[Federal Register Volume 67, Number 179 (Monday, September 16, 2002)]
[Rules and Regulations]
[Pages 58339-58342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23257]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7271-1]
Approval of the Clean Air Act, Section 112(l), Authority for
Hazardous Air Pollutants: Perchloroethylene Air Emission Standards for
Dry Cleaning Facilities: Commonwealth of Massachusetts Department of
Environmental Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 112(l) of the Clean Air Act (CAA), the
Massachusetts Department of Environmental Protection submitted a
request for approval to implement and enforce 310 CMR 70.01-04
Environmental Results Program (ERP) Certification and 310 CMR 7.26(10)-
(16) Perchloroethylene Air Emissions Standards for Dry Cleaning
Facilities in place of National Emissions Standard for Hazardous Air
Pollutants (NESHAP) for Perchloroethylene Dry Cleaning Facilities as it
applies to area sources. EPA has reviewed this request and found that
it satisfies the requirements necessary to qualify for approval. Thus,
EPA is hereby granting the Massachusetts Department of Environmental
Protection the authority to implement and enforce its perchloroethylene
air emissions regulation in place of the Federal dry cleaning NESHAP
for area sources. This approval makes the Massachusetts Department of
Environmental Protection rule federally enforceable and reduces the
burden on area sources within the state of Massachusetts as that they
will only have one rule with which they must comply. Major sources
remain subject to the Federal dry cleaning NESHAP.
DATES: This action will be effective November 15, 2002, unless EPA
receives relevant adverse comments by October 16, 2002. If EPA receives
such comments, then it will publish a timely withdrawal in the Federal
Register informing the public that this direct final 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 November 15, 2002.
ADDRESSES: Written comments should be mailed concurrently to the
addresses below: Steven Rapp, Chief, Air Permits, Toxics and Indoor
Programs Unit (CAP), U.S. Environmental Protection Agency, Region I,
One Congress Street, Suite 1100, Boston, MA 02114. Steven DeGabriele,
Director, Business Compliance Division, Massachusetts Department of
Environmental Protection, One Winter Street, Boston, MA 02108. Copies
of the requests for approval are available for public inspection at
EPA's Region I Office, Air Permits, Toxics, and Indoor Programs Unit,
during normal business hours.
FOR FURTHER INFORMATION CONTACT: MaryBeth Smuts, Air Permits, Toxics,
and Indoor Programs Unit, U.S. EPA Region I, One Congress St., Suite
1100 (CAP), Boston, MA 02114, (617) 918-1512.
SUPPLEMENTARY INFORMATION: This Supplementary Information is organized
as follows:
I. Background and Purpose
II. EPA Evaluation of Differences Between the State and the Federal
Regulations
A. What Major Differences Between the Massachusetts Department
of Environmental Protection's Dry Cleaning Rule and the Dry Cleaning
NESHAP Were Selected for Explanations?
1. How Does the Applicability of Sources Differ?
2. Are There Differences in the Compliance Dates?
3. What Are the Differences in Temperature Requirements for
Refrigerated Condensers?
4. How Do the Work Practice Standards Differ?
5. What Are the Requirement Differences in Compliance
Certifications?
6. Do the Record Retention Requirements Differ?
B. What Is EPA's Action Regarding the MA DEP Rule?
C. When Did the Massachusetts Department of Environmental
Protection's Authorities To Implement and Enforce Section 112
Standards Become Effective?
III. Opportunity for Public Comments
IV. Summary of EPA's Action
V. Administrative Requirements
I. Background and Purpose
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 Federal rules, emissions 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, November 26, 1993) and the subsequently amended
regulations (see 65 FR 55810, September 14, 2000). Under these
regulations, a state air pollution control agency has the option to
request EPA's approval to substitute a state rule for the applicable
Federal rule (e.g. the Federal National Emission Standards for
Hazardous Air Pollutants (NESHAP)). Upon approval, the state agency is
given the authority to implement and enforce its rule in place of the
NESHAP.
