[Federal Register Volume 69, Number 225 (Tuesday, November 23, 2004)]
[Rules and Regulations]
[Pages 68080-68089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25815]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA211-4231; FRL-7835-4]


Approval and Promulgation of Air Quality Implementation Plans, 
Pennsylvania; Control of Volatile Organic Compound Emissions From 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 Pennsylvania. 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 the Act).

EFFECTIVE DATE: This final rule is effective on December 23, 2004.

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; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; 
and Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at <a href="/cdn-cgi/l/email-protection#1f6e6a76716b70316d706c7a5f7a6f7e31787069"><span class="__cf_email__" data-cfemail="ddaca8b4b3a9b2f3afb2aeb89db8adbcf3bab2ab">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 11, 2004 (69 FR 11580), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed 
approval of a Pennsylvania regulation pertaining to the control of VOC 
from AIM coatings. The formal SIP revision was submitted by the 
Pennsylvania Department of Environmental Protection (PADEP) on December 
3, 2003. The specific requirements of Pennsylvania'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. On April 12, 2004, EPA 
received timely comments from two parties on the March 11, 2004 NPR. 
Some of the timely comments were adverse to EPA's March 11, 2004 
proposed rulemaking. EPA also received late comments from one party. 
While EPA is not obligated to consider late comments, EPA has elected 
to do so in this instance. A summary of the comments submitted and 
EPA's responses are provided in Section II of this document.
    On October 19, 2004, the PADEP submitted a supplement to its 
December 3, 2003 SIP revision. The supplement includes a nonsubstantive 
correction notice published in the Pennsylvania Bulletin, 33 Pa. B. 
5618 (November 15, 2003) which corrects numbering and typographical 
errors that appeared at 33 Pa. B. 5297 (October 25, 2003) in the 
adoption of Chapter 130, Subchapter C. (relating to architectural and 
maintenance coatings). The subsections in Subchapter C. Architectural 
and Industrial Maintenance Coatings have been corrected to number as 
subsections 130.601--130.611. The supplement also includes the codified 
version of the Pennsylvania AIM coating regulation, 25 Pa. Code, 
Subchapter C. Subsections 130.601-130.611, effective October 25, 2003.
    EPA is aware that concerns have been raised about the achievability 
of VOC content limits of some of the product categories under the 
Pennsylvania AIM coatings rule. EPA understands that under the 
Commonwealth's rule these concerns may be addressed through a variance 
process, which we support, that may result in changes to the limits for 
certain categories. Although we are approving this rule today, the 
Agency is concerned that if the rule's limits make it impossible for 
manufacturers to produce coatings that are desirable to consumers, 
there is a possibility that users may misuse the products by adding 
additional solvent, thereby circumventing the rule's intended VOC 
emission reductions. We intend to work with the Commonwealth 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

    A. Comment: Request for Clarification--One commenter, the 
Department of the Navy on behalf of the Department of Defense (DOD), 
compliments PADEP and EPA for their effort to ensure that Pennsylvania 
attains and maintains compliance with the National Ambient Air Quality 
Standards (NAAQS). The DOD requests clarification of the Applicability 
subsection of Pennsylvania's rule (citing to 25 Pa. Code subsection 
130.601). The DOD states that in response to the difficulty military 
installations have had with managing hazardous materials, the military 
services adopted and implemented an innovative approach to managing 
hazardous materials, including AIM coatings that are used in the 
military installations. The DOD explains that this approach establishes 
a single point of control and accountability over the purchase, receipt 
and distribution of hazardous materials to the various organizations 
around a military installation. This ``single point of control'' 
receives, approves, and processes all requests for hazardous materials 
submitted by the various organizations on an installation. The DOD goes 
on to state that once the materials are ordered, purchased and obtained 
by this ``single point of control,'' this unit ``supplies'' the various 
organizations with requested amounts of particular hazardous material 
for use. The DOD requests that a definition be added to Pennsylvania's 
regulation that would state that the term ``Supply'' or ``Supplied'' 
does not include internal transactions within a business or government 
entity, and that the term only applies to transactions between 
manufacturers/commercial distributors that sell, or otherwise provide 
AIM coating products to businesses/governmental entities/individuals. 
Alternatively, the DOD requests that either PADEP provide a written 
reply clarifying whether the terms ``supply or ``supplied'' apply to 
``the single point of contact'' at military installations, or that EPA 
clarify this issue in its response to comments.
    Response: Throughout its comments to EPA, the DOD refers to the 
Pennsylvania AIM coatings rule as a proposed regulation. In fact, this 
AIM coatings regulation has been fully adopted by the Commonwealth of 
Pennsylvania (see 33 Pa. B. 5297, October 25, 2003, 33 Pa. B. 5618,

[[Page 68081]]

