[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69298-69304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26069]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[OAR-2003-0084; FRL-7840-8]
RIN 2060-AI45
Revision to Definition of Volatile Organic Compounds--Exclusion
of t-Butyl Acetate
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action revises EPA's definition of volatile organic
compounds (VOC) for purposes of Federal regulations related to
attaining the National Ambient Air Quality Standards (NAAQS) for ozone
under title I of the Clean Air Act (CAA). This revision modifies the
definition of VOC to say that t-butyl acetate (also known as tertiary
butyl acetate or informally as TBAC or TBAc) will not be VOC for
purposes of VOC emissions limitations or VOC content requirements, but
will continue to be VOC for purposes of all recordkeeping, emissions
reporting, and inventory requirements which apply to VOC. This revision
is made on the basis that this compound has negligible contribution to
tropospheric ozone formation. As a result, if you are subject to
certain Federal regulations limiting emissions of VOCs, your emissions
of TBAC may not be regulated for some purposes.
DATES: This final rule is effective on December 29, 2004.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR-2003-0084 (legacy docket number A-99-02). All
documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is
not publicly available, i.e., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
in EDOCKET or in hard copy at the Docket, EPA/DC, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal
holidays.
FOR FURTHER INFORMATION CONTACT: William Johnson, Office of Air Quality
Planning and Standards, Air Quality Strategies and Standards Division
(C539-02), Environmental Protection Agency, Research Triangle Park, NC
27711; (919)541-5245; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Does This Rule Fit Into Existing Regulations?
The EPA is revising the definition of VOC to say that TBAC will not
be a VOC for purposes of VOC emissions limitations or VOC content
requirements, but will continue to be a VOC for purposes of all
recordkeeping, emissions reporting, and inventory requirements which
apply to VOC. If you use or produce TBAC and are subject to EPA
regulations limiting the use of VOCs in your product, limiting the VOC
emissions from your facility, or otherwise controlling your use of VOCs
for purposes related to attaining the ozone NAAQS, then you will not
count TBAC as a VOC in determining whether you meet these regulatory
obligations. However, TBAC emissions will still be subject to reporting
requirements that exist for other VOC emissions. This action may also
affect whether TBAC is considered a VOC for State regulatory purposes,
depending on whether the State relies on EPA's definition of VOC. This
decision responds to a petition submitted by the Lyondell Chemical
Company \1\ and is based on information
[[Page 69299]]
included in the petition and other information submitted to the docket
for this rule (OAR-2003-0084). The EPA proposed the VOC exemption of
TBAC on September 30, 1999 (64 FR 52731), and provided a 60-day comment
period.
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\1\ The petition was submitted on January 17, 1997, by ARCO
Chemical Company. Lyondell is the successor to ARCO for this
petition, and EPA will refer to the petitioner as Lyondell
throughout this final rule.
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Tropospheric ozone, commonly known as smog, occurs when VOCs and
nitrogen oxides (NOX) react in the atmosphere. Because of
the harmful health effects of ozone, EPA and State governments limit
the amount of VOCs and NOX that can be released into the
atmosphere. Volatile organic compounds are those compounds of carbon
(excluding carbon monoxide, carbon dioxide, carbonic acid, metallic
carbides or carbonates, and ammonium carbonate) that form ozone through
atmospheric photochemical reactions. Compounds of carbon (also known as
organic compounds) have different levels of reactivity--that is, they
do not react at the same speed or do not contribute to ozone formation
to the same extent. It has been EPA's policy that organic compounds
with a negligible level of reactivity need not be regulated to reduce
ozone. The EPA determines whether a given organic compound has
``negligible'' reactivity by comparing the compound's reactivity to the
reactivity of ethane. The EPA lists these compounds in its regulations
(at 40 CFR 51.100(s)) and excludes them from the definition of VOCs.
The chemicals on this list are often called ``negligibly reactive''
organic compounds.
B. What Evidence Does the Petitioner Present To Support Classifying
TBAC as Negligibly Reactive?
