[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Rules and Regulations]
[Pages 61037-61043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27820]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R01-OAR-2009-0031; A-1-FRL-8974-5]


Approval of the Clean Air Act, Section 112(l), Authority for 
Hazardous Air Pollutants: Perchloroethylene Air Emission Standards for 
Dry Cleaning Facilities: Commonwealth of Massachusetts Department of 
Environmental Protection

AGENCY: Environmental Protection Agency (``EPA'').

ACTION: Direct final rule.

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SUMMARY: Pursuant to section 112(l) of the Clean Air Act (``CAA'') and 
federal regulations promulgated thereunder, the Massachusetts 
Department of Environmental Protection (``MassDEP'') submitted a 
request for approval to implement and enforce the amended 310 CMR 70.00 
Environmental Results Program (``ERP'') Certification and the amended 
310 CMR 7.26(10)-(16) Perchloroethylene (``Perc'' or ``PCE'') Air 
Emissions Standards for Dry Cleaning Facilities (together referred to 
as the ``amended Dry Cleaner ERP'') as a partial substitution for the 
amended National Emissions Standards for Hazardous Air Pollutants for 
Perchloroethylene Dry Cleaning Facilities (``Dry Cleaning NESHAP''), as 
it applies to area sources. EPA has reviewed this request and has 
determined that the amended Dry Cleaner ERP satisfies the requirements 
necessary for partial substitution approval. Thus, EPA is hereby 
granting MassDEP the authority to implement and enforce its amended Dry 
Cleaner ERP in place of the Dry Cleaning NESHAP for area sources, but 
EPA is retaining its authority with respect to major source dry 
cleaners and dry cleaners installed in a residence between December 21, 
2005 and July 13, 2006. This approval makes the amended Dry Cleaner ERP 
federally enforceable.

DATES: This direct final rule will be effective January 22, 2010, 
unless EPA receives adverse comments by December 23, 2009. 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. The incorporation by reference of certain 
publications listed in the rule is approved by the Director of the 
Federal Register as of January 22, 2010.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-

[[Page 61038]]

R01-OAR-2009-0031 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (617) 918-0653.
    4. Mail: ``EPA-R01-OAR-2009-0031'', Ida McDonnell, U.S. 
Environmental Protection Agency, EPA New England Regional Office, One 
Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023.
    5. Hand Delivery or Courier. Deliver your comments to: Ida 
McDonnell, Acting Manager, Air Permits, Toxics and Indoor Programs 
Unit, Office of Ecosystem Protection, U.S. Environmental Protection 
Agency, EPA New England Regional Office, One Congress Street, 11th 
floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2009-0031. 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.regulations.gov, 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 through http://www.regulations.gov, or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, 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 http://www.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 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. EPA will forward copies of all submitted 
comments to the Massachusetts Department of Environmental Protection.
    Docket: All documents in the electronic docket are listed in the 
http:[sol][sol]www.regulations.gov index. Although listed in the index, 
some information is not publicly available, i.e., 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 
http://www.regulations.gov or in hard copy at the Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA 
requests that if at all possible, you contact the contact listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding legal holidays.
    In addition, copies of the State submittal are also available for 
public inspection during normal business hours, by appointment at the 
Massachusetts Department of Environmental Protection, One Winter 
Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and 
Indoor Programs Unit, Office of Ecosystem Protection, U.S. 
Environmental Protection Agency, EPA New England Regional Office, One 
Congress Street, Suite 1100 (CAP), Boston, MA 02114-2023, telephone 
number (617) 918-1656, fax number (617) 918-0656, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
II. What Requirements Must a State Rule Meet To Substitute for a 
Section 112 Rule?
III. How Will EPA Determine Equivalency for State Alternative NESHAP 
Requirements?
IV. What Significant Changes Did EPA Make to the Dry Cleaning NESHAP 
and How Did MassDEP Address Those Changes?
    A. What Definitions Were Added to the NESHAP and the Amended Dry 
Cleaner ERP?
    B. What Control Requirements Were Added for New Dry Cleaners 
Installed After December 21, 2005?
    C. What Requirements Were Added for Dry Cleaners Installed in a 
Building With a Residence After December 21, 2005?
    D. What Requirements Were Added for Transfer Machines?
    E. What Monitoring Requirements Were Added?
    F. How Did the Reporting Requirements Change?
V. What Is EPA's Action Regarding MassDEP's Dry Cleaner ERP?
VI. Final Action
VII. Judicial Review
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in
    Minority Populations and Low-Income Populations
    K. Congressional Review Act

