[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Rules and Regulations]
[Pages 26463-26466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12430]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6001-3]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning 
Facilities; State of California; South Coast Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to section 112(l) of the Clean Air Act (CAA) and 
through the California Air Resources Board, the South Coast Air Quality 
Management District (SCAQMD) requested approval to implement and 
enforce its ``Rule 1421: Control of Perchloroethylene Emissions from 
Dry Cleaning Systems'' (Rule 1421) in place of the ``National 
Perchloroethylene Air Emission Standards for Dry Cleaning Facilities'' 
(dry cleaning NESHAP) for area sources under SCAQMD's jurisdiction. The 
Environmental Protection Agency (EPA) has reviewed this request and has 
found that it satisfies all of the requirements necessary to qualify 
for approval. Thus, EPA is hereby granting SCAQMD the authority to 
implement and enforce Rule 1421 in place of the dry cleaning NESHAP for 
area sources under SCAQMD's jurisdiction.

DATES: This rule is effective on July 13, 1998 without further notice, 
unless EPA receives relevant adverse comments by June 12, 1998. If EPA 
receives such

[[Page 26464]]

comment, then it will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.
    The incorporation by reference of certain publications listed in 
the regulations is approved by the Director of the Federal Register as 
of July 13, 1998.

ADDRESSES: Comments must be submitted to Andrew Steckel at the EPA 
Region IX office listed below. Copies of SCAQMD's request for approval 
are available for public inspection at the following locations:

U.S. Environmental Protection Agency, Region IX, Rulemaking Office 
(AIR-4), Air Division, 75 Hawthorne Street, San Francisco, California 
94105-3901. Docket # A-96-25.
California Air Resources Board, Stationary Source Division, 2020 ``L'' 
Street, P.O. Box 2815, Sacramento, California 95812-2815.

FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4), 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1200.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 22, 1993, the Environmental Protection Agency (EPA) 
promulgated the National Emission Standards for Hazardous Air 
Pollutants (NESHAP) for perchloroethylene dry cleaning facilities (see 
58 FR 49354), which was codified in 40 CFR Part 63, Subpart M, 
``National Perchloroethylene Air Emission Standards for Dry Cleaning 
Facilities'' (dry cleaning NESHAP). On May 21, 1996, EPA approved the 
California Air Resources Board's (CARB) request to implement and 
enforce section 93109 of Title 17 of the California Code of 
Regulations, ``Airborne Toxic Control Measure for Emissions of 
Perchloroethylene from Dry Cleaning Operations'' (dry cleaning ATCM), 
in place of the dry cleaning NESHAP for area sources (see 61 FR 25397). 
This approval became effective on June 20, 1996.
    Thus, under Federal law, from September 22, 1993, to June 20, 1996, 
all dry cleaning facilities located within the jurisdiction of the 
South Coast Air Quality Management District (SCAQMD) that used 
perchloroethylene were subject to and required to comply with the dry 
cleaning NESHAP. Since June 20, 1996, all such dry cleaning facilities 
that also qualify as area sources are subject to the Federally-approved 
dry cleaning ATCM; major sources, as defined by the dry cleaning 
NESHAP, remain subject to the dry cleaning NESHAP and the Clean Air Act 
(CAA) Title V operating permit program.
    On November 13, 1997, EPA received, through CARB, SCAQMD's request 
for approval to implement and enforce its June 13, 1997, revision of 
``Rule 1421: Control of Perchloroethylene Emissions from Dry Cleaning 
Operations'' (Rule 1421), as the Federally-enforceable standard for 
area sources under SCAQMD's jurisdiction. SCAQMD's request, however, 
does not include the authority to determine equivalent emission control 
technology for dry cleaning facilities in place of 40 CFR 63.325. This 
Federal Register action for the SCAQMD excludes the Los Angeles County 
portion of the Southeast Desert Air Quality Management Area, otherwise 
known as the Antelope Valley Region in Los Angeles County, which is now 
under the jurisdiction of the Antelope Valley Air Pollution Control 
District as of July 1, 1997.<SUP>1</SUP>
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    \1\ The State has recently changed the names and boundaries of 
the air basins located within the Southeast Desert Modified Air 
Quality Management Area. Pursuant to State regulation the Coachella-
San Jacinto Planning Area is now part of the Salton Sea Air Basin 
(17 Cal. Code. Reg. Sec. 60114); the Victor Valley/Barstow region in 
San Bernardino County and Antelope Valley Region in Los Angeles 
County is a part of the Mojave Desert Air Basin (17 Cal. Code. Reg. 
Sec. 60109). In addition, in 1996 the California Legislature 
established a new local air agency, the Antelope Valley Air 
Pollution Control District, to have the responsibility for local air 
pollution planning and measures in the Antelope Valley Region 
(California Health & Safety Code Sec. 40106).
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II. EPA Action