This ``rule substitution'' option requires EPA 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 (see 58
FR 62274). A rule will be approved if EPA finds: (1) The State, local
and territorial agencies and Indian tribes (S/L/T) are ``no less
stringent'' than the corresponding Federal regulation, (2) adequate
authorities exist, (3) the schedule for implementation and compliance
is ``no less stringent'', and (4) the S/L/T program is otherwise in
compliance with Federal guidance.
On September 22, 1993, the Environmental Protection Agency (EPA)
promulgated the 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 October 24, 2001, EPA received
Massachusetts Department of Environmental Protection's (MA DEP) request
to implement and enforce its 310 CMR 7.26(10)-(16) Perchloroethylene
Air Emissions Standards for Dry Cleaning Facilities and 310 CMR 70.01-
04 Environmental Results Program (ERP) Certification known as the ``ERP
for dry cleaning facilities in lieu of the dry cleaning NESHAP rule. MA
DEP's request for approval was submitted pursuant to the provisions of
40 CFR part 63, subpart E and was found to be complete on January 8,
2002.
The ERP is a multimedia compliance program which requires self
certification regarding air, water and hazardous waste requirements
while providing extensive compliance assistance to dry cleaners through
training programs and workbooks. Inspections and enforcement are part
of the air program. Only the air portion of the ERP for dry cleaning
facilities is evaluated by this EPA action.
[[Page 58340]]
II. EPA's Evaluation of Differences Between the State and Federal
Regulations
A. What Major Differences Between the MA DEP Perchloroethylene Air
Emissions Standards for Dry Cleaning Facilities and Certification
Program Regulations and the Dry Cleaning NESHAP Were Selected for
Explanations?
The MA DEP's dry cleaning and certification program rules differ in
several ways from the Federal dry cleaning NESHAP. Most of these
differences make the MA DEP dry cleaning regulations more stringent
than the Federal NESHAP. However, some of the provisions of the State's
dry cleaning regulations require further clarification to explain how
they are no less stringent than the Federal dry cleaning NESHAP.
In a letter and supplemental material dated October 22, 2001, the
MA DEP submitted its application for substitution of its dry cleaning
rules with an equivalency demonstration table, narrative, and a summary
of its enforcement and compliance measures under its Environmental
Results Program. Extracts of the equivalency table and narrative are
presented here to provide explanation that provisions in the
Massachusetts rules are no less stringent than the Federal dry cleaning
NESHAPS. The places where the Massachusetts rules are identical are not
cited in this section. The state provided a summary of the status of
its enforcement and compliance program for dry cleaners as well as its
training and outreach program for dry cleaners. This additional
information is available upon request or for public inspection at EPA's
Region I Office at the address listed above.
1. How Does the Applicability of Sources Differ?
In 40 CFR 63.320(g), the Federal NESHAP classifies dry cleaning
sources as major sources based on either annual perchloroethylene
(perc) emissions or annual perc consumption. Major sources are those
sources with either 10 tons per year perc emissions or perc consumption
greater than 8000 liters (2100 gallons) for dry-to-dry machines or
greater than 6800 liters (1800 gallons) for transfer or transfer and
dry-to-dry machines. These major sources will remain subject to the
Federal dry cleaning NESHAPS.
Under 40 CFR 63.320(d) and (e), the Federal NESHAP provides partial
exemptions for certain area sources based on perc consumption.
Depending on the types of dry cleaning equipment at the area sources,
exemption thresholds are 140 or 200 gallons of perc per year.
Additionally, both the Federal NESHAP and the ERP exempt coin-operated
machines. The MA DEP applicability provisions for dry cleaners as
established in 310 CMR, 7.26 (10)-(16) and the certification
requirements of 310 CMR 70.00 do not provide partial exemptions for
area sources based on consumption of perc. Therefore, the full ERP
applies to more area sources than the area source provisions of the
Federal NESHAP.
2. Are There Differences in the Compliance Dates?
The Federal regulations required compliance by September 22, 1993
or immediately upon startup. The MA DEP regulations provide that the
compliance date begins at promulgation of the rules or at start up of
new dry cleaners in 310CMR 7.26 (10)(b). The state compliance dates
have been passed because the state regulations have been in place since
1997. Hence for this rulemaking, the compliance dates are identical to
Federal requirements.
3. What Are the Differences in Temperature Requirements for
Refrigerated Condensers?
