Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, South Coast Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 187-150; FRL-6358-3]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, South Coast Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the approval of a revision to the California

State Implementation Plan (SIP) proposed in the Federal Register on

June 18, 1998. The revision concerns a rule from the South Coast Air

Quality Management District (SCAQMD). This approval action will

incorporate this rule into the federally approved SIP. The intended

effect of approving this rule is to regulate emissions of volatile

organic compounds (VOCs) in accordance with the requirements of the

Clean Air Act, as amended in 1990 (CAA or the Act). The revised rule

controls VOC emissions from architectural coatings. Thus, EPA is

finalizing the approval of this revision into the California SIP under

provisions of the CAA regarding EPA action on SIP submittals, SIPs for

national primary and secondary ambient air quality standards and plan

requirements for nonattainment areas.

EFFECTIVE DATE: This action is effective on July 21, 1999.

ADDRESSES: Copies of the rule revision and EPA's evaluation report for

this rule are available for public inspection at EPA's Region IX office

during normal business hours. Copies of the submitted rule revisions

are available for inspection at the following locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

S.W., Washington, D.C. 20460

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812

South Coast Air Quality Management District, 21865 E. Copley Drive,

Diamond Bar, CA 91765-4182

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, (AIR-

4), Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1199

[[Page 33019]]

SUPPLEMENTARY INFORMATION:

I. Applicability

This Federal Register action for the SCAQMD excludes the Los

Angeles County portion of the Southeast Desert Air Quality Management

District, otherwise known as the Antelope Valley Region in Los Angeles

County, which is now under the jurisdiction of the Antelope Valley Air

Pollution Control District as of July 1, 1997. The rule being approved

into the California SIP is SCAQMD, Rule 1113, Architectural Coatings.

This rule was submitted by the California Air Resources Board (CARB) to

EPA on November 26, 1996.

II. Background

On June 18, 1998, in 63 FR 33312, EPA proposed to approve SCAQMD

Rule 1113, Architectural Coatings into the California SIP. Rule 1113

was adopted by SCAQMD on November 8, 1996, and was submitted by the

CARB to EPA on November 26, 1996. This rule was submitted in response

to EPA's 1988 SIP-Call and the CAA section 110(a)(2)(A) requirement

that plans which are submitted to the EPA in order to achieve the

National Ambient Air Quality Standards (NAAQS) contain enforceable

emission limitations. A detailed discussion of the background for this

rule and nonattainment area is provided in the proposed rulemaking

cited above.

EPA has evaluated the above rule for consistency with the

requirements of the CAA and EPA regulations and EPA interpretation of

these requirements as expressed in the various EPA policy guidance

documents referenced in the proposed rulemaking cited above. EPA has

found that the rule meets the applicable EPA requirements. The rule is

enforceable and strengthens the applicable SIP. However, as noted in

the proposed rulemaking cited above, it does not fulfill the SCAQMD's

SIP-approved commitment in CTS-07 to reduce VOCs from architectural

coatings by 75%. A detailed discussion of the rule provisions and

evaluation has been provided in 63 FR 33312 and in a technical support

document (TSD) dated May 1, 1998 available at EPA's Region IX office.

III. Response to Public Comments

EPA provided for a 30-day public comment period in 63 FR 33312. EPA

received two comments on the proposed rulemaking prior to the closing

of the comment period on July 20, 1998. We received comments from the

main trade association representing the paint industry, and from an

attorney representing a major paint manufacturer.

Comments: The trade association representing some 500 paint and

coatings manufacturers, raw materials suppliers and distributors,

submitted comments stating that while it supports EPA's national

architectural coatings rule, it does not support VOC content limits for

two categories of coatings contained in submitted Rule 1113. The

association asserted that the VOC limits for lacquers and flats are not

technologically or economically feasible and noted that it was involved

in litigation over this issue. This commenter suggested that EPA must

not approve the revisions to Rule 1113 because of the alleged

technological and economical infeasibility.

The attorney representing a major paint manufacturer submitted

similar comments. This commenter indicated that his client contested

the VOC limit for flats and a small manufacturers exemption in

submitted Rule 1113. Citing Sierra Club v. Indiana-Kentucky Electric

Corp., 716 F.2d 1145 (7th Cir. 1983), the commenter argued that EPA

approval of the revised Rule 1113 prior to resolution of the litigation

could result in confusion if the Court invalidated the revisions to

Rule 1113. This commenter explicitly requested that EPA postpone

approval of at least portions of submitted Rule 1113 until resolution

of the litigation.

Response: Both commenters asserted that SCAQMD Rule 1113 as revised

is technologically and economically infeasible. For this reason, each

commenter requested that EPA either reconsider or delay approval of all

or portions of Rule 1113. Under CAA section 110(a)(2), EPA may not

consider the economic or technological feasibility of the provisions of

the SCAQMD Rule in approval of the SIP revision. Union Electric Co. v.

EPA, 427 U.S. 246, 265-66 (1976). As noted by the Supreme Court, it is

the province of State and local authorities to determine whether or not

to impose more stringent limits that may require technology forcing.

EPA must assess the SIP revision on the basis of the factors set forth

in CAA section 110(a)(2) which do not provide for the disapproval of a

rule in a SIP based upon economic or technological infeasibility.

