[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24959-24970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9312]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2004-DC-0007; FRL-7909-8]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; VOC Emission Standards for AIM Coatings
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the District of Columbia (the District). This revision
pertains to the volatile organic compound (VOC) emission standards for
architectural and industrial maintenance (AIM) coatings in the
District. EPA is approving this SIP revision in accordance with the
Clean Air Act (CAA or Act).
DATES: Effective Date: This final rule is effective on June 13, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2004-DC-0007. All documents
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME identification number. Although listed in the
electronic docket, 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
[[Page 24960]]
available only in hard copy form. Publicly available docket materials
are available either electronically in RME or in hard copy for public
inspection during normal business hours at the Air Protection Division,
U.S. Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the state submittal at the
District of Columbia Department of Public Health, Air Quality Division,
51 N Street, NE., Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On December 27, 2004 (69 FR 77149), EPA published a notice of
proposed rulemaking (NPR) for the District of Columbia. The NPR
proposed approval of the VOC emission standards for AIM coatings. The
formal SIP revision was submitted by the District on April 16, 2004 and
supplemented on September 20 and November 26, 2004. Other specific
requirements of the District's SIP revision for AIM coatings and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here. EPA received adverse comments on the December 27,
2004 NPR. A summary of the comments submitted and EPA's responses are
provided in Section II of this document.
EPA is aware that concerns have been raised about the achievability
of VOC content limits of some of the product categories under the
District's AIM coatings rule. Although we are approving this rule
today, the Agency is concerned that if the rule's limits make it
impossible for manufacturers to produce coatings that are desirable to
consumers, there is a possibility that users may misuse the products by
adding additional solvent, thereby circumventing the rule's intended
VOC emission reductions. We intend to work with the District and
manufacturers to explore ways to ensure that the rule achieves the
intended VOC emission reductions, and to address this issue in
evaluating the amount of VOC emission reduction credit attributable to
the rule.
II. Public Comments and EPA Responses
A private citizen and the Sherwin Williams Company (SWC) submitted
adverse comments on EPA's December 27, 2004 (69 FR 77149) proposed
approval of the District's AIM coatings rule The SWC submitted its
adverse comments in letter to EPA dated January 26, 2005. The SWC's
comment letter also includes, by reference, the comments it previously
submitted to the District on its proposed version of the AIM coatings
rule during the District's adoption process and to the Ozone Transport
Commission (OTC) in a letter dated January 11, 2001.\1\ Lastly, the
SWC's January 26, 2005 letter of comment to EPA also includes, by
reference, the Petition for Reconsideration and Request for Stay, 42
U.S.C.A. Subsection 7607(d)(7)(B): Environmental Protection Agency's
Approval and Promulgation of Air Quality Improvement Plans;
Pennsylvania; Control of Volatile Organic Compound Emissions from AIM
Coatings submitted by the SWC to EPA on January 20, 2005 (hereafter the
Petition for Reconsideration).\2\ The following summarizes the comments
submitted to EPA on the December 27, 2004 (69 FR 77149) proposed
approval of the District's AIM coatings rule and EPA's response to
those comments.
---------------------------------------------------------------------------
\1\ The SWC's January 26, 2005 letter of comment to EPA states
that it is also includes, by reference, the comments submitted to
the OTC, enclosed as Exhibit B., and asks that they also be treated
as direct comments on the proposed revision to the DC SIP. However,
Exhibit B. to the SWC's January 26, 2005 letter of comment to EPA is
a ``Petition for Reconsideration and Request for Stay, 42 U.S.C.A.
Subsection 7607(d)(7)(B); Environmental Protection Agency's Approval
and Promulgation of Air Quality Improvement Plans; Pennsylvania;
Control of Volatile Organic Compound Emissions from AIM Coatings
submitted to EPA by the SWC to EPA on January 20, 2005.''
The SWC's January 11, 2001 letter of comment to the OTC is
enclosed as attachment 4 to Exhibit A of SWC's January 26, 2005
letter of comment to EPA on the December 27, 2004 (69 FR 77149)
proposed approval of the District's AIM coatings rule.
\2\ This Petition for Reconsideration, as it pertains to EPA's
approval of Pennsylvania's AIM coatings rule (69 FR 68080), was
withdrawn by a letter dated March 17, 2005.
---------------------------------------------------------------------------
A. Comment: The Products Should Contain No VOCs--A private citizen
submitted a comment to EPA by e-mail on December 27, 2005. The
commenter states that no VOCs, zero emissions and zero pollution should
be allowed from any product allowed to be used or sold.
Response: EPA disagrees with this comment. Aside from issues
associated with the technological infeasibility of all paints and
coatings used or sold to contain no VOCs, it is important to understand
EPA's role with regard to review and approval or disapproval of rules
submitted by states as SIP revisions. EPA can only take action upon the
final adopted version of a state's regulation as submitted by that
state in its SIP revision request. It is not within EPA's authority, by
its rulemaking on the SIP revision or otherwise, to change or modify
the text or substantive requirements of a state regulation. Therefore,
EPA cannot modify the District's AIM regulation as recommended in the
comment.
B. Comment: Using Flawed Data Violates the Data Quality Objectives
Act and Administrative Procedures Act--The commenter asserts that the
District's AIM coatings rule is based on flawed data and that the use
of this data violates the Data Quality Objectives Act (``DQOA'')
(Section 515(a) of the Treasury and General Government Appropriations
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)). The data at
issue is contained in what the commenter characterizes as a ``study
prepared by E.H. Pechan & Associates'' (Pechan Study) in 2001. The
alleged flaws relate to projected VOC emissions reductions calculated
in the Pechan Study. The commenter asserts that certain of the
underlying data and data analyses are allegedly ``unreproduceable.''
Further, the commenter asserts that if better data were used, the OTC
model AIM coatings rule would achieve greater VOC emissions reductions,
relative to the Federal AIM coatings rule, than was calculated in the
Pechan Study (54 percent reduction versus 31 percent reduction), even
if certain source categories were omitted from regulation under the OTC
rule. For these reasons, the commenter states that EPA must not approve
the proposed District's AIM coatings rule as a revision to the SIP.\3\
These same issues are also raised in the commenter's Petition for
Reconsideration.
---------------------------------------------------------------------------
\3\ The SWC submitted a ``Request for Correction of
Information'' (RFC) dated June 2, 2004, to EPA's Information Quality
Guidelines Office in Washington, DC which raises substantively
similar issues to those raised by this comment. By letter dated
February 25, 2005 from Robert Brenner, Principal Deputy Assistant
Administrator to the Counsel for Sherwin Williams Company, EPA
responded separately to the RFC. A copy of that letter is included
in the administrative record for this final rulemaking.
---------------------------------------------------------------------------
Response: EPA disagrees with this comment. What the commenter
characterizes as the Pechan Study is not at issue in this rulemaking.
The Pechan Study was not submitted to EPA by the District in its SIP
revision requesting that EPA approve its AIM coatings rule.\4\
[[Page 24961]]
The validity of the Pechan Study data is not at issue in this
rulemaking because the District did not request approval of a
quantified amount of VOC emission reduction from the enactment of its
regulation. Rather, this AIM coatings regulation has been submitted by
the District, and is being approved by EPA, on the basis that it
strengthens the existing District SIP. The commenter does not dispute
that the District's AIM coatings rule will, in fact, reduce VOC
emissions.
---------------------------------------------------------------------------
\4\ The SWC concedes that the Pechan Study and related
spreadsheet are not part of the record submitted to EPA by the
District. The SWC assert, however, that there are references to the
Pechan Study in other materials submitted by the District. Whether
or not the Pechan Study, or data from that study, was submitted to
EPA does not alter our analyses or conclusion, described herein,
that the Pechan Study is not relevant in this rulemaking.