November 15, 2003 and 25 Pa. Code Subsections 130.601-130.611) and was 
submitted to EPA for approval as revision to the Pennsylvania SIP on 
December 3, 2003. EPA's March 11, 2004 NPR proposed approval of 
Pennsylvania's request that its fully adopted AIM coatings regulation 
be made part of the SIP. EPA can only take action on a SIP revision as 
it is submitted by a state, and cannot, through its rulemaking action, 
alter the state's submission. EPA, however, does hereby clarify that it 
interprets that the ``single point of control'' system that the 
military services have developed to manage hazardous materials does not 
subject military installations to the rule in as much as they do not 
sell, offer for sale or manufacture architectural coating products. The 
DOD does have the obligation under section 130.601 of the rule to 
ensure that the products a person ``applies or solicits'' meet the 
requirements of the rule.
    B. Comment: Paperwork Requirements for End Users--The DOD comments 
that a few scattered references to the ``end user'' in Pennsylvania's 
AIM coatings rule subject the end user of AIM coatings to additional 
reporting and monitoring requirements (e.g., prove that every time a 
coating is used, it is not thinned beyond allowable limits). The DOD 
goes on to state that as it is DOD's practice to use coatings as 
specified by the manufacturer, as an end user it will be subjected to 
additional burdensome paperwork requirements without any demonstrable 
reductions in VOC emissions. The DOD, therefore request that 25 Pa. 
Code subsection 130.603 (c) Thinning and (d) Rust Preventative Coatings 
be deleted from Pennsylvania's AIM coatings rule. (From its context, it 
is clear that the DOD's comment is in reference to 130.603(d) Thinning 
and (e) Rust Preventative Coatings in Pennsylvania's AIM coatings 
regulation.)
    Response: Pennsylvania's AIM coatings rule does not use the term 
``end user'' but rather the term ``the person who solicits and 
applies.'' As indicated in EPA's response to Comment A, EPA's March 11, 
2004 NPR proposed approval of Pennsylvania's request that its fully 
adopted AIM coatings rule be made part of the SIP. EPA can only take 
action on a SIP revision as it is submitted by a state, and cannot, 
through its rulemaking action, alter the state's submission. EPA, 
cannot, therefore, delete paragraphs (d) Thinning and (e) Rust 
Preventative Coatings from section 130.603 of the Pennsylvania AIM 
coatings rule by its rulemaking on the SIP revision submission. EPA, 
however, does hereby clarify that it does not interpret 130.603 (d) and 
(e) to require the person who solicits and applies to keep records ``to 
prove that every time a coating is used, it is not thinned beyond 
allowable limits.'' Rather each manufacturer is to comply with 
subsection 130.604(a)(2) Thinning Recommendations, and indicate on the 
label or lid its recommendations regarding thinning of the coating or 
specify that the coating is to be applied without thinning. So long as 
the person who solicits and applies coatings (or end user) does so in 
accordance with the VOC limits found in Table 1 of Pennsylvania's AIM 
coatings rule, that person would be in compliance.
    C. Comment: Container Labeling Requirements--In its final comment, 
the DOD states that while manufacturers of any architectural coatings 
are required to display certain information, such as VOC content, on 
the container, they are not required to identify the applicable coating 
category on the container. The DOD comments that for easy verification 
of VOC compliance by the user, 25 Pa. Code subsection 130.604 should be 
amended to require the coating category be listed next to VOC content.
    Response: For the purposes satisfying the requirements for approval 
as a SIP revision, EPA has determined that the container labeling 
requirements found at section 130.604 of Pennsylvania's AIM coatings 
rule are adequate.
    D. Comment: The Pennsylvania AIM Coatings Rule is Based on Flawed 
Data--Additional comments on EPA's March 11, 2004 NPR proposing 
approval of Pennsylvania's AIM coatings rule have been submitted on 
behalf of the Sherwin Williams Company and from the National Paint and 
Coatings Association (NPCA), hereafter referred to as the commenters. 
The comments from NPCA reference and endorse the comments submitted on 
behalf of the Sherwin Williams Company and reiterate the comments made 
to the Commonwealth by NPCA during Pennsylvania's rule adoption 
process. The commenters assert that the Pennsylvania 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 (Public Law 
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 
emissions reductions calculated in the Pechan Study; 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 the Federal AIM coatings rule, than was calculated in the 
Pechan Study (51 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 Pennsylvania AIM coatings rule as a revision to the 
SIP.\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. EPA is 
evaluating and will respond separately to the RFC, which raises 
substantively similar issues to those raised by this comment.
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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 the Commonwealth in 
support of its AIM coatings rule. Further, even if the Pechan Study had 
been submitted by the Commonwealth the validity of that data would not 
be at issue because, at this time, Pennsylvania is not asking for 
approval of any quantified amount of VOC emission reduction from the 
enactment of its regulation. Rather, this regulation has been submitted 
by the Commonwealth, and is being considered by EPA, on the basis that 
it strengthens the existing Pennsylvania SIP. The commenters do not 
dispute that the Pennsylvania AIM coatings rule will, in fact, reduce 
VOC emissions.
    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; 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. EPA only has power to disapprove state plans,

[[Page 68082]]

