National Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6376-5]

National Emission Standards for Hazardous Air Pollutants:

Halogenated Solvent Cleaning

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This final rule amends the national emission standard for

hazardous air pollutants (NESHAP) for halogenated solvent cleaning by:

permanently exempting nonmajor (or ``area'') batch cold solvent

cleaning machines that use halogenated solvent from the Federal

operating permit program; and deferring Federal operating permit

requirements until December 9, 1999 for all other nonmajor halogenated

solvent cleaning machines. With this amendment, these sources will be

treated by our Federal Operating Permits Program in the same way EPA

allows them to be treated by State operating permit programs adopted

under title V of the Clean Air Act (CAA). State programs are already

allowed to exempt/defer such sources from their requirements for title

V operating permits. Without today's amendment, sources located in

areas that do not have State title V permit programs (such as Indian

country) could be subject to more burdensome requirements than may

apply to sources located elsewhere. Today's action will reduce an undue

regulatory burden on industry as well as on EPA's Regional Offices.

DATES: This rule takes effect on September 13, 1999, without further

notice unless EPA receives adverse comment by August 12, 1999. If EPA

receives such comment, EPA will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Comments. If you have adverse comments on this action, you

may submit them in writing (in duplicate, if possible) to Docket No.

A-92-39 at the following address: Air and Radiation Docket and

Information Center (MC-6102), U.S. Environmental Protection Agency, 401

M Street, SW, Washington, DC, 20460. EPA requests that you send a

separate copy of the comments to the contact person listed below at the

same time that you submit comments to the docket.

Docket. Today's direct final rulemaking and other related materials

are available for review in the docket. Copies may be obtained by

request from the Air Docket by calling (202) 260-7548. This docket is

available for public inspection and copying between 8:30 a.m. and 3:30

p.m., Monday through Friday, at EPA's Air Docket, Room M-1500,

Waterside Mall, 401 M Street SW, Washington, DC, 20460. A reasonable

fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For information about the final rule,

contact Candace Carraway (telephone 919-541-3189), U.S. Environmental

Protection Agency, Office of Air Quality Planning and Standards, Mail

Drop 12, Research Triangle Park, North Carolina, 27711.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',

``us'' or ``our'' are used we mean EPA.

Entities Affected by This Action

Entities affected by this action are stationary air sources that

are nonmajor halogenated solvent cleaning machines (typically known as

``degreasers'') that are (1) subject to subpart T of 40 CFR part 63,

and (2) subject to the Federal Operating Permits Program rule at 40 CFR

part 71. Examples of affected categories and entities are in the

following table:

[[Page 37684]]

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NAICS

Category code Examples of affected entities

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Halogenated Solvent Cleaners................. 447 Gasoline Stations.

332 Fabricated Metal Product Manufacturing.

333 Machinery Manufacturing.

334 Computer and Electronic Product Manufacturing.

335 Electrical Equipment, Appliance, and Component

Manufacturing.

336 Transportation Equipment Manufacturing.

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This table is not exhaustive. Numerous industries use halogenated

solvent cleaners. Other types of entities not listed in the table could

also be affected by this action.

Rationale for Direct Final Rulemaking

We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse comment.

However, in the ``Proposed Rules'' section of today's Federal Register

publication, we are publishing a separate proposal to exempt and defer

nonmajor halogenated solvent cleaners if adverse comments are filed.

This rule will be effective on September 13, 1999, without further

notice unless we receive adverse comment by August 12, 1999. If we

receive adverse comment, we will publish a timely withdrawal in the

Federal Register informing the public that the rule will not take

effect. We will address all public comments in a later final rule based

on the proposed rule. We will not start a second comment period on this

action. If you want to comment, you must do so at this time.

Outline

The contents of today's preamble are listed in the following

outline:

I. Background of the Final Rule

A. Statutory and Regulatory Framework

B. Rationale for Exemption/Deferral

II. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Regulatory Flexibility

D. Paperwork Reduction Act

E. Unfunded Mandates Reform Act

F. Submission to Congress and the General Accounting Office

G. Executive Order 13045

H. Executive Order 12875

I. Executive Order 13084

J. National Technology Transfer Advancement Act

I. Background of the Final Rule

Under section 112 of the CAA, stationary air pollution sources that

do not have the potential to emit 10 or more tons per year of a single

hazardous air pollutant (HAP) and 25 or more tons per year of total HAP

are nonmajor or area sources. Our regulations provide that sources with

the potential to emit greater than these levels are major sources and

must obtain a title V operating permit from a State, local, or Tribal

permitting authority, or from us if the permitting authority does not

administer a permit program that we have approved.

Many halogenated solvent cleaners are nonmajor sources. When we

adopted regulations for halogenated solvent cleaners, we allowed State

and local agencies to exempt or defer nonmajor sources from their

permit programs. Today's rulemaking provides a level playing field by

allowing nonmajor halogenated solvent cleaners out of our Federal

Operating Permit Program on a permanent or temporary (deferred) basis.

