70888 Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Rules and Regulations 

1 Initial Study for Proposed Amended Rule 1143, 

SCAQMD, August 2010, pages 2–19 to 2–20 (Initial 

Study). 

2Superior Court of California, County of Los 

Angeles Ruling on Submitted Matter March 29, 

2011 Writ of Mandamus, May 16, 2011, page 2 

(Superior Court ruling, May 16, 2011). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0537; FRL–9489–2] 

Revisions to the California State 

Implementation Plan, South Coast Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the South Coast Air Quality 

Management District (SCAQMD) portion 

of the California State Implementation 

Plan (SIP). These revisions were 

proposed in the Federal Register on July 

15, 2011 and concern volatile organic 

compound (VOC) emissions from paint 

thinners and multi-purpose solvents 

and from metalworking fluids and 

direct-contact lubricants. We are 

approving local rules that regulate these 

emission sources under the Clean Air 

Act as amended in 1990 (CAA or the 

Act). 

DATES: Effective Date: This rule is 

effective on December 16, 2011. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0537 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps, multivolume reports), and some may not be 

available in either location (e.g., 

confidential business information 

(CBI)). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Adrianne Borgia EPA Region IX, (415) 

972–3576, borgia.adrianne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On July 15, 2011 (76 FR 41744), EPA 

proposed to approve the following rules 

into the California SIP. 

Local agency Rule No. Rule title Amended Submitted 

SCAQMD ..................................... 1143 Consumer Paint and Multi-purpose Solvents ................................... 12/03/10 04/05/11 

SCAQMD ..................................... 1144 Metalworking Fluids and Direct-Contact Lubricants ......................... 07/09/10 04/05/11 

We proposed to approve these rules 

because we determined that they 

complied with the relevant CAA 

requirements. Our proposed action 

contains more information on the rules 

and our evaluation. On July 15, 2011 (76 

FR 41717), EPA also published a direct 

final approval of these rules. Because 

we received timely public comments, 

we withdrew this direct final approval 

on September 1, 2011 (76 FR 54384). 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received comments from the 

following parties. 

1. Michael S. Colley, W.M. Barr & 

Company; letter dated August 15, 2011 

and received August 15, 2011 (W.M. 

Barr). 

2. Pete Founger, WD–40 Company; 

letter dated August 12, 2011 and 

received August 12, 2011 (WD–40). 

The comments and our responses are 

summarized below. 

Comment #1: W.M. Barr states that 

rule 1143 effectively requires 

reformulation to acetone-based products 

which are extremely flammable, 

creating unnecessary fire risks for 

consumers and potential liability for 

manufacturers. 

Response #1: The District analyzed 

this issue during local development of 

this rule, and determined that, 

Rule 1143 includes rule requirements 

designed to alert the consumer that new 

formulations may be more flammable than 

their conventional solvent counterpart. 

Further, the rule 1143 labeling requirement is 

identical to the labeling language 

recommended in CARB’s consumer products 

regulation, which was supported as an 

acceptable remedy to address the safety 

concerns initially expressed by fire 

authorities. Rule 1143 also includes 

additional language that goes beyond CARB’s 

requirements and commits the SCAQMD to 

continue conducting ongoing public 

education and outreach activities in 

conjunction with the local fire departments 

to alert the public of the dangers of 

reformulated solvents with flammable or 

extremely flammable chemicals. SCAQMD 

staff met with local fire departments and 

related fire agencies and developed 

educational brochures and public service 

announcements to further alert the public of 

a potential change in formulations of paint 

thinners and multi-purpose solvents. This 

outreach effort was designed to further alert 

the public about the need to review labels for 

products that may contain flammable or 

extremely flammable solvents. Based upon 

these considerations, the existing rule was 

found to have less than significant fire hazard 

impacts in the June 2010 Final EA for PAR 

1143.1

We also note that this issue has 

already been resolved in court. 