and revisions thereto, that are less stringent than a standard or 
limitation provided by Federal law. See Section 110(k) of the Act; see 
also Duquesne Light v. EPA, 166 F.3d 609 (3d Cir. 1999).
    The Pechan Study is not part of the Commonwealth's submission in 
support of its AIM coatings rule. Because the Commonwealth's December 
3, 2003 submission is not claiming 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 
can approve this SIP revision.\2\ The only relevant inquiry at this 
time is whether this SIP revision meets the minimum criteria for 
approval under the Act, including the requirement that the 
Commonwealth's AIM coatings rule be at least as stringent as the 
Federal AIM coatings rule set forth at 40 CFR 59.400, subpart D.
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    \2\ After submission of a request for approval of a quantified 
amount of emissions reductions credit due to the AIM coatings rule, 
EPA will evaluate the credit attributable to the rule. Whatever 
methodology and data the State uses in such a request, the issue of 
proper credit will become ripe for public comment and any comments 
received will be responded to at that time.
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    As set forth herein, EPA has concluded that the Pennsylvania AIM 
coatings rule meets the criteria for approvability. It is worth noting 
that EPA agrees with the commenters' conclusion that the Pennsylvania 
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 51 percent, as opposed to the Pechan Study's 31 percent 
reduction in VOC emissions beyond that required by the Federal AIM 
coatings rule. Rather, the Pennsylvania AIM coatings rule is, on its 
face, more stringent than the Federal AIM coatings rule. The preamble 
of the Pennsylvania AIM coatings rule states: ``This final-form 
rulemaking sets specific VOC content limits, in grams per liter, for 48 
AIM coating categories and requires more stringent VOC content limits 
than the Federal rule.'' 33 Pa. B. 5297 (October 25, 2003). Examples of 
where Pennsylvania'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 Pennsylvania 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 Pennsylvania AIM coatings rule's is 400 grams/liter. Examples 
of where Pennsylvania AIM coatings rule is as stringent, but not more 
stringent, than the Federal AIM coatings rule include, but are not 
limited to, the VOC content limit for antenna coatings and low-solids 
coatings. In both rules the VOC content limits for these categories are 
530 grams/liter and 120 grams/liter, respectively. Thus, on a category 
by category basis, the Pennsylvania AIM coatings rule is as stringent 
or more stringent than the Federal AIM coatings rule. Further, EPA has 
received no comments that the Pennsylvania AIM coatings rule is less 
stringent than the Federal rule.
    E. Comment: Approval of the Pennsylvania AIM Coatings rule as a SIP 
Revision Violates Clean Air Act Sections 110(a)(2)(A) and 
110(a)(2)(E)--With respect to Sections 110(a)(2)(A) and 110(a)(2)(E) of 
the Act, the commenters assert that Pennsylvania cannot give the 
assurances required by these provisions of the Act since each provision 
requires that a state be able to assure that SIP revisions ``meet 
applicable requirements'' of the Act, and that no ``Federal or State 
law'' prohibits the state from ``carrying out such implementation plan 
or portion thereof.'' Such assurance cannot be given, the commenters 
allege, because the Pennsylvania AIM coatings rule violates the DQOA, 
Sections 183(e)(9) and 184(c) of the Act, and Sections 4004.2 and 4005 
of the Pennsylvania Air Pollution Control Act (PAPCA).
    Response: For the reasons set forth herein and in responses to 
comments D. and F.-J., EPA disagrees that the Pennsylvania AIM coatings 
rule violates the DQOA, the provisions of the CAA or the PAPCA. 
Therefore, nothing prevents Pennsylvania from giving the assurances 
contemplated by Sections 110(a)(2)(A) and (a)(2)(E) of the Act.
    Section C. of the preamble of Pennsylvania's rule states: `` The 
final form rulemaking is being made under section 5 of the Air 
Pollution Control Act ( 35 P.S. subsection 4005), which grants the 
[Pennsylvania Environmental Quality Board (the EQB)] the authority to 
adopt regulations for the prevention, control, reduction and abatement 
of air pollution.'' See C. Statutory Authority, 33 Pa. B. 5297 (October 
25, 2003). The EQB made the Finding that ``This rulemaking is necessary 
and appropriate for administration and enforcement of the authorizing 
acts identified in Section C of this preamble.'' See J. Findings, 
paragraph (4), 33 Pa. B. 5306 (October 25, 2003).
    Under 4004.2 of the PAPCA, in order for the Commonwealth to adopt a 
rule for the State Implementation Plan that is more stringent than its 
comparable Federal requirement, the EQB must find that the rule is 
reasonably necessary to achieve and maintain the NAAQS or find the rule 
is necessary to avoid the impositions of sanctions under the Act. For 
the Pennsylvania AIM coatings rule, the EQB made those Findings. See J. 
Findings, paragraphs (5) and (6), 33 Pa. B. 5306 (October 25, 2003). 
The EQB, acting under the authorizing statutes, ordered that the 
regulations of the PADEP are amended by adding Subsections 130.601-
130.611 (as correctly renumbered 33 Pa. B. 5618, November 18, 2003) as 
set forth in Annex A, which has been codified as 25 Pa. Code Chapter 
130, Subchapter C--the Pennsylvania AIM coatings rule--that is the 
subject of this SIP revision. Further the EQB ordered that its 
Chairperson submit the Order and Annex A to the Office of the General 
Counsel and the Office of the Attorney General for review and approval 
as to legality and form, as required by law. The EQB also ordered that 
its Chairperson submit its Order and Annex A to the Independent 
Regulatory Review Committee (IRRC) and the Senate and House 
Environmental Resources and Energy Committees as required by 
Pennsylvania's Regulatory Review Act. The EQB also ordered that its 
Chairperson certify the Order and Annex A and deposit them with the 
Legislative Reference Bureau as required by law. Finally the EQB 
ordered that its Order shall take effect immediately upon publication 
in the Pennsylvania Bulletin. See K. Order, paragraphs (a)-(e), 33 
Pennsylvania Bulletin 5306 (October 25, 2003). The Order was adopted by 
the Board at its July 15, 2003 meeting. Between the July 15, 2003 
adoption date of the Order and the October 25, 2003 date of its 
publication in the Pennsylvania Bulletin, the reviews as to legality 
and form of 25 Pa. Code Chapter 130, Subchapter C--the Pennsylvania AIM 
coatings rule were performed. The PADEP Office of General Counsel 
approved 25 Pa. Code, Chapter 130, Subchapter C as to its legality and 
form on July 24, 2003. The IRRC approved 25 Pa. Code, Chapter 130, 
Subchapter C as to its legality and form on September 12, 2003. The 
Office of the Attorney General for the Commonwealth of Pennsylvania 
approved 25 Pa. Code, Chapter 130, Subchapter C as to its legality and 
form on October 3, 2003. EPA, in its review of the SIP revision 
submission of the Pennsylvania AIM coatings rule, has