However, a title V permit is required if the nonmajor or area

halogenated solvent cleaner is:

Subject to title V for a reason other than being subject

to the area source requirements in the NESHAP for halogenated solvent

cleaning, or

Located at a facility that is required to obtain a title V

permit (e.g., the facility is a major source).

The statutory and regulatory framework discussed below provides

background information on the permitting requirements of title V of the

CAA, the criteria that we use to decide whether to allow the exemption

of sources from permitting requirements, and the action we have already

taken to allow State, local, and Tribal agencies to exempt or defer

nonmajor halogenated solvent cleaners.

A. Statutory and Regulatory Framework

1. Permitting Requirements under the CAA

Title V of the CAA as amended in 1990 (42 U.S.C. 7661 et seq.)

requires us to develop regulations that set minimum standards for

approvable State programs for operating permits. We issued those

regulations (codified in part 70 of chapter I, title 40, of the CFR) on

July 21, 1992 (57 FR 32250).

We issued rules establishing the Federal Operating Permit Program

on July 1, 1996 (61 FR 34202), codified at 40 CFR part 71. The part 71

regulations authorize us to issue permits when a State, local, or

Tribal agency has not developed an approvable program, has not

adequately administered or enforced its approved operating permits

program, or has not issued permits that comply with the applicable

requirements of the CAA.

Section 502(a) of the CAA initially requires that major and

nonmajor sources subject to standards or regulations under section 111

or 112 of the Act obtain operating permits. However, section 502(a)

also provides that in some cases, we may exempt certain nonmajor source

categories from the requirement to obtain operating permits. This means

that nonmajor sources that are subject to the NESHAP for halogenated

solvent cleaning must obtain title V permits unless the requirement is

deferred or the sources are exempted from the requirement to obtain a

permit.

2. Criteria for Exemptions from Permitting Requirements

We may exempt certain source categories from the requirement to

obtain operating permits if we determine through rulemaking that

compliance with such requirements is ``impracticable, infeasible, or

unnecessarily burdensome on such categories.'' We may not exempt major

sources. When we issue standards or other requirements under section

112 of the CAA, we determine whether to exempt any or all nonmajor

sources subject to the standard or requirement from the requirement to

obtain a title V permit (40 CFR 70.3(b)(2); 40 CFR 71.3(b)(2)). If a

NESHAP does not exempt or defer nonmajor sources from title V

permitting, then nonmajor sources that are subject to the NESHAP must

obtain title V permits (40 CFR 63.1(c)(2)(iii)).

3. Exemption and Deferral under the NESHAP for Halogenated Solvent

Cleaning

The NESHAP for halogenated solvent cleaning were proposed in the

Federal Register on November 29, 1993 (58 FR 62566) and were

promulgated on December 2, 1994 (59 FR 61801). These standards were

codified at 40 CFR part 63, subpart T.

In the 1994 final rule for halogenated solvent cleaning, we

determined that

[[Page 37685]]

compliance with part 70 permitting requirements administered by State

and local permitting authorities would be impracticable, infeasible, or

unnecessarily burdensome on such sources. So, the final rule provided

that owners or operators of any batch cold solvent cleaning machine

that was not itself a major source of pollutants and that was not

located at a major source could be exempt from permitting requirements

under State title V operating permit programs (known as ``part 70

programs'')(40 CFR 63.468(j)). In addition, the final rule provided

that States could defer permitting requirements for 5 years under their

part 70 programs for all other types of solvent cleaning machines

subject to subpart T, if the machines are not major or located at major

sources. On June 5, 1995 (60 FR 29484), we promulgated corrections to

the NESHAP which clarified the length of the deferral for nonmajor

halogenated solvent cleaners, i.e., such sources may be deferred from

part 70 permitting requirements until December 9, 1999.

B. Rationale for Exemption/Deferral

Today's action is necessary because the final NESHAP for

halogenated solvent cleaning did not address whether to exempt or defer

the permitting requirements that apply to sources that are subject to

the part 71 program. We had not yet established the part 71 program

when the final NESHAP was issued. It has recently come to our attention

that numerous nonmajor halogenated solvent cleaners are located in

Indian country. We believe it would not be appropriate to leave these

sources subject to our operating permits program by default without

considering whether the burden of obtaining permits would be any

different for them than it would be for sources that are currently

deferred or exempted under State and local operating permits programs.

Without today's rulemaking, nonmajor halogenated solvent cleaners that

are located in areas subject to the part 71 program (such as Indian

country) would have to obtain a permit, while similar sources located

in other areas might not. Today's action will eliminate this disparate

treatment. However, note that today's action does not relieve sources

of the requirement to meet all applicable requirements established by

the NESHAP. Also, today's action does not affect the authority of

State, local, or Tribal permitting authorities to require that these

sources obtain title V permits.

