[Federal Register Volume 64, Number 51 (Wednesday, March 17, 1999)]
[Proposed Rules]
[Pages 13143-13145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6506]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0140; FRL-6310-2]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision, Bay Area Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
a revision to the California State Implementation Plan (SIP) which 
concerns the control of volatile organic compound (VOC) emissions from 
adhesive and sealant products.
    The intended effect of proposing a limited approval and limited 
disapproval of this rule is to regulate emissions of VOCs in accordance 
with the requirements of the Clean Air Act, as amended in 1990 (CAA or 
the Act). EPA's final action on this proposed rule will incorporate 
this rule into the federally approved SIP. EPA has evaluated the rule 
and is proposing a simultaneous limited approval and limited 
disapproval under provisions of the CAA regarding EPA action on SIP 
submittals and general rulemaking authority because this revision, 
while strengthening the SIP, does not fully meet the CAA provisions 
regarding plan submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before April 16, 1999.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rule and EPA's evaluation report of the rule are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule are also available for 
inspection at the following locations:

Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, [AIR-
4], Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for approval into the California SIP is Bay 
Area Air Quality Management District, BAAQMD, Rule 8-51, Adhesive and 
Sealant Products. This rule was submitted by the California Air 
Resources Board to EPA on June 23, 1998.

II. Background

    On March 3, 1978, EPA promulgated a list of ozone nonattainment 
areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-
amended Act), that included the San Francisco Bay Area. 43 FR 8964. The 
San Francisco Bay Area did not attain the ozone standard by the 
approved attainment date. On May 26, 1988, EPA notified the Governor of 
California, pursuant to section 110(a)(2)(H) of the pre-amended Act, 
that the Bay Area Air Quality Management District's portion of the SIP 
was inadequate to attain and maintain the ozone standard and requested 
that deficiencies in the existing SIP be corrected (EPA's SIP-Call). On 
November 15, 1990, amendments to the 1977 CAA were enacted. Pub. L. 
101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended 
section 182(a)(2)(A) of the CAA, Congress statutorily adopted the 
requirement that nonattainment areas fix their deficient reasonably 
available control technology (RACT) rules for ozone and established a 
deadline of May 15, 1991 for states to submit corrections of those 
deficiencies.
    Section 182(a)(2)(A) applies to areas designated as nonattainment 
prior to enactment of the amendments and classified as marginal or 
above as of the date of enactment. It requires such areas to adopt and 
correct RACT rules pursuant to pre-amended section 172(b) as 
interpreted in pre-amendment guidance.1 EPA's SIP-Call used 
that guidance to indicate the necessary corrections for specific 
nonattainment areas. The San Francisco Bay Area is designated as 
nonattainment without

[[Page 13144]]

further classification; 2 therefore, this area is subject to 
the RACT fix-up requirement and the May 15, 1991 deadline.
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    \1\ Among other things, the pre-amendment guidance consists of 
those portions of the proposed Post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044 (November 24, 1987) and the 
document ``Issues Relating to VOC Regulation Cutpoints, 
Deficiencies, and Deviations, Clarification to Appendix D of 
November 24, 1987 Federal Register Notice'' (Blue Book) (notice of 
availability was published in the Federal Register on May 25, 1988).
    \2\ The San Francisco Bay Area, originally designated as an 
ozone nonattainment area on March 3, 1978, retained its designation 
and was classified by operation of law pursuant to sections 107(d) 
and 181(a) upon the date of enactment of the CAA. See 56 FR 56694 
(November 6, 1991). On May 22, 1995 EPA approved BAAQMD's request 
for redesignation and the San Francisco Bay Area was reclassified as 
an attainment area. See 60 FR 27028. Based on a number of violations 
of the National Ambient Air Quality Standards, EPA redesignated the 
San Francisco Bay Area back to nonattainment for ozone on July 10, 
1998 without assigning it a specific classification of marginal, 
moderate, serious, severe, or extreme. See 63 FR 37258.
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    The State of California submitted many revised RACT rules for 
incorporation into its SIP on June 23, 1998, including the rule being 
acted on in this document. This document addresses EPA's proposed 
action for BAAQMD Rule 8-51, Adhesives and Sealant Products. The BAAQMD 
adopted this rule on January 7, 1998. This submitted rule was found to 
be complete on August 25, 1998, pursuant to EPA's completeness criteria 
that are set forth in 40 CFR Part 51, Appendix V; 3 and is 
being proposed for limited approval and limited disapproval.
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    \3\ EPA adopted completeness criteria on February 16, 1990 (55 
FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, revised 
the criteria on August 26, 1991 (56 FR 42216).
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    BAAQMD Rule 8-51 limits the volatile organic compound (VOC) 
emissions resulting from the application of adhesive and sealant 
products. VOCs contribute to the production of ground level ozone and 
smog. Rule 8-51 is a new rule which has been adopted to meet the EPA's 
SIP-Call and the section 182(a)(2)(A) CAA requirement. The following is 
EPA's evaluation and proposed action for BAAQMD Rule 8-51.

