 1-hour ozone
concentrations have shown a clear, steady, downward
[[Page 48801]]
trend over the past 10 years. These downward trends apply also to the
number of daily exceedances of the standard. Since historically the
control policies placed greater reliance on VOC control, the trend of
ozone reductions confirms that VOC control has been effective in many
areas of the country.
Failure to obtain universal attainment is due to a number of
factors. Some of these factors include the underestimation of VOC
inventories and the inadequate consideration of the role of biogenics
and the transport of ozone and NOX. Even with these
limitations, many areas of the country have achieved attainment or have
improved ozone air quality measurably. With recent enhancements to the
policy to better address the local impacts of biogenics and pollutant
transport, future control strategies should continue to improve this
trend.
The EPA also disagrees that VOC controls are counterproductive. The
consortium's position is based on the fact that some species of VOC can
reduce ozone under some conditions. Controlling these compounds,
therefore, could conceivably increase ozone in certain circumstances.
While the EPA acknowledges that some species of VOC can scavenge ozone,
this phenomenon occurs in very limited circumstances (i.e., in
relatively clean air, with highly reactive VOC under specific
meteorological conditions, and in the presence of very low
NOX). This phenomenon is not widespread and certainly does
not form the basis for a national ozone control policy. For a more
detailed response to this comment, see section 2.2.2 of the 183-BID.
c. Recent scientific studies. The consortium charged that the EPA
has failed to consider recent scientific studies published since the
Clean Air Act Amendments of 1990, and has followed historic control
policies which have failed. The consortium claimed that ``Rethinking
the Ozone Problem,'' ``The Southern Oxidants Study,'' and other studies
addressing the role of NOX and biogenic VOC emissions prove
that the current ozone reduction policy cannot work. They pointed to
elements of these studies as support for their position that
NOX controls are a better means to achieve ozone attainment
than VOC controls.
The EPA believes that the current ozone strategy of controlling
both VOC and NOX is scientifically valid and is consistent
with recent scientific advances. Ozone control is a complex problem.
Over the past 20 years, scientific understanding of ozone formation
mechanisms has continued to evolve and the EPA's ozone strategy has
evolved accordingly. While the EPA agrees with some of the specific
factual information cited by the consortium from the cited studies, the
EPA disagrees with the consortium's conclusions that the proper
response is to abandon VOC control altogether in favor of a
NOX-only control policy. The cited studies show the
complexity of the problem, the importance of NOX control in
certain circumstances, and the importance of regional control
strategies to reduce transport problems. But they do not suggest that
VOC emission sources should not be controlled. These studies do not
change the conclusion that VOC control helps reduce ozone in many
circumstances.
Current scientific information shows that VOC reductions will
reduce ozone in urban areas and in other areas where there is available
NOX present. The relative effectiveness of VOC and
NOX controls will vary from area to area, depending
significantly upon VOC/NOX ratios in the atmosphere. VOC
reductions will help to reduce ozone in all urban areas because VOC/
NOX ratios vary at different times and places within an
urban area. Modeling analyses indicate that a combination of VOC and
NOX controls is the most effective way to reduce ozone
levels in many urban areas. Ozone reductions due to VOC control can
also reduce ozone pollution in downwind areas affected by ozone
transport.
The EPA agrees with the consortium on several points: (1) that the
past control strategies have not produced the level of ozone reductions
that were expected; (2) that science has only recently (in the last 10
years) recognized the significance of the contribution of biogenic VOC
sources and transport of ozone and NOX; and (3) that these
studies provide a basis for fine-tuning certain aspects of the current
policy. The EPA disagrees, however, that the proper action is to
abandon VOC control altogether. The course that the EPA is following is
to use improved scientific understanding from these studies to
formulate an improved ozone policy. Recent EPA initiatives to improve
ozone control strategy development include:
(1) Improvement of ozone air quality models.
(2) Collection of more and better air quality data upon which to
base strategies (including simultaneous monitoring of ozone,
NOX, and speciated VOC concentrations).
(3) Improvement of VOC and NOX emission inventories
(including biogenic emissions).
(4) Regional application of ozone air quality models to account for
long-range pollutant transport.
(5) Development of regional ozone control strategies for
NOX. (For example, a proposed rulemaking at 62 FR 60317 will
require States to submit State Implementation Plan measures to mitigate
transport of ozone and emissions of NOX across State borders
in the eastern half of the country.)
