[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69298-69304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26069]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[OAR-2003-0084; FRL-7840-8]
RIN 2060-AI45


Revision to Definition of Volatile Organic Compounds--Exclusion 
of t-Butyl Acetate

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action revises EPA's definition of volatile organic 
compounds (VOC) for purposes of Federal regulations related to 
attaining the National Ambient Air Quality Standards (NAAQS) for ozone 
under title I of the Clean Air Act (CAA). This revision modifies the 
definition of VOC to say that t-butyl acetate (also known as tertiary 
butyl acetate or informally as TBAC or TBAc) will not be VOC for 
purposes of VOC emissions limitations or VOC content requirements, but 
will continue to be VOC for purposes of all recordkeeping, emissions 
reporting, and inventory requirements which apply to VOC. This revision 
is made on the basis that this compound has negligible contribution to 
tropospheric ozone formation. As a result, if you are subject to 
certain Federal regulations limiting emissions of VOCs, your emissions 
of TBAC may not be regulated for some purposes.

DATES: This final rule is effective on December 29, 2004.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OAR-2003-0084 (legacy docket number A-99-02). All 
documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is 
not publicly available, i.e., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
in EDOCKET or in hard copy at the Docket, EPA/DC, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal 
holidays.

FOR FURTHER INFORMATION CONTACT: William Johnson, Office of Air Quality 
Planning and Standards, Air Quality Strategies and Standards Division 
(C539-02), Environmental Protection Agency, Research Triangle Park, NC 
27711; (919)541-5245; e-mail: <a href="/cdn-cgi/l/email-protection#1e747176706d71703069777272777f73725e7b6e7f30797168"><span class="__cf_email__" data-cfemail="f49e9b9c9a879b9ada839d98989d959998b4918495da939b82">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. How Does This Rule Fit Into Existing Regulations?

    The EPA is revising the definition of VOC to say that TBAC will not 
be a VOC for purposes of VOC emissions limitations or VOC content 
requirements, but will continue to be a VOC for purposes of all 
recordkeeping, emissions reporting, and inventory requirements which 
apply to VOC. If you use or produce TBAC and are subject to EPA 
regulations limiting the use of VOCs in your product, limiting the VOC 
emissions from your facility, or otherwise controlling your use of VOCs 
for purposes related to attaining the ozone NAAQS, then you will not 
count TBAC as a VOC in determining whether you meet these regulatory 
obligations. However, TBAC emissions will still be subject to reporting 
requirements that exist for other VOC emissions. This action may also 
affect whether TBAC is considered a VOC for State regulatory purposes, 
depending on whether the State relies on EPA's definition of VOC. This 
decision responds to a petition submitted by the Lyondell Chemical 
Company \1\ and is based on information

[[Page 69299]]

included in the petition and other information submitted to the docket 
for this rule (OAR-2003-0084). The EPA proposed the VOC exemption of 
TBAC on September 30, 1999 (64 FR 52731), and provided a 60-day comment 
period.
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    \1\ The petition was submitted on January 17, 1997, by ARCO 
Chemical Company. Lyondell is the successor to ARCO for this 
petition, and EPA will refer to the petitioner as Lyondell 
throughout this final rule.
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    Tropospheric ozone, commonly known as smog, occurs when VOCs and 
nitrogen oxides (NO<INF>X</INF>) react in the atmosphere. Because of 
the harmful health effects of ozone, EPA and State governments limit 
the amount of VOCs and NO<INF>X</INF> that can be released into the 
atmosphere. Volatile organic compounds are those compounds of carbon 
(excluding carbon monoxide, carbon dioxide, carbonic acid, metallic 
carbides or carbonates, and ammonium carbonate) that form ozone through 
atmospheric photochemical reactions. Compounds of carbon (also known as 
organic compounds) have different levels of reactivity--that is, they 
do not react at the same speed or do not contribute to ozone formation 
to the same extent. It has been EPA's policy that organic compounds 
with a negligible level of reactivity need not be regulated to reduce 
ozone. The EPA determines whether a given organic compound has 
``negligible'' reactivity by comparing the compound's reactivity to the 
reactivity of ethane. The EPA lists these compounds in its regulations 
(at 40 CFR 51.100(s)) and excludes them from the definition of VOCs. 
The chemicals on this list are often called ``negligibly reactive'' 
organic compounds.