Consequently, because the Pechan Study is not relevant to this
rulemaking, the commenter's reliance on the document entitled, ``A
Summary of General Assessment Factors for Evaluating the Quality of
Scientific and Technical Information,'' EPA 100/B-03-001 (June
2003), provided as exhibit C to SWC's comments is misplaced. This
``Assessment Factors'' document describes the considerations EPA
takes into account in evaluating scientific or technical information
``used in support of Agency actions.'' Assessment Factors, p.1. The
Pechan Study is not being used in support of this rulemaking,
therefore, EPA is under no obligation to evaluate the scientific or
technical information in that study.
---------------------------------------------------------------------------
Section 110 of the Act provides the statutory framework for
approval/disapproval of SIP revisions. Under the Act, EPA establishes
NAAQS for certain pollutants. The Act establishes a joint Federal and
state program to control air pollution and to protect public health.
States are required to prepare SIPs for each designated ``air quality
control region'' within their borders. The SIP must specify emission
limitations and other measures necessary for that area to meet and
maintain the required NAAQS. Each SIP must be submitted to EPA for its
review and approval. EPA will review and must approve the SIP revision
if it is found to meet the minimum requirements of the Act. See section
110(k)(3) of the Act, 42 U.S.C. 7410(k)(3); see also Union Elec. Co. v.
EPA, 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). The Act
expressly provides that the states may adopt more stringent air
pollution control measures than the Act requires with or without EPA
approval. See section 116 of the Act, 42 U.S.C. 7416. EPA must
disapprove state plans, and revisions thereto, that are less stringent
than a standard or limitation provided by Federal law. See section
110(k) of the Act, 42 U.S.C. 7410(k); see also Duquesne Light v. EPA,
166 F.3d 609 (3d Cir. 1999). The Pechan Study is not part of the
District's submission in support of its AIM coatings rule. Because the
District's April 16, 2004 submission (supplemented on September 20 and
November 26, 2004) does not seek approval of a specific amount of
emissions reductions, the level of emissions reductions that might be
calculable using data contained in the Pechan Study is irrelevant to
whether EPA should approve this SIP revision.\5\ The only relevant
inquiry at this time is whether this SIP revision meets the minimum
criteria for approval under the Act, including the requirement that the
District's AIM coatings rule be at least as stringent as the otherwise
applicable Federal AIM coatings rule set forth at 40 CFR 59.400,
subpart D.\6\
---------------------------------------------------------------------------
\5\ After submission of a request for approval of a quantified
amount of emissions reductions credit due to the AIM coatings rule
by the District, EPA will evaluate the credit attributable to the
rule. Whatever methodology and data the District uses in such a
request, the issue of proper credit will become ripe for public
comment.
\6\ The commenter asserts that ``it makes no difference whether
the District is asking for credits at this time for there to be a
Data Quality Act challenge,'' apparently because the fact that
material from the Pechan Study appears in the rulemaking docket for
this action, there is ``dissemination of flawed data.'' This ignores
that fact that EPA is taking no stance on the Pechan Study and its
underlying data. That study is irrelevant to our analysis as to
whether the District's AIM rule is approvable as a measure meeting
the requirements of section 110 of the Act that strengthens the
District's SIP. EPA is not required to address irrelevant material
merely because it is in the rulemaking docket. Section 307(d)(6)(B)
of the CAA (which applies to, among other things, SIP revisions, see
42 U.S.C. 7607(d)(1)(B)), requires EPA to respond to ``each of the
significant comments, criticisms, and new data submitted * * *
during the public comment period.'' 42 U.S.C. 7607(d)(6)(B). The
United States Supreme Court has held that ``irrelevant'' matter in
the docket is not ``significant'' as that term is used in the CAA,
and EPA has no duty to respond to them. See Whitman v. Amer.
Trucking Ass'ns., Inc., 531 U.S. 457, n. 2 at 470 (2001). With
respect to the Pechan data, we are not disseminating it, but we
rather are fulfilling our statutory role as custodian of a docket
containing irrelevant material submitted by third parties.
---------------------------------------------------------------------------
EPA has concluded that the District's AIM coatings rule meets the
criteria for approvability. It is worth noting that EPA agrees with the
commenter's conclusion that the District AIM coatings rule is more
stringent than the Federal AIM coatings rule, though not for the
reasons given by the commenter, i.e., that the commenter's ``better''
data demonstrates that OTC Model AIM coatings rule achieves a 54
percent, as opposed to the Pechan Study's 31 percent reduction in VOC
emissions beyond that required by the Federal AIM coatings rule.
Rather, EPA has determined that the District's AIM coatings rule is, on
its face, more stringent than the Federal AIM coatings rule. Examples
of categories for which the District's AIM coatings rule is facially
more stringent than the Federal AIM coatings rule include, but are not
limited to, the VOC content limit for non-flat high gloss coatings and
antifouling coatings. The Federal AIM coatings rule's VOC content limit
for non-flat high gloss coatings is 380 grams/liter while the
District's AIM coatings rule's limit is 250 grams/liter, and the
Federal AIM coatings rule's VOC content limit for anti-fouling coatings
is 450 grams/liter while the District's AIM coatings rule's is 400
grams/liter. Examples of categories for which the District's AIM
coatings rule is as stringent, but not more stringent, than the Federal
AIM coatings rule include, but are not limited to, the VOC content
limit for antenna coatings and low-solids coatings. In both rules the
VOC content limits for these categories are 530 grams/liter and 120
grams/liter, respectively. Thus, on a category by category basis, the
District's AIM coatings rule is as stringent or more stringent than the
Federal AIM coatings rule.
C. Comment: EPA's Determination That the District of Columbia AIM
Coatings Rule Is as Least as Stringent as the Federal AIM Coatings Rule
Is Inadequate--EPA determined that the District's AIM coating rule is
as stringent, or more stringent, than the otherwise applicable Federal
AIM coatings rule because the VOC content limit of each product
category of the District's AIM coatings rule is equal to or below the
VOC content limit of the Federal AIM coatings rule. The commenter
claims that EPA's determination is inadequate for at least three
reasons: (i) EPA's comparison of VOC content fails to include an
``ozone impact analysis;'' (ii) EPA acknowledged that the stringent VOC
content limits of the rule might result in ``behavioral changes;'' and
(iii) EPA failed to consider that more stringent VOC content limits
might result in more use of products, or use of products with VOCs of
higher reactivity, and that this would make the District's AIM coatings
rule less stringent in terms of ozone impacts. The commenter raised
these arguments in a Petition for Reconsideration concerning EPA's
approval of the comparable Pennsylvania AIM coatings rule, asserting
that EPA's ``on its face'' stringency finding is insufficient to meet
the requirements of the CAA and that EPA's reliance on Union Elec. Co.
v. EPA, 427 U.S. 246 (1976) to support its approval of the rule was
misplaced. As noted previously, SWC has incorporated this Petition for
Reconsideration in its comments opposing approval of the District's AIM
coatings rule.
Response: EPA disagrees that these comments provide a basis for
disapproval of the District's AIM coating rule as a SIP revision.