The great majority of nonmajor sources nationwide are owned or

operated by small businesses, and we believe this is also true for

nonmajor halogenated solvent cleaners in Indian country. If required to

obtain permits, many such businesses would require greater assistance

from the permitting staff at our Regional Offices because of their

relative lack of technical and legal expertise, resources, and

experience in dealing with environmental regulation. If our Regional

Offices are overburdened from a backlog of permits to be processed,

nonmajor sources will be unable to obtain technical and procedural

assistance necessary to help them file timely and complete

applications. This scenario would constitute an impracticable,

infeasible, and unnecessary burden on these nonmajor sources,

especially considering that by definition they emit less than majors.

Currently, we administer the part 71 program for sources in U.S.

Territories and on the Outer Continental Shelf as well as in Indian

country. The vast majority of sources subject to the part 71 program

are located in Indian country. We estimate that as many as 200 nonmajor

halogenated solvent cleaners are in Indian country, and that most are

owned or operated by small entities, primarily small gasoline service

stations and repair shops.

We believe that requiring nonmajor halogenated solvent cleaners in

Indian country to obtain title V permits when similar sources located

elsewhere are generally not required to do so would have a disparate

impact on the economies of Tribal communities. One of the benefits of

the title V program is that it has improved enforcement of, as well as

compliance with, applicable requirements that are included in the

permit. However, we have previously concluded that for nonmajor

halogenated solvent cleaners, States may determine that the burden

associated with permitting outweighs the enhancement to the

enforceability of the NESHAP which would result from including the

standards in a part 70 permit. Similarly, we believe that the burden of

permitting nonmajor halogenated solvent cleaners under the part 71

program outweighs the enforcement benefits. Also, we believe it is

reasonable for purposes of national consistency for part 71 to provide

such nonmajor sources the same relief from permitting requirements as

is available under most State part 70 programs. So today's rule will

exempt nonmajor batch cold solvent cleaners from part 71 and defer part

71 permitting requirements for other nonmajor halogenated solvent

cleaners.

Besides burdening sources, requiring our Regional Offices to issue

permits to these nonmajor sources would be burdensome on us and would

divert our resources from permitting larger emitting sources. Unlike

States, we have just 2 years in which to take action on all part 71

permit applications from Indian country sources. Permitting large

numbers of nonmajor sources would stress our permitting system at its

most vulnerable time and possibly keep us from issuing permits to both

major and nonmajor sources on time. It could also divert resources from

our efforts to develop substantive pollution control programs in Indian

country and to assist Tribes in developing their own programs. Since

pollution control programs in Indian country are far less developed

than in neighboring States, we believe these efforts are more important

than requiring nonmajor halogenated solvent cleaners to get part 71

permits.

The deferral from part 71 permitting requirements which is

established in today's rulemaking extends to December 9, 1999 which is

5 years after the effective date of the first part 70 program that we

approved. The existing deferral authorized for State, local, and Tribal

part 70 programs also expires on December 9, 1999. If the deferral is

not extended further, then halogenated solvent cleaners that are

currently deferred would be required to submit title V permit

applications to the applicable permitting authority (State, local,

Tribal, or EPA) by December 9, 2000. Before that date, we plan to

complete a rulemaking that addresses whether to extend the deferral

under both part 70 and part 71 programs. The exemption for nonmajor

batch cold solvent cleaners under part 70 and part 71 will not expire

on December 9, 1999. No additional rulemaking is needed to extend it.

II. Administrative Requirements

A. Docket

The docket for this regulatory action is A-92-39. The docket is an

organized and complete file of all the information submitted to or

otherwise considered by EPA in the development of this rulemaking.

B. Executive Order 12866

Under Executive Order (E.O.) 12866 (58 FR 51735 (October 4, 1993)),

the Agency must determine whether the regulatory action is

``significant'' and therefore subject to the Office of Management and

Budget (OMB) review and the requirements of the Executive Order. The

Order defines ``significant'' regulatory action as one that is likely

to lead to a rule that may:

[[Page 37686]]

1. Have an annual effect on the economy of $100 million or more,

adversely and materially affecting a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local or Tribal governments or communities;

2. Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

3. Materially alter the budgetary impact of entitlements, grants,

user fees, or loan program or the rights and obligation of recipients

thereof;

4. Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of E.O. 12866, it has been determined that

this rule is not a ``significant'' regulatory action because it does

not raise any of the issues associated with ``significant'' regulatory

actions. The rule will have a negligible effect on the economy and will

not create any inconsistencies with other actions by other agencies,

alter any budgetary impacts, or raise any novel legal or policy issues.

For these reasons, this action was not submitted to OMB for review.

