69298 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

1The 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.

Authority: 23 U.S.C.; 42 U.S.C. 7401–

7641q.

■ 2. Section 51.100 is amended by 

revising paragraph (s)(1) as follows:

Subpart F—[Amended]

§ 51.100 Definitions.

* * * * *

(s) * * *

(1) This includes any such organic 

compound other than the following, 

which have been determined to have 

negligible photochemical reactivity: 

methane; ethane; methylene chloride 

(dichloromethane); 1,1,1-trichloroethane 

(methyl chloroform); 1,1,2-trichloro1,2,2-trifluoroethane (CFC–113); 

trichlorofluoromethane (CFC–11); 

dichlorodifluoromethane (CFC–12); 

chlorodifluoromethane (HCFC–22); 

trifluoromethane (HFC–23); 1,2-dichloro 

1,1,2,2-tetrafluoroethane (CFC–114); 

chloropentafluoroethane (CFC–115); 

1,1,1-trifluoro 2,2-dichloroethane 

(HCFC–123); 1,1,1,2-tetrafluoroethane 

(HFC–134a); 1,1-dichloro 1-fluoroethane 

(HCFC–141b); 1-chloro 1,1-

difluoroethane (HCFC–142b); 2-chloro1,1,1,2-tetrafluoroethane (HCFC–124); 

pentafluoroethane (HFC–125); 1,1,2,2-

tetrafluoroethane (HFC–134); 1,1,1-

trifluoroethane (HFC–143a); 1,1-

difluoroethane (HFC–152a); 

parachlorobenzotrifluoride (PCBTF); 

cyclic, branched, or linear completely 

methylated siloxanes; acetone; 

perchloroethylene (tetrachloroethylene); 

3,3-dichloro-1,1,1,2,2-

pentafluoropropane (HCFC–225ca); 1,3-

dichloro-1,1,2,2,3-pentafluoropropane 

(HCFC–225cb); 1,1,1,2,3,4,4,5,5,5-

decafluoropentane (HFC 43–10mee); 

difluoromethane (HFC–32); 

ethylfluoride (HFC–161); 1,1,1,3,3,3-

hexafluoropropane (HFC–236fa); 

1,1,2,2,3-pentafluoropropane (HFC–

245ca); 1,1,2,3,3-pentafluoropropane 

(HFC–245ea); 1,1,1,2,3-

pentafluoropropane (HFC–245eb); 

1,1,1,3,3-pentafluoropropane (HFC–

245fa); 1,1,1,2,3,3-hexafluoropropane 

(HFC–236ea); 1,1,1,3,3-

pentafluorobutane (HFC–365mfc); 

chlorofluoromethane (HCFC–31); 1 

chloro-1-fluoroethane (HCFC–151a); 1,2-

dichloro-1,1,2-trifluoroethane (HCFC–

123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-

methoxy-butane (C4F9OCH3 or HFE–

7100); 2-(difluoromethoxymethyl)-

1,1,1,2,3,3,3-heptafluoropropane 

((CF3)2CFCF2OCH3); 1-ethoxy1,1,2,2,3,3,4,4,4-nonafluorobutane 

(C4F9OC2H5 or HFE–7200); 2-

(ethoxydifluoromethyl)-1,1,1,2,3,3,3-

heptafluoropropane 

((CF3)2CFCF2OC2H5); methyl acetate, 

1,1,1,2,2,3,3-heptafluoro-3-methoxypropane (n-C3F7OCH3, HFE–7000), 3-

ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-

dodecafluoro-2-(trifluoromethyl) hexane 

(HFE–7500), 1,1,1,2,3,3,3-

heptafluoropropane (HFC 227ea), and 

methyl formate (HCOOCH3), and 

perfluorocarbon compounds which fall 

into these classes: 

(i) Cyclic, branched, or linear, 

completely fluorinated alkanes; 

(ii) Cyclic, branched, or linear, 

completely fluorinated ethers with no 

unsaturations; 

(iii) Cyclic, branched, or linear, 

completely fluorinated tertiary amines 

with no unsaturations; and 

(iv) Sulfur containing 

perfluorocarbons with no unsaturations 

and with sulfur bonds only to carbon 

and fluorine.

* * * * *

[FR Doc. 04–26070 Filed 11–26–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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: 

johnson.williaml@epa.gov.

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 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 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.