B. What Evidence Does the Petitioner Present To Support Classifying 
TBAC as Negligibly Reactive?

    On January 17, 1997, Lyondell submitted a petition to EPA which 
requested that EPA add TBAC to the list of compounds that are 
designated negligibly reactive in the definition of VOC at 40 CFR 
51.100(s). The petitioner subsequently submitted supplemental materials 
to EPA in support of its petition. These materials are contained in 
docket OAR-2003-0084. The petitioner based the request on a comparison 
of the reactivity of TBAC to that of ethane, the latter having already 
been listed, since 1977, as negligibly reactive. In the past, EPA has 
determined that ethane and compounds with lower reactivity than ethane 
are negligibly reactive and therefore exempted them from the definition 
of VOC. Reactivity data presented by Lyondell in support of the 
petition included both k<INF>OH</INF> values and incremental reactivity 
values. The k<INF>OH</INF> values are values of the rate constant for 
the VOC + OH (hydroxyl radical) reaction. The incremental reactivity 
values, which support the petition and reflect TBAC's potential for 
producing ozone in the atmosphere, are based on atmospheric 
photochemical modeling.
    Lyondell's primary case for TBAC being less reactive than ethane is 
based on the use of incremental reactivity data set forth in a report 
titled ``Investigation of the Atmospheric Ozone Formation Potential of 
T-Butyl Acetate'' by W.P.L. Carter, et al. In that study, Carter 
compared the incremental ozone formed per-gram of TBAC under urban 
atmosphere conditions to that formed, under the same conditions, per-
gram of ethane. The study repeated these comparisons for 39 condition 
scenarios, that is, sets of ambient conditions intended to represent 39 
urban areas across the United States. Carter concluded that, on 
average, TBAC formed 0.4 times as much ozone as an equal mass of ethane 
under the conditions assumed in the study.
    Comparing the reactivity of TBAC to ethane on a per mole basis, as 
opposed to a per gram basis, calculations based on Carter's results 
show that a mole of TBAC forms 1.5 times the ozone formed by a mole of 
ethane under the conditions assumed in the study. The difference in 
reactivity results between the ``per gram'' and ``per mole'' 
comparisons is due to the fact that a molecule of TBAC is almost four 
times heavier than a molecule of ethane. Along with other reasons 
stated below, this ``closeness'' to EPA's reactivity exemption line 
requires the Agency to retain certain emission reporting requirements 
for TBAC.

