[Federal Register Volume 69, Number 230 (Wednesday, December 1, 2004)]
[Rules and Regulations]
[Pages 69823-69826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26476]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R10-OAR-2004-OR-0001; FRL-7839-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Oregon; Removal of Perchloroethylene Dry Cleaning Systems Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Oregon State Implementation Plan and repeal rules which are no longer 
required by the Clean Air Act. The revision consists of the repeal of 
Oregon's control technology guidelines for perchloroethylene (perc) dry 
cleaning systems and related definitions and provisions. Perc is a 
solvent commonly used in dry cleaning, maskant operations, and 
degreasing operations. In 1996, EPA excluded perc from the Federal 
definition of volatile organic compounds for the purpose of preparing 
state implementation plans to attain the national ambient air quality 
standards for ozone under title I of the Clean Air Act. Emissions from 
perc dry cleaners continue to be regulated as hazardous air pollutants 
under the National Emissions Standards for Hazardous Air Pollutants.

DATES: This direct final rule will be effective January 31, 2005, 
without further notice, unless EPA receives adverse comments by January 
3, 2005. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. R10-OAR-
2004-OR-0001, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     Mail: Colleen Huck, Office of Air, Waste and Toxics, AWT-
107 EPA, Region 10, 1200 Sixth Ave., Seattle, Washington 98101.
     Hand Delivery: Colleen Huck, Office of Air, Waste and 
Toxics, AWT-107, 9th Floor, EPA, Region 10, 1200 Sixth Ave., Seattle, 
Washington 98101. Such deliveries are only accepted during normal hours 
of operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. R10-OAR-2004-
OR-0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.epa.gov/edocket, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov or e-mail. The EPA EDOCKET and the Federal 
regulations.gov Web site are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you

[[Page 69824]]

include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: 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, such as 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 EPA, Region 10, Office of Air, Waste and Toxics, 1200 Sixth 
Avenue, Seattle, Washington, from 8 a.m. to 4:30 p.m. Monday through 
Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Colleen Huck at telephone number: 
(206) 553-1770, e-mail address: [email protected]; or Donna Deneen 
at telephone number: (206) 553-6706, e-mail address: 
[email protected], fax number: (206) 553-0110, or the above EPA, 
Region 10 address.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1996, EPA excluded perc from the Federal definition of volatile 
organic compounds (VOC) for the purpose of preparing state 
implementation plans (SIPs) to attain the national ambient air quality 
standards (NAAQS) for ozone under title I of the Clean Air Act. See 61 
FR 4588 (February 7, 1996). The basis for EPA's decision was that perc 
has negligible photochemical reactivity and that removing perc from the 
definition of VOC would result in a more accurate assessment of ozone 
formation potential and assist States in avoiding exceedances of the 
ozone health standard. 61 FR at 4588. EPA noted that perc would 
continue to be regulated as a hazardous air pollutant under section 112 
of the Clean Air Act and the National Emission Standard for Hazardous 
Air Pollutants (NESHAPs), such as the NESHAP for Perchloroethylene Air 
Emission Standards for Dry Cleaning Facilities, 40 CFR part 63, subpart 
M. 61 FR at 4588.
    EPA specifically stated that, as a result of the change in 
definition of VOC, EPA's perc dry cleaning control technology guideline 
no longer has the legal status of a control technology guideline for 
ozone control and States are no longer required to have rules based on 
EPA's perc dry cleaning control technology guideline. 61 FR at 4590. 
EPA also stated that it would no longer enforce measures controlling 
perc as part of a federally-approved ozone SIP. 61 FR at 4590. EPA 
emphasized, however, that if a state had taken reduction credit for 
measures controlling perc as part of an ozone control plan, the state 
would need to submit new reduction measures as necessary to account for 
the loss of those reduction credits. 61 FR at 4590.
    In response to the exclusion of perc from the definition of VOC in 
the Federal Clean Air Act, the State of Oregon, Division of 
Environmental Quality (ODEQ) revised its rules to make Oregon's 
definition of VOC consistent with the Federal definition. EPA 
previously approved this change to the definition of VOC as revision to 
the Oregon SIP. See 63 FR 24935 (May 6, 1998). On December 7, 2001, in 
response to the change in the Federal and state definition of VOC, ODEQ 
repealed its control technology guideline for perc dry cleaning systems 
contained in Oregon Administrative Rules (OAR) 340-232-0240, 
Perchloroethylene Dry Cleaning. ODEQ also repealed the related 
definitions and provisions in OAR chapter 340, Division 232. ODEQ 
submitted this repeal of its control technology guideline for perc dry 
cleaning systems to EPA as a formal SIP submission on December 2, 2002. 
As part of its submittal, ODEQ showed that it had not taken any credit 
for emission reductions associated with perc in any of its attainment 
or maintenance plans. ODEQ also noted that it had adopted by reference 
the Federal NESHAP for Perchloroethylene Air Emission Standards for Dry 
Cleaning Facilities, 40 CFR part 63, subpart M (perc dry cleaning 
NESHAP), and had in fact expanded the universe of sources subject to 
the perc dry cleaning NESHAP as a matter of State law. See OAR 340-244-
0220(3) (Federal Regulations Adopted by Reference). This makes the 
regulation of perc dry cleaners in Oregon more stringent than Federal 
law requires.

