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 211-0140; FRL-6310-2]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, Bay Area Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing a limited approval and limited disapproval of

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

concerns the control of volatile organic compound (VOC) emissions from

adhesive and sealant products.

The intended effect of proposing a limited approval and limited

disapproval of this rule is to regulate emissions of VOCs in accordance

with the requirements of the Clean Air Act, as amended in 1990 (CAA or

the Act). EPA's final action on this proposed rule will incorporate

this rule into the federally approved SIP. EPA has evaluated the rule

and is proposing a simultaneous limited approval and limited

disapproval under provisions of the CAA regarding EPA action on SIP

submittals and general rulemaking authority because this revision,

while strengthening the SIP, does not fully meet the CAA provisions

regarding plan submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before April 16, 1999.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office

[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105-3901.

Copies of the rule and EPA's evaluation report of the rule are

available for public inspection at EPA's Region IX office during normal

business hours. Copies of the submitted rule are also available for

inspection at the following locations:

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

Francisco, CA 94109.

California Air Resources Board, Stationary Source Division, Rule

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

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 94105-3901, Telephone: (415) 744-

1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for approval 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 to EPA on June 23, 1998.

II. Background

On March 3, 1978, EPA promulgated a list of ozone nonattainment

areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-

amended Act), that included the San Francisco Bay Area. 43 FR 8964. The

San Francisco Bay Area did not attain the ozone standard by the

approved attainment date. On May 26, 1988, EPA notified the Governor of

California, pursuant to section 110(a)(2)(H) of the pre-amended Act,

that the Bay Area Air Quality Management District's portion of the SIP

was inadequate to attain and maintain the ozone standard and requested

that deficiencies in the existing SIP be corrected (EPA's SIP-Call). On

November 15, 1990, amendments to the 1977 CAA were enacted. Pub. L.

101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended

section 182(a)(2)(A) of the CAA, Congress statutorily adopted the

requirement that nonattainment areas fix their deficient reasonably

available control technology (RACT) rules for ozone and established a

deadline of May 15, 1991 for states to submit corrections of those

deficiencies.

Section 182(a)(2)(A) applies to areas designated as nonattainment

prior to enactment of the amendments and classified as marginal or

above as of the date of enactment. It requires such areas to adopt and

correct RACT rules pursuant to pre-amended section 172(b) as

interpreted in pre-amendment guidance.1 EPA's SIP-Call used

that guidance to indicate the necessary corrections for specific

nonattainment areas. The San Francisco Bay Area is designated as

nonattainment without

[[Page 13144]]

further classification; 2 therefore, this area is subject to

the RACT fix-up requirement and the May 15, 1991 deadline.

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

\1\ Among other things, the pre-amendment guidance consists of

those portions of the proposed Post-1987 ozone and carbon monoxide

policy that concern RACT, 52 FR 45044 (November 24, 1987) and the

document ``Issues Relating to VOC Regulation Cutpoints,

Deficiencies, and Deviations, Clarification to Appendix D of

November 24, 1987 Federal Register Notice'' (Blue Book) (notice of

availability was published in the Federal Register on May 25, 1988).

\2\ The San Francisco Bay Area, originally designated as an

ozone nonattainment area on March 3, 1978, retained its designation

and was classified by operation of law pursuant to sections 107(d)

and 181(a) upon the date of enactment of the CAA. See 56 FR 56694

(November 6, 1991). On May 22, 1995 EPA approved BAAQMD's request

for redesignation and the San Francisco Bay Area was reclassified as

an attainment area. See 60 FR 27028. Based on a number of violations

of the National Ambient Air Quality Standards, EPA redesignated the

San Francisco Bay Area back to nonattainment for ozone on July 10,

1998 without assigning it a specific classification of marginal,

moderate, serious, severe, or extreme. See 63 FR 37258.

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

The State of California submitted many revised RACT rules for

incorporation into its SIP on June 23, 1998, including the rule being

acted on in this document. This document addresses EPA's proposed

action for BAAQMD Rule 8-51, Adhesives and Sealant Products. The BAAQMD

adopted this rule on January 7, 1998. This submitted rule was found to

be complete on August 25, 1998, pursuant to EPA's completeness criteria

that are set forth in 40 CFR Part 51, Appendix V; 3 and is

being proposed for limited approval and limited disapproval.

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

\3\ EPA adopted completeness criteria on February 16, 1990 (55

FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, revised

the criteria on August 26, 1991 (56 FR 42216).

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

BAAQMD Rule 8-51 limits the volatile organic compound (VOC)

emissions resulting from the application of adhesive and sealant

products. VOCs contribute to the production of ground level ozone and

smog. Rule 8-51 is a new rule which has been adopted to meet the EPA's

SIP-Call and the section 182(a)(2)(A) CAA requirement. The following is

EPA's evaluation and proposed action for BAAQMD Rule 8-51.

