[Federal Register Volume 67, Number 38 (Tuesday, February 26, 2002)]
[Rules and Regulations]
[Pages 8721-8723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4402]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 249-0329; FRL-7146-7]


Revisions to the California State Implementation Plan, Bay Area 
Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of a revision to the Bay Area Air 
Quality Management District's (BAAQMD) portion of the California State 
Implementation Plan (SIP). This revision was proposed in the Federal 
Register on September 12, 2001 and concerns volatile organic compound 
(VOC) emissions from adhesives and sealants. 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 March 28, 2002.

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, 1001 ``I'' 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), 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 September 12, 2001 (66 FR 47419), EPA proposed to approve the 
following rules into the California SIP.

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              Local agency                 Rule No.              Rule title               Adopted     Submitted
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BAAQMD..................................        8-51  Adhesive and Sealant Products...     05/02/01     05/31/01
South Coast Air Quality Management             443.1  Labeling of Materials Containing     12/05/86     06/09/97
 District (SCAQMD).                                    Organic Solvent.
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    We proposed to approve these rules because we determined that they 
complied with the relevant CAA requirements.
    On September 12, 2001 (66 FR 47392), we also published a direct 
final approval of the above rules because we believed that the rules 
were not controversial.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we did not receive comments on SCAQMD Rule 443.1. 
The direct final approval became effective and SCAQMD Rule 443.1 was 
incorporated into the SIP on November 13, 2001. During the comment 
period, we did receive comments regarding BAAQMD Rule 8-51. As a 
result, we removed our direct final action for BAAQMD Rule 8-51 on 
November 15, 2001 (66 FR 57387). We received comments from the 
following parties.
    1. Mark Chytilo, Counsel for TRANSDEF, a Bay Area community group; 
letter dated October 12, 2001.
    2. Julia May, Lead Scientist for Communities for a Better 
Environment (CBE); letter dated October 12, 2001.
    The comments and our responses are summarized below.
    Comment 1: Both parties comment that handheld aerosol adhesives, if 
exempted by the BAAQMD, will be exempt from emission controls because 
the Air Resources Board's (ARB) Consumer Products regulation 
(California Code of Regulations Title 17 Sections 94507-94528) has not 
been approved into the SIP. The provisions controlling these products 
are removed from the local regulation without adequate replacement 
provisions which violates CAA requirements regarding enforceability and 
backsliding. TRANSDEF also questioned BAAQMD's ability to regulate 
adhesives in general and requested clarification from EPA.
    Response 1: On November 4, 1999 (64 FR 60109), EPA originally 
incorporated a version of BAAQMD Rule 8-51 into

[[Page 8722]]

the SIP. That version, adopted by the BAAQMD on January 7, 1998 and 
submitted to us by the ARB on June 23, 1998, contained two similar 
provisions exempting aerosol adhesive products from the requirements of 
Rule 8-51. Section 8-51-113 generally exempted all adhesives subject to 
the ARB's Consumer Products regulation, while Section 8-51-111 
specifically exempted aerosol adhesive products. The current version of 
BAAQMD Rule 8-51, adopted by the BAAQMD on May 2, 2001 and submitted to 
us by the ARB on May 31, 2001, deletes Section 8-51-111 because that 
provision expired on January 1, 2000. However, the aerosol adhesive 
product category is still exempt under the SIP-approved exemption in 
Section 8-51-113. Because the SIP-approved version of 8-51 never 
regulated the aerosol adhesive product category, the removal of Section 
8-51-111 does not violate CAA section 193 requirements regarding 
backsliding. Furthermore, the submitted version of the rule which still 
includes Section 8-51-113, is very clear that aerosol adhesives are 
exempt. There is no ambiguity about how this provision is to be 
enforced and, therefore, no conflict with the enforceability 
requirement of CAA section 110(a).
    On January 1, 1997, Section 41712 of the California Health and 
Safety Code was amended by Assembly Bill 1849, to apply the ARB's 
aerosol adhesive standard statewide. On or after January 1, 2000, 
Assembly Bill 1849 allows local districts, like the BAAQMD, to adopt 
and enforce stricter standards for aerosol adhesives. Section 39002 of 
the California Health and Safety Code, in fact, specifically provides 
that ``local and regional authorities have the primary responsibility 
for control of air pollution from all sources other than vehicular 
sources'' and that ``local and regional authorities may establish 
stricter standards than those set by law or by the state board.'' The 
local agency's ability to regulate the larger adhesives and sealants 
source category granted under Section 39002 was unaffected by Assembly 
Bill 1849. With the expiration of ARB's limited jurisdiction over the 
aerosol adhesive subcategory, the authority to regulate the entire 
adhesive and sealant source category, including aerosols, reverts back 
to the BAAQMD.
    Comment 2: Because VOC is defined more narrowly in BAAQMD's Rule 8-
51 than in the ARB's Consumer Products rule, the use of certain toxic 
compounds and/or environmentally harmful materials, including 
greenhouse gases, would not be allowed under Rule 8-51 but would be 
allowed under the ARB's Consumer Products rule. Both parties comment 
that EPA should not allow the use of these harmful compounds as 
replacements for ozone depletors and that EPA is, in fact, required by 
the Pollution Prevention Act to review regulations with source 
reduction in mind.
    Response 2: This comment is only relevant if activities previously 
subject to Rule 8-51 are now subject to ARB's Consumer Products rule. 
As discussed in Response 1, this is not the case.
    Comment 3: TRANSDEF noted that the BAAQMD has failed to complete 
the required RACT fix up which was due in 1992 because Rule 8-51 
remains unapproved and urged EPA to impose sanctions pursuant to 
Sec. 179.
    Response 3: EPA proposed full approval of BAAQMD Rule 8-51 on 
September 12, 2001 partly because we believe it fulfills all RACT fix-
up requirements. No comments were submitted that change that 
assessment. Therefore, there is no basis for imposing sanctions 
regarding this rule.
    Comment 4: TRANSDEF requested that EPA convene a public hearing 
process to gain clarity about the rule citing confusion about Rule 8-
51's overlap with ARB's Consumer Products regulation and compliance 
with RACT fix-up requirements.
    Response 4: As discussed in Responses 1 and 3, overlap with ARB's 
Consumer Products regulation and RACT fix-up commitments are not 
substantive issues.

III. EPA Action

    No comments were submitted that 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 California SIP. This action permanently terminates 
all sanctions and FIP clocks associated with EPA's November 4, 1999 
limited disapproval of a previous version of this rule.

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 (Public Law 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. section 801 et seq., as 
added by

[[Page 8723]]

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. 
section 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 April 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 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: January 30, 2002.
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 F--California

    2. Section 52.220 is amended by adding paragraphs (c)(282)(i)(B) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (282) * * *
    (i) * * *
    (B) Bay Area Air Quality Management District.
    (1) Rule 8-51, revised on May 2, 2001.
* * * * *
[FR Doc. 02-4402 Filed 2-25-02; 8:45 am]
BILLING CODE 6560-50-P