Tropospheric ozone, commonly 

known as smog, occurs when VOCs and 

nitrogen oxides (NOX) react in the 

atmosphere. Because of the harmful 

health effects of ozone, EPA and State 

governments limit the amount of VOCs 

and NOX that can be released into the 

atmosphere. Volatile organic 

compounds are those compounds of 

carbon (excluding carbon monoxide, 

carbon dioxide, carbonic acid, metallic 

carbides or carbonates, and ammonium 

carbonate) that form ozone through 

atmospheric photochemical reactions. 

Compounds of carbon (also known as 

organic compounds) have different 

levels of reactivity—that is, they do not 

react at the same speed or do not 

contribute to ozone formation to the 

same extent. It has been EPA’s policy 

that organic compounds with a 

negligible level of reactivity need not be 

regulated to reduce ozone. The EPA 

determines whether a given organic 

compound has ‘‘negligible’’ reactivity by 

comparing the compound’s reactivity to 

the reactivity of ethane. The EPA lists 

these compounds in its regulations (at 

40 CFR 51.100(s)) and excludes them 

from the definition of VOCs. The 

chemicals on this list are often called 

‘‘negligibly reactive’’ organic 

compounds. 

B. What Evidence Does the Petitioner 

Present To Support Classifying TBAC as 

Negligibly Reactive? 

On January 17, 1997, Lyondell 

submitted a petition to EPA which 

requested that EPA add TBAC to the list 

of compounds that are designated 

negligibly reactive in the definition of 

VOC at 40 CFR 51.100(s). The petitioner 

subsequently submitted supplemental 

materials to EPA in support of its 

petition. These materials are contained 

in docket OAR–2003–0084. The 

petitioner based the request on a 

comparison of the reactivity of TBAC to 

that of ethane, the latter having already 

been listed, since 1977, as negligibly 

reactive. In the past, EPA has 

determined that ethane and compounds 

with lower reactivity than ethane are 

negligibly reactive and therefore 

exempted them from the definition of 

VOC. Reactivity data presented by 

Lyondell in support of the petition 

included both kOH values and 

incremental reactivity values. The kOH

values are values of the rate constant for 

the VOC + OH (hydroxyl radical) 

reaction. The incremental reactivity 

values, which support the petition and 

reflect TBAC’s potential for producing 

ozone in the atmosphere, are based on 

atmospheric photochemical modeling.

Lyondell’s primary case for TBAC 

being less reactive than ethane is based 

on the use of incremental reactivity data 

set forth in a report titled ‘‘Investigation 

of the Atmospheric Ozone Formation 

Potential of T-Butyl Acetate’’ by W.P.L. 

Carter, et al. In that study, Carter 

compared the incremental ozone formed 

per-gram of TBAC under urban 

atmosphere conditions to that formed, 

under the same conditions, per-gram of 

ethane. The study repeated these 

comparisons for 39 condition scenarios, 

that is, sets of ambient conditions 

intended to represent 39 urban areas 

across the United States. Carter 

concluded that, on average, TBAC 

formed 0.4 times as much ozone as an 

equal mass of ethane under the 

conditions assumed in the study. 

Comparing the reactivity of TBAC to 

ethane on a per mole basis, as opposed 

to a per gram basis, calculations based 

on Carter’s results show that a mole of 

TBAC forms 1.5 times the ozone formed 

by a mole of ethane under the 

conditions assumed in the study. The 

difference in reactivity results between 

the ‘‘per gram’’ and ‘‘per mole’’

comparisons is due to the fact that a 

molecule of TBAC is almost four times 

heavier than a molecule of ethane. 

Along with other reasons stated below, 

this ‘‘closeness’’ to EPA’s reactivity 

exemption line requires the Agency to 

retain certain emission reporting 

requirements for TBAC. 

C. How Does EPA Determine Whether 

an Organic Compound Is Negligibly 

Reactive? 

In 1977, EPA published the 

‘‘Recommended Policy on Control of 

Volatile Organic Compounds’’ (42 FR 

35314, July 8, 1977) which established 

the basic policy that EPA has used 

regarding organic chemical 

photochemical reactivity since that 

time. In that statement, EPA identified 

the following four compounds as being 

of negligible photochemical reactivity 

and said these should be exempt from 

regulation under State Implementation 

Plans: methane; ethane; 1,1,1-

trichloroethane (methyl chloroform); 

1,1,2-trichloro-1,2,2-trifluoroethane 

(CFC–113). That policy statement 

provides that as new information 

becomes available, EPA may 

periodically revise the list of negligibly 

reactive compounds to add compounds 

to or delete them from the list. 

