[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24959-24970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9312]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-DC-0007; FRL-7909-8]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; VOC Emission Standards for AIM Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the District of Columbia (the District). This revision 
pertains to the volatile organic compound (VOC) emission standards for 
architectural and industrial maintenance (AIM) coatings in the 
District. EPA is approving this SIP revision in accordance with the 
Clean Air Act (CAA or Act).

DATES: Effective Date: This final rule is effective on June 13, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2004-DC-0007. All documents 
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly

[[Page 24960]]

available only in hard copy form. Publicly available docket materials 
are available either electronically in RME or in hard copy for public 
inspection during normal business hours at the Air Protection Division, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the state submittal at the 
District of Columbia Department of Public Health, Air Quality Division, 
51 N Street, NE., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 27, 2004 (69 FR 77149), EPA published a notice of 
proposed rulemaking (NPR) for the District of Columbia. The NPR 
proposed approval of the VOC emission standards for AIM coatings. The 
formal SIP revision was submitted by the District on April 16, 2004 and 
supplemented on September 20 and November 26, 2004. Other specific 
requirements of the District's SIP revision for AIM coatings and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here. EPA received adverse comments on the December 27, 
2004 NPR. A summary of the comments submitted and EPA's responses are 
provided in Section II of this document.
    EPA is aware that concerns have been raised about the achievability 
of VOC content limits of some of the product categories under the 
District's AIM coatings rule. Although we are approving this rule 
today, the Agency is concerned that if the rule's limits make it 
impossible for manufacturers to produce coatings that are desirable to 
consumers, there is a possibility that users may misuse the products by 
adding additional solvent, thereby circumventing the rule's intended 
VOC emission reductions. We intend to work with the District and 
manufacturers to explore ways to ensure that the rule achieves the 
intended VOC emission reductions, and to address this issue in 
evaluating the amount of VOC emission reduction credit attributable to 
the rule.

II. Public Comments and EPA Responses

    A private citizen and the Sherwin Williams Company (SWC) submitted 
adverse comments on EPA's December 27, 2004 (69 FR 77149) proposed 
approval of the District's AIM coatings rule The SWC submitted its 
adverse comments in letter to EPA dated January 26, 2005. The SWC's 
comment letter also includes, by reference, the comments it previously 
submitted to the District on its proposed version of the AIM coatings 
rule during the District's adoption process and to the Ozone Transport 
Commission (OTC) in a letter dated January 11, 2001.\1\ Lastly, the 
SWC's January 26, 2005 letter of comment to EPA also includes, by 
reference, the Petition for Reconsideration and Request for Stay, 42 
U.S.C.A. Subsection 7607(d)(7)(B): Environmental Protection Agency's 
Approval and Promulgation of Air Quality Improvement Plans; 
Pennsylvania; Control of Volatile Organic Compound Emissions from AIM 
Coatings submitted by the SWC to EPA on January 20, 2005 (hereafter the 
Petition for Reconsideration).\2\ The following summarizes the comments 
submitted to EPA on the December 27, 2004 (69 FR 77149) proposed 
approval of the District's AIM coatings rule and EPA's response to 
those comments.
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    \1\ The SWC's January 26, 2005 letter of comment to EPA states 
that it is also includes, by reference, the comments submitted to 
the OTC, enclosed as Exhibit B., and asks that they also be treated 
as direct comments on the proposed revision to the DC SIP. However, 
Exhibit B. to the SWC's January 26, 2005 letter of comment to EPA is 
a ``Petition for Reconsideration and Request for Stay, 42 U.S.C.A. 
Subsection 7607(d)(7)(B); Environmental Protection Agency's Approval 
and Promulgation of Air Quality Improvement Plans; Pennsylvania; 
Control of Volatile Organic Compound Emissions from AIM Coatings 
submitted to EPA by the SWC to EPA on January 20, 2005.''
    The SWC's January 11, 2001 letter of comment to the OTC is 
enclosed as attachment 4 to Exhibit A of SWC's January 26, 2005 
letter of comment to EPA on the December 27, 2004 (69 FR 77149) 
proposed approval of the District's AIM coatings rule.
    \2\ This Petition for Reconsideration, as it pertains to EPA's 
approval of Pennsylvania's AIM coatings rule (69 FR 68080), was 
withdrawn by a letter dated March 17, 2005.
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    A. Comment: The Products Should Contain No VOCs--A private citizen 
submitted a comment to EPA by e-mail on December 27, 2005. The 
commenter states that no VOCs, zero emissions and zero pollution should 
be allowed from any product allowed to be used or sold.
    Response: EPA disagrees with this comment. Aside from issues 
associated with the technological infeasibility of all paints and 
coatings used or sold to contain no VOCs, it is important to understand 
EPA's role with regard to review and approval or disapproval of rules 
submitted by states as SIP revisions. EPA can only take action upon the 
final adopted version of a state's regulation as submitted by that 
state in its SIP revision request. It is not within EPA's authority, by 
its rulemaking on the SIP revision or otherwise, to change or modify 
the text or substantive requirements of a state regulation. Therefore, 
EPA cannot modify the District's AIM regulation as recommended in the 
comment.
    B. Comment: Using Flawed Data Violates the Data Quality Objectives 
Act and Administrative Procedures Act--The commenter asserts that the 
District's AIM coatings rule is based on flawed data and that the use 
of this data violates the Data Quality Objectives Act (``DQOA'') 
(Section 515(a) of the Treasury and General Government Appropriations 
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)). The data at 
issue is contained in what the commenter characterizes as a ``study 
prepared by E.H. Pechan & Associates'' (Pechan Study) in 2001. The 
alleged flaws relate to projected VOC emissions reductions calculated 
in the Pechan Study. The commenter asserts that certain of the 
underlying data and data analyses are allegedly ``unreproduceable.'' 
Further, the commenter asserts that if better data were used, the OTC 
model AIM coatings rule would achieve greater VOC emissions reductions, 
relative to the Federal AIM coatings rule, than was calculated in the 
Pechan Study (54 percent reduction versus 31 percent reduction), even 
if certain source categories were omitted from regulation under the OTC 
rule. For these reasons, the commenter states that EPA must not approve 
the proposed District's AIM coatings rule as a revision to the SIP.\3\ 
These same issues are also raised in the commenter's Petition for 
Reconsideration.
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    \3\ The SWC submitted a ``Request for Correction of 
Information'' (RFC) dated June 2, 2004, to EPA's Information Quality 
Guidelines Office in Washington, DC which raises substantively 
similar issues to those raised by this comment. By letter dated 
February 25, 2005 from Robert Brenner, Principal Deputy Assistant 
Administrator to the Counsel for Sherwin Williams Company, EPA 
responded separately to the RFC. A copy of that letter is included 
in the administrative record for this final rulemaking.
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    Response: EPA disagrees with this comment. What the commenter 
characterizes as the Pechan Study is not at issue in this rulemaking. 
The Pechan Study was not submitted to EPA by the District in its SIP 
revision requesting that EPA approve its AIM coatings rule.\4\

[[Page 24961]]

