2018-17078. Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Adoption of Control Techniques Guidelines for Control of Volatile Organic Compound Emissions From Miscellaneous Metal Parts Surface Coating, Miscellaneous ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a revision to the Commonwealth of Pennsylvania's state implementation plan (SIP). The revision includes amendments to the Pennsylvania Department of Environmental Protection's (PADEP) regulations and addresses the requirement to adopt reasonably available control technology (RACT) for sources covered by EPA's control techniques guidelines (CTG) standards for the following categories: Miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, as well as related cleaning activities. The SIP revision also amends regulations for graphic arts systems and mobile equipment repair and refinishing as well as making general administrative changes. This action is being taken under the Clean Air Act (CAA).

DATES:

This final rule is effective on September 10, 2018.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0437. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Gregory A. Becoat, [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

On November 18, 2016, PADEP submitted a revision to the Pennsylvania SIP concerning the adoption of EPA's CTG for miscellaneous metal parts surface coating processes, miscellaneous plastic parts surface coating processes, and pleasure craft surface coatings. Specifically, PADEP has amended 25 Pennsylvania Code (Pa. Code) Chapter 129 (relating to standards for sources) to address RACT and further reduce volatile organic compounds (VOC) emissions in Pennsylvania. In accordance with sections 172(c)(1), 182(b)(2)(A) and 184(b)(1)(B) of the CAA, Pennsylvania's SIP revision submittal establishes VOC emission limitations and other requirements consistent with the recommendations of EPA's 2008 Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings (MMPP) (Publication No. EPA 453/R-08-003; September 2008) and Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings for these sources in the Commonwealth of Pennsylvania (Publication No. EPA 453/R-08-006).

I. Background

Ground level ozone is formed in the atmosphere by photochemical reactions between volatile organic compounds (VOCs), nitrogen oxides (NO_X), and carbon monoxide (CO) in the presence of sunlight. In order to reduce ozone concentrations in the ambient air, the CAA requires all nonattainment areas to apply controls on VOC and NO_X emission sources to achieve emission reductions. Among effective control measures, RACT controls significantly reduce VOC and NO_X emissions from major stationary sources. NO_X and VOC are referred to as ozone precursors and are emitted by many types of pollution sources, including motor vehicles, power plants, industrial facilities, and area wide sources, such as consumer products and lawn and garden equipment. Scientific evidence indicates that adverse public health effects occur following exposure to ozone. These effects are more pronounced in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases.

RACT is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. 44 FR 53761 at 53762 (September 17, 1979). Section 182 of the CAA sets forth two separate RACT requirements for ozone nonattainment areas. The first requirement, contained in section 182(a)(2)(A) of the CAA, and referred to as RACT fix-up, requires the correction of RACT rules for which EPA identified deficiencies before the CAA was amended in 1990. Pennsylvania previously corrected its deficiencies under the 1-hour ozone standard and has no further deficiencies to correct under this section of the CAA. The second requirement in section 182(b)(2) of the CAA applies to moderate (or worse) ozone nonattainment areas, and pursuant to section 184(b)(1)(B), to all areas in a state that are included in an ozone transport region (OTR). Section 184 of the CAA includes all of Pennsylvania in the OTR. Sections 182(b)(2) and 184(b) require these areas to implement RACT controls on all major VOC and NO_X emission sources and on all sources and source categories covered by a CTG issued by EPA.^[1] See CAA sections 182(b)(2) and 184(b).

In subsequent Federal Register notices, EPA has addressed how states can meet the RACT requirements of the CAA. EPA developed the CTG for MMPP in September 2008 (Publication No. EPA 453/R-08-003) that provides guidelines with regard to feasible emission limitations and operating practices for a number of different surface coatings used within this large and diverse source category. The 2008 MMPP CTG recommends separate sets of emission limits for metal parts coatings, plastic parts coatings, automotive/transportation and business machine plastic parts, and pleasure craft, depending on the type of coating used by a particular source. The miscellaneous metal product and plastic parts surface coatings categories identified pursuant to section 183(e) of the CAA include the coatings that are applied to the surfaces of a varied range of metal and plastic parts and products. Such parts or products are constructed either entirely or partially from metal or plastic. These miscellaneous metal products and plastic parts include, but are not limited to, metal and plastic components of the following types of products as well as the products themselves: Fabricated metal products, molded plastic parts, small and large farm machinery, commercial and industrial machinery and equipment, automotive or transportation equipment, interior or exterior automotive parts, construction equipment, motor vehicle accessories, bicycles and sporting goods, toys, recreational vehicles, pleasure craft (recreational boats), extruded aluminum structural components, railroad cars, heavier vehicles, lawn and garden equipment, business machines, laboratory and medical equipment, electronic equipment, steel drums, metal pipes, and numerous other industrial and household products.

