[Federal Register Volume 64, Number 213 (Thursday, November 4, 1999)]
[Rules and Regulations]
[Pages 60109-60112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28723]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0189; FRL-6466-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing limited approval and limited disapproval of 
a revision to the California State Implementation Plan (SIP) proposed 
in the Federal Register on March 17, 1999. This final action will 
incorporate this rule into the federally approved SIP. The intended 
effect of finalizing this action 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 adhesive and sealant products. Thus, EPA is 
finalizing a simultaneous limited approval and limited disapproval 
under CAA provisions regarding EPA action on SIP submittals and general 
rulemaking authority because this revision, while strengthening the 
SIP, also does not fully meet the CAA provisions regarding plan 
submissions and requirements for nonattainment areas. As a result of 
this limited disapproval EPA will be required to impose highway funding 
or emission offset sanctions under the CAA unless the State submits and 
EPA approves corrections to the identified deficiencies within 18 
months of the effective date of this disapproval. Moreover, EPA will be 
required to promulgate a Federal implementation plan (FIP) unless the 
deficiencies are corrected within 24 months of the effective date of 
this disapproval.

EFFECTIVE DATE: This action is effective on December 6, 1999.

ADDRESSES: Copies of the rule revisions and EPA's evaluation report 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, 
SW., Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109

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.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being approved 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, CARB, to EPA on June 23, 1998.

II. Background

    On March 17, 1998 in 64 FR 13143, EPA proposed granting limited 
approval and limited disapproval of BAAQMD Rule 8-51, Adhesive and 
Sealant Products into the California SIP. Rule 8-51 was adopted by the 
BAAQMD on January 7, 1998. This rule was submitted by the CARB to EPA 
on June 23, 1998. This rule was submitted in response to EPA's 1988 SIP 
Call and the CAA section 182(a)(2)(A) requirement that nonattainment 
areas fix their reasonably available control technology (RACT) rules 
for ozone in accordance with EPA guidance that interpreted the 
requirements of the pre-amendment Act. A detailed discussion of the 
background for this rule and nonattainment area is provided in the 
proposed rule (PR) cited above.
    EPA has evaluated the rule for consistency with the requirements of 
the CAA and EPA regulations and EPA's interpretation of these 
requirements as expressed in the various EPA policy guidance documents 
referenced in the PR. EPA is finalizing the limited approval of this 
rule in order to strengthen the SIP and finalizing the limited 
disapproval requiring the correction of the remaining deficiencies. The 
rule contains inadequate recordkeeping, director's discretion, and 
unsubstantiated deviations from RACT level controls. A detailed 
discussion of the rule provisions and evaluation have been provided in 
the PR and in the February 1999 technical support document (TSD) 
available at EPA's Region IX office.

III. Response to Public Comments

    A 30-day public comment period was provided in 64 FR 13143. EPA 
received one comment letter on the PR from the BAAQMD. The comments 
have been evaluated by EPA and a summary of the comments and EPA's 
responses are set forth below.
    Comment: The BAAQMD commented that no clear guidance on 
recordkeeping intervals exists for rules like Rule 8-51 which specify 
product VOC limits. The BAAQMD argues that, although section 113(b) of 
the CAA establishes a daily penalty limit of $25,000 and might serve as 
a rationale for a daily recordkeeping requirement, no regulatory 
language compels daily recordkeeping. BAAQMD asserts that monthly 
recordkeeping as required by Section 501 is sufficient. Furthermore, 
BAAQMD emphasized that daily recordkeeping is burdensome for small 
businesses and does not enhance enforceability.
    Response: Rule 8-51 was evaluated against the CAA and the documents 
cited in the TSD. The EPA's recordkeeping policies have been further 
interpreted and clarified in other EPA rulemakings and communications, 
including a June 19, 1996 guidance document on recordkeeping which was 
distributed to all air districts in Region IX including the BAAQMD 
(Rule Development Recordkeeping Policy, under June 27, 1996 cover 
letter from Daniel Meer). The June 19, 1996

[[Page 60110]]

