[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)] [Rules and Regulations] [Pages 25396-25400] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-12475] ======================================================================= ----------------------------------------------------------------------- [[Page 25397]] ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [FRL-5444-6] State of California; Approval of Section 112(l) Authority for Hazardous Air Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The California Air Resources Board (CARB) requested approval, under section 112(l) of the Clean Air Act (CAA), to implement and enforce California's ``Airborne Toxic Control Measure for Emissions of Perchloroethylene from Dry Cleaning Operations'' (dry cleaning ATCM) in place of the ``National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP) for area sources. In addition, to streamline the approval process for future CAA section 112(l) applications, CARB also requested approval of its demonstration that California has adequate authorities and resources to implement and enforce all CAA section 112 programs and rules, with the exception of the accidental release prevention program to be promulgated pursuant to CAA section 112(r). The Environmental Protection Agency (EPA) has reviewed CARB's requests for approval and has found that these requests satisfy all of the requirements necessary to qualify for approval, with the exception of CARB's supplemental request for the authority to determine equivalent emission control technology for dry cleaning facilities. Thus, EPA is hereby granting California the authority to implement and enforce its dry cleaning ATCM in place of the dry cleaning NESHAP, except for those provisions of the dry cleaning NESHAP that apply to major sources; disapproving CARB's supplemental request for approval of the authority to determine equivalent emission control technology for dry cleaning facilities; and approving CARB's demonstration that California has adequate authorities and resources to implement and enforce all CAA section 112 programs and rules, with the exception of the accidental release prevention program to be promulgated pursuant to CAA section 112(r). EFFECTIVE DATE: This action is effective on June 20, 1996. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 20, 1996. ADDRESSES: Copies of CARB's requests for approval are available for public inspection at the following locations: U.S. Environmental Protection Agency, Region IX, Rulemaking Section (A- 5-3), Air and Toxics Division, 75 Hawthorne Street, San Francisco, California 94105-3901. California Air Resources Board, Stationary Source Division, 2020 ``L'' Street, P.O. Box 2815, Sacramento, California 95812-2815. U.S. Environmental Protection Agency, Air and Radiation Docket and Information Center (Mail Code 6102), 401 M Street SW, Washington, D.C. 20460. FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Section (A-5-3), Air and Toxics 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 has been codified in 40 CFR Part 63, Subpart M, ``National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities'' (dry cleaning NESHAP). On July 10, 1995, EPA received the California Air Resources Board's (CARB) request for approval 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. As part of its dry cleaning ATCM application, CARB also requested approval of its demonstration that California has adequate authorities and resources to implement and enforce all Clean Air Act (CAA) section 112 programs and rules, with the exception of the accidental release prevention program to be promulgated pursuant to CAA section 112(r). The purpose of this demonstration is to streamline the approval process for future CAA section 112(l) applications. Finally, as a supplement to its request for approval of the dry cleaning ATCM, CARB also requested approval of the authority to determine equivalent emission control technology for dry cleaning facilities in place of 40 CFR 63.325. On October 17, 1995, EPA announced in the Federal Register (see 60 FR 53728) its receipt of CARB's requests and the availability for the public to comment on CARB's application. This announcement included a detailed discussion of the background and format of CARB's application. II. Summary of Public Comments EPA received letters from four commenters regarding CARB's requests. All four commenters were in favor of granting California the authority to implement and enforce its dry cleaning ATCM in place of the dry cleaning NESHAP. One commenter also believed that California has adequate authorities and resources to implement and enforce all CAA section 112 programs and rules. Comments regarding CARB's supplemental request for the authority to determine equivalency of control technology for dry cleaning facilities is discussed in section III.A.3 below. III. EPA Action A. California's Dry Cleaning ATCM Under CAA section 112(l), EPA may approve State 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 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 State has the option to request EPA's approval to substitute a State rule for the applicable Federal rule. Upon approval, the State is given the authority to implement and enforce its rule in place of the otherwise applicable Federal rule. To receive EPA approval using this option, the requirements of 40 CFR 63.91 and 63.93 must be met. After reviewing CARB's request for approval of its dry cleaning