[Federal Register Volume 64, Number 118 (Monday, June 21, 1999)]
[Rules and Regulations]
[Pages 33018-33021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15167]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 187-150; FRL-6358-3]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, South Coast Air Quality Management
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing the approval of a revision to the California
State Implementation Plan (SIP) proposed in the Federal Register on
June 18, 1998. The revision concerns a rule from the South Coast Air
Quality Management District (SCAQMD). This approval action will
incorporate this rule into the federally approved SIP. The intended
effect of approving this rule is to regulate emissions of volatile
organic compounds (VOCs) in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). The revised rule
controls VOC emissions from architectural coatings. Thus, EPA is
finalizing the approval of this revision into the California SIP under
provisions of the CAA regarding EPA action on SIP submittals, SIPs for
national primary and secondary ambient air quality standards and plan
requirements for nonattainment areas.
EFFECTIVE DATE: This action is effective on July 21, 1999.
ADDRESSES: Copies of the rule revision and EPA's evaluation report for
this rule are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rule revisions
are available for inspection at the following locations:
Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, CA 91765-4182
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, Telephone: (415) 744-1199
[[Page 33019]]
SUPPLEMENTARY INFORMATION:
I. Applicability
This Federal Register action for the SCAQMD excludes the Los
Angeles County portion of the Southeast Desert Air Quality Management
District, otherwise known as the Antelope Valley Region in Los Angeles
County, which is now under the jurisdiction of the Antelope Valley Air
Pollution Control District as of July 1, 1997. The rule being approved
into the California SIP is SCAQMD, Rule 1113, Architectural Coatings.
This rule was submitted by the California Air Resources Board (CARB) to
EPA on November 26, 1996.
II. Background
On June 18, 1998, in 63 FR 33312, EPA proposed to approve SCAQMD
Rule 1113, Architectural Coatings into the California SIP. Rule 1113
was adopted by SCAQMD on November 8, 1996, and was submitted by the
CARB to EPA on November 26, 1996. This rule was submitted in response
to EPA's 1988 SIP-Call and the CAA section 110(a)(2)(A) requirement
that plans which are submitted to the EPA in order to achieve the
National Ambient Air Quality Standards (NAAQS) contain enforceable
emission limitations. A detailed discussion of the background for this
rule and nonattainment area is provided in the proposed rulemaking
cited above.
EPA has evaluated the above rule for consistency with the
requirements of the CAA and EPA regulations and EPA interpretation of
these requirements as expressed in the various EPA policy guidance
documents referenced in the proposed rulemaking cited above. EPA has
found that the rule meets the applicable EPA requirements. The rule is
enforceable and strengthens the applicable SIP. However, as noted in
the proposed rulemaking cited above, it does not fulfill the SCAQMD's
SIP-approved commitment in CTS-07 to reduce VOCs from architectural
coatings by 75%. A detailed discussion of the rule provisions and
evaluation has been provided in 63 FR 33312 and in a technical support
document (TSD) dated May 1, 1998 available at EPA's Region IX office.
III. Response to Public Comments
EPA provided for a 30-day public comment period in 63 FR 33312. EPA
received two comments on the proposed rulemaking prior to the closing
of the comment period on July 20, 1998. We received comments from the
main trade association representing the paint industry, and from an
attorney representing a major paint manufacturer.
Comments: The trade association representing some 500 paint and
coatings manufacturers, raw materials suppliers and distributors,
submitted comments stating that while it supports EPA's national
architectural coatings rule, it does not support VOC content limits for
two categories of coatings contained in submitted Rule 1113. The
association asserted that the VOC limits for lacquers and flats are not
technologically or economically feasible and noted that it was involved
in litigation over this issue. This commenter suggested that EPA must
not approve the revisions to Rule 1113 because of the alleged
technological and economical infeasibility.
The attorney representing a major paint manufacturer submitted
similar comments. This commenter indicated that his client contested
the VOC limit for flats and a small manufacturers exemption in
submitted Rule 1113. Citing Sierra Club v. Indiana-Kentucky Electric
Corp., 716 F.2d 1145 (7th Cir. 1983), the commenter argued that EPA
approval of the revised Rule 1113 prior to resolution of the litigation
could result in confusion if the Court invalidated the revisions to
Rule 1113. This commenter explicitly requested that EPA postpone
approval of at least portions of submitted Rule 1113 until resolution
of the litigation.
Response: Both commenters asserted that SCAQMD Rule 1113 as revised
is technologically and economically infeasible. For this reason, each
commenter requested that EPA either reconsider or delay approval of all
or portions of Rule 1113. Under CAA section 110(a)(2), EPA may not
consider the economic or technological feasibility of the provisions of
the SCAQMD Rule in approval of the SIP revision. Union Electric Co. v.
EPA, 427 U.S. 246, 265-66 (1976). As noted by the Supreme Court, it is
the province of State and local authorities to determine whether or not
to impose more stringent limits that may require technology forcing.
