Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: June 21, 1999 (Volume 64, Number 118)]

[Rules and Regulations]

[Page 33018-33021]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr21jn99-11]

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.

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:

1. 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.

2. 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.

3. 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.

4. 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.

5. Administrative Requirements

   1. 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.

   2. 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.

   3. 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.

   4. 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.

   5. 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).

   6. 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.

   7. 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).

   8. Petitions for Judicial Review

      Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin 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. 99-15167Filed6-18-99; 8:45 am]

         BILLING CODE 6560-50-P