ATCM, EPA has determined that CARB's 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 III.A.2 and III.A.3 below, California is granted the authority to implement and enforce its dry cleaning ATCM in place of the dry cleaning NESHAP. Although California now has primary implementation and enforcement responsibility, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable [[Page 25398]] emission standard or requirement under CAA section 112. As of the effective date of this final notice, the dry cleaning ATCM is the Federally-enforceable standard in California and is enforceable by the Administrator and citizens under the CAA. 1. Stringency When a State requests EPA's approval to substitute a State rule for the applicable CAA section 112 Federal rule, EPA is required to make a detailed and thorough evaluation of the State's submittal to ensure that it meets the stringency and other requirements of 40 CFR 63.93. During its evaluation of the dry cleaning ATCM, EPA noted that several provisions of the dry cleaning NESHAP did not directly correlate with provisions of the dry cleaning ATCM, including some of the equipment installation compliance deadlines and some of the reporting and recordkeeping requirements. On the other hand, EPA also noted that many aspects of the dry cleaning ATCM afford greater overall emission reductions than the dry cleaning NESHAP. In the final analysis, EPA believes that approval of the dry cleaning ATCM will result in emission reductions from each affected source that are no less stringent than would result from the dry cleaning NESHAP. 2. Major Dry Cleaning Sources Under the dry cleaning NESHAP, dry cleaning facilities are divided between major sources and area sources. CARB's request for approval included only those provisions of the dry cleaning NESHAP that apply to area sources. Thus, dry cleaning facilities that are major sources, as defined by the dry cleaning NESHAP, remain subject to the dry cleaning NESHAP and the CAA Title V operating permit program. 3. 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). As a supplement to its request for approval of the dry cleaning ATCM, CARB also requested approval of the authority to determine equivalent emission control technology for dry cleaning facilities. This supplement included the following sections of the dry cleaning ATCM that CARB requested to be approved in place of 40 CFR 63.325: sections 93109(a)(17); 93109(g)(3)(A)(5); 93109(g)(3)(B)(2)(iii); and 93109(h). While one commenter was in favor of EPA delegating this authority to California, another commenter, who also supported such delegation, believed that EPA should retain some authority for the equivalency determination to provide a minimum amount of consistency among the various State programs; otherwise, according to this commenter, manufacturers of alternative technologies may have to seek approval from a number of State authorities in order to develop a national market for their equipment. In its response to this latter comment, CARB stated that the authority to approve alternative equipment relates solely to alternative equipment offered for sale to the California perchloroethylene dry cleaning industry. According to CARB, nationwide consistency will be maintained for any equipment offered for sale both in California and other States because EPA would continue to approve that alternative equipment under the dry cleaning NESHAP; if other States receive this authority, then the manufacturers of alternative equipment who wish to target nationwide sales may have to design alternative technologies that meet the most stringent standard, whether it is a State or Federal standard. EPA is disapproving CARB's supplemental request based on the statutory language of CAA section 112(h)(3). This disapproval, however, is limited only to those provisions within the dry cleaning ATCM (i.e., sections 93109(a)(17); 93109(g)(3)(A)(5); 93109(g)(3)(B)(2)(iii); and 93109(h)) that allow for the use of alternative emission control technology without previous approval from EPA under CAA section 112(h)(3) and 40 CFR 63.325. The delegation of authority to determine equivalent emission control technology was discussed in EPA's notice of final rulemaking, ``Approval of State Programs and Delegation of Federal Authorities,'' published on November 26, 1993 (see 58 FR 62262). In that notice, it was concluded that ``EPA does not delegate authority to determine equivalency of emission control technologies to the States * * * because these determinations require notice and opportunity for comment and impact National [sic] consistency standards.'' 58 FR 62279. While States may develop procedures for alternative control technology demonstrations and make their own equivalency determinations under State law, a source seeking permission to use an alternative means of emission limitation under CAA section 112(h)(3) 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. B. California's Authorities and Resources To Implement and Enforce CAA Section 112 Standards Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and 40 CFR Part 63, Subpart E. To streamline the approval process for future applications, a State may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the State would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program. As part of its dry cleaning ATCM application, CARB also requested approval of its demonstration that California has adequate authorities and resources