Both commenters also argued that the pendency of litigation by them

against the SCAQMD Rule should preclude EPA approval of the revisions

to Rule 1113. To the extent that such litigation concerned the economic

and technological feasibility of the Rule, such litigation is not

relevant to EPA's SIP approval for the reasons discussed above. One

commenter further stated, however, that SCAQMD may have violated state

procedural law in the adoption of Rule 1113, thereby implying that EPA

should disapprove or delay approval of the SIP revision because SCAQMD

might not have authority under State or local law to carry out the SIP

as required by CAA section 110(a)(2)(E)(i).

EPA believes that it is inappropriate to disapprove or delay

approval of a SIP revision merely on the basis of pending State court

challenges to SCAQMD's regulation. To do so would allow parties to

impede SIP development merely by initiating litigation. Alternatively,

were EPA required to assess the validity of a litigant's State law

claims in the SIP approval process, EPA would have to act like a State

court, in effect weighing the competing claims of a State and a

litigant. Therefore, EPA does not interpret CAA section 110(a)(2) to

require the Agency to make such judgments in the SIP approval process,

especially where the validity of those challenges turns upon issues of

State procedural law. The Agency may, however, consider disapproval of

a SIP revision because of pending challenges where it deems appropriate

because of the facts and circumstances of the underlying challenge, as

in the case of allegations of violation of Federal law administered by

the Agency. Moreover, EPA believes that the structure of the CAA

provides appropriate mechanisms for litigants to pursue their claims

and appropriate remedies in the event that they are ultimately

successful, as discussed in the case cited by a commenter. See, Sierra

Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 (7th Cir.

1983) (State court invalidation of a SIP provision resulted in an

unenforceable SIP provision which the State had to reenact or which EPA

may use as the basis for a SIP call).

In any case, EPA notes that the State trial court has now ruled

against those parties who challenged Rule 1113, including the

commenters. See, Sherwin-Williams Co. et al. v. SCAQMD, [Superior Court

of Cal., County of Los Angeles, No. BC162162, Order dated Feb. 3,

1999]. The outcome of that litigation confirms EPA's conclusion that

SCAQMD has provided the necessary assurances contemplated in CAA

section 110(a)(2). EPA acknowledges that the ruling of the trial court

against the litigants may not be the final disposition of their claims,

but the Agency believes in this instance that until a court rules

against SCAQMD on the commenters' State law claims, the Agency cannot

disapprove the SIP revision on the basis of those claims.

[[Page 33020]]

For the reasons discussed above, if the litigants appeal the order of

the trial court, the mere pendency of an appeal by the commenters

likewise does not provide a basis for the Agency to delay or disapprove

the SIP revision.

Finally, one commenter also suggested that EPA should disapprove

the revision of Rule 1113 because its VOC content limits differed from

those of EPA's proposed national rule for architectural coatings under

CAA section 183(e). 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, e.g., 63 FR 48,848, 48,857

(Sept. 11, 1998). Section 59.410 of the final architectural coatings

regulations explicitly provides that States and their political

subdivisions retain authority to adopt and enforce their own additional

regulations affecting these products. See, 63 FR 48,848, 48,884 (Sept.

11, 1998). Accordingly, SCAQMD 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 SIP. See,

Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976). EPA favors

national uniformity in consumer and commercial product regulation, but

recognizes that some localities may need more stringent regulation to

combat more serious and more intransigent ozone nonattainment problems.

IV. EPA Action

EPA is finalizing action to approve the above rule for inclusion

into the California SIP. EPA is approving the submittal under section

110(k)(3) as meeting the requirements of section 110(a) and Part D of

the CAA and in light of EPA's authority pursuant to section 301(a) to

adopt regulations necessary to further air quality by strengthening the

SIP. This approval action will incorporate this rule into the federally

approved SIP. The intended effect of approving this rule is to regulate

emissions of VOCs in accordance with the requirements of the CAA.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA

may not issue a regulation that is not required by statute and that

creates a mandate upon a State, local or tribal government, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by those governments, or EPA consults with

those governments. If EPA complies by consulting, E.O. 12875 requires

EPA to provide to the OMB a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on State, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency. This rule is not subject to E.O. 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under E.O. 13084, Consultation and Coordination with Indian Tribal

Governments, EPA may not issue a regulation that is not required by

statute, that significantly or uniquely affects the communities of

Indian tribal governments, and that imposes substantial direct

compliance costs on those communities, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of EPA's prior consultation

with representatives of affected tribal governments, a summary of the

nature of their concerns, and a statement supporting the need to issue

the regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action.

[[Page 33021]]

The Clean Air Act forbids EPA to base its actions concerning SIPs on

such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66

(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. 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).

H. 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 August 20, 1999. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Note: Incorporation by reference of the State Implementation

Plan for the State of California was approved by the Director of the

Federal Register on July 1, 1982.

Dated: May 28, 1999.

David P. Howekamp,

Acting Regional Administrator, Region IX.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart F--California

2. Section 52.220 is amended by adding paragraphs (c)(242)

introductory text, (c)(242)(i) introductory text, and (c)(242)(i)(B) to

read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(242) New and amended regulations for the following APCDs were

submitted on November 26, 1996, by the Governor's designee.

(i) Incorporation by reference.

* * * * *

(B) South Coast Air Quality Management District.

(1) Rule 1113, adopted on September 2, 1977 and amended on November

8, 1996.

* * * * *

[FR Doc. 99-15167 Filed 6-18-99; 8:45 am]

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