[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Rules and Regulations]
[Pages 61037-61043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27820]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-R01-OAR-2009-0031; A-1-FRL-8974-5]
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'') and
federal regulations promulgated thereunder, the Massachusetts
Department of Environmental Protection (``MassDEP'') submitted a
request for approval to implement and enforce the amended 310 CMR 70.00
Environmental Results Program (``ERP'') Certification and the amended
310 CMR 7.26(10)-(16) Perchloroethylene (``Perc'' or ``PCE'') Air
Emissions Standards for Dry Cleaning Facilities (together referred to
as the ``amended Dry Cleaner ERP'') as a partial substitution for the
amended National Emissions Standards for Hazardous Air Pollutants for
Perchloroethylene Dry Cleaning Facilities (``Dry Cleaning NESHAP''), as
it applies to area sources. EPA has reviewed this request and has
determined that the amended Dry Cleaner ERP satisfies the requirements
necessary for partial substitution approval. Thus, EPA is hereby
granting MassDEP the authority to implement and enforce its amended Dry
Cleaner ERP in place of the Dry Cleaning NESHAP for area sources, but
EPA is retaining its authority with respect to major source dry
cleaners and dry cleaners installed in a residence between December 21,
2005 and July 13, 2006. This approval makes the amended Dry Cleaner ERP
federally enforceable.
DATES: This direct final rule will be effective January 22, 2010,
unless EPA receives adverse comments by December 23, 2009. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect. The incorporation by reference of certain
publications listed in the rule is approved by the Director of the
Federal Register as of January 22, 2010.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
[[Page 61038]]
R01-OAR-2009-0031 by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (617) 918-0653.
4. Mail: ``EPA-R01-OAR-2009-0031'', Ida McDonnell, U.S.
Environmental Protection Agency, EPA New England Regional Office, One
Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023.
5. Hand Delivery or Courier. Deliver your comments to: Ida
McDonnell, Acting Manager, Air Permits, Toxics and Indoor Programs
Unit, Office of Ecosystem Protection, U.S. Environmental Protection
Agency, EPA New England Regional Office, One Congress Street, 11th
floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted
during the Regional Office's normal hours of operation. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2009-0031. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (``CBI'') or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. EPA will forward copies of all submitted
comments to the Massachusetts Department of Environmental Protection.
Docket: All documents in the electronic docket are listed in the
http:[sol][sol]www.regulations.gov index. Although listed in the index,
some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA
requests that if at all possible, you contact the contact listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding legal holidays.
In addition, copies of the State submittal are also available for
public inspection during normal business hours, by appointment at the
Massachusetts Department of Environmental Protection, One Winter
Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and
Indoor Programs Unit, Office of Ecosystem Protection, U.S.
Environmental Protection Agency, EPA New England Regional Office, One
Congress Street, Suite 1100 (CAP), Boston, MA 02114-2023, telephone
number (617) 918-1656, fax number (617) 918-0656, e-mail
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Organization of this document. The following outline is provided to
aid in locating information in this preamble.
I. Background and Purpose
II. What Requirements Must a State Rule Meet To Substitute for a
Section 112 Rule?
III. How Will EPA Determine Equivalency for State Alternative NESHAP
Requirements?
IV. What Significant Changes Did EPA Make to the Dry Cleaning NESHAP
and How Did MassDEP Address Those Changes?
A. What Definitions Were Added to the NESHAP and the Amended Dry
Cleaner ERP?
B. What Control Requirements Were Added for New Dry Cleaners
Installed After December 21, 2005?
C. What Requirements Were Added for Dry Cleaners Installed in a
Building With a Residence After December 21, 2005?
D. What Requirements Were Added for Transfer Machines?
E. What Monitoring Requirements Were Added?
F. How Did the Reporting Requirements Change?
V. What Is EPA's Action Regarding MassDEP's Dry Cleaner ERP?
VI. Final Action
VII. Judicial Review
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in
Minority Populations and Low-Income Populations
K. Congressional Review Act
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), as amended by 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 National
Emissions Standards for Hazardous Air Pollutants). Upon approval by
EPA, the state agency is authorized to implement and enforce its rule
in place of the Federal rule.
