[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Rules and Regulations]
[Pages 70888-70890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29459]



[[Page 70888]]

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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0537; FRL-9489-2]


Revisions to the California State Implementation Plan, South 
Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of revisions to the South Coast Air 
Quality Management District (SCAQMD) portion of the California State 
Implementation Plan (SIP). These revisions were proposed in the Federal 
Register on July 15, 2011 and concern volatile organic compound (VOC) 
emissions from paint thinners and multi-purpose solvents and from 
metalworking fluids and direct-contact lubricants. We are approving 
local rules that regulate these emission sources under the Clean Air 
Act as amended in 1990 (CAA or the Act).

DATES: Effective Date: This rule is effective on December 16, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0537 for 
this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While 
all documents in the docket are listed at http://www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps, multi-volume 
reports), and some may not be available in either location (e.g., 
confidential business information (CBI)). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Adrianne Borgia EPA Region IX, (415) 
972-3576, [email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On July 15, 2011 (76 FR 41744), EPA proposed to approve the 
following rules into the California SIP.

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               Local agency                 Rule No.             Rule title               Amended     Submitted
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SCAQMD...................................       1143  Consumer Paint and Multi-purpose     12/03/10     04/05/11
                                                       Solvents.
SCAQMD...................................       1144  Metalworking Fluids and Direct-      07/09/10     04/05/11
                                                       Contact Lubricants.
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    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. On July 15, 
2011 (76 FR 41717), EPA also published a direct final approval of these 
rules. Because we received timely public comments, we withdrew this 
direct final approval on September 1, 2011 (76 FR 54384).

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. Michael S. Colley, W.M. Barr & Company; letter dated August 15, 
2011 and received August 15, 2011 (W.M. Barr).
    2. Pete Founger, WD-40 Company; letter dated August 12, 2011 and 
received August 12, 2011 (WD-40).
    The comments and our responses are summarized below.
    Comment #1: W.M. Barr states that rule 1143 effectively requires 
reformulation to acetone-based products which are extremely flammable, 
creating unnecessary fire risks for consumers and potential liability 
for manufacturers.
    Response #1: The District analyzed this issue during local 
development of this rule, and determined that,

    Rule 1143 includes rule requirements designed to alert the 
consumer that new formulations may be more flammable than their 
conventional solvent counterpart. Further, the rule 1143 labeling 
requirement is identical to the labeling language recommended in 
CARB's consumer products regulation, which was supported as an 
acceptable remedy to address the safety concerns initially expressed 
by fire authorities. Rule 1143 also includes additional language 
that goes beyond CARB's requirements and commits the SCAQMD to 
continue conducting ongoing public education and outreach activities 
in conjunction with the local fire departments to alert the public 
of the dangers of reformulated solvents with flammable or extremely 
flammable chemicals. SCAQMD staff met with local fire departments 
and related fire agencies and developed educational brochures and 
public service announcements to further alert the public of a 
potential change in formulations of paint thinners and multi-purpose 
solvents. This outreach effort was designed to further alert the 
public about the need to review labels for products that may contain 
flammable or extremely flammable solvents. Based upon these 
considerations, the existing rule was found to have less than 
significant fire hazard impacts in the June 2010 Final EA for PAR 
1143.\1\

    \1\ Initial Study for Proposed Amended Rule 1143, SCAQMD, August 
2010, pages 2-19 to 2-20 (Initial Study).
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    We also note that this issue has already been resolved in court. 
Specifically, the Superior Court of California, County of Los Angeles 
denied the petition for writ of mandate by the commenter, which 
contended that SCAQMD's Supplemental Environmental Assessment (SEA) did 
not comply with CEQA, was inconsistent with the court's prior decision, 
and was preempted by State and Federal Law. The court also subsequently 
found that there was substantial evidence in the record to support 
SCAQMD's conclusion of no significant fire hazard.\2\ EPA has reviewed 
the SCAQMD's analysis and the court decision, and does not find basis 
in the comment to disapprove rule 1143 for this issue. See also 
response to comment 6.
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    \2\ Superior Court of California, County of Los Angeles Ruling 
on Submitted Matter March 29, 2011 Writ of Mandamus, May 16, 2011, 
page 2 (Superior Court ruling, May 16, 2011).
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    Comment #2: W.M. Barr states that they will not distribute certain 
acetone-based products in SCAQMD to avoid the increased fire hazard 
caused by rule 1143 as discussed in comment 1. W.M. Barr claims this 
will result in the loss of several million dollars in annual sales to 
their company and possible inadequate supplies of consumer paint 
thinners and multi-purpose solvents in SCAQMD.
    Response #2: As discussed in response to comment 1, we concur with 
SCAQMD and court determinations that the rule does not create a 
significant new fire hazard. The District further provided a detailed 
Final