First, with respect to the comparison of the stringency of the District
AIM coatings rule and the Federal AIM coatings rule, EPA believes that
the VOC content levels of the respective rule for each category is the
appropriate basis of comparison. The current Federal AIM coatings rule
[[Page 24962]]
achieves reductions of VOC content for each individual coating
category, and an aggregate amount of VOC content for all of the
categories covered by the rule. These mass-based VOC content limits
apply to each category of product and, based upon an analysis of the
types of products used and the amount of products used in a given area,
are estimated to result in a given amount of mass based VOC emission
reductions. As we have previously noted in this rulemaking, the
District did not request approval of a quantified amount of VOC
emission reduction from the enactment of its regulation; the ozone
impacts of the VOC reductions from the District's AIM coatings rule
will be determined at a subsequent point in time. Even though the
specific amount of VOC emission reduction credit attributable to the
District's AIM coatings rule is not at issue in EPA's approval of the
rule into the SIP in this rulemaking, EPA believes that the category-
by-category comparison of VOC content between the Federal AIM coatings
rule and the District's coating rule is a reasonable way to assess
whether the latter is at least as stringent as the former. The
commenter did not dispute that the District's AIM coatings rule is
overall more stringent than the Federal AIM coatings rule in terms of
its tighter VOC limits, and in fact states in its comments that it
believes that the OTC model AIM coatings rule will achieve a 54 percent
VOC emissions reduction relative to the Federal AIM coatings rule.
Second, with respect to what the commenter refers to as
``behavioral changes,'' EPA did note in its approval of comparable
State AIM coatings rules in Pennsylvania and New York (and reiterates
in today's action) that it had concerns with respect to some of the
product categories that: ``if the rule's limits make it impossible for
manufacturers to produce coatings that are desirable to consumers,
there is a possibility that users may misuse the products, thereby
circumventing the rule's intended VOC emission reductions.'' EPA
further stated that it would address these types of concerns when
evaluating credit for VOC emission reductions. The commenters appear to
suggest that because product users might engage in ``behavioral
changes'' such as adding solvent to products, which would be illegal
under the District's AIM coatings rule, EPA cannot consider the
District's AIM coatings rule to be at least as stringent as the Federal
AIM coatings rule. To the contrary, EPA believes that the potential for
illegal behavior should not be a basis for concluding that the
District's AIM coatings rule is not as stringent as the Federal AIM
coatings rule, and accordingly should not be a basis for disapproving
the SIP revision. EPA appropriately assumes, for purposes of approving
such a rule, that manufacturers, distributors, and users will abide by
the law, or that the District or EPA will ultimately insure that they
do. EPA reiterates, however, that the specific amount of credit
attributable to the rule is not at issue in this action, and EPA
concludes that the mere potential for illegal behavior is not a basis
for determining that the District's AIM coatings rule is not as
stringent as the Federal AIM coatings rule.
Third, concerning the possibility that more stringent limits will
result in more frequent painting, or painting with products that
contain more highly reactive VOCs, EPA notes that the commenter already
raised these issues with the District and the District ascertained that
such concerns did not outweigh the overall benefits of the rule in the
area. Similarly, EPA believes that these concerns are not a basis for
determining that the District's AIM coatings rule is not at least as
stringent as the Federal AIM coatings rule as a whole. At the outset,
it must be noted that the District did not elect to develop and submit
to EPA an AIM coatings rule based upon VOC relative reactivity, as the
commenter implicitly suggests the District should have. EPA must act on
the AIM coatings rule submitted by the District, not on one that the
commenters would have preferred. Were the District to have submitted
such an AIM coatings rule, EPA agrees with the commenter that the
District would have needed to establish that the limits it imposed are
in fact more stringent than those otherwise required by the Federal AIM
coatings rule. In addition, EPA notes that as a general matter EPA
believes that its approval of such a rule could not be inconsistent
with the requirements of section 110(l) and section 193 of the CAA, as
applicable. A determination of consistency with those statutory
provisions would be made in the context of approval of a specific rule
based upon relative reactivity. Because neither the District's AIM
coatings rule nor the Federal AIM coatings rule is premised upon VOC
relative reactivity, it is neither possible nor required that EPA
compare the relative stringency of the rules on this basis in this
rulemaking.
In criticizing the District's AIM coatings rule, the commenter has
hypothesized that users will necessarily use more product, or that
manufacturers will necessarily choose to use more reactive VOCs to meet
a more stringent limit, at least with respect to one specific category
of product (the commenter alleges that an applicator would have to use
50 percent more of the compliant waterborne clear wood finish to
achieve the dry film thickness equivalent to current, federally
compliant solvent-based varnish). EPA believes that the commenter's
assertions are speculative in nature and do not provide compelling
evidence that the District's AIM coatings rule is not at least as
stringent as the otherwise applicable Federal AIM coatings rule. EPA
believes that it would be arbitrary and capricious to disapprove the
District's AIM coatings rule based on the speculative behavior of the
persons who will apply the coatings (e.g., that the applicators
necessarily will use more of a product or will necessarily violate the
law by adulterating a complying product).\7\ This is especially so when
the regulation at issue is both facially more stringent and conceded by
the commenter to be more stringent overall (i.e., will result in
greater VOC emissions reductions), than the otherwise applicable
Federal AIM coatings rule, and any supposed increase in ozone from
tighter VOC content limits is confined to one, or at the most a limited
number of product categories, not to the regulation as a whole, which
provides limits on 53 categories of AIM coatings. See Duquesne Light
Co. v. EPA 166 F.3d 609, 613 (3d Cir. 1999) (in approving a SIP
revision, EPA is not required ``to engage in a formalistic exercise by
conducting a fuller demonstration of the stringency of'' a definition
contained in a SIP, when ``[s]uch a `demonstration' would be a
technical formality as the stringency of that definition is not only
apparent on the face of the definition, but also conceded by
Duquesne'') (emphasis added). We believe that there is no plausible
basis to reject this regulation, which is more stringent than Federal
law overall, merely because the commenter has speculated that even more
reductions might be achieved by selectively raising the VOC content
limits for some product categories covered by the comprehensive
regulation.
Finally, in response to the District's AIM coatings rule, EPA
believes that it is likely that manufacturers will produce, and users
will use, products that are lower in VOC content. While an important
consideration, EPA believes
[[Page 24963]]
that coatings performance is not exclusively dependent upon VOC
content, as evidenced by the fact that manufacturers already produce
coatings that meet these limits for sale and use.
For these reasons EPA disagrees that these comments form a basis to
conclude that EPA's ``on its face'' stringency finding is insufficient
to meet the requirements of the CAA and that EPA's reliance on Union
Elec. Co. v. EPA, 427 U.S. 246 (1976) to support its approval of the
District's AIM rule is misplaced.
D. The CAA and Its Regulations Require That Data or Evidence
Assessing the Air Quality Impacts Associated With a SIP Revision Must
Be Submitted in Support of the SIP Revision. The commenter alleges that
the section 110(a)(K) authorizes EPA to require, and that EPA
regulations in 40 CFR part 51 (subparts G and F and Appendix v) demand,
that states submit data and modeling in support of a SIP revision for
the purposes of predicting its impact on air quality. The commenter
raises these arguments in the Petition for Reconsideration to urge that
EPA require Pennsylvania to submit such data and modeling in support of
its AIM coatings rule. As noted previously, SWC has incorporated this
Petition for Reconsideration in its comments opposing approval of the
District's AIM coatings rule.
---------------------------------------------------------------------------
\7\ It must also be noted that unlike the Federal AIM rule, the
state AIM rules (including the District's), include enforceable
provisions which prohibit the applicator end users from adding
additional solvent to complying coatings. D.C. Code Sec 20-750.5.