The pleasure craft coating category does not include coatings that are a part of other product categories listed under Section 183(e) of the CAA for which CTGs have been published or included in other CTGs. For pleasure craft surface coatings, EPA took into account California regulations when developing the 2008 MMPP CTG. California was the only state at that time with regulations governing VOC emissions from pleasure craft surface coatings. After EPA finalized the 2008 MMPP CTG, the pleasure craft coatings industry asserted to EPA that three of the VOC emission limits in the CTG were too low considering the performance requirements of the pleasure craft coatings and that the VOC emission limits recommended did not represent RACT for the National pleasure craft coatings industry. On September 14, 2009, EPA was contacted by the pleasure craft coatings industry to reconsider some of the VOC emission limits recommended in the final 2008 MMPP CTG. In response, EPA issued a memorandum on June 1, 2010, entitled “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration,” recommending that the pleasure craft industry work with state agencies during their RACT rule development process to assess what is reasonable for the specific sources regulated. EPA has stated that states can use the recommendations from the MMPP CTG to form their own determinations as to what constitutes RACT for pleasure craft coating operations. CTGs impose no legally binding requirements on any entity, including pleasure craft coating facilities. As stated in the memorandum, EPA will evaluate state-developed RACT rules and determine whether the submitted rules meet the RACT requirements of the CAA.

II. Summary of SIP Revision and EPA Analysis

On November 18, 2016, PADEP submitted a SIP revision which adopted the recommendations contained in the 2008 MMPP CTG with respect to sources in the miscellaneous metal products coatings and plastic parts coatings product categories. For the pleasure craft coating industry, after evaluating what is reasonable for this source category, PADEP determined that three VOC content limits in the CTG should be revised from the limits in the CTG to represent RACT for the pleasure craft coating industry. This is based on EPA's memorandum that the pleasure craft industry should work with state agencies during their RACT rule development process to assess what is reasonable for the specific sources regulated.

The SIP revision includes an amendment to 25 Pa. Code Chapter 129—(relating to standards for sources) as follows: (1) Amended section 129.51(a)—(relating to general) in order to extend applicability; (2) added section 129.52d—“Control of VOC emissions from miscellaneous metal parts surface coating processes, miscellaneous plastic parts surface coating processes and pleasure craft surface coatings,” in order to regulate VOC emissions from these three categories; (3) amended section 129.52(g)—(relating to surface coating processes) in order to clarify record keeping and reporting requirements; (4) added section 129.52 subsection (k) in order to clarify the applicability of the requirements of section 129.52, Table I, Category 10 in 25 Pa. Code Chapter 129; (5) amended section 129.67 (relating to graphic arts systems) in order to extend applicability; and (6) amended section 129.75 (relating to mobile equipment repair and refinishing) in order to specify exceptions for those who apply surface coating to mobile equipment already subject to requirements of sections 129.52 and 129.52d. More detailed information on these provisions as well as a detailed summary of EPA's review and rationale for approving these SIP revisions can be found in the Technical Support Document (TSD) for this action, which is available on line at www.regulations.gov,, Docket number EPA-R03-OAR-2017-0437.

After evaluating the SIP revision submittal, EPA concluded that it meets CAA requirements under sections 110, 172(c)(1), 182(b)(2)(A), and 184(b)(1) by adopting EPA's CTG and continuing to address and minimize VOC emissions in the Commonwealth of Pennsylvania, as discussed in more detail in EPA's TSD for this rulemaking action. PADEP is adopting without change most of the requirements recommended by the MMPP CTG but adopting the pleasure craft industry recommendations for the following three coating categories: Antifouling Sealer/Tiecoat; Other Substrate Antifoulant; and Extreme High Gloss. For these three categories, the Commonwealth of Pennsylvania reviewed industry data and determined that for the purpose of functionality, cost, and VOC emissions, the alternative limits adopted for these three coating categories constitute RACT. EPA concludes that Pennsylvania's approach is consistent with the guidance memorandum entitled, “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration,” and therefore, concludes that these regulations reflect RACT given costs and VOC emissions. The revised VOC content limits for the pleasure craft surface coatings proposed by PADEP are expected to have a de minimis impact on the amount of VOC emission reductions from the implementation of the revised VOC limits due to having no facilities with the potential to emit VOC emissions for pleasure craft surface coatings.