guidance document states that ``if a source uses only compliant 
materials, recordkeeping on a less frequent basis than daily may be 
acceptable.'' Records kept on a less frequent basis than daily are not 
acceptable when noncompliant materials are used. Daily records are the 
rule and monthly records are the exception to that rule. Requiring 
daily records does not impose any additional burden; rather, allowing 
monthly records provides relief for sources that use only compliant 
materials. On a practical level, we expect most sources will take 
advantage of this relief because compliant materials are widely 
available. EPA's recordkeeping requirements may allow flexibility for 
sources that operate in compliance with prohibitory rules, however, 
rules that allow additional flexibility must sufficiently deter sources 
that operate in a deliberately noncompliant manner by designating 
significant monetary penalties. EPA maintains that daily records are 
necessary for enforcement purposes whenever noncompliant materials are 
used.
    Comment: BAAQMD contends that section 501.4 which allows for 
alternate recordkeeping plans was previously approved into the SIP in a 
similar rule. BAAQMD believed that it had addressed all approvability 
issues concerning this provision. The District indicated that rule 
revisions consume valuable time and limited resources and are less 
justifiable when little or no emissions reductions will result.
    Response: Each EPA action on State submitted SIP revisions clearly 
notes that nothing in that particular action should be construed as 
permitting or allowing or establishing a precedent for any future 
request for revision to any SIP. Each request for revision to the SIP 
is considered independently in light of specific technical, economic, 
and environmental factors. Therefore, approval of certain language in 
one rule does not justify or necessitate the approval of similar 
language in another rule. Section 501.4 currently fails to indicate 
what constitutes an acceptable reporting period and allows the 
Executive Officer to approve changes to the reporting period without 
submitting a SIP revision. This violates the requirement in section 110 
of the CAA that SIPs must be enforceable. Minimally, section 501.4 
should require monthly records for sources using only compliant 
coatings and daily records for sources using any noncompliant coatings. 
Furthermore, any violation of rule standards should constitute a 
violation for each day of the reporting period. Modification of this 
provision will not impose an undue burden on the District since other 
areas of the rule already need to be modified as discussed in this 
rulemaking.
    Comment: BAAQMD acknowledges that several VOC content limits 
contained in Rule 8-51 exceed the limits contained in the State of 
California's guidance document and attribute this to the fluidity of 
that document. BAAQMD contends that all deviations from the state's 
guidance were substantiated in an equivalency determination using the 
best available data. BAAQMD asserts that a source-by-source accounting 
of emissions is impossible since Rule 8-51 regulates thousands of 
sources in many industrial categories. BAAQMD indicates that they will 
revise Rule 8-51 to be consistent with the state's guidance document 
for deviations (a) and (d) through (i) as identified in the TSD. With 
regard to deviation (b), BAAQMD states that the 540 g/L limit complies 
with the state's guidance document and that a 250 g/L limit represents 
best available retrofit control technology (BARCT) which is more 
stringent than federal RACT. To justify deviation (c), BAAQMD provided 
additional information to indicate that the 100 g/L limit for 
retreading large tires is technologically infeasible because 
chlorinated solvents are regulated in BAAQMD as hazardous air 
pollutants. Other districts comply with the 100 g/L limit by allowing 
the use of certain chlorinated solvents. Furthermore, BAAQMD commented 
that the costs to abate emissions from large tire retreading were 
economically infeasible. BAAQMD asserted that the 480 g/L limit 
identified in the TSD as deviation (j) was included in the rule to 
accommodate a product that functions to both bond and seal polyvinyl 
chloride (PVC). BAAQMD asserts that the product should be allowed to 
meet the 480 g/L limit, instead of the 420
g/L limit which applies to other sealants, in order to account for the 
product's ability to bond PVC. The manufacturer had two customers in 
1997, both outside the BAAQMD, and sold their product in containers 
with a capacity less than 16 ounces. BAAQMD states that it will adopt a 
small container exemption allowed by the state's guidance document 
during the next revision to Rule 8-51 to address deviation (j).
    Response: EPA appreciates the difficulty of regulating and 
characterizing the emissions from this varied source category. BAAQMD 
committed to remedying deviations (a) and (d) through (i) and should 
proceed with those rule corrections in a timely manner to avoid the 
sanctions described above. With regard to deviation (b), EPA agrees 
with BAAQMD that the 250 g/L limit is BARCT and is not required to meet 
federal RACT requirements. The additional information provided in 
relation to deviation (c) adequately justifies this exemption for 
retreading large tires. BAAQMD should also correct the deficiency 
identified as deviation (j) as promised possibly by adopting a small 
container exemption. However, EPA questions the need to revise the rule 
to accommodate a product that BAAQMD indicates is not sold in the 
District.

III. EPA Action

    EPA is finalizing a limited approval and a limited disapproval of 
the above-referenced rule. The limited approval of this rule is being 
finalized 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 in the sense that the 
rule strengthens the SIP. However, the rule does not meet the section 
182(a)(2)(A) CAA requirement because of the rule deficiencies which are 
discussed above. Thus, in order to strengthen the SIP, EPA is granting 
limited approval of this rule under sections 110(k)(3) and 301(a) of 
the CAA. This action approves the rule into the SIP as a federally 
enforceable rule.
    At the same time, EPA is finalizing the 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. As stated in 
the PR, upon the effective date of this final rule, the 18 month clock 
for sanctions and the 24 month FIP clock will begin. Sections 179(a) 
and 110(c). If the State does not submit the required corrections and 
EPA does not approve the submittal within 18 months of the effective 
date of the final rule, either the highway sanction or the offset 
sanction will be imposed at the 18 month mark. It should be noted that 
the rule covered by this final rulemaking has been adopted by the 
BAAQMD and is currently in effect in the BAAQMD. EPA's limited 
disapproval action will not prevent the BAAQMD or EPA from enforcing 
this rule.

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.

[[Page 60111]]

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 
CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
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.

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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 3, 2000. 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

[[Page 60112]]

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 compound.

    Dated: October 20, 1999.
Laura Yoshii,
Deputy 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 paragraph (c)(256)(i)(A)(2) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (256) * * *
    (i) * * *
    (A) * * *
    (2) Rule 8-51, adopted on November 18, 1992 and amended on January 
7, 1998.
* * * * *
[FR Doc. 99-28723 Filed 11-3-99; 8:45 am]
BILLING CODE 6560-50-P