[Federal Register Volume 64, Number 133 (Tuesday, July 13, 1999)]
[Rules and Regulations]
[Pages 37683-37687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6376-5]


National Emission Standards for Hazardous Air Pollutants: 
Halogenated Solvent Cleaning

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This final rule amends the national emission standard for 
hazardous air pollutants (NESHAP) for halogenated solvent cleaning by: 
permanently exempting nonmajor (or ``area'') batch cold solvent 
cleaning machines that use halogenated solvent from the Federal 
operating permit program; and deferring Federal operating permit 
requirements until December 9, 1999 for all other nonmajor halogenated 
solvent cleaning machines. With this amendment, these sources will be 
treated by our Federal Operating Permits Program in the same way EPA 
allows them to be treated by State operating permit programs adopted 
under title V of the Clean Air Act (CAA). State programs are already 
allowed to exempt/defer such sources from their requirements for title 
V operating permits. Without today's amendment, sources located in 
areas that do not have State title V permit programs (such as Indian 
country) could be subject to more burdensome requirements than may 
apply to sources located elsewhere. Today's action will reduce an undue 
regulatory burden on industry as well as on EPA's Regional Offices.

DATES: This rule takes effect on September 13, 1999, without further 
notice unless EPA receives adverse comment by August 12, 1999. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Comments. If you have adverse comments on this action, you 
may submit them in writing (in duplicate, if possible) to Docket No.    
A-92-39 at the following address: Air and Radiation Docket and 
Information Center (MC-6102), U.S. Environmental Protection Agency, 401 
M Street, SW, Washington, DC, 20460. EPA requests that you send a 
separate copy of the comments to the contact person listed below at the 
same time that you submit comments to the docket.
    Docket. Today's direct final rulemaking and other related materials 
are available for review in the docket. Copies may be obtained by 
request from the Air Docket by calling (202) 260-7548. This docket is 
available for public inspection and copying between 8:30 a.m. and 3:30 
p.m., Monday through Friday, at EPA's Air Docket, Room     M-1500, 
Waterside Mall, 401 M Street SW, Washington, DC, 20460. A reasonable 
fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For information about the final rule, 
contact Candace Carraway (telephone 919-541-3189), U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, Mail 
Drop 12, Research Triangle Park, North Carolina, 27711.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'' or ``our'' are used we mean EPA.

Entities Affected by This Action

    Entities affected by this action are stationary air sources that 
are nonmajor halogenated solvent cleaning machines (typically known as 
``degreasers'') that are (1) subject to subpart T of 40 CFR part 63, 
and (2) subject to the Federal Operating Permits Program rule at 40 CFR 
part 71. Examples of affected categories and entities are in the 
following table:

[[Page 37684]]



----------------------------------------------------------------------------------------------------------------
                                                NAICS
                   Category                      code                 Examples of affected entities
----------------------------------------------------------------------------------------------------------------
Halogenated Solvent Cleaners.................      447  Gasoline Stations.
                                                   332  Fabricated Metal Product Manufacturing.
                                                   333  Machinery Manufacturing.
                                                   334  Computer and Electronic Product Manufacturing.
                                                   335  Electrical Equipment, Appliance, and Component
                                                         Manufacturing.
                                                   336  Transportation Equipment Manufacturing.
----------------------------------------------------------------------------------------------------------------

    This table is not exhaustive. Numerous industries use halogenated 
solvent cleaners. Other types of entities not listed in the table could 
also be affected by this action.

Rationale for Direct Final Rulemaking

    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment. 
However, in the ``Proposed Rules'' section of today's Federal Register 
publication, we are publishing a separate proposal to exempt and defer 
nonmajor halogenated solvent cleaners if adverse comments are filed. 
This rule will be effective on September 13, 1999, without further 
notice unless we receive adverse comment by August 12, 1999. If we 
receive adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. We will address all public comments in a later final rule based 
on the proposed rule. We will not start a second comment period on this 
action. If you want to comment, you must do so at this time.