EPA promulgated the Dry Cleaning NESHAP on September 22, 1993. See
58 FR 49354 (codified at 40 CFR part 63, subpart M, ``National
Perchloroethylene Air Emission Standards for Dry Cleaning
Facilities''). On October 24, 2001, EPA received a request from MassDEP
to implement and enforce its Perchloroethylene Air Emissions Standards
for Dry Cleaning Facilities, 310 CMR 7.26(10)-(16), and Environmental
Results Program (ERP)
[[Page 61039]]
Certification, 310 CMR 70.01-04 (together referred to as the ``Dry
Cleaner ERP'') in lieu of the Dry Cleaning NESHAP rule for area
sources. On September 16, 2002, EPA approved Massachusetts' Dry Cleaner
ERP in place of the Dry Cleaning NESHAP for area sources pursuant to
the provisions of 40 CFR part 63, subpart E. See 67 FR 58339.
Under 40 CFR 63.91(e)(3), if EPA amends or otherwise revises a
promulgated CAA section 112 rule or requirement in a way that increases
its stringency, EPA will notify any state with a delegated alternative
of the need to revise its equivalency demonstration. EPA will consult
with the state to set a time frame for the state to submit a revised
equivalency demonstration. EPA will then review and approve the revised
equivalency demonstration according to the procedures in 40 CFR part
63, subpart E. More stringent NESHAP amendments to a delegated
alternative apply to all sources until EPA determines that the approved
or revised alternative requirements are equivalent to the more
stringent amendments.
On July 27, 2006, September 21, 2006 and July 11, 2008, EPA
promulgated amendments to the Dry Cleaning NESHAP. See 71 FR 42724, 71
FR 55280 and 73 FR 39871. In a letter dated October 25, 2006, EPA
notified MassDEP that EPA had published more stringent amendments to
the Dry Cleaning NESHAP and of the need for MassDEP to revise its
equivalency demonstration. Accordingly, MassDEP revised 310 CMR
7.26(10)-(16) with an effective date of September 5, 2008. In addition,
MassDEP revised 310 CMR 70.00 with an effective date of December 28,
2007. On November 17, 2008, MassDEP submitted a request for approval to
implement and enforce the amended Dry Cleaner ERP in place of the
amended Dry Cleaning NESHAP. On January 13, 2009, EPA determined that
Massachusetts' submittal was complete. As explained below, EPA has
reviewed the State's submission and determined that the amended Dry
Cleaner ERP is no less stringent than the amended Dry Cleaning NESHAP,
as applied to area sources.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
II. What Requirements Must a State Rule Meet To Substitute for a
Section 112 Rule?
A state must demonstrate that it has satisfied the general
delegation/approval criteria contained in 40 CFR 63.91(d). The process
of providing ``up-front approval'' assures that a state has met the
delegation criteria in Section 112(l)(5) of the CAA (as codified in 40
CFR 63.91(d)), that is, that the state has demonstrated that its NESHAP
program contains adequate authorities to assure compliance with each
applicable Federal requirement, adequate resources for implementation,
and an expeditious compliance schedule. Under 40 CFR 63.91(d)(3),
interim or final Title V program approval satisfies the criteria set
forth in 40 CFR 63.91(d) for ``up-front approval.'' On September 28,
2001, EPA promulgated full approval of MassDEP's operating permits
program with an effective date of November 27, 2001. See 66 FR 49541.
Accordingly, MassDEP has satisfied the up-front approval criteria of 40
CFR 63.91(d).
Additionally, the ``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 at 62274. A rule will be approved if EPA finds: (1)
The state and local rules are ``no less stringent'' than the
corresponding Federal regulations, (2) the state and local government
has adequate authorities to implement and enforce the rules, and (3)
the schedule for implementation and compliance is ``no less stringent''
than the deadlines established in the otherwise applicable Federal
rule. 40 CFR 63.93(b). After reviewing MassDEP's amended partial rule
substitution request and equivalency demonstration for the Dry Cleaning
NESHAP as it applies to area sources, EPA has determined this request
meets all the requirements necessary for approval under CAA section
112(l) and 40 CFR 63.91 and 63.93.
III. How Will EPA Determine Equivalency for State Alternative NESHAP
Requirements?