[[Page 68083]]

found no reason to indicate that the review performed by PADEP's Office 
of the General Counsel, the IRRC and the Office of the Attorney General 
for the Commonwealth of Pennsylvania as to the legality of its AIM 
coatings rule under State law, is insufficient. (Documentation of the 
approvals by the Office of General Counsel, the IRRC and the Office of 
the Attorney General have been made part of the administrative record 
of this final rulemaking).
    F. Comment: The PA 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 regulations for AIM coatings pursuant to Section183(e) of 
the Act. The commenters note that Pennsylvania's AIM coatings rule 
imposes numerous VOC emission limits that will be more stringent than 
the corresponding limits in EPA's regulation. The commenters assert 
that Section 183(e)(9) of the Act requires that any state which 
proposes regulations to establish emission standards other than the 
Federal standards for products regulated under Federal rules shall 
first consult with the EPA Administrator. The commenters believe that 
Pennsylvania failed to engage in that required consultation, and, 
therefore (1) Pennsylvania violated Section 183(e)(9) in its adoption 
of the Pennsylvania 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(3)(9) does not require 
states to seek EPA's permission to regulate consumer products. By its 
explicit terms, the statute contemplates consultation with EPA only 
with respect to ``whether any other state or local subdivision has 
promulgated or is promulgating regulations or any products covered 
under [section 183(e)].'' The commenters erroneously construe this as a 
requirement for permission rather than informational consultation. 
Further, the final Federal architectural coatings regulations at 40 CFR 
59.410 explicitly provides that States and their political subdivisions 
retain authority to adopt and enforce their own additional regulations 
affecting these products. See also, 63 FR 48848, 48884. 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 63 FR 48848, 48857. Accordingly, PADEP retains authority 
to impose more stringent limits for architectural coatings as part of 
its SIP, and its election to do so is not a basis for EPA to disapprove 
the SIP. See, Union Elec Co. v. EPA, 427 U.S. at 265-66 (1976). 
Although national uniformity in consumer and commercial product 
regulations may have some benefit to the regulated community, EPA 
recognizes that some localities may need more stringent regulation to 
combat more serious and more intransigent ozone nonattainment problems.
    Further, there was ample consultation with EPA prior to the 
Commonwealth'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 
Pennsylvania, 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).
    EPA Region III and the Commonwealth of Pennsylvania negotiated the 
adoption of the OTC model rules in the FY 2003 Work Plan for PADEP's 
annual State Assistance Grant under Section 105 of the Act. The 
commitment included in the Grant Work Plan (which was approved and 
funded by EPA under Section 105 of the Act) stated that the PADEP would 
continue to submit outstanding rules developed in accordance with the 
March 28, 2001 OTC MOU as SIP revisions by September 9, 2003. The 
relevant page of the FY 2003 Grant Work Plan has been placed in the 
administrative record of this final rulemaking.
    Therefore, there is no validity to the commenters' assertion that 
Pennsylvania failed to consult with EPA in the adoption of its AIM 
coatings rule. EPA was fully cognizant of the requirements of the 
Pennsylvania AIM coatings rule before its formal adoption by the 
Commonwealth.\3\ For all these reasons, EPA disagrees that Pennsylvania 
violated Section 183(e)(9) in its adoption of the its AIM coatings 
rule, and disagrees that approval of the Pennsylvania AIM coatings rule 
by EPA is in violation of or prohibited by Section 110(a)(2)(A) and 
(a)(2)(E) of the Act.
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    \3\ While EPA reviewed the model AIM coatings rule and the draft 
Pennsylvania version of that rule, EPA had no authority conferred 
under the Clean Air Act to dictate the exact language or 
requirements of the rule beyond the general requirement that the 
Pennsylvania rule, in order to be approvable as a SIP revision, must 
be at least as stringent as its Federal counterpart.
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    G. Comment: The PA 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 
Section 184(c)(l) of the Act by failing to ``transmit'' its 
recommendations to the Administrator, and that the OTC's violation was 
compounded by the Administrator's failure to review the Model Rule 
through the notice, comment and approval process required by CAA 
Sections 184(c)(2)-(4). These alleged violations of the Act should have 
prevented Pennsylvania from adopting the Pennsylvania AIM coatings 
Rules, and now prevent EPA from validly approving them as a revision to 
the Pennsylvania 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. This provision of 
the Act was not intended to prevent OTC's

[[Page 68084]]

