[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Proposed Rules]
[Pages 52731-52737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25440]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51
[FRL-6448-4]
RIN 2060-AI45


Air Quality: Revision to Definition of Volatile Organic 
Compounds--Exclusion of t-Butyl Acetate

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes to revise EPA's definition of volatile 
organic

[[Page 52732]]

compounds (VOC) for purposes of Federal regulations related to 
attaining the national ambient air quality standards (NAAQS) for ozone 
under title I of the Clean Air Act (Act). This proposed revision would 
add t-butyl acetate (also known as tertiary butyl acetate or informally 
as TBAC or TBAc) to the list of compounds excluded from the definition 
of VOC on the basis that this compound has negligible contribution to 
tropospheric ozone formation. As a result, if you are subject to 
certain Federal regulations limiting emissions of VOCs, your emissions 
of TBAc may not be regulated for some purposes.

DATES: If you submit comments on this proposal, EPA must receive them 
by November 29, 1999. The EPA must receive requests for a hearing by 
October 12, 1999.

ADDRESSES: If you submit comments, please submit them in duplicate (if 
possible) to: Air and Radiation Docket and Information Center (6102), 
Attention: Docket No. A-99-02, U.S. Environmental Protection Agency, 
401 M Street, SW, Washington, DC 20460. Please strictly limit comments 
to the subject matter of this proposal, the scope of which is discussed 
below.
    Public Hearing: If you contact EPA requesting a public hearing, it 
will be held at Research Triangle Park, NC. If you wish to request a 
public hearing, wish to attend the hearing or wish to present oral 
testimony, you should notify Mr. William Johnson, Air Quality 
Strategies and Standards Division (MD-15), U.S. Environmental 
Protection Agency, Research Triangle Park, NC 27711, telephone (919) 
541-5245. The EPA will publish notice of a hearing, if a hearing is 
requested, in the Federal Register. Any hearing will be strictly 
limited to the subject matter of the proposal, the scope of which is 
discussed below.
    The EPA has established a public docket for this action, A-99-02, 
which is available for public inspection and copying between 8:00 a.m. 
and 5:30 p.m., Monday through Friday, at EPA's Air and Radiation Docket 
and Information Center, (6102), 401 M Street, SW, Washington, DC 20460. 
A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: William Johnson, Office of Air Quality 
Planning and Standards, Air Quality Management Division (MD-15), 
Research Triangle Park, NC 27711, phone (919) 541-5245. You may call 
Mr. Johnson to see if a hearing will be held and the date and location 
of any hearing.

SUPPLEMENTARY INFORMATION:

Sector Identification

    Regulated entities. You may be an entity potentially regulated by 
this action if you use or emit VOCs or are a State which has programs 
to control VOC emissions.

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                                                                             Examples of potentially regulated
                   Category                     NAICS codes   SIC codes                  entities
----------------------------------------------------------------------------------------------------------------
Industry......................................       325510         2851  Industries that manufacture paints,
                                                                           varnishes, lacquers, enamels and
                                                                           allied products.
Industry......................................         4226         2869  Industries that manufacture industrial
                                                                           organic chemicals
State Government..............................  ...........  ...........  States which have regulations to
                                                                           control volatile organic compounds.
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     This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. 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.