EPA notes that under 25 Pa. Code §§ 129.52d, PADEP is allowing the provisions of 25 Pa. Code § 129.52d to supersede the requirements of a RACT permit previously issued under 25 Pa. Code §§ 129.91-129.95 if the permit was issued prior to January 1, 2017, to the owner or operator of a source subject to section 129.52d(a), except to the extent the RACT permit contains more stringent requirements. EPA further notes that the RACT permits issued under 25 Pa. Code §§ 129.91-129.95 were issued for previous RACT determinations on a case-by-case basis; these permits were then submitted to EPA as source-specific SIP revisions and were previously acted on by EPA and would have been approved into the Pennsylvania SIP. If EPA approved those source-specific RACT determinations as meeting the requirements of RACT under the CAA, then the permits associated with those determinations were approved into the SIP as listed in 40 CFR 52.2020(d). The requirements of the source-specific RACT determination which EPA approved into the Pennsylvania SIP remain applicable requirements for the specific source unless and until Pennsylvania seeks to remove the limits from the SIP in accordance with CAA section 110(l). To the extent that the provisions of 25 Pa. Code § 129.52d are more stringent than those of a previous SIP-approved permit, PADEP will need to make a source-specific determination as to whether the requirements of the previous RACT permit apply, or those of § 129.52d, and submit that determination to EPA as a SIP revision in order to remove the previously approved permit from the SIP. Until such a SIP revision is made, EPA cannot remove the source-specific permits from the SIP and EPA is not taking such action in this rulemaking. Thus, the requirements of a previously SIP-approved permit are not superseded under the SIP. In accordance with section 110 of the CAA including 110(a) and 110(l), EPA determines that approval of this PADEP SIP revision will not interfere with reasonable further progress, attainment of any NAAQS or any other applicable CAA requirements.

On October 16, 2017 (82 FR 48034 and 82 FR 47988), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the Commonwealth of Pennsylvania approving the SIP revision. EPA received five adverse comments on the rulemaking and withdrew the DFR prior to the effective date of December 15, 2017.

III. Response to Comments

During the comment period, EPA received several anonymous comments on the rulemaking. Of the comments, one comment generally discussed greenhouse gas from electric vehicles, a second comment generally discussed wildfires and wildland fire management policy, and a third comment generally discussed the Mercury and Air Toxics Standards. EPA believes these three comments are not germane to this rulemaking action, thus no further response is provided. The following is a summary of the comments pertinent to this rulemaking action and EPA's response to those comments.

Comment #1: The first commenter stated that EPA did not address a March 28, 2017 Executive Order (E.O.) regarding the promotion of energy independence and economic growth.^[2]

Response #1: EPA disagrees with the commenter's assertion that this rulemaking action required evaluation mandated under the E.O.. The E.O. in question pertains to reviewing existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy. First, EPA does not believe this E.O. applies to this rulemaking action because, to the extent this rulemaking is considered an agency action under the E.O., this action was not an existing agency action as of March 28, 2017, the date the E.O. was signed. Second, assuming arguendo, that this rulemaking action is considered an agency action under the E.O., this rulemaking action does not create a burden as that term is defined in the E.O.. As defined in the E.O., the term “burden” means, “to unnecessarily obstruct, delay, curtail, or otherwise impose significant cost on the siting, permitting, production, utilization, transmission, or delivery of energy resources.” This rulemaking action does not affect the siting, permitting, production, utilization, transmission, or delivery of energy resources because this action merely approves Pennsylvania's submission as meeting certain necessary CTG requirements under the CAA, thus any required review under this E.O. is not applicable. Finally, EPA does not have discretion to disapprove the state's SIP submission if it meets the applicable CAA requirements. CAA section 110(k)(3) requires that EPA “shall” approve the SIP submission “as a whole” if it meets the applicable requirements in the CAA. Pennsylvania's submission adopts RACT for sources identified in EPA's CTG, as required by CAA section 184(b). Thus, considering the plain language of CAA section 110(k)(3), EPA cannot consider disapproving or requiring changes to a state's SIP submittal based on a particular E.O. or statutory reviews.

Comment #2: The second commenter asserted that EPA should review its CTG and Alternative Control Technology (ACT) guidance documents to “make sure they aren't too costly.” The commenter further asserted that VOC reductions in Pennsylvania are not needed and EPA should only require RACT reductions in areas with “bad air.” The commenter concluded by stating EPA should withdraw the rule in its entirety to enable economic growth and promote jobs.

Response #2: EPA disagrees with the commenter that this rulemaking should be withdrawn and that EPA's CTGs and ACTs should be reviewed. The CTG at issue in this rulemaking was issued in 2008. This rulemaking action concerns only EPA's action approving Pennsylvania's SIP submission adopting the CTG requirements, and thus comments about the CTG itself are outside the scope of this action. In any case, EPA considered the cost of installing controls when developing the CTG and concluded, “The recommended VOC emission rates described [in the CTG] reflect the control measures that are currently being implemented by these facilities. Consequently, there is no additional cost to implement the CTG recommendations for coatings.” Further, the CTG went on to state the following for the work practices being recommended: “The CTG also recommends work practices for reducing VOC emissions from both coatings and cleaning materials. We believe that our work practice recommendations in the CTG will result in a net cost savings. Implementing work practices reduces the amount of coating and cleaning materials used by decreasing evaporation.” Thus, EPA did consider cost when issuing this CTG in a prior rulemaking.