Before we can approve alternative requirements in place of a part
63 emissions standard, the state must submit to us detailed information
that demonstrates how the alternative requirements compare with the
otherwise applicable Federal standard. Under 40 CFR part 63 subpart E,
the level of control in the state rule must be at least as stringent as
the level of control in the Federal rule. In addition, in order for
equivalency to be granted, the level of control and compliance and
enforcement measures (``MRR'') of the state rule, taken together as a
whole, must be equivalent to the level of control and MRR of the
Federal rule, taken together as a whole. A detailed discussion of how
EPA will determine equivalency for state alternative NESHAP
requirements is provided in the preamble to EPA's proposed Subpart E
amendments on January 12, 1999. See 64 FR 1908.
IV. What Significant Changes Did EPA Make to the Dry Cleaning NESHAP
and How Did MassDEP Address Those Changes?
The following discussion explains the changes that EPA made to the
Dry Cleaning NESHAP and how MassDEP addressed these changes in the
amended Dry Cleaner ERP, as well as any additional changes MassDEP made
to the Dry Cleaner ERP. The September 16, 2002, Federal Register Notice
initially approving the Dry Cleaner ERP as a substitute for the Dry
Cleaning NESHAP contains a more detailed discussion of the differences
between the Dry Cleaning NESHAP and the Dry Cleaner ERP. See 67 FR
58339.
A. What Definitions Were Added to the NESHAP and the Amended Dry
Cleaner ERP?
The Dry Cleaning NESHAP added definitions for halogenated
hydrocarbon detector, perchloroethylene gas analyzer, residence, vapor
leak, and vapor barrier. The amended Dry Cleaner ERP adopted each of
these definitions with the exception of vapor barrier. MassDEP has not
adopted the definition of vapor barrier into its amended Dry Cleaner
ERP because the requirement is not necessary. Specifically, MassDEP's
amended Dry Cleaner ERP specifies that dry cleaning machines installed
in a building with a residence between December 21, 2005 and July 13,
2006 (i.e., those facilities which must utilize a vapor barrier under
the Dry Cleaning NESHAP) are not within the scope of the State's rule
and thus remain subject to the Dry Cleaning NESHAP.
B. What Control Requirements Were Added for New Dry Cleaners Installed
After December 21, 2005?
The Dry Cleaning NESHAP requires new area source dry cleaners which
commence construction after December 21, 2005, to be equipped with a
refrigerated condenser and a non-vented carbon adsorber. The carbon
adsorber must be desorbed in accordance with the manufacturer's
instruction. See 40 CFR 63.322(o)(2). The amended Dry
[[Page 61040]]
Cleaner ERP added these control requirements for new dry cleaners
installed after December 21, 2005, and added the requirement for the
carbon adsorber to be desorbed in accordance with the manufacturer's
instructions. See 310 CMR 7.26(12)(a)(3) and 7.26(14)(c). The amended
Dry Cleaner ERP is accordingly no less stringent than the corresponding
federal rule.
C. What Requirements Were Added for Dry Cleaners Installed in a
Building with Residence After December 21, 2005?
The Dry Cleaning NESHAP requires a vapor barrier and other control
requirements for dry cleaners installed in a building with a residence
between December 21, 2005 and July 13, 2006. The Dry Cleaning NESHAP
requires that such dry cleaners eliminate perc emissions by July 27,
2009. See 40 CFR 63.322(o)(5)(i)-(ii) and 63.320(b)(2)(ii). MassDEP's
amended Dry Cleaner ERP specifies that such dry cleaners are not within
the scope of the State's rule and thus remain subject to the Dry
Cleaning NESHAP. See 310 CMR 7.26(10)(d). Therefore, EPA is retaining
these requirements.