The validity of the Pechan Study data is not at issue in this 
rulemaking because the District did not request approval of a 
quantified amount of VOC emission reduction from the enactment of its 
regulation. Rather, this AIM coatings regulation has been submitted by 
the District, and is being approved by EPA, on the basis that it 
strengthens the existing District SIP. The commenter does not dispute 
that the District's AIM coatings rule will, in fact, reduce VOC 
emissions.
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    \4\ The SWC concedes that the Pechan Study and related 
spreadsheet are not part of the record submitted to EPA by the 
District. The SWC assert, however, that there are references to the 
Pechan Study in other materials submitted by the District. Whether 
or not the Pechan Study, or data from that study, was submitted to 
EPA does not alter our analyses or conclusion, described herein, 
that the Pechan Study is not relevant in this rulemaking. 
Consequently, because the Pechan Study is not relevant to this 
rulemaking, the commenter's reliance on the document entitled, ``A 
Summary of General Assessment Factors for Evaluating the Quality of 
Scientific and Technical Information,'' EPA 100/B-03-001 (June 
2003), provided as exhibit C to SWC's comments is misplaced. This 
``Assessment Factors'' document describes the considerations EPA 
takes into account in evaluating scientific or technical information 
``used in support of Agency actions.'' Assessment Factors, p.1. The 
Pechan Study is not being used in support of this rulemaking, 
therefore, EPA is under no obligation to evaluate the scientific or 
technical information in that study.
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    Section 110 of the Act provides the statutory framework for 
approval/disapproval of SIP revisions. Under the Act, EPA establishes 
NAAQS for certain pollutants. The Act establishes a joint Federal and 
state program to control air pollution and to protect public health. 
States are required to prepare SIPs for each designated ``air quality 
control region'' within their borders. The SIP must specify emission 
limitations and other measures necessary for that area to meet and 
maintain the required NAAQS. Each SIP must be submitted to EPA for its 
review and approval. EPA will review and must approve the SIP revision 
if it is found to meet the minimum requirements of the Act. See section 
110(k)(3) of the Act, 42 U.S.C. 7410(k)(3); see also Union Elec. Co. v. 
EPA, 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). The Act 
expressly provides that the states may adopt more stringent air 
pollution control measures than the Act requires with or without EPA 
approval. See section 116 of the Act, 42 U.S.C. 7416. EPA must 
disapprove state plans, and revisions thereto, that are less stringent 
than a standard or limitation provided by Federal law. See section 
110(k) of the Act, 42 U.S.C. 7410(k); see also Duquesne Light v. EPA, 
166 F.3d 609 (3d Cir. 1999). The Pechan Study is not part of the 
District's submission in support of its AIM coatings rule. Because the 
District's April 16, 2004 submission (supplemented on September 20 and 
November 26, 2004) does not seek approval of a specific amount of 
emissions reductions, the level of emissions reductions that might be 
calculable using data contained in the Pechan Study is irrelevant to 
whether EPA should approve this SIP revision.\5\ The only relevant 
inquiry at this time is whether this SIP revision meets the minimum 
criteria for approval under the Act, including the requirement that the 
District's AIM coatings rule be at least as stringent as the otherwise 
applicable Federal AIM coatings rule set forth at 40 CFR 59.400, 
subpart D.\6\
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    \5\ After submission of a request for approval of a quantified 
amount of emissions reductions credit due to the AIM coatings rule 
by the District, EPA will evaluate the credit attributable to the 
rule. Whatever methodology and data the District uses in such a 
request, the issue of proper credit will become ripe for public 
comment.
    \6\ The commenter asserts that ``it makes no difference whether 
the District is asking for credits at this time for there to be a 
Data Quality Act challenge,'' apparently because the fact that 
material from the Pechan Study appears in the rulemaking docket for 
this action, there is ``dissemination of flawed data.'' This ignores 
that fact that EPA is taking no stance on the Pechan Study and its 
underlying data. That study is irrelevant to our analysis as to 
whether the District's AIM rule is approvable as a measure meeting 
the requirements of section 110 of the Act that strengthens the 
District's SIP. EPA is not required to address irrelevant material 
merely because it is in the rulemaking docket. Section 307(d)(6)(B) 
of the CAA (which applies to, among other things, SIP revisions, see 
42 U.S.C. 7607(d)(1)(B)), requires EPA to respond to ``each of the 
significant comments, criticisms, and new data submitted * * * 
during the public comment period.'' 42 U.S.C. 7607(d)(6)(B). The 
United States Supreme Court has held that ``irrelevant'' matter in 
the docket is not ``significant'' as that term is used in the CAA, 
and EPA has no duty to respond to them. See Whitman v. Amer. 
Trucking Ass'ns., Inc., 531 U.S. 457, n. 2 at 470 (2001). With 
respect to the Pechan data, we are not disseminating it, but we 
rather are fulfilling our statutory role as custodian of a docket 
containing irrelevant material submitted by third parties.
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    EPA has concluded that the District's AIM coatings rule meets the 
criteria for approvability. It is worth noting that EPA agrees with the 
commenter's conclusion that the District AIM coatings rule is more 
stringent than the Federal AIM coatings rule, though not for the 
reasons given by the commenter, i.e., that the commenter's ``better'' 
data demonstrates that OTC Model AIM coatings rule achieves a 54 
percent, as opposed to the Pechan Study's 31 percent reduction in VOC 
emissions beyond that required by the Federal AIM coatings rule. 
Rather, EPA has determined that the District's AIM coatings rule is, on 
its face, more stringent than the Federal AIM coatings rule. Examples 
of categories for which the District's AIM coatings rule is facially 
more stringent than the Federal AIM coatings rule include, but are not 
limited to, the VOC content limit for non-flat high gloss coatings and 
antifouling coatings. The Federal AIM coatings rule's VOC content limit 
for non-flat high gloss coatings is 380 grams/liter while the 
District's AIM coatings rule's limit is 250 grams/liter, and the 
Federal AIM coatings rule's VOC content limit for anti-fouling coatings 
is 450 grams/liter while the District's AIM coatings rule's is 400 
grams/liter. Examples of categories for which the District's AIM 
coatings rule is as stringent, but not more stringent, than the Federal 
AIM coatings rule include, but are not limited to, the VOC content 
limit for antenna coatings and low-solids coatings. In both rules the 
VOC content limits for these categories are 530 grams/liter and 120 
grams/liter, respectively. Thus, on a category by category basis, the 
District's AIM coatings rule is as stringent or more stringent than the 
Federal AIM coatings rule.
    C. Comment: EPA's Determination That the District of Columbia AIM 
Coatings Rule Is as Least as Stringent as the Federal AIM Coatings Rule 
Is Inadequate--EPA determined that the District's AIM coating rule is 
as stringent, or more stringent, than the otherwise applicable Federal 
AIM coatings rule because the VOC content limit of each product 
category of the District's AIM coatings rule is equal to or below the 
VOC content limit of the Federal AIM coatings rule. The commenter 
claims that EPA's determination is inadequate for at least three 
reasons: (i) EPA's comparison of VOC content fails to include an 
``ozone impact analysis;'' (ii) EPA acknowledged that the stringent VOC 
content limits of the rule might result in ``behavioral changes;'' and 
(iii) EPA failed to consider that more stringent VOC content limits 
might result in more use of products, or use of products with VOCs of 
higher reactivity, and that this would make the District's AIM coatings 
rule less stringent in terms of ozone impacts. The commenter raised 
these arguments in a Petition for Reconsideration concerning EPA's 
approval of the comparable Pennsylvania AIM coatings rule, asserting 
that EPA's ``on its face'' stringency finding is insufficient to meet 
the requirements of the CAA and that EPA's reliance on Union Elec. Co. 
v. EPA, 427 U.S. 246 (1976) to support its approval of the rule was 
misplaced. As noted previously, SWC has incorporated this Petition for 
Reconsideration in its comments opposing approval of the District's AIM 
coatings rule.
    Response: EPA disagrees that these comments provide a basis for 
disapproval of the District's AIM coating rule as a SIP revision. 
First, with respect to the comparison of the stringency of the District 
AIM coatings rule and the Federal AIM coatings rule, EPA believes that 
the VOC content levels of the respective rule for each category is the 
appropriate basis of comparison. The current Federal AIM coatings rule