A. SCAQMD's Dry Cleaning Rule

    Under CAA section 112(l), EPA may approve state or local rules or 
programs to be implemented and enforced in place of certain otherwise 
applicable CAA section 112 Federal rules, emission standards, or 
requirements. The Federal regulations governing EPA's approval of state 
and local rules or programs under section 112(l) are located at 40 CFR 
Part 63, Subpart E (see 58 FR 62262, dated November 26, 1993). Under 
these regulations, a local air pollution control agency has the option 
to request EPA's approval to substitute a local rule for the applicable 
Federal rule. Upon approval, the local agency is given the authority to 
implement and enforce its rule in place of the otherwise applicable 
Federal rule. To receive EPA approval using this option, the 
requirements of 40 CFR 63.91 and 63.93 must be met.
    After reviewing the request for approval of SCAQMD's Rule 1421, EPA 
has determined that this request meets all the requirements necessary 
to qualify for approval under CAA section 112(l) and 40 CFR 63.91 and 
63.93. Accordingly, with the exception of the dry cleaning NESHAP 
provisions discussed in sections II.A.1 and II.A.2 below, as of the 
effective date of this action, SCAQMD's Rule 1421 is the Federally-
enforceable standard for area sources under SCAQMD's jurisdiction. This 
rule will be enforceable by the EPA and citizens under the CAA. 
Although SCAQMD now has primary implementation and enforcement 
responsibility, EPA retains the right, pursuant to CAA section 
112(l)(7), to enforce any applicable emission standard or requirement 
under CAA section 112.
1. Major Dry Cleaning Sources
    Under the dry cleaning NESHAP, dry cleaning facilities are divided 
between major sources and area sources. SCAQMD's request for approval 
included only those provisions of the dry cleaning NESHAP that apply to 
area sources. Thus, dry cleaning facilities using perchloroethylene 
that qualify as major sources, as defined by the dry cleaning NESHAP, 
remain subject to the dry cleaning NESHAP and the CAA Title V operating 
permit program.
2. Authority to Determine Equivalent Emission Control Technology for 
Dry Cleaning Facilities
    Under the dry cleaning NESHAP, any person may petition the EPA 
Administrator for a determination that the use of certain equipment or 
procedures is equivalent to the standards contained in the dry cleaning 
NESHAP (see 40 CFR 63.325). In its request, SCAQMD did not seek 
approval for the provisions in Rule 1421 that would allow for the use 
of alternative emission control technology without previous approval 
from EPA (i.e., Rule 1421(c)(17), (d)(3)(A)(v), (d)(4)(B)(ii)(III), and 
(j)). A source seeking permission to use an alternative means of 
emission limitation under CAA section 112(h)(3) must receive approval, 
after notice and opportunity for comment, from EPA before using such 
alternative means of emission limitation for the purpose of complying 
with CAA section 112.

B. California's Authorities to Implement and Enforce CAA Section 112 
Standards

1. Penalty Authorities
    As part of its request for approval of the dry cleaning ATCM, CARB 
submitted a finding by California's Attorney General stating that 
``State law provides civil and criminal enforcement authority 
consistent with [40 CFR] 63.91(b)(1)(i), 63.91(b)(6)(i), and 70.11, 
including authority to recover penalties

[[Page 26465]]