These improvements respond to the consensus of current scientific
understanding of ozone formation and control. The EPA expects that its
ozone control strategy will continue to evolve as scientific
understanding of ozone formation and control improves.
d. Contribution of biogenic volatile organic compounds sources
versus anthropogenic sources to ozone nonattainment. The consortium
stated that anthropogenic VOC sources (like consumer and commercial
products) are so insignificant compared to biogenic sources that
controlling anthropogenic VOC will have no ozone reduction benefit. The
consortium claimed that since biogenic sources might contribute as much
as 90 percent of total VOC emissions on typical summer days, the only
way to achieve the ozone standard is to control NOX. The
consortium pointed to the conclusions of the ``Southern Oxidants
Study'' that showed that high biogenic emissions in the rural South can
lead to exceedances of the ozone standard.
While the EPA agrees that biogenic emissions are indeed a major
fraction of total VOC emissions, the contribution of biogenic sources
to total VOC emissions on typical summer days will vary depending on
local weather conditions and geography. Thus, although biogenic sources
could contribute as much as 90 percent of total VOC emissions on some
summer days, this is only true in some locations and is not universally
true for all climatic conditions or geographical features.
In addition, the EPA disagrees that it is ineffectual or
inappropriate to control anthropogenic sources of VOC. Under the proper
conditions, ozone formation occurs rapidly and is affected (among other
things) by the proximity of VOC and NOX sources. Biogenic
VOC generally are less important than anthropogenic VOC because
biogenic VOC are emitted predominantly in rural atmospheres with
limited amounts of NOX, resulting in a limited amount of
ozone formation. Moreover, as noted by the consortium, the biogenic
VOC, under the right circumstances, tend to scavenge ozone from the
atmosphere. Anthropogenic VOC, on the other hand, are usually emitted
in the presence of NOX, resulting in more ozone formation.
Thus, the EPA concludes that anthropogenic VOC generally play a
[[Page 48802]]
proportionately greater role in ozone formation than does biogenic VOC.
The consortium may also be correct that, in some cases, biogenic
VOC can be the predominant precursor in the reactions with
NOX. For example, in Atlanta, studies have predicted that
the complete elimination of man-made VOC would still leave the area in
nonattainment. For this reason, control strategies for areas like
Atlanta, which have very high ratios of VOC/NOX in the air,
will focus on NOX reductions. Even in such areas, however,
the control of VOC will help reduce ozone formation.
Modeling in Atlanta has shown that VOC controls can help reduce
ozone even in NOX-limited areas. Because ozone formation is
greatly affected by meteorological conditions and source/receptor
orientation, ozone formation may be limited by either VOC or
NOX concentrations at different times and locations within
the area. Moreover, modeling results suggest that unless NOX
controls can be implemented all at once, detrimental effects can occur
from piecemeal implementation under some circumstances. Results show
that VOC controls could mitigate some undesirable effects in the
interim. Thus, even though NOX control may be an effective
means of reducing ozone levels on many of the worst days in many
locations, reduction of VOC emissions is still necessary to reduce peak
ozone concentrations under the variety of meteorological and source
receptor conditions in urban areas. As previously noted, modeling
analyses indicate that a combination of VOC and NOX controls
is the most effective way to reduce ozone levels in many urban areas.
e. The role of long-range transport of nitrogen oxides in ozone
nonattainment. The consortium stated that a VOC control strategy will
not work because the transport of NOX will cause downwind
exceedances of the ozone standard. The consortium maintained that
downwind reactions with biogenic VOC would be sufficient to cause
violations and, therefore, control of anthropogenic VOC would be
ineffective.
The EPA agrees that the transport of ozone can contribute to ozone
nonattainment. The EPA also agrees that additional NOX
emissions reductions are essential to reduce long range transport
problems. Ozone transport has been most problematic and most studied in
the eastern States, and plans have been proposed for a regional
NOX emission reduction strategy. However, the control of
transported ozone and NOX will not solve the ozone problem
universally. Control of VOC beyond current State and Federal VOC
control measures will be necessary to achieve attainment in many
areas--particularly those with longstanding and serious problems with
nonattainment.