[[Page 24962]]

achieves reductions of VOC content for each individual coating 
category, and an aggregate amount of VOC content for all of the 
categories covered by the rule. These mass-based VOC content limits 
apply to each category of product and, based upon an analysis of the 
types of products used and the amount of products used in a given area, 
are estimated to result in a given amount of mass based VOC emission 
reductions. As we have previously noted in this rulemaking, the 
District did not request approval of a quantified amount of VOC 
emission reduction from the enactment of its regulation; the ozone 
impacts of the VOC reductions from the District's AIM coatings rule 
will be determined at a subsequent point in time. Even though the 
specific amount of VOC emission reduction credit attributable to the 
District's AIM coatings rule is not at issue in EPA's approval of the 
rule into the SIP in this rulemaking, EPA believes that the category-
by-category comparison of VOC content between the Federal AIM coatings 
rule and the District's coating rule is a reasonable way to assess 
whether the latter is at least as stringent as the former. The 
commenter did not dispute that the District's AIM coatings rule is 
overall more stringent than the Federal AIM coatings rule in terms of 
its tighter VOC limits, and in fact states in its comments that it 
believes that the OTC model AIM coatings rule will achieve a 54 percent 
VOC emissions reduction relative to the Federal AIM coatings rule.
    Second, with respect to what the commenter refers to as 
``behavioral changes,'' EPA did note in its approval of comparable 
State AIM coatings rules in Pennsylvania and New York (and reiterates 
in today's action) that it had concerns with respect to some of the 
product categories that: ``if the rule's limits make it impossible for 
manufacturers to produce coatings that are desirable to consumers, 
there is a possibility that users may misuse the products, thereby 
circumventing the rule's intended VOC emission reductions.'' EPA 
further stated that it would address these types of concerns when 
evaluating credit for VOC emission reductions. The commenters appear to 
suggest that because product users might engage in ``behavioral 
changes'' such as adding solvent to products, which would be illegal 
under the District's AIM coatings rule, EPA cannot consider the 
District's AIM coatings rule to be at least as stringent as the Federal 
AIM coatings rule. To the contrary, EPA believes that the potential for 
illegal behavior should not be a basis for concluding that the 
District's AIM coatings rule is not as stringent as the Federal AIM 
coatings rule, and accordingly should not be a basis for disapproving 
the SIP revision. EPA appropriately assumes, for purposes of approving 
such a rule, that manufacturers, distributors, and users will abide by 
the law, or that the District or EPA will ultimately insure that they 
do. EPA reiterates, however, that the specific amount of credit 
attributable to the rule is not at issue in this action, and EPA 
concludes that the mere potential for illegal behavior is not a basis 
for determining that the District's AIM coatings rule is not as 
stringent as the Federal AIM coatings rule.
    Third, concerning the possibility that more stringent limits will 
result in more frequent painting, or painting with products that 
contain more highly reactive VOCs, EPA notes that the commenter already 
raised these issues with the District and the District ascertained that 
such concerns did not outweigh the overall benefits of the rule in the 
area. Similarly, EPA believes that these concerns are not a basis for 
determining that the District's AIM coatings rule is not at least as 
stringent as the Federal AIM coatings rule as a whole. At the outset, 
it must be noted that the District did not elect to develop and submit 
to EPA an AIM coatings rule based upon VOC relative reactivity, as the 
commenter implicitly suggests the District should have. EPA must act on 
the AIM coatings rule submitted by the District, not on one that the 
commenters would have preferred. Were the District to have submitted 
such an AIM coatings rule, EPA agrees with the commenter that the 
District would have needed to establish that the limits it imposed are 
in fact more stringent than those otherwise required by the Federal AIM 
coatings rule. In addition, EPA notes that as a general matter EPA 
believes that its approval of such a rule could not be inconsistent 
with the requirements of section 110(l) and section 193 of the CAA, as 
applicable. A determination of consistency with those statutory 
provisions would be made in the context of approval of a specific rule 
based upon relative reactivity. Because neither the District's AIM 
coatings rule nor the Federal AIM coatings rule is premised upon VOC 
relative reactivity, it is neither possible nor required that EPA 
compare the relative stringency of the rules on this basis in this 
rulemaking.
    In criticizing the District's AIM coatings rule, the commenter has 
hypothesized that users will necessarily use more product, or that 
manufacturers will necessarily choose to use more reactive VOCs to meet 
a more stringent limit, at least with respect to one specific category 
of product (the commenter alleges that an applicator would have to use 
50 percent more of the compliant waterborne clear wood finish to 
achieve the dry film thickness equivalent to current, federally 
compliant solvent-based varnish). EPA believes that the commenter's 
assertions are speculative in nature and do not provide compelling 
evidence that the District's AIM coatings rule is not at least as 
stringent as the otherwise applicable Federal AIM coatings rule. EPA 
believes that it would be arbitrary and capricious to disapprove the 
District's AIM coatings rule based on the speculative behavior of the 
persons who will apply the coatings (e.g., that the applicators 
necessarily will use more of a product or will necessarily violate the 
law by adulterating a complying product).\7\ This is especially so when 
the regulation at issue is both facially more stringent and conceded by 
the commenter to be more stringent overall (i.e., will result in 
greater VOC emissions reductions), than the otherwise applicable 
Federal AIM coatings rule, and any supposed increase in ozone from 
tighter VOC content limits is confined to one, or at the most a limited 
number of product categories, not to the regulation as a whole, which 
provides limits on 53 categories of AIM coatings. See Duquesne Light 
Co. v. EPA 166 F.3d 609, 613 (3d Cir. 1999) (in approving a SIP 
revision, EPA is not required ``to engage in a formalistic exercise by 
conducting a fuller demonstration of the stringency of'' a definition 
contained in a SIP, when ``[s]uch a `demonstration' would be a 
technical formality as the stringency of that definition is not only 
apparent on the face of the definition, but also conceded by 
Duquesne'') (emphasis added). We believe that there is no plausible 
basis to reject this regulation, which is more stringent than Federal 
law overall, merely because the commenter has speculated that even more 
reductions might be achieved by selectively raising the VOC content 
limits for some product categories covered by the comprehensive 
regulation.
    Finally, in response to the District's AIM coatings rule, EPA 
believes that it is likely that manufacturers will produce, and users 
will use, products that are lower in VOC content. While an important 
consideration, EPA believes

[[Page 24963]]

