[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24970-24979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9313]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA151-5085; FRL-7910-1]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; VOC Emissions Standards for AIM Coatings
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. This revision pertains to
the control of volatile organic compounds (VOC) emissions from
architectural and industrial maintenance (AIM) coatings. 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: Copies of the documents relevant to this action are
available 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; and Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 7, 2004 (69 FR 31780), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of a Virginia regulation pertaining to the control of VOC from
AIM coatings. The formal SIP revision was submitted by the Virginia
Department of Environmental Quality (VADEQ) on February 23, 2004. The
specific requirements of Virginia'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 June 7,
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
Virginia 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 Virginia and manufacturers
to explore ways to ensure that the rule achieves the intended VOC
emission reductions, and we intend to address this issue in evaluating
the amount of VOC emission reduction credit attributable to the rule.
II. Public Comments and EPA Responses
The National Paint and Coatings Association (NPCA) is one of the
adverse commenters on EPA's June 7, 2004 proposed approval of
Virginia's AIM coatings rule. The NPCA's comments include, by
reference, the comments it previously submitted to Virginia on the
proposed version of the AIM coatings rule during the Commonwealth's
adoption process as transmitted by VADEQ in its February 23, 2004 SIP
revision submittal to EPA. The NPCA also includes, by reference, the
comments submitted by the Sherwin Williams Company (SWC) to EPA on the
June 7, 2004 proposed approval of Virginia's AIM coatings rule. The SWC
is the other adverse commenter on EPA's June 7, 2004 proposed approval
of Virginia's AIM coatings rule. The SWC also includes, by reference,
the comments it submitted to Virginia on the proposed version of the
AIM coatings rule during the Commonwealth's adoption process, and the
comments it submitted to the Ozone Transport Commission in a letter
dated January 11, 2001.
The following summarizes the comments submitted by the NPCA and the
SWC to EPA on the June 7, 2004 proposed approval of Virginia's AIM
coatings rule and EPA's response to those comments.
A. Comment: Using Flawed Data Violates the Data Quality Objectives
Act and Administrative Procedures Act--The commenters assert that the
Virginia 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 commenters characterize as a ``study prepared by
E.H. Pechan & Associates'' (Pechan Study) in 2001. The alleged flaws
relate to projected emissions reductions calculated in the Pechan
Study.
The commenters assert that certain of the underlying data and data
analyses are allegedly ``unreproduceable.'' Further, the commenters
assert that if better data were used, the OTC model AIM coatings rule
would achieve greater VOC emissions reductions, relative to
[[Page 24971]]
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 commenters state that EPA must not approve the
proposed Virginia's AIM coatings rule as a SIP revision.\1\
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\1\ One of the commenters has 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.
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Response: EPA disagrees with this comment. What the commenters
characterize as the Pechan Study is not at issue in this rulemaking.
The Pechan Study was not submitted to EPA by Virginia in its request
that EPA approve its AIM coatings rule.\2\ The validity of the Pechan
Study data is not at issue because Virginia 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
Virginia, and is being considered by EPA, on the basis that it
strengthens the existing Virginia SIP. The commenters do not dispute
that the Virginia AIM coatings rule will, in fact, reduce VOC
emissions.
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\2\ The commenters concede that the Pechan Study and related
spreadsheet are not part of the record submitted to EPA by Virginia.
They assert, however, that there are references to the Pechan Study
in other materials submitted by Virginia. 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.
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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 Virginia's submission in support of
its AIM coatings rule. Because Virginia's February 23, 2004 submission
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.\3\ 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 Virginia'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.\4\
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\3\ After submission of a request for approval of a quantified
amount of emissions reductions credit due to the AIM coatings rule
by the Commonwealth, EPA will evaluate the credit attributable to
the rule. Whatever methodology and data the Commonwealth uses in
such a request will become ripe for public comment.
\4\ The commenters assert that ``it makes no difference whether
Virginia 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 Virginia AIM rule is approvable as a measure meeting the
requirements of section 110 of the Act that strengthens the Virginia
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 it. 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.
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EPA has concluded that the Virginia AIM coatings rule meets the
criteria for approvability. It is worth noting that EPA agrees with the
commenters' conclusion that the Virginia AIM coatings rule is more
stringent than the Federal AIM coatings rule, though not for the
reasons given by the commenters, i.e., that the commenters' ``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 Virginia's AIM coatings rule is, on
its face, more stringent than the Federal AIM coatings rule. Examples
of categories for which Virginia'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 VOC content limit
for non-flat high gloss coatings is 380 grams/liter while the Virginia
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 Virginia AIM coatings rule's is 400 grams/liter.