Ozone nonattainment can be a function of two components: locally
formed ozone and transported ozone. Historically, most control
strategies have focused on controlling locally formed ozone by
controlling local NOX and VOC sources in the immediate
vicinity of nonattainment. The Clean Air Act Amendments of 1990
recognized that certain downwind areas receive transported ozone and
ozone precursors that can contribute to nonattainment. Many of these
areas may be close to violating the standard due to local emissions
even after applying all reasonably available controls, and the
additional contribution of transported ozone can lead to periods of
nonattainment.
More recently, exhaustive modeling studies of the eastern States by
OTAG and others have explored the transport phenomenon. These studies
have concluded that control measures mandated by the Act for ozone
nonattainment areas will provide ozone reductions in many nonattainment
areas. However, some areas will remain in nonattainment, and new
nonattainment may arise due to economic growth. The studies predict
that regional NOX reductions will decrease ozone
concentrations across broad regions and will be more effective in
reducing long-range ozone transport than will VOC reductions.
The EPA has recognized the role of NOX in the ozone
transport problem. On November 7, 1997 (62 FR 60317), the EPA issued a
proposed rulemaking requiring certain eastern States to adopt
NOX emission reduction measures as needed to mitigate the
transport of ozone and NOX across State boundaries.
Considering the State-by-State emission budgets, an overall
NOX emission reduction of 35 percent is targeted for the 23-
State region.
The modeling conclusions about the importance of ozone transport
does not mean that VOC reductions are not also needed. The OTAG study
concluded that attaining the standard will require local VOC and/or
NOX controls in addition to the recommended regional
NOX controls. The OTAG modeling suggested that reduction of
VOC emissions will be most effective in and near urban core areas and
will be necessary to control the component of locally produced ozone
that contributes to nonattainment. The OTAG States recommended national
rules for architectural coatings, consumer products, and automobile
refinish coatings to help achieve needed VOC reductions.
In conclusion, the consortium is incorrect that the control of
anthropogenic VOC emissions is unnecessary to attain the ozone
standard. The VOC emitted in close proximity to NOX will
generally react to form ozone. Depending on the relevant conditions,
this ozone may contribute to nonattainment. To achieve and maintain the
standard will require a program to address effectively both local and
transported ozone. Control of anthropogenic VOC, therefore, will
continue to be a vital part of the strategy to reduce ozone pollution,
particularly in urban settings.
f. The Environmental Protection Agency's approach in determining
the effects of precursor emissions on ozone nonattainment. The
consortium asserted that the EPA has misinterpreted the intent of
section 183(e) of the Act and, therefore, arrived at an incorrect ozone
control strategy. The consortium explained that the EPA's strategy is
to reduce the peak ozone concentration by examining polluted air and
determining the level of precursor emissions that must be removed to
achieve attainment. The consortium argued that the only appropriate
interpretation of section 183(e) of the Act is to determine which
precursors can be added to pristine air and at what levels without
exceeding the ozone standard. The consortium claimed that this second
interpretation would result in a NOX-only control strategy.
These two interpretations of section 183(e) of the Act are referred to
in the comments as the ``two sciences'' for ozone regulation. The
consortium made extensive use of an ozone isopleth chart for one site
(Washington, DC) on a specific date to support a number of general
conclusions about ozone control.
The consortium's theory is based on the observation that VOC in
isolation cannot form ozone. Depending on the existing ratio of VOC to
NOX in local areas, reducing VOC may have a variety of
effects on ozone. Reductions in VOC emissions can increase, decrease,
or have no effect on ozone concentration. Therefore, the consortium
concluded that a control strategy based on national VOC emissions
reductions will not be uniformly effective and is not justified. The
correct science, in the opinion of the commenters, is to consider what
amount of VOC can be added to pristine air before causing a violation
of the ozone standard. Since ozone is formed only when NOX
is present, the commenters argued that NOX should be the
exclusive target for emissions reductions. If NOX
concentrations are
[[Page 48803]]
sufficiently low, then no amount of VOC added to the ambient air will
cause violation of the ozone standard. The consortium asserted that the
EPA has chosen an approach that will never achieve permanent
attainment, but rather only a temporary false attainment. The
consortium reasoned that as additional VOC is added to an airshed that
is in attainment and that contains NOX, nonattainment can
recur. A control strategy based on control of NOX emissions,
according to the commenters, would ensure permanent attainment
regardless of future VOC levels.