I. How Does This Rule Fit Into Existing Regulations?

    EPA is proposing to exclude tertiary butyl acetate (TBAC or TBAc) 
from the definition of volatile organic compounds (VOCs). If you use or 
produce TBAc and are subject to EPA regulations limiting the use of 
VOCs in your product, limiting the VOC emissions from your facility, or 
otherwise controlling your use of VOCs, then you would not count TBAc 
as a VOC in determining whether you meet your regulatory obligations. 
This proposal may also affect whether TBAc is considered a VOC for 
State regulatory purposes, depending on whether the State relies on 
EPA's definition of VOC. The EPA is basing its proposal on information 
in a petition submitted by Lyondell Chemical Company, which plans to 
manufacture TBAc.1 This proposal also addresses policies 
that may govern whether EPA will exclude other chemicals from the 
definition of VOC.
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    \1\ The petition was submitted on January 17, 1997, by ARCO 
Chemical Company. Lyondell is the successor to ARCO for this 
petition, and EPA will refer to the petitioner as Lyondell 
throughout this notice.
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    Tropospheric ozone, commonly known as smog, occurs when VOCs and 
nitrogen oxides (NOX) react in the atmosphere. Because of 
the harmful health effects of ozone, EPA and State governments limit 
the amount of VOCs and NOX that can be released into the 
atmosphere. Volatile organic compounds are those compounds of carbon 
(excluding carbon monoxide, carbon dioxide, carbonic acid, metallic 
carbides or carbonates, and ammonium carbonate) which form ozone 
through atmospheric photochemical reactions. Compounds of carbon (also 
known as organic compounds) have different levels of reactivity--that 
is, they do not react at the same speed or do not form ozone to the 
same extent. It has been EPA's policy that organic compounds with a 
negligible level of reactivity need not be regulated to reduce ozone. 
The EPA lists these compounds in its regulations (at 40 CFR 51.100(s)) 
and excludes them from the definition of VOCs. The chemicals on this 
list are often called ``negligibly reactive'' organic compounds.

II. Why Does Lyondell Think TBAc Is Not a VOC?

    On January 17, 1997, Lyondell submitted a petition to EPA which 
requested that EPA add TBAc to the list of compounds which are 
designated negligibly reactive in the definition of VOC at 40 CFR 
51.100(s). The petitioner subsequently submitted supplemental materials 
to EPA in support of its petition. These materials are contained in 
docket A-99-02. The petitioner based the request on a comparison of the 
reactivity of TBAc to that of ethane, the latter having already been 
listed, since 1977, as negligibly reactive. In the past, EPA has 
determined that ethane and several compounds with lower reactivity than 
ethane are negligibly reactive and therefore exempted them from the 
definition of VOC. Reactivity data presented by Lyondell in support of 
the petition included both kOH values and incremental 
reactivity values. The kOH values are values of the rate

[[Page 52733]]

constant for the VOC + OH (hydroxyl radical) reaction. The incremental 
reactivity values, which support the petition and reflect TBAc's 
potential for producing ozone in the atmosphere, were produced and 
reported by Dr. William Carter of the University of California at 
Riverside.
    Lyondell's primary case for TBAc being less reactive than ethane is 
based on the use of incremental reactivity data set forth in a report 
titled ``Investigation of the Atmospheric Ozone Formation Potential of 
T-Butyl Acetate'' by Carter, et al. In that study, Carter compared the 
incremental ozone formed per-gram of TBAc under urban atmosphere 
conditions to that formed, under the same conditions, per-gram of 
ethane. The study repeated these comparisons for 39 conditions 
scenarios, that is, sets of ambient conditions intended to represent 39 
American urban areas across the United States. Carter concluded that, 
on average, TBAc formed 0.4 times as much ozone as an equal weight of 
ethane under the conditions assumed in the study.
    There is another way to compare the reactivities of organic 
compounds with that of ethane. That approach is to compare the compound 
with ethane on a per-mole basis rather than on a per-gram basis. Using 
the per-mole basis, the incremental ozone formed under certain 
conditions per-mole of TBAc would be compared to the ozone formed by a 
mole of ethane under the same conditions. This approach compares the 
reactivity of an equal number of molecules of each compound rather than 
comparing equal weights of the two compounds. On a per-mole basis, the 
average reactivity of TBAc for the 39-cities set of conditions is about 
1.5 times that of ethane. The difference in reactivity results between 
the two approaches is due to the fact that a molecule of TBAc is almost 
four times heavier than a molecule of ethane.