C. How Does EPA Determine Whether an Organic Compound Is Negligibly 
Reactive?

    In 1977, EPA published the ``Recommended Policy on Control of 
Volatile Organic Compounds'' (42 FR 35314, July 8, 1977) which 
established the basic policy that EPA has used regarding organic 
chemical photochemical reactivity since that time. In that statement, 
EPA identified the following four compounds as being of negligible 
photochemical reactivity and said these should be exempt from 
regulation under State Implementation Plans: methane; ethane; 1,1,1-
trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-
trifluoroethane (CFC-113). That policy statement provides that as new 
information becomes available, EPA may periodically revise the list of 
negligibly reactive compounds to add compounds to or delete them from 
the list.
    The EPA's decision to exempt certain compounds in its 1977 policy 
was heavily influenced by experimental smog chamber work done earlier 
in the 1970's. In this experimental work, various compounds were 
injected into a smog chamber at a molar concentration that is typical 
of the total molar concentration of VOCs in Los Angeles ambient air (4 
ppmv). As the compound was allowed to react with NO<INF>X</INF> at 
concentrations of 0.2 ppm, the maximum ozone formed in the chamber was 
measured. If the compound in the smog chamber did not result in ozone 
formation of 0.08 ppm (0.08 ppm was the NAAQS for oxidants at that 
time), it was assumed that emissions of the compound would not cause 
the oxidant standard to be exceeded. The compound could then be 
considered to be negligibly reactive. Ethane was the most reactive 
compound tested that did not cause the 0.08 ozone level in the smog 
chamber to be met or exceeded. Based on those findings and judgments, 
EPA designated ethane as negligibly reactive, and ethane became the 
benchmark VOC species separating reactive from negligibly reactive 
compounds.
    Since 1977, the primary method for comparing the reactivity of a 
specific compound to that of ethane has been to compare the 
k<INF>OH</INF> values for ethane and the specific compound of interest. 
The k<INF>OH</INF> value represents the molar rate constant for 
reactions between the subject compound (e.g., ethane) and the hydroxyl 
radical (i.e., <bullet>OH). This reaction is very important since it is 
the primary pathway by which most organic compounds initially 
participate in atmospheric photochemical reaction processes. The EPA 
has exempted forty five compounds or classes of compounds based on a 
comparison of k<INF>OH</INF> values since 1977.
    In 1994, in response to a petition to exempt volatile methyl 
siloxanes, EPA, for the first time, considered a comparison to ethane 
based on Incremental Reactivity (IR) metrics (59 FR 50693, October 5, 
1994). The use of IR metrics allowed EPA to take into consideration the 
ozone forming potential of other reactions of the compound in addition 
to the initial reaction with the hydroxyl radical. Volatile methyl 
siloxanes proved to be less reactive than ethane on a per mole basis. 
In 1995, EPA considered another compound, acetone, using IR metrics. 
Because acetone breaks down to form ozone by the process of photolysis 
rather than by the normal OH reaction scheme, EPA considered the IR 
metrics instead of K<INF>OH</INF> values, and exempted acetone based on 
the fact that acetone was less reactive than ethane on the basis of 
grams of ozone formed per grams of VOC emitted (60 FR 31635, June 16, 
1995). Prior to 1994, all

[[Page 69300]]

exemptions had been based on K<INF>OH</INF> values compared on the 
basis of a mole of ozone formed per mole of VOC emitted. Since 1995, 
EPA has exempted one additional compound, methyl acetate, based on 
comparisons of IR metrics. The reactivity of methyl acetate was found 
to be comparable to or less than that for ethane under a per mole 
basis.
    In the proposal for this rule (64 FR 52731), EPA announced two 
things: (1) Our intent to grant Lyondell's petition for exemption of 
TBAC based on a comparison of IR metrics for TBAC as compared to ethane 
in units of grams of ozone formed per gram of VOC emitted, and (2) our 
intent to base decisions on future petitions for VOC exemptions only on 
an equi-molar comparison of K<INF>OH</INF> and IR values for the 
compound in question to the K<INF>OH</INF> and IR values for ethane. In 
the proposal, EPA indicated that it might grant the TBAC exemption on 
the theory that the petitioner had detrimentally relied on earlier EPA 
statements and actions concerning the use of a gram-based comparison 
rather than a molar comparison of the reactivity of compounds.

D. What Comments Did EPA Receive on the Proposal?

    In the proposal for the TBAC exemption, EPA indicated that 
interested persons could request that EPA hold a public hearing on the 
proposed action (see section 307(d)(5)(ii) of the CAA). There were no 
requests for a public hearing.
    In the proposal action, EPA provided for a public comment period. 
The EPA received 30 comment letters. The comments received were divided 
into two general categories: comments concerned with EPA VOC exemption 
policy in general and comments focused specifically on the exemption of 
TBAC. Several commented on EPA VOC exemption policy, in general, as 
well as supporting the TBAC exemption. The comments received are too 
numerous to list each one in this final rule. All of the comment 
letters have been placed in the docket for this action. A summary of 
the comments received and EPA responses are given in a technical 
support document, titled ``Responses to Significant Comments on the 
Proposed Revision to the Definition of Volatile Organic Compounds--
Exclusion of t-Butyl Acetate (64 FR 52731, September 30, 1999),'' which 
is in the docket. In today's final rule, we have summarized what EPA 
views as the most significant comments and our responses.