On January 17, 1997, Lyondell submitted a petition to EPA which
requested that EPA add TBAC to the list of compounds that are
designated negligibly reactive in the definition of VOC at 40 CFR
51.100(s). The petitioner subsequently submitted supplemental materials
to EPA in support of its petition. These materials are contained in
docket OAR-2003-0084. The petitioner based the request on a comparison
of the reactivity of TBAC to that of ethane, the latter having already
been listed, since 1977, as negligibly reactive. In the past, EPA has
determined that ethane and compounds with lower reactivity than ethane
are negligibly reactive and therefore exempted them from the definition
of VOC. Reactivity data presented by Lyondell in support of the
petition included both kOH values and incremental reactivity
values. The kOH values are values of the rate constant for
the VOC + OH (hydroxyl radical) reaction. The incremental reactivity
values, which support the petition and reflect TBAC's potential for
producing ozone in the atmosphere, are based on atmospheric
photochemical modeling.
Lyondell's primary case for TBAC being less reactive than ethane is
based on the use of incremental reactivity data set forth in a report
titled ``Investigation of the Atmospheric Ozone Formation Potential of
T-Butyl Acetate'' by W.P.L. Carter, et al. In that study, Carter
compared the incremental ozone formed per-gram of TBAC under urban
atmosphere conditions to that formed, under the same conditions, per-
gram of ethane. The study repeated these comparisons for 39 condition
scenarios, that is, sets of ambient conditions intended to represent 39
urban areas across the United States. Carter concluded that, on
average, TBAC formed 0.4 times as much ozone as an equal mass of ethane
under the conditions assumed in the study.
Comparing the reactivity of TBAC to ethane on a per mole basis, as
opposed to a per gram basis, calculations based on Carter's results
show that a mole of TBAC forms 1.5 times the ozone formed by a mole of
ethane under the conditions assumed in the study. The difference in
reactivity results between the ``per gram'' and ``per mole''
comparisons is due to the fact that a molecule of TBAC is almost four
times heavier than a molecule of ethane. Along with other reasons
stated below, this ``closeness'' to EPA's reactivity exemption line
requires the Agency to retain certain emission reporting requirements
for TBAC.
C. How Does EPA Determine Whether an Organic Compound Is Negligibly
Reactive?
In 1977, EPA published the ``Recommended Policy on Control of
Volatile Organic Compounds'' (42 FR 35314, July 8, 1977) which
established the basic policy that EPA has used regarding organic
chemical photochemical reactivity since that time. In that statement,
EPA identified the following four compounds as being of negligible
photochemical reactivity and said these should be exempt from
regulation under State Implementation Plans: methane; ethane; 1,1,1-
trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-
trifluoroethane (CFC-113). That policy statement provides that as new
information becomes available, EPA may periodically revise the list of
negligibly reactive compounds to add compounds to or delete them from
the list.
The EPA's decision to exempt certain compounds in its 1977 policy
was heavily influenced by experimental smog chamber work done earlier
in the 1970's. In this experimental work, various compounds were
injected into a smog chamber at a molar concentration that is typical
of the total molar concentration of VOCs in Los Angeles ambient air (4
ppmv). As the compound was allowed to react with NOX at
concentrations of 0.2 ppm, the maximum ozone formed in the chamber was
measured. If the compound in the smog chamber did not result in ozone
formation of 0.08 ppm (0.08 ppm was the NAAQS for oxidants at that
time), it was assumed that emissions of the compound would not cause
the oxidant standard to be exceeded. The compound could then be
considered to be negligibly reactive. Ethane was the most reactive
compound tested that did not cause the 0.08 ozone level in the smog
chamber to be met or exceeded. Based on those findings and judgments,
EPA designated ethane as negligibly reactive, and ethane became the
benchmark VOC species separating reactive from negligibly reactive
compounds.
Since 1977, the primary method for comparing the reactivity of a
specific compound to that of ethane has been to compare the
kOH values for ethane and the specific compound of interest.
The kOH value represents the molar rate constant for
reactions between the subject compound (e.g., ethane) and the hydroxyl
radical (i.e., OH). This reaction is very important since it is
the primary pathway by which most organic compounds initially
participate in atmospheric photochemical reaction processes. The EPA
has exempted forty five compounds or classes of compounds based on a
comparison of kOH values since 1977.