III. How Does EPA Determine Whether an Organic Compound Is 
Negligibly Reactive?

    When EPA determines that a chemical is less reactive than ethane, 
EPA considers the chemical negligibly reactive and can exclude it from 
the definition of VOC. Reactivities can be compared on either a per-
gram (or weight) basis or on a per-mole basis. Based on the information 
discussed above, TBAc is less reactive than ethane on a per-gram basis, 
but more reactive on a per-mole basis. Thus, in this situation, which 
basis EPA uses to make the reactivity comparison will determine whether 
TBAc should be exempted.
    All of the compounds which EPA listed as negligibly reactive before 
1994 are less reactive than ethane on both a per-gram basis and a per-
mole basis. In those decisions, EPA did not explicitly state whether it 
was using a per-gram or per-mole test. However, as a matter of 
practice, EPA evaluated these compounds in a manner consistent with 
using a per-mole basis because it based the comparisons on 
kOH values which were expressed on a molecule basis.
    The Agency first addressed the use of the per-gram basis in the 
case of acetone, which the Agency determined was less reactive than 
ethane on a per-gram basis, but more reactive on a per-mole basis. In 
the proposal to classify acetone as negligibly reactive, the Agency 
stated that it had ``elected to adopt the grams ozone per-gram VOC 
basis, since grams (or tons), rather than moles, is the mass unit used 
in regulations dealing with VOC emissions'' (59 FR 49878, September 30, 
1994). There were no adverse comments on this proposed decision to use 
the per-gram basis, and the Agency stated in the final rule that 
``[t]he EPA has chosen to use the weight basis rather than a mole basis 
for comparing results since emissions are regulated on a weight basis'' 
(60 FR 31635, June 16, 1995). This is the only case in which EPA has 
classified a compound as negligibly reactive solely on the per-gram 
basis.
    The EPA addressed this same issue in a report to Congress 
concerning VOC emissions from consumer and commercial products (``Study 
of Volatile Organic Compound Emissions from Consumer and Commercial 
Products: Report to Congress,'' March 1995). One chapter of this report 
discussed the Agency's approach for evaluating VOC reactivity and 
stated that under the protocol ``presently favored--but not officially 
endorsed--'' if a compound's ``reactivity is found to be equal to or 
lower than that of ethane on a per-gram-of-VOC basis, * * * it is 
concluded that [it] can only have negligible O3 potential * 
* *'' (p. 3-5). A footnote to this discussion stated that 
``[c]omparison of VOC species reactivities to that of ethane can be 
made on either a per-gram-of-VOC basis or a per-mole-of-VOC basis'' and 
added that EPA has ``unofficially adopted the per-gram basis.''
    The EPA has determined that comparing reactivities on a per-mole 
basis is more appropriate than comparing them on a per-gram basis. The 
EPA reexamined the scientific basis for the inclusion of ethane in the 
original list of negligibly reactive compounds published in 1977 (42 FR 
35314). The Agency made the original determination to include ethane, 
in part, based on the results of a series of smog chamber experiments 
conducted by EPA in the early 1970s. In those experiments individual 
organic compounds at the concentration of 4 parts per million (ppm) by 
volume (or moles) were subjected to simulated ambient urban (Los 
Angeles) conditions, and resultant maximum ozone build-up in the 
chamber was measured. Those compounds which resulted in ozone 
concentration lower than that of the oxidant air quality standard, 
i.e., 0.08 ppm, were taken to be ``negligibly reactive.'' Ethane was 
one of the compounds EPA studied, and was the most reactive of those 
EPA identified as negligibly reactive in that study. Based on those 
findings and judgments, EPA designated ethane as negligibly reactive 
and ethane became the benchmark VOC species separating reactive from 
negligibly reactive compounds. Because EPA chose ethane as the 
``benchmark'' species based on an equimolar comparison, comparisons 
with ethane for reactivity classification purposes are most 
appropriately made using equimolar concentrations, that is, on a per-
mole basis.
    Additionally, EPA has concluded that the argument previously used 
to justify the per-gram basis, i.e., that the per-gram basis is more 
practical since VOC emissions are regulated on a weight basis, is not 
the best approach when comparisons are made for reactivity 
classification purposes. Scientifically, chemical reactions are 
generally described on a molar basis, so the scientific convention is 
to compare chemicals on a molar basis. Relying on the number of moles 
of VOCs is consistent with the way EPA conducts photochemical modeling. 
For that, EPA takes VOC emissions measured by weight and converts them 
into moles to determine the impact on ozone formation. It is true that 
when EPA and States regulate, they generally do not regulate VOCs on a 
molar basis. Under the current state of information, doing so would 
impose great administrative burdens and costs on the Agency and on 
regulated industries. In many circumstances, regulating on a molar 
basis would pose significant practical compliance and enforcement 
problems. In contrast, it is practical for EPA to use the molar basis 
to make decisions on petitions to exempt a compound on an individual 
basis from the definition of VOCs. The EPA believes that it should use 
the most scientific approach that is currently feasible for exemption 
decisions. For that reason, EPA believes the per-mole test is better 
than the per-