II. This Action

    EPA is approving revisions to OAR chapter 340, Division 232, which 
removes requirements for perc dry cleaning systems, as well as related 
definitions and provisions, from the Oregon SIP. As discussed above, as 
a result of EPA's change to the definition of VOC, there is no Federal 
requirement to regulate perc as part of a State's ozone control 
strategy. ODEQ's rule for perc in OAR 340-232-0240 was based on EPA's 
control technology guideline for perc dry cleaners and is therefore no 
longer required. ODEQ has demonstrated that it has not taken any 
reduction credits for measures controlling perc as part of any of its 
ozone attainment or maintenance plans. ODEQ therefore does not need to 
submit any replacement reduction measures in connection with the 
removal of the perc dry cleaning rules from its SIP.
    As discussed above, although emissions from perc dry cleaners will 
no longer be regulated in Oregon for ozone control, such emissions will 
continue to be regulated in Oregon as hazardous air pollutants under 
the Federal perc dry cleaning NESHAP, which ODEQ has adopted as a 
matter of State law for an expanded universe of sources. See OAR 340-
244-0220(3). Maintaining the SIP rules for perc is not needed for ozone 
control and would be largely duplicative of these NESHAP requirements. 
For these reasons, EPA is approving the repeal of the perc dry cleaning 
rule and the related definitions and provisions in OAR chapter 340, 
Division 232 from the Oregon SIP.

III. Oregon Notice Provision

    ORS 468.126, which remains unchanged since EPA last approved 
Oregon's SIP, prohibits ODEQ from imposing a penalty for violation of 
an air, water or solid waste permit unless the source has been provided 
five days' advanced written notice of the violation and has not come 
into compliance or submitted a compliance schedule within that five-day 
period. By its terms, the statute does not apply to Oregon's Title V 
program or to any program if application of the notice provision would 
disqualify the program from Federal delegation. Oregon has previously 
confirmed that, because application of the notice provision would 
preclude EPA approval of the Oregon SIP, no advance notice is required 
for violation of SIP requirements.

IV. Scope of EPA Approval

    Oregon has not demonstrated authority to implement and enforce the 
Oregon Administrative Rules within ``Indian Country'' as defined in 18 
U.S.C. 1151. ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way

[[Page 69825]]

running through the reservation, (2) all dependent Indian communities 
within the borders of the United States, whether within the original or 
subsequently acquired territory thereof, and whether within or without 
the limits of a State, and (3) all Indian allotments, the Indian titles 
to which have not been extinguished, including rights-of-way running 
through the same. Under this definition, EPA treats as reservations 
trust lands validly set aside for the use of a Tribe even if the trust 
lands have not been formally designated as a reservation. Therefore, 
this SIP approval does not extend to ``Indian Country'' in Oregon. See 
CAA sections 110(a)(2)(A) (SIP shall include enforceable emission 
limits), 110(a)(2)(E)(i) (State must have adequate authority under 
State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall 
include enforceable emission limits).

V. Direct Final Action

    EPA is publishing this action without a prior proposal because EPA 
views this as a noncontroversial amendment and anticipates no adverse 
comments. In the proposed rules section of this Federal Register 
publication, however, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision should relevant 
adverse comments be filed. This direct final rule is effective on 
January 31, 2005 without further notice, unless EPA receives adverse 
comment by January 3, 2005. If adverse comment is received, EPA will 
publish a timely withdrawal of the direct final rule in the Federal 
Register and inform the public that the rule did not take effect. All 
public comments received will then be addressed in a subsequent final 
rule based on the proposed rule. EPA will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule, EPA may 
adopt as final those provisions of the rule that are not the subject of 
an adverse comment.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 6, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 31, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: October 29, 2004.
Richard Albright,
Acting Regional Administrator, Region 10.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart MM--Oregon

0
2. Section 52.1970 is amended in paragraph (c)(139) by removing the 
number ``232-0240'' and by adding paragraph (c)(143) to read as 
follows:


Sec.  52.1970  Identification of plan.

* * * * *
    (c) * * *

[[Page 69826]]

    (143) On December 2, 2002, the Oregon Department of Environmental 
Quality submitted a SIP revision to repeal the Perchloroethylene Dry 
Cleaning rule and revise related parts of the Introduction and 
Definitions sections of Division 232.
    (i) Incorporation by reference.
    (A) The following sections of the Oregon Administrative Rules 340: 
232-0010 and 232-0030, as effective October 14, 1999.

[FR Doc. 04-26476 Filed 11-30-04; 8:45 am]
BILLING CODE 6560-50-P