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

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, 1997.1

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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

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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]

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