In 1994, in response to a petition to exempt volatile methyl
siloxanes, EPA, for the first time, considered a comparison to ethane
based on Incremental Reactivity (IR) metrics (59 FR 50693, October 5,
1994). The use of IR metrics allowed EPA to take into consideration the
ozone forming potential of other reactions of the compound in addition
to the initial reaction with the hydroxyl radical. Volatile methyl
siloxanes proved to be less reactive than ethane on a per mole basis.
In 1995, EPA considered another compound, acetone, using IR metrics.
Because acetone breaks down to form ozone by the process of photolysis
rather than by the normal OH reaction scheme, EPA considered the IR
metrics instead of KOH values, and exempted acetone based on
the fact that acetone was less reactive than ethane on the basis of
grams of ozone formed per grams of VOC emitted (60 FR 31635, June 16,
1995). Prior to 1994, all
[[Page 69300]]
exemptions had been based on KOH values compared on the
basis of a mole of ozone formed per mole of VOC emitted. Since 1995,
EPA has exempted one additional compound, methyl acetate, based on
comparisons of IR metrics. The reactivity of methyl acetate was found
to be comparable to or less than that for ethane under a per mole
basis.
In the proposal for this rule (64 FR 52731), EPA announced two
things: (1) Our intent to grant Lyondell's petition for exemption of
TBAC based on a comparison of IR metrics for TBAC as compared to ethane
in units of grams of ozone formed per gram of VOC emitted, and (2) our
intent to base decisions on future petitions for VOC exemptions only on
an equi-molar comparison of KOH and IR values for the
compound in question to the KOH and IR values for ethane. In
the proposal, EPA indicated that it might grant the TBAC exemption on
the theory that the petitioner had detrimentally relied on earlier EPA
statements and actions concerning the use of a gram-based comparison
rather than a molar comparison of the reactivity of compounds.
D. What Comments Did EPA Receive on the Proposal?
In the proposal for the TBAC exemption, EPA indicated that
interested persons could request that EPA hold a public hearing on the
proposed action (see section 307(d)(5)(ii) of the CAA). There were no
requests for a public hearing.
In the proposal action, EPA provided for a public comment period.
The EPA received 30 comment letters. The comments received were divided
into two general categories: comments concerned with EPA VOC exemption
policy in general and comments focused specifically on the exemption of
TBAC. Several commented on EPA VOC exemption policy, in general, as
well as supporting the TBAC exemption. The comments received are too
numerous to list each one in this final rule. All of the comment
letters have been placed in the docket for this action. A summary of
the comments received and EPA responses are given in a technical
support document, titled ``Responses to Significant Comments on the
Proposed Revision to the Definition of Volatile Organic Compounds--
Exclusion of t-Butyl Acetate (64 FR 52731, September 30, 1999),'' which
is in the docket. In today's final rule, we have summarized what EPA
views as the most significant comments and our responses.
II. Comments Dealing With EPA's VOC Exemption Policy Comment
A number of commenters asserted that the primary purpose of a VOC
exemption policy should be to encourage replacement of current
emissions of highly reactive compounds with emissions of lower reactive
compounds. This would ostensibly result in lower ozone formation and
lower adverse environmental impact. The commenters stated that one way
of doing this would be to exempt more low reactivity compounds. The use
of a ``reactivity per gram'' basis for comparing reactivities for
exemption purposes would be less strict than a ``per mole'' basis, and
would permit more exemptions, and thus more solvent substitution.
Response
The intent of EPA's current VOC exemption policy is to avoid
placing an undue regulatory burden on the use of compounds that do not
significantly contribute to the formation of harmful concentrations of
ozone. Once a compound is exempted, emissions of the compound may
increase significantly due to substitution and new uses of the
compound. Because these potential increases are exempt from control, it
is important that the compounds be negligibly reactive and not simply
marginally less reactive than compounds that they may replace. If by
exempting negligibly reactive compounds EPA encourages the substitution
of negligibly reactive compounds for highly reactive compounds, this is
an added benefit.
EPA is currently evaluating a variety of scientific, legal, and
practical issues associated with the design and implementation of a
policy to encourage further substitution, such as the use of VOC
reactivity scales. To address these issues, EPA is working with the
State of California and the Reactivity Research Working Group, a
government/industry/ academic working group established under NARSTO
(formerly the North American Research Strategy for Tropospheric Ozone)
to identify research priorities related to VOC reactivity. The results
of these efforts will be considered by EPA as part of a multi-year
review of our current VOC policy and addressed through future
rulemakings.