development of model rules which states may individually choose to 
adapt and adopt on their own, as Pennsylvania 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, Pennsylvania 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.
    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.
    H. Comment: The PA AIM Coatings Rule Was Adopted in Violation of 
the Pennsylvania Air Pollution Control Act (PAPCA)--The commenters 
assert that the General Assembly of the Commonwealth of Pennsylvania, 
when it amended the PAPCA in 1992, addressed the issue of consumer 
product regulation, not by delegating rulemaking authority to the EQB, 
but by conferring limited enforcement authority upon PADEP. The 
commenters state that the Legislature authorized PADEP to enforce the 
Federal standards, not to promulgate its own more stringent standards. 
The commenters cite to a provision of the PAPCA which confers upon the 
PADEP the power and duty to develop and submit to EPA procedures to 
implement and enforce the regulations which EPA adopts under Section 
183(e) of the Act to reduce emissions from consumer and commercial 
products, provided the PADEP will receive the credits attributed to the 
Federal consumer and commercial products regulations under Section 182 
of the CAA regulations, and that the PADEP has the resources to 
implement and enforce the program. 35 P.S. subsection 4004. The 
commenters also cite to the PAPCA subsection 4005 for the proposition 
that the EQB's rulemaking authority powers are specifically enumerated 
in thirteen explicit subsections, none of which mention consumer 
products (with a footnote to an exception in 4005(a)(13) related to 
aerospace coatings). The commenters also point to PAPCA subsection 
4004.2 to note that it is the Legislature's expressed intent that 
delegated rulemaking authority not be broadly construed but is limited 
by a requirement that any rule adopted by the EQB under the PAPCA be no 
more stringent than a specific Federal rule. The commenters conclude, 
therefore, that if Pennsylvania chooses to regulate AIM coatings beyond 
the levels set by EPA, that choice must be made by the Pennsylvania 
General Assembly in the form of a specific statute or by delegating 
additional specific rulemaking authority to the EQB, and as such 
delegation is absent, the Pennsylvania AIM coatings rule is unlawful as 
a matter of Pennsylvania law.
    Response: EPA disagrees with this comment. The commenters' 
citations to the PAPCA are incomplete with regard to the ability of the 
Commonwealth to adopt air pollution control regulations that are more 
stringent than comparable Federal requirements. The commenters fail to 
note the provisions under PAPCA subsection 4004.2(b) whereby the 
Commonwealth may adopt a rule for the State Implementation Plan that is 
more stringent than its comparable Federal requirement, if the EQB 
finds that the rule is reasonably necessary to achieve and maintain the 
NAAQS or necessary to avoid the impositions of sanctions under the Act. 
Pennsylvania adopted its AIM coatings rule to achieve additional VOC 
reductions from AIM coatings. The Pennsylvania AIM coatings rule is a 
part of the Commonwealth's strategy to achieve and maintain the ozone 
standard throughout the Commonwealth. The Federal AIM coatings rule was 
promulgated in 1998. To capture additional VOC emission reductions, the 
Commonwealth adopted its more stringent AIM coatings rule in October of 
2003. As EPA notes in its response to Comment B., the Pennsylvania AIM 
coatings rule sets specific VOC content limits, in grams per liter, for 
48 AIM coating categories and requires, for certain categories, more 
stringent VOC content limits than the Federal Rule. As indicated in 
EPA's response to Comment D., EPA acknowledges that under the PAPCA, in 
order for the EQB to adopt a rule for the State Implementation Plan 
that is more stringent than its comparable Federal requirement, the EQB 
must find that the rule is reasonably necessary to achieve and maintain 
the NAAQS or to avoid the imposition of sanctions. For the Pennsylvania 
AIM coatings rule, the EQB made those Findings. See J. Findings, 
paragraphs (5) and (6), 33 Pennsylvania Bulletin 5306 (October 25, 
2003). Consequently, EPA believes that the EQB has made the requisite 
findings for the adoption of rules and regulations more stringent than 
those required by the Act. Moreover, the Office of General Counsel for 
PADEP, the Commonwealth's IRRC, and the Office of the Attorney General 
for the Commonwealth of Pennsylvania have each approved the 
Pennsylvania AIM coatings rule with regard to its legality and form 
under Pennsylvania law. See EPA's response to Comment E. EPA, in its 
review of the SIP revision submission of the Pennsylvania AIM coatings 
rule, has found no reason to indicate that the review performed by 
PADEP's Office of the General Counsel, the IRRC and the Office of the 
Attorney General for the Commonwealth of Pennsylvania as to the 
legality of its AIM coatings rule under State law, is insufficient. EPA 
has, therefore, determined pursuant to Section 110(a)(2)(E) of the 
Clean Air Act and 40 CFR section 51, appendix V, that Pennsylvania has 
provided the necessary assurances that it has adequate authority to 
implement the SIP revision and that it has followed all the procedural 
requirements of Pennsylvania's laws and constitution in adopting the 
SIP revision submitted to EPA.
    I. Comment: The Pennsylvania AIM Coatings Rule Violates the 
Commerce Clause of the U.S. Constitution--The commenters claim that the 
Pennsylvania AIM coatings rule violates the Commerce Clause of Article 
I, Section 8, of the U.S. Constitution, because it imposes an 
unreasonable burden on interstate commerce. The commenters assert that 
because the Pennsylvania AIM coatings rule contains VOC limits and 
other provisions that differ from the Federal AIM coatings rule in 40 
CFR 59.400, the rule causes an unreasonable restriction on coatings in 
interstate commerce. The commenters further assert that the burdens of 
the Pennsylvania AIM coatings rule are excessive and outweigh the 
benefits of the rule. The commenters suggest that EPA should disapprove 
the SIP revision on this basis.

[[Page 68085]]

