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

[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Rules and Regulations]
[Pages 4298-4301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1910]


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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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