In 40 CFR 63.322(a) and 63.323(a)(1), there are Federal
requirements for operating and maintaining refrigerated condensers on a
dry-to-dry machine, dryer, or reclaimer. Similar requirements for
washers are in 40 CFR 63.322(f) and 63.323(a)(2). Federal rules require
a sensor to monitor its gas stream to determine if it is equal to or
less than 45 [deg]F. The ERP has an identical monitoring provision. In
addition, the ERP includes in the operation and maintenance
requirements a temperature limit that makes the standard clearer. See
310 CMR 7.26(13)(c) and (d).
4. How Do the Work Practice Standards Differ?
In 40 CFR 63.322(k), there is a Federal work practice requirement
for leak detection of large area sources and biweekly leak detection
for small area sources. In the MA DEP regulations, there is no
distinction between large or small area sources. Leak detection is
required weekly for all sources and the use of a leak detection device
is required in contrast to the Federal requirement that relied on
perceptible detection of leaks. The MA DEP requirements are more
stringent in requiring a measuring device rather than just the senses.
Further, if perceptible leaks are detected, the Federal regulation 40
CFR 63.322, requires that all leaks be repaired. The MA DEP
requirements regulates that both perceptible leaks and leaks detected
by monitoring devices be repaired.
5. What Are the Requirement Differences in Compliance Certifications?
The Federal NESHAP requires the owner or operator of a dry cleaning
facility constructed or reconstructed after September 22, 1993, to file
a compliance certification notification within 30 days of startup. See
40 CFR 63.320(b) and 63.324(b). This certification is a one time only
requirement for the Federal standard. The MA DEP requirements require
not only an initial compliance certification within 60 days of start up
but also an additional annual certification of compliance for area
source dry cleaners. This annual self certification requirement of the
ERP is more stringent than the Federal requirements. While the initial
compliance certification for a new source may be filed up to 30 days
later than under the Federal NESHAP, on balance the compliance
certification requirements of the ERP are at least as stringent as the
Federal NESHAP. EPA notes that new sources must be in compliance with
the control requirements upon start-up under both rules.
6. Does the Record Retention Requirement Differ?
In 40 CFR 63.324(d), the Federal requirement for retaining records
of perchloroethylene purchases is five years on-site. The MA DEP
provisions require record retention for a three year period. Although
there is a difference in the record retention time, EPA does not
consider the ERP to be, on balance, less stringent given the ERP annual
certification requirements. The MA DEP provisions impose an annual
certification requirement on all dry cleaners, which does not exist
under the Federal requirements. Under the MA DEP provisions, a
responsible official must sign the certification form, certifying under
penalties of perjury that the facility is in compliance with all
requirements. By requiring annual certification, the MA DEP can
maintain a dry cleaner database containing historical and current
information, and measure environmental performance, which meets the
needs of the recordkeeping requirements.
B. What Is EPA's Action Regarding the MA ERP for Dry Cleaning
Facilities?
After reviewing the request for approval of the Massachusetts
Department of Environmental Protection
[[Page 58341]]
Environmental Results Program Certification and Perchloroethylene Air
Emissions Standards for Dry Cleaning Facilities, EPA has determined
that this request meets all of the requirements necessary to qualify
for approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. EPA
has determined that the MA DEP's dry cleaning rule is equivalent to or
not less stringent than the Federal dry cleaning NESHAP. Therefore, EPA
hereby approves MA DEP dry cleaning rules to be implemented and
enforced in place of the Federal dry cleaning NESHAP, as it applies to
only area sources in Massachusetts. As of the effective date of this
action, MA DEP's dry cleaning rule is enforceable by the EPA and
citizens under the CAA. Although the MA DEP 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.
C. When Did the Massachusetts Department of Environmental Protection's
Authorities To Implement and Enforce Section 112 Standards Become
Effective?
Under 40 CFR 63.91(d), the MA DEP must demonstrate that it meets
all 112(l) approval criteria and under 63.91(d)(3), final Title V
program approval satisfies this approval criteria. On September 28,
2001 EPA granted MA DEP final Title V operating permit approval which
became effective November 27, 2001.