Examples of where Virginia 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, EPA believes that Virginia's AIM coatings rule is as
stringent or more stringent than the Federal AIM coatings rule.
Further, EPA has received no comments that the Virginia AIM coatings
rule is less stringent than the Federal AIM coatings rule.
B. Comment: The Virginia AIM Coatings Rule Was Adopted in Violation
of Clean Air Act Section 183(e)(9)--The commenters state that in 1998,
after a seven-year rule development process, EPA promulgated its
nationwide emission limitation for AIM coatings pursuant to Clean Air
Act section 183(e). The commenters note that Virginia's AIM coatings
rule seeks to impose numerous VOC emission limits that will be more
stringent than the corresponding limits in EPA's regulation. The
commenters assert that
[[Page 24972]]
section 183(e)(9) 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 commenters believe that Virginia failed to engage in
that required consultation, and, therefore, that: (1) Virginia violated
section 183(e)(9) in its adoption of the Virginia 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 commenters, 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 on any products covered
under [section 183(e)].'' The commenters erroneously construe this as a
requirement for permission rather than informational consultation.
Further, the final Federal AIM coatings regulations at 40 CFR 59.410
explicitly provide 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,
Virginia 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 into the
SIP. See 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 Virginia'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 Virginia, 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 commenters' assertion that
Virginia failed to consult with EPA in the adoption of its AIM coatings
rule. EPA was fully cognizant of the requirements of the Virginia AIM
coatings rule before its formal adoption by Virginia.\5\ For all these
reasons, EPA disagrees that Virginia violated section 183(e)(9) in its
adoption of the its AIM coatings rule, and disagrees that approval of
the Virginia AIM coatings rule by EPA is in violation of or prohibited
by sections 110(a)(2)(A) and (a)(2)(E) of the Act.
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\5\ While EPA reviewed the model AIM coatings rule and the draft
Virginia version of that rule, EPA had no authority 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 submission
to ensure it meets the applicable criteria of section 110 generally,
and, in the case of an AIM rule to ensure it is at least as
stringent as the otherwise applicable Federal rule.
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C. Comment: The Virginia 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 commenters believe the OTC
violated Clean Air Act section 184(c)(1) 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 Clean Air
Act section 184(c)(2)-(4). The commenters assert that these purported
violations of the Clean Air Act prevent Virginia from adopting the
Virginia AIM coatings rule, and now prevent EPA from validly approving
that rule as a revision to the Virginia 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 Virginia did, basing its AIM coatings rule on the model
developed within the context of the OTC. In developing its state rule
from the OTC model, Virginia 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.\6\
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\6\ The commenters argue 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.
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.
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[[Page 24973]]
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 commenters), have been placed in the administrative record
for this final rulemaking.
D. Comment: The Virginia AIM Coatings Rule violates the Commerce
Clause and the Equal Protection Clause of the U.S. Constitution--The
commenters' title heading of this comment states that the Virginia 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 commenters claim that the
Virginia AIM coatings rule violates the Commerce Clause of Article I,
Section 8, of the U.S. Constitution, because it allegedly imposes an
unreasonable burden on interstate commerce. The commenters assert that
because the Virginia 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 commenters further claim
that the burdens of the Virginia AIM coatings rule are excessive and
outweigh the benefits of the rule. The commenters argue that EPA should
disapprove the SIP revision on this basis.
Response: As indicated previously, the commenters provide no
arguments or assertions as to the claim made in the title heading of
this comment that the Virginia AIM coatings rule violates the Equal
Protection Clause of the U.S. Constitution (see pages 14-16 of the
letter dated July 7, 2005 from the SWC to Docket ID No. VA151-5077, EPA
Proposal to Approve SIP Revision Submitted by the Commonwealth of
Virginia 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 the SWC on EPA's June
7, 2004 proposed approval of Virginia'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 Virginia
AIM rule violates the Equal Protection Clause of the U.S. Constitution.