The EPA’s decision to exempt certain 

compounds in its 1977 policy was 

heavily influenced by experimental 

smog chamber work done earlier in the 

1970’s. In this experimental work, 

various compounds were injected into a 

smog chamber at a molar concentration 

that is typical of the total molar 

concentration of VOCs in Los Angeles 

ambient air (4 ppmv). As the compound 

was allowed to react with NOX at 

concentrations of 0.2 ppm, the 

maximum ozone formed in the chamber 

was measured. If the compound in the 

smog chamber did not result in ozone 

formation of 0.08 ppm (0.08 ppm was 

the NAAQS for oxidants at that time), it 

was assumed that emissions of the 

compound would not cause the oxidant 

standard to be exceeded. The compound 

could then be considered to be 

negligibly reactive. Ethane was the most 

reactive compound tested that did not 

cause the 0.08 ozone level in the smog 

chamber to be met or exceeded. Based 

on those findings and judgments, EPA 

designated ethane as negligibly reactive, 

and ethane became the benchmark VOC 

species separating reactive from 

negligibly reactive compounds. 

Since 1977, the primary method for 

comparing the reactivity of a specific 

compound to that of ethane has been to 

compare the kOH values for ethane and 

the specific compound of interest. The 

kOH value represents the molar rate 

constant for reactions between the 

subject compound (e.g., ethane) and the 

hydroxyl radical (i.e., •OH). This 

reaction is very important since it is the 

primary pathway by which most organic 

compounds initially participate in 

atmospheric photochemical reaction 

processes. The EPA has exempted forty 

five compounds or classes of 

compounds based on a comparison of 

kOH values since 1977.

In 1994, in response to a petition to 

exempt volatile methyl siloxanes, EPA, 

for the first time, considered a 

comparison to ethane based on 

Incremental Reactivity (IR) metrics (59 

FR 50693, October 5, 1994). The use of 

IR metrics allowed EPA to take into 

consideration the ozone forming 

potential of other reactions of the 

compound in addition to the initial 

reaction with the hydroxyl radical. 

Volatile methyl siloxanes proved to be 

less reactive than ethane on a per mole 

basis. In 1995, EPA considered another 

compound, acetone, using IR metrics. 

Because acetone breaks down to form 

ozone by the process of photolysis 

rather than by the normal OH reaction 

scheme, EPA considered the IR metrics 

instead of KOH values, and exempted 

acetone based on the fact that acetone 

was less reactive than ethane on the 

basis of grams of ozone formed per 

grams of VOC emitted (60 FR 31635, 

June 16, 1995). Prior to 1994, all 

69300 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

exemptions had been based on KOH

values compared on the basis of a mole 

of ozone formed per mole of VOC 

emitted. Since 1995, EPA has exempted 

one additional compound, methyl 

acetate, based on comparisons of IR 

metrics. The reactivity of methyl acetate 

was found to be comparable to or less 

than that for ethane under a per mole 

basis. 

In the proposal for this rule (64 FR 

52731), EPA announced two things: (1) 

Our intent to grant Lyondell’s petition 

for exemption of TBAC based on a 

comparison of IR metrics for TBAC as 

compared to ethane in units of grams of 

ozone formed per gram of VOC emitted, 

and (2) our intent to base decisions on 

future petitions for VOC exemptions 

only on an equi-molar comparison of 

KOH and IR values for the compound in 

question to the KOH and IR values for 

ethane. In the proposal, EPA indicated 

that it might grant the TBAC exemption 

on the theory that the petitioner had 

detrimentally relied on earlier EPA 

statements and actions concerning the 

use of a gram-based comparison rather 

than a molar comparison of the 

reactivity of compounds. 

D. What Comments Did EPA Receive on 

the Proposal? 

In the proposal for the TBAC 

exemption, EPA indicated that 

interested persons could request that 

EPA hold a public hearing on the 

proposed action (see section 

307(d)(5)(ii) of the CAA). There were no 

requests for a public hearing. 