EPA must assess the SIP revision on the basis of the factors set forth
in CAA section 110(a)(2) which do not provide for the disapproval of a
rule in a SIP based upon economic or technological infeasibility.
Both commenters also argued that the pendency of litigation by them
against the SCAQMD Rule should preclude EPA approval of the revisions
to Rule 1113. To the extent that such litigation concerned the economic
and technological feasibility of the Rule, such litigation is not
relevant to EPA's SIP approval for the reasons discussed above. One
commenter further stated, however, that SCAQMD may have violated state
procedural law in the adoption of Rule 1113, thereby implying that EPA
should disapprove or delay approval of the SIP revision because SCAQMD
might not have authority under State or local law to carry out the SIP
as required by CAA section 110(a)(2)(E)(i).
EPA believes that it is inappropriate to disapprove or delay
approval of a SIP revision merely on the basis of pending State court
challenges to SCAQMD's regulation. To do so would allow parties to
impede SIP development merely by initiating litigation. Alternatively,
were EPA required to assess the validity of a litigant's State law
claims in the SIP approval process, EPA would have to act like a State
court, in effect weighing the competing claims of a State and a
litigant. Therefore, EPA does not interpret CAA section 110(a)(2) to
require the Agency to make such judgments in the SIP approval process,
especially where the validity of those challenges turns upon issues of
State procedural law. The Agency may, however, consider disapproval of
a SIP revision because of pending challenges where it deems appropriate
because of the facts and circumstances of the underlying challenge, as
in the case of allegations of violation of Federal law administered by
the Agency. Moreover, EPA believes that the structure of the CAA
provides appropriate mechanisms for litigants to pursue their claims
and appropriate remedies in the event that they are ultimately
successful, as discussed in the case cited by a commenter. See, Sierra
Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 (7th Cir.
1983) (State court invalidation of a SIP provision resulted in an
unenforceable SIP provision which the State had to reenact or which EPA
may use as the basis for a SIP call).
In any case, EPA notes that the State trial court has now ruled
against those parties who challenged Rule 1113, including the
commenters. See, Sherwin-Williams Co. et al. v. SCAQMD, [Superior Court
of Cal., County of Los Angeles, No. BC162162, Order dated Feb. 3,
1999]. The outcome of that litigation confirms EPA's conclusion that
SCAQMD has provided the necessary assurances contemplated in CAA
section 110(a)(2). EPA acknowledges that the ruling of the trial court
against the litigants may not be the final disposition of their claims,
but the Agency believes in this instance that until a court rules
against SCAQMD on the commenters' State law claims, the Agency cannot
disapprove the SIP revision on the basis of those claims.
[[Page 33020]]
For the reasons discussed above, if the litigants appeal the order of
the trial court, the mere pendency of an appeal by the commenters
likewise does not provide a basis for the Agency to delay or disapprove
the SIP revision.
Finally, one commenter also suggested that EPA should disapprove
the revision of Rule 1113 because its VOC content limits differed from
those of EPA's proposed national rule for architectural coatings under
CAA section 183(e). As stated in the preamble to the final rule for
architectural coatings, Congress did not intend section 183(e) to
preempt any existing or future State rules governing VOC emissions from
consumer and commercial products. See, e.g., 63 FR 48,848, 48,857
(Sept. 11, 1998). Section 59.410 of the final architectural coatings
regulations explicitly provides that States and their political
subdivisions retain authority to adopt and enforce their own additional
regulations affecting these products. See, 63 FR 48,848, 48,884 (Sept.
11, 1998). Accordingly, SCAQMD retains authority to impose more
stringent limits for architectural coatings as part of its SIP, and its
election to do so is not a basis for EPA to disapprove the SIP. See,
Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976). EPA favors
national uniformity in consumer and commercial product regulation, but
recognizes that some localities may need more stringent regulation to
combat more serious and more intransigent ozone nonattainment problems.
IV. EPA Action
EPA is finalizing action to approve the above rule for inclusion
into the California SIP. EPA is approving the submittal under section
110(k)(3) as meeting the requirements of section 110(a) and Part D of
the CAA and in light of EPA's authority pursuant to section 301(a) to
adopt regulations necessary to further air quality by strengthening the
SIP. This approval action will incorporate this rule into the federally
approved SIP. The intended effect of approving this rule is to regulate
emissions of VOCs in accordance with the requirements of the CAA.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any 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.
V. 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 officials 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 flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action.
[[Page 33021]]
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 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.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 20, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: May 28, 1999.
David P. Howekamp,
Acting Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c)(242)
introductory text, (c)(242)(i) introductory text, and (c)(242)(i)(B) to
read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(242) New and amended regulations for the following APCDs were
submitted on November 26, 1996, by the Governor's designee.
(i) Incorporation by reference.
* * * * *
(B) South Coast Air Quality Management District.
(1) Rule 1113, adopted on September 2, 1977 and amended on November
8, 1996.
* * * * *
[FR Doc. 99-15167 Filed 6-18-99; 8:45 am]
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