The EPA disagrees that there are two sciences and that the EPA
chose the wrong one. One of the purported ``sciences'' is the present
EPA ozone policy of controlling NOX and VOC. The other
purported ``science'' is a policy choice (using the same scientific
basis as the first science) of controlling only NOX. The EPA
does not consider the exclusive control of NOX emissions to
be a practical approach.
The consortium's conclusion that the EPA's goal should be
preventing saturation of the air by NOX is derived from a
misunderstanding of the roles of precursors in ozone formation and a
misinterpretation of isopleth charts. Isopleth charts show the downwind
peak 1-hour ozone concentrations as a function of initial
concentrations of VOC and NOX for an urban area. City-
specific charts can be used to estimate the reduction in VOC or
NOX levels needed to achieve the ozone NAAQS in a specific
urban area. Isopleth charts are generated from computer modeling of an
area considering a number of local atmospheric conditions influencing
ozone formation. The consortium has inappropriately used one-day,
single-location simulations as representing all of atmospheric
chemistry. The consortium has overlooked the acknowledged limitations
of isopleth diagrams for use in determining control strategies.
The most serious limitation of use of isopleth charts is that the
predictions are critically dependent on the initial VOC/NOX
ratio used in the calculations. This ratio cannot be determined with
any certainty because it is quite variable in time and space. Because
these isopleth charts are derived using initial VOC/NOX
ratios in the morning, the charts do not depict the evolution of the
emissions as the air mass is carried downwind. The VOC/NOX
ratio in an urban plume near the city center can change substantially
as the air parcel ages and moves downwind. This change occurs because
of the photochemical reactions in the air and the addition of other
emissions to the plume. The implication of this evolution is that
different locations in a large urban area can show very different ozone
sensitivities to VOC and NOX controls. The consortium's
position does not recognize the dynamic nature of the process and
assumes that the composition of urban air remains static.
Unlike the consortium's approach, the EPA's approach recognizes
that ozone formation may be limited by VOC or by NOX at
different times and different locations. Thus, even though
NOX control may be the most effective means for achieving
the standard on many of the worst days in many locations, reduction of
VOC emissions is still necessary to reduce peak ozone concentrations
under the variety of meteorological and source receptor conditions that
occur in urban areas.
2. Regulation of Attainment Areas via National Rules
The consortium contended that section 183(e) authorizes the EPA to
implement rules that regulate consumer and commercial products only in
nonattainment areas. The consortium also argued that it is
inappropriate and unnecessary for the EPA to develop limits for VOC
emissions that apply to all attainment and nonattainment areas under
section 183(e) of the Act. The commenters stated that the goal of
section 183(e) of the Act is to prevent exceedances of the ozone NAAQS
and noted that only certain areas of the country, accounting for a
small total land mass, exceed the ozone NAAQS. Furthermore, even within
those nonattainment areas, they argued that the EPA should develop a
regulatory strategy on a regional basis due to variations in factors
affecting ozone formation (e.g., meteorology). Finally, the consortium
noted that some ozone nonattainment areas will be able to reach
attainment status under present regulations using existing technology
to reduce emissions from other sources. Therefore, the consortium's
view is that attainment areas and some nonattainment areas do not
require regulation under section 183(e) of the Act.
The EPA agrees that the degree of VOC reductions necessary to
prevent exceedances of the ozone standard varies regionally. However,
it does not agree with the consortium's conclusion that regulations
applying to both attainment and nonattainment areas under section
183(e) of the Act are illegal, unnecessary, or inappropriate.
The EPA interprets section 183(e) of the Act to permit the EPA to
promulgate rules that apply nationwide. The EPA bases this
interpretation both upon the statutory language of section 183(e), and
upon the Congressional directive to utilize any system or systems of
regulation necessary to achieve the appropriate reductions. In
particular, the EPA believes that the transportability of products and
the difficulties attendant upon tracking their ultimate place of use
compel the nationwide scope of the final rule.
