[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)] [Rules and Regulations] [Pages 26463-26466] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-12430] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [FRL-6001-3] Approval of Section 112(l) Authority for Hazardous Air Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning Facilities; State of California; South Coast Air Quality Management District AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: Pursuant to section 112(l) of the Clean Air Act (CAA) and through the California Air Resources Board, the South Coast Air Quality Management District (SCAQMD) requested approval to implement and enforce its ``Rule 1421: Control of Perchloroethylene Emissions from Dry Cleaning Systems'' (Rule 1421) in place of the ``National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP) for area sources under SCAQMD's jurisdiction. The Environmental Protection Agency (EPA) has reviewed this request and has found that it satisfies all of the requirements necessary to qualify for approval. Thus, EPA is hereby granting SCAQMD the authority to implement and enforce Rule 1421 in place of the dry cleaning NESHAP for area sources under SCAQMD's jurisdiction. DATES: This rule is effective on July 13, 1998 without further notice, unless EPA receives relevant adverse comments by June 12, 1998. If EPA receives such [[Page 26464]] comment, then it will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 13, 1998. ADDRESSES: Comments must be submitted to Andrew Steckel at the EPA Region IX office listed below. Copies of SCAQMD's request for approval are available for public inspection at the following locations: U.S. Environmental Protection Agency, Region IX, Rulemaking Office (AIR-4), Air Division, 75 Hawthorne Street, San Francisco, California 94105-3901. Docket # A-96-25. California Air Resources Board, Stationary Source Division, 2020 ``L'' Street, P.O. Box 2815, Sacramento, California 95812-2815. FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1200. SUPPLEMENTARY INFORMATION: I. Background On September 22, 1993, the Environmental Protection Agency (EPA) promulgated the National Emission Standards for Hazardous Air Pollutants (NESHAP) for perchloroethylene dry cleaning facilities (see 58 FR 49354), which was codified in 40 CFR Part 63, Subpart M, ``National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP). On May 21, 1996, EPA approved the California Air Resources Board's (CARB) request to implement and enforce section 93109 of Title 17 of the California Code of Regulations, ``Airborne Toxic Control Measure for Emissions of Perchloroethylene from Dry Cleaning Operations'' (dry cleaning ATCM), in place of the dry cleaning NESHAP for area sources (see 61 FR 25397). This approval became effective on June 20, 1996. Thus, under Federal law, from September 22, 1993, to June 20, 1996, all dry cleaning facilities located within the jurisdiction of the South Coast Air Quality Management District (SCAQMD) that used perchloroethylene were subject to and required to comply with the dry cleaning NESHAP. Since June 20, 1996, all such dry cleaning facilities that also qualify as area sources are subject to the Federally-approved dry cleaning ATCM; major sources, as defined by the dry cleaning NESHAP, remain subject to the dry cleaning NESHAP and the Clean Air Act (CAA) Title V operating permit program. On November 13, 1997, EPA received, through CARB, SCAQMD's request for approval to implement and enforce its June 13, 1997, revision of ``Rule 1421: Control of Perchloroethylene Emissions from Dry Cleaning Operations'' (Rule 1421), as the Federally-enforceable standard for area sources under SCAQMD's jurisdiction. SCAQMD's request, however, does not include the authority to determine equivalent emission control technology for dry cleaning facilities in place of 40 CFR 63.325. This Federal Register action for the SCAQMD excludes the Los Angeles County portion of the Southeast Desert Air Quality Management Area, otherwise known as the Antelope Valley Region in Los Angeles County, which is now under the jurisdiction of the Antelope Valley Air Pollution Control District as of July 1, 1997.1 --------------------------------------------------------------------------- \1\ The State has recently changed the names and boundaries of the air basins located within the Southeast Desert Modified Air Quality Management Area. Pursuant to State regulation the Coachella- San Jacinto Planning Area is now part of the Salton Sea Air Basin (17 Cal. Code. Reg. Sec. 60114); the Victor Valley/Barstow region in San Bernardino County and Antelope Valley Region in Los Angeles County is a part of the Mojave Desert Air Basin (17 Cal. Code. Reg. Sec. 60109). In addition, in 1996 the California