---------------------------------------------------------------------------
Response: EPA disagrees with this comment with regard to its
approval of state AIM coatings rules in general and in the specific
instance of its approval of the District's AIM coatings rule. Section
110(K) of the Act authorizes EPA to prescribe the modeling and data to
be provided in a state plan or plan revision. The statute commits to
EPA's discretion whether and what type of data or modeling a state
should submit in support of a SIP revision for the purposes of
predicting the impact of that SIP revision on air quality. EPA's
regulations in 40 CFR part 51, cited by the commenter, apply only to
control strategy plans. Control strategy plans are by definition a
combination of measures to achieve the aggregate reduction necessary
for attainment and maintenance of the NAAQS. 40 CFR 51.100 (n). A state
regulation to control VOCs from a source or source category, such as
the District's AIM coatings rule, is a single control measure and is
not, by itself, a control strategy for an ozone nonattainment area
subject to the requirements of part D of the CAA. As such, submittal of
such a control measure as a SIP revision is not required to meet the
requirements of 40 CFR part 51 for submittal of a control strategy SIP
or SIP revision. Rate-of-progress and attainment plans are control
strategy plans for ozone nonattainment areas.
Section 182 of the CAA sets out the plan submissions and
requirements for ozone nonattainment areas. The requirements and
schedules mandated by section 182 provide evidence that compliance with
the CAA contemplates the submittal of control measures as SIP revisions
separately from control strategy plans. For example, the states which
comprise ozone nonattainment areas were required to submit corrections
to previously SIP-approved reasonably available control technology
(RACT) requirements by May 15, 1991 (6 months from the November 15,
1990 date of enactment of the 1990 CAA) and to submit newly applicable
RACT provisions as SIP revisions by November 15, 1992 (2 years from the
date of enactment of the 1990 CAA). Submittal of these state rules to
impose RACT on a widely divergent range of source categories of VOC as
SIP revisions required no data or modeling with regard to their
individual impact on the NAAQS for ozone for approval by EPA. The first
control strategy plan SIP revision required by section 182 of the CAA
(the 15 percent ROP plan) was not due to EPA until November 15, 1993 (3
years after the date of enactment of the 1990 CAA). The attainment
demonstration plans were not due to EPA until November 15, 1994 (4
years after the date of enactment). With regard to ozone nonattainment
areas, these attainment demonstrations plans are the only plans which
the CAA requires be based on photochemical grid modeling or any other
analytical method determined by the Administrator of EPA.
EPA disagrees with the commenter's contention that every type of
SIP revision submitted to EPA must be supported by data and modeling to
assess its impact on ambient air quality and the NAAQS. As numerous of
EPA's SIP approval Final actions published in the Federal Register
amply demonstrate, EPA has approved hundreds of SIP revisions submitted
by states consisting of state rules to control VOCs from stationary
sources and source categories where such approvals did not require data
and modeling to assess the individual rules' impacts on the NAAQS. The
CAA and EPA's regulations found in 40 CFR part 51 for the requirements
of state plans and plan revisions provide EPA the flexibility to
determine and require such technical support as EPA deems necessary for
approval depending upon the nature of the SIP revision.
For all these reasons, EPA disagrees that it cannot approve the
District's AIM coatings rule SIP revision because the District's
submittal does not include data and modeling to assess its AIM coatings
rules's individual impact on the NAAQS for ozone.
E. Comment: The District of Columbia AIM Coatings Rule Was Adopted
in Violation of Clean Air Act Section 183(e)(9)--The commenter states
that in 1998, after a seven-year rule development process, EPA
promulgated its nationwide regulations for AIM coatings pursuant to
section183(e) of the Act. The commenter notes that the District's AIM
coatings rule imposes numerous VOC emission limits that will be more
stringent than the corresponding limits in EPA's regulation. The
commenter asserts that section 183(e)(9) of the Act requires that any
state which proposes regulations to establish emission standards other
than the Federal standards for products regulated under Federal rules
shall first consult with the EPA Administrator. The commenter believes
that the District failed to engage in that required consultation, and,
therefore (1) the District violated section 183(e)(9) in its adoption
of the District AIM coatings rule, and (2) approval of the AIM coatings
rule by EPA would violate, and is, therefore, prohibited by sections
110(a)(2)(A) and (a)(2)(E) of the Act.
Response: EPA disagrees with this comment. Contrary to the
implication of the commenter, section 183(e)(9) does not require states
to seek EPA's permission to regulate consumer products. By its explicit
terms, the statute contemplates consultation with EPA only with respect
to ``whether any other state or local subdivision has promulgated or is
promulgating regulations or any products covered under [section
183(e)].'' The commenter erroneously construes this as a requirement
for permission rather than informational consultation. Further, the
final Federal AIM coatings regulations at 40 CFR 59.410 explicitly
provides that states and their political subdivisions retain authority
to adopt and enforce their own additional regulations affecting these
products. See also 63 FR 48848, 48884, September 11, 1998. In addition,
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 id. at 48857. Accordingly, the District 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 submission for inclusion in the SIP. See
[[Page 24964]]
Union Elec. Co. v. EPA, 427 U.S. at 265-66 (1976). Although national
uniformity in consumer and commercial product regulations may have some
benefit to the regulated community, EPA recognizes that some localities
may need more stringent regulation to combat more serious and more
intransigent ozone nonattainment problems.
Further, there was ample consultation with EPA prior to the
District's adoption of its AIM coatings rule. On March 28, 2001, the
OTC adopted a Memorandum of Understanding (MOU) on regional control
measures, signed by all the member states of the OTC, including the
District, which officially made available the OTC model rules,
including the AIM coatings model rule. See the discussion of this MOU
in the Report of the Executive Director, OTC, dated July 24, 2001, a
copy of which has been included in administrative record of this final
rulemaking. That MOU includes the following text, ``WHEREAS after
reviewing regulations already in place in OTC and other States,
reviewing technical information, consulting with other States and
Federal agencies, consulting with stakeholders, and presenting draft
model rules in a special OTC meeting, OTC developed model rules for the
following source categories * * * architectural and industrial
maintenance coatings* * *.'' (a copy of the signed March 28, 2001 MOU
has been placed in the administrative record of this final rulemaking).
Therefore, there is no validity to the commenter's assertion that the
District failed to consult with EPA in the adoption of its AIM coatings
rule. EPA was fully cognizant of the requirements of the District's AIM
coatings rule before its formal adoption by the District.\8\ For all
these reasons, EPA disagrees that the District violated section
183(e)(9) in its adoption of the its AIM coatings rule, and disagrees
that approval of the District AIM coatings rule by EPA is in violation
of or prohibited by sections 110(a)(2)(A) and (a)(2)(E) of the Act.
---------------------------------------------------------------------------
\8\ While EPA reviewed the model AIM coatings rule and the draft
District version of that rule, EPA had no authority conferred under
the Clean Air Act to dictate the exact language or requirements of
the rule. As explained previously, EPA's role is to review a state's
submission to ensure it meets the applicable criteria of section 110
generally, and in the case of an AIM rule to ensure its is at least
as stringent as the otherwise applicable Federal rule.
---------------------------------------------------------------------------
F. Comment: The District of Columbia's AIM Coatings Rule Was
Adopted in Violation of Clean Air Act Section 184(c), and Approval of
the SIP Revision Would, Itself, Violate That Section--The commenter
believes the OTC violated section 184(c)(l) of the Act by failing to
``transmit'' its recommendations to the Administrator, and that the
OTC's violation was compounded by the Administrator's failure to review
the Model Rule through the notice, comment and approval process
required by CAA section184(c)(2)-(4). The commenter asserts that these
purported violations of the Act prevented the District from adopting
the District's AIM coatings rule, and now prevent EPA from validly
approving it as a revision to the District's SIP.
Response: EPA disagrees with this comment. Section 184(c)(1) of the
Act states that ``the [OTC] may, after notice and opportunity for
public comment, develop recommendations for additional control measures
to be applied within all or a part of such transport region if the
commission determines such measures are necessary to bring any area in
such region into attainment by the dates provided by this subpart.'' It
is important to note that the OTC model AIM coatings rule was not
developed pursuant to section 184(c)(1), which provision is only
triggered ``[u]pon petition of any state within a transport region
established for ozone* * *.'' No such petition preceded the development
of the model AIM coatings rule. Nor, for that matter, was development
of a rule upon state petition under section 184(e)(1) meant to be the
exclusive mechanism for development of model rules within the OTC.