    Response: 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 Pennsylvania AIM coatings rule impermissibly 
impinges on interstate commerce. A state law may violate the Commerce 
Clause in two ways: (i) By explicitly discriminating between interstate 
and intrastate commerce; or (ii) even in the absence of overt 
discrimination, by imposing an incidental burden on interstate commerce 
that is markedly greater than that on intrastate commerce. The 
Pennsylvania 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 
Pennsylvania AIM coatings rule could have an incidental impact on 
interstate commerce. In the case of incidental impacts, the Supreme 
Court has applied a balancing test to evaluate the relative impacts of 
a state law on interstate and intrastate commerce. See, Pike v. Bruce 
Church, Inc., 397 U.S. 137 (1970). Courts have struck down even 
nondiscriminatory state statutes when the burden on interstate commerce 
is ``clearly excessive in relation to the putative local benefits.'' 
Id. at 142.
    At the outset, EPA notes that it is unquestionable that the 
Commonwealth has a substantial and legitimate interest in obtaining VOC 
emissions for the purpose of attaining the ozone NAAQS. The adverse 
health consequences of exposure to ozone are well known and well 
established and need not be repeated here. See, e.g., National Ambient 
Air Quality Standards for Ozone: Final Response to Remand, 68 FR 614, 
620-25 (January 6, 2003). Thus, the objective of the Commonwealth in 
adopting the Pennsylvania AIM coatings rule is to protect the public 
health of the citizens of Pennsylvania. 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 
Pennsylvania 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 Pennsylvania AIM coatings rule are not so 
overwhelming as to trump the state's interest in the protection of 
public health. First, the Pennsylvania AIM coatings rule does not 
restrict the transportation of coatings in commerce itself, only the 
sale of nonconforming coatings within the state's own boundaries. The 
state's rule excludes coatings sold or manufactured for use outside the 
state or for shipment to others. 25 Pa. Code. 130.601(1). The 
Pennsylvania AIM coatings rule cannot be construed to interfere with 
the transportation of coatings through the state en route to other 
states. As such, EPA believes that the cases concerning impacts on the 
interstate modes of transportation themselves are inapposite. See, 
e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1938).
    Second, the Pennsylvania AIM coatings rule is not constructed in 
such as way that it has the practical effect of requiring 
extraterritorial compliance with the state's VOC limits. The 
Pennsylvania AIM coatings rule only governs coatings manufactured or 
sold for use within the state's boundaries. The manufacturers of 
coatings in interstate commerce are not compelled to take any 
particular action, and they retain a range of options to comply with 
the rule, including, but not limited to: (1) Ceasing sales of 
nonconforming products in Pennsylvania; (2) reformulating nonconforming 
products for sale in Pennsylvania and passing the extra costs on to 
consumers in that state; (3) reformulating nonconforming products for 
sale more broadly; (4) developing new lines of conforming products; or 
(5) entering into production, sales or marketing agreements with 
companies that do manufacture conforming products. Because 
manufacturers or sellers of coatings in other states are not forced to 
meet Pennsylvania'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 (2nd Cir. 2000) (state label requirement for light bulbs 
containing mercury sold in that state not an impermissible 
restriction). It may be that the Pennsylvania AIM coatings rule will 
have the effect of reducing the availability of coatings or increasing 
the cost of coatings within the State, 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 Pennsylvania 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 Pennsylvania, 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 (2nd 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 Pennsylvania AIM 
coatings rule. EPA has issued a Federal regulation that provides 
national standards, including VOC content limits, for such coatings. 
See 40 CF 59.400 et seq. Congress did not, however, intend Section 
183(e) to pre-empt 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

[[Page 68086]]

Federal Register which published the standards, 63 FR 48848, 48857 
(September 11, 1998). Thus, EPA believes that Congress has clearly 
provided that a state may regulate coatings more stringently than other 
states.
    In Section 116 of the Act, Congress has also explicitly reserved to 
states and their political subdivisions the right to adopt local rules 
and regulations to impose emissions limits or otherwise abate air 
pollution, unless there is a specific Federal preemption of that 
authority. When Congress intended to create such Federal preemption, it 
does so through explicit provisions. See, e.g., Section 209(a) of the 
Act, which pertains to state or local emissions standards for motor 
vehicles; and Section 211 of the Act which pertains to fuel standards. 
Moreover, the very structure of the Act is based upon ``cooperative 
federalism,'' which contemplates that each state will develop its own 
state implementation plan, and that states retain a large degree of 
flexibility in choosing which sources to control and to what degree in 
order to attain the NAAQS by the applicable attainment date. Union 
Electric Co. v. EPA, 427 U.S. 246 (1976). Given the structure of the 
Act, the mere fact that one state might choose to regulate sources 
differently than another state is not, in and of itself, contrary to 
the Commerce Clause.
    Finally, EPA understands that there may be a practical concern that 
a plethora of state regulations could create a checkerboard of 
differing requirements would not be the best approach to regulating 
VOCs from AIM coatings or other consumer products. Greater uniformity 
of standards does have beneficial effects in terms of more cost 
effective and efficient regulations. As EPA noted in its own AIM 
coatings rule, national uniformity in regulations is also an important 
goal because it will facilitate more effective regulation and 
enforcement, and minimize the opportunities for undermining the 
intended VOC emission reductions. 63 FR 48856-48857. However, EPA also 
recognizes that Pennsylvania 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. Pennsylvania may have 
additional burdens to insure compliance with its rule, but for purposes 
of this action EPA presumes that the Commonwealth take appropriate 
actions to enforce it as necessary. The EPA has no grounds for 
disapproval of the SIP revision based upon the commenters' Commerce 
Clause comment.
    J. Comment: The Emission Limits and Compliance Schedule in the 
Pennsylvania AIM Coatings Rule are Neither Necessary nor Appropriate to 
Meet Applicable Requirements of the Clean Air Act--The commenters claim 
that the Pennsylvania AIM coatings rule is not ``necessary or 
appropriate'' for inclusion in the Pennsylvania SIP, because EPA did 
not direct Pennsylvania to achieve VOC reductions through the AIM 
coatings rule, but left it to the State to decide how such reduction 
can be achieved. The commenters further assert that the Pennsylvania 
AIM coatings rule is not necessary or appropriate for inclusion in the 
Pennsylvania SIP because of the numerous procedural and substantive 
failings on the part of PADEP in promulgating the rule.
    Response: EPA disagrees with this comment. If fulfillment of the 
``necessary or appropriate'' condition of Section 110(a)(2)(A) required 
EPA to determine that a measure was necessary or appropriate and 
require a state to adopt that measure, this condition would present a 
``catch 22'' situation. EPA does not generally have the authority to 
require the State to enact and include in its SIP any particular 
control measure, even a ``necessary'' one.\4\ However, under Section 
110(a)(2)(a) a control measure must be either ``necessary or 
appropriate'' (emphasis added); the use of the disjunctive ``or'' does 
not provide that a state must find that only a certain control measure 
and no other measure will achieve the required reduction. Rather, a 
state may adopt and propose for inclusion in its SIP any measure that 
meets the other requirements for approvability so long as that measure 
is at least as appropriate, though not exclusive, means of achieving 
emissions reduction. See also, Union Elec. Co. v. EPA, 427 U.S. 246, 
264-266 (1976) (holding that ``necessary'' measures are those that meet 
the ``minimum conditions'' of the Act, and that a state ``may select 
whatever mix of control devices it desires,'' even ones more stringent 
than Federal standard, to achieve compliance with a NAAQS, and that 
``the Administrator must approve such plans if they meet the minimum 
requirements'' of Section 110(a)(2) of the Act). Clearly, in light of 
the Act and the case law, EPA's failure to specify the state adoption 
of a specific control measure cannot dictate whether a measure is 
necessary or appropriate.
---------------------------------------------------------------------------