In the proposal action, EPA provided 

for a public comment period. The EPA 

received 30 comment letters. The 

comments received were divided into 

two general categories: comments 

concerned with EPA VOC exemption 

policy in general and comments focused 

specifically on the exemption of TBAC. 

Several commented on EPA VOC 

exemption policy, in general, as well as 

supporting the TBAC exemption. The 

comments received are too numerous to 

list each one in this final rule. All of the 

comment letters have been placed in the 

docket for this action. A summary of the 

comments received and EPA responses 

are given in a technical support 

document, titled ‘‘Responses to 

Significant Comments on the Proposed 

Revision to the Definition of Volatile 

Organic Compounds—Exclusion of tButyl Acetate (64 FR 52731, September 

30, 1999),’’ which is in the docket. In 

today’s final rule, we have summarized 

what EPA views as the most significant 

comments and our responses. 

II. Comments Dealing With EPA’s VOC 

Exemption Policy Comment 

A number of commenters asserted 

that the primary purpose of a VOC 

exemption policy should be to 

encourage replacement of current 

emissions of highly reactive compounds 

with emissions of lower reactive 

compounds. This would ostensibly 

result in lower ozone formation and 

lower adverse environmental impact. 

The commenters stated that one way of 

doing this would be to exempt more low 

reactivity compounds. The use of a 

‘‘reactivity per gram’’ basis for 

comparing reactivities for exemption 

purposes would be less strict than a 

‘‘per mole’’ basis, and would permit 

more exemptions, and thus more 

solvent substitution. 

Response 

The intent of EPA’s current VOC 

exemption policy is to avoid placing an 

undue regulatory burden on the use of 

compounds that do not significantly 

contribute to the formation of harmful 

concentrations of ozone. Once a 

compound is exempted, emissions of 

the compound may increase 

significantly due to substitution and 

new uses of the compound. Because 

these potential increases are exempt 

from control, it is important that the 

compounds be negligibly reactive and 

not simply marginally less reactive than 

compounds that they may replace. If by 

exempting negligibly reactive 

compounds EPA encourages the 

substitution of negligibly reactive 

compounds for highly reactive 

compounds, this is an added benefit. 

EPA is currently evaluating a variety 

of scientific, legal, and practical issues 

associated with the design and 

implementation of a policy to encourage 

further substitution, such as the use of 

VOC reactivity scales. To address these 

issues, EPA is working with the State of 

California and the Reactivity Research 

Working Group, a government/industry/ 

academic working group established 

under NARSTO (formerly the North 

American Research Strategy for 

Tropospheric Ozone) to identify 

research priorities related to VOC 

reactivity. The results of these efforts 

will be considered by EPA as part of a 

multi-year review of our current VOC 

policy and addressed through future 

rulemakings.

Comment 

Many commenters opposed EPA’s 

announcement that reactivity petitions 

will be evaluated on a ‘‘reactivity per 

mole’’ basis for petitions submitted after 

the TBAC proposal notice date. These 

commenters supported the ‘‘per gram’’

basis and questioned the use of the 

smog chamber experiments that were 

reported in 1977 as the basis for the 

molar comparison with ethane. 

Response 

The EPA believes that a ‘‘reactivity 

per mole’’ comparison is more 

consistent with the smog chamber 

experiments underlying the 1977 policy, 

is more consistent with the historical 

use of kOH values as a basis of 

comparison, and is arguably more 

environmentally protective than a 

‘‘reactivity per mass’’ comparison. 

However, EPA believes that the issues 

raised by commenters warrant a more 

extensive review of the overall 

exemption policy and its scientific 

bases. Consequently, EPA is not revising 

its current VOC exemption policy with 

this final rule. As noted in the proposal, 

EPA has commenced a multi-year 

review of its policy, which will 

hopefully be informed by the research 

activities being identified by the RRWG 

mentioned above. The EPA believes that 

it would be desirable for this review to 

be completed before reaching a decision 

on how to address future petitions. 

Parties submitting petitions for VOC 

exemptions should expect their 

petitions to be reviewed under a new 

policy. 

