[Federal Register Volume 65, Number 178 (Wednesday, September 13, 2000)]
[Rules and Regulations]
[Pages 55193-55196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23376]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 217-0258; FRL-6865-9]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of a revision to the San Joaquin Valley Air Pollution Control 
District's portion of the California State Implementation Plan (SIP). 
This action was proposed in the Federal Register on April 17, 2000 and 
concerns volatile organic compound (VOC) emissions from adhesives. 
Under authority of the Clean Air Act as amended in 1990 (CAA or the 
Act), this action simultaneously approves a local rule that regulates 
this emission source and directs California to correct rule 
deficiencies.

EFFECTIVE DATE: This rule is effective on October 13, 2000.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revision at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg, Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX, (415) 744-1199.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On April 17, 2000 (65 FR 20421), EPA proposed a limited approval 
and limited disapproval of the following rule that was submitted for 
incorporation into the California SIP.

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              Local agency                  Rule No.              Rule title              Adopted     Submitted
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SJVUAPCD................................         4653  Adhesives......................     03/19/98     09/29/98
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    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
    1. Rule 4653 establishes VOC limits for adhesives used for three 
specific applications and for solvents used in surface preparation 
which do not meet Reasonably Available Control Technology (RACT) levels 
of control. The three VOC limits that exceed RACT are for the 
application of adhesives on porous substrates and the application of 
contact adhesives labeled exclusively for bonding of single-ply roofing 
materials and immersible products.
    2. Under section 4.1.1, certain exempt operations which may 
potentially use noncompliant materials are only required to maintain 
monthly records. Any use of noncompliant materials, however, 
necessitates that daily records be kept to demonstrate compliance with 
the rule.
    3. Section 4.1.9 exempts contact adhesives subject to 16 CFR part 
1302 although compliant formulations of these products that perform 
adequately already exist in the market place. Our proposed action 
contains more information on the basis for this rulemaking and on our 
evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from the following parties.
    1. Matt Stewart, DAP Inc.; letter May 16, 2000 and received by 
facsimile on May 17, 2000.
    2. H. Allen Irish, National Paint and Coatings Association (NPCA); 
letter dated May 16, 2000 and received by facsimile on May 17, 2000.

[[Page 55194]]

    3. Mark Collatz, The Adhesive and Sealant Council, Inc., (ASC); 
letter dated May 15, 2000. The comments and our responses are 
summarized below.
    Comment: All three commenters offered similar arguments for 
allowing the exemption in section 4.1.9 of Rule 4653 for contact 
adhesives subject to 16 CFR part 1302. They stated that retail 
consumers have had limited success using compliant products because of 
their inattention to application techniques and inability to control 
application conditions. For example, retail consumers fail to 
adequately prepare substrates, control humidity, and apply sufficient 
pressure. The commenters also argued that EPA did not have a legal 
basis for disapproving the section 4.1.9 exemption because, among other 
reasons, control of the exempted activity is not needed to fulfill CAA 
RACT requirements.
    Response: EPA concurs that this exemption does not interfere with 
RACT requirements because it is unlikely that sources subject to the 
exemption would be major sources subject to RACT requirements. 
Therefore, we are not finalizing our disapproval of this exemption and 
are removing this rule deficiency as a condition of our limited 
disapproval.
    Comment: NPCA also commented that our disapproval of VOC limits 
contained in Rule 4653 for specialty contact adhesives which are 
labeled exclusively for the bonding of single-ply roof material or 
immersible products is arbitrary and not supported by technical 
analysis. NPCA claims that the limits in Rule 4653 for these uses are 
consistent with RACT.
    Response: EPA is relying on the technical and economic assessments 
done by California agencies in developing the California Air Resources 
Board's ``Determination of Reasonably Available Control Technology 
(RACT) and Best Available Retrofit Control Technology (BARCT) for 
Adhesives and Sealants (December 1998)'' to help establish presumptive 
RACT limits. Under Rule 4653, the 400 g/L limit allowed for these 
sources through January 2001 and the 250 g/L limit allowed thereafter 
clearly exceed these RACT levels. While deviations from presumptive 
RACT levels are possible, it is the state's and not EPA's obligation to 
justify that any deviations still fulfill CAA RACT requirements. In the 
technical support document associated with our April 17, 2000 proposed 
disapproval, we described one format for a possible state 
demonstration. We maintain that the limits for specialty contact 
adhesives labeled exclusively for bonding single-ply roof material or 
immersible products fail to meet RACT and that these limits should be 
revised to correct this rule deficiency. This rule deficiency remains a 
condition of our limited disapproval.

III. EPA Action

    The submitted comments relating to the section 4.1.9 exemption 
change our assessment of that provision as a rule deficiency and is no 
longer one of our grounds for a limited disapproval of Rule 4653. Other 
submitted comments, however, do not affect our decisions regarding the 
deficiencies described as items 1 and 2 under the above section 
entitled ``Proposed Action.'' Therefore, as authorized in sections 
110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval 
of the submitted rule. This action incorporates the submitted rule into 
the California SIP, including those provisions identified as deficient. 
As authorized under section 110(k)(3), EPA is simultaneously finalizing 
a limited disapproval of the rule. As a result, sanctions will be 
imposed unless EPA approves a subsequent SIP revision that corrects the 
rule deficiencies within 18 months of the effective date of this 
action. These sanctions will be imposed under section 179 of the Act 
according to 40 CFR 52.31. In addition, EPA must promulgate a federal 
implementation plan (FIP) under section 110(c) unless we approve a 
subsequent SIP revision that corrects the rule deficiencies within 24 
months. Note that the submitted rule has been adopted by the SJVUAPCD, 
and EPA's final limited disapproval does not prevent the local agency 
from enforcing it.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13045

    Executive Order 13045, entitled 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.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly affects 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. If the mandate is unfunded, 
EPA must provide to 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 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 Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not

[[Page 55195]]

issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the proposed regulation. EPA also may not 
issue a regulation that has federalism implications and that preempts 
State law unless the Agency consults with State and local officials 
early in the process of developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely acts on a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order 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 act on 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.
    EPA's disapproval of the state request under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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. 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 
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 costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action acts on 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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

H. 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

I. 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 November 13, 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 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.

    Dated: August 22, 2000.
Felicia Marcus,
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.

[[Page 55196]]

Subpart F--California

    2. Section 52.220 is amended by adding paragraph (c)(266)(i)(B)(2) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (266) * * *
    (i) * * *
    (B) * * *
    (2) Rule 4653, adopted on March 19, 1998.
* * * * *
[FR Doc. 00-23376 Filed 9-12-00; 8:45 am]
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