C. Regulatory Flexibility

We have determined that it is not necessary to prepare a regulatory

flexibility analysis in connection with this final rule. We have also

determined that this final rule will not have a significant economic

impact on a substantial number of small entities. There are no

compliance costs associated with this action. As explained earlier in

this notice, this action relieves sources of regulatory requirements

under the title V program.

D. Paperwork Reduction Act

The information collection requirements of the previously

promulgated NESHAP were submitted to and approved by OMB. Today's

changes to the NESHAP would not increase the information collection

burden estimates made previously. In fact, they are expected to reduce

the required paperwork by providing the opportunity for delays for some

sources and exemptions for others from requirements to obtain a title V

permit.

E. Unfunded Mandates Reform Act

Today's action imposes no costs on State, local, and Tribal

governments. The EPA has determined that today's action does not

contain a Federal mandate that may result in expenditures of $100

million or more for State, local, and Tribal governments, in the

aggregate, or the private sector, in any 1 year. Therefore, the Agency

concludes that it is not required by section 202 of the Unfunded

Mandates Reform Act of 1995 to provide a written statement to accompany

this regulatory action.

F. 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. The 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).

G. Executive Order 13045

The E.O. 13045, ``Protection of Children from Environmental Health

Risks and Safety Risks'' (62 FR 19885, April 23, 1977), applies to any

rule that: (1) is determined to be ``economically significant'' as

defined under E.O. 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

We interpret E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because: (1) it is not an economically significant rule as defined by

E.O. 12866, and (2) it does not establish an environmental standard

intended to mitigate health or safety risks.

H. Executive Order 12875: Enhancing Intergovernmental Partnership

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by those governments or EPA consults with those

governments. If EPA complies by consulting, E.O. 12875 requires EPA to

provide to OMB a description of the extent of EPA's prior consultation

with representatives of affected State, local, and Tribal governments,

the nature of their concerns, any written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of State, local and Tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

The EPA has concluded that this rule will not create a mandate upon

any State, local, or Tribal governments.

I. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian Tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the Tribal governments or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the Office of Management and Budget, in a separately

identified section of the preamble to the rule, a description of the

extent of EPA's prior consultation with representatives of affected

tribal governments, a summary of the nature of their concerns, and a

statement supporting the need to issue the regulation. In addition,

E.O. 13084 requires EPA to develop an effective process permitting

elected and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian Tribal governments. It does not result in any

expenditure of Tribal government revenue or have any impact on Tribal

governments. The rule applies to all nonmajor sources for which EPA is

the permitting authority, regardless of whether they are located in

Indian country. Accordingly, the requirements of section 3(b) of E.O.

13084 do not apply to this rule.

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J. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA) directs all Federal agencies to use voluntary

consensus standards instead of government-unique standards in their

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., material specifications, test methods,

sampling and analytical procedures, business practices, etc.) that are

developed or adopted by one or more voluntary consensus standards

bodies. Examples of organizations generally regarded as voluntary

consensus standards bodies include the American Society for Testing and

Materials, the National Fire Protection Association, and the Society of

Automotive Engineers. The NTTAA requires Federal agencies like EPA to

provide Congress, through OMB, with explanations when an agency decides

not to use available and applicable voluntary consensus standards.

This action does not involve any new technical standards or the

incorporation by reference of existing technical standards. Therefore,

consideration of voluntary consensus standards is not relevant to this

action.

List of Subjects in 40 CFR Part 63

Environmental protection, Air pollution control, Hazardous

substances, Operating permits.

Dated: July 6, 1999.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40 chapter I of the

Code of Federal Regulations is amended as set forth below.

Part 63--[AMENDED]

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

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

Subpart T--[Amended]

2. Section 63.468 is amended by revising paragraph (j) to read as

follows:

Sec. 63.468 Reporting requirements.

* * * * *

(j) The Administrator has determined, pursuant to the criteria

under section 502(a) of the Act, that an owner or operator of any batch

cold solvent cleaning machine that is not itself a major source and

that is not located at a major source, as defined under 40 CFR 70.2 or

71.2, whichever is applicable, is exempt from title V permitting

requirements for that source. An owner or operator of any other solvent

cleaning machine subject to the provisions of this subpart is subject

to title V permitting requirements. These sources, if not major or

located at major sources as defined under 40 CFR 70.2 or 71.2,

whichever is applicable, may be deferred by the applicable title V

permitting authority from title V permitting requirements for 5 years

after the effective date of the first part 70 program approved by EPA

(i.e., until December 9, 1999). All sources receiving deferrals shall

submit title V permit applications within 12 months of such date (by

December 9, 2000). All sources receiving deferrals still must meet the

compliance schedule as stated in Sec. 63.460.

* * * * *

[FR Doc. 99-17628 Filed 7-12-99; 8:45 am]

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