I. Background and Purpose

    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 Federal rules, emissions 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 (November 26, 1993), as amended by 65 FR 55810 
(September 14, 2000). Under these regulations, a state air pollution 
control agency has the option to request EPA's approval to substitute a 
state rule for the applicable Federal rule (e.g., the National 
Emissions Standards for Hazardous Air Pollutants). Upon approval by 
EPA, the state agency is authorized to implement and enforce its rule 
in place of the Federal rule.
    EPA promulgated the Dry Cleaning NESHAP on September 22, 1993. See 
58 FR 49354 (codified at 40 CFR part 63, subpart M, ``National 
Perchloroethylene Air Emission Standards for Dry Cleaning 
Facilities''). On October 24, 2001, EPA received a request from MassDEP 
to implement and enforce its Perchloroethylene Air Emissions Standards 
for Dry Cleaning Facilities, 310 CMR 7.26(10)-(16), and Environmental 
Results Program (ERP)

[[Page 61039]]

Certification, 310 CMR 70.01-04 (together referred to as the ``Dry 
Cleaner ERP'') in lieu of the Dry Cleaning NESHAP rule for area 
sources. On September 16, 2002, EPA approved Massachusetts' Dry Cleaner 
ERP in place of the Dry Cleaning NESHAP for area sources pursuant to 
the provisions of 40 CFR part 63, subpart E. See 67 FR 58339.
    Under 40 CFR 63.91(e)(3), if EPA amends or otherwise revises a 
promulgated CAA section 112 rule or requirement in a way that increases 
its stringency, EPA will notify any state with a delegated alternative 
of the need to revise its equivalency demonstration. EPA will consult 
with the state to set a time frame for the state to submit a revised 
equivalency demonstration. EPA will then review and approve the revised 
equivalency demonstration according to the procedures in 40 CFR part 
63, subpart E. More stringent NESHAP amendments to a delegated 
alternative apply to all sources until EPA determines that the approved 
or revised alternative requirements are equivalent to the more 
stringent amendments.
    On July 27, 2006, September 21, 2006 and July 11, 2008, EPA 
promulgated amendments to the Dry Cleaning NESHAP. See 71 FR 42724, 71 
FR 55280 and 73 FR 39871. In a letter dated October 25, 2006, EPA 
notified MassDEP that EPA had published more stringent amendments to 
the Dry Cleaning NESHAP and of the need for MassDEP to revise its 
equivalency demonstration. Accordingly, MassDEP revised 310 CMR 
7.26(10)-(16) with an effective date of September 5, 2008. In addition, 
MassDEP revised 310 CMR 70.00 with an effective date of December 28, 
2007. On November 17, 2008, MassDEP submitted a request for approval to 
implement and enforce the amended Dry Cleaner ERP in place of the 
amended Dry Cleaning NESHAP. On January 13, 2009, EPA determined that 
Massachusetts' submittal was complete. As explained below, EPA has 
reviewed the State's submission and determined that the amended Dry 
Cleaner ERP is no less stringent than the amended Dry Cleaning NESHAP, 
as applied to area sources.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

II. What Requirements Must a State Rule Meet To Substitute for a 
Section 112 Rule?

    A state must demonstrate that it has satisfied the general 
delegation/approval criteria contained in 40 CFR 63.91(d). The process 
of providing ``up-front approval'' assures that a state has met the 
delegation criteria in Section 112(l)(5) of the CAA (as codified in 40 
CFR 63.91(d)), that is, that the state has demonstrated that its NESHAP 
program contains adequate authorities to assure compliance with each 
applicable Federal requirement, adequate resources for implementation, 
and an expeditious compliance schedule. Under 40 CFR 63.91(d)(3), 
interim or final Title V program approval satisfies the criteria set 
forth in 40 CFR 63.91(d) for ``up-front approval.'' On September 28, 
2001, EPA promulgated full approval of MassDEP's operating permits 
program with an effective date of November 27, 2001. See 66 FR 49541. 
Accordingly, MassDEP has satisfied the up-front approval criteria of 40 
CFR 63.91(d).
    Additionally, the ``rule substitution'' option requires EPA to 
``make a detailed and thorough evaluation of the state's submittal to 
ensure that it meets the stringency and other requirements'' of 40 CFR 
63.93. See 58 FR at 62274. A rule will be approved if EPA finds: (1) 
The state and local rules are ``no less stringent'' than the 
corresponding Federal regulations, (2) the state and local government 
has adequate authorities to implement and enforce the rules, and (3) 
the schedule for implementation and compliance is ``no less stringent'' 
than the deadlines established in the otherwise applicable Federal 
rule. 40 CFR 63.93(b). After reviewing MassDEP's amended partial rule 
substitution request and equivalency demonstration for the Dry Cleaning 
NESHAP as it applies to area sources, EPA has determined this request 
meets all the requirements necessary for approval under CAA section 
112(l) and 40 CFR 63.91 and 63.93.