and fines in a maximum amount of not less than $10,000 per day per 
violation * * *'' [emphasis added]. In accordance with this finding, 
EPA understands that the California Attorney General interprets section 
39674 and the applicable sections of Division 26, Part 4, Chapter 4, 
Article 3 (``Penalties'') of the California Health and Safety Code as 
allowing the collection of penalties for multiple violations per day. 
In addition, EPA also understands that the California Attorney General 
interprets section 42400(c)(2) of the California Health and Safety Code 
as allowing for, among other things, criminal penalties for knowingly 
rendering inaccurate any monitoring method required by a toxic air 
contaminant rule, regulation, or permit.
    As stated in section II.A above, EPA retains the right, pursuant to 
CAA section 112(l)(7), to enforce any applicable emission standard or 
requirement under CAA section 112, including the authority to seek 
civil and criminal penalties up to the maximum amounts specified in CAA 
section 113.
2. Variances
    SCAQMD's Rule 504 and Division 26, Part 4, Chapter 4, Articles 2 
and 2.5 of the California Health and Safety Code provide for the 
granting of variances under certain circumstances. EPA regards these 
provisions as wholly external to SCAQMD's request for approval to 
implement and enforce a CAA section 112 program or rule and, 
consequently, is proposing to take no action on these provisions of 
state or local law. EPA does not recognize the ability of a state or 
local agency who has received delegation of a CAA section 112 program 
or rule to grant relief from the duty to comply with such Federally-
enforceable program or rule, except where such relief is granted in 
accordance with procedures allowed under CAA section 112. As stated 
above, EPA retains the right, pursuant to CAA section 112(l)(7), to 
enforce any applicable emission standard or requirement under CAA 
section 112.
    Similarly, section 39666(f) of the California Health and Safety 
Code allows local agencies to approve alternative methods from those 
required in the ATCMs, but only as long as such approvals are 
consistent with the CAA. As mentioned in section II.A.2 above, a source 
seeking permission to use an alternative means of emission limitation 
under CAA section 112 must also receive approval, after notice and 
opportunity for comment, from EPA before using such alternative means 
of emission limitation for the purpose of complying with CAA section 
112.

III. Administrative Requirements

A. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Approvals under 40 CFR 63.93 do not create any new requirements, 
but simply approve requirements that the state or local agency is 
already imposing. Therefore, because this approval does not impose any 
new requirements, it does not have a significant impact on affected 
small entities.

B. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate, or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under state or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector, result from this 
action.

C. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

D. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 13, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

E. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from review under Executive Order 12866.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Authority: This action is issued under the authority of section 
112 of the Clean Air Act, as amended, 42 U.S.C. section 7412.

    Dated: April 10, 1998.
Felicia Marcus,
Regional Administrator, Region IX.

    Title 40, chapter I, part 63 of the Code of Federal Regulations is 
amended as follows:

PART 63--[AMENDED]

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

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

    2. Section 63.14 is amended by revising paragraph (d)(1) to read as 
follows:


Sec. 63.14  Incorporation by reference.

* * * * *
    (d) * * *
    (1) California Regulatory Requirements Applicable to the Air

[[Page 26466]]

Toxics Program, April 6, 1998, IBR approved for Sec. 63.99(a)(5)(ii) of 
subpart E of this part.

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    3. Section 63.99 is amended by revising paragraph (a)(5)(ii) 
introductory text and adding paragraph (a)(5)(ii)(C), to read as 
follows:


Sec. 63.99  Delegated Federal authorities.

    (a) * * *
    (5) * * *
    (ii) Affected sources must comply with the California Regulatory 
Requirements Applicable to the Air Toxics Program, April 6, 1998 
(incorporated by reference as specified in Sec. 63.14) as described 
below.
* * * * *
    (C) The material incorporated in Chapter 3 of the California 
Regulatory Requirements Applicable to the Air Toxics Program (South 
Coast Air Quality Management District Rule 1421) pertains to the 
perchloroethylene dry cleaning source category in the South Coast Air 
Quality Management District, and has been approved under the procedures 
in Sec. 63.93 to be implemented and enforced in place of Subpart M--
National Perchloroethylene Air Emission Standards for Dry Cleaning 
Facilities, as it applies to area sources only, as defined in 
Sec. 63.320(h).
    (1) Authorities not delegated.
    (i) South Coast Air Quality Management District is not delegated 
the Administrator's authority to implement and enforce Rule 1421 in 
lieu of those provisions of Subpart M which apply to major sources, as 
defined in Sec. 63.320(g).
    Dry cleaning facilities which are major sources remain subject to 
Subpart M.
    (ii) South Coast Air Quality Management District is not delegated 
the Administrator's authority of Sec. 63.325 to determine equivalency 
of emissions control technologies. Any source seeking permission to use 
an alternative means of emission limitation, under sections (c)(17), 
(d)(3)(A)(v), (d)(4)(B)(ii)(III), and (j) of Rule 1421, must also 
receive approval from the Administrator before using such alternative 
means of emission limitation for the purpose of complying with section 
112.

[FR Doc. 98-12430 Filed 5-12-98; 8:45 am]
BILLING CODE 6560-50-P