Specifically, the Superior Court of 

California, County of Los Angeles 

denied the petition for writ of mandate 

by the commenter, which contended 

that SCAQMD’s Supplemental 

Environmental Assessment (SEA) did 

not comply with CEQA, was 

inconsistent with the court’s prior 

decision, and was preempted by State 

and Federal Law. The court also 

subsequently found that there was 

substantial evidence in the record to 

support SCAQMD’s conclusion of no 

significant fire hazard.2 EPA has 

reviewed the SCAQMD’s analysis and 

the court decision, and does not find 

basis in the comment to disapprove rule 

1143 for this issue. See also response to 

comment 6. 

Comment #2: W.M. Barr states that 

they will not distribute certain acetonebased products in SCAQMD to avoid the 

increased fire hazard caused by rule 

1143 as discussed in comment 1. W.M. 

Barr claims this will result in the loss 

of several million dollars in annual sales 

to their company and possible 

inadequate supplies of consumer paint 

thinners and multi-purpose solvents in 

SCAQMD. 

Response #2: As discussed in 

response to comment 1, we concur with 

SCAQMD and court determinations that 

the rule does not create a significant 

new fire hazard. The District further 

provided a detailed Final 


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Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Rules and Regulations 70889 

3Final Socioeconomic Assessment for Proposed 

Rule 1143—Consumer Paint Thinners and Multipurpose Solvents, SCAQMD, February 2009, pages 

3 and 10 (Socioeconomic Assessment). 

4SCAQMD Final Staff Report of Rule 1143— 

Consumer Paint Thinners and Multi-Purpose 

Solvents, March 6 2010 (Staff Report, March 6 

2010), page 4. 

5SCAQMD Final Staff Report for Proposed Rule 

1143—Consumer Paint Thinners and Multi-Purpose 

Solvents, July 2010 (Staff Report, July 2010), page 

27. 

6 2008 Annual quantity and emissions reports 

submitted by the Architectural Coatings 

Manufacturers pursuant to SCAQMD rule 314, Fees 

for Architectural Coatings, amended May 16, 2011 

(2008 Architectural Coating sales data). 

7 40 CFR 52.220(c)(358). 

8Staff Report, March 6 2010, page 29. 

9 June 2010 Final Supplemental Environmental 

Assessment for Proposed Amended Rule 1143— 

Consumer Paint Thinners and Multi-Purpose 

Solvents, page 9 (Final SEA June 2010). 

10 December 2010 Staff Report for PAR 1143, 

SCAQMD, page 1 (December 2010 Staff Report). 

11 December 2010 Staff Report, page 1. 

12Superior Court of California for the County of 

Los Angeles Transcript of Proceedings of Case BS 

119869, pages 4–7 (April 2010 Court ruling). 

13April 2010 Court ruling, page 2. 

14Email from Michael Morris (SCAQMD) to 

Adrianne Borgia (EPA) regarding, ‘‘Comment Letter 

from WD–40,’’ August 25, 2011. 

Socioeconomic Assessment 3 for rule 

1143 showing that cost-effective 

controls are available. W.M. Barr has 

provided no new information to 

undermine this analysis, but merely 

stated that they will choose not to 

provide certain products subject to the 

rule. Since controls are cost-effective, 

we assume other companies will 

provide them, and we cannot 

disapprove the rule merely to protect 

the commenter’s market share. Lastly, 

we note that, ‘‘(m)any of the solvent 

technologies certified under the 

District’s Clean Air Solvent (CAS) 

program have utility as consumer paint 

thinners and multi-purpose solvents. 

The most common and effective 

cleaners that meet this criteria are 

water-based or aqueous cleaners that 

contain little or no VOCs.’’ 4

Additionally, based on 2008 data, the 

District concluded that 92.7% of all 

architectural coatings sold were of 

waterborne chemistry, while coatings 

that required thinning with solvents 

accounted for only 0.28% of the total 

inventory.5 District data shows that the 

trend continues to favor waterborne 

coatings as the 2010 data indicates that 

93.2% of the coatings sold were of 

waterborne chemistry.6 Therefore, the 

need for commercial high-VOC solvents 

and thinners is relatively small and 

continues to decrease. 