First, the express statutory language of section 183(e) of the Act
does not preclude regulation of products in attainment areas. To the
contrary, in section 183(e)(2)(A) and in 183(e)(3)(A) of the Act,
Congress explicitly directed the EPA to examine VOC emissions ``into
the ambient air'' without restriction regarding whether such air was in
attainment or nonattainment areas. Moreover, the EPA believes that no
such distinction between attainment and nonattainment areas is
appropriate because section 183(e)(2)(A)(ii) of the Act requires the
EPA to assess emissions from consumer and commercial products for their
``potential to contribute'' to ozone NAAQS violations wherever they may
occur. Although commenters argued that the ``potential to contribute''
clause links the VOC emissions only to those products used in
nonattainment areas, the EPA believes that the language of the statute
compels no such reading and that it would be illogical given that VOC
emissions in attainment areas can contribute to nonattainment in
adjoining nonattainment areas.
In section 183(e)(3)(A) of the Act, Congress also explicitly
granted the EPA broad powers to reduce emissions into the ambient air
in order to combat ozone nonattainment. These powers provided that, to
meet the objectives of section 183(e), the EPA may, ``by regulation,
control or prohibit any activity, including the manufacture or
introduction into commerce, offering for sale, or sale of any consumer
or commercial product which results in emission of [VOC] into the
ambient air.'' In section 183(e)(4) Congress explicitly provided that
to meet the objectives of the provision, the EPA may ``include any
system or systems of regulation as the Administrator may deem
appropriate.'' The EPA believes that Congress thereby granted the EPA
discretion to determine which measures would best obtain reductions and
to determine the appropriate geographical scope for such measures.
Inherent in this authority is the power to determine that a national
rule with nationwide applicability across both attainment and
nonattainment areas is the most
[[Page 48804]]
appropriate means to obtain the requisite reductions.
In addition, section 183(e)(3)(A)of the Act expressly directs the
EPA to promulgate regulations that ``require best available controls.''
In accordance with the definition of that term in the statute, the EPA
is to consider ``technological and economic feasibility, health,
environmental, and energy impacts'' and is to consider, among other
things, ``the most effective equipment, measures, processes, methods,
systems, or techniques'' to obtain the reductions. The EPA believes
that Congress, thus, clearly directed the EPA to take into account the
relative effectiveness of the available means to obtain reductions,
including controls that would be applicable to all areas or only to
nonattainment areas, and to make its determination as to the proper
geographic scope of controls based upon appropriate factors. The EPA
has determined that national rules that apply nationwide to both
attainment and nonattainment areas are the BAC to insure that
reductions in VOC emissions occur for certain categories of products.
The EPA has concluded that a national rule is the more effective
approach for reducing emissions from consumer products, automobile
refinish coatings, and architectural coatings for the following
reasons. First, the EPA believes that a national rule is an appropriate
means to deal with the issue of products that are, by their nature,
easily transported across area boundaries and many are widely
distributed and are used by widely varied types of end-users. For many
such products, the end-user may use them in different locations from
day-to-day. Because the products themselves are easily transportable, a
national rule would preempt opportunities for end-users to purchase
such consumer and commercial products in attainment areas and then use
them in nonattainment areas, thereby circumventing the regulations and
undermining the decrease in VOC emissions in nonattainment areas. The
EPA, therefore, believes that a national rule with applicability to
products, regardless of where they are marketed, is a reasonable means
to ensure that the regulations result in the requisite degree of VOC
emission reduction.
Second, the EPA believes that rules applicable only in
nonattainment areas would be unnecessarily complex and burdensome for
many regulated entities to comply with and for the EPA to administer.
The potentially regulated entities under section 183(e) are the
manufacturers, processors, wholesale distributors, or importers of
consumer and commercial products. For these three product categories,
EPA believes that regulations that would differentiate between products
destined for attainment and nonattainment areas should adequately
insure that only compliant products go to nonattainment areas. For such
a rule to be effective, EPA believes that this would necessitate
requiring regulated entities to track their products and control their
distribution, sale, and ultimate destination for use to insure that
only compliant products go to nonattainment areas. The EPA notes that
for architectural coatings and consumer products, regulated entities do
not currently track or control distribution of their products once they
sell them to retail distributors. Although the EPA recognizes that some
product lines in some product categories may only be distributed
regionally in areas that are already in attainment, the large majority
of the product lines will be distributed nationally. Regulations
targeted only at nonattainment areas could, thus, impose significant
additional burdens upon regulated entities to achieve the goals of
section 183(e).