The Dry Cleaning NESHAP does not allow any dry cleaning systems to
be installed in a building with a residence as of July 13, 2006. See 40
CFR 63.322(o)(4) and 63.320(b)(3). The Dry Cleaner ERP prohibits the
installation of a dry cleaner co-located with a residence as of
September 5, 2008, and requires all dry cleaners co-located with a
residence installed after July 13, 2006, to cease operation on
September 5, 2008. See 310 CMR 7.26(12)(a)(5) and (7). The Dry Cleaner
ERP could not prohibit installation of a dry cleaner co-located with a
residence prior to the final date of the amendments on September 5,
2008. Therefore, the Dry Cleaner ERP required all dry cleaners co-
located with a residence as of July 13, 2006 to cease operation on
September 5, 2008. Such dry cleaners were already effectively
prohibited from installing in a building with a residence as of July
13, 2006 under the Dry Cleaning NESHAP. In addition, the amended Dry
Cleaner ERP prohibits the installation of a co-located dry cleaner as
of November 5, 2008. See 310 CMR 7.26(12)(a)(4). A co-located dry
cleaner includes dry cleaning facilities located in a building with a
residence, licensed day care center, a health care facility, a prison,
an elementary school, a middle or high school or a pre-school, a senior
center or a youth center. Therefore, MassDEP's Dry Cleaner ERP is more
stringent than the Dry Cleaning NESHAP because it prohibits all co-
located dry cleaners as of November 5, 2008, in addition to prohibiting
co-located dry cleaners in a building with a residence as of July 13,
2006.
The Dry Cleaning NESHAP requires all dry cleaners located in a
building with a residence to eliminate perc emissions by December 21,
2020. See 40 CFR 63.322(o)(5)(ii). The Dry Cleaner ERP requires all co-
located dry cleaners to cease operation on or before December 21, 2020.
See 310 CMR 7.26(12)(a)(6). MassDEP's Dry Cleaner ERP is more stringent
than the Dry Cleaning NESHAP because this provision applies to all co-
located facilities in addition to dry cleaners installed in a building
with a residence.
D. What Requirements Were Added for Transfer Machines?
The Dry Cleaning NESHAP effectively prohibits all transfer machines
as of July 28, 2008, by requiring the owner or operator to eliminate
emissions of perc during the transfer of articles between the washer
and the dryer(s) or reclaimer(s). See 40 CFR 63.320(b)(1)) and
63.322(o)(4). The amended Dry Cleaner ERP adds this requirement by
requiring the owner or operator to cease operation of their transfer
machine on or before September 5, 2008. Facilities in Massachusetts
were effectively prohibited from operating transfer machines under the
Dry Cleaning NESHAP as of July 28, 2008 and, as of September 5, 2008,
were prohibited under the Dry Cleaner ERP. Therefore, upon the
effective date of EPA's approval of the Dry Cleaner ERP, facilities in
Massachusetts will continue to be prohibited from operating transfer
machines. See 310 CMR 7.26(12)(b)(4).
E. What Monitoring Requirements Were Added?
The Dry Cleaning NESHAP added a requirement for area source dry
cleaners to conduct leak checks monthly using a halogenated hydrocarbon
detector or a PCE gas analyzer that is operated according to the
manufacturer's recommendation. See 40 CFR 63.322(o)(1). A halogenated
solvent hydrocarbon detector means a portable device capable of
detecting vapor concentrations of PCE of 25 parts per million (``ppm'')
by volume and indicating a concentration of 25 ppm by volume or greater
by emitting an audible or visual signal that varies as the
concentration changes. A PCE gas analyzer means a flame ionization
detector, photoionization detector, or infrared analyzer capable of
detecting vapor concentrations of PCE of 25 ppm by volume. The amended
Dry Cleaner ERP requires vapor leak checks weekly with a halogenated
hydrocarbon detector, a PCE gas analyzer, or an alternate method that
is capable of detecting vapor concentrations of PCE of 25 ppm by volume
and approved by MassDEP. See 310 CMR 7.26(13)(i). Since the Dry Cleaner
ERP specifies that any alternative method approved by MassDEP must be
capable of detecting vapor concentrations of PCE of 25 ppm by volume,
EPA does not view this as affecting the stringency of the Dry Cleaner
ERP. Furthermore, the amended Dry Cleaner ERP is more stringent than
the Dry Cleaning NESHAP because it requires leak checks with a detector
or analyzer to be conducted weekly.
The Dry Cleaning NESHAP added a requirement that allows facilities
using a refrigerated condenser to monitor the refrigeration system high
pressure and low pressure as an alternative to monitoring for the
temperature of the perc vapor gas vapor-stream. See 40 CFR
63.323(a)(1). Massachusetts added this requirement and is therefore
equivalent to the Dry Cleaning NESHAP. See 310 CMR 7.26(14)(a).