that coatings performance is not exclusively dependent upon VOC 
content, as evidenced by the fact that manufacturers already produce 
coatings that meet these limits for sale and use.
    For these reasons EPA disagrees that these comments form a basis to 
conclude that EPA's ``on its face'' stringency finding is insufficient 
to meet the requirements of the CAA and that EPA's reliance on Union 
Elec. Co. v. EPA, 427 U.S. 246 (1976) to support its approval of the 
District's AIM rule is misplaced.
    D. The CAA and Its Regulations Require That Data or Evidence 
Assessing the Air Quality Impacts Associated With a SIP Revision Must 
Be Submitted in Support of the SIP Revision. The commenter alleges that 
the section 110(a)(K) authorizes EPA to require, and that EPA 
regulations in 40 CFR part 51 (subparts G and F and Appendix v) demand, 
that states submit data and modeling in support of a SIP revision for 
the purposes of predicting its impact on air quality. The commenter 
raises these arguments in the Petition for Reconsideration to urge that 
EPA require Pennsylvania to submit such data and modeling in support of 
its AIM coatings rule. As noted previously, SWC has incorporated this 
Petition for Reconsideration in its comments opposing approval of the 
District's AIM coatings rule.
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    \7\ It must also be noted that unlike the Federal AIM rule, the 
state AIM rules (including the District's), include enforceable 
provisions which prohibit the applicator end users from adding 
additional solvent to complying coatings. D.C. Code Sec 20-750.5.
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    Response: EPA disagrees with this comment with regard to its 
approval of state AIM coatings rules in general and in the specific 
instance of its approval of the District's AIM coatings rule. Section 
110(K) of the Act authorizes EPA to prescribe the modeling and data to 
be provided in a state plan or plan revision. The statute commits to 
EPA's discretion whether and what type of data or modeling a state 
should submit in support of a SIP revision for the purposes of 
predicting the impact of that SIP revision on air quality. EPA's 
regulations in 40 CFR part 51, cited by the commenter, apply only to 
control strategy plans. Control strategy plans are by definition a 
combination of measures to achieve the aggregate reduction necessary 
for attainment and maintenance of the NAAQS. 40 CFR 51.100 (n). A state 
regulation to control VOCs from a source or source category, such as 
the District's AIM coatings rule, is a single control measure and is 
not, by itself, a control strategy for an ozone nonattainment area 
subject to the requirements of part D of the CAA. As such, submittal of 
such a control measure as a SIP revision is not required to meet the 
requirements of 40 CFR part 51 for submittal of a control strategy SIP 
or SIP revision. Rate-of-progress and attainment plans are control 
strategy plans for ozone nonattainment areas.
    Section 182 of the CAA sets out the plan submissions and 
requirements for ozone nonattainment areas. The requirements and 
schedules mandated by section 182 provide evidence that compliance with 
the CAA contemplates the submittal of control measures as SIP revisions 
separately from control strategy plans. For example, the states which 
comprise ozone nonattainment areas were required to submit corrections 
to previously SIP-approved reasonably available control technology 
(RACT) requirements by May 15, 1991 (6 months from the November 15, 
1990 date of enactment of the 1990 CAA) and to submit newly applicable 
RACT provisions as SIP revisions by November 15, 1992 (2 years from the 
date of enactment of the 1990 CAA). Submittal of these state rules to 
impose RACT on a widely divergent range of source categories of VOC as 
SIP revisions required no data or modeling with regard to their 
individual impact on the NAAQS for ozone for approval by EPA. The first 
control strategy plan SIP revision required by section 182 of the CAA 
(the 15 percent ROP plan) was not due to EPA until November 15, 1993 (3 
years after the date of enactment of the 1990 CAA). The attainment 
demonstration plans were not due to EPA until November 15, 1994 (4 
years after the date of enactment). With regard to ozone nonattainment 
areas, these attainment demonstrations plans are the only plans which 
the CAA requires be based on photochemical grid modeling or any other 
analytical method determined by the Administrator of EPA.
    EPA disagrees with the commenter's contention that every type of 
SIP revision submitted to EPA must be supported by data and modeling to 
assess its impact on ambient air quality and the NAAQS. As numerous of 
EPA's SIP approval Final actions published in the Federal Register 
amply demonstrate, EPA has approved hundreds of SIP revisions submitted 
by states consisting of state rules to control VOCs from stationary 
sources and source categories where such approvals did not require data 
and modeling to assess the individual rules' impacts on the NAAQS. The 
CAA and EPA's regulations found in 40 CFR part 51 for the requirements 
of state plans and plan revisions provide EPA the flexibility to 
determine and require such technical support as EPA deems necessary for 
approval depending upon the nature of the SIP revision.
    For all these reasons, EPA disagrees that it cannot approve the 
District's AIM coatings rule SIP revision because the District's 
submittal does not include data and modeling to assess its AIM coatings 
rules's individual impact on the NAAQS for ozone.
    E. Comment: The District of Columbia AIM Coatings Rule Was Adopted 
in Violation of Clean Air Act Section 183(e)(9)--The commenter states 
that in 1998, after a seven-year rule development process, EPA 
promulgated its nationwide regulations for AIM coatings pursuant to 
section183(e) of the Act. The commenter notes that the District's AIM 
coatings rule imposes numerous VOC emission limits that will be more 
stringent than the corresponding limits in EPA's regulation. The 
commenter asserts that section 183(e)(9) of the Act requires that any 
state which proposes regulations to establish emission standards other 
than the Federal standards for products regulated under Federal rules 
shall first consult with the EPA Administrator. The commenter believes 
that the District failed to engage in that required consultation, and, 
therefore (1) the District violated section 183(e)(9) in its adoption 
of the District AIM coatings rule, and (2) approval of the AIM coatings 
rule by EPA would violate, and is, therefore, prohibited by sections 
110(a)(2)(A) and (a)(2)(E) of the Act.
    Response: EPA disagrees with this comment. Contrary to the 
implication of the commenter, section 183(e)(9) does not require states 
to seek EPA's permission to regulate consumer products. By its explicit 
terms, the statute contemplates consultation with EPA only with respect 
to ``whether any other state or local subdivision has promulgated or is 
promulgating regulations or any products covered under [section 
183(e)].'' The commenter erroneously construes this as a requirement 
for permission rather than informational consultation. Further, the 
final Federal AIM coatings regulations at 40 CFR 59.410 explicitly 
provides that states and their political subdivisions retain authority 
to adopt and enforce their own additional regulations affecting these 
products. See also 63 FR 48848, 48884, September 11, 1998. In addition, 
as stated in the preamble to the final rule for architectural coatings, 
Congress did not intend section 183(e) to preempt any existing or 
future state rules governing VOC emissions from consumer and commercial 
products. See id. at 48857. Accordingly, the District retains authority 
to impose more stringent limits for architectural coatings as part of 
its SIP, and its election to do so is not a basis for EPA to disapprove 
the submission for inclusion in the SIP. See

[[Page 24964]]

Union Elec. Co. v. EPA, 427 U.S. at 265-66 (1976). Although national 
uniformity in consumer and commercial product regulations may have some 
benefit to the regulated community, EPA recognizes that some localities 
may need more stringent regulation to combat more serious and more 
intransigent ozone nonattainment problems.
    Further, there was ample consultation with EPA prior to the 
District's adoption of its AIM coatings rule. On March 28, 2001, the 
OTC adopted a Memorandum of Understanding (MOU) on regional control 
measures, signed by all the member states of the OTC, including the 
District, which officially made available the OTC model rules, 
including the AIM coatings model rule. See the discussion of this MOU 
in the Report of the Executive Director, OTC, dated July 24, 2001, a 
copy of which has been included in administrative record of this final 
rulemaking. That MOU includes the following text, ``WHEREAS after 
reviewing regulations already in place in OTC and other States, 
reviewing technical information, consulting with other States and 
Federal agencies, consulting with stakeholders, and presenting draft 
model rules in a special OTC meeting, OTC developed model rules for the 
following source categories * * * architectural and industrial 
maintenance coatings* * *.'' (a copy of the signed March 28, 2001 MOU 
has been placed in the administrative record of this final rulemaking). 
Therefore, there is no validity to the commenter's assertion that the 
District failed to consult with EPA in the adoption of its AIM coatings 
rule. EPA was fully cognizant of the requirements of the District's AIM 
coatings rule before its formal adoption by the District.\8\ For all 
these reasons, EPA disagrees that the District violated section 
183(e)(9) in its adoption of the its AIM coatings rule, and disagrees 
that approval of the District AIM coatings rule by EPA is in violation 
of or prohibited by sections 110(a)(2)(A) and (a)(2)(E) of the Act.
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    \8\ While EPA reviewed the model AIM coatings rule and the draft 
District version of that rule, EPA had no authority conferred under 
the Clean Air Act to dictate the exact language or requirements of 
the rule. As explained previously, EPA's role is to review a state's 
submission to ensure it meets the applicable criteria of section 110 
generally, and in the case of an AIM rule to ensure its is at least 
as stringent as the otherwise applicable Federal rule.
---------------------------------------------------------------------------

    F. Comment: The District of Columbia's AIM Coatings Rule Was 
Adopted in Violation of Clean Air Act Section 184(c), and Approval of 
the SIP Revision Would, Itself, Violate That Section--The commenter 
believes the OTC violated section 184(c)(l) of the Act by failing to 
``transmit'' its recommendations to the Administrator, and that the 
OTC's violation was compounded by the Administrator's failure to review 
the Model Rule through the notice, comment and approval process 
required by CAA section184(c)(2)-(4). The commenter asserts that these 
purported violations of the Act prevented the District from adopting 
the District's AIM coatings rule, and now prevent EPA from validly 
approving it as a revision to the District's SIP.
    Response: EPA disagrees with this comment. Section 184(c)(1) of the 
Act states that ``the [OTC] may, after notice and opportunity for 
public comment, develop recommendations for additional control measures 
to be applied within all or a part of such transport region if the 
commission determines such measures are necessary to bring any area in 
such region into attainment by the dates provided by this subpart.'' It 
is important to note that the OTC model AIM coatings rule was not 
developed pursuant to section 184(c)(1), which provision is only 
triggered ``[u]pon petition of any state within a transport region 
established for ozone* * *.'' No such petition preceded the development 
of the model AIM coatings rule. Nor, for that matter, was development 
of a rule upon state petition under section 184(e)(1) meant to be the 
exclusive mechanism for development of model rules within the OTC. 
Nothing in section 184 prevents the voluntary development of model 
rules without the prerequisite of a state petition. Section 184 is a 
voluntary process and the OTC may opt for that process or another. This 
provision of the Act was not intended to prevent OTC's development of 
model rules which states may individually choose to adapt and adopt on 
their own, as the District did, basing its AIM coatings rule on the 
model developed within the context of the OTC. In developing its own 
rule from the OTC model, the District was free to adapt that rule as it 
saw fit (or to leave the OTC model rule essentially unchanged), so long 
as its rule remained at least as stringent as the Federal AIM coatings 
rule.
    As previously stated, on March 28, 2001, the OTC member states 
signed a MOU on regional control measures, including the AIM coatings 
model rule. The OTC did not develop recommendations to the 
Administrator for additional control measures. The MOU stated that 
implementing these rules will help attain and maintain the 1-hour 
standard for ozone and were therefore made available to the states for 
use in developing their own regulations.\9\
---------------------------------------------------------------------------

