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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6222-7]

Approval of Section 112(l) Authority for Hazardous Air

Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning

Facilities; State of California; Yolo-Solano 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 Yolo-Solano Air Quality

Management District (YSAQMD) requested approval to implement and

enforce its ``Rule 9.7: Perchloroethylene Dry Cleaning Operations''

(Rule 9.7) in place of the ``National Perchloroethylene Air Emission

Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP) for area

sources under YSAQMD'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 YSAQMD the authority to implement and enforce Rule 9.7

in place of the dry cleaning NESHAP for area sources under YSAQMD's

jurisdiction.

DATES: This rule is effective on March 29, 1999 without further notice,

unless EPA receives adverse comments by March 1, 1999. If EPA receives

such 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

March 29, 1999.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the

EPA Region IX office listed below. Copies of YSAQMD'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.

Yolo-Solano Air Quality Management District, 1947 Galileo Court, Suite

103, Davis, California 95616.

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

Yolo-Solano Air Quality Management District (YSAQMD) 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 April 25, 1997, EPA received, through CARB, YSAQMD's request for

approval to implement and enforce its ``Rule 9.7: Perchloroethylene Dry

Cleaning Operations'' (Rule 9.7), as the Federally-enforceable standard

for area sources under YSAQMD's jurisdiction. YSAQMD'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. On November 14, 1997, YSAQMD withdrew its request to make

revisions to Rule 9.7. YSAQMD subsequently revised Rule 9.7 on November

13, 1998, and resubmitted the rule on December 21, 1998, for EPA's

approval.

II. EPA Action

A. YSAQMD'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

[[Page 4299]]

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 YSAQMD's Rule 9.7, 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, YSAQMD's Rule 9.7 is the Federally-

enforceable standard for area sources under YSAQMD's jurisdiction. This

rule will be enforceable by the EPA and citizens under the CAA.

Although YSAQMD 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. YSAQMD'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, YSAQMD did not seek

approval for the provisions in Rule 9.7 that would allow for the use of

alternative emission control technology without previous approval from

EPA (i.e., Rule 9.7 sections 216, 301.3.a(v), 301.3.b(ii)(c), and 502).

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 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 YSAQMD'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), and citizens retain the right,

pursuant to CAA section 304, 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. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order (E.O.) 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

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

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of 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.''

Today's rule does not create a mandate on state, local or tribal

governments. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), 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

[[Page 4300]]

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.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

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

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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, Executive Order 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. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because approvals under 40 CFR

63.93 do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because

this approval does not create any new requirements, I certify that this

action will not have a significant economic impact on a substantial

number of small entities.

F. Unfunded Mandates

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

annual 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 annual 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

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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).

H. 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 March 29, 1999. 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)).

List of Subjects in 40 CFR Part 63

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: January 11, 1999.

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, January 5, 1999, 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, revising paragraph (a)(5)(ii)(A) introductory text,

revising the first sentence of paragraph (a)(5)(ii)(A)(1)(i), revising

the first sentence of paragraph (a)(5)(ii)(B)(1)(is), and adding

paragraph (a)(5)(ii)(D), 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, January 5, 1999

(incorporated by reference as specified in Sec. 63.14) as described as

follows:

(A) The material incorporated in Chapter 1 of the California

Regulatory

[[Page 4301]]

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).

(1) * * *

(i) California is not delegated the Administrator's authority to

implement and enforce California Code of Regulations Title 17, section

93109, in lieu of those provisions of subpart M which apply to major

sources, as defined in Sec. 63.320(g). * * *

(ii) * * *

(B) * * *

(1) * * *

(i) San Luis Obispo County Air Pollution Control District is not

delegated the Administrator's authority to implement and enforce Rule

432 in lieu of those provisions of subpart M which apply to major

sources as defined in Sec. 63.320(g). * * *

(ii) * * *

(C) * * *

(D) The material incorporated in Chapter 4 of the California

Regulatory Requirements Applicable to the Air Toxics Program (Yolo-

Solano Air Quality Management District Rule 9.7) pertains to the

perchloroethylene dry cleaning source category in the Yolo-Solano 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) Yolo-Solano Air Quality Management District is not delegated

the Administrator's authority to implement and enforce Rule 9.7 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) Yolo-Solano 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 216,

301.3.a(v), 301.3.b(ii)(c), and 502 of Rule 9.7, 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. 99-1910 Filed 1-27-99; 8:45 am]

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