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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0189; FRL-6466-4]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, Bay Area Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is finalizing limited approval and limited disapproval of

a revision to the California State Implementation Plan (SIP) proposed

in the Federal Register on March 17, 1999. This final action will

incorporate this rule into the federally approved SIP. The intended

effect of finalizing this action 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 adhesive and sealant products. Thus, EPA is

finalizing a simultaneous limited approval and limited disapproval

under CAA provisions regarding EPA action on SIP submittals and general

rulemaking authority because this revision, while strengthening the

SIP, also does not fully meet the CAA provisions regarding plan

submissions and requirements for nonattainment areas. As a result of

this limited disapproval EPA will be required to impose highway funding

or emission offset sanctions under the CAA unless the State submits and

EPA approves corrections to the identified deficiencies within 18

months of the effective date of this disapproval. Moreover, EPA will be

required to promulgate a Federal implementation plan (FIP) unless the

deficiencies are corrected within 24 months of the effective date of

this disapproval.

EFFECTIVE DATE: This action is effective on December 6, 1999.

ADDRESSES: Copies of the rule revisions and EPA's evaluation report 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,

SW., Washington, DC 20460

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814

Bay Area Air Quality Management District, 939 Ellis Street, San

Francisco, CA 94109

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.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being approved into the California SIP is Bay Area Air

Quality Management District, BAAQMD, Rule 8-51, Adhesive and Sealant

Products. This rule was submitted by the California Air Resources

Board, CARB, to EPA on June 23, 1998.

II. Background

On March 17, 1998 in 64 FR 13143, EPA proposed granting limited

approval and limited disapproval of BAAQMD Rule 8-51, Adhesive and

Sealant Products into the California SIP. Rule 8-51 was adopted by the

BAAQMD on January 7, 1998. This rule was submitted by the CARB to EPA

on June 23, 1998. This rule was submitted in response to EPA's 1988 SIP

Call and the CAA section 182(a)(2)(A) requirement that nonattainment

areas fix their reasonably available control technology (RACT) rules

for ozone in accordance with EPA guidance that interpreted the

requirements of the pre-amendment Act. A detailed discussion of the

background for this rule and nonattainment area is provided in the

proposed rule (PR) cited above.

EPA has evaluated the rule for consistency with the requirements of

the CAA and EPA regulations and EPA's interpretation of these

requirements as expressed in the various EPA policy guidance documents

referenced in the PR. EPA is finalizing the limited approval of this

rule in order to strengthen the SIP and finalizing the limited

disapproval requiring the correction of the remaining deficiencies. The

rule contains inadequate recordkeeping, director's discretion, and

unsubstantiated deviations from RACT level controls. A detailed

discussion of the rule provisions and evaluation have been provided in

the PR and in the February 1999 technical support document (TSD)

available at EPA's Region IX office.

III. Response to Public Comments

A 30-day public comment period was provided in 64 FR 13143. EPA

received one comment letter on the PR from the BAAQMD. The comments

have been evaluated by EPA and a summary of the comments and EPA's

responses are set forth below.

Comment: The BAAQMD commented that no clear guidance on

recordkeeping intervals exists for rules like Rule 8-51 which specify

product VOC limits. The BAAQMD argues that, although section 113(b) of

the CAA establishes a daily penalty limit of $25,000 and might serve as

a rationale for a daily recordkeeping requirement, no regulatory

language compels daily recordkeeping. BAAQMD asserts that monthly

recordkeeping as required by Section 501 is sufficient. Furthermore,

BAAQMD emphasized that daily recordkeeping is burdensome for small

businesses and does not enhance enforceability.

Response: Rule 8-51 was evaluated against the CAA and the documents

cited in the TSD. The EPA's recordkeeping policies have been further

interpreted and clarified in other EPA rulemakings and communications,

including a June 19, 1996 guidance document on recordkeeping which was

distributed to all air districts in Region IX including the BAAQMD

(Rule Development Recordkeeping Policy, under June 27, 1996 cover

letter from Daniel Meer). The June 19, 1996

[[Page 60110]]

guidance document states that ``if a source uses only compliant

materials, recordkeeping on a less frequent basis than daily may be

acceptable.'' Records kept on a less frequent basis than daily are not

acceptable when noncompliant materials are used. Daily records are the

rule and monthly records are the exception to that rule. Requiring

daily records does not impose any additional burden; rather, allowing

monthly records provides relief for sources that use only compliant

materials. On a practical level, we expect most sources will take

advantage of this relief because compliant materials are widely

available. EPA's recordkeeping requirements may allow flexibility for

sources that operate in compliance with prohibitory rules, however,

rules that allow additional flexibility must sufficiently deter sources

that operate in a deliberately noncompliant manner by designating

significant monetary penalties. EPA maintains that daily records are

necessary for enforcement purposes whenever noncompliant materials are

used.

Comment: BAAQMD contends that section 501.4 which allows for

alternate recordkeeping plans was previously approved into the SIP in a

similar rule. BAAQMD believed that it had addressed all approvability

issues concerning this provision. The District indicated that rule

revisions consume valuable time and limited resources and are less

justifiable when little or no emissions reductions will result.