    \9\ The commenter argues that section 184 either does not 
require a formal petition to be triggered, or, alternatively, that 
the MOU between the OTC states qualifies as a ``petition.'' With 
respect to their first argument, section 184(c) says that the OTC 
``may, after notice and opportunity for public comment, develop 
recommendations for additional control measures * * *'' and that the 
recommendations shall be presented to the EPA Administrator. This 
mechanism is triggered ``upon petition of any State with a transport 
region established for ozone, and based on a majority vote of the 
Governors on the Commission (or their designees)* * * .'' 42 U.S.C. 
7511d(c)(1) (emphasis added). The clear and unambiguous language of 
the Act requires a petition and a vote. We reasonably interpret 
section 184(c), in light of the obligation to conduct a vote, to 
require the petition to be a manifestation of an express intent to 
invoke the section 184(c) process. Further, any petition would need 
to be sufficient in its clarity to put members on notice of their 
obligation to hold a vote and fulfill the other provisions of the 
section 184 process. We do not believe that a document which in 
hindsight might be construed as an inadvertent opt-in to the 
voluntary section 184 process could be the petition affirmatively 
intended by the Act.
    Even though the OTC did not develop the model AIM coatings rule 
pursuant to section 184(c)(1) of the Act, nevertheless it provided 
ample opportunity for OTC member and stakeholder comment by holding 
several public meetings concerning the model rules including the AIM 
coatings model rule. The sign-in sheets or agenda for four meetings 
held in 2000 and 2001 at which the OTC AIM coatings model was 
discussed (some of which reflect the attendance of a representative 
of the EPA and/or the commenter), have been placed in the 
administrative record for this final rulemaking.
    With respect to the argument that the MOU is in hindsight a 
``petition'' triggering the section 184 rule development process, 
nothing in the record indicates that the OTC treated this MOU as a 
petition to initiate the section 184 process. This is not surprising 
because the MOU's plain language recites that the model rules had 
already been developed that by the time the MOU was signed 
(``WHEREAS * * * OTC developed final model rules for the following 
source categories* * * .''). Under section 184(c) the petition 
initiates the voluntary section 184 rule development process. 42 
U.S.C. 7511d(c)(1). The MOU, however, came near the end of the OTC's 
model rule development process. This is a strong indication that the 
OTC did not intend the AIM coatings rule, or the other rules recited 
in the MOU, to be subject to the section 184 process. By its failure 
to express an intention to trigger the section 184 rule development 
mechanism, we reject the argument that the MOU constitutes a section 
184(c) petition. The MOU neither expressly nor inadvertently opted-
in the OTC states to the section 184 process.
---------------------------------------------------------------------------

    G. Comment: The District of Columbia's AIM Coatings Rule Violates 
the Commerce Clause and the Equal Protection of the U.S. Constitution--
The commenter's title heading of this comment states that the 
District's AIM coatings rule violates the Equal Protection Clause of 
the U.S. Constitution, but the text that follows that title heading 
provides no arguments or assertions to support this claim. In both the 
title heading and the text that follows, the commenter claims that the 
District's AIM coatings rule also violates the Commerce Clause of 
Article I, section 8, of the U.S. Constitution,

[[Page 24965]]

because it allegedly imposes an unreasonable burden on interstate 
commerce. The commenter asserts that because the District's AIM 
coatings rule contains VOC limits and other provisions that differ from 
the Federal AIM coatings rule in 40 CFR 59.400, the rule imposes 
unreasonable restrictions and burdens on the flow of coatings in 
interstate commerce. The commenter further claims that the burdens of 
the District's AIM coatings rule are excessive and outweigh the 
benefits of the rule.
    Response: As indicated previously, the commenter provides no 
arguments or assertions as to the claim made in the title heading of 
this comment that the District's AIM coatings rule violates the Equal 
Protection Clause of the U.S. Constitution (see pages 13-14 of the 
letter dated January 26, 2005 from the Counsel for the Sherwin-Williams 
Company to Makeba Morris, Chief, Air Quality Planning Branch, U.S. EPA 
Region III, regarding EPA's Proposal to Approve SIP Revision Submitted 
by the State of Maryland Concerning Architectural and Industrial 
Maintenance (AIM) Coatings). Moreover, the text of the comment 
following the title heading does not reference or even make mention of 
the Equal Protection Clause. Lastly, in no other comment submitted by 
SWC on EPA's December 27, 2004 (69 FR 77149) proposed approval of the 
District's AIM coatings rule is there any mention or reference to the 
Equal Protection Clause of the U.S. Constitution. EPA does not believe 
that any provision of the District's AIM rule violates the Equal 
Protection Clause of the U.S. Constitution.
    Regarding the comment that the District's AIM coatings rule 
violates the Commerce Clause of the U.S. Constitution, EPA agrees with 
this comment only to the extent that it acknowledges that AIM coatings 
are products in interstate commerce and that state regulations on 
coatings therefore have the potential to violate the Commerce Clause. 
EPA understands the commenter's practical concerns caused by differing 
state regulations, but disagrees with the commenter's view that the 
District AIM coatings rule impermissibly impinges on interstate 
commerce. A state law may violate the Commerce Clause in two ways: (i) 
By explicitly discriminating between interstate and intrastate 
commerce; or (ii) even in the absence of overt discrimination, by 
imposing an incidental burden on interstate commerce that is markedly 
greater than that on intrastate commerce. The District's AIM coatings 
rule does not explicitly discriminate against interstate commerce 
because it applies evenhandedly to all coatings manufactured or sold 
for use within the state. At most, therefore, the District's AIM 
coatings rule could have an incidental impact on interstate commerce. 
In the case of incidental impacts, the Supreme Court has applied a 
balancing test to evaluate the relative impacts of a state law on 
interstate and intrastate commerce. See, Pike v. Bruce Church, Inc., 
397 U.S. 137 (1970). Courts have struck down even nondiscriminatory 
state statutes when the burden on interstate commerce is ``clearly 
excessive in relation to the putative local benefits.'' Id. at 142.
    At the outset, EPA notes that it is unquestionable that the 
District has a substantial and legitimate interest in obtaining VOC 
emissions for the purpose of attaining the ozone NAAQS. The adverse 
health consequences of exposure to ozone are well known and well 
established and need not be repeated here. See, e.g., National Ambient 
Air Quality Standards for Ozone: Final Response to Remand, 68 FR 614, 
620-25 (January 6, 2003). Thus, the objective of the District in 
adopting their AIM coatings rule is to protect the public health of the 
citizens of the District. The courts have recognized a presumption of 
validity where the state statute affects matters of public health and 
safety. See, e.g., Kassel v. Consolidated Freightways Corp. of 
Delaware, 450 U.S. 662, 671 (1980). Moreover, even where the state 
statute in question is intended to achieve more general environmental 
goals, courts have upheld such statutes notwithstanding incidental 
impacts on out of state manufacturers of a product. See, e.g, Minnesota 
v. Clover Leaf Creamery, et al., 449 U.S. 456 (1981) (upholding state 
law that banned sales of milk in plastic containers to conserve energy 
and ease solid waste problems).
    The commenter asserts, without reference to any facts, that the 
District's AIM coatings rule imposes burdens and has impacts on 
consumers that are ``clearly excessive in relation to the purported 
benefits * * *.'' By contrast, EPA believes that any burdens and 
impacts occasioned by the District's AIM coatings rule are not so 
overwhelming as to trump the District's interest in the protection of 
public health. First, the District's AIM coatings rule does not 
restrict the transportation of coatings in commerce itself, only the 
sale of nonconforming coatings within the state's own boundaries. The 
District's rule excludes coatings sold or manufactured for use outside 
the state or for shipment to others (section 751.1). The District's AIM 
coatings rule cannot be construed to interfere with the transportation 
of coatings through the state en route to other states. As such, EPA 
believes that the cases concerning impacts on the interstate modes of 
transportation themselves are inapposite. See, e.g., Bibb v. Navajo 
Freight Lines, 359 U.S. 520 (1938).
    Second, the District's AIM coatings rule is not constructed in such 
as way that it has the practical effect of requiring extraterritorial 
compliance with the District's VOC limits. The District's AIM coatings 
rule only governs coatings manufactured or sold for use within the 
state's boundaries. The manufacturers of coatings in interstate 
commerce are not compelled to take any particular action, and they 
retain a range of options to comply with the rule, including, but not 
limited to: (1) Ceasing sales of nonconforming products in the 
District; (2) reformulating nonconforming products for sale in the 
District and passing the extra costs on to consumers in that state; (3) 
reformulating nonconforming products for sale more broadly; (4) 
developing new lines of conforming products; or (5) entering into 
production, sales or marketing agreements with companies that do 
manufacture conforming products. Because manufacturers or sellers of 
coatings in other states are not forced to meet the District's 
regulatory requirements elsewhere, the rule does not impose the type of 
obligatory extraterritorial compliance that the courts have considered 
unreasonable. See, e.g., NEMA v. Sorrell, 272 F.3d 104 (2d Cir. 2000) 
(state label requirement for light bulbs containing mercury sold in 
that state not an impermissible restriction). It may be that the 
District's AIM coatings rule will have the effect of reducing the 
availability of coatings or increasing the cost of coatings within the 
District, but courts typically view it as the prerogative of the state 
to make regulatory decisions with such impacts upon its own citizens. 
NPCA v. City of Chicago, 45 F.3d 1124 (7th Cir. 1994), cert. denied, 
515 U.S. 1143 (1995) (local restriction on sales of paints used by 
graffiti artists may not be the most effective means to meet objective, 
but that is up to the local government to decide).
    Third, the burdens of the District's AIM coatings rule typically do 
not appear to fall more heavily on interstate commerce than upon 
intrastate commerce. The effect on manufacturers and retailers will 
fall on all manufacturers and retailers regardless of location if they 
intend their products for sale within the District, and does not