Nothing in section 184 prevents the voluntary development of model
rules without the prerequisite of a state petition. Section 184 is a
voluntary process and the OTC may opt for that process or another. This
provision of the Act was not intended to prevent OTC's development of
model rules which states may individually choose to adapt and adopt on
their own, as the District did, basing its AIM coatings rule on the
model developed within the context of the OTC. In developing its own
rule from the OTC model, the District was free to adapt that rule as it
saw fit (or to leave the OTC model rule essentially unchanged), so long
as its rule remained at least as stringent as the Federal AIM coatings
rule.
As previously stated, on March 28, 2001, the OTC member states
signed a MOU on regional control measures, including the AIM coatings
model rule. The OTC did not develop recommendations to the
Administrator for additional control measures. The MOU stated that
implementing these rules will help attain and maintain the 1-hour
standard for ozone and were therefore made available to the states for
use in developing their own regulations.\9\
---------------------------------------------------------------------------
\9\ The commenter argues that section 184 either does not
require a formal petition to be triggered, or, alternatively, that
the MOU between the OTC states qualifies as a ``petition.'' With
respect to their first argument, section 184(c) says that the OTC
``may, after notice and opportunity for public comment, develop
recommendations for additional control measures * * *'' and that the
recommendations shall be presented to the EPA Administrator. This
mechanism is triggered ``upon petition of any State with a transport
region established for ozone, and based on a majority vote of the
Governors on the Commission (or their designees)* * * .'' 42 U.S.C.
7511d(c)(1) (emphasis added). The clear and unambiguous language of
the Act requires a petition and a vote. We reasonably interpret
section 184(c), in light of the obligation to conduct a vote, to
require the petition to be a manifestation of an express intent to
invoke the section 184(c) process. Further, any petition would need
to be sufficient in its clarity to put members on notice of their
obligation to hold a vote and fulfill the other provisions of the
section 184 process. We do not believe that a document which in
hindsight might be construed as an inadvertent opt-in to the
voluntary section 184 process could be the petition affirmatively
intended by the Act.
Even though the OTC did not develop the model AIM coatings rule
pursuant to section 184(c)(1) of the Act, nevertheless it provided
ample opportunity for OTC member and stakeholder comment by holding
several public meetings concerning the model rules including the AIM
coatings model rule. The sign-in sheets or agenda for four meetings
held in 2000 and 2001 at which the OTC AIM coatings model was
discussed (some of which reflect the attendance of a representative
of the EPA and/or the commenter), have been placed in the
administrative record for this final rulemaking.
With respect to the argument that the MOU is in hindsight a
``petition'' triggering the section 184 rule development process,
nothing in the record indicates that the OTC treated this MOU as a
petition to initiate the section 184 process. This is not surprising
because the MOU's plain language recites that the model rules had
already been developed that by the time the MOU was signed
(``WHEREAS * * * OTC developed final model rules for the following
source categories* * * .''). Under section 184(c) the petition
initiates the voluntary section 184 rule development process. 42
U.S.C. 7511d(c)(1). The MOU, however, came near the end of the OTC's
model rule development process. This is a strong indication that the
OTC did not intend the AIM coatings rule, or the other rules recited
in the MOU, to be subject to the section 184 process. By its failure
to express an intention to trigger the section 184 rule development
mechanism, we reject the argument that the MOU constitutes a section
184(c) petition. The MOU neither expressly nor inadvertently opted-
in the OTC states to the section 184 process.
---------------------------------------------------------------------------
G. Comment: The District of Columbia's AIM Coatings Rule Violates
the Commerce Clause and the Equal Protection of the U.S. Constitution--
The commenter's title heading of this comment states that the
District's AIM coatings rule violates the Equal Protection Clause of
the U.S. Constitution, but the text that follows that title heading
provides no arguments or assertions to support this claim. In both the
title heading and the text that follows, the commenter claims that the
District's AIM coatings rule also violates the Commerce Clause of
Article I, section 8, of the U.S. Constitution,
[[Page 24965]]
because it allegedly imposes an unreasonable burden on interstate
commerce. The commenter asserts that because the District's AIM
coatings rule contains VOC limits and other provisions that differ from
the Federal AIM coatings rule in 40 CFR 59.400, the rule imposes
unreasonable restrictions and burdens on the flow of coatings in
interstate commerce. The commenter further claims that the burdens of
the District's AIM coatings rule are excessive and outweigh the
benefits of the rule.
Response: As indicated previously, the commenter provides no
arguments or assertions as to the claim made in the title heading of
this comment that the District's AIM coatings rule violates the Equal
Protection Clause of the U.S. Constitution (see pages 13-14 of the
letter dated January 26, 2005 from the Counsel for the Sherwin-Williams
Company to Makeba Morris, Chief, Air Quality Planning Branch, U.S. EPA
Region III, regarding EPA's Proposal to Approve SIP Revision Submitted
by the State of Maryland Concerning Architectural and Industrial
Maintenance (AIM) Coatings). Moreover, the text of the comment
following the title heading does not reference or even make mention of
the Equal Protection Clause. Lastly, in no other comment submitted by
SWC on EPA's December 27, 2004 (69 FR 77149) proposed approval of the
District's AIM coatings rule is there any mention or reference to the
Equal Protection Clause of the U.S. Constitution. EPA does not believe
that any provision of the District's AIM rule violates the Equal
Protection Clause of the U.S. Constitution.
Regarding the comment that the District's AIM coatings rule
violates the Commerce Clause of the U.S. Constitution, EPA agrees with
this comment only to the extent that it acknowledges that AIM coatings
are products in interstate commerce and that state regulations on
coatings therefore have the potential to violate the Commerce Clause.
EPA understands the commenter's practical concerns caused by differing
state regulations, but disagrees with the commenter's view that the
District AIM coatings rule impermissibly impinges on interstate
commerce. A state law may violate the Commerce Clause in two ways: (i)
By explicitly discriminating between interstate and intrastate
commerce; or (ii) even in the absence of overt discrimination, by
imposing an incidental burden on interstate commerce that is markedly
greater than that on intrastate commerce. The District's AIM coatings
rule does not explicitly discriminate against interstate commerce
because it applies evenhandedly to all coatings manufactured or sold
for use within the state. At most, therefore, the District's AIM
coatings rule could have an incidental impact on interstate commerce.
In the case of incidental impacts, the Supreme Court has applied a
balancing test to evaluate the relative impacts of a state law on
interstate and intrastate commerce. See, Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970). Courts have struck down even nondiscriminatory
state statutes when the burden on interstate commerce is ``clearly
excessive in relation to the putative local benefits.'' Id. at 142.
At the outset, EPA notes that it is unquestionable that the
District has a substantial and legitimate interest in obtaining VOC
emissions for the purpose of attaining the ozone NAAQS. The adverse
health consequences of exposure to ozone are well known and well
established and need not be repeated here. See, e.g., National Ambient
Air Quality Standards for Ozone: Final Response to Remand, 68 FR 614,
620-25 (January 6, 2003). Thus, the objective of the District in
adopting their AIM coatings rule is to protect the public health of the
citizens of the District. The courts have recognized a presumption of
validity where the state statute affects matters of public health and
safety. See, e.g., Kassel v. Consolidated Freightways Corp. of
Delaware, 450 U.S. 662, 671 (1980). Moreover, even where the state
statute in question is intended to achieve more general environmental
goals, courts have upheld such statutes notwithstanding incidental
impacts on out of state manufacturers of a product. See, e.g, Minnesota
v. Clover Leaf Creamery, et al., 449 U.S. 456 (1981) (upholding state
law that banned sales of milk in plastic containers to conserve energy
and ease solid waste problems).