[[Page 52734]]

gram test for determining whether a compound is less reactive than 
ethane and should be exempted from the definition of VOC. Use of the 
per-mole test is also consistent with the basis used to select ethane 
as a benchmark species.
    Because of the determination that the per-mole basis is the proper 
scientific basis to use in comparing reactivities to ethane for 
decisions concerning negligible reactivity, EPA intends to employ the 
per-mole basis for all future negligible reactivity determinations made 
on VOC exemption petitions received after the date of publication of 
today's notice. The EPA will assess these future petitions using only 
the per-mole basis for comparison with ethane; EPA will not use the 
per-gram basis for evaluating future VOC exemption petitions.
    The EPA has commenced a multi-year review of its policy to 
determine whether it needs revision. In the course of that review, EPA 
will investigate whether it is desirable, possible, and legally 
permissible to consider a compound's role in other air pollution 
problems (such as particulate matter, regional haze, toxicity, and 
stratospheric ozone depletion) when EPA determines whether a compound 
should be excluded from the definition of VOCs. The issue of an 
integrated approach to considering environmental problems was discussed 
by the Subcommittee for Ozone, Particulate Matter and Regional Haze, a 
Federal Advisory Committee Act (FACA) committee, which advised EPA on 
the implementation of the revised ozone and particulate matter ambient 
air quality standards. This FACA committee recommended an integrated 
approach to controlling ozone, fine particulates and regional haze. As 
part of that review, EPA will solicit comments from the public on these 
policy issues. If EPA revises its reactivity policy substantially, the 
current list of negligibly reactive compounds in the definition of VOC 
could be considerably altered to conform to the new policy.