Regarding the comment that Virginia'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 commenters' practical concerns caused by differing
state regulations, but disagrees with the commenters' view that the
Virginia's AIM coatings rule impermissibly impinges on interstate
commerce. A state law may violate the Commerce Clause in two ways: (1)
By explicitly discriminating between interstate and intrastate
commerce; or (2) 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 Virginia 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 Virginia 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 Virginia
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 Virginia in adopting the
Virginia AIM coatings rule is to protect the public health of the
citizens of Virginia. 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 commenters assert, without reference to any facts, that the
Virginia 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 Virginia AIM coatings rule are not so overwhelming as to trump
the state's interest in the protection of public health. First, the
Virginia AIM coatings rule does not restrict the transportation of
coatings in commerce itself, only the sale of nonconforming coatings
within the Northern Virginia VOC Emissions Control Area designated in 9
VAC 5-20-206. The Commonwealth's rule excludes coatings sold or
manufactured for use exclusively outside of the Northern Virginia VOC
Emissions Control Area or for shipment to others. 9 VAC 5-40-7120 C.
The Virginia 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).
[[Page 24974]]
Second, the Virginia AIM coatings rule is not constructed in such a
way that it has the practical effect of requiring extraterritorial
compliance with the state's VOC limits. The Virginia AIM coatings rule
only governs coatings manufactured or sold for use within the Northern
Virginia VOC Emissions Control Area. 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
Northern Virginia VOC Emissions Control Area ; (2) reformulating
nonconforming products for sale in the Northern Virginia VOC Emissions
Control Area and passing the extra costs on to consumers in that area;
(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 Virginia'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
Virginia AIM coatings rule will have the effect of reducing the
availability of coatings or increasing the cost of coatings within the
Northern Virginia VOC Emissions Control Area, 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 Virginia 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 Northern Virginia VOC
Emissions Control Area designated in 9 VAC 5-20-206, and does not
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 Virginia 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 preempt additional state regulation of coatings, as is
evident in section 183(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 creating 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 Virginia 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.
Virginia may have additional burdens to insure compliance with its
rule, but for purposes of this action, EPA presumes that Virginia takes
appropriate actions to enforce it as necessary. EPA has no grounds for
disapproval of the SIP revision based upon the commenters' Commerce
Clause comment.
E. Comment: The Emission Limits and Compliance Schedule in the
Virginia AIM Coatings Rule are Neither Necessary nor Appropriate to
Meet Applicable Requirements of the Clean Air Act--The commenters claim
that the Virginia AIM coatings rule is not ``necessary or appropriate''
for inclusion in the Virginia SIP, because EPA did not direct Virginia
to achieve VOC reductions through the AIM coatings rule, but left it to
the Commonwealth to decide how such reductions can be achieved. The
commenters further claim that the Virginia AIM coatings rule is not
necessary or appropriate for inclusion in the Virginia SIP because of
the numerous alleged procedural and substantive failings on the part of
VADEQ in promulgating the rule. The commenters assert that prior to
proposing a SIP revision, the state must first provide reasonable
notice and a
[[Page 24975]]
public hearing, thereby implying that Virginia failed to do so. The
commenters also assert that in its rulemaking materials for the
Virginia AIM coatings rule, the VADEQ claimed that it was ``required''
by EPA to pursue revisions to the Virginia AIM coatings rule (as
opposed to other potential measures) thereby unduly narrowing the range
of alternatives that the VADEQ considered. The commenters assert that
VADEQ's position that revisions to the Virginia AIM coatings rule were
required by EPA, and thus necessary, has no basis in fact.
Response: EPA disagrees with this comment. If fulfillment of the
``necessary or appropriate'' condition of section 110(a)(2)(A) required
EPA first to determine that a measure was necessary or appropriate and
then to 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.\7\ 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 an 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, 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 that a state adopt a
specific control measure cannot dictate whether a specific measure is
necessary or appropriate.
---------------------------------------------------------------------------
\7\ 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 Virginia or
any other state adopt this measure in order to reduce VOC emissions.
---------------------------------------------------------------------------
In this particular instance, Virginia 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 Virginia'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 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 Virginia's determination of the
best approach to obtain the needed reductions.
EPA has reviewed the Commonwealth's February 23, 2004 SIP revision
submission of the Virginia AIM coatings rule, and finds no indication
of a claim by VADEQ that EPA ``required'' the Commonwealth to revise
the Virginia AIM coatings rule. In its response to this same comment
raised by the SWC during the Commonwealth's rule adoption process, the
VADEQ responded that the proposed AIM rule was one of the control
measures selected by the Metropolitan Washington Air Quality Committee
in order to implement a regional plan for the Washington DC-MD-VA ozone
nonattainment area, and did not respond that EPA ``required'' the
proposed AIM coatings rule.