Legislature established a new local air agency, the Antelope Valley Air Pollution Control District, to have the responsibility for local air pollution planning and measures in the Antelope Valley Region (California Health & Safety Code Sec. 40106). --------------------------------------------------------------------------- II. EPA Action A. SCAQMD's Dry Cleaning Rule Under CAA section 112(l), EPA may approve state or local rules or programs to be implemented and enforced in place of certain otherwise applicable CAA section 112 Federal rules, emission standards, or requirements. The Federal regulations governing EPA's approval of state and local rules or programs under section 112(l) are located at 40 CFR Part 63, Subpart E (see 58 FR 62262, dated November 26, 1993). Under these regulations, a local air pollution control agency has the option to request EPA's approval to substitute a local rule for the applicable Federal rule. Upon approval, the local agency is given the authority to implement and enforce its rule in place of the otherwise applicable Federal rule. To receive EPA approval using this option, the requirements of 40 CFR 63.91 and 63.93 must be met. After reviewing the request for approval of SCAQMD's Rule 1421, EPA has determined that this request meets all the requirements necessary to qualify for approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. Accordingly, with the exception of the dry cleaning NESHAP provisions discussed in sections II.A.1 and II.A.2 below, as of the effective date of this action, SCAQMD's Rule 1421 is the Federally- enforceable standard for area sources under SCAQMD's jurisdiction. This rule will be enforceable by the EPA and citizens under the CAA. Although SCAQMD now has primary implementation and enforcement responsibility, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112. 1. Major Dry Cleaning Sources Under the dry cleaning NESHAP, dry cleaning facilities are divided between major sources and area sources. SCAQMD's request for approval included only those provisions of the dry cleaning NESHAP that apply to area sources. Thus, dry cleaning facilities using perchloroethylene that qualify as major sources, as defined by the dry cleaning NESHAP, remain subject to the dry cleaning NESHAP and the CAA Title V operating permit program. 2. Authority to Determine Equivalent Emission Control Technology for Dry Cleaning Facilities Under the dry cleaning NESHAP, any person may petition the EPA Administrator for a determination that the use of certain equipment or procedures is equivalent to the standards contained in the dry cleaning NESHAP (see 40 CFR 63.325). In its request, SCAQMD did not seek approval for the provisions in Rule 1421 that would allow for the use of alternative emission control technology without previous approval from EPA (i.e., Rule 1421(c)(17), (d)(3)(A)(v), (d)(4)(B)(ii)(III), and (j)). A source seeking permission to use an alternative means of emission limitation under CAA section 112(h)(3) must receive approval, after notice and opportunity for comment, from EPA before using such alternative means of emission limitation for the purpose of complying with CAA section 112. B. California's Authorities to Implement and Enforce CAA Section 112 Standards 1. Penalty Authorities As part of its request for approval of the dry cleaning ATCM, CARB submitted a finding by California's Attorney General stating that ``State law provides civil and criminal enforcement authority consistent with [40 CFR] 63.91(b)(1)(i), 63.91(b)(6)(i), and 70.11, including authority to recover penalties [[Page 26465]] and fines in a maximum amount of not less than $10,000 per day per violation * * *'' [emphasis added]. In accordance with this finding, EPA understands that the California Attorney General interprets section 39674 and the applicable sections of Division 26, Part 4, Chapter 4, Article 3 (``Penalties'') of the California Health and Safety Code as allowing the collection of penalties for multiple violations per day. In addition, EPA also understands that the California Attorney General interprets section 42400(c)(2) of the California Health and Safety Code as allowing for, among other things, criminal penalties for knowingly rendering inaccurate any monitoring method required by a toxic air contaminant rule, regulation, or permit. As stated in section II.A above, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112, including the authority to seek civil and criminal penalties up to the maximum amounts specified in CAA section 113. 