III. How Will EPA Determine Equivalency for State Alternative NESHAP 
Requirements?

    Before we can approve alternative requirements in place of a part 
63 emissions standard, the state must submit to us detailed information 
that demonstrates how the alternative requirements compare with the 
otherwise applicable Federal standard. Under 40 CFR part 63 subpart E, 
the level of control in the state rule must be at least as stringent as 
the level of control in the Federal rule. In addition, in order for 
equivalency to be granted, the level of control and compliance and 
enforcement measures (``MRR'') of the state rule, taken together as a 
whole, must be equivalent to the level of control and MRR of the 
Federal rule, taken together as a whole. A detailed discussion of how 
EPA will determine equivalency for state alternative NESHAP 
requirements is provided in the preamble to EPA's proposed Subpart E 
amendments on January 12, 1999. See 64 FR 1908.

IV. What Significant Changes Did EPA Make to the Dry Cleaning NESHAP 
and How Did MassDEP Address Those Changes?

    The following discussion explains the changes that EPA made to the 
Dry Cleaning NESHAP and how MassDEP addressed these changes in the 
amended Dry Cleaner ERP, as well as any additional changes MassDEP made 
to the Dry Cleaner ERP. The September 16, 2002, Federal Register Notice 
initially approving the Dry Cleaner ERP as a substitute for the Dry 
Cleaning NESHAP contains a more detailed discussion of the differences 
between the Dry Cleaning NESHAP and the Dry Cleaner ERP. See 67 FR 
58339.

A. What Definitions Were Added to the NESHAP and the Amended Dry 
Cleaner ERP?

    The Dry Cleaning NESHAP added definitions for halogenated 
hydrocarbon detector, perchloroethylene gas analyzer, residence, vapor 
leak, and vapor barrier. The amended Dry Cleaner ERP adopted each of 
these definitions with the exception of vapor barrier. MassDEP has not 
adopted the definition of vapor barrier into its amended Dry Cleaner 
ERP because the requirement is not necessary. Specifically, MassDEP's 
amended Dry Cleaner ERP specifies that dry cleaning machines installed 
in a building with a residence between December 21, 2005 and July 13, 
2006 (i.e., those facilities which must utilize a vapor barrier under 
the Dry Cleaning NESHAP) are not within the scope of the State's rule 
and thus remain subject to the Dry Cleaning NESHAP.

B. What Control Requirements Were Added for New Dry Cleaners Installed 
After December 21, 2005?

    The Dry Cleaning NESHAP requires new area source dry cleaners which 
commence construction after December 21, 2005, to be equipped with a 
refrigerated condenser and a non-vented carbon adsorber. The carbon 
adsorber must be desorbed in accordance with the manufacturer's 
instruction. See 40 CFR 63.322(o)(2). The amended Dry

[[Page 61040]]

Cleaner ERP added these control requirements for new dry cleaners 
installed after December 21, 2005, and added the requirement for the 
carbon adsorber to be desorbed in accordance with the manufacturer's 
instructions. See 310 CMR 7.26(12)(a)(3) and 7.26(14)(c). The amended 
Dry Cleaner ERP is accordingly no less stringent than the corresponding 
federal rule.