III. EPA Evaluation and Proposed Action

In determining the approvability of a VOC rule, EPA must evaluate

the rule for consistency with the requirements of the CAA and EPA

regulations, as found in section 110 and Part D of the CAA and 40 CFR

Part 51 (Requirements for Preparation, Adoption, and Submittal of

Implementation Plans). The EPA interpretation of these requirements,

which forms the basis for today's action, appears in the various EPA

policy guidance documents listed in footnote 1. Among those provisions

is the requirement that a VOC rule must, at a minimum, provide for the

implementation of RACT for stationary sources of VOC emissions. This

requirement was carried forth from the pre-amended Act.

In addition, this rule was evaluated against the SIP enforceability

guidelines found in the EPA Region IX--California Air Resources Board

document entitled ``Guidance Document for Correcting VOC Rule

Deficiencies'' (April, 1991) and against other EPA policies. In

general, these guidance documents have been set forth to ensure that

VOC rules are fully enforceable and strengthen or maintain the SIP.

There is currently no version of BAAQMD Rule 8-51, Adhesive and

Sealant Products in the SIP. The submitted rule includes provisions

which:

Specify VOC content limits for adhesives, aerosol

adhesives, and sealants (Sections 301, 302, 303, and 304);

Allow sources to comply using emission control systems

with an overall abatement efficiency of at least 85 percent (Section

305);

Prohibit the specification and sale of any adhesives,

aerosol adhesives, or sealants that would result in a violation of the

provisions of Rule 8-51 (Section 306 and 307);

Require any person using organic solvents for surface

preparation and clean-up to use closed containers and to minimize

evaporation of organic compounds to the atmosphere (Section 320);

Require facilities within the District that use more than

20 gallons of adhesive and/or sealant products per year to keep monthly

records (Section 501);

Mandate that persons using an emission control system keep

daily records of key system operating parameters and amounts of

adhesive or sealant product used (Section 502); and

Provide test methods for determining the amount of VOC in

adhesives and sealants, aerosol adhesives, and low solids adhesives,

sealant products and primers and for determining control and collection

efficiency (Sections 601 and 602).

Although these provisions will strengthen the SIP, this rule also

contains deficiencies which are required to be corrected pursuant to

the section 182(a)(2)(A) requirement of Part D of the CAA. Rule 8-51

contains the following deficiencies:

The rule does not require users of adhesive and sealant

products to record their daily use of non-compliant coatings;

The rule allows for director's discretion in the approval

of alternate recordkeeping plans; and

The rule contains a number of deviations from RACT level

controls which have not been substantiated by an adequate 5%

equivalency demonstration based on source specific data.

A detailed discussion of rule deficiencies can be found in the

Technical Support Document for Rule 8-51 (February 1999), which is

available from the U.S. EPA, Region IX office. Because of these

deficiencies, the rule is not approvable pursuant to section

182(a)(2)(A) of the CAA because it is not consistent with the

interpretation of section 172 of the 1977 CAA as found in the Blue Book

and may lead to rule enforceability problems.

Because of the above deficiencies, EPA cannot grant full approval

of this rule under section 110(k)(3) and Part D. Also, because the

submitted rule is not composed of separable parts which meet all the

applicable requirements of the CAA, EPA cannot grant partial approval

of the rule under section 110(k)(3). However, EPA may grant a limited

approval of the submitted rule 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 because EPA's action also contains a simultaneous limited

disapproval. In order to strengthen the SIP, EPA is proposing a limited

approval of BAAQMD's submitted Rule 8-51 under sections 110(k)(3) and

301(a) of the CAA.

At the same time, EPA is also proposing a 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. Under

section 179(a)(2), if the Administrator disapproves a submission under

section 110(k) for an area designated nonattainment, based on the

submission's failure to meet one or more of the elements required by

the Act, the Administrator must apply one of the sanctions set forth in

section 179(b) unless the deficiency has been corrected within 18

months of such disapproval. Section 179(b) provides two sanctions

available to the Administrator: highway funding and offsets. The 18

month period referred to in section 179(a) will begin on the effective

date of EPA's final limited disapproval. Moreover, the final

disapproval triggers the Federal implementation plan (FIP) requirement

under section 110(c). It should be noted that the rule covered by this

proposed rulemaking has been adopted by the BAAQMD and is currently in

effect in the BAAQMD. EPA's final limited disapproval action will not

prevent the BAAQMD or EPA from enforcing this rule.

[[Page 13145]]

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.

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.

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 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 a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. 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 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.

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.

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

Dated: March 4, 1999.

Laura Yoshii,

Deputy Regional Administrator, Region IX.

[FR Doc. 99-6506 Filed 3-16-99; 8:45 am]

BILLING CODE 6560-50-P