EPA further disagrees with the commenter's assertion that VOC reductions are not needed in the entire Commonwealth of Pennsylvania, and disagrees that the state or EPA has any discretion to not implement those reductions. First, the commenter provided no evidence supporting a claim that VOC reductions are only needed in areas with “bad air” (EPA assumes this is a reference to nonattainment areas). Second, Congress has dictated through the CAA that VOC RACT is required to be implemented throughout the entire Commonwealth. CAA section 182(b)(2)(A) requires that, for each ozone nonattainment area classified as Moderate or above, the area must revise their SIPs to include RACT for each category of VOC sources covered by CTG documents issued between November 15, 1990 and the date of attainment. CAA section 184(a) further establishes a single OTR which includes the entire Commonwealth of Pennsylvania, and section 184(b)(1)(B) requires all OTR states to submit SIPs implementing RACT with respect to all sources of VOC in the state that are covered by a CTG. Finally, Pennsylvania and EPA are not permitted to ignore statutory mandates for any policy reason, including to promote jobs or to enable economic growth. Thus, the requirements of the CAA require Pennsylvania to revise its SIP in order to implement VOC RACT for all CTGs issued, including the automobile and light-duty truck assembly coating category. As an OTR state, Pennsylvania is required to reduce VOCs by implementing RACT and CTGs.

IV. Final Action

EPA is approving the Commonwealth of Pennsylvania's November 2016 SIP revision submittal, which adopts EPA's CTG for miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, and which makes other related administrative changes, because the revision meets the requirements of CAA sections 110, 172(c)(1), 182(b)(2)(A), and 184(b)(2).

V. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Pennsylvania rule discussed in section II of this preamble. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.^[3]

VI. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 9, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which approves Pennsylvania's SIP revision adopting CTGs for miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, as well as general administrative changes related to cleaning activities, may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

Dated: July 26, 2018.

Cecil Rodrigues,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart NN—Pennsylvania

2. In § 52.2020, the table in paragraph (c)(1) is amended by:

i. Revising the entries for Section 129.51 and Section 129.52;

ii. Adding an entry for Section 129.52d; and

iii. Revising the entries for Section 129.67, and Section 129.75.

The additions and revisions read as follows:

§ 52.2020

Identification of plan.

* * * * *

(c) * * *

(1) * * *

State citation	Title/subject	State effective date	EPA approval date	Additional explanation/ § 52.2063 citation
Title 25—Environmental Protection
Article III—Air Resources
	*         *         *         *         *         *         *
Section 129.51	General	10/22/16	8/10/18 [Insert Federal Register citation]	Revised Section 129.51(a).
Section 129.52	Surface coating processes	10/22/16	8/10/18 [Insert Federal Register citation]	Revised 129.52(g) and added Subsection 129.52(k).
*         *         *         *         *         *         *
Section 129.52d	Control of VOCs from Miscellaneous Metal Parts Surface Coating Processes, Miscellaneous Plastic Parts Surface Coating Processes and Pleasure Craft Surface Coatings	10/22/16	8/10/18 [Insert Federal Register citation]	New section 129.52d is added. This section does not remove or replace any permits approved under 52.2020(d).
*         *         *         *         *         *         *
Section 129.67	Graphic arts systems	10/22/16	8/10/18 [Insert Federal Register citation]	Revised Subsection 129.67(a)(1).
*         *         *         *         *         *         *
Section 129.75	Mobile equipment repair and refinishing	10/22/16	8/10/18 [Insert Federal Register citation]	Revised Subsection 129.75(b)(1). Previous approval 8/14/00 (c) 148.
*         *         *         *         *         *         *

* * * * *

Footnotes

1.  CTGs are documents issued by EPA intended to provide state and local air pollution control authorities information to assist them in determining RACT for VOC from various sources. The recommendations in the CTG are based upon available data and information and may not apply to a particular situation based upon the circumstances. States can follow the CTG and adopt state regulations to implement the recommendations contained therein, or they can adopt alternative approaches. In either case, states must submit their RACT rules to EPA for review and approval as part of the SIP process. Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must implement RACT with respect to sources of VOCs in the state covered by a CTG issued before or after November 15, 1990.

2.  Based on the comment, EPA assumes the E.O. in question is E.O. 13783, Promoting Energy Independence and Economic Growth, signed March 28, 2017.

3.  62 FR 27968 (May 22, 1997).