[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.

-----------------------------------------------------------------------

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:

------------------------------------------------------------------------
           Category                  Examples of regulated entities     
------------------------------------------------------------------------
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.          
------------------------------------------------------------------------

    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