    \4\ As noted in Virginia v. EPA, 108 F.3d 1397 (DC 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 Pennsylvania 
or any other state adopt this measure in order to reduce VOC 
emissions.
---------------------------------------------------------------------------

    In this particular instance, EPA identified an emission reduction 
shortfall associated with Pennsylvania's 1-hour ozone attainment 
demonstration SIP, and required Pennsylvania to address the shortfall 
(See, 64 FR 70428 and 66 FR 54143). It is the Commonwealth'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 for attainment of the 1-hour ozone 
standard as identified by EPA.
    As stated previously, the Commonwealth's December 3, 2003 SIP 
revision submittal, supplemented by further documentation added to the 
administrative record by EPA to respond to comments submitted on its 
March 11, 2004 NPR, provides evidence that it that it has the legal 
authority to adopt its AIM rule and that it has followed all of the 
requirements in the Commonwealth law and constitution that are related 
to adoption of the plan.
    K. Comment: The Written Comments Submitted by the Commenters to the 
Pennsylvania EQB, the Pennsylvania IRRC and the PADEP on Pennsylvania's 
Proposed Version of its AIM Coatings Rule Are Incorporated by Reference 
into the Comments Submitted to EPA on its March 11, 2004 NPR Proposing 
Approval of the Final, Adopted Pennsylvania AIM Coatings Rule--In their 
letters submitted to EPA as comment to EPA's proposed approval of the 
Pennsylvania AIM coatings rule, the commenters incorporate by reference 
a letter from Madelyn K. Harding, Sherwin Williams Company to the 
Pennsylvania EQB dated February 20, 2002 and its attachments; a letter 
from W. Lance H. Hernsarth, Sherwin Williams Company to Kathleen 
McGinty, Secretary of the Pennsylvania DEP, dated April 21, 2003 and 
its attachment; a letter from Harvey P. Sass, Sherwin Williams Company 
to Commissioner John R. McGinley, Jr., IRRC, dated September 5, 2003 
and its attachment; and NPCA's Statement Before Pennsylvania 
Independent

[[Page 68087]]