[[Page 24966]]

appear to have the effect of unfairly benefitting in-state 
manufacturers and retailers. The mere fact that there is a burden on 
some companies in other states does not alone establish impermissible 
interference with interstate commerce. See, Exxon Corp. v. Maryland, 
437 U.S. 117, 126 (1978).
    In addition, EPA notes that courts do not typically find violations 
of the Commerce Clause in situations where states have enacted state 
laws with the authorization of Congress. See, e.g., Oxygenated Fuels 
Assoc., Inc. v. Davis, 63 F. Supp. 1182 (E.D. Cal. 2001) (state ban on 
MTBE authorized by Congress); NEMA v. Sorell, 272 F.3d 104 (2d Cir. 
2000) (RCRA's authorization of more stringent state regulations confers 
a ``sturdy buffer'' against Commerce Clause challenges). Section 183(e) 
of the Act governs the Federal regulation of VOCs from consumer and 
commercial products, such as coatings covered by the District's AIM 
coatings rule. EPA has issued a Federal regulation that provides 
national standards, including VOC content limits, for such coatings. 
See 40 CFR 59.400 et seq. Congress did not, however, intend section 
183(e) to pre-empt additional state regulation of coatings, as is 
evident in section183(e)(9) which indicates explicitly that states may 
regulate such products. EPA's regulations promulgated pursuant to the 
Act recognized that states might issue their own regulations, so long 
as they meet or exceed the requirements of the Federal regulations. 
See, e.g., the National Volatile Organic Compound Emission Standards 
for Architectural Coatings, 40 CFR 59.410, and the Federal Register 
which published the standards, 63 FR 48848, 48857 (September 11, 1998). 
Thus, EPA believes that Congress has clearly provided that a state may 
regulate coatings more stringently than other states.
    In section 116 of the Act, Congress has also explicitly reserved to 
states and their political subdivisions the right to adopt local rules 
and regulations to impose emissions limits or otherwise abate air 
pollution, unless there is a specific Federal preemption of that 
authority. When Congress intended to create such Federal preemption, it 
does so through explicit provisions. See, e.g., Section 209(a) of the 
Act, which pertains to state or local emissions standards for motor 
vehicles; and section 211 of the Act which pertains to fuel standards. 
Moreover, the very structure of the Act is based upon ``cooperative 
federalism,'' which contemplates that each state will develop its own 
state implementation plan, and that states retain a large degree of 
flexibility in choosing which sources to control and to what degree in 
order to attain the NAAQS by the applicable attainment date. Union 
Electric Co. v. EPA, 427 U.S. 246 (1976). Given the structure of the 
Act, the mere fact that one state might choose to regulate sources 
differently than another state is not, in and of itself, contrary to 
the Commerce Clause.
    Finally, EPA understands that there may be a practical concern that 
a plethora of state regulations could create a checkerboard of 
differing requirements would not be the best approach to regulating 
VOCs from AIM coatings or other consumer products. Greater uniformity 
of standards does have beneficial effects in terms of more cost 
effective and efficient regulations. As EPA noted in its own AIM 
coatings rule, national uniformity in regulations is also an important 
goal because it will facilitate more effective regulation and 
enforcement, and minimize the opportunities for undermining the 
intended VOC emission reductions. 63 FR 48856-48857. However, EPA also 
recognizes that the District and other states with longstanding ozone 
nonattainment problems have local needs for VOC reductions that may 
necessitate more stringent coatings regulations. Under section 116 of 
the Act, states have the authority to do so, and significantly, many 
states in the Northeast have joined together to prepare and promulgate 
regulations more restrictive than the Federal AIM coatings rule to 
apply uniformly across that region. This regional collaboration 
provides regional uniformity of standards. The District may have 
additional burdens to insure compliance with its rule, but for purposes 
of this action, EPA presumes that the District takes appropriate 
actions to enforce it as necessary. The EPA has no grounds for 
disapproval of the SIP revision based upon the Commerce Clause comment.
    H. Comment: The Emission Limits and Compliance Schedule in the 
District of Columbia AIM Coatings Rule Are Neither Necessary nor 
Appropriate To Meet Applicable Requirements of the Clean Air Act--The 
commenter claims that the District AIM coatings rule is not ``necessary 
or appropriate'' for inclusion in the District SIP, because EPA did not 
direct the District to achieve VOC reductions through the AIM coatings 
rule, but left it to the District to decide how such reduction can be 
achieved. The commenter further claims that the District AIM coatings 
rule is not necessary or appropriate for inclusion in the District SIP 
because of the numerous alleged procedural and substantive failings on 
the part of the District in promulgating the rule.
    Response: EPA disagrees with this comment. If fulfillment of the 
``necessary or appropriate'' condition of section 110(a)(2)(A) required 
EPA to first determine that a measure was necessary or appropriate and 
require a state to adopt that measure, this condition would present a 
``catch 22'' situation. EPA does not generally have the authority to 
require the state to enact and include in its SIP any particular 
control measure, even a ``necessary'' one.\10\ However, under section 
110(a)(2)(a) a control measure must be either ``necessary or 
appropriate'' (emphasis added); the use of the disjunctive ``or'' does 
not provide that a state must find that only a certain control measure 
and no other measure will achieve the required reduction. Rather, a 
state may adopt and propose for inclusion in its SIP any measure that 
meets the other requirements for approvability so long as that measure 
is at least as appropriate, though not exclusive, means of achieving 
emissions reduction. See also, Union Elec. Co. v. EPA, 427 U.S. 246, 
264-266 (1976) (holding that ``necessary'' measures are those that meet 
the `minimum conditions' of the Act, and that a state ``may select 
whatever mix of control devices it desires,'' even ones more stringent 
than Federal standard, to achieve compliance with a NAAQS, and that 
``the Administrator must approve such plans if they meet the minimum 
requirements'' of section 110(a)(2) of the Act). Clearly, in light of 
the Act and the case law, EPA's failure to specify the state adoption 
of a specific control measure cannot dictate whether a measure is 
necessary or appropriate.
---------------------------------------------------------------------------