II. Comments Dealing With EPA's VOC Exemption Policy Comment

    A number of commenters asserted that the primary purpose of a VOC 
exemption policy should be to encourage replacement of current 
emissions of highly reactive compounds with emissions of lower reactive 
compounds. This would ostensibly result in lower ozone formation and 
lower adverse environmental impact. The commenters stated that one way 
of doing this would be to exempt more low reactivity compounds. The use 
of a ``reactivity per gram'' basis for comparing reactivities for 
exemption purposes would be less strict than a ``per mole'' basis, and 
would permit more exemptions, and thus more solvent substitution.

Response

    The intent of EPA's current VOC exemption policy is to avoid 
placing an undue regulatory burden on the use of compounds that do not 
significantly contribute to the formation of harmful concentrations of 
ozone. Once a compound is exempted, emissions of the compound may 
increase significantly due to substitution and new uses of the 
compound. Because these potential increases are exempt from control, it 
is important that the compounds be negligibly reactive and not simply 
marginally less reactive than compounds that they may replace. If by 
exempting negligibly reactive compounds EPA encourages the substitution 
of negligibly reactive compounds for highly reactive compounds, this is 
an added benefit.
    EPA is currently evaluating a variety of scientific, legal, and 
practical issues associated with the design and implementation of a 
policy to encourage further substitution, such as the use of VOC 
reactivity scales. To address these issues, EPA is working with the 
State of California and the Reactivity Research Working Group, a 
government/industry/ academic working group established under NARSTO 
(formerly the North American Research Strategy for Tropospheric Ozone) 
to identify research priorities related to VOC reactivity. The results 
of these efforts will be considered by EPA as part of a multi-year 
review of our current VOC policy and addressed through future 
rulemakings.

Comment

    Many commenters opposed EPA's announcement that reactivity 
petitions will be evaluated on a ``reactivity per mole'' basis for 
petitions submitted after the TBAC proposal notice date. These 
commenters supported the ``per gram'' basis and questioned the use of 
the smog chamber experiments that were reported in 1977 as the basis 
for the molar comparison with ethane.

Response

    The EPA believes that a ``reactivity per mole'' comparison is more 
consistent with the smog chamber experiments underlying the 1977 
policy, is more consistent with the historical use of k<INF>OH</INF> 
values as a basis of comparison, and is arguably more environmentally 
protective than a ``reactivity per mass'' comparison. However, EPA 
believes that the issues raised by commenters warrant a more extensive 
review of the overall exemption policy and its scientific bases. 
Consequently, EPA is not revising its current VOC exemption policy with 
this final rule. As noted in the proposal, EPA has commenced a multi-
year review of its policy, which will hopefully be informed by the 
research activities being identified by the RRWG mentioned above. The 
EPA believes that it would be desirable for this review to be completed 
before reaching a decision on how to address future petitions. Parties 
submitting petitions for VOC exemptions should expect their petitions 
to be reviewed under a new policy.

III. Comments Specific to the TBAC Exemption Proposal Comment

    Commenters opposed to the TBAC exemption said that because EPA 
intended to change its exemption policy to a ``per mole'' comparison, 
EPA should apply that test to this petition and not grandfather it 
under the ``per gram'' policy. The petitioner argued that it relied on 
past EPA statements regarding the acceptability to EPA of using a per 
gram basis in the acetone exemption proposal (59 FR 49877, September 
30, 1994) and final rule (60 FR 31633, June 16, 1995) and in the 1995 
Report to Congress ``Study of Volatile Organic Compound Emissions from 
Consumer and Commercial Products.'' The petitioner argued that in 
reliance on these statements it had expended significant resources in 
research and planning to develop its petition for the exemption of TBAC 
on the per gram basis.

