[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Rules and Regulations]
[Pages 59699-59702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29550]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 086-0047; FRL-7105-3]


Revisions to the Arizona State Implementation Plan, Maricopa 
County Environmental Services Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of a revision to the Maricopa 
County Environmental Services Department (MCESD) portion of the Arizona 
State Implementation Plan (SIP). This revision was proposed in the 
Federal Register on May 24, 2001 and concerns volatile organic compound 
(VOC) emissions from automotive windshield washer fluid. We are 
approving a local rule that regulates these emission sources under the 
Clean Air Act as amended in 1990 (CAA or the Act).

EFFECTIVE DATE: This rule is effective on December 31, 2001.

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.
Arizona Department of Environmental Quality, 3033 North Central Avenue, 
Phoenix, AZ 85012.
Maricopa County Environmental Services Department, Air Quality 
Division, 1001 North Central Avenue, Suite 201, Phoenix, AZ 85004.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX, (415) 947-4117.

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

I. Proposed Action

    On May 24, 2001 (66 FR 28685), EPA proposed to approve the 
following rule into the Arizona SIP.

[[Page 59700]]



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             Local Agency                   Rule #             Rule Title             Adopted        Submitted
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MCESD.................................             344  Automobile Windshield           04/07/99        08/04/99
                                                         Washer Fluid.
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    We proposed to approve this rule because we determined that it 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the rule and our evaluation.

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 party.
    1. D. Douglas Fratz and Joseph T. Yost, Consumer Specialty Products 
Association (CSPA); letter dated June 22, 2001.
    CSPA's comments pertain to the test method, Maricopa County 
Reference Method #100 (RM 100), used for determining compliance, and to 
the consistency of MCESD Rule 344 with other consumer product 
regulations. CSPA's comments and our responses are summarized below.
    Comment: Because RM 100 reports results as total organic carbon and 
different VOCs have different percentages of carbon, it is not possible 
to accurately convert RM 100 results into the terms in which the limits 
of MCESD Rule 344 are expressed, mass of VOC.
    Response: Conversion of RM 100 test results from mass of carbon to 
the mass of VOC is relatively simple for windshield washer fluids (WWF) 
containing a single VOC and slightly more complex for WWFs containing 
multiple VOCs.
    Converting the mass of carbon from the test result to mass of VOC 
involves multiplying the test results by the ratio of molecular 
weights. Based on EPA's survey used to develop the national Consumer 
Products Rule (40 CFR part 59, subpart C) and the California Air 
Resources Board's (CARB) consumer products speciation profile \1\ for 
automobile WWFs, the predominant VOC used in WWFs is methanol. If 
methanol is the only VOC present, the conversion factor from mass of 
carbon to mass of VOC is 32/12. For WWFs containing multiple VOCs, the 
conversion from mass of carbon to mass of VOC can still be done if the 
VOCs and their approximate proportions are known.
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    \1\ Consumer Products, Aerosol Coatings, and Architectural 
Coatings--Emissions and Speciation Profiles, http://www.arb.ca.gov/emisinv/ speciate/CProds&ACtqsprof.htm.
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    RM 100 allows the use of either infrared (IR) or flame ionization 
(FID) detectors. If an IR or FID detector is calibrated with methanol, 
and methanol is the only VOC present, then a laboratory could report 
results directly as percent methanol. If VOCs other than methanol are 
present, then this method would tend to overestimate the total mass of 
VOC. Only if the results from these methods exceed the limits of MCESD 
Rule 344 would further data reduction and investigation using the above 
mass of carbon to mass of VOC conversion method be necessary. EPA may 
also approve other methods should they be submitted for evaluation.
    Comment: RM 100 will overestimate the total organic carbon 
associated with VOCs for WWFs containing one or more exempt compounds 
because it does not distinguish between organic carbon from VOCs and 
organic carbon from non-precursor organic compounds.
    Response: Maricopa County's list of non-precursor organic compounds 
is the same as EPA's. There are relatively few compounds on that list 
that could be used in WWFs because many are not soluble in water. 
Acetone is one of the few compounds that is soluble in water but is 
unlikely to be used in WWFs because of its potential to damage a 
vehicle's paint. If WWFs contain exempt solvents, manufacturers would 
be allowed to subtract the mass of exempt solvents from the mass of VOC 
and could petition the MCESD for an alternative method by which to do 
that.
    Comment: RM 100 will overestimate the total organic carbon 
associated with VOCs because it does not distinguish between volatile 
organic compounds and non-volatile organic compounds. Certain compounds 
in WWFs, like organic dyes or other non-volatile organic compounds, 
cannot participate in the atmospheric photochemical reactions that 
produce ozone because they do not volatilize to the air.
    Response: While it is difficult to know how significantly dyes or 
other non-volatile organic compounds might increase the total VOC 
content of WWFs, a review of material safety data sheets indicates that 
the actual mass of dyes and other non-volatile organic compounds added 
to WWFs tends to be small. If the amount of non-volatile organic 
compounds is considerable and may influence a compliance determination, 
EPA recommends the manufacturer petition the MCESD for alternative 
methods to exclude the mass of dyes and non-volatile organic compounds 
from the mass of VOCs.
    Comment: Rule 344 is problematically inconsistent with analogous 
federal and California regulations. Specifically, many products that 
would comply with a 10 percent VOC limitation according to EPA and 
California regulations may not comply with that same limitation under 
the provisions of MCESD Rule 344 because: (1) There is no process to 
sell-through a product that exceeds the VOC limit but was manufactured 
before the effective date of the rule, (2) ``low vapor pressure'' (LVP) 
compounds that are not volatile are not exempted, (3) the types of 
``reasonable prudent precautions'' allowed in all other consumer 
product rules to assure that a non-complying product sold in the County 
will be resold for use outside the County are artificially restricted 
under the rule, (4) concentrated product labels with dilution 
instructions resulting in stronger WWF formulations for users outside 
of Maricopa County are not allowed, and (5) an ``innovative products'' 
provision which allows products to exceed the applicable VOC limit if 
the use of such ``innovative products'' ultimately results in lower VOC 
emissions is not allowed.
    Response: While we appreciate that consistency is desirable for 
affected industry, state and local agencies have broad authority to 
develop regulations and are not required to be consistent in all 
regards. In fact, section 59.211 of the final national Consumer 
Products Rule explicitly provides that states and their political 
subdivisions retain authority to adopt and enforce their own additional 
regulations affecting these products. Accordingly, MCESD may impose 
more stringent requirements for WWFs 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.
    Furthermore, while California consumer products regulations allow 
products to be sold, supplied, or offered for sale up to three years 
after the