Response: Each EPA action on State submitted SIP revisions clearly

notes that nothing in that particular action should be construed as

permitting or allowing or establishing a precedent for any future

request for revision to any SIP. Each request for revision to the SIP

is considered independently in light of specific technical, economic,

and environmental factors. Therefore, approval of certain language in

one rule does not justify or necessitate the approval of similar

language in another rule. Section 501.4 currently fails to indicate

what constitutes an acceptable reporting period and allows the

Executive Officer to approve changes to the reporting period without

submitting a SIP revision. This violates the requirement in section 110

of the CAA that SIPs must be enforceable. Minimally, section 501.4

should require monthly records for sources using only compliant

coatings and daily records for sources using any noncompliant coatings.

Furthermore, any violation of rule standards should constitute a

violation for each day of the reporting period. Modification of this

provision will not impose an undue burden on the District since other

areas of the rule already need to be modified as discussed in this

rulemaking.

Comment: BAAQMD acknowledges that several VOC content limits

contained in Rule 8-51 exceed the limits contained in the State of

California's guidance document and attribute this to the fluidity of

that document. BAAQMD contends that all deviations from the state's

guidance were substantiated in an equivalency determination using the

best available data. BAAQMD asserts that a source-by-source accounting

of emissions is impossible since Rule 8-51 regulates thousands of

sources in many industrial categories. BAAQMD indicates that they will

revise Rule 8-51 to be consistent with the state's guidance document

for deviations (a) and (d) through (i) as identified in the TSD. With

regard to deviation (b), BAAQMD states that the 540 g/L limit complies

with the state's guidance document and that a 250 g/L limit represents

best available retrofit control technology (BARCT) which is more

stringent than federal RACT. To justify deviation (c), BAAQMD provided

additional information to indicate that the 100 g/L limit for

retreading large tires is technologically infeasible because

chlorinated solvents are regulated in BAAQMD as hazardous air

pollutants. Other districts comply with the 100 g/L limit by allowing

the use of certain chlorinated solvents. Furthermore, BAAQMD commented

that the costs to abate emissions from large tire retreading were

economically infeasible. BAAQMD asserted that the 480 g/L limit

identified in the TSD as deviation (j) was included in the rule to

accommodate a product that functions to both bond and seal polyvinyl

chloride (PVC). BAAQMD asserts that the product should be allowed to

meet the 480 g/L limit, instead of the 420

g/L limit which applies to other sealants, in order to account for the

product's ability to bond PVC. The manufacturer had two customers in

1997, both outside the BAAQMD, and sold their product in containers

with a capacity less than 16 ounces. BAAQMD states that it will adopt a

small container exemption allowed by the state's guidance document

during the next revision to Rule 8-51 to address deviation (j).

Response: EPA appreciates the difficulty of regulating and

characterizing the emissions from this varied source category. BAAQMD

committed to remedying deviations (a) and (d) through (i) and should

proceed with those rule corrections in a timely manner to avoid the

sanctions described above. With regard to deviation (b), EPA agrees

with BAAQMD that the 250 g/L limit is BARCT and is not required to meet

federal RACT requirements. The additional information provided in

relation to deviation (c) adequately justifies this exemption for

retreading large tires. BAAQMD should also correct the deficiency

identified as deviation (j) as promised possibly by adopting a small

container exemption. However, EPA questions the need to revise the rule

to accommodate a product that BAAQMD indicates is not sold in the

District.

III. EPA Action

EPA is finalizing a limited approval and a limited disapproval of

the above-referenced rule. The limited approval of this rule is being

finalized under section 110(k)(3) in light of EPA's authority pursuant

to section 301(a) to adopt regulations necessary to further air quality

by strengthening the SIP. The approval is limited in the sense that the

rule strengthens the SIP. However, the rule does not meet the section

182(a)(2)(A) CAA requirement because of the rule deficiencies which are

discussed above. Thus, in order to strengthen the SIP, EPA is granting

limited approval of this rule under sections 110(k)(3) and 301(a) of

the CAA. This action approves the rule into the SIP as a federally

enforceable rule.

At the same time, EPA is finalizing the limited disapproval of this

rule because it contains deficiencies that have not been corrected as

required by section 182(a)(2)(A) of the CAA, and, as such, the rule

does not fully meet the requirements of Part D of the Act. As stated in

the PR, upon the effective date of this final rule, the 18 month clock

for sanctions and the 24 month FIP clock will begin. Sections 179(a)

and 110(c). If the State does not submit the required corrections and

EPA does not approve the submittal within 18 months of the effective

date of the final rule, either the highway sanction or the offset

sanction will be imposed at the 18 month mark. It should be noted that

the rule covered by this final rulemaking has been adopted by the

BAAQMD and is currently in effect in the BAAQMD. EPA's limited

disapproval action will not prevent the BAAQMD or EPA from enforcing

this rule.

IV. 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.

[[Page 60111]]

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

CAA, preparation of flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The CAA

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 the private sector, of $100 million or more. Under section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action 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 CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 3, 2000. 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

[[Page 60112]]

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 compound.

Dated: October 20, 1999.

Laura Yoshii,

Deputy 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 paragraph (c)(256)(i)(A)(2)

to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(256) * * *

(i) * * *

(A) * * *

(2) Rule 8-51, adopted on November 18, 1992 and amended on January

7, 1998.

* * * * *

[FR Doc. 99-28723 Filed 11-3-99; 8:45 am]

BILLING CODE 6560-50-P