The commenter asserts, without reference to any facts, that the
District's AIM coatings rule imposes burdens and has impacts on
consumers that are ``clearly excessive in relation to the purported
benefits * * *.'' By contrast, EPA believes that any burdens and
impacts occasioned by the District's AIM coatings rule are not so
overwhelming as to trump the District's interest in the protection of
public health. First, the District's AIM coatings rule does not
restrict the transportation of coatings in commerce itself, only the
sale of nonconforming coatings within the state's own boundaries. The
District's rule excludes coatings sold or manufactured for use outside
the state or for shipment to others (section 751.1). The District's AIM
coatings rule cannot be construed to interfere with the transportation
of coatings through the state en route to other states. As such, EPA
believes that the cases concerning impacts on the interstate modes of
transportation themselves are inapposite. See, e.g., Bibb v. Navajo
Freight Lines, 359 U.S. 520 (1938).
Second, the District's AIM coatings rule is not constructed in such
as way that it has the practical effect of requiring extraterritorial
compliance with the District's VOC limits. The District's AIM coatings
rule only governs coatings manufactured or sold for use within the
state's boundaries. The manufacturers of coatings in interstate
commerce are not compelled to take any particular action, and they
retain a range of options to comply with the rule, including, but not
limited to: (1) Ceasing sales of nonconforming products in the
District; (2) reformulating nonconforming products for sale in the
District and passing the extra costs on to consumers in that state; (3)
reformulating nonconforming products for sale more broadly; (4)
developing new lines of conforming products; or (5) entering into
production, sales or marketing agreements with companies that do
manufacture conforming products. Because manufacturers or sellers of
coatings in other states are not forced to meet the District's
regulatory requirements elsewhere, the rule does not impose the type of
obligatory extraterritorial compliance that the courts have considered
unreasonable. See, e.g., NEMA v. Sorrell, 272 F.3d 104 (2d Cir. 2000)
(state label requirement for light bulbs containing mercury sold in
that state not an impermissible restriction). It may be that the
District's AIM coatings rule will have the effect of reducing the
availability of coatings or increasing the cost of coatings within the
District, but courts typically view it as the prerogative of the state
to make regulatory decisions with such impacts upon its own citizens.
NPCA v. City of Chicago, 45 F.3d 1124 (7th Cir. 1994), cert. denied,
515 U.S. 1143 (1995) (local restriction on sales of paints used by
graffiti artists may not be the most effective means to meet objective,
but that is up to the local government to decide).
Third, the burdens of the District's AIM coatings rule typically do
not appear to fall more heavily on interstate commerce than upon
intrastate commerce. The effect on manufacturers and retailers will
fall on all manufacturers and retailers regardless of location if they
intend their products for sale within the District, and does not
[[Page 24966]]
appear to have the effect of unfairly benefitting in-state
manufacturers and retailers. The mere fact that there is a burden on
some companies in other states does not alone establish impermissible
interference with interstate commerce. See, Exxon Corp. v. Maryland,
437 U.S. 117, 126 (1978).
In addition, EPA notes that courts do not typically find violations
of the Commerce Clause in situations where states have enacted state
laws with the authorization of Congress. See, e.g., Oxygenated Fuels
Assoc., Inc. v. Davis, 63 F. Supp. 1182 (E.D. Cal. 2001) (state ban on
MTBE authorized by Congress); NEMA v. Sorell, 272 F.3d 104 (2d Cir.
2000) (RCRA's authorization of more stringent state regulations confers
a ``sturdy buffer'' against Commerce Clause challenges). Section 183(e)
of the Act governs the Federal regulation of VOCs from consumer and
commercial products, such as coatings covered by the District's AIM
coatings rule. EPA has issued a Federal regulation that provides
national standards, including VOC content limits, for such coatings.
See 40 CFR 59.400 et seq. Congress did not, however, intend section
183(e) to pre-empt additional state regulation of coatings, as is
evident in section183(e)(9) which indicates explicitly that states may
regulate such products. EPA's regulations promulgated pursuant to the
Act recognized that states might issue their own regulations, so long
as they meet or exceed the requirements of the Federal regulations.
See, e.g., the National Volatile Organic Compound Emission Standards
for Architectural Coatings, 40 CFR 59.410, and the Federal Register
which published the standards, 63 FR 48848, 48857 (September 11, 1998).
Thus, EPA believes that Congress has clearly provided that a state may
regulate coatings more stringently than other states.
In section 116 of the Act, Congress has also explicitly reserved to
states and their political subdivisions the right to adopt local rules
and regulations to impose emissions limits or otherwise abate air
pollution, unless there is a specific Federal preemption of that
authority. When Congress intended to create such Federal preemption, it
does so through explicit provisions. See, e.g., Section 209(a) of the
Act, which pertains to state or local emissions standards for motor
vehicles; and section 211 of the Act which pertains to fuel standards.
Moreover, the very structure of the Act is based upon ``cooperative
federalism,'' which contemplates that each state will develop its own
state implementation plan, and that states retain a large degree of
flexibility in choosing which sources to control and to what degree in
order to attain the NAAQS by the applicable attainment date. Union
Electric Co. v. EPA, 427 U.S. 246 (1976). Given the structure of the
Act, the mere fact that one state might choose to regulate sources
differently than another state is not, in and of itself, contrary to
the Commerce Clause.
Finally, EPA understands that there may be a practical concern that
a plethora of state regulations could create a checkerboard of
differing requirements would not be the best approach to regulating
VOCs from AIM coatings or other consumer products. Greater uniformity
of standards does have beneficial effects in terms of more cost
effective and efficient regulations. As EPA noted in its own AIM
coatings rule, national uniformity in regulations is also an important
goal because it will facilitate more effective regulation and
enforcement, and minimize the opportunities for undermining the
intended VOC emission reductions. 63 FR 48856-48857. However, EPA also
recognizes that the District and other states with longstanding ozone
nonattainment problems have local needs for VOC reductions that may
necessitate more stringent coatings regulations. Under section 116 of
the Act, states have the authority to do so, and significantly, many
states in the Northeast have joined together to prepare and promulgate
regulations more restrictive than the Federal AIM coatings rule to
apply uniformly across that region. This regional collaboration
provides regional uniformity of standards. The District may have
additional burdens to insure compliance with its rule, but for purposes
of this action, EPA presumes that the District takes appropriate
actions to enforce it as necessary. The EPA has no grounds for
disapproval of the SIP revision based upon the Commerce Clause comment.
H. Comment: The Emission Limits and Compliance Schedule in the
District of Columbia AIM Coatings Rule Are Neither Necessary nor
Appropriate To Meet Applicable Requirements of the Clean Air Act--The
commenter claims that the District AIM coatings rule is not ``necessary
or appropriate'' for inclusion in the District SIP, because EPA did not
direct the District to achieve VOC reductions through the AIM coatings
rule, but left it to the District to decide how such reduction can be
achieved. The commenter further claims that the District AIM coatings
rule is not necessary or appropriate for inclusion in the District SIP
because of the numerous alleged procedural and substantive failings on
the part of the District in promulgating the rule.