Comment
Many commenters opposed EPA's announcement that reactivity
petitions will be evaluated on a ``reactivity per mole'' basis for
petitions submitted after the TBAC proposal notice date. These
commenters supported the ``per gram'' basis and questioned the use of
the smog chamber experiments that were reported in 1977 as the basis
for the molar comparison with ethane.
Response
The EPA believes that a ``reactivity per mole'' comparison is more
consistent with the smog chamber experiments underlying the 1977
policy, is more consistent with the historical use of kOH
values as a basis of comparison, and is arguably more environmentally
protective than a ``reactivity per mass'' comparison. However, EPA
believes that the issues raised by commenters warrant a more extensive
review of the overall exemption policy and its scientific bases.
Consequently, EPA is not revising its current VOC exemption policy with
this final rule. As noted in the proposal, EPA has commenced a multi-
year review of its policy, which will hopefully be informed by the
research activities being identified by the RRWG mentioned above. The
EPA believes that it would be desirable for this review to be completed
before reaching a decision on how to address future petitions. Parties
submitting petitions for VOC exemptions should expect their petitions
to be reviewed under a new policy.
III. Comments Specific to the TBAC Exemption Proposal Comment
Commenters opposed to the TBAC exemption said that because EPA
intended to change its exemption policy to a ``per mole'' comparison,
EPA should apply that test to this petition and not grandfather it
under the ``per gram'' policy. The petitioner argued that it relied on
past EPA statements regarding the acceptability to EPA of using a per
gram basis in the acetone exemption proposal (59 FR 49877, September
30, 1994) and final rule (60 FR 31633, June 16, 1995) and in the 1995
Report to Congress ``Study of Volatile Organic Compound Emissions from
Consumer and Commercial Products.'' The petitioner argued that in
reliance on these statements it had expended significant resources in
research and planning to develop its petition for the exemption of TBAC
on the per gram basis.
Response
As discussed above, in today's action, EPA is not finalizing a
change to the existing VOC exemption policy. Therefore, our decision to
grant the TBAC petition does not involve grandfathering this pre-
existing petition from the application of a new policy. In
[[Page 69301]]
any event, we do not believe that the petitioner's investment of
significant resources in research and planning would be, in itself, a
sufficient justification for such grandfathering. First, an important
consideration for grandfathering is the statutory interest in applying
the new policy. If we were to adopt a policy today permitting only a
per mole comparison, retaining ethane as the benchmark, we might
conclude that granting the TBAC petition would not further the
statutory interest in reducing ozone, because on a per-mole basis TBAC
is more reactive than ethane. A second consideration for grandfathering
is whether the new policy represents an abrupt departure from well-
established practice. We would not necessarily characterize use of a
per-mole basis in evaluating VOC exemption petitions as such a
departure. Most VOC exemptions to date have been granted using
kOH values, which is consistent with using a per-mole basis.
The remaining considerations for grandfathering relate to the
petitioner's reliance on the old policy and the burden to the
petitioner imposed by the new policy. Although the petitioner stated
that it expended significant resources in reliance on the per-gram
policy, the petitioner competes in a regulated marketplace in which
regulations can be expected to evolve with both scientific
understanding and market conditions. In addition, because the
petitioner claimed that it undertook only preliminary activities, such
as research and planning, it would be difficult to identify concrete
effects of the petitioner's alleged reliance. Furthermore, changes in
EPA's VOC exemption policy would likely affect both the petitioner and
its competitors. As commenters pointed out, EPA previously exempted
acetone despite the argument that another company had developed a low
VOC industrial cleaner as an alternative to acetone in reliance on
acetone's status as a VOC. In summary, if we were to apply a
grandfathering analysis to a VOC exemption petition such as the TBAC
petition, we would consider not only investment of resources in
research and planning, but also the other factors discussed here.