III. Comments Specific to the TBAC 

Exemption Proposal Comment 

Commenters opposed to the TBAC 

exemption said that because EPA 

intended to change its exemption policy 

to a ‘‘per mole’’ comparison, EPA 

should apply that test to this petition 

and not grandfather it under the ‘‘per 

gram’’ policy. The petitioner argued that 

it relied on past EPA statements 

regarding the acceptability to EPA of 

using a per gram basis in the acetone 

exemption proposal (59 FR 49877, 

September 30, 1994) and final rule (60 

FR 31633, June 16, 1995) and in the 

1995 Report to Congress ‘‘Study of 

Volatile Organic Compound Emissions 

from Consumer and Commercial 

Products.’’ The petitioner argued that in 

reliance on these statements it had 

expended significant resources in 

research and planning to develop its 

petition for the exemption of TBAC on 

the per gram basis. 

Response 

As discussed above, in today’s action, 

EPA is not finalizing a change to the 

existing VOC exemption policy. 

Therefore, our decision to grant the 

TBAC petition does not involve 

grandfathering this pre-existing petition 

from the application of a new policy. In 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 69301

any event, we do not believe that the 

petitioner’s investment of significant 

resources in research and planning 

would be, in itself, a sufficient 

justification for such grandfathering. 

First, an important consideration for 

grandfathering is the statutory interest 

in applying the new policy. If we were 

to adopt a policy today permitting only 

a per mole comparison, retaining ethane 

as the benchmark, we might conclude 

that granting the TBAC petition would 

not further the statutory interest in 

reducing ozone, because on a per-mole 

basis TBAC is more reactive than 

ethane. A second consideration for 

grandfathering is whether the new 

policy represents an abrupt departure 

from well-established practice. We 

would not necessarily characterize use 

of a per-mole basis in evaluating VOC 

exemption petitions as such a departure. 

Most VOC exemptions to date have been 

granted using kOH values, which is 

consistent with using a per-mole basis. 

The remaining considerations for 

grandfathering relate to the petitioner’s 

reliance on the old policy and the 

burden to the petitioner imposed by the 

new policy. Although the petitioner 

stated that it expended significant 

resources in reliance on the per-gram 

policy, the petitioner competes in a 

regulated marketplace in which 

regulations can be expected to evolve 

with both scientific understanding and 

market conditions. In addition, because 

the petitioner claimed that it undertook 

only preliminary activities, such as 

research and planning, it would be 

difficult to identify concrete effects of 

the petitioner’s alleged reliance. 

Furthermore, changes in EPA’s VOC 

exemption policy would likely affect 

both the petitioner and its competitors. 

As commenters pointed out, EPA 

previously exempted acetone despite 

the argument that another company had 

developed a low VOC industrial cleaner 

as an alternative to acetone in reliance 

on acetone’s status as a VOC. In 

summary, if we were to apply a 

grandfathering analysis to a VOC 

exemption petition such as the TBAC 

petition, we would consider not only 

investment of resources in research and 

planning, but also the other factors 

discussed here.

Comment 

Some commenters questioned the 

exemption of TBAC before further study 

of the compound’s toxicity. According 

to the commenters: (i) The health effects 

data available for TBAC are limited; (ii) 

no chronic, developmental, or 

reproductive toxicity data are available 

for TBAC; and (iii) no genetic toxicity or 

carcinogenicity data are available for 

TBAC. Due to the lack of information on 

TBAC, the commenters contended that 

it is not possible to assess the potential 

for adverse effects from prolonged 

exposure. However, the commenters 

point to evidence that TBAC 

metabolizes to t-butyl alcohol, for which 

some animal testing data suggests that it 

may be carcinogenic. This information 

was emphasized in a letter to EPA from 

the California Environmental Protection 

Agency (signed by Air Resources Board, 

Office of Environmental Health Hazard 

Assessment,and State Water Resources 

Control Board). Other commenters 

urged EPA to deny the exclusion of 

TBAC from the VOC definition because 

of concerns about toxicity. 

Since the close of the comment 

period, the California Air Resources 

Board, in conjuction with California’s 

Office of Environmental Health Hazard 

Assessment, has completed a draft 

assessment of a VOC exemption for 

TBAC. The assessment quantifies (1) the 

potential benefits associated with 

decreased ozone formation as a result of 

TBAC substituting for more reactive 

compounds, and (2) the potential cancer 

risks associated with increased exposure 

to TBAC. A copy of this draft 

assessment is included in the docket. 

As part of their original submission, 

Lyondell had provided EPA with 

information on the acute toxicity of 

TBAC. As input into California’s 

assessment, Lyondell submitted to EPA 

and California a variety of additional 

information about chronic toxicity. 