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Socioeconomic Assessment \3\ for rule 1143 showing that cost-effective 
controls are available. W.M. Barr has provided no new information to 
undermine this analysis, but merely stated that they will choose not to 
provide certain products subject to the rule. Since controls are cost-
effective, we assume other companies will provide them, and we cannot 
disapprove the rule merely to protect the commenter's market share. 
Lastly, we note that, ``(m)any of the solvent technologies certified 
under the District's Clean Air Solvent (CAS) program have utility as 
consumer paint thinners and multi-purpose solvents. The most common and 
effective cleaners that meet this criteria are water-based or aqueous 
cleaners that contain little or no VOCs.'' \4\ Additionally, based on 
2008 data, the District concluded that 92.7% of all architectural 
coatings sold were of waterborne chemistry, while coatings that 
required thinning with solvents accounted for only 0.28% of the total 
inventory.\5\ District data shows that the trend continues to favor 
waterborne coatings as the 2010 data indicates that 93.2% of the 
coatings sold were of waterborne chemistry.\6\ Therefore, the need for 
commercial high-VOC solvents and thinners is relatively small and 
continues to decrease.
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    \3\ Final Socioeconomic Assessment for Proposed Rule 1143--
Consumer Paint Thinners and Multi-purpose Solvents, SCAQMD, February 
2009, pages 3 and 10 (Socioeconomic Assessment).
    \4\ SCAQMD Final Staff Report of Rule 1143--Consumer Paint 
Thinners and Multi-Purpose Solvents, March 6 2010 (Staff Report, 
March 6 2010), page 4.
    \5\ SCAQMD Final Staff Report for Proposed Rule 1143--Consumer 
Paint Thinners and Multi-Purpose Solvents, July 2010 (Staff Report, 
July 2010), page 27.
    \6\ 2008 Annual quantity and emissions reports submitted by the 
Architectural Coatings Manufacturers pursuant to SCAQMD rule 314, 
Fees for Architectural Coatings, amended May 16, 2011 (2008 
Architectural Coating sales data).
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    Comment #3: W.M. Barr comments that EPA should conduct further 
independent evaluation of whether rule 1143 constitutes reasonably 
available control technology (RACT).
    Response #3: CAA Section 182(b)(2) requires RACT for all major VOC 
sources. However, States are not limited, in the CAA, to implementing 
RACT and may, particularly for extreme Ozone nonattainment areas like 
South Coast, need more stringent requirements to fulfill attainment and 
other requirements of CAA Sections 110 and part D. Rule 1143 is 
intended to exceed RACT requirements because the rule largely applies 
to consumer product distributors and users who fall below the major 
source threshold and therefore do not require RACT. In addition, EPA 
approved South Coast's demonstration of RACT in 2007,\7\ which did not 
rely on rule 1143 controls. See also response to comments 4 and 5.
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    \7\ 40 CFR 52.220(c)(358).
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    Comment #4: W.M. Barr states that rule 1143 is not RACT because it: 
(a) Does not exempt low vapor pressure VOCs as does CARB; and (b) 
phases in the 25 grams/liter VOC standard more quickly and without the 
qualifications that are allowed by CARB.
    Response #4: The District has concluded ``that ample technology and 
over 150 compliant products are available,'' \8\ so a low vapor 
pressure exemption and slower phase-in of the 25 grams/liter limit are 
not needed. Nonetheless, even if we agreed with the comment that the 
lack of low vapor pressure exemption and the accelerated phase-in of 
the 25 g/l standard are not reasonably available, nothing in section 
182(b)(2) or elsewhere in the CAA prohibits States from incorporating 
into the SIP provisions more stringent than RACT. See also response to 
comments 3 and 5.
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    \8\ Staff Report, March 6 2010, page 29.
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    Comment #5: W.M. Barr comments that technology is only ``reasonably 
available'' where it would expedite attainment, which is not 
necessarily the case for rule 1143.
    Response #5: Here and elsewhere, the commenter confuses CAA RACT 
requirements as a control ceiling instead of a floor. For purposes of 
CAA Section 172(c)(1), for example, EPA may only require States to 
include Reasonably Available Control Measures (RACM) that will 
accelerate attainment. However, nothing in section 172(c)(1) or 
elsewhere in the Act prohibits States from incorporating more stringent 
requirements in SIPs. We also note that, based on the Draft 
Supplemental Environmental Assessment, \9\ consumer products with VOC 
limits meeting rule 1143 are available. In addition, we note that the 
District believes the amended rule will result in a total reduction of 
9.75 tons/day by January 1, 2012, which contributes towards the 
District's progress to attainment.\10\ See also response to comments 3 
and 4.
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    \9\ June 2010 Final Supplemental Environmental Assessment for 
Proposed Amended Rule 1143--Consumer Paint Thinners and Multi-
Purpose Solvents, page 9 (Final SEA June 2010).
    \10\ December 2010 Staff Report for PAR 1143, SCAQMD, page 1 
(December 2010 Staff Report).
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    Comment #6: W.M. Barr does not believe that CARB's submittal to EPA 
of rule 1143 fulfilled the CAA requirement for State authority to adopt 
and implement the rule. W.M. Barr has filed legal action challenging 
rule 1143 and, until this action is resolved, it is unclear whether 
California has authority to adopt and implement this rule.
    Response #6: A summary of W.M Barr's legal action against SCAQMD 
regarding rule 1143 is outlined in the July 2010 Final Staff Report for 
Proposed Amended rule 1143.\11\ On April 1, 2009, W.M. Barr filed a 
challenge to rule 1143, alleging violations of California Environmental 
Quality Act (CEQA) and of the District's certified regulatory program 
codified in rule 110. On April 1, 2010, SCAQMD's motion to dismiss was 
granted in part, but the judgment and writ required SCAQMD to vacate 
the final VOC limits of 25 g/l and prepare a CEQA document to address 
the potential fire hazard issue.\12\ On March 29, 2011, SCAQMD 
submitted documentation for the remedial actions and on May 16 2011, 
the court ruled in favor of the District noting:
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    \11\ December 2010 Staff Report, page 1.
    \12\ Superior Court of California for the County of Los Angeles 
Transcript of Proceedings of Case BS 119869, pages 4-7 (April 2010 
Court ruling).