Regulatory Review Commission, dated September 12, 2003. The following 
summarizes the comments presented to Pennsylvania and incorporated by 
reference by the commenters:
    (1) The commenters have significant concerns with the proposed 
standards for certain paints and coatings, e.g., interior wood clear 
and semi-transparent stains, interior wood vanishes, interior wood 
sanding sealers, exterior wood primers, and floor coatings. The 
commenters assert that Pennsylvania's proposed AIM coatings regulation 
is based upon the inaccurate assumption that compliant coatings are 
available or can be developed which will satisfy customer requirements 
and meet all of the performance requirements of these categories. The 
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 in 
Pennsylvania due to seasonal variations in temperature and humidity.
    (2) The commenters contend that PADEP has not considered the 
increase in emissions resulting from the performance issues and 
consequential repainting.
    (3) The commenters suggest changes to the VOC standards for only a 
few of the product categories proposed by Pennsylvania in its AIM 
coatings regulation, and claim that the version of the AIM coatings 
rule it counter-proposes will achieve significant reductions beyond the 
Federal AIM coatings rule (26.5 tons/day) which is very close to the 
amount of emission reductions determined by PADEP for the Pennsylvania 
proposed regulation.
    (4) The commenters state that Pennsylvania's proposed AIM coatings 
rule is unreasonably stringent and unnecessary for the protection of 
public health, welfare and safety, and it is arbitrary and capricious 
as the record does not support the emission reduction claims.
    (5) The commenters contend that Pennsylvania's proposed AIM 
coatings rule will have a significant adverse impact on the commenters, 
and that the PADEP can issue a regulation that achieves substantial VOC 
reductions beyond the Federal AIM coatings rule without causing serious 
adverse impact on potential sales of certain products. A further 
comment contends that due to Pennsylvania'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.
    (6) The commenters assert that the economic analysis of 
Pennsylvania's proposed AIM coatings rule is inaccurate because it uses 
a cost figure of $6400 per ton of emissions reduced based upon an 
economic analysis done for California. The commenters contend that the 
cost figure is inappropriate given the differences in the stringency of 
the current requirements for AIM coatings in Pennsylvania versus 
California, and therefore, Pennsylvania needs to make an independent 
determination of the cost of VOC reductions from its proposed AIM 
coatings regulation.
    (7) The commenters indicate that both the Consumer Products 
regulation and AIM coatings rule proposed by Pennsylvania are based on 
rule developments in California. However, Pennsylvania's proposal 
includes the California averaging provision for consumer products but 
does not do so for AIM. The commenters assert that the failure to 
include the California averaging provision in the Pennsylvania AIM 
coatings rule is arbitrary and capricious, and places an unequal burden 
on the architectural coating industry.
    (8) The commenters also submitted comments to the Commonwealth of 
Pennsylvania regarding its proposed AIM coatings rule asserting that 
the EQB and PADEP do not have authority under the Commerce Clause and 
the Pennsylvania Air Pollution Control Act (PAPCA) to adopt the 
proposed AIM coatings rule.
    Response: As previously stated in this document, EPA disagrees with 
the commenter's assertion that the adoption of the AIM coatings 
regulation by the Commonwealth is in violation of the PAPCA. Please see 
EPA's response to Comment H. With regard to the comments regarding the 
Commerce Clause, please see EPA's response to Comment I.
    With regard to the other comments submitted by the commenters to 
the Commonwealth on its proposed AIM coatings rule that they have 
incorporated by reference in their comments to EPA on EPA's March 11, 
2004 proposed approval, EPA's response is that it is important to 
understand EPA's role and responsibilities with regard to the review 
and approval, or disapproval, of rules submitted as SIP revisions. 
Prior to approving a SIP revision request submitted by a state, EPA 
reviews the submission to ensure that the state provided the 
opportunity for comment and held a hearing(s) on the proposed state 
regulation that is at issue in the SIP revision pursuant to Section 
110(a) of the Act. In this case, the Commonwealth of Pennsylvania's 
December 3, 2003 submission of its AIM coatings rule to EPA includes 
the necessary documentation to demonstrate that it met these 
requirements. The Commonwealth's December 3, 2003 SIP revision 
submission is included in docket of this rulemaking. A complete SIP 
revision submission from a state includes copies of timely comments 
properly submitted to the state on the proposed SIP revision and the 
state's responses to those comments. The Commonwealth of Pennsylvania's 
December 3, 2003 submission of its AIM coatings rule as a SIP revision 
to EPA properly includes both the comments submitted on its proposed 
AIM coatings rule and the Commonwealth's responses to those comments. 
(See both the document entitled, Architectural and Industrial 
Maintenance (AIM) Coatings, Comment and Response Document prepared by 
the DEP, dated February 27, 2003 and 33 Pennsylvania Bulletin 5297 
(October 25, 2003)).
    The Commonwealth of Pennsylvania's SIP revision submission of its 
AIM coatings rule does not request that EPA approve a specific amount 
of VOC emission reduction credit. As such, the comments regarding the 
Commonwealth's emission reduction calculations are not germane to EPA's 
rulemaking to approve Pennsylvania's requested SIP revision. The 
Commonwealth's responses to the timely comments on the proposed 
Pennsylvania AIM coatings rule made by the commenters to Pennsylvania 
are included in the Commonwealth's December 3, 2003 submission to EPA 
for approval of the SIP revision.
    The cost per ton figure determined by the Commonwealth 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 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. EPA has reviewed the SIP revision submitted and 
has determined that the commenters' comments on those issues they have 
incorporated by reference on this rulemaking, along with the 
Commonwealth's responses to those issues, are included therein. In the 
context of a SIP approval, EPA's review of these state decisions is 
limited to whether the SIP revision meets the

[[Page 68088]]

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.
    With regard to the comments concerning the availability of 
complying coatings and the ability to develop complying coatings that 
can meet customer requirements and performance requirements, EPA notes 
(as did the Commonwealth in its responses to such comments) that the 
final version of the Pennsylvania AIM coatings regulation includes 
variance provisions at 130.606-130.610. These provisions allow for 
variances from the VOC standards found in 130.603 to be granted by the 
PADEP to applicants which demonstrate technological infeasibility. EPA 
finds that the Commonwealth's approach to address demonstrated 
technological infeasibility in its AIM coatings rule by the variance 
provisions of 130.606-130.610 is both reasonable and within its 
purview, and therefore approvable as a SIP revision.

III. Final Action

    EPA is approving the Pennsylvania SIP revision for the control of 
VOC emissions from AIM coatings submitted on December 3, 2003 and 
supplemented on October 19, 2004. The Pennsylvania AIM coatings rule is 
part of the Commonwealth's strategy to achieve and maintain the 1-hour 
ozone standard throughout the Commonwealth.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant. In reviewing SIP 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the Clean Air Act. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a SIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a SIP submission, to use VCS in 
place of a SIP submission that otherwise satisfies the provisions of 
the Clean Air Act. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 24, 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 Pennsylvania's AIM coatings 
rule, may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: November 1, 2004.
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 NN--Pennsylvania

0
2. Section 52.2020 is amended by adding paragraph (c)(227) to read as 
follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (227) Revisions pertaining to the control of volatile organic 
compound emissions from architectural and industrial maintenance 
coatings submitted on December 3, 2003 and October 19, 2004 by the 
Commonwealth of Pennsylvania Department of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letters of December 3, 2003 and October 19, 2004 from the 
Pennsylvania Department of Environmental Protection transmitting 
Pennsylvania's Architectural and Industrial Maintenance Coatings 
regulations.

[[Page 68089]]

    (B) 25 Pa. Code Chapter 130, Subchapter C. Architectural and 
Industrial Maintenance Coatings, Subsections 130.601-130.611, 
inclusive, effective October 25, 2003.
    (ii) Additional Material.--Remainder of the Commonwealth's 
submittals pertaining to the revisions listed in paragraph (c)(227)(i) 
of this section.

[FR Doc. 04-25815 Filed 11-22-04; 8:45 am]
BILLING CODE 6560-50-P


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