C. What Requirements Were Added for Dry Cleaners Installed in a 
Building with Residence After December 21, 2005?

    The Dry Cleaning NESHAP requires a vapor barrier and other control 
requirements for dry cleaners installed in a building with a residence 
between December 21, 2005 and July 13, 2006. The Dry Cleaning NESHAP 
requires that such dry cleaners eliminate perc emissions by July 27, 
2009. See 40 CFR 63.322(o)(5)(i)-(ii) and 63.320(b)(2)(ii). MassDEP's 
amended Dry Cleaner ERP specifies that such dry cleaners are not within 
the scope of the State's rule and thus remain subject to the Dry 
Cleaning NESHAP. See 310 CMR 7.26(10)(d). Therefore, EPA is retaining 
these requirements.
    The Dry Cleaning NESHAP does not allow any dry cleaning systems to 
be installed in a building with a residence as of July 13, 2006. See 40 
CFR 63.322(o)(4) and 63.320(b)(3). The Dry Cleaner ERP prohibits the 
installation of a dry cleaner co-located with a residence as of 
September 5, 2008, and requires all dry cleaners co-located with a 
residence installed after July 13, 2006, to cease operation on 
September 5, 2008. See 310 CMR 7.26(12)(a)(5) and (7). The Dry Cleaner 
ERP could not prohibit installation of a dry cleaner co-located with a 
residence prior to the final date of the amendments on September 5, 
2008. Therefore, the Dry Cleaner ERP required all dry cleaners co-
located with a residence as of July 13, 2006 to cease operation on 
September 5, 2008. Such dry cleaners were already effectively 
prohibited from installing in a building with a residence as of July 
13, 2006 under the Dry Cleaning NESHAP. In addition, the amended Dry 
Cleaner ERP prohibits the installation of a co-located dry cleaner as 
of November 5, 2008. See 310 CMR 7.26(12)(a)(4). A co-located dry 
cleaner includes dry cleaning facilities located in a building with a 
residence, licensed day care center, a health care facility, a prison, 
an elementary school, a middle or high school or a pre-school, a senior 
center or a youth center. Therefore, MassDEP's Dry Cleaner ERP is more 
stringent than the Dry Cleaning NESHAP because it prohibits all co-
located dry cleaners as of November 5, 2008, in addition to prohibiting 
co-located dry cleaners in a building with a residence as of July 13, 
2006.
    The Dry Cleaning NESHAP requires all dry cleaners located in a 
building with a residence to eliminate perc emissions by December 21, 
2020. See 40 CFR 63.322(o)(5)(ii). The Dry Cleaner ERP requires all co-
located dry cleaners to cease operation on or before December 21, 2020. 
See 310 CMR 7.26(12)(a)(6). MassDEP's Dry Cleaner ERP is more stringent 
than the Dry Cleaning NESHAP because this provision applies to all co-
located facilities in addition to dry cleaners installed in a building 
with a residence.

D. What Requirements Were Added for Transfer Machines?

    The Dry Cleaning NESHAP effectively prohibits all transfer machines 
as of July 28, 2008, by requiring the owner or operator to eliminate 
emissions of perc during the transfer of articles between the washer 
and the dryer(s) or reclaimer(s). See 40 CFR 63.320(b)(1)) and 
63.322(o)(4). The amended Dry Cleaner ERP adds this requirement by 
requiring the owner or operator to cease operation of their transfer 
machine on or before September 5, 2008. Facilities in Massachusetts 
were effectively prohibited from operating transfer machines under the 
Dry Cleaning NESHAP as of July 28, 2008 and, as of September 5, 2008, 
were prohibited under the Dry Cleaner ERP. Therefore, upon the 
effective date of EPA's approval of the Dry Cleaner ERP, facilities in 
Massachusetts will continue to be prohibited from operating transfer 
machines. See 310 CMR 7.26(12)(b)(4).

