[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65022-65025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32329]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-5932-1]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning 
Facilities; State of California; San Luis Obispo County Air Pollution 
Control District

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 
through the California Air Resources Board, San Luis Obispo County Air 
Pollution Control District (SLOCAPCD) requested approval to implement 
and enforce its ``Rule 432: Perchloroethylene Dry Cleaning Operations'' 
(Rule 432) in place of the ``National Perchloroethylene Air Emission 
Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP) for area 
sources under SLOCAPCD'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 SLOCAPCD the authority to implement and enforce Rule 
432 in place of the dry cleaning NESHAP for area sources under 
SLOCAPCD's jurisdiction.

DATES: This action is effective on February 9, 1998 unless adverse or 
critical comments are received by January 9, 1998. If the effective 
date is

[[Page 65023]]

delayed, timely notice will be published in the Federal Register. The 
incorporation by reference of certain publications listed in the 
regulations is approved by the Director of the Federal Register as of 
February 9, 1998.

ADDRESSES: Comments must be submitted to Andrew Steckel at the EPA 
Region IX office listed below. Copies of SLOCAPCD'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 California dry cleaning facilities using perchloroethylene were 
subject to the dry cleaning NESHAP. Since June 20, 1996, all California 
dry cleaning facilities using perchloroethylene that 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 April 25, 1997, EPA received, through CARB, San Luis Obispo 
County Air Pollution Control District's (SLOCAPCD) request for approval 
to implement and enforce its November 13, 1996, revision of ``Rule 432: 
Perchloroethylene Dry Cleaning Operations'' (Rule 432), in place of the 
Federally-approved dry cleaning ATCM for area sources under SLOCAPCD's 
jurisdiction. The scope of SLOCAPCD's request is limited to the 
authorities previously granted to CARB in its request, i.e., the 
request does not include major sources and does not include the 
authority to determine equivalent emission control technology for dry 
cleaning facilities in place of 40 CFR 63.325.

II. EPA Action

A. SLOCAPCD'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 SLOCAPCD's Rule 432, 
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, 
SLOCAPCD is granted the authority to implement and enforce Rule 432 in 
place of the Federally-approved dry cleaning ATCM. Although SLOCAPCD 
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. As 
of the effective date of this action, SLOCAPCD's Rule 432 is the 
Federally-enforceable standard for area sources under SLOCAPCD's 
jurisdiction. This rule will be enforceable by the EPA Administrator 
and citizens under the CAA.
1. Major Dry Cleaning Sources
    Under the dry cleaning NESHAP, dry cleaning facilities are divided 
between major sources and area sources. SLOCAPCD'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, SLOCAPCD did not seek 
approval for the provisions in Rule 432 that would allow for the use of 
alternative emission control technology without previous approval from 
EPA (i.e., Rule 432 sections B.17, G.3.a.5, G.3.b.2.iii, and I). 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 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

[[Page 65024]]

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
    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 SLOCAPCD'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 law. EPA has no authority to 
approve provisions of state or local law, such as the variance 
provisions referred to, that are inconsistent with the CAA. 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. section 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. sections 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

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major'' 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 February 9, 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: November 23, 1997.
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 Toxics 
Program, August 1, 1997, 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 paragraphs (a)(5)(ii) 
introductory text, (a)(5)(ii)(A) introductory text, and by adding 
paragraph (a)(5)(ii)(B), to read as follows:


Sec. 63.99  Delegated federal authorities.

    (a) * * *
    (5) * * *

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    (ii) Affected sources must comply with the California Regulatory 
Requirements Applicable to the Air Toxics Program, August 1, 1997 
(incorporated by reference as specified in Sec. 63.14) as described 
below.
    (A) The material incorporated in Chapter 1 of the California 
Regulatory Requirements Applicable to the Air Toxics Program California 
Code of Regulations Title 17, section 93109) pertains to the 
perchloroethylene dry cleaning source category in the State of 
California, 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).
* * * * *
    (B) The material incorporated in Chapter 2 of the California 
Regulatory Requirements Applicable to the Air Toxics Program (San Luis 
Obispo County Air Pollution Control District Rule 432) pertains to the 
perchloroethylene dry cleaning source category in the San Luis Obispo 
County Air Pollution Control 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) San Luis Obispo County Air Pollution Control District is not 
delegated the Administrator's authority to implement and enforce 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) San Luis Obispo County Air Pollution Control 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 B.17, G.3.a.5, G.3.b.2.iii, and I of Rule 432, must also 
receive approval from the Administrator before using such alternative 
means of emission limitation for the purpose of complying with section 
112.
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[FR Doc. 97-32329 Filed 12-9-97; 8:45 am]
BILLING CODE 6560-50-P