By comparison, existing State regulations in some instances apply
to a broader range of entities, including retail distributors and end
users. Given the limitations of section 183(e) as to regulated
entities, the EPA believes that regulations applicable to both
attainment areas and nonattainment areas is a reasonable means to
ensure use of complying products where necessary, while avoiding
potentially burdensome impacts and less reliable mechanisms to achieve
the goals of section 183(e). Several of the trade associations of the
industries for whom the EPA has proposed national rules (i.e.,
architectural coatings, consumer products, and automobile refinish
coatings) have supported national rules that apply to all areas as the
most efficient regulatory mechanism from the perspective of marketing
and distribution of products. The EPA's consideration of this factor,
however, is not meant to imply that it would be inappropriate for
States to develop more stringent levels of controls where necessary to
attain the ozone standard. Instead, the national standard is expected
to reduce the number of States needing to develop separate rules for
these categories.
Third, the EPA believes that national rules with nationwide
applicability may help to mitigate the impact of ozone and ozone
precursor transport across some area boundaries. Recent modeling
performed by OTAG and others suggests that, in some circumstances, VOC
emitted outside nonattainment area boundaries can contribute to ozone
pollution in nonattainment areas--for example, by traveling relatively
short distances into neighboring nonattainment areas. The EPA has
recognized the potential for VOC transport in the December 29, 1997,
``Guidance for Implementing the 1-hour Ozone and Pre-Existing
PM10 NAAQS,'' concerning credit for VOC emission reductions
towards rate of progress requirements. The guidance indicates that the
EPA may give credit for VOC reductions within 100 kilometers of
nonattainment areas. In addition, the June 1997 recommendations made by
OTAG supported the EPA's use of VOC regulations that apply to both
nonattainment and attainment areas to implement section 183(e) of the
Act for certain products. The particular product categories OTAG cited
for national VOC regulations are automobile refinishing coatings,
consumer products, and architectural coatings. The EPA believes that
regulation of products in attainment areas is necessary to mitigate VOC
emissions that have the potential to contribute to ozone nonattainment
in accordance with section 183(e) of the Act.
The EPA notes that some commenters asserted that one clause in
section 183(e)(3)(A) of the Act compels the conclusion that Congress
intended the EPA to regulate consumer and commercial products only in
nonattainment areas. That subsection of the Act instructs the EPA to
list the products that account for at least 80 percent of the VOC
emissions ``from consumer or commercial products in areas that violate
the NAAQS for ozone.'' The EPA believes that this clause pertains not
to the scope of the regulations that the EPA may choose to impose, but
rather to the listing process itself. Thus, the EPA believes that this
provision of the statute requires the EPA to regulate the categories of
products that account for at least 80 percent of the VOC emissions in
nonattainment areas, but does not necessarily control whether the EPA
is to regulate such products only in nonattainment areas. Because the
EPA has otherwise determined that a national rule with applicability in
both attainment and nonattainment areas is the best means to obtain the
necessary VOC emission reductions intended by Congress, the EPA
believes that the language in question does not preclude that strategy.
Finally, the arguments in this section supporting the EPA's
authority and rationale for regulating both nonattainment and
attainment areas under section 183(e) of the Act are not
[[Page 48805]]
intended to imply that the EPA would not consider using its discretion
to develop a control techniques guidelines (CTG) document (which would
affect VOC emissions only in nonattainment areas) for a category in
lieu of a regulation. The EPA recognizes that patterns of distribution
and use will vary among categories of products. Therefore, the EPA
intends to use its discretion to determine the most efficient and
effective mode of regulation for each of the categories listed for
regulation under section 183(e) of the Act.
III. Administrative Requirements
A. Dockets
The docket is an organized and complete file of all the information
considered by the EPA in the development of this rulemaking. The docket
is a dynamic file, since material is added throughout the rulemaking
development. The docketing system is intended to allow members of the
public to readily identify and locate documents so that they can
effectively participate in the rulemaking process. Along with the
statement of basis and purpose of the proposed and promulgated
standards (technical support document submitted at proposal) and the
EPA responses to significant comments, the contents of the Docket will
serve as the record in case of judicial review (see 42 U.S.C.
7607(d)(7)(A)).
As noted under the ``Docket'' discussion in the ADDRESSES section
of this document, there are four dockets that contain information
considered in these listing determinations. Docket No. A-94-65 contains
information considered by the EPA in development of the consumer and
commercial products study and the subsequent list and schedule for
regulation. Docket No. A-92-18 contains information considered by the
EPA in the development of the architectural coatings rule. Docket No.