EPA also disagrees with the commenters' view of Virginia's public
notice and hearing procedure. In its February 23, 2004 SIP revision
submittal, the VADEQ includes a copy of the public notice published in
the Washington Times announcing its intent to adopt the AIM coatings
rule, and to hold two public hearings (providing date, time, venue),
and instructions for submitting comments. That public notice states
that it is being published in accordance with subsection 2.2-4007 of
the Code of Virginia and section 110(a)(1) of the of the Federal Clean
Air Act. The public notice's citation of section 110(a)(1) of the Act
serves as Virginia's notification that the proposed revised VOC
regulations would be revisions to the Virginia SIP. Indeed, from the
documentation provided in its February 23, 2004 submittal and from the
fact that both commenters testified and submitted written comments
pursuant to the hearing and these published notices, EPA has determined
that Virginia fulfilled the requirements of section 110(a) of the Act
with respect to reasonable notice and a public hearing in connection
with SIP revision submissions.
Virginia's February 23, 2004 SIP revision submittal 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 State law and constitution that are related to adoption of the
plan. 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 commenters have offered no proof, such as a Commonwealth court
decision, that Virginia's AIM coatings rule clearly violates local law.
EPA therefore is relying on Virginia's certification that it had the
legal authority to adopt its AIM coatings rule and that it has followed
all of the requirements of the Commonwealth's law that are related to
adoption of this SIP revision.
F. Comment: EPA's Action to Approve or Disapprove Virginia'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 commenters allege
that EPA's approval of the Virginia 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
[[Page 24976]]
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 Virginia's approval of its state AIM coatings rule, not
by EPA's approval of that rule into the Virginia SIP. If EPA failed to
act on the Virginia AIM coatings rule, the effects of the rule would
not be changed because this rule went effect in Virginia on January 1,
2005. Nothing that EPA might do at this point in time alters that fact.
Furthermore, Virginia voluntarily adopted its version of the OTC
model AIM coatings rule and, as the commenters themselves acknowledge,
EPA legally could not impose this control measure on the State.
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 Clean Air Act.
G. Comment: The Virginia AIM Coatings Rule is Arbitrary and
Capricious--The commenters assert that the Virginia AIM coatings rule
violates Virginia law as being arbitrary and capricious, because the
record supporting Virginia's actions is deficient in numerous areas.
First, the commenters allege that Virginia has not undertaken any
independent cost analyses, and instead relied solely on information
used by the CARB to support the suggested control measure (SCM).
Second, the commenters assert that VADEQ failed to address any relevant
differences between climatic conditions or the markets for the
regulated products in Virginia and California. Third, the commenters
allege that the analyses performed by the Commonwealth in adopting the
Virginia AIM coatings rule are insufficient to satisfy Subsection
10.1--1307.E of the Code of Virginia. Finally, the commenters assert
that Virginia's adoption of its AIM coatings rule is arbitrary and
capricious because its does not include an averaging provision for
inclusion in Virginia SIP as advocated by the commenters.
Response: EPA disagrees with this comment. The cost per ton figure
determined by Virginia in its economic analysis, its decision to rely
upon information from California and its decision whether to include
averaging provisions in its final AIM coatings rule, 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 process. The commenters raised the same issues
in regard to Subsection 10.1-1307.E of the Code of Virginia in comments
submitted to VADEQ during the Commonwealth's adoption process for its
AIM coatings rule. The VADEQ responded that the analyses performed in
support of its regulatory action to adopt the AIM coatings rule are
adequate to satisfy the requirements of Subsection 10.1-1307.E of the
Code of Virginia. Virginia's February 23, 2004 SIP revision submittal
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 State law and constitution that are related to
adoption of the plan. (Please see EPA's response to Comment II. E.).
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).
H. Additional Comments Submitted to the OTC and Commonwealth of
Virginia Included, by Reference, in the Comments Submitted to EPA on
the June 7, 2004 Proposed Approval of Virginia's AIM Coatings Rule (69
FR 31780):
(1) The NPCA alleges that its preferred alternative regulatory
scheme would allegedly result in at least 70 percent of the emissions
that would be secured by the Virginia AIM coatings rule while securing
additional VOC reductions beyond the national AIM coatings rule. The
NPCA comments that its proposal should be considered by Virginia as a
viable alternative to the OTC model rule.
(2) The commenters request that the Virginia AIM coatings rule
retain the Federal AIM coatings rule's VOC limits for the following
subcategories: interior wood and semitransparent stains, interior wood
sanding sealers, interior wood varnishes, interior wood primers, and
porch, floor and deck coatings (opaque).
(3) The commenters have concerns with the proposed standards for
certain paints and coatings, e.g., interior wood clear and semi-
transparent stains, interior wood varnishes, interior wood sanding
sealers, exterior wood primers, and floor coatings. The commenters
assert that the 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 commenters contend
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 due to seasonal
variations in temperature and humidity.