Response: EPA disagrees with this comment. If fulfillment of the
``necessary or appropriate'' condition of section 110(a)(2)(A) required
EPA to first determine that a measure was necessary or appropriate and
require a state to adopt that measure, this condition would present a
``catch 22'' situation. EPA does not generally have the authority to
require the state to enact and include in its SIP any particular
control measure, even a ``necessary'' one.\10\ However, under section
110(a)(2)(a) a control measure must be either ``necessary or
appropriate'' (emphasis added); the use of the disjunctive ``or'' does
not provide that a state must find that only a certain control measure
and no other measure will achieve the required reduction. Rather, a
state may adopt and propose for inclusion in its SIP any measure that
meets the other requirements for approvability so long as that measure
is at least as appropriate, though not exclusive, means of achieving
emissions reduction. See also, Union Elec. Co. v. EPA, 427 U.S. 246,
264-266 (1976) (holding that ``necessary'' measures are those that meet
the `minimum conditions' of the Act, and that a state ``may select
whatever mix of control devices it desires,'' even ones more stringent
than Federal standard, to achieve compliance with a NAAQS, and that
``the Administrator must approve such plans if they meet the minimum
requirements'' of section 110(a)(2) of the Act). Clearly, in light of
the Act and the case law, EPA's failure to specify the state adoption
of a specific control measure cannot dictate whether a measure is
necessary or appropriate.
---------------------------------------------------------------------------
\10\ As noted in Virginia v. EPA, 108 F.3d 1397 (D.C. Cir.
1997), EPA does have the authority within the mechanism created by
section 184 of the Act to order states to adopt control measures
recommended by the OTC, if EPA agrees with and approves that
recommendation. 108 F.3d, n.3 at 1402. As we have previously stated,
the OTC model AIM coatings rule was not developed pursuant to the
section 184 mechanism; EPA therefore has no authority to order that
the District or any other state adopt this measure in order to
reduce VOC emissions.
---------------------------------------------------------------------------
In this particular instance, the District needs reductions to
satisfy the requirements for rate-of-progress (ROP) and attainment
plans (including contingency measures) for the reclassified
Metropolitan Washington DC severe 1-hour ozone nonattainment area. It
is the District's prerogative to develop whatever rule or set of rules
it deems necessary or appropriate such that the rule or rules will
collectively achieve the additional emission reductions needed to
satisfy the ROP
[[Page 24967]]
and attainment plan requirements for its 1-hour ozone severe
nonattainment area. Because commenters might find it more necessary or
appropriate to obtain the needed VOC emission reductions elsewhere is
not a basis for EPA to disapprove the rule implementing the District's
determination of the best approach to obtain the needed reductions.
The District's April 16, 2004 SIP revision submittal (supplemented
on September 20 and November 24, 2004) provides evidence and
certification that it has the legal authority to adopt its AIM coatings
rule and that it has followed all of the requirements in the District's
law and constitution that are related to adoption of a SIP revision. As
noted in BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2004):
[T]he CAA only requires that the states provide ``necessary
assurances that the State * * * will have adequate * * * authority
under State (and as appropriate, local) law to carry out such
implementation plan (and it is not prohibited by any provision of *
* * State law from carrying out such implementation plan or portion
thereof).'' 42 U.S.C. 7410(a)(2)(E)(i). There is no statutory
requirement that the EPA review SIP submissions to ensure compliance
with state law * * * . Such a requirement would be extremely
burdensome and negate the rationale for having the state provide the
assurances in the first instance. The EPA is entitled to rely on a
state's certification unless it is clear that the SIP violates state
law, and proof thereof, such as a state court decision, is presented
to EPA during the SIP approval process. 355 F.3d 817, n.11 at 830.
The commenter has offered no proof, such as a court decision, that
the District's AIM coatings rule clearly violates local law. EPA
therefore is relying on the District's certification that it had the
legal authority to adopt its AIM coatings rule and that it has followed
all of the requirements in the District's law that are related to
adoption of this SIP revision.
I. Comment: EPA's Action To Approve or Disapprove the District's
AIM Coatings Rule Is a ``Significant Regulatory Action'' as Defined by
Executive Order 12866, 58 FR 51735 (September 30, 1993).
Response: EPA disagrees with this comment. Under Executive Order
12866 (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' and therefore is not subject to
review by the Office of Management and Budget. The commenter alleges
that EPA's approval of the District's AIM coatings rule is a
``significant regulatory action'' because it meets several of the
following criteria specified in Executive Order 12866: ``[it will have]
an annual effect on the economy of $100 million or more or [it will]
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
* * *'' However, this action merely approves existing state law as
meeting Federal requirements. EPA's approval of this SIP revision
imposes no additional requirements beyond those imposed by state law.
Accordingly, this action meets none of the criteria listed above. Any
cost or any material adverse effects on the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities
exist, if at all, due to the District's approval of its state AIM
coatings rule, not by EPA's approval of that rule into the District's
SIP. If EPA failed to act on the District's AIM coatings rule, the
effects of the rule would not be changed because this rule went effect
in the District on January 1, 2005. Nothing that EPA might do at this
point in time alters that fact.
Furthermore, the District voluntarily adopted its version of the
OTC model AIM coatings rule and, as the commenter itself acknowledges,
EPA could not impose this control measure on the District. Virginia v.
EPA, 108 F.3d 1397 (D.C. Cir. 1997). EPA's approval of this state rule
merely fulfills its statutory obligation under the Act to review SIP
submissions and approve state choices, provided that they meet the
criteria of the Act.
J. Comment: The District of Columbia Has Not Analyzed the Cost-
Effectiveness of Any Reasonably Available Alternatives to the Proposed
Rule--The commenter states that the District has an obligation to
perform a thorough evaluation of the cost-effectiveness of the District
AIM coatings rule, including a comparison with the cost-effectiveness
of reasonably available alternatives. The rule, and related rulemaking
materials, do not analyze the cost-effectiveness of any reasonably
available alternatives to the proposed rule. The commenter claims that
this omission demonstrates the arbitrary and capricious nature of the
rule, and clearly is a direct violation of the laws of the District of
Columbia.
Response: EPA disagrees with this comment. The cost per ton figure
determined by the District in its economic analysis, and its decision
to rely upon information from California, are all decisions which fall
within a state's purview, and issues regarding those decisions are
rightly raised by interested parties to the state during its regulatory
adoption The District's April 16, 2004 SIP revision submittal
(supplemented on September 20 and November 24, 2004) provides evidence
and certification that it that it has the legal authority to adopt its
AIM coatings rule and that it has followed all of the requirements in
the District's law that are related to adoption of a SIP revision. (See
EPA's response to Comment II. H.). See BCCA Appeal Group v. EPA, 355
F.3d 817 n.11 at 830 (EPA may rely on the state's certification that it
has complied with applicable state requirements for promulgating a rule
submitted as a revision to its SIP).
K. Comment: Additional Comments Submitted to the OTC and
Commonwealth of Virginia Included, by Reference, in the Comments
Submitted to EPA on the December 27, 2004 Proposed Approval of
District's AIM Coatings Rule (69 FR 77149)--As previously noted the SWC
has included, by reference, in its comments to EPA on the proposed
approval of the District's AIM rule the comments it submitted to the
OTC in a letter dated January 11, 2001 (and its attachments). The SWC
has also included, by reference, the comments it submitted to the
District during its adoption process. Most of theses comments have
already been summarized and responded to previously in Comments A-K as
the SWC also submitted them directly to EPA on its proposed rulemaking.
The following summarizes the remaining comments submitted to the
District during its rule adoption process:
(1) The commenter has significant concerns with the proposed
standards for certain paints and coatings, e.g., interior wood clear
and semi-transparent stains, interior wood vanishes, interior wood
sanding sealers, exterior wood primers, and floor coatings. The
commenter asserts that the District's proposed AIM coatings regulation
is based upon the inaccurate assumption that compliant coatings are
available or can be developed which will satisfy customer requirements
and meet all of the performance requirements of these categories. The
commenter contends that such coatings are not effectively within the
limits of current technology and that this inaccurate assumption will
result in increased and earlier repainting which can damage floors in
the District due to seasonal variations in temperature and humidity.