A-95-40 contains information on the consumer products rule. Docket No.
A-95-18 contains information on the automobile refinishing coatings
rulemaking.
B. Paperwork Reduction Act
This action does not involve any information collection
requirements subject to an Office of Management and Budget (OMB) review
under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
C. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether regulatory actions are significant and therefore
subject to OMB review and the requirements of the Executive Order. The
Order defines ``significant regulatory action'' as one that is likely
to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of the Executive Order, OMB has notified the
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order because it is likely to lead to
rules which may meet one or more of the criteria. Accordingly, the EPA
has submitted this action to OMB for review. Changes made in response
to OMB suggestions or recommendations will be documented in the public
record.
D. Executive Order 12875
To reduce the burden of Federal regulations on States and small
governments, the President issued Executive Order 12875 on October 26,
1993, entitled Enhancing the Intergovernmental Partnership. This
executive order requires agencies to assess the effects of regulations
that are not required by statute and that create mandates upon State,
local, or tribal governments. This action does not create mandates on
State, local, or tribal governments. Therefore, the requirements of
Executive Order 12875 do not apply to this action.
E. Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act of 1996
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601, et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), requires the EPA to give special consideration to
the effect of Federal regulations on small entities and to consider
regulatory options that might mitigate any such impacts. The EPA is
required to prepare a regulatory flexibility analysis and coordinate
with small entity stakeholders if the EPA determines that a rule will
have a significant economic impact on a substantial number of small
entities.
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final listing
action. The EPA has also determined that this listing action will not
have a significant economic impact on a substantial number of small
entities because this action imposes no requirements. In accordance
with the RFA and SBREFA, the EPA has performed the requisite analysis
for each of the three rules. A statement of this analysis accompanies
each of the three rules, published elsewhere in today's Federal
Register.
F. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more in any one year. Under
section 205, the EPA must select the least costly, most cost-effective,
or least burdensome alternative that achieves the objectives of the
rule and is consistent with statutory requirements. Section 203
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that because the final listing action taken
today imposes no requirements, it does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector, in any one year. Therefore, the requirements of sections 202
and 205 of the Unfunded Mandates Reform Act do not apply to this
action.
The EPA has determined, for the same reason, that the final listing
action taken today does not include any regulatory requirements that
might significantly or uniquely affect small governments. Thus, today's
action is not subject to the requirements of section 203 of the
Unfunded Mandates Act.
G. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the SBREFA of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a
[[Page 48806]]
copy of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
this action and other required information to the United States Senate,
the United States House of Representatives, and the Comptroller General
of the United States prior to publication of this action in the Federal
Register. A Major rule cannot take effect until 60 days after it is
published in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2). This rule will be effective September 11,
1998.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C.
272 note), directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices, etc.) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA requires the
EPA to provide Congress, through OMB, explanations when the EPA decides
not to use available and applicable voluntary consensus standards.
This action does not involve any technical standards that would
require the EPA consideration of voluntary consensus standards pursuant
to Sec. 12(d) of the NTTAA. This action does not establish any
requirements.
I. Executive Order 13045
Executive Order 13045 applies to any rule that the EPA determines
(1) that the rule is economically significant as defined under
Executive Order 12866, and (2) that the environmental health or safety
risk addressed by the rule has a disproportionate effect on children.
If the regulatory action meets both criteria, the EPA 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 EPA.
This final action is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997), because it is not an economically
significant regulatory action as defined by Executive Order 12866, and
it does not address an environmental health or safety risk that would
have a disproportionate effect on children.
Executive Order 13084
Under Executive Order 13084, the 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 the EPA
provides to the Office of Management and Budget a description of the
prior consultation and communications the agency has had with
representatives of tribal governments and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires the EPA to develop an effective process permitting elected 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.''
Information available to the Administrator does not indicate that this
action will have any effect on Indian tribal governments.
List of Subjects in 40 CFR Ch. I
Environmental protection, Air pollution control, Consumer and
commercial products, Consumer products, Ozone, Volatile organic
compound.
Dated: August 14, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-22658 Filed 9-10-98; 8:45 am]
BILLING CODE 6560-50-P