    \10\ As noted in Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 
1997), EPA does have the authority within the mechanism created by 
section 184 of the Act to order states to adopt control measures 
recommended by the OTC, if EPA agrees with and approves that 
recommendation. 108 F.3d, n.3 at 1402. As we have previously stated, 
the OTC model AIM coatings rule was not developed pursuant to the 
section 184 mechanism; EPA therefore has no authority to order that 
the District or any other state adopt this measure in order to 
reduce VOC emissions.
---------------------------------------------------------------------------

    In this particular instance, the District needs reductions to 
satisfy the requirements for rate-of-progress (ROP) and attainment 
plans (including contingency measures) for the reclassified 
Metropolitan Washington DC severe 1-hour ozone nonattainment area. It 
is the District's prerogative to develop whatever rule or set of rules 
it deems necessary or appropriate such that the rule or rules will 
collectively achieve the additional emission reductions needed to 
satisfy the ROP

[[Page 24967]]

and attainment plan requirements for its 1-hour ozone severe 
nonattainment area. Because commenters might find it more necessary or 
appropriate to obtain the needed VOC emission reductions elsewhere is 
not a basis for EPA to disapprove the rule implementing the District's 
determination of the best approach to obtain the needed reductions.
    The District's April 16, 2004 SIP revision submittal (supplemented 
on September 20 and November 24, 2004) provides evidence and 
certification that it has the legal authority to adopt its AIM coatings 
rule and that it has followed all of the requirements in the District's 
law and constitution that are related to adoption of a SIP revision. As 
noted in BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2004):

[T]he CAA only requires that the states provide ``necessary 
assurances that the State * * * will have adequate * * * authority 
under State (and as appropriate, local) law to carry out such 
implementation plan (and it is not prohibited by any provision of * 
* * State law from carrying out such implementation plan or portion 
thereof).'' 42 U.S.C. 7410(a)(2)(E)(i). There is no statutory 
requirement that the EPA review SIP submissions to ensure compliance 
with state law * * * . Such a requirement would be extremely 
burdensome and negate the rationale for having the state provide the 
assurances in the first instance. The EPA is entitled to rely on a 
state's certification unless it is clear that the SIP violates state 
law, and proof thereof, such as a state court decision, is presented 
to EPA during the SIP approval process. 355 F.3d 817, n.11 at 830.

    The commenter has offered no proof, such as a court decision, that 
the District's AIM coatings rule clearly violates local law. EPA 
therefore is relying on the District's certification that it had the 
legal authority to adopt its AIM coatings rule and that it has followed 
all of the requirements in the District's law that are related to 
adoption of this SIP revision.
    I. Comment: EPA's Action To Approve or Disapprove the District's 
AIM Coatings Rule Is a ``Significant Regulatory Action'' as Defined by 
Executive Order 12866, 58 FR 51735 (September 30, 1993).
    Response: EPA disagrees with this comment. 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. The commenter alleges 
that EPA's approval of the District's AIM coatings rule is a 
``significant regulatory action'' because it meets several of the 
following criteria specified in Executive Order 12866: ``[it will have] 
an annual effect on the economy of $100 million or more or [it will] 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or communities 
* * *'' However, this action merely approves existing state law as 
meeting Federal requirements. EPA's approval of this SIP revision 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, this action meets none of the criteria listed above. Any 
cost or any material adverse effects on the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or communities 
exist, if at all, due to the District's approval of its state AIM 
coatings rule, not by EPA's approval of that rule into the District's 
SIP. If EPA failed to act on the District's AIM coatings rule, the 
effects of the rule would not be changed because this rule went effect 
in the District on January 1, 2005. Nothing that EPA might do at this 
point in time alters that fact.
    Furthermore, the District voluntarily adopted its version of the 
OTC model AIM coatings rule and, as the commenter itself acknowledges, 
EPA could not impose this control measure on the District. Virginia v. 
EPA, 108 F.3d 1397 (D.C. Cir. 1997). EPA's approval of this state rule 
merely fulfills its statutory obligation under the Act to review SIP 
submissions and approve state choices, provided that they meet the 
criteria of the Act.
    J. Comment: The District of Columbia Has Not Analyzed the Cost-
Effectiveness of Any Reasonably Available Alternatives to the Proposed 
Rule--The commenter states that the District has an obligation to 
perform a thorough evaluation of the cost-effectiveness of the District 
AIM coatings rule, including a comparison with the cost-effectiveness 
of reasonably available alternatives. The rule, and related rulemaking 
materials, do not analyze the cost-effectiveness of any reasonably 
available alternatives to the proposed rule. The commenter claims that 
this omission demonstrates the arbitrary and capricious nature of the 
rule, and clearly is a direct violation of the laws of the District of 
Columbia.
    Response: EPA disagrees with this comment. The cost per ton figure 
determined by the District in its economic analysis, and its decision 
to rely upon information from California, are all decisions which fall 
within a state's purview, and issues regarding those decisions are 
rightly raised by interested parties to the state during its regulatory 
adoption The District's April 16, 2004 SIP revision submittal 
(supplemented on September 20 and November 24, 2004) provides evidence 
and certification that it that it has the legal authority to adopt its 
AIM coatings rule and that it has followed all of the requirements in 
the District's law that are related to adoption of a SIP revision. (See 
EPA's response to Comment II. H.). See BCCA Appeal Group v. EPA, 355 
F.3d 817 n.11 at 830 (EPA may rely on the state's certification that it 
has complied with applicable state requirements for promulgating a rule 
submitted as a revision to its SIP).
    K. Comment: Additional Comments Submitted to the OTC and 
Commonwealth of Virginia Included, by Reference, in the Comments 
Submitted to EPA on the December 27, 2004 Proposed Approval of 
District's AIM Coatings Rule (69 FR 77149)--As previously noted the SWC 
has included, by reference, in its comments to EPA on the proposed 
approval of the District's AIM rule the comments it submitted to the 
OTC in a letter dated January 11, 2001 (and its attachments). The SWC 
has also included, by reference, the comments it submitted to the 
District during its adoption process. Most of theses comments have 
already been summarized and responded to previously in Comments A-K as 
the SWC also submitted them directly to EPA on its proposed rulemaking. 
The following summarizes the remaining comments submitted to the 
District during its rule adoption process:
    (1) The commenter has significant concerns with the proposed 
standards for certain paints and coatings, e.g., interior wood clear 
and semi-transparent stains, interior wood vanishes, interior wood 
sanding sealers, exterior wood primers, and floor coatings. The 
commenter asserts that the District's proposed AIM coatings regulation 
is based upon the inaccurate assumption that compliant coatings are 
available or can be developed which will satisfy customer requirements 
and meet all of the performance requirements of these categories. The 
commenter contends that such coatings are not effectively within the 
limits of current technology and that this inaccurate assumption will 
result in increased and earlier repainting which can damage floors in 
the District due to seasonal variations in temperature and humidity.
    (2) The commenter asserts that the economic analysis of the 
District's proposed AIM coatings rule is inaccurate because it uses a 
cost figure of $6400 per ton of emissions reduced based upon an 
economic analysis done for California. The commenter contends that the 
cost figure is inappropriate