Comment #3: W.M. Barr comments 

that EPA should conduct further 

independent evaluation of whether rule 

1143 constitutes reasonably available 

control technology (RACT). 

Response #3: CAA Section 182(b)(2) 

requires RACT for all major VOC 

sources. However, States are not 

limited, in the CAA, to implementing 

RACT and may, particularly for extreme 

Ozone nonattainment areas like South 

Coast, need more stringent requirements 

to fulfill attainment and other 

requirements of CAA Sections 110 and 

part D. Rule 1143 is intended to exceed 

RACT requirements because the rule 

largely applies to consumer product 

distributors and users who fall below 

the major source threshold and therefore 

do not require RACT. In addition, EPA 

approved South Coast’s demonstration 

of RACT in 2007,7 which did not rely 

on rule 1143 controls. See also response 

to comments 4 and 5. 

Comment #4: W.M. Barr states that 

rule 1143 is not RACT because it: (a) 

Does not exempt low vapor pressure 

VOCs as does CARB; and (b) phases in 

the 25 grams/liter VOC standard more 

quickly and without the qualifications 

that are allowed by CARB. 

Response #4: The District has 

concluded ‘‘that ample technology and 

over 150 compliant products are 

available,’’ 8 so a low vapor pressure 

exemption and slower phase-in of the 

25 grams/liter limit are not needed. 

Nonetheless, even if we agreed with the 

comment that the lack of low vapor 

pressure exemption and the accelerated 

phase-in of the 25 g/l standard are not 

reasonably available, nothing in section 

182(b)(2) or elsewhere in the CAA 

prohibits States from incorporating into 

the SIP provisions more stringent than 

RACT. See also response to comments 3 

and 5. 

Comment #5: W.M. Barr comments 

that technology is only ‘‘reasonably 

available’’ where it would expedite 

attainment, which is not necessarily the 

case for rule 1143. 

Response #5: Here and elsewhere, the 

commenter confuses CAA RACT 

requirements as a control ceiling instead 

of a floor. For purposes of CAA Section 

172(c)(1), for example, EPA may only 

require States to include Reasonably 

Available Control Measures (RACM) 

that will accelerate attainment. 

However, nothing in section 172(c)(1) or 

elsewhere in the Act prohibits States 

from incorporating more stringent 

requirements in SIPs. We also note that, 

based on the Draft Supplemental 

Environmental Assessment, 9 consumer 

products with VOC limits meeting rule 

1143 are available. In addition, we note 

that the District believes the amended 

rule will result in a total reduction of 

9.75 tons/day by January 1, 2012, which 

contributes towards the District’s 

progress to attainment.10 See also 

response to comments 3 and 4. 

Comment #6: W.M. Barr does not 

believe that CARB’s submittal to EPA of 

rule 1143 fulfilled the CAA requirement 

for State authority to adopt and 

implement the rule. W.M. Barr has filed 

legal action challenging rule 1143 and, 

until this action is resolved, it is unclear 

whether California has authority to 

adopt and implement this rule. 

Response #6: A summary of W.M 

Barr’s legal action against SCAQMD 

regarding rule 1143 is outlined in the 

July 2010 Final Staff Report for 

Proposed Amended rule 1143.11 On 

April 1, 2009, W.M. Barr filed a 

challenge to rule 1143, alleging 

violations of California Environmental 

Quality Act (CEQA) and of the District’s 

certified regulatory program codified in 

rule 110. On April 1, 2010, SCAQMD’s 

motion to dismiss was granted in part, 

but the judgment and writ required 

SCAQMD to vacate the final VOC limits 

of 25 g/l and prepare a CEQA document 

to address the potential fire hazard 

issue.12 On March 29, 2011, SCAQMD 

submitted documentation for the 

remedial actions and on May 16 2011, 

the court ruled in favor of the District 

noting: 

