[Federal Register Volume 69, Number 118 (Monday, June 21, 2004)]
[Proposed Rules]
[Pages 34323-34326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13932]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 287-0445; FRL-7775-3]


Revisions to the California State Implementation Plan, Antelope 
Valley Air Quality Management District

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 Antelope Valley Air Quality Management District's 
(AVAQMD) portion 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 a local rule that 
regulates these emission sources. We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by July 21, 2004.

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 document (TSD) 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.
Antelope Valley Air Quality Management District, 43301 Division Street, 
Suite 206, Lancaster, CA 93535-4649.
A copy of the rules 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 rules that were 
submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Francisco D[oacute][ntilde]ez, EPA 
Region IX, (415) 972-3956.

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

Table of Contents

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

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 shows the rule addressed by this proposal with the dates 
that it was 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
----------------------------------------------------------------------------------------------------------------
AVAQMD..........................       1113  Architectural Coatings...................     03/18/03     06/05/03
----------------------------------------------------------------------------------------------------------------

    On July 18, 2003, this rule submittal was 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 This Rule?

    We approved a version of AVAQMD Rule 1113 into the SIP on January 
24, 1985. The AVAQMD adopted revisions to the SIP-approved version of 
this rule on March 18, 2003. CARB submitted the rule revision to us on 
June 5, 2003.

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

    The rule revisions primarily modify the rule 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

[[Page 34324]]

consistency for the regulation of architectural coatings. The 
recommended VOC content limits and other provisions of the SCM are the 
results of an extensive investigation of architectural coatings which 
included a statewide survey of architectural coatings sold in 
California and several technology assessments. CARB adopted the SCM on 
June 22, 2000. The TSD has more information about this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) in 
moderate to extreme nonattainment areas for major sources of volatile 
organic compounds (VOC) and VOC sources covered by a Control Technique 
Guideline (CTG)(see section 182(b)(2)), 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(l)). 
The AVAQMD regulates an ozone nonattainment area (see 40 CFR part 81), 
however, because this rule regulates sources that are not covered by a 
CTG and that are nonmajor area sources, it is not subject to CAA RACT 
requirements.
    Guidance and policy documents that we used to help evaluate this 
revised rule to ensure enforceability and compliance with other CAA 
requirements 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, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' 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. Does the Rule Meet the Evaluation Criteria?

    This rule improves the SIP by establishing more stringent emission 
limits and by clarifying labeling and reporting provisions. It is 
largely consistent with the relevant policy and guidance regarding 
enforceability and SIP relaxations. Provisions of the rule which do not 
meet the evaluation criteria are summarized below and discussed further 
in the TSD.

C. What Are the Rule's Deficiencies?

    This rule was based on the SCM and, as a result, contains many of 
the same deficiencies as the SCM. The deficiencies relate to the 
averaging provisions incorporated into this rule. While we believe the 
VOC limits contained in these rules to be feasible and substantiated by 
a significant investigation of architectural coatings, the averaging 
provisions provide a valuable alternative compliance mechanism for the 
VOC limits contained in this rule and may reduce the overall economic 
impact of compliance with the VOC limits on manufacturers. We have 
identified five specific problems with these provisions. The first four 
could be addressed through relatively minor changes to the averaging 
provisions which we have described below. The fifth could also be 
addressed by relatively minor changes or by clarification of the 
State's authority. The following provisions in AVAQMD Rule 1113 
conflict with section 110 of the Act and prevent full approval of the 
SIP revisions.
    1. The rule allows for the sell-through of coatings included in 
approved averaging programs. Because emissions from coatings sold under 
the sell-through provision cannot be distinguished based on the 
information explicitly required to be maintained under the rule 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. 
One way to correct this is to clarify that manufacturers with an 
approved averaging program cannot also use the sell-through provision.
    2. The provisions of the averaging compliance option that require 
manufacturers to describe the records being used to calculate emissions 
are not specific enough to verify compliance with the rule and 
represent executive officer discretion. More specificity as to the 
types of suitable records is needed to verify compliance with the 
averaging compliance option.
    3. The rule's 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.
    4. The rule allows manufacturers to average coatings based on 
statewide or district-specific data which makes enforceability more 
difficult and conflicts with other rule provisions which imply that 
averaging will only be implemented by CARB and conducted on a statewide 
basis. The rule should clarify whether emissions from averaging 
programs will be calculated using statewide or district-specific data.
    5. The rule grants 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 problems since 
CARB has not been granted authority by the state Legislature under the 
California Health and Safety Code to regulate architectural coatings.

D. EPA Recommendations to Further Improve the Rule

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

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 rule 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). Note that the 
submitted rule has been adopted by the district and EPA's final limited 
disapproval would not prevent the local agencies from enforcing it.
    All of the identified deficiencies are associated with the 
averaging program in this rule which sunsets on January 1, 2005. If we 
finalize this notice as proposed, the effective date of our action will 
be after July 1, 2003 and would trigger CAA section 179 sanction clocks 
that expire 18 and 24 months later. However, we believe that sunsetting 
the averaging program effectively corrects all the deficiencies 
associated with averaging, and revisions to this rule are not needed to 
avoid associated sanctions.

[[Page 34325]]

    We will accept comments from the public on the proposed limited 
approval and limited disapproval for the next 30 days. EPA finalized a 
similar limited approval and limited disapproval for seven other 
California architectural coating rules on January 2, 2004 (69 FR 34). 
While the eight California rules are very similar, we divided them into 
several actions for internal administrative and workload management 
reasons.

III. Background Information

A. Why Was This Rule 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, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    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.).

C. 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 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 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 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).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
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 proposed 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 proposes to 
approve 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.

E. Executive Order 13132, Federalism

    Executive Order 13132 (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 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 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. Thus, the 
requirements of

[[Page 34326]]

section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (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 ``economically significant'' under Executive 
Order 12866.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This 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.

I. 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.
    The EPA believes that VCS are inapplicable to this action. Today's 
action 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: June 4, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-13932 Filed 6-18-04; 8:45 am]
BILLING CODE 6560-50-P