[[Page 24968]]

given the differences in the stringency of the current requirements for 
AIM coatings in the District versus California, and therefore, the 
District needs to make an independent determination of the cost of VOC 
reductions from its proposed AIM coatings regulation.
    (3) The commenter is concerned that the California Air Resources 
Board (CARB) suggested control measure (SCM) has been adopted in only 
25 of the 35 air districts in California since it was first issued in 
June 1977. In 22 of the districts that have adopted the SCM, there are 
significant modifications and revisions, typically in the VOC limits 
for one or more AIM coating categories. Such modifications and 
revisions are necessary in those categories where there are no known 
substitute products, where it is shown that no substitute is necessary, 
since the increase in VOC emissions is marginal.
    (4) The commenter is concerned that the proposed rule does not 
allow averaging of VOC content for various coatings produced by a 
manufacturer, which the CARB SCM allows.
    (5) The commenter is concerned that there are no suitable 
substitutes for all the applications for these 5 categories of 
products, e.g., interior wood clear and semi-transparent stains, 
interior wood vanishes, interior wood sanding sealers, exterior wood 
primers, and floor coatings. No water-based substitute meets 
performance standard for many applications, and their use can cause 
grain raising, lapping and a panelization problem, and that the 
District has not addressed these issues.
    (6) The commenter suggests that there should be numerous exemptions 
that should be included in the District's rule, such as low-temperature 
products manufactured by the commenter intended for use in colder 
weather when ozone is not an issue. If more consumers use coatings in 
non-summer months, some of the summer ozone problems will disappear. 
Low temperature products should be encouraged with incentives, not 
regulated out of the market.
    (7) The commenter is concerned that the CARB report contains 
numerous flaws which prevent it from being a valid basis for the 
proposed AIM rule.
    (8) The commenter was not aware of the Districts prior hearing 
regarding the proposed rule and requests a hearing for an opportunity 
to present live testimony regarding the proposed rule, prior to the 
District taking any action on the proposal.
    Response: With regard to the comments submitted to the OTC, and to 
the District on its proposed AIM coatings rule and subsequently, by 
reference, to EPA on its December 27, 2004 proposed approval of the 
District's April 16, 2004 SIP revision request (supplemented on 
September 20 and November 24, 2004), it is important to understand 
EPA's role with regard to review and approval or disapproval of rules 
submitted by states as SIP revisions. EPA can only take action upon the 
final adopted version of a state's regulation as submitted by that 
state in its SIP revision request. It is not within EPA's authority, by 
its rulemaking on the SIP revision or otherwise, to change or modify 
the text or substantive requirements of a state regulation. Therefore, 
EPA cannot modify the District's AIM coatings regulation to address the 
commenter's concerns.
    The District's reliance upon both technical and cost analyses from 
California in its decisions with regard to the provisions in its final 
AIM coatings rule, its decisions to not include provisions for 
averaging, and its decisions to not provide exemptions are all 
decisions which fall within a state's purview, and issues regarding 
those decisions are rightfully raised by interested parties to the 
state during its regulatory adoption process. Therefore, it was 
appropriate that the SWC commented to the District on these matters 
during the adoption of its AIM coatings rule. A complete SIP revision 
submission from a state includes a compilation of timely comments 
properly submitted to the state on the proposed SIP revision and the 
state's response thereto (40 CFR part 51, appendix V, 2.1 (h)). EPA has 
reviewed the District's SIP revision submittal and has determined that 
comments the SWC submitted to the District (which the SWC has 
incorporated by reference as comments on this rulemaking), along with 
the District's responses to those comments, are included therein.
    With regard to the SWC's comment that it was not aware of the 
public hearing held by the District regarding the proposed rule and its 
request for an additional hearing to present live testimony regarding 
the District's proposed AIM rule, EPA notes that in addition to the 
public hearing held on July 9, 2003 to which the SWC's comment refers 
(notice of which was published in the Washington Times), the District 
held a second public hearing on its AIM coatings rule on November 15, 
2004 (notice of which was also published in the Washington Times). The 
SWC did not attend this second public hearing. EPA's review of the 
District's April 16, 2004 SIP revision request (supplemented on 
September 20 and November 24, 2004) indicates that the District 
satisfied the requirements of section 110(a) of the CAA with regard to 
providing public notice and public hearings on its AIM coatings rule 
SIP revision.
    The District's April 16, 2004 SIP revision submittal (supplemented 
on September 20 and November 24, 2004) provides evidence and 
certification that it that it has the legal authority to adopt its AIM 
coatings rule and that it has followed all of the requirements in the 
District's law that are related to adoption of this SIP revision. (See 
EPA's response to Comment II. H.). In the context of a SIP approval, 
EPA's review of these state decisions is limited to whether the SIP 
revision meets the minimum criteria of the Act. Provided that the rule 
adopted by the state satisfies those criteria, EPA must approve such a 
SIP revision. See, Union Elec Co. v. EPA, BCCA Appeal Group v. EPA, 355 
F.3d 817, n.11 at 830.

III. Final Action

    EPA is approving the District's SIP revision for the control of VOC 
emissions from AIM coatings rule submitted on April 16, 2004, and 
supplemented on September 20 and November 24, 2004. The District's AIM 
coatings rule is part of the District's strategy to satisfy the CAA's 
requirements for a severe ozone nonattainment area and to achieve and 
maintain the ozone standard in the Metropolitan Washington, DC ozone 
nonattainment area.

IV. Statutory and Executive Order Reviews

A. General 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 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

[[Page 24969]]

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.).

B. Submission to Congress and the Comptroller General

    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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    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 July 11, 2005. 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, pertaining to the District of Columbia's AIM coatings 
rule, 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, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: May 2, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 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 J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (c) is amended by adding the 
following entries to ``District of Columbia Municipal Regulations 
(DCMR), Title 20--Environment, Chapter 7--Volatile Organic Compounds':
0
a. Adding entries for section 749 through Section 754.
0
b. Adding a new entry for section 799 after the existing entries for 
section 799.
    The added entries read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved District of Columbia Regulations
----------------------------------------------------------------------------------------------------------------
                                                              State                               Additional
        State citation               Title/subject       effective date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
                    District of Columbia Municipal Regulations (DCMR), Title 20--Environment
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                      Chapter 7 Volatile Organic Compounds
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
Section 749..................  Architectural and               04/16/04  5/21/05 [Insert
                                Industrial Maintenance         11/26/04   page number where
                                Coating--General                          the document
                                Requirements.                             begins].
Section 750..................  Architectural and               04/16/04  5/21/05 [Insert      ..................
                                Industrial Maintenance         11/26/04   page number where
                                Coating-- Standards.                      the document
                                                                          begins].
Section 751..................  Architectural and               04/16/04  5/21/05 [Insert      ..................
                                Industrial Maintenance         11/26/04   page number where
                                Coating--Exemptions.                      the document
                                                                          begins].
Section 752..................  Architectural and               04/16/04  5/21/05 [Insert      ..................
                                Industrial Maintenance         11/26/04   page number where
                                Coating--Labeling                         the document
                                Requirement.                              begins].

[[Page 24970]]

 
Section 753..................  Architectural and               04/16/04  5/21/05 [Insert
                                Industrial Maintenance         11/26/04   page number where
                                Coating--Reporting                        the document
                                Requirements.                             begins].
Section 754..................  Architectural and               04/16/04  5/21/05 [Insert      ..................
                                Industrial Maintenance         11/26/04   page number where
                                Coating--Testing                          the document
                                Requirements.                             begins].
 
                                                  * * * * * * *
Section 799..................  Definitions.............        04/16/04  5/21/05[Insert page  ..................
                                                               11/26/04   number where the
                                                                          document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 05-9312 Filed 5-11-05; 8:45 am]
BILLING CODE 6560-50-P