    The SEA described the conventional solvents used in paint 
thinners and multi-purpose solvents and likely replacement solvents. 
The SEA also described the relative flammability of each product * * 
* The OSFM and Chief Bunting provided detailed comments * * * 
Experts agreed that the consumer warning programs established by 
CARB and SCAQMD will avoid any potentially significant fire hazards. 
There is now substantial evidence in record to support SCAQMD 
conclusion of no significant fire hazard.\13\
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    \13\ April 2010 Court ruling, page 2.

The comment has not described any additional legal challenge to justify 
EPA delaying SIP action on SIP submittal of this rule.
    Comment #7: WD-40 states that rule 1144 is ambiguous and 
unenforceable because it is not clear whether the rule applies to 
direct-contact lubricants used on all substrates or only metal.
    Response #7: We agree that the rule could be clearer in this 
regard. However, the plain reading of both the rule title and the 
applicability section suggest that the rule is focused only on metal 
substrates. SCAQMD staff support material and response to this comment 
similarly clarify SCAQMD's intent to regulate only metal 
substrates.\14\ We expect that this clarification somewhat addresses 
any compliance concerns for the commenter. While we recommend that 
SCAQMD further clarify this rule in the future, this minor ambiguity 
does

[[Page 70890]]

not justify less than full SIP approval of the rule at this time.
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    \14\ Email from Michael Morris (SCAQMD) to Adrianne Borgia (EPA) 
regarding, ``Comment Letter from WD-40,'' August 25, 2011.
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    Comment #8: WD-40 commented that the SIP emission credits 
associated with this rule are based on outdated data and are 
significantly low if the rule covers more than just metal working 
facilities.
    Response #8: The rule specifically states that it covers all VOC 
containing fluids used for metalworking and for metal protection. The 
exact amount of emission credit associated with this rule is not 
relevant to the action on whether to approve the rule into the 
federally-enforceable SIP.
    Comment #9: WD-40 further stated that rule 1144 does not meet RACT 
because it: (a) does not exempt small containers; and (b) does not 
allow low vapor pressure VOCs as do other EPA and CARB regulations.
    Response #9: States are not limited to implementing RACT and may, 
particularly for extreme Ozone nonattainment areas like South Coast, 
need more stringent requirements to fulfill attainment and other 
requirements of CAA Sections 110 and part D. See also response to 
comments 3, 4 and 5.

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 the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    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 action 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. 
804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Volatile organic compounds].

    Dated: October 21, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

    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 paragraphs (c)(388)(i)(A) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (388) New and amended regulations for the following APCD were 
submitted on April 5, 2011 by the Governor's Designee.
    (i) Incorporation by reference.
    (A) South Coast Air Quality Management District--SCAQMD)
    (1) Rule 1143, ``Consumer Paint Thinners & Multi-purpose 
Solvents,'' adopted on March 6, 2009 and amended December 3, 2010.
    (2) Rule 1144, ``Metal Working Fluids and Direct-Contact 
Lubricants,'' adopted on March 6, 2009, and amended July 9, 2010.
* * * * *
[FR Doc. 2011-29459 Filed 11-15-11; 8:45 am]
BILLING CODE 6560-50-P