2. Variances SCAQMD's Rule 504 and Division 26, Part 4, Chapter 4, Articles 2 and 2.5 of the California Health and Safety Code provide for the granting of variances under certain circumstances. EPA regards these provisions as wholly external to SCAQMD's request for approval to implement and enforce a CAA section 112 program or rule and, consequently, is proposing to take no action on these provisions of state or local law. EPA does not recognize the ability of a state or local agency who has received delegation of a CAA section 112 program or rule to grant relief from the duty to comply with such Federally- enforceable program or rule, except where such relief is granted in accordance with procedures allowed under CAA section 112. As stated above, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112. Similarly, section 39666(f) of the California Health and Safety Code allows local agencies to approve alternative methods from those required in the ATCMs, but only as long as such approvals are consistent with the CAA. As mentioned in section II.A.2 above, a source seeking permission to use an alternative means of emission limitation under CAA section 112 must also receive approval, after notice and opportunity for comment, from EPA before using such alternative means of emission limitation for the purpose of complying with CAA section 112. III. Administrative Requirements A. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Approvals under 40 CFR 63.93 do not create any new requirements, but simply approve requirements that the state or local agency is already imposing. Therefore, because this approval does not impose any new requirements, it does not have a significant impact on affected small entities. B. Unfunded Mandates Reform Act Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate, or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre- existing requirements under state or local law, and imposes no new Federal requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action. C. Submission to Congress and the General Accounting Office 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). D. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 13, 1998. 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 may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). E. Executive Order 12866 The Office of Management and Budget has exempted this regulatory action from review under Executive Order 12866. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of section 112 of the Clean Air Act, as amended, 42 U.S.C. section 7412. Dated: April 10, 1998. Felicia Marcus, Regional Administrator, Region IX. Title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows: PART 63--[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. 2. Section 63.14 is amended by revising paragraph (d)(1) to read as follows: Sec. 63.14 Incorporation by reference. * * * * * (d) * * * (1) California Regulatory Requirements Applicable to the Air [[Page 26466]] Toxics Program, April 6, 1998, IBR approved for Sec. 63.99(a)(5)(ii) of subpart E of this part. Subpart E--Approval of State Programs and Delegation of Federal Authorities 3. Section 63.99 is amended by revising paragraph (a)(5)(ii) introductory text and adding paragraph (a)(5)(ii)(C), to read as follows: Sec. 63.99 Delegated Federal authorities. (a) * * * (5) * * * (ii) Affected sources must comply with the California Regulatory Requirements Applicable to the Air Toxics Program, April 6, 1998 (incorporated by reference as specified in Sec. 63.14) as described below. * * * * * (C) The material incorporated in Chapter 3 of the California Regulatory Requirements Applicable to the Air Toxics Program (South Coast Air Quality Management District Rule 1421) pertains to the perchloroethylene dry cleaning source category in the South Coast Air Quality Management District, and has been approved under the procedures in Sec. 63.93 to be implemented and enforced in place of Subpart M-- National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities, as it applies to area sources only, as defined in Sec. 63.320(h). (1) Authorities not delegated. (i) South Coast Air Quality Management District is not delegated the Administrator's authority to implement and enforce Rule 1421 in lieu of those provisions of Subpart M which apply to major sources, as defined in Sec. 63.320(g). Dry cleaning facilities which are major sources remain subject to Subpart M. (ii) South Coast Air Quality Management District is not delegated the Administrator's authority of Sec. 63.325 to determine equivalency of emissions control technologies. Any source seeking permission to use an alternative means of emission limitation, under sections (c)(17), (d)(3)(A)(v), (d)(4)(B)(ii)(III), and (j) of Rule 1421, must also receive approval from the Administrator before using such alternative means of emission limitation for the purpose of complying with section 112. [FR Doc. 98-12430 Filed 5-12-98; 8:45 am] BILLING CODE 6560-50-P