Comment
Some commenters questioned the exemption of TBAC before further
study of the compound's toxicity. According to the commenters: (i) The
health effects data available for TBAC are limited; (ii) no chronic,
developmental, or reproductive toxicity data are available for TBAC;
and (iii) no genetic toxicity or carcinogenicity data are available for
TBAC. Due to the lack of information on TBAC, the commenters contended
that it is not possible to assess the potential for adverse effects
from prolonged exposure. However, the commenters point to evidence that
TBAC metabolizes to t-butyl alcohol, for which some animal testing data
suggests that it may be carcinogenic. This information was emphasized
in a letter to EPA from the California Environmental Protection Agency
(signed by Air Resources Board, Office of Environmental Health Hazard
Assessment,and State Water Resources Control Board). Other commenters
urged EPA to deny the exclusion of TBAC from the VOC definition because
of concerns about toxicity.
Since the close of the comment period, the California Air Resources
Board, in conjuction with California's Office of Environmental Health
Hazard Assessment, has completed a draft assessment of a VOC exemption
for TBAC. The assessment quantifies (1) the potential benefits
associated with decreased ozone formation as a result of TBAC
substituting for more reactive compounds, and (2) the potential cancer
risks associated with increased exposure to TBAC. A copy of this draft
assessment is included in the docket.
As part of their original submission, Lyondell had provided EPA
with information on the acute toxicity of TBAC. As input into
California's assessment, Lyondell submitted to EPA and California a
variety of additional information about chronic toxicity. Copies of
this information, as well as a copy of Lyondell's critique of
California's assessment, are included in the docket.
Response
The EPA has carefully reviewed the limited data that is available
on the chronic toxicity of TBAC, including California's risk
assessment, and has reviewed the data available about the potential
health benefits due to reduced ozone exposure from the use of TBAC as a
substitute for more reactive substances. The EPA has concluded that (1)
there is insufficient evidence of a significant toxic risk to justify
not granting the exemption petition, and (2) granting the exemption
will provide a net improvement in public health and environmental
quality. However, given the potential for increased use of TBAC, EPA
does believe that further toxicity testing is warranted to resolve the
uncertainty associated with the limited evidence that is currently
available.
In response to these concerns, Lyondell has agreed to work with EPA
to perform the toxicity testing needed to resolve the current
uncertainty. As part of this effort, Lyondell will conduct a tiered
series of tests designed to confirm and elucidate the mechanisms of
potential toxicity observed in the limited data available. Lyondell
will submit the testing results to an independent scientific peer
consultation panel that will make recommendations to EPA and Lyondell
as to whether further testing is warranted. Based on the information
currently available and experience with similar compounds, EPA believes
that the first tier of testing is likely to be sufficient to resolve
much of the current uncertainty. Until the testing program is completed
and evaluated, Lyondell has agreed to limit their annual production of
TBAC to ensure that significant chronic ambient exposures will not
occur. If the testing program indicates that TBAC does pose a
potentially significant public health risk, EPA will take appropriate
regulatory action to address the risk.
The EPA believes that moving forward with the exemption and
simultaneously pursuing additional toxicity testing is a responsible
risk management approach that allows society to benefit from lower
ozone exposures while protecting against other potential chronic risks.
Comment
The petitioner claimed that TBAC will be used to substitute for the
common industrial solvents toluene and xylene which are classified by
EPA as Hazardous Air Pollutants (HAPs) and which are much more
photochemically reactive than TBAC. The petitioner claimed that this
will be a great environmental benefit from the TBAC exemption. Other
commenters asserted that TBAC will not be substituted to any great
degree for toluene and xylene as the petitioner claims. These
commenters claimed that TBAC is more expensive than toluene and xylene
and may be added on top of the legal VOC limit of these chemicals in a
product to increase the solvent content of product without increasing
VOC content.
Response
The EPA acknowledges that the properties of TBAC make it
technically suitable to be substituted for toluene and xylene in many
products. The extent to which TBAC will be used as a substitute will
depend on costs. Currently, TBAC is relatively expensive compared to
toluene and xylene. However, if exempted, demand for TBAC is expected
to increase, increasing production and driving down costs. There is a
possibility that companies will use relatively cheap solvents like
toluene and xylene up to
[[Page 69302]]
the legal limit and then use TBAC to add solvent above the applicable
VOC content limits. Ultimately, EPA expects that substitution of TBAC
for more reactive and harmful solvents will outweigh increases in
solvent use, resulting in a net improvement in environmental quality.
However, this is not the reason that EPA is granting this exemption
from VOC emission limitations. The action is based on photochemical
reactivity relative to ethane.