Copies of this information, as well as a 

copy of Lyondell’s critique of 

California’s assessment, are included in 

the docket. 

Response 

The EPA has carefully reviewed the 

limited data that is available on the 

chronic toxicity of TBAC, including 

California’s risk assessment, and has 

reviewed the data available about the 

potential health benefits due to reduced 

ozone exposure from the use of TBAC 

as a substitute for more reactive 

substances. The EPA has concluded that 

(1) there is insufficient evidence of a 

significant toxic risk to justify not 

granting the exemption petition, and (2) 

granting the exemption will provide a 

net improvement in public health and 

environmental quality. However, given 

the potential for increased use of TBAC, 

EPA does believe that further toxicity 

testing is warranted to resolve the 

uncertainty associated with the limited 

evidence that is currently available. 

In response to these concerns, 

Lyondell has agreed to work with EPA 

to perform the toxicity testing needed to 

resolve the current uncertainty. As part 

of this effort, Lyondell will conduct a 

tiered series of tests designed to confirm 

and elucidate the mechanisms of 

potential toxicity observed in the 

limited data available. Lyondell will 

submit the testing results to an 

independent scientific peer consultation 

panel that will make recommendations 

to EPA and Lyondell as to whether 

further testing is warranted. Based on 

the information currently available and 

experience with similar compounds, 

EPA believes that the first tier of testing 

is likely to be sufficient to resolve much 

of the current uncertainty. Until the 

testing program is completed and 

evaluated, Lyondell has agreed to limit 

their annual production of TBAC to 

ensure that significant chronic ambient 

exposures will not occur. If the testing 

program indicates that TBAC does pose 

a potentially significant public health 

risk, EPA will take appropriate 

regulatory action to address the risk.

The EPA believes that moving 

forward with the exemption and 

simultaneously pursuing additional 

toxicity testing is a responsible risk 

management approach that allows 

society to benefit from lower ozone 

exposures while protecting against other 

potential chronic risks. 

Comment 

The petitioner claimed that TBAC 

will be used to substitute for the 

common industrial solvents toluene and 

xylene which are classified by EPA as 

Hazardous Air Pollutants (HAPs) and 

which are much more photochemically 

reactive than TBAC. The petitioner 

claimed that this will be a great 

environmental benefit from the TBAC 

exemption. Other commenters asserted 

that TBAC will not be substituted to any 

great degree for toluene and xylene as 

the petitioner claims. These commenters 

claimed that TBAC is more expensive 

than toluene and xylene and may be 

added on top of the legal VOC limit of 

these chemicals in a product to increase 

the solvent content of product without 

increasing VOC content. 

Response 

The EPA acknowledges that the 

properties of TBAC make it technically 

suitable to be substituted for toluene 

and xylene in many products. The 

extent to which TBAC will be used as 

a substitute will depend on costs. 

Currently, TBAC is relatively expensive 

compared to toluene and xylene. 

However, if exempted, demand for 

TBAC is expected to increase, 

increasing production and driving down 

costs. There is a possibility that 

companies will use relatively cheap 

solvents like toluene and xylene up to 

69302 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 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 

69304 Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / Rules and Regulations 

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.

■ 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.

■ 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]

■ 2. Section 51.100 is amended by 

adding paragraph (s)(5) to read as 

follows:

§ 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

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[MD100–3100; FRL–7835–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Revised Format of 40 CFR 

Part 52 for Materials Being 

Incorporated by Reference

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is revising the format for 

materials submitted by Maryland that 

are incorporated by reference (IBR) into 

its State implementation plan (SIP). The 

regulations affected by this format 

change have all been previously 

submitted by Maryland and approved 

by EPA. This format revision will 

primarily affect the ‘‘Identification of 

plan’’ section, as well as the format of 

the SIP materials that will be available 

for public inspection at the National 

Archives and Records Administration 

(NARA), the Air and Radiation Docket 

and Information Center located at EPA 

Headquarters in Washington, DC, and 

the EPA Regional Office. EPA is also 

adding a table in the ‘‘Identification of 

plan’’ section which summarizes the 

approval actions that EPA has taken on 

the non-regulatory and quasi-regulatory 

portions of the Maryland SIP.

DATES: Effective Date: This final rule is 

effective on November 29, 2004.

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations: 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; or the National Archives and 

Records Administration (NARA). For