Outline

    The contents of today's preamble are listed in the following 
outline:

I. Background of the Final Rule
    A. Statutory and Regulatory Framework
    B. Rationale for Exemption/Deferral
II. Administrative Requirements
    A. Docket
    B. Executive Order 12866
    C. Regulatory Flexibility
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act
    F. Submission to Congress and the General Accounting Office
    G. Executive Order 13045
    H. Executive Order 12875
    I. Executive Order 13084
    J. National Technology Transfer Advancement Act

I. Background of the Final Rule

    Under section 112 of the CAA, stationary air pollution sources that 
do not have the potential to emit 10 or more tons per year of a single 
hazardous air pollutant (HAP) and 25 or more tons per year of total HAP 
are nonmajor or area sources. Our regulations provide that sources with 
the potential to emit greater than these levels are major sources and 
must obtain a title V operating permit from a State, local, or Tribal 
permitting authority, or from us if the permitting authority does not 
administer a permit program that we have approved.
    Many halogenated solvent cleaners are nonmajor sources. When we 
adopted regulations for halogenated solvent cleaners, we allowed State 
and local agencies to exempt or defer nonmajor sources from their 
permit programs. Today's rulemaking provides a level playing field by 
allowing nonmajor halogenated solvent cleaners out of our Federal 
Operating Permit Program on a permanent or temporary (deferred) basis.
    However, a title V permit is required if the nonmajor or area 
halogenated solvent cleaner is:
     Subject to title V for a reason other than being subject 
to the area source requirements in the NESHAP for halogenated solvent 
cleaning, or
     Located at a facility that is required to obtain a title V 
permit (e.g., the facility is a major source).
    The statutory and regulatory framework discussed below provides 
background information on the permitting requirements of title V of the 
CAA, the criteria that we use to decide whether to allow the exemption 
of sources from permitting requirements, and the action we have already 
taken to allow State, local, and Tribal agencies to exempt or defer 
nonmajor halogenated solvent cleaners.

A. Statutory and Regulatory Framework

1. Permitting Requirements under the CAA
    Title V of the CAA as amended in 1990 (42 U.S.C. 7661 et seq.) 
requires us to develop regulations that set minimum standards for 
approvable State programs for operating permits. We issued those 
regulations (codified in part 70 of chapter I, title 40, of the CFR) on 
July 21, 1992 (57 FR 32250).
    We issued rules establishing the Federal Operating Permit Program 
on July 1, 1996 (61 FR 34202), codified at 40 CFR part 71. The part 71 
regulations authorize us to issue permits when a State, local, or 
Tribal agency has not developed an approvable program, has not 
adequately administered or enforced its approved operating permits 
program, or has not issued permits that comply with the applicable 
requirements of the CAA.
    Section 502(a) of the CAA initially requires that major and 
nonmajor sources subject to standards or regulations under section 111 
or 112 of the Act obtain operating permits. However, section 502(a) 
also provides that in some cases, we may exempt certain nonmajor source 
categories from the requirement to obtain operating permits. This means 
that nonmajor sources that are subject to the NESHAP for halogenated 
solvent cleaning must obtain title V permits unless the requirement is 
deferred or the sources are exempted from the requirement to obtain a 
permit.
2. Criteria for Exemptions from Permitting Requirements
    We may exempt certain source categories from the requirement to 
obtain operating permits if we determine through rulemaking that 
compliance with such requirements is ``impracticable, infeasible, or 
unnecessarily burdensome on such categories.'' We may not exempt major 
sources. When we issue standards or other requirements under section 
112 of the CAA, we determine whether to exempt any or all nonmajor 
sources subject to the standard or requirement from the requirement to 
obtain a title V permit (40 CFR 70.3(b)(2); 40 CFR 71.3(b)(2)). If a 
NESHAP does not exempt or defer nonmajor sources from title V 
permitting, then nonmajor sources that are subject to the NESHAP must 
obtain title V permits (40 CFR 63.1(c)(2)(iii)).
3. Exemption and Deferral under the NESHAP for Halogenated Solvent 
Cleaning
    The NESHAP for halogenated solvent cleaning were proposed in the 
Federal Register on November 29, 1993 (58 FR 62566) and were 
promulgated on December 2, 1994 (59 FR 61801). These standards were 
codified at 40 CFR part 63, subpart T.
    In the 1994 final rule for halogenated solvent cleaning, we 
determined that

