[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Proposed Rules]
[Pages 59229-59232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23987]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 264-0370; FRL-7380-7]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified, Ventura County, and Santa Barbara County Air 
Pollution Control Districts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the San Joaquin Valley Unified (SJVUAPCD), Ventura County 
(VCAPCD), and Santa Barbara County (SBCAPCD) Air Pollution Control 
Districts' portions of the California State Implementation Plan (SIP). 
These revisions concern volatile organic compound (VOC) emissions from 
architectural coatings. In accordance with the Clean Air Act as amended 
in 1990 (CAA or the Act), we are proposing action on local rules that 
regulate these emission sources. We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by October 21, 2002.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.
    You can inspect copies of the submitted SIP revisions and EPA's 
technical support documents (TSDs) at our Region IX office during 
normal business hours. You may also see copies of the submitted SIP 
revisions at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg, Fresno, CA 93726.
Ventura County Air Pollution Control District, 669 County Square 
Dr., 2nd Fl., Ventura, CA 93003.
Santa Barbara County Air Pollution Control District, 26 Castilian 
Dr. Suite B-23, Goleta, CA 93117.


[[Page 59230]]


    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA website and may not contain the same version of the rule that 
was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, EPA Region IX, (415) 947-
4117.

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action.
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rules' deficiencies?
    D. EPA recommendations to further improve the rules.
    E. Proposed action and public comment.
III. Background information.
    A. Why were these rules submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agencies and submitted to us by 
the California Air Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
              Local agency                 Rule No.           Rule title              Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD...............................         4601  Architectural Coatings....        10/31/01        03/15/02
VCAPCD.................................         74.2  Architectural Coatings....        11/13/01        03/15/02
SBCAPCD................................          323  Architectural Coatings....        11/15/01        03/15/02
----------------------------------------------------------------------------------------------------------------

    On May 7, 2002, these rule submittals were found to meet the 
completeness criteria in 40 CFR part 51 Appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of These Rules?

    There are no previous versions of SJVUAPCD Rule 4601 in the SIP, 
although the rule was previously approved into the SIP as SJVUAPCD Rule 
460.1 on June 30, 1993. We approved versions of VCAPCD Rule 74.2 and 
SBCAPCD Rule 323 into the SIP on March 24, 2000. The SJVUAPCD, VCAPCD, 
and SBCAPCD adopted revisions to the SIP-approved versions of these 
rules on October 31, 2001, November 13, 2001, and November 15, 2001, 
respectively. CARB submitted all three rule revisions to us on March 
15, 2002.

C. What Is the Purpose of the Submitted Rule Revisions?

    The rule revisions primarily modify the rules for consistency with 
the Suggested Control Measure for Architectural Coatings (SCM). The SCM 
is a model rule developed by CARB which seeks to provide statewide 
consistency for the regulation of architectural coatings. The CARB 
adopted the SCM on June 22, 2000. The TSDs have more information about 
these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
major sources in nonattainment areas (see section 182(a)(2)(A)), must 
not relax requirements adopted before the 1990 CAA amendments in 
nonattainment areas (section 193), and must not interfere with 
attainment, reasonable further progress or other applicable 
requirements of the CAA (section 110(1)). The SJVUAPCD, VCAPCD, and 
SBCAPCD regulate ozone nonattainment areas (see 40 CFR 81), however, 
because these rules regulate nonmajor area sources, they are not 
subject to CAA RACT requirements.
    Guidance and policy documents that we used to help evaluate 
specific enforceability and other CAA requirements consistently include 
the following:

    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
andDeviations,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other 
RuleDeficiencies,'' EPA Region 9, August 21, 2001 (the Little 
Bluebook).
    4. National Volatile Organic Compound Emission Standards for 
Architectural Coatings, September 11, 1998 (40 CFR Part 59 Subpart D).
    5. ``Suggested Control Measure for Architectural Coatings,'' CARB, 
June 22, 2000.
    6. ``Improving Air Quality with Economic Incentive Programs,'' EPA-
452/R-01-001, EPA, January 2001 (the EIP).

B. Do the Rules Meet the Evaluation Criteria?

    These rules improve the SIP by establishing more stringent emission 
limits and by clarifying labelling and reporting provisions. They are 
largely consistent with the relevant policy and guidance regarding 
enforceability and SIP relaxations. Provisions of the rules which do 
not meet the evaluation criteria are summarized below and discussed 
further in the TSDs.