E. What Monitoring Requirements Were Added?

    The Dry Cleaning NESHAP added a requirement for area source dry 
cleaners to conduct leak checks monthly using a halogenated hydrocarbon 
detector or a PCE gas analyzer that is operated according to the 
manufacturer's recommendation. See 40 CFR 63.322(o)(1). A halogenated 
solvent hydrocarbon detector means a portable device capable of 
detecting vapor concentrations of PCE of 25 parts per million (``ppm'') 
by volume and indicating a concentration of 25 ppm by volume or greater 
by emitting an audible or visual signal that varies as the 
concentration changes. A PCE gas analyzer means a flame ionization 
detector, photoionization detector, or infrared analyzer capable of 
detecting vapor concentrations of PCE of 25 ppm by volume. The amended 
Dry Cleaner ERP requires vapor leak checks weekly with a halogenated 
hydrocarbon detector, a PCE gas analyzer, or an alternate method that 
is capable of detecting vapor concentrations of PCE of 25 ppm by volume 
and approved by MassDEP. See 310 CMR 7.26(13)(i). Since the Dry Cleaner 
ERP specifies that any alternative method approved by MassDEP must be 
capable of detecting vapor concentrations of PCE of 25 ppm by volume, 
EPA does not view this as affecting the stringency of the Dry Cleaner 
ERP. Furthermore, the amended Dry Cleaner ERP is more stringent than 
the Dry Cleaning NESHAP because it requires leak checks with a detector 
or analyzer to be conducted weekly.
    The Dry Cleaning NESHAP added a requirement that allows facilities 
using a refrigerated condenser to monitor the refrigeration system high 
pressure and low pressure as an alternative to monitoring for the 
temperature of the perc vapor gas vapor-stream. See 40 CFR 
63.323(a)(1). Massachusetts added this requirement and is therefore 
equivalent to the Dry Cleaning NESHAP. See 310 CMR 7.26(14)(a).

F. How Did the Reporting Requirements Change?

    The Dry Cleaning NESHAP added a requirement for facilities to 
submit a notification of compliance status by July 28, 2008. See 40 CFR 
63.324(f). The Dry Cleaner ERP required a similar compliance status 
report, including the information required by the NESHAP, to be 
submitted by September 15, 2008. See 310 CMR 7.26(15)(b). In addition, 
the Dry Cleaner ERP requires facilities to submit an annual compliance 
certification. The Dry Cleaning NESHAP does not require an annual 
compliance certification. Massachusetts amended its ERP regulation to 
allow less frequent reporting than annually if Massachusetts specifies 
less frequent reporting based on specific criteria in its ERP 
regulation. See 310 CMR 70.03(f) and (h). Specifically, MassDEP 
identifies the following criteria to allow less frequent reporting: (1) 
The size, composition and activities of the ERP sector; (2) the 
quantity and types of (toxic) materials used and potential wastes, 
emissions and discharges of the ERP sector; (3) the degree of 
compliance with established regulatory requirements by the ERP sector; 
(4) the degree of control over the environmental and public health 
aspects of activities by the ERP sector; and (5) any other relevant 
information regarding the environmental consequences of the periodic 
compliance certifications and return to compliance response rates and 
results within the ERP sector. Though the Dry

[[Page 61041]]

Cleaning NESHAP does not have an annual reporting requirement, EPA 
considered the annual compliance certification requirement in approving 
the Dry Cleaner ERP in 2002. Nonetheless, the amended Dry Cleaner ERP 
is more stringent than the Dry Cleaning NESHAP in a number of areas. As 
discussed above, the amended Dry Cleaner ERP prohibits co-located dry 
cleaners as of November 5, 2008 and requires weekly monitoring with a 
detector. In addition, as discussed in EPA's September 16, 2002 
approval, the Dry Cleaning NESHAP applies partial exemptions from 
control requirements based on perc consumption, while the amended Dry 
Cleaner ERP, however, does not allow for partial exemptions and applies 
control requirements for all perc dry cleaners. Additionally, the ERP 
is a multimedia compliance program which requires self certification 
with air, water and hazardous waste requirements while providing 
extensive compliance assistance to dry cleaners through training 
programs and workbooks and includes inspections and enforcement. EPA 
evaluated the air portion of the ERP for dry cleaning facilities in 
approving the Dry Cleaner ERP in 2002. Although the amended Dry Cleaner 
ERP compliance report was allowed to be submitted later than the Dry 
Cleaning NESHAP notification of compliance status report and although 
MassDEP may now allow less frequent compliance certifications than 
annually, EPA has determined that given the more stringent requirements 
of the amended Dry Cleaner ERP, the requirements of the amended Dry 
Cleaner ERP are, taken as a whole, more stringent than the requirements 
of the Dry Cleaning NESHAP.

