# National Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A99-17628 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 13, 1999 - **Citation:** 64 FR 37683 ## Text 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. ----------------------------------------------------------------------- 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]] ---------------------------------------------------------------------------------------------------------------- NAICS Category code Examples of affected entities ---------------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------------- 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. [[Page 37687]] 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] BILLING CODE 6560-50-U --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-17628. Public record. Not legal advice.