[Federal Register Volume 69, Number 207 (Wednesday, October 27, 2004)]
[Rules and Regulations]
[Pages 62588-62589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23950]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA284-0462; FRL-7811-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finalizing approval of revisions to the Bay Area Air 
Quality Management District portion of the California State 
Implementation Plan (SIP). These revisions were proposed in the Federal 
Register on October 20, 2003 and concern volatile organic compound 
(VOC) emissions from solvents and surface cleaning operations when 
coating large appliances, metal furniture, and miscellaneous metal 
parts. We are approving local rules that regulate these emission 
sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on November 26, 2004.

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

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail 
Code 6102T), Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814 and,
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109.

    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: Jerald S. Wamsley, EPA Region IX, at 
(415) 947-4111, or via email at [email protected].

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

I. Proposed Action

    On October 30, 2003 (68 FR 61782), EPA proposed to approve the 
following rules into the California SIP.

----------------------------------------------------------------------------------------------------------------
                                              Rule
               Local agency                             Rule title               Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
BAAQMD...................................       8-14  Surface Preparation and Coating      10/16/02     04/01/03
                                                       of Large Appliances and Metal
                                                       Furniture.
BAAQMD...................................       8-19  Surface Preparation and Coating      10/16/02     04/01/03
                                                       of Miscellaneous Metal Parts
                                                       and Products.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve these rules because we determined that they 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the rules 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 parties.
    1. Adrienne Bloch, Communities for a Better Environment (CBE); 
letter and electronic mail dated November 21, 2003.
    2. Marc Chytilo, Transportation Solutions Defense and Education 
Fund (TRANSDEF); co-signee same letter referenced above. The comments 
and our responses are summarized below.
    Comment: EPA should disapprove or defer action on BAAQMD Rules 8-14 
and 8-19 because on July 23, 2003 a State Court ruled that the BAAQMD 
did not follow mandated state law in adopting the 2001 SIP stationary 
source control measure SS-13 (Rules 8-14 and 8-19 in a different form). 
The State Court found that the BAAQMD's initial study and negative 
declarations under the California Environmental Quality Act (CEQA) for 
the 2001 Ozone Attainment Plan (OAP), including SS-13, were inadequate. 
Given that the BAAQMD has not met CEQA's substantive and procedural 
requirements, the commenters assert that the BAAQMD has neither legal 
authority to adopt Rules 8-14 and 8-19, nor sufficient procedural 
evidence that they have followed State law in adopting and submitting 
Rules 8-14 and 8-19. Consequently, EPA should reject the rule revisions 
concerning Rules 8-14 and 8-19 because they violate the Clean Air Act 
(CAA) at Section 110(a)(2)(E) and EPA regulations at 40 Code of Federal 
Regulations (CFR), Part 51, Appendix V.
    The CAA Section 110(a)(2)(E) does not allow EPA to approve a SIP 
revision unless the State can assure that it has authority under state 
and local law to carry out the SIP revision. CFR 40 Part 51, Appendix V 
requires that a State provide evidence of legal authority to adopt a 
SIP revision and show that the State followed all of its procedural 
requirements.
    EPA Response: In subsequent actions, BAAQMD and the commenters, CBE 
and TRANSDEF, appealed the July 23, 2003 State Court decision. In April 
2004, BAAQMD, CBE, and TRANSDEF entered into a settlement agreement 
that vacated the July 23, 2003 State Court judgement. As a part of the 
settlement, CBE and TRANSDEF agreed to dismiss their lawsuit against 
BAAQMD that challenged the 2001 OAP on CEQA and other grounds and 
relinquish all claims associated with the lawsuit. Consequently, we are 
left with no substantive basis requiring that we adjudicate CBE and 
TRANSDEF's claim that we should not act on Rules 8-14 and 8-19 as 
submitted.
    However, it should be noted that as part of BAAQMD's September 2002 
adoption action on Rules 8-14 and 8-19, the district published its 
``Initial Study/Negative Declaration for Amendments to the BAAQMD 
Regulation 8, Rules 4, 14, 19, 31, and 43 (Surface Coating Rules.)'' 
This

[[Page 62589]]

document provided the basis for the BAAQMD Board's negative declaration 
within the district's resolution of adoption and for satisfying its 
CEQA obligations. In turn, this negative declaration and other 
submittal documents provided the basis for EPA's May 13, 2003 
completeness finding on Rules 8-14 and 8-19.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted rules comply with the relevant CAA requirements. Therefore, 
as authorized in section 110(k)(3) of the Act, EPA is fully approving 
these rules into the California SIP.

IV. Statutory and Executive Order Reviews

    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 13211, 
``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. section 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. 
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 December 27, 2004. 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: August 6, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(315)(i)(A)(3) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (315) * * *
    (i) * * *
    (A) * * *
    (3) Rule 8-14, adopted on March 7, 1979 and amended on October 16, 
2002; and Rule 8-19, adopted on January 9, 1980 and amended on October 
16, 2002.
* * * * *
[FR Doc. 04-23950 Filed 10-26-04; 8:45 am]
BILLING CODE 6560-50-P