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

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.

* * * * *

[FR Doc. 97-32329 Filed 12-9-97; 8:45 am]

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