After reviewing these comments and the other material in the
docket, EPA is acting in accordance with our existing policy by
modifying the definition of VOC to say that TBAC is not a VOC for
purposes of VOC emission limitations or content requirements because
TBAC is less reactive than ethane on a per gram basis.
III. Why Is EPA Asking That Emissions of TBAC Continue To Be Reported?
In prior VOC exemption decisions, EPA has not required continued
recordkeeping and reporting on the use and emissions of the exempt
compounds. However, EPA has proposed to retain recordkeeping and
reporting requirements for TBAC and other future exempt compounds based
on our understanding that even ``negligibly reactive'' compounds may
contribute significantly to ozone formation if present in sufficient
quantities and the need to represent these emissions accurately in
photochemical modeling analyses.
In addition to these general concerns about the potential
cumulative impacts of negligibly reactive compounds, the need to
maintain recordkeeping and reporting requirements for TBAC is further
justified by the potential for widespread use of TBAC, the fact that
its relative reactivity falls close to the borderline of what has been
considered negligibly reactive, and the continuing efforts to assess
long-term health risks. Therefore, in today's rule, EPA is excluding
TBAC from the definition of VOC for purposes of control requirements,
but EPA is requiring that emissions information for TBAC continue to be
recorded and reported.
The EPA does not believe that a requirement to collect and report
emissions data on TBAC is a new recordkeeping burden on industry,
because users of TBAC are currently required to collect and report this
information on TBAC as a VOC. However, industry will now be required to
track and report TBAC emissions as a distinct class of emissions,
separate from non-exempt VOCs.
Similarly, EPA does not believe that a requirement for continued
reporting of TBAC emissions is a new burden on States, since States are
already collecting information and reporting on these emissions.
The EPA is now in the process of assessing its VOC policy in
general, and its VOC exemption policy in particular. EPA intends to
address the issue of whether recordkeeping and reporting requirements
should apply to other exempt compounds as part of a future rulemaking
addressing possible changes to EPA's overall VOC policy. Today's rule
requiring record keeping and reporting for TBAC does not necessarily
indicate the content of a future overall policy.
IV. What Is Today's Final Action?
Today's final action is based on EPA's review of the material in
Docket No. OAR-2003-0084. The EPA hereby amends its definition of VOC
at 40 CFR 51.100(s) to say that TBAC is not VOC for purposes of VOC
emissions limitations or VOC content requirements, but will continue to
be VOC for purposes of all recordkeeping, emissions reporting, and
inventory requirements which apply to VOC. You should not count TBAC as
a VOC for purposes of EPA regulations related to attaining the ozone
NAAQS, including regulations limiting your use of VOCs or your
emissions of VOCs; but you must record and report the use and emissions
of TBAC. Your recordkeeping and reporting of TBAC must conform to those
requirements that would apply to you for non-exempt VOCs used in the
same manner or in the same application as TBAC, except that TBAC
emissions shall be broken out from other VOC and reported as a distinct
class of emissions. You should check with your State to determine
whether you should count TBAC as a VOC for State regulations. However,
your State should not include TBAC in its VOC emissions inventories for
determining reasonable further progress under the CAA (e.g., section
182(b)(1)) or take credit for controlling this compound in its ozone
control strategy. However, States must include TBAC in inventories used
for ozone modeling to assure that such emissions are not having a
significant effect on ambient ozone levels. States are encouraged to
include other already exempt compounds in such inventories, and should
anticipate that future VOC exemptions will not eliminate inventory
requirements.
The EPA is not finalizing a decision on how future petitions will
be evaluated. We intend to publish a future notice inviting public
comment on the VOC exemption policy and the concept of negligible
reactivity as part of a broader review of overall policy. Given the
existence of this policy review, parties submitting petitions for VOC
exemptions should expect their petitions to be reviewed under a new
policy.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of this Executive order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive order 12866 and is
therefore not subject to OMB review.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This action revises the definition of ``Volatile Organic Compounds''
for purposes of federal regulations related to attaining the National
Ambient Air Quality Standards (NAAQS), for ozone, and makes no changes
to recordkeeping or reporting burden.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose
[[Page 69303]]
or provide information to or for a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any requirements on small entities. Today's rule
concerns only the definition of VOC and does not directly regulate any
entities. The RFA analysis does not consider impacts on entities which
the action in question does not regulate. See Motor & Equipment
Manufacturers Ass'n v. Nichols, 142 F. 3d 449, 467 (D.C. Cir., 1998);
United Distribution Cos. v. FERC, 88 F. 3d 1105, 1170 (D.C. Cir.,
1996), cert. denied, 520 U.S. 1224 (1997).