III. EPA Evaluation and Proposed Action

    In determining the approvability of a VOC rule, EPA must evaluate 
the rule for consistency with the requirements of the CAA and EPA 
regulations, as found in section 110 and Part D of the CAA and 40 CFR 
Part 51 (Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans). The EPA interpretation of these requirements, 
which forms the basis for today's action, appears in the various EPA 
policy guidance documents listed in footnote 1. Among those provisions 
is the requirement that a VOC rule must, at a minimum, provide for the 
implementation of RACT for stationary sources of VOC emissions. This 
requirement was carried forth from the pre-amended Act.
    In addition, this rule was evaluated against the SIP enforceability 
guidelines found in the EPA Region IX--California Air Resources Board 
document entitled ``Guidance Document for Correcting VOC Rule 
Deficiencies'' (April, 1991) and against other EPA policies. In 
general, these guidance documents have been set forth to ensure that 
VOC rules are fully enforceable and strengthen or maintain the SIP.
    There is currently no version of BAAQMD Rule 8-51, Adhesive and 
Sealant Products in the SIP. The submitted rule includes provisions 
which:
     Specify VOC content limits for adhesives, aerosol 
adhesives, and sealants (Sections 301, 302, 303, and 304);
     Allow sources to comply using emission control systems 
with an overall abatement efficiency of at least 85 percent (Section 
305);
     Prohibit the specification and sale of any adhesives, 
aerosol adhesives, or sealants that would result in a violation of the 
provisions of Rule 8-51 (Section 306 and 307);
     Require any person using organic solvents for surface 
preparation and clean-up to use closed containers and to minimize 
evaporation of organic compounds to the atmosphere (Section 320);
     Require facilities within the District that use more than 
20 gallons of adhesive and/or sealant products per year to keep monthly 
records (Section 501);
     Mandate that persons using an emission control system keep 
daily records of key system operating parameters and amounts of 
adhesive or sealant product used (Section 502); and
     Provide test methods for determining the amount of VOC in 
adhesives and sealants, aerosol adhesives, and low solids adhesives, 
sealant products and primers and for determining control and collection 
efficiency (Sections 601 and 602).
    Although these provisions will strengthen the SIP, this rule also 
contains deficiencies which are required to be corrected pursuant to 
the section 182(a)(2)(A) requirement of Part D of the CAA. Rule 8-51 
contains the following deficiencies:
     The rule does not require users of adhesive and sealant 
products to record their daily use of non-compliant coatings;
     The rule allows for director's discretion in the approval 
of alternate recordkeeping plans; and
     The rule contains a number of deviations from RACT level 
controls which have not been substantiated by an adequate 5% 
equivalency demonstration based on source specific data.
    A detailed discussion of rule deficiencies can be found in the 
Technical Support Document for Rule 8-51 (February 1999), which is 
available from the U.S. EPA, Region IX office. Because of these 
deficiencies, the rule is not approvable pursuant to section 
182(a)(2)(A) of the CAA because it is not consistent with the 
interpretation of section 172 of the 1977 CAA as found in the Blue Book 
and may lead to rule enforceability problems.
    Because of the above deficiencies, EPA cannot grant full approval 
of this rule under section 110(k)(3) and Part D. Also, because the 
submitted rule is not composed of separable parts which meet all the 
applicable requirements of the CAA, EPA cannot grant partial approval 
of the rule under section 110(k)(3). However, EPA may grant a limited 
approval of the submitted rule under section 110(k)(3) in light of 
EPA's authority pursuant to section 301(a) to adopt regulations 
necessary to further air quality by strengthening the SIP. The approval 
is limited because EPA's action also contains a simultaneous limited 
disapproval. In order to strengthen the SIP, EPA is proposing a limited 
approval of BAAQMD's submitted Rule 8-51 under sections 110(k)(3) and 
301(a) of the CAA.
    At the same time, EPA is also proposing a limited disapproval of 
this rule because it contains deficiencies that have not been corrected 
as required by section 182(a)(2)(A) of the CAA, and, as such, the rule 
does not fully meet the requirements of Part D of the Act. Under 
section 179(a)(2), if the Administrator disapproves a submission under 
section 110(k) for an area designated nonattainment, based on the 
submission's failure to meet one or more of the elements required by 
the Act, the Administrator must apply one of the sanctions set forth in 
section 179(b) unless the deficiency has been corrected within 18 
months of such disapproval. Section 179(b) provides two sanctions 
available to the Administrator: highway funding and offsets. The 18 
month period referred to in section 179(a) will begin on the effective 
date of EPA's final limited disapproval. Moreover, the final 
disapproval triggers the Federal implementation plan (FIP) requirement 
under section 110(c). It should be noted that the rule covered by this 
proposed rulemaking has been adopted by the BAAQMD and is currently in 
effect in the BAAQMD. EPA's final limited disapproval action will not 
prevent the BAAQMD or EPA from enforcing this rule.

[[Page 13145]]

    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, Regulatory 
Planning and Review.

B. Executive Order 12875

    Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA 
may not issue a regulation that is not required by statute and that 
creates a mandate upon a state, local, or tribal government, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by those governments, or EPA consults with 
those governments. If EPA complies by consulting, E.O. 12875 requires 
EPA to provide to the OMB a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency 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 Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, Consultation and Coordination with Indian Tribal 
Governments, 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 EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB, in a separately identified section of the preamble 
to the rule, a description of the extent of EPA's prior consultation 
with representatives of affected tribal governments, a summary of the 
nature of their concerns, and a statement supporting the need to issue 
the regulation. In addition, E.O. 13084 requires 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.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, Part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to the private sector, of $100 million or more. Under Section 205, 
EPA must select the most cost-effective and least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Section 203 requires EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: March 4, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-6506 Filed 3-16-99; 8:45 am]
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