III. Opportunities for Public Comments
EPA views the approval of the MA DEP request to use its ERP for dry
cleaning facilities as a substitute for the Federal dry cleaning NESHAP
as a noncontroversial action, since the state program has been in
operation for several years and is more stringent then the NESHAP. EPA
anticipates no adverse comments. Therefore, EPA is publishing this
direct final rule without prior proposal. However, in the proposed
rules section of this Federal Register publication, EPA is publishing a
separate document that will serve as the proposal for this action
should relevant adverse comments be filed. This action will be
effective on November 15, 2002, without further notice, unless EPA
receives relevant adverse comments by October 16, 2002.
If EPA receives such comments, then it will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. All public comments received
will then be addressed in a subsequent final rule based on the proposed
rule. EPA will not institute a second comment period on this rule. Any
parties interested in commenting should do so at this time. If no such
comments are received, the public is advised that this rule will be
effective on November 15, 2002, and no further action will be taken on
the proposed rule.
IV. Summary of EPA's Action
Pursuant to section 112(l) of the CAA and 40 CFR 63.91 and 63.93,
EPA is approving the Massachusetts Department of Environmental
Protection request to implement and enforce its Regulations 310 CMR,
Sections 7.26 (10)-(16) Perchloroethylene Air Emissions Standards for
Dry Cleaning Facilities and Sections 70.01-04 Environmental Results
Program Certification pertaining to dry cleaning facilities in place of
40 CFR part 63, subpart M, National Perchloroethylene Air Emissions
Standards for Dry Cleaning Facilities, as it applies to area sources.
This approval makes the Massachusetts Department of Environmental
Protection rules federally enforceable and reduces the burden on area
sources within Massachusetts' jurisdiction such that they only have one
rule with which they must comply. Major sources remain subject to 40
CFR part 63, subpart M.
V. Administrative Requirements
A. Executive Orders 12866 and 13045
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.'' This rule is not subject to Executive Order 13045, entitled,
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
B. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
C. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This Federal action allows the Commonwealth of Massachusetts to
implement an equivalent regulation to replace pre-existing requirements
under Federal law and does not have tribal implications. Thus,
Executive Order 13175 does not apply to this rule.
D. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This action simply allows
Massachusetts to implement equivalent alternative requirements to
replace a Federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act. Thus, Executive Order 13132 does not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq. generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the
[[Page 58342]]
Administrative Procedure Act or any other statute 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
entities with jurisdiction over populations of less than 50,000. 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 allows the state to implement and
enforce equivalent requirements in place of the Federal requirements
that EPA 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 allows Massachusetts to implement equivalent
alternative requirements to replace pre-existing requirements under
Federal 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. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
action does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
I. 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 November 15, 2002. 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
Environmental protection, Air pollution control, Administrative
practice and procedure, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and record keeping
requirements.
Authority: This action is issued under the authority of section
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.
Dated: August 13, 2002.
Robert W. Varney,
Regional Administrator, EPA-New England.
40 CFR part 63 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)(4) to read as
follows:
Sec. 63.14 Incorporations by reference.
* * * * *
(d) * * *
(4) Massachusetts Regulations Applicable to Hazardous Air
Pollutants (July 2002). Incorporation By Reference approved for Sec.
63.99(a)(21)(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 adding paragraph (a)(21) to read as
follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(21) Massachusetts.
(i) [Reserved]
(ii) Affected area sources within Massachusetts must comply with
the Massachusetts Regulations Applicable to Hazardous Air Pollutants
(incorporated by reference as specified in Sec. 63.14) as described in
paragraph (a)(21)(ii)(A) of this section:
(A) The material incorporated in the Massachusetts Department of
Environmental Protection 310 CMR 72.6 and 310 CMR 70.01 pertaining to
dry cleaning facilities in the Commonwealth of Massachusetts
jurisdiction, and has been approved under the procedures in Sec. 63.93
to be implemented and enforced in place of the Federal NESHAPs for
Perchloroethylene Dry Cleaning Facilities (subpart M of this part) for
area sources only, as defined in Sec. 63.320(h).
(B) [Reserved]
[FR Doc. 02-23257 Filed 9-13-02; 8:45 am]
BILLING CODE 6560-50-P