C. What Are the Rules' Deficiencies?

    These rules were all based on the same model--the SCM--and, as a 
result, contain many of the same rule deficiencies. The following 
provisions common to SJVUAPCD Rule 4601, VCAPCD Rule 74.2, and SBCAPCD 
Rule 323 conflict with section 110 of the Act and prevent full approval 
of the SIP revisions.
    1. The rules allow the VOC content displayed on a coating to be 
calculated using product formulation data. A definition of the term 
formulation data must be added to ensure the regulation is clear and 
enforceable and to ensure that unreliable data is not used to determine 
compliance.
    2. The rules allow for the sell-through of coatings included in 
approved averaging programs. Because emissions from coatings sold under 
the sell-through provision cannot be distinguished from emissions from 
coatings sold under an averaging program, the enforceability of the 
rules may be compromised by manufacturers claiming that a certain 
portion of emissions from coatings sold under the sell-through 
provision should be excluded from averaged emissions.
    3. The rules grant the Executive Officer of CARB authority to 
approve or disapprove initial averaging programs, program renewals, 
program modifications, and program terminations. This raises 
jurisdictional issues which could create enforceability

[[Page 59231]]

problems since CARB has not been granted authority by the state 
Legislature under the California Health and Safety Code to regulate 
architectural coatings.
    4. The provisions of the averaging compliance option which require 
manufacturers to describe the records being used to calculate emissions 
are not specific enough to verify compliance with the rules and 
represent executive officer discretion. More specificity as to the 
types of suitable records is needed to verify compliance with the 
averaging compliance option.
    5. The rules' language regarding how violations of the averaging 
compliance option shall be determined is ambiguous. The language should 
be clarified to specify that ``an exceedance for each coating that is 
over the limit shall constitute a separate violation for each day of 
the compliance period.''
    6. The rules contain typographical errors that make the rules 
confusing and less enforceable.

D. EPA Recommendations To Further Improve the Rules

    The TSDs describe additional rule revisions that do not affect 
EPA's current action but are recommended for the next time the local 
agencies modify the rules.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of the submitted rules to improve the SIP. 
If finalized, this action would incorporate the submitted rules into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rules under section 110(k)(3). If this disapproval 
is finalized, sanctions will be imposed under section 179 of the Act 
unless EPA approves subsequent SIP revisions that correct the rules' 
deficiencies within 18 months. These sanctions would be imposed 
according to 40 CFR 52.31. A final disapproval would also trigger the 
federal implementation plan (FIP) requirement under section 110(c). 
Note that the submitted rules have been adopted by the districts and 
EPA's final limited disapproval would not prevent the local agencies 
from enforcing them.
    We will accept comments from the public on the proposed limited 
approval and limited disapproval for the next 30 days.

III. Background Information

A. Why Were These Rules Submitted?

    VOCs help produce ground-level ozone and smog, which harm human 
health and the environment. EPA has established a National Ambient Air 
Quality Standard (NAAQS) for ozone. Section 110(a) of the CAA requires 
states to submit regulations necessary to achieve the NAAQS. Table 2 
lists some of the national milestones leading to the submittal of these 
local agencies' VOC rules.

                Table 2.--Ozone Nonattainment Milestones
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               Date                                 Event
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March 3, 1978.....................  EPA promulgated a list of ozone
                                     nonattainment areas under the Clean
                                     Air Act as amended in 1977. 43 FR
                                     8964; 40 CFR 81.305.
May 26, 1988......................  EPA notified Governors that parts of
                                     their SIPs were inadequate to
                                     attain and maintain the ozone
                                     standard and requested that they
                                     correct the deficiencies (EPA's SIP-
                                     Call). See section 110(a)(2)(H) of
                                     the pre-amended Act.
November 15, 1990.................  Clean Air Act Amendments of 1990
                                     were enacted. Pub. L. 101-549, 104
                                     Stat. 2399, codified at 42 U.S.C.
                                     7401-7671q.
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IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13211

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

C. 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 and is not an economically significant action.

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 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 proposed rule will not have substantial direct effects on the 
States, on the relationship between the national

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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 proposed rule.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule. In the spirit 
of Executive Order 13175, and consistent with EPA policy to promote 
communications between EPA and tribal governments, EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

F. 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 will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and Title 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 proposed disapproval of the state request under section 110 
and Title 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).

G. 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 proposed action 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 proposed 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.

H. 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 proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compound.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 3, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-23987 Filed 9-19-02; 8:45 am]
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