IV. What Is EPA's Basis for Proposing That TBAc Is Negligibly 
Reactive and Excluding It From the Definition of VOC?

    If EPA were to apply the per-mole test to TBAc, it would deny 
Lyondell's petition. Lyondell has argued that the appropriate test is 
the per-gram test, and that even if EPA decides the per-mole test is 
more appropriate, it would be unfair to apply the per-mole test without 
warning to petitions for which a company has significantly relied on 
EPA's prior statements. Because the per-mole test is a change from 
previous EPA regulatory statements, EPA believes that equitable 
considerations warrant use of the per-gram test in certain 
circumstances as described below. Therefore, if certain conditions are 
met, EPA will apply the per-gram test for currently pending petitions 
to exempt organic compounds from the definition of VOCs.
    In deciding whether EPA will use the per-gram test for any 
particular pending petition (see Table 1),2 EPA will 
consider the extent to which the petitioner actually relied on EPA's 
past statements regarding the per-gram test. In addition, EPA will also 
consider the extent to which the application of the per-mole test 
(rather than the per-gram test) would further the purposes of the Clean 
Air Act. This balances fairness to the regulated industry with adequate 
protection of the environment. Based on these considerations, EPA is 
proposing to use the per-gram test for TBAc and to exclude it from the 
definition of VOC.3
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    \2\ Table 1 gives a list of the pending petitions requesting 
exclusion from the definition of VOC. Preliminary review indicates 
that several of the compounds in Table 1 may be less reactive than 
ethane on a per-gram basis, but not on a per-mole basis. The EPA 
will determine whether to use the per-gram or per-mole test for each 
of these compounds based on a consideration of the petitioner's 
reliance on past EPA statements regarding the per-gram test and on 
the extent to which applying the per-mole test would further the 
purpose of the Clean Air Act. Any petitioner listed in Table 1 that 
can demonstrate substantial actual reliance on EPA's past statements 
should submit that information to EPA.
    \3\ Based on the considerations listed above, EPA currently 
intends to keep acetone in the list of chemicals that are negligibly 
reactive VOCs.
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    For TBAc, Lyondell has demonstrated substantial actual reliance on 
EPA's past statements adopting the per-gram test. Lyondell's reliance 
goes beyond the mere filing of its petition (which would not, by 
itself, demonstrate sufficient reliance to use the per-gram test). When 
Lyondell prepared and submitted its petition, these were the only 
explicit, policy statements the Agency had made regarding the gram 
versus mole issue. The petitioner has said: ``In reliance on these 
statements, the Company invested substantial resources to identify and 
evaluate solvents that would meet the ethane standard on a gram basis. 
Company experts reviewed hundreds of potentially useful compounds to 
determine, based on their physical and chemical properties, which were 
most likely to have very low photochemical reactivity. After 
identifying TBAc as a promising candidate, the Company funded 
reactivity and other environmental studies on TBAc.'' (See written 
communication from Daniel Pourreau (Lyondell) to William Johnson (EPA) 
dated February 11, 1999). The petitioner has also claimed that: ``In 
addition to these efforts, the Company has invested significant 
resources in research and development to evaluate whether TBAc can be 
used to replace more reactive solvents in a wide range of products. 
These efforts have included internal studies, studies with outside 
laboratories, marketing and development work with a number of product 
manufacturers.'' (See written communication from Daniel Pourreau 
(Lyondell) to William Johnson (EPA) dated February 11, 1999). 
Petitioner's reliance on EPA's prior statements is significant enough 
that it weighs in favor of using the per-gram test.
    Another consideration for pending petitions is the extent to which 
application of the per-mole test would further the purpose of the Act. 
The specific purpose at issue here is the reduction of ozone. If the 
reactivity of TBAc on a per-mole basis were markedly higher than that 
of ethane, that might warrant the application of the per-mole test 
despite Lyondell's reliance on EPA's earlier statements. Due to 
scientific and practical concerns, we generally do not distinguish 
among VOCs on the basis of reactivity in rulemakings under the Act. In 
rulemakings relating to the definition of VOC, our current practice is 
to take reactivity into account only to decide whether a compound's 
reactivity is low enough to justify exempting the compound as 
negligibly reactive. However, in the very narrow circumstance that is 
presented here, where we are weighing the petitioner's reliance against 
the statutory interest in applying the per-mole test, we think it is 
appropriate to consider the extent to which TBAc's reactivity exceeds 
that of ethane. Because TBAc's reactivity is on the order of two times 
that of ethane on a per-mole basis, the extent to which the purpose of 
the Act would be furthered by denying the petition for an exemption 
does not outweigh Lyondell's reliance on EPA's previous 
statements.4
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    \4\ Given the other information that has been submitted on TBAc, 
we do not believe that excluding TBAc from the definition of VOC 
would undermine other purposes of the Act. In certain circumstances, 
it might be appropriate to consider the volume of the compound's 
emissions. We do not believe we have sufficient information to 
consider that factor for TBAc, but we request comment on this issue.
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    Therefore, EPA proposes to grant Lyondell's petition and exclude 
TBAc from the definition of VOC because TBAc is less reactive than 
ethane on a per-gram basis.

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V. Are There Environmental Benefits to Excluding TBAc From the 
Definition of VOC?