(2) The commenter asserts that the economic analysis of the
District's proposed AIM coatings rule is inaccurate because it uses a
cost figure of $6400 per ton of emissions reduced based upon an
economic analysis done for California. The commenter contends that the
cost figure is inappropriate
[[Page 24968]]
given the differences in the stringency of the current requirements for
AIM coatings in the District versus California, and therefore, the
District needs to make an independent determination of the cost of VOC
reductions from its proposed AIM coatings regulation.
(3) The commenter is concerned that the California Air Resources
Board (CARB) suggested control measure (SCM) has been adopted in only
25 of the 35 air districts in California since it was first issued in
June 1977. In 22 of the districts that have adopted the SCM, there are
significant modifications and revisions, typically in the VOC limits
for one or more AIM coating categories. Such modifications and
revisions are necessary in those categories where there are no known
substitute products, where it is shown that no substitute is necessary,
since the increase in VOC emissions is marginal.
(4) The commenter is concerned that the proposed rule does not
allow averaging of VOC content for various coatings produced by a
manufacturer, which the CARB SCM allows.
(5) The commenter is concerned that there are no suitable
substitutes for all the applications for these 5 categories of
products, e.g., interior wood clear and semi-transparent stains,
interior wood vanishes, interior wood sanding sealers, exterior wood
primers, and floor coatings. No water-based substitute meets
performance standard for many applications, and their use can cause
grain raising, lapping and a panelization problem, and that the
District has not addressed these issues.
(6) The commenter suggests that there should be numerous exemptions
that should be included in the District's rule, such as low-temperature
products manufactured by the commenter intended for use in colder
weather when ozone is not an issue. If more consumers use coatings in
non-summer months, some of the summer ozone problems will disappear.
Low temperature products should be encouraged with incentives, not
regulated out of the market.
(7) The commenter is concerned that the CARB report contains
numerous flaws which prevent it from being a valid basis for the
proposed AIM rule.
(8) The commenter was not aware of the Districts prior hearing
regarding the proposed rule and requests a hearing for an opportunity
to present live testimony regarding the proposed rule, prior to the
District taking any action on the proposal.
Response: With regard to the comments submitted to the OTC, and to
the District on its proposed AIM coatings rule and subsequently, by
reference, to EPA on its December 27, 2004 proposed approval of the
District's April 16, 2004 SIP revision request (supplemented on
September 20 and November 24, 2004), it is important to understand
EPA's role with regard to review and approval or disapproval of rules
submitted by states as SIP revisions. EPA can only take action upon the
final adopted version of a state's regulation as submitted by that
state in its SIP revision request. It is not within EPA's authority, by
its rulemaking on the SIP revision or otherwise, to change or modify
the text or substantive requirements of a state regulation. Therefore,
EPA cannot modify the District's AIM coatings regulation to address the
commenter's concerns.
The District's reliance upon both technical and cost analyses from
California in its decisions with regard to the provisions in its final
AIM coatings rule, its decisions to not include provisions for
averaging, and its decisions to not provide exemptions are all
decisions which fall within a state's purview, and issues regarding
those decisions are rightfully raised by interested parties to the
state during its regulatory adoption process. Therefore, it was
appropriate that the SWC commented to the District on these matters
during the adoption of its AIM coatings rule. A complete SIP revision
submission from a state includes a compilation of timely comments
properly submitted to the state on the proposed SIP revision and the
state's response thereto (40 CFR part 51, appendix V, 2.1 (h)). EPA has
reviewed the District's SIP revision submittal and has determined that
comments the SWC submitted to the District (which the SWC has
incorporated by reference as comments on this rulemaking), along with
the District's responses to those comments, are included therein.
With regard to the SWC's comment that it was not aware of the
public hearing held by the District regarding the proposed rule and its
request for an additional hearing to present live testimony regarding
the District's proposed AIM rule, EPA notes that in addition to the
public hearing held on July 9, 2003 to which the SWC's comment refers
(notice of which was published in the Washington Times), the District
held a second public hearing on its AIM coatings rule on November 15,
2004 (notice of which was also published in the Washington Times). The
SWC did not attend this second public hearing. EPA's review of the
District's April 16, 2004 SIP revision request (supplemented on
September 20 and November 24, 2004) indicates that the District
satisfied the requirements of section 110(a) of the CAA with regard to
providing public notice and public hearings on its AIM coatings rule
SIP revision.
The District's April 16, 2004 SIP revision submittal (supplemented
on September 20 and November 24, 2004) provides evidence and
certification that it that it has the legal authority to adopt its AIM
coatings rule and that it has followed all of the requirements in the
District's law that are related to adoption of this SIP revision. (See
EPA's response to Comment II. H.). In the context of a SIP approval,
EPA's review of these state decisions is limited to whether the SIP
revision meets the minimum criteria of the Act. Provided that the rule
adopted by the state satisfies those criteria, EPA must approve such a
SIP revision. See, Union Elec Co. v. EPA, BCCA Appeal Group v. EPA, 355
F.3d 817, n.11 at 830.
III. Final Action
EPA is approving the District's SIP revision for the control of VOC
emissions from AIM coatings rule submitted on April 16, 2004, and
supplemented on September 20 and November 24, 2004. The District's AIM
coatings rule is part of the District's strategy to satisfy the CAA's
requirements for a severe ozone nonattainment area and to achieve and
maintain the ozone standard in the Metropolitan Washington, DC ozone
nonattainment area.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not
[[Page 24969]]
contain any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4). This rule also does not have tribal implications
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also
does not have federalism implications because it does 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 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal standard,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. 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).
C. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 11, 2005. 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, pertaining to the District of Columbia's AIM coatings
rule, 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, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: May 2, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart J--District of Columbia
0
2. In Sec. 52.470, the table in paragraph (c) is amended by adding the
following entries to ``District of Columbia Municipal Regulations
(DCMR), Title 20--Environment, Chapter 7--Volatile Organic Compounds':
0
a. Adding entries for section 749 through Section 754.
0
b. Adding a new entry for section 799 after the existing entries for
section 799.
The added entries read as follows:
Sec. 52.470 Identification of plan.
* * * * *
(c) * * *
EPA-Approved District of Columbia Regulations
----------------------------------------------------------------------------------------------------------------
State Additional
State citation Title/subject effective date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
District of Columbia Municipal Regulations (DCMR), Title 20--Environment
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 7 Volatile Organic Compounds
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 749.................. Architectural and 04/16/04 5/21/05 [Insert
Industrial Maintenance 11/26/04 page number where
Coating--General the document
Requirements. begins].
Section 750.................. Architectural and 04/16/04 5/21/05 [Insert ..................
Industrial Maintenance 11/26/04 page number where
Coating-- Standards. the document
begins].
Section 751.................. Architectural and 04/16/04 5/21/05 [Insert ..................
Industrial Maintenance 11/26/04 page number where
Coating--Exemptions. the document
begins].
Section 752.................. Architectural and 04/16/04 5/21/05 [Insert ..................
Industrial Maintenance 11/26/04 page number where
Coating--Labeling the document
Requirement. begins].
[[Page 24970]]
Section 753.................. Architectural and 04/16/04 5/21/05 [Insert
Industrial Maintenance 11/26/04 page number where
Coating--Reporting the document
Requirements. begins].
Section 754.................. Architectural and 04/16/04 5/21/05 [Insert ..................
Industrial Maintenance 11/26/04 page number where
Coating--Testing the document
Requirements. begins].
* * * * * * *
Section 799.................. Definitions............. 04/16/04 5/21/05[Insert page ..................
11/26/04 number where the
document begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 05-9312 Filed 5-11-05; 8:45 am]
BILLING CODE 6560-50-P