[[Page 37685]]

compliance with part 70 permitting requirements administered by State 
and local permitting authorities would be impracticable, infeasible, or 
unnecessarily burdensome on such sources. So, the final rule provided 
that owners or operators of any batch cold solvent cleaning machine 
that was not itself a major source of pollutants and that was not 
located at a major source could be exempt from permitting requirements 
under State title V operating permit programs (known as ``part 70 
programs'')(40 CFR 63.468(j)). In addition, the final rule provided 
that States could defer permitting requirements for 5 years under their 
part 70 programs for all other types of solvent cleaning machines 
subject to subpart T, if the machines are not major or located at major 
sources. On June 5, 1995 (60 FR 29484), we promulgated corrections to 
the NESHAP which clarified the length of the deferral for nonmajor 
halogenated solvent cleaners, i.e., such sources may be deferred from 
part 70 permitting requirements until December 9, 1999.

B. Rationale for Exemption/Deferral

    Today's action is necessary because the final NESHAP for 
halogenated solvent cleaning did not address whether to exempt or defer 
the permitting requirements that apply to sources that are subject to 
the part 71 program. We had not yet established the part 71 program 
when the final NESHAP was issued. It has recently come to our attention 
that numerous nonmajor halogenated solvent cleaners are located in 
Indian country. We believe it would not be appropriate to leave these 
sources subject to our operating permits program by default without 
considering whether the burden of obtaining permits would be any 
different for them than it would be for sources that are currently 
deferred or exempted under State and local operating permits programs. 
Without today's rulemaking, nonmajor halogenated solvent cleaners that 
are located in areas subject to the part 71 program (such as Indian 
country) would have to obtain a permit, while similar sources located 
in other areas might not. Today's action will eliminate this disparate 
treatment. However, note that today's action does not relieve sources 
of the requirement to meet all applicable requirements established by 
the NESHAP. Also, today's action does not affect the authority of 
State, local, or Tribal permitting authorities to require that these 
sources obtain title V permits.
    The great majority of nonmajor sources nationwide are owned or 
operated by small businesses, and we believe this is also true for 
nonmajor halogenated solvent cleaners in Indian country. If required to 
obtain permits, many such businesses would require greater assistance 
from the permitting staff at our Regional Offices because of their 
relative lack of technical and legal expertise, resources, and 
experience in dealing with environmental regulation. If our Regional 
Offices are overburdened from a backlog of permits to be processed, 
nonmajor sources will be unable to obtain technical and procedural 
assistance necessary to help them file timely and complete 
applications. This scenario would constitute an impracticable, 
infeasible, and unnecessary burden on these nonmajor sources, 
especially considering that by definition they emit less than majors.
    Currently, we administer the part 71 program for sources in U.S. 
Territories and on the Outer Continental Shelf as well as in Indian 
country. The vast majority of sources subject to the part 71 program 
are located in Indian country. We estimate that as many as 200 nonmajor 
halogenated solvent cleaners are in Indian country, and that most are 
owned or operated by small entities, primarily small gasoline service 
stations and repair shops.
    We believe that requiring nonmajor halogenated solvent cleaners in 
Indian country to obtain title V permits when similar sources located 
elsewhere are generally not required to do so would have a disparate 
impact on the economies of Tribal communities. One of the benefits of 
the title V program is that it has improved enforcement of, as well as 
compliance with, applicable requirements that are included in the 
permit. However, we have previously concluded that for nonmajor 
halogenated solvent cleaners, States may determine that the burden 
associated with permitting outweighs the enhancement to the 
enforceability of the NESHAP which would result from including the 
standards in a part 70 permit. Similarly, we believe that the burden of 
permitting nonmajor halogenated solvent cleaners under the part 71 
program outweighs the enforcement benefits. Also, we believe it is 
reasonable for purposes of national consistency for part 71 to provide 
such nonmajor sources the same relief from permitting requirements as 
is available under most State part 70 programs. So today's rule will 
exempt nonmajor batch cold solvent cleaners from part 71 and defer part 
71 permitting requirements for other nonmajor halogenated solvent 
cleaners.
    Besides burdening sources, requiring our Regional Offices to issue 
permits to these nonmajor sources would be burdensome on us and would 
divert our resources from permitting larger emitting sources. Unlike 
States, we have just 2 years in which to take action on all part 71 
permit applications from Indian country sources. Permitting large 
numbers of nonmajor sources would stress our permitting system at its 
most vulnerable time and possibly keep us from issuing permits to both 
major and nonmajor sources on time. It could also divert resources from 
our efforts to develop substantive pollution control programs in Indian 
country and to assist Tribes in developing their own programs. Since 
pollution control programs in Indian country are far less developed 
than in neighboring States, we believe these efforts are more important 
than requiring nonmajor halogenated solvent cleaners to get part 71 
permits.
    The deferral from part 71 permitting requirements which is 
established in today's rulemaking extends to December 9, 1999 which is 
5 years after the effective date of the first part 70 program that we 
approved. The existing deferral authorized for State, local, and Tribal 
part 70 programs also expires on December 9, 1999. If the deferral is 
not extended further, then halogenated solvent cleaners that are 
currently deferred would be required to submit title V permit 
applications to the applicable permitting authority (State, local, 
Tribal, or EPA) by December 9, 2000. Before that date, we plan to 
complete a rulemaking that addresses whether to extend the deferral 
under both part 70 and part 71 programs. The exemption for nonmajor 
batch cold solvent cleaners under part 70 and part 71 will not expire 
on December 9, 1999. No additional rulemaking is needed to extend it.

II. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-92-39. The docket is an 
organized and complete file of all the information submitted to or 
otherwise considered by EPA in the development of this rulemaking.

B. Executive Order 12866

    Under Executive Order (E.O.) 12866 (58 FR 51735 (October 4, 1993)), 
the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to the Office of Management and 
Budget (OMB) review and the requirements of the Executive Order. The 
Order defines ``significant'' regulatory action as one that is likely 
to lead to a rule that may:

[[Page 37686]]

    1. Have an annual effect on the economy of $100 million or more, 
adversely and materially affecting 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 program or the rights and obligation of recipients 
thereof;
    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.
    Pursuant to the terms of E.O. 12866, it has been determined that 
this rule is not a ``significant'' regulatory action because it does 
not raise any of the issues associated with ``significant'' regulatory 
actions. The rule will have a negligible effect on the economy and will 
not create any inconsistencies with other actions by other agencies, 
alter any budgetary impacts, or raise any novel legal or policy issues. 
For these reasons, this action was not submitted to OMB for review.

C. Regulatory Flexibility

    We have determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. We have also 
determined that this final rule will not have a significant economic 
impact on a substantial number of small entities. There are no 
compliance costs associated with this action. As explained earlier in 
this notice, this action relieves sources of regulatory requirements 
under the title V program.

D. Paperwork Reduction Act

    The information collection requirements of the previously 
promulgated NESHAP were submitted to and approved by OMB. Today's 
changes to the NESHAP would not increase the information collection 
burden estimates made previously. In fact, they are expected to reduce 
the required paperwork by providing the opportunity for delays for some 
sources and exemptions for others from requirements to obtain a title V 
permit.