    In addition to the reactivity data comparing TBAc and ethane, the 
petitioner also submitted other information in support of its petition. 
The petitioner argued that the VOC exemption of TBAc would benefit the 
environment because TBAc would be used as a replacement solvent for 
toluene and xylene. The petitioner claims that hazardous air pollutant 
(HAP) emissions would be reduced because toluene and xylene are both 
solvents that are listed in section 112 of the Act as HAPs, and TBAc is 
not listed. The petitioner also submitted health effects data on TBAc 
to support its claim that TBAc is less hazardous than xylene and 
toluene. Additionally, the petitioner claimed that there is potential 
for TBAc to replace to some degree other HAPs, including methanol, e-
glycol ethers, methyl ethyl ketone, n-hexane, methyl isobutyl ketone, 
and trichloroethylene.
    The possible use of TBAc in lieu of HAPs may, indeed, be a 
collateral benefit of the exemption of TBAc from the definition of VOC. 
However, this is not a basis for EPA's proposal. At this time, EPA does 
not believe that it is in a position to predict the market for TBAc or 
to evaluate Lyondell's claims in that regard. It should be noted that 
another company has notified EPA that it disagrees with Lyondell's 
market claims and related substitution benefits. [See letter (with 
attachments) from Ernest Rosenberg (Occidental International Corp.) to 
Rob Brenner (EPA) dated May 14, 1999].

Table 1

List of Compounds for Which EPA Has Received Petitions Prior to Today's 
Notice Requesting VOC Exempt Status and for Which EPA Has Published No 
Final Action
1. Chlorobromomethane--ICF Kaiser (SAI Division).
2. 1-Bromopropane (also known as n-propyl bromide)--Enviro Tech 
International. Petition also submitted by Albemarle Corp.
3. Methyl Bromide--Chemical Manufacturers Association.
4. n-Alkanes (C12-C18)--The Aluminum Association.
5. Technical white oils--The Printing Industries of America and 
Pennzoil Products Company.
6. t-butyl acetate--Lyondell Chemical Company.
7. Benzotrifluoride--Occidental Chemical Company.
8. Carbonyl Sulfide (COS)--E.I. du Pont de Nemours and Company. 
Petition also submitted by Texas Mid-Continent Oil & Gas Association.
9. trans-1,2-dichloroethylene--3M Corporation.
10. Dimethyl succinate and dimethyl glutarate--Dibasic Esters Group, 
affiliated with the Synthetic Organic Chemical Manufacturers 
Association, Inc.
11. Carbon Disulfide--Texas Mid-Continent Oil & Gas Association.
12. Acetonitrile--BP Chemicals and GNI Chemicals Corporation.
13. Toluene Diisocyanate (TDI)--Chemical Manufacturers Association [The 
Diisocynate Panel of CMA reported the following members: ARCO Chemical 
Company, BASF Corporation, Bayer Corporation, The Dow Chemical Company, 
and ICI Americas, Inc.].
14. HFC-227ea (1,1,1,2,3,3,3-heptafluoropropane)--Great Lakes Chemical 
Corporation.
15. Methylene Diphenyl Diisocyanate (MDI)--Chemical Manufacturers 
Association [The Diisocynate Panel of CMA reported the following 
members: BASF Corporation, Bayer Corporation, The Dow Chemical Company, 
ICI Americas, Inc., and Lyondell Chemical Company].
16. 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-
C3F7OCH3)--3M Corporation.
17. Propylene Carbonate--Huntsman Corporation.

VI. What Is Today's Proposal?

    Today's proposed action is based on EPA's review of the material in 
Docket No. A-99-02. The EPA hereby proposes to amend its definition of 
VOC at 40 CFR 51.100(s) to exclude TBAc as a VOC. If this action is 
finalized, you would not count TBAc as a VOC for purposes of EPA 
regulations related to attaining the ozone NAAQS, including regulations 
limiting your use of VOCs or your emissions of VOCs; but you would 
record and report the use and emissions of TBAc as an ``Exempt VOC.'' 
Your recordkeeping and reporting of TBAc would conform to those 
requirements that would apply to you for non-exempt VOCs used in the 
same manner or in the same application as TBAc. You should check with 
your State to determine whether you should count TBAc as a VOC for 
State regulations. However, if this action is made final, your State 
should not include TBAc in its VOC emissions inventories for 
determining reasonable further progress under the Act (e.g., section 
182(b)(1)) or take credit for controlling this compound in its ozone 
control strategy. However, we urge your State to include TBAc and other 
VOC exempt compounds in inventories used for ozone modeling to assure 
that such emissions are not having a significant effect on ambient 
ozone levels.