Response

    As discussed above, in today's action, EPA is not finalizing a 
change to the existing VOC exemption policy. Therefore, our decision to 
grant the TBAC petition does not involve grandfathering this pre-
existing petition from the application of a new policy. In

[[Page 69301]]

any event, we do not believe that the petitioner's investment of 
significant resources in research and planning would be, in itself, a 
sufficient justification for such grandfathering. First, an important 
consideration for grandfathering is the statutory interest in applying 
the new policy. If we were to adopt a policy today permitting only a 
per mole comparison, retaining ethane as the benchmark, we might 
conclude that granting the TBAC petition would not further the 
statutory interest in reducing ozone, because on a per-mole basis TBAC 
is more reactive than ethane. A second consideration for grandfathering 
is whether the new policy represents an abrupt departure from well-
established practice. We would not necessarily characterize use of a 
per-mole basis in evaluating VOC exemption petitions as such a 
departure. Most VOC exemptions to date have been granted using 
k<INF>OH</INF> values, which is consistent with using a per-mole basis.
    The remaining considerations for grandfathering relate to the 
petitioner's reliance on the old policy and the burden to the 
petitioner imposed by the new policy. Although the petitioner stated 
that it expended significant resources in reliance on the per-gram 
policy, the petitioner competes in a regulated marketplace in which 
regulations can be expected to evolve with both scientific 
understanding and market conditions. In addition, because the 
petitioner claimed that it undertook only preliminary activities, such 
as research and planning, it would be difficult to identify concrete 
effects of the petitioner's alleged reliance. Furthermore, changes in 
EPA's VOC exemption policy would likely affect both the petitioner and 
its competitors. As commenters pointed out, EPA previously exempted 
acetone despite the argument that another company had developed a low 
VOC industrial cleaner as an alternative to acetone in reliance on 
acetone's status as a VOC. In summary, if we were to apply a 
grandfathering analysis to a VOC exemption petition such as the TBAC 
petition, we would consider not only investment of resources in 
research and planning, but also the other factors discussed here.

Comment

    Some commenters questioned the exemption of TBAC before further 
study of the compound's toxicity. According to the commenters: (i) The 
health effects data available for TBAC are limited; (ii) no chronic, 
developmental, or reproductive toxicity data are available for TBAC; 
and (iii) no genetic toxicity or carcinogenicity data are available for 
TBAC. Due to the lack of information on TBAC, the commenters contended 
that it is not possible to assess the potential for adverse effects 
from prolonged exposure. However, the commenters point to evidence that 
TBAC metabolizes to t-butyl alcohol, for which some animal testing data 
suggests that it may be carcinogenic. This information was emphasized 
in a letter to EPA from the California Environmental Protection Agency 
(signed by Air Resources Board, Office of Environmental Health Hazard 
Assessment,and State Water Resources Control Board). Other commenters 
urged EPA to deny the exclusion of TBAC from the VOC definition because 
of concerns about toxicity.
    Since the close of the comment period, the California Air Resources 
Board, in conjuction with California's Office of Environmental Health 
Hazard Assessment, has completed a draft assessment of a VOC exemption 
for TBAC. The assessment quantifies (1) the potential benefits 
associated with decreased ozone formation as a result of TBAC 
substituting for more reactive compounds, and (2) the potential cancer 
risks associated with increased exposure to TBAC. A copy of this draft 
assessment is included in the docket.
    As part of their original submission, Lyondell had provided EPA 
with information on the acute toxicity of TBAC. As input into 
California's assessment, Lyondell submitted to EPA and California a 
variety of additional information about chronic toxicity. Copies of 
this information, as well as a copy of Lyondell's critique of 
California's assessment, are included in the docket.