The SEA described the conventional 

solvents used in paint thinners and multipurpose solvents and likely replacement 

solvents. The SEA also described the relative 

flammability of each product * * * The 

OSFM and Chief Bunting provided detailed 

comments * * * Experts agreed that the 

consumer warning programs established by 

CARB and SCAQMD will avoid any 

potentially significant fire hazards. There is 

now substantial evidence in record to 

support SCAQMD conclusion of no 

significant fire hazard.13

The comment has not described any 

additional legal challenge to justify EPA 

delaying SIP action on SIP submittal of 

this rule. 

Comment #7: WD–40 states that rule 

1144 is ambiguous and unenforceable 

because it is not clear whether the rule 

applies to direct-contact lubricants used 

on all substrates or only metal. 

Response #7: We agree that the rule 

could be clearer in this regard. However, 

the plain reading of both the rule title 

and the applicability section suggest 

that the rule is focused only on metal 

substrates. SCAQMD staff support 

material and response to this comment 

similarly clarify SCAQMD’s intent to 

regulate only metal substrates.14 We 

expect that this clarification somewhat 

addresses any compliance concerns for 

the commenter. While we recommend 

that SCAQMD further clarify this rule in 

the future, this minor ambiguity does 


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70890 Federal Register / Vol. 76, No. 221 / Wednesday, November 16, 2011 / Rules and Regulations 

not justify less than full SIP approval of 

the rule at this time. 

Comment #8: WD–40 commented that 

the SIP emission credits associated with 

this rule are based on outdated data and 

are significantly low if the rule covers 

more than just metal working facilities. 

Response #8: The rule specifically 

states that it covers all VOC containing 

fluids used for metalworking and for 

metal protection. The exact amount of 

emission credit associated with this rule 

is not relevant to the action on whether 

to approve the rule into the federallyenforceable SIP. 

Comment #9: WD–40 further stated 

that rule 1144 does not meet RACT 

because it: (a) does not exempt small 

containers; and (b) does not allow low 

vapor pressure VOCs as do other EPA 

and CARB regulations. 

Response #9: States are not limited to 

implementing RACT and may, 

particularly for extreme Ozone 

nonattainment areas like South Coast, 

need more stringent requirements to 

fulfill attainment and other 

requirements of CAA Sections 110 and 

part D. See also response to comments 

3, 4 and 5. 

III. EPA Action 

No comments were submitted that 

change our assessment that the 

submitted rules comply with the 

relevant CAA requirements. Therefore, 

as authorized in section 110(k)(3) of the 

Act, EPA is fully approving these rules 

into the California SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

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 action 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). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds]. 

Dated: October 21, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(388)(i)(A) to read 

as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(388) New and amended regulations 

for the following APCD were submitted 

on April 5, 2011 by the Governor’s 

Designee. 

(i) Incorporation by reference. 

(A) South Coast Air Quality 

Management District—SCAQMD) 

(1) Rule 1143, ‘‘Consumer Paint 

Thinners & Multi-purpose Solvents,’’ 

adopted on March 6, 2009 and amended 

December 3, 2010. 

(2) Rule 1144, ‘‘Metal Working Fluids 

and Direct-Contact Lubricants,’’ adopted 

on March 6, 2009, and amended July 9, 

2010. 

* * * * * 

[FR Doc. 2011–29459 Filed 11–15–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2010–0866; FRL–9325–4] 

Fenamidone; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for inadvertent residues of 

fenamidone in or on the cereal grains 

crop group 15, except rice and the 

forage, fodder, and straw of cereal grains 

crop group 16, except rice. Bayer Crop 

Science requested these tolerances 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA). 

DATES: This regulation is effective 

November 16, 2011. Objections and 

requests for hearings must be received 

on or before January 17, 2012, and must 

be filed in accordance with the 

instructions provided in 40 CFR part 


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