VII. Administrative Requirements

A. Docket

    The docket is an organized and complete file for all information 
submitted or otherwise considered by EPA in the development of this 
proposed rulemaking. The principal purposes of the docket are: (1) To 
allow interested parties to identify and locate documents so that they 
can effectively participate in the rulemaking process; and, (2) to 
serve as the record in case of judicial review (except for interagency 
review materials) (section 307(d)(7)(A)).

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of this Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

C. Unfunded Mandates Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), PL. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit

[[Page 52736]]

analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
1 year. Before promulgation of an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost effective, or least burdensome 
alternative that achieves the objective of the rule, unless EPA 
publishes with the final rule an explanation of why that alternative 
was not adopted. Before EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments including 
tribal governments, it must have developed under section 203 of the 
UMRA a small government plan which informs, educates and advises small 
governments on compliance with the regulatory requirements. Finally, 
section 204 provides that for any proposed rule that imposes a mandate 
on a State, local or tribal government of $100 million or more in any 1 
year, the Agency must provide an opportunity for such governmental 
entities to provide input in development of the proposed rule.
    Since today's rulemaking is deregulatory in nature and does not 
impose any mandate on governmental entities or the private sector, EPA 
has determined that sections 202, 203, 204 and 205 of the UMRA do not 
apply to this action.

D. 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 proposed rule would not have a significant impact 
on a substantial number of small entities because it imposes no adverse 
economic impacts on any small entities. Therefore, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

E. Paperwork Reduction Act

    This proposed rule does not contain any information collection 
requirements subject to OMB review under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq.

F. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, 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, Executive Order 12875 requires EPA to provide 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, Executive Order 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 development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule is deregulatory in nature and does not impose any 
enforceable duties on these entities. Accordingly, the requirements of 
section 1(a) of Executive Order 12875 do not apply to this rule.

G. Executive Order 13045: Children's Health Protection

    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 Executive Order 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.
    While this proposed rule is not subject to the Executive Order 
because it is not economically significant as defined in Executive 
Order 12866, EPA has reason to believe that ozone has a 
disproportionate effect on active children who play outdoors. (See 62 
FR 38856, 38859 (July 18, 1997).) The EPA has not identified any 
specific studies on whether or to what extent t-butyl acetate directly 
affects children's health. The EPA has placed the available data 
regarding the health effects of t-butyl acetate in docket no. A-99-02. 
The EPA invites the public to submit or identify peer-reviewed studies 
and data, of which EPA may not be aware, that assess results of early 
life exposure to t-butyl acetate.

H. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, 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, Executive Order 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, Executive Order 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 proposed rule does not impose substantial direct compliance 
costs on the communities of Indian tribal governments. This proposed 
rule is deregulatory in nature and does not impose any direct 
compliance costs. Accordingly, the requirements of section 3(b) of 
Executive Order 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d), (15 
U.S.C. 272 note) directs 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, and business practices) that are developed or 
adopted by voluntary consensus

[[Page 52737]]

standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 24, 1999.
Carol M. Browner,
Administrator.
    For reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 
7501-7508, 7601, and 7602.

    2. Section 51.100 is proposed to be amended at the end of paragraph 
(s)(1) introductory text by removing the words ``and perfluorocarbon 
compounds which fall into these classes:'' and adding the words ``; t-
butyl acetate and perfluorocarbon compounds which fall into these 
classes:'', as follows:


Sec. 51.100  Definitions.

* * * * *
    (s) * * *
    (1) * * * ; t-butyl acetate and perfluorocarbon compounds which 
fall into these classes:
* * * * *
[FR Doc. 99-25440 Filed 9-29-99; 8:45 am]
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