E. Unfunded Mandates Reform Act

    Today's action imposes no costs on State, local, and Tribal 
governments. The EPA has determined that today's action does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector, in any 1 year. Therefore, the Agency 
concludes that it is not required by section 202 of the Unfunded 
Mandates Reform Act of 1995 to provide a written statement to accompany 
this regulatory action.

F. 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. 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

G. Executive Order 13045

    The E.O. 13045, ``Protection of Children from Environmental Health 
Risks and Safety Risks'' (62 FR 19885, April 23, 1977), applies to any 
rule that: (1) is determined to be ``economically significant'' as 
defined under E.O. 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.
    We interpret E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This final rule is not subject to E.O. 13045 
because: (1) it is not an economically significant rule as defined by 
E.O. 12866, and (2) it does not establish an environmental standard 
intended to mitigate health or safety risks.

H. Executive Order 12875: Enhancing Intergovernmental Partnership

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by those governments or EPA consults with those 
governments. If EPA complies by consulting, E.O. 12875 requires EPA to 
provide to OMB a description of the extent of EPA's prior consultation 
with representatives of affected State, local, and Tribal governments, 
the nature of their concerns, any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of State, local and Tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    The EPA has concluded that this rule will not create a mandate upon 
any State, local, or Tribal governments.

I. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under E.O. 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, E.O. 13084 requires EPA to 
provide to the Office of Management and Budget, 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 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
E.O. 13084 requires EPA to develop an effective process permitting 
elected 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 significantly or uniquely affect the 
communities of Indian Tribal governments. It does not result in any 
expenditure of Tribal government revenue or have any impact on Tribal 
governments. The rule applies to all nonmajor sources for which EPA is 
the permitting authority, regardless of whether they are located in 
Indian country. Accordingly, the requirements of section 3(b) of E.O. 
13084 do not apply to this rule.

[[Page 37687]]

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) directs all Federal agencies to use voluntary 
consensus standards instead of government-unique standards in their 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., material specifications, test methods, 
sampling and analytical procedures, business practices, etc.) that are 
developed or adopted by one or more voluntary consensus standards 
bodies. Examples of organizations generally regarded as voluntary 
consensus standards bodies include the American Society for Testing and 
Materials, the National Fire Protection Association, and the Society of 
Automotive Engineers. The NTTAA requires Federal agencies like EPA to 
provide Congress, through OMB, with explanations when an agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve any new technical standards or the 
incorporation by reference of existing technical standards. Therefore, 
consideration of voluntary consensus standards is not relevant to this 
action.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Operating permits.

    Dated: July 6, 1999.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40 chapter I of the 
Code of Federal Regulations is amended as set forth below.

Part 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

Subpart T--[Amended]

    2. Section 63.468 is amended by revising paragraph (j) to read as 
follows:


Sec. 63.468  Reporting requirements.

* * * * *
    (j) The Administrator has determined, pursuant to the criteria 
under section 502(a) of the Act, that an owner or operator of any batch 
cold solvent cleaning machine that is not itself a major source and 
that is not located at a major source, as defined under 40 CFR 70.2 or 
71.2, whichever is applicable, is exempt from title V permitting 
requirements for that source. An owner or operator of any other solvent 
cleaning machine subject to the provisions of this subpart is subject 
to title V permitting requirements. These sources, if not major or 
located at major sources as defined under 40 CFR 70.2 or 71.2, 
whichever is applicable, may be deferred by the applicable title V 
permitting authority from title V permitting requirements for 5 years 
after the effective date of the first part 70 program approved by EPA 
(i.e., until December 9, 1999). All sources receiving deferrals shall 
submit title V permit applications within 12 months of such date (by 
December 9, 2000). All sources receiving deferrals still must meet the 
compliance schedule as stated in Sec. 63.460.
* * * * *
[FR Doc. 99-17628 Filed 7-12-99; 8:45 am]
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