(4) The commenters contend that the increase in emissions resulting
from the performance issues and consequential repainting have not been
considered.
(5) A further comment contends that due to Virginia's climate, the
added costs of heating trucks and warehouses to transport and store
coatings will adversely impact manufacturers, shippers, end users and
on society in the form of more energy consumption.
Response: With regard to the comments submitted to the OTC, and to
Virginia on its proposed AIM coatings rule and subsequently, by
reference, to EPA on its June 7, 2004 proposed approval of Virginia's
February 23, 2004 SIP revision request, 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 requirements of a state regulation. Therefore, EPA cannot
modify Virginia's AIM coatings regulation as recommended in the
comments.
The Commonwealth's reliance upon both technical and cost analyses
from California in its decisions with regard to the provisions in its
final AIM coatings rule 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 commenters commented to the
Commonwealth 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 Virginia's February 23, 2004 SIP
revision submittal and has determined that the commenters'
[[Page 24977]]
comments on those issues they have incorporated by reference on this
rulemaking, along with the Commonwealth's responses to those issues,
are included therein. Virginia's February 23, 2004 SIP revision
submittal 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 State law that are related to adoption
of the plan. (See EPA's response to Comment II. E.). 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. General Information Pertaining to SIP Submittals From Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts * * *.'' The opinion
concludes that ``[r]egarding section 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
IV. Final Action
EPA is approving the Virginia SIP revision for the control of VOC
emissions from AIM coatings submitted on February 23, 2004. The
Virginia AIM coatings rule is part of the Virginia's strategy to
satisfy the requirements of a severe ozone nonattainment area and to
achieve and maintain the ozone standard in the Metropolitan Washington,
DC ozone nonattainment area.
V. 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 contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 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
requirement, 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.
[[Page 24978]]
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 Virginia 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 VV--Virginia
0
2. In Sec. 52.2420, the table in paragraph (c) is amended by adding
entries for Chapter 40, Part II, Article 49. The table in paragraph (e)
is amended by adding an entry for ``Documents Incorporated by
Reference'' after the existing entries for ``Documents Incorporated by
Reference.'' The amendments read as follows:
52.2420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Virginia Regulations and Statutes
----------------------------------------------------------------------------------------------------------------
State
State citation (9 VAC Title/subject effective EPA approval date Explanation [former
5) date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
-----------------------
Chapter 40 Existing Stationary Sources
----------------------------------------------------------------------------------------------------------------
* * * * * * *
-----------------------
Part II Emission Standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
-----------------------
Article 49 Architectural and Industrial Maintenance Coatings (Rule 4-49)
----------------------------------------------------------------------------------------------------------------
5-40-7120............. Applicability and 3/24/04 5/12/05 [Insert page
Designation of Affected number where the
Facility. document begins].
5-40-7130............. Definitions.............. 3/24/04 5/12/05 [Insert page
number where the
document begins].
5-40-7140............. Standard for Volatile 3/24/04 5/12/05 [Insert page
Organic Compounds. number where the
document begins].
5-40-7150............. Container Labeling 3/24/04 5/12/05 [Insert page
Requirements. number where the
document begins].
5-40-7160............. Standard for Visible 3/24/04 5/12/05 [Insert page
Emissions. number where the
document begins].
5-40-7170............. Standard for Fugitive 3/24/04 5/12/05 [Insert page
Dust/Emissions. number where the
document begins].
5-40-7200............. Compliance............... 3/24/04 5/12/05 [Insert page
number where the
document begins].
5-40-7210............. Compliance Schedules..... 3/24/04 5/12/05 [Insert page
number where the
document begins].
5-40-7220............. Test Methods and 3/24/04 5/12/05 [Insert page
Procedures. number where the
document begins].
5-40-7230............. Notification, Records and 3/24/04 5/12/05 [Insert page
Reporting. number where the
document begins].
[[Page 24979]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP Applicable geographic submittal EPA approval date Additional
revision area date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Documents Incorporated by Northern Virginia VOC 3/24/04 5/12/05 [Insert page 9 VAC 5-20-21,
Reference. Emissions Control number where the Sections E.1.a.(7).,
Area designated in 9 document begins]. E.4.a.(12) through
VAC 5-20-206. a.(17), E.10.,
E.11., E.13.a.(1),
and E.13.a.(2).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 05-9313 Filed 5-11-05; 8:45 am]
BILLING CODE 6560-50-P