Response

    The EPA has carefully reviewed the limited data that is available 
on the chronic toxicity of TBAC, including California's risk 
assessment, and has reviewed the data available about the potential 
health benefits due to reduced ozone exposure from the use of TBAC as a 
substitute for more reactive substances. The EPA has concluded that (1) 
there is insufficient evidence of a significant toxic risk to justify 
not granting the exemption petition, and (2) granting the exemption 
will provide a net improvement in public health and environmental 
quality. However, given the potential for increased use of TBAC, EPA 
does believe that further toxicity testing is warranted to resolve the 
uncertainty associated with the limited evidence that is currently 
available.
    In response to these concerns, Lyondell has agreed to work with EPA 
to perform the toxicity testing needed to resolve the current 
uncertainty. As part of this effort, Lyondell will conduct a tiered 
series of tests designed to confirm and elucidate the mechanisms of 
potential toxicity observed in the limited data available. Lyondell 
will submit the testing results to an independent scientific peer 
consultation panel that will make recommendations to EPA and Lyondell 
as to whether further testing is warranted. Based on the information 
currently available and experience with similar compounds, EPA believes 
that the first tier of testing is likely to be sufficient to resolve 
much of the current uncertainty. Until the testing program is completed 
and evaluated, Lyondell has agreed to limit their annual production of 
TBAC to ensure that significant chronic ambient exposures will not 
occur. If the testing program indicates that TBAC does pose a 
potentially significant public health risk, EPA will take appropriate 
regulatory action to address the risk.
    The EPA believes that moving forward with the exemption and 
simultaneously pursuing additional toxicity testing is a responsible 
risk management approach that allows society to benefit from lower 
ozone exposures while protecting against other potential chronic risks.

Comment

    The petitioner claimed that TBAC will be used to substitute for the 
common industrial solvents toluene and xylene which are classified by 
EPA as Hazardous Air Pollutants (HAPs) and which are much more 
photochemically reactive than TBAC. The petitioner claimed that this 
will be a great environmental benefit from the TBAC exemption. Other 
commenters asserted that TBAC will not be substituted to any great 
degree for toluene and xylene as the petitioner claims. These 
commenters claimed that TBAC is more expensive than toluene and xylene 
and may be added on top of the legal VOC limit of these chemicals in a 
product to increase the solvent content of product without increasing 
VOC content.

Response

    The EPA acknowledges that the properties of TBAC make it 
technically suitable to be substituted for toluene and xylene in many 
products. The extent to which TBAC will be used as a substitute will 
depend on costs. Currently, TBAC is relatively expensive compared to 
toluene and xylene. However, if exempted, demand for TBAC is expected 
to increase, increasing production and driving down costs. There is a 
possibility that companies will use relatively cheap solvents like 
toluene and xylene up to

[[Page 69302]]

the legal limit and then use TBAC to add solvent above the applicable 
VOC content limits. Ultimately, EPA expects that substitution of TBAC 
for more reactive and harmful solvents will outweigh increases in 
solvent use, resulting in a net improvement in environmental quality. 
However, this is not the reason that EPA is granting this exemption 
from VOC emission limitations. The action is based on photochemical 
reactivity relative to ethane.
    After reviewing these comments and the other material in the 
docket, EPA is acting in accordance with our existing policy by 
modifying the definition of VOC to say that TBAC is not a VOC for 
purposes of VOC emission limitations or content requirements because 
TBAC is less reactive than ethane on a per gram basis.