to implement and enforce all CAA section 112 programs and rules, with the exception of the accidental release prevention program to be promulgated pursuant to CAA section 112(r). After reviewing CARB's demonstration of California's authorities and resources, EPA is approving this demonstration as meeting the approval criteria of 40 CFR 63.91(b) (1), (3), and (6). Although this approval will not result in delegation of the CAA section 112 standards, it will obviate the need for CARB to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards, regardless of whether CARB requests approval of rules that are identical to or differ from the CAA section 112 standards as promulgated. Since the above demonstration is also required under 40 CFR Part 70, EPA will evaluate this demonstration as it applies to Part 70 sources when it evaluates the Part 70 program applications submitted by the California air pollution control or air quality management districts. 1. Penalty Authorities As part of its request for approval, 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 [[Page 25399]] 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 III.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 CARB's requests for approval to implement and enforce CAA section 112 programs or rules and, consequently, is proposing to take no action on these provisions of State law. EPA has no authority to approve provisions of State or local law, such as the variance provisions referred to, that are inconsistent with the CAA. EPA does not recognize the ability of a State or local agency who has received delegation of a CAA section 112 program or rule to grant relief from the duty to comply with such Federally-enforceable program or rule, except where such relief is granted in accordance with procedures allowed under CAA section 112. As stated above, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112. Similarly, section 39666(f) of the California Health and Safety Code allows local agencies to approve alternative methods from those required in the ATCMs, but only as long as such approvals are consistent with the CAA. As mentioned in section III.A.3 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. IV. Administrative Requirements A. Unfunded Mandates Reform Act Under sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995, EPA must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of $100 million or more to the private sector or to State, local, or tribal governments in the aggregate. The rule being approved by this action will impose no new requirements because affected sources are already subject to these regulations under State law. Therefore, no additional costs to State, local, or tribal governments or to the private sector result from this action. EPA has also determined that this final determination does not include a mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate or to the private sector. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. sections 603 and 604. Alternatively, EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Approvals under 40 CFR 63.93 do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because this approval does not impose any new requirements, it does not have a significant impact on affected small entities. C. Executive Order 12866 The Office of Management and Budget has exempted this regulatory action from Executive Order 12866 review. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Incorporation by reference, 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: March 1, 1996. Felicia Marcus, Regional Administrator. 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 adding paragraph (d) to read as follows: Sec. 63.14 Incorporation by Reference. * * * * * (d) State and Local Requirements. The materials listed below are available at the Air and Radiation Docket and Information Center, U.S. EPA, 401 M Street, SW., Washington, DC. (1) California Regulatory Requirements Applicable to the Air Toxics Program, March 1, 1996, IBR approved for Sec. 63.99(a)(5)(ii) of subpart E of this part. (2) [Reserved] Subpart E--Approval of State Programs and Delegation of Federal Authorities 3. Subpart E is amended by reserving Secs. 63.97 and 63.98; and by adding Sec. 63.99 to read as follows: Sec. 63.97 [Reserved] Sec. 63.98 [Reserved] Sec. 63.99 Delegated Federal Authorities. (a) This section lists the specific source categories that have been delegated to the air pollution control agencies in each State under the procedures described in this subpart. (1)-(4) [Reserved] (5) California (i) [Reserved] (ii) Affected sources must comply with the California Regulatory Requirements Applicable to the Air Toxics Program, March 1, 1996 (incorporated by reference as specified in Sec. 63.14) as described below. (A) The material incorporated in Chapter 1 of the California Regulatory Requirements Applicable to the Air Toxics Program pertains to the perchloroethylene dry cleaning source category, 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) California is not delegated the Administrator's authority to implement [[Page 25400]] and enforce 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) California 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 93109(a)(17), 93109(g)(3)(A)(5), 93109(g)(3)(B)(2)(iii), and 93109(h) of the California Airborne Toxic Control Measure, 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. 96-12475 Filed 5-20-96; 8:45 am] BILLING CODE 6560-50-W