V. What Is EPA's Action Regarding MassDEP's Amended Dry Cleaner ERP?

    After reviewing MassDEP's request for approval of the amended Dry 
Cleaner ERP, EPA has determined that Massachusetts' regulations meet 
all of the requirements necessary for partial rule substitution under 
section 112(l) of the CAA and 40 CFR 63.91 and 63.93. The amended Dry 
Cleaner ERP, taken as a whole, is no less stringent than the Dry 
Cleaning NESHAP, as applied to area sources. Therefore, EPA hereby 
approves Massachusetts' request to implement and enforce 310 CMR 70.00 
Environmental Results Program, as amended, and 310 CMR 7.26(10)-(16) 
Perchloroethylene Air Emissions Standards for Dry Cleaning Facilities, 
as amended, in place of the Dry Cleaning NESHAP for area sources in 
Massachusetts. The EPA retains the requirements for major source dry 
cleaners and dry cleaners installed in a residence between December 21, 
2005 and July 13, 2006. As of the effective date of this action, the 
amended Dry Cleaner ERP is enforceable by EPA and by citizens under the 
CAA. Although MassDEP has primary responsibility to implement and 
enforce the amended Dry Cleaner ERP, EPA retains the authority to 
enforce any requirement of the rule upon its approval under CAA 112. 
See CAA section 112(l)(7).

VI. Final Action

    The EPA is approving the Massachusetts Environmental Results 
Program, 310 CMR 70.00, as amended, and the Perchloroethylene Air 
Emissions Standards for Dry Cleaning Facilities, 310 CMR 7.26(10)-(16), 
as amended, as a partial rule substitution for the Dry Cleaning NESHAP 
for area sources in Massachusetts. The EPA retains the requirements for 
major source dry cleaners and dry cleaners installed in a residence 
between December 21, 2005, and July 13, 2006.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the rule revision should 
relevant adverse comments be filed. This rule will be effective January 
22, 2010 without further notice unless the Agency receives relevant 
adverse comments by December 23, 2009.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the direct final rule and informing the public that the 
direct final rule will not take effect. All public comments received 
will then be addressed in a subsequent final rule based on the proposed 
rule. The EPA will not institute a second comment period on the 
proposed rule. All parties interested in commenting on the proposed 
rule should do so at this time. If no such comments are received, the 
public is advised that this rule will be effective on January 22, 2010 
and no further action will be taken on the proposed rule. Please note 
that if EPA receives adverse comment on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, EPA may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

VII. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 
of this final rule is available only by filing a petition for review in 
the United States Court of Appeals for the appropriate circuit by 
January 22, 2010. Under CAA section 307(b)(2), the requirements 
established by this final rule may not be challenged separately in any 
civil or criminal proceedings brought by EPA to enforce these 
requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for us to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to the EPA that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration to us should submit a Petition for Reconsideration to 
the Regional Administrator, U.S. Environmental Protection Agency, EPA 
New England Regional Office, One Congress Street, 11th floor, (RAA), 
Boston, MA 02114-2023, with a copy to the person(s) listed in the 
preceding FOR FURTHER INFORMATION CONTACT section, and the Regional 
Counsel, U.S. Environmental Protection Agency, EPA New England Regional 
Office, One Congress Street, 11th floor, (RAA), Boston, MA 02114-2023. 
Filing a petition for reconsideration by the Administrator of this 
final rule under CAA section 307(d)(7)(B) does not affect the finality 
of this rule for the purposes of judicial review, does not extend the 
time within which a petition for judicial review may be filed, and does 
not postpone the effectiveness of the rule.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action approves equivalent state requirements in place of 
Federal requirements under CAA section 112(l). This type of action is 
exempt from review under EO 12866.

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. 
Burden is defined at 5 CFR 1320.3(b). This action

[[Page 61042]]

allows the Commonwealth of Massachusetts to implement equivalent state 
requirements in lieu of pre-existing Federal requirements as applied 
only to area source dry cleaners. Thus, this action does not require 
any person to submit information.