III. Why Is EPA Asking That Emissions of TBAC Continue To Be Reported?

    In prior VOC exemption decisions, EPA has not required continued 
recordkeeping and reporting on the use and emissions of the exempt 
compounds. However, EPA has proposed to retain recordkeeping and 
reporting requirements for TBAC and other future exempt compounds based 
on our understanding that even ``negligibly reactive'' compounds may 
contribute significantly to ozone formation if present in sufficient 
quantities and the need to represent these emissions accurately in 
photochemical modeling analyses.
    In addition to these general concerns about the potential 
cumulative impacts of negligibly reactive compounds, the need to 
maintain recordkeeping and reporting requirements for TBAC is further 
justified by the potential for widespread use of TBAC, the fact that 
its relative reactivity falls close to the borderline of what has been 
considered negligibly reactive, and the continuing efforts to assess 
long-term health risks. Therefore, in today's rule, EPA is excluding 
TBAC from the definition of VOC for purposes of control requirements, 
but EPA is requiring that emissions information for TBAC continue to be 
recorded and reported.
    The EPA does not believe that a requirement to collect and report 
emissions data on TBAC is a new recordkeeping burden on industry, 
because users of TBAC are currently required to collect and report this 
information on TBAC as a VOC. However, industry will now be required to 
track and report TBAC emissions as a distinct class of emissions, 
separate from non-exempt VOCs.
    Similarly, EPA does not believe that a requirement for continued 
reporting of TBAC emissions is a new burden on States, since States are 
already collecting information and reporting on these emissions.
    The EPA is now in the process of assessing its VOC policy in 
general, and its VOC exemption policy in particular. EPA intends to 
address the issue of whether recordkeeping and reporting requirements 
should apply to other exempt compounds as part of a future rulemaking 
addressing possible changes to EPA's overall VOC policy. Today's rule 
requiring record keeping and reporting for TBAC does not necessarily 
indicate the content of a future overall policy.

IV. What Is Today's Final Action?

    Today's final action is based on EPA's review of the material in 
Docket No. OAR-2003-0084. The EPA hereby amends its definition of VOC 
at 40 CFR 51.100(s) to say that TBAC is not VOC for purposes of VOC 
emissions limitations or VOC content requirements, but will continue to 
be VOC for purposes of all recordkeeping, emissions reporting, and 
inventory requirements which apply to VOC. You should not count TBAC as 
a VOC for purposes of EPA regulations related to attaining the ozone 
NAAQS, including regulations limiting your use of VOCs or your 
emissions of VOCs; but you must record and report the use and emissions 
of TBAC. Your recordkeeping and reporting of TBAC must conform to those 
requirements that would apply to you for non-exempt VOCs used in the 
same manner or in the same application as TBAC, except that TBAC 
emissions shall be broken out from other VOC and reported as a distinct 
class of emissions. You should check with your State to determine 
whether you should count TBAC as a VOC for State regulations. However, 
your State should not include TBAC in its VOC emissions inventories for 
determining reasonable further progress under the CAA (e.g., section 
182(b)(1)) or take credit for controlling this compound in its ozone 
control strategy. However, States must include TBAC in inventories used 
for ozone modeling to assure that such emissions are not having a 
significant effect on ambient ozone levels. States are encouraged to 
include other already exempt compounds in such inventories, and should 
anticipate that future VOC exemptions will not eliminate inventory 
requirements.
    The EPA is not finalizing a decision on how future petitions will 
be evaluated. We intend to publish a future notice inviting public 
comment on the VOC exemption policy and the concept of negligible 
reactivity as part of a broader review of overall policy. Given the 
existence of this policy review, parties submitting petitions for VOC 
exemptions should expect their petitions to be reviewed under a new 
policy.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of this Executive order. The order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligation of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive order 12866 and is 
therefore not subject to OMB review.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This action revises the definition of ``Volatile Organic Compounds'' 
for purposes of federal regulations related to attaining the National 
Ambient Air Quality Standards (NAAQS), for ozone, and makes no changes 
to recordkeeping or reporting burden.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose

[[Page 69303]]

or provide information to or for a Federal agency. This includes the 
time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; train personnel to be able to respond to a collection of 
information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. Today's rule 
concerns only the definition of VOC and does not directly regulate any 
entities. The RFA analysis does not consider impacts on entities which 
the action in question does not regulate. See Motor & Equipment 
Manufacturers Ass'n v. Nichols, 142 F. 3d 449, 467 (D.C. Cir., 1998); 
United Distribution Cos. v. FERC, 88 F. 3d 1105, 1170 (D.C. Cir., 
1996), cert. denied, 520 U.S. 1224 (1997).