[[Page 59701]]

effective date of the rule, MCESD Rule 344 is consistent with the 
national Consumer Products Rule which does not contain a sell-through 
period. As explained in the background document,\2\ manufacturers' 
current ``just in time'' inventory practices and the expense and lack 
of sufficient storage space do not create large stockpiles of 
noncomplying products which might warrant a sell-through period. EPA 
considers the incorporation of a sell-through period to be at the 
discretion of the local agency.
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    \2\ National Volatile Organic Compound Emission Standards For 
Consumer Products--Background for Promulgated Standards EPA-453/R-
98-008b August 1998.
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    The amount of LVP compounds such as surfactants or ethylene glycol 
used in WWFs tends to be minimal so as not to affect a product's 
ability to clean and evaporate quickly without leaving a residue. A 
review of the CARB's Initial Statement of Reasons for Proposed 
Amendments to the California Consumer Products Regulation dated 
September 10, 1999 indicates that surfactants in a possible windshield 
washer formulation may account for 0.05 weight percent. As stated 
above, EPA cannot object to MCESD Rule 344 taking a more stringent 
approach than the national Consumer Products Rule and concurs with 
MCESD's decision to not exempt LVP compounds in Rule 344.
    Section 303 of MCESD rule 344 exempts non-complying WWFs destined 
for use outside of Maricopa County. Section 303 also specifies the 
information required to prove that non-complying products sold within 
Maricopa County are actually destined for use outside of the County. 
Although MCESD Rule 344 is more prescriptive than California's Consumer 
Products Rule which allows manufacturers and distributors of non-
compliant products some flexibility to take ``reasonable prudent 
precautions'' to assure that the consumer product is not distributed in 
California, Rule 344, as written, meets EPA's enforceability 
requirements.
    MCESD adopted requirements in section 302e of Rule 344 that 
prohibit the dilution of WWFs that would yield solutions that exceed 
the VOC limit of the rule. Labeling products with directions which 
yield WWFs that are more concentrated than the 10% VOC limit is 
potentially confusing to the end user in the County and may create more 
enforcement problems. The requirement that all dilution instructions 
for concentrated products never exceed 10% ensures that MCESD will 
achieve the emissions reductions expected from Rule 344. EPA supports 
MCESD's intent to establish clear, enforceable labeling requirements.
    Inclusion of an innovative products provision in MCESD Rule 344 
would allow greater flexibility for manufacturers to meet Rule 344's 
VOC content limit. However, California has had a 10% VOC limit for WWFs 
since 1993 and no innovative product requests for WWFs have been 
submitted to CARB. Therefore, EPA considers Maricopa County's limit of 
10% to be reasonable and achievable.

III. EPA Action

    None of the submitted comments change our assessment that the 
submitted rule complies with the relevant CAA requirements. Therefore, 
as authorized in section 110(k)(3) of the Act, EPA is fully approving 
this rule into the Arizona SIP.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves 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. This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 January 29, 2002. 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

[[Page 59702]]

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, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: October 31, 2001.
Wayne Nastri,
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 D--Arizona

    2. Section 52.120 is amended by adding paragraph (c)(94)(i)(E) to 
read as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (94) * * *
    (i) * * *
    (E) Rule 344, adopted on April 7, 1999.
* * * * *
[FR Doc. 01-29550 Filed 11-29-01; 8:45 am]
BILLING CODE 6560-50-P