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. For purposes 
of assessing the impacts of today's rule on small entities, small 
entity is defined as: (1) A small business that meets the Small 
Business Administration size standards found at 13 CFR 121.201 (coin 
operated laundries and drycleaners as defined by NAICS code 812310 with 
annual receipts of less than $7.0 million or drycleaning and laundry 
services (except coin operated) as defined by NAICS code 812320 with 
annual receipts of less than $4.5 million); (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. 
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 have a significant impact on a substantial number of 
small entities because approvals under CAA section 112(l) and 40 CFR 
63.93 do not create any new requirements. Such approvals simply allow a 
state to implement and enforce equivalent requirements in place of the 
Federal requirements that EPA is already imposing.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA. This 
action is also not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments. This action allows the 
Commonwealth of Massachusetts to implement equivalent state 
requirements in lieu of pre-existing Federal requirements as applied 
only to area source dry cleaners. Thus, this action does not 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action 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. This action simply allows 
Massachusetts to implement equivalent alternative requirements to 
replace a Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
allows the Commonwealth of Massachusetts to implement equivalent state 
requirements in lieu of pre-existing Federal requirements as applied 
only to area source dry cleaners. This action will not have substantial 
direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does 
not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it approves a 
state program such that it allows the Commonwealth of Massachusetts to 
implement equivalent state requirements in lieu of pre-existing Federal 
requirements as applied only to area source dry cleaners.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action allows the Commonwealth of Massachusetts to 
implement equivalent state

[[Page 61043]]

requirements in lieu of pre-existing Federal requirements as applied 
only to area source dry cleaners. As explained above, the state 
requirements contain standards that are at least equivalent to the 
Federal standards; thus, we anticipate only a positive impact from this 
action.

K. 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 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). This rule will be effective January 22, 2010.

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. 7412.

    Dated: October 15, 2009.
Ira W. Leighton,
Acting Regional Administrator, EPA-New England.


0
40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart A--[Amended]

0
2. Section 63.14 is amended by revising paragraph (d) introductory text 
and paragraph (d)(4) to read as follows:


Sec.  63.14  Incorporation by reference.

* * * * *
    (d) State and Local Requirements. The following materials listed 
below are available at the Air and Radiation Docket and Information 
Center, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone 
number (202) 566-1745.
* * * * *
    (4) Massachusetts Department of Environmental Protection 
regulations at 310 CMR 7.26(10)-(16), Air Pollution Control, effective 
as of September 5, 2008, corrected March 6, 2009, and 310 CMR 70.00, 
Environmental Results Program Certification, effective as of December 
28, 2007. Incorporation By Reference approved for Sec.  
63.99(a)(22)(ii) of subpart E of this part.
* * * * *

Subpart E--[Amended]

    3. Section 63.99 is amended by revising paragraph (a)(22) to read 
as follows:


Sec.  63.99  Delegated Federal authorities.

    (a) * * *
    (22) Massachusetts.
    (i) [Reserved]
    (ii) Affected area sources within Massachusetts must comply with 
the Massachusetts Regulations Applicable to Hazardous Air Pollutants 
(incorporated by reference as specified in Sec.  63.14) as described in 
paragraph (a)(22)(ii)(A) of this section:
    (A) The material incorporated into the Massachusetts Department of 
Environmental Protection regulations at 310 CMR 7.26(10)-(16), Air 
Pollution Control, effective as of September 5, 2008, corrected March 
6, 2009, and 310 CMR 70.00, Environmental Results Program 
Certification, effective as of December 28, 2007, pertaining to dry 
cleaning facilities in the Commonwealth of Massachusetts jurisdiction, 
and approved under the procedures in Sec.  63.93 to be implemented and 
enforced in place of the Federal NESHAP for Perchloroethylene Dry 
Cleaning Facilities (subpart M of this part), effective as of July 11, 
2008, for area sources only, as defined in Sec.  63.320(h).
    (1) Authorities not delegated.
    (i) Massachusetts is not delegated the Administrator's authority to 
implement and enforce Massachusetts regulations at 310 CMR 7.26(10)-
(16) and 310 CMR 70.00, in lieu of those provisions of subpart M of 
this part which apply to major sources, as defined in Sec.  63.320(g).
    (ii) Massachusetts is not delegated the Administrator's authority 
to implement and enforce Massachusetts regulations at 310 CMR 7.26(10)-
(16) and 310 CMR 70.00, in lieu of those provisions of subpart M of 
this part which apply to dry cleaning systems installed in a building 
with a residence between December 21, 2005 and July 13, 2006, as 
defined in Sec.  63.320(b)(2)(ii) and Sec.  63.322(o)(5)(i)-(ii).
    (B) [Reserved]
* * * * *

[FR Doc. E9-27820 Filed 11-20-09; 8:45 am]
BILLING CODE 6560-50-P