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
1 year. Before promulgation of an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost effective, or least burdensome 
alternative that achieves the objective of the rule, unless EPA 
publishes with the final rule an explanation of why that alternative 
was not adopted. Before EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments including 
Tribal governments, it must have developed under section 203 of the 
UMRA a small government plan which informs, educates and advises small 
governments on compliance with the regulatory requirements. Finally, 
section 204 provides that for any rule that imposes a mandate on a 
State, local or Tribal government of $100 million or more in any 1 
year, the Agency must provide an opportunity for such governmental 
entities to provide input in development of the rule.
    Since today's rulemaking is deregulatory in nature and does not 
impose any mandate on governmental entities or the private sector, EPA 
has determined that sections 202, 203, 204 and 205 of the UMRA do not 
apply to this action.

E. Executive Order 13132: Federalism

    Executive order 13132, entitled ``federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's final rule does not 
impose any new mandates on State or local governments, but simply 
retains the existing requirement to include TBAC in inventories used 
for ozone modeling. Thus, Executive Order 13132 does not apply to this 
rule.

F. Executive Orders 13084 and 13175: Consultation and Coordination With 
Indian Tribal Governments

    On November 6, 2000, the President issued Executive order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive order 13175 took effect on January 6, 2001, 
and revokes Executive order 13084 (Tribal Consultation) as of that 
date. The EPA developed this final rule, however, during the period 
when Executive order 13084 was in effect; thus, EPA addressed Tribal 
considerations under Executive order 13084.
    Under Executive order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the Tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive order 13084 
requires EPA to provide to the OMB, in a separately identified section 
of the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected Indian Tribal 
governments, a summary of the nature of their concerns, and a statement 
supporting the need to issue the regulation. In addition, Executive 
order 13084 requires EPA to develop an effective process permitting 
elected officials and other representatives of Indian Tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's rule does not impose substantial direct compliance costs on 
the communities of Indian Tribal governments. This rule is deregulatory 
in nature and does not impose any direct compliance costs. Accordingly, 
the requirements of section 3(b)of Executive order 13084 do not apply 
to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive

[[Page 69304]]

order 12866, and (2) concerns an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by the Agency.
    While this rule is not subject to the Executive order because it is 
not economically significant as defined in Executive order 12866, EPA 
has reason to believe that ozone has a disproportionate effect on 
active children who play outdoors. (See 62 FR 38856 and 38859, July 18, 
1997). The EPA has not identified any specific studies on whether or to 
what extent t-butyl acetate directly affects children's health. The EPA 
has placed the available data regarding the health effects of t-butyl 
acetate in docket no. OAR-2003-0084.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive order 13211, ``Actions that 
Significantly Affect Energy Supply, distribution, or Use,'' (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive order 12866. Information on the methodology and data 
regarding the assessment of potential energy impacts is found in 
chapter 6 of the U.S. EPA 1002, Cost, Emission Reduction, Energy, and 
Economic Impact Assessment of the Proposed Rule Establishing the 
Implementation Framework for the 8-hour, 0.08 ppm Ozone National 
Ambient Air Quality Standard, prepared by the Innovative Strategies and 
Economics Group, Office of Air Quality Planning and Standards, Research 
Triangle Park, NC, April 24, 2003.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113. Section 12(d), (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Controller General of the 
United States.
    The EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 29, 2004.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 18, 2004.
Michael O. Leavitt,
Administrator.

0
For reasons set forth in the preamble, part 51 of chapter I of title 40 
of the Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS.

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart F--[Amended]

0
2. Section 51.100 is amended by adding paragraph (s)(5) to read as 
follows:


Sec.  51.100  Definitions.

* * * * *
    (s) * * *
    (5) The following compound(s) are VOC for purposes of all 
recordkeeping, emissions reporting, photochemical dispersion modeling 
and inventory requirements which apply to VOC and shall be uniquely 
identified in emission reports, but are not VOC for purposes of VOC 
emissions limitations or VOC content requirements: t-butyl acetate.
* * * * *
[FR Doc. 04-26069 Filed 11-26-04; 8:45 am]
BILLING CODE 6560-50-P


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