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
1 year. Before promulgation of an EPA rule for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost effective, or least burdensome
alternative that achieves the objective of the rule, unless EPA
publishes with the final rule an explanation of why that alternative
was not adopted. Before EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments including
Tribal governments, it must have developed under section 203 of the
UMRA a small government plan which informs, educates and advises small
governments on compliance with the regulatory requirements. Finally,
section 204 provides that for any rule that imposes a mandate on a
State, local or Tribal government of $100 million or more in any 1
year, the Agency must provide an opportunity for such governmental
entities to provide input in development of the rule.
Since today's rulemaking is deregulatory in nature and does not
impose any mandate on governmental entities or the private sector, EPA
has determined that sections 202, 203, 204 and 205 of the UMRA do not
apply to this action.
E. Executive Order 13132: Federalism
Executive order 13132, entitled ``federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Today's final rule does not
impose any new mandates on State or local governments, but simply
retains the existing requirement to include TBAC in inventories used
for ozone modeling. Thus, Executive Order 13132 does not apply to this
rule.
F. Executive Orders 13084 and 13175: Consultation and Coordination With
Indian Tribal Governments
On November 6, 2000, the President issued Executive order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive order 13175 took effect on January 6, 2001,
and revokes Executive order 13084 (Tribal Consultation) as of that
date. The EPA developed this final rule, however, during the period
when Executive order 13084 was in effect; thus, EPA addressed Tribal
considerations under Executive order 13084.
Under Executive order 13084, 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, Executive order 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 Indian Tribal
governments, a summary of the nature of their concerns, and a statement
supporting the need to issue the regulation. In addition, Executive
order 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 impose substantial direct compliance costs on
the communities of Indian Tribal governments. This rule is deregulatory
in nature and does not impose any direct compliance costs. Accordingly,
the requirements of section 3(b)of Executive order 13084 do not apply
to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
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 Executive
[[Page 69304]]
order 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.
While this rule is not subject to the Executive order because it is
not economically significant as defined in Executive order 12866, EPA
has reason to believe that ozone has a disproportionate effect on
active children who play outdoors. (See 62 FR 38856 and 38859, July 18,
1997). The EPA has not identified any specific studies on whether or to
what extent t-butyl acetate directly affects children's health. The EPA
has placed the available data regarding the health effects of t-butyl
acetate in docket no. OAR-2003-0084.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive order 13211, ``Actions that
Significantly Affect Energy Supply, distribution, or Use,'' (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive order 12866. Information on the methodology and data
regarding the assessment of potential energy impacts is found in
chapter 6 of the U.S. EPA 1002, Cost, Emission Reduction, Energy, and
Economic Impact Assessment of the Proposed Rule Establishing the
Implementation Framework for the 8-hour, 0.08 ppm Ozone National
Ambient Air Quality Standard, prepared by the Innovative Strategies and
Economics Group, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, April 24, 2003.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104-113. Section 12(d), (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Congressional Review Act
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 Controller General of the
United States.
The 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. 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). This rule will be effective December 29, 2004.
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 18, 2004.
Michael O. Leavitt,
Administrator.
0
For reasons set forth in the preamble, part 51 of chapter I of title 40
of the Code of Federal Regulations is amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS.
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart F--[Amended]
0
2. Section 51.100 is amended by adding paragraph (s)(5) to read as
follows:
Sec. 51.100 Definitions.
* * * * *
(s) * * *
(5) The following compound(s) are VOC for purposes of all
recordkeeping, emissions reporting, photochemical dispersion modeling
and inventory requirements which apply to VOC and shall be uniquely
identified in emission reports, but are not VOC for purposes of VOC
emissions limitations or VOC content requirements: t-butyl acetate.
* * * * *
[FR Doc. 04-26069 Filed 11-26-04; 8:45 am]
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