F. How Did the Reporting Requirements Change?
The Dry Cleaning NESHAP added a requirement for facilities to
submit a notification of compliance status by July 28, 2008. See 40 CFR
63.324(f). The Dry Cleaner ERP required a similar compliance status
report, including the information required by the NESHAP, to be
submitted by September 15, 2008. See 310 CMR 7.26(15)(b). In addition,
the Dry Cleaner ERP requires facilities to submit an annual compliance
certification. The Dry Cleaning NESHAP does not require an annual
compliance certification. Massachusetts amended its ERP regulation to
allow less frequent reporting than annually if Massachusetts specifies
less frequent reporting based on specific criteria in its ERP
regulation. See 310 CMR 70.03(f) and (h). Specifically, MassDEP
identifies the following criteria to allow less frequent reporting: (1)
The size, composition and activities of the ERP sector; (2) the
quantity and types of (toxic) materials used and potential wastes,
emissions and discharges of the ERP sector; (3) the degree of
compliance with established regulatory requirements by the ERP sector;
(4) the degree of control over the environmental and public health
aspects of activities by the ERP sector; and (5) any other relevant
information regarding the environmental consequences of the periodic
compliance certifications and return to compliance response rates and
results within the ERP sector. Though the Dry
[[Page 61041]]
Cleaning NESHAP does not have an annual reporting requirement, EPA
considered the annual compliance certification requirement in approving
the Dry Cleaner ERP in 2002. Nonetheless, the amended Dry Cleaner ERP
is more stringent than the Dry Cleaning NESHAP in a number of areas. As
discussed above, the amended Dry Cleaner ERP prohibits co-located dry
cleaners as of November 5, 2008 and requires weekly monitoring with a
detector. In addition, as discussed in EPA's September 16, 2002
approval, the Dry Cleaning NESHAP applies partial exemptions from
control requirements based on perc consumption, while the amended Dry
Cleaner ERP, however, does not allow for partial exemptions and applies
control requirements for all perc dry cleaners. Additionally, the ERP
is a multimedia compliance program which requires self certification
with air, water and hazardous waste requirements while providing
extensive compliance assistance to dry cleaners through training
programs and workbooks and includes inspections and enforcement. EPA
evaluated the air portion of the ERP for dry cleaning facilities in
approving the Dry Cleaner ERP in 2002. Although the amended Dry Cleaner
ERP compliance report was allowed to be submitted later than the Dry
Cleaning NESHAP notification of compliance status report and although
MassDEP may now allow less frequent compliance certifications than
annually, EPA has determined that given the more stringent requirements
of the amended Dry Cleaner ERP, the requirements of the amended Dry
Cleaner ERP are, taken as a whole, more stringent than the requirements
of the Dry Cleaning NESHAP.
V. What Is EPA's Action Regarding MassDEP's Amended Dry Cleaner ERP?
After reviewing MassDEP's request for approval of the amended Dry
Cleaner ERP, EPA has determined that Massachusetts' regulations meet
all of the requirements necessary for partial rule substitution under
section 112(l) of the CAA and 40 CFR 63.91 and 63.93. The amended Dry
Cleaner ERP, taken as a whole, is no less stringent than the Dry
Cleaning NESHAP, as applied to area sources. Therefore, EPA hereby
approves Massachusetts' request to implement and enforce 310 CMR 70.00
Environmental Results Program, as amended, and 310 CMR 7.26(10)-(16)
Perchloroethylene Air Emissions Standards for Dry Cleaning Facilities,
as amended, in place of the Dry Cleaning NESHAP for area sources in
Massachusetts. The EPA retains the requirements for major source dry
cleaners and dry cleaners installed in a residence between December 21,
2005 and July 13, 2006. As of the effective date of this action, the
amended Dry Cleaner ERP is enforceable by EPA and by citizens under the
CAA. Although MassDEP has primary responsibility to implement and
enforce the amended Dry Cleaner ERP, EPA retains the authority to
enforce any requirement of the rule upon its approval under CAA 112.
See CAA section 112(l)(7).
VI. Final Action
The EPA is approving the Massachusetts Environmental Results
Program, 310 CMR 70.00, as amended, and the Perchloroethylene Air
Emissions Standards for Dry Cleaning Facilities, 310 CMR 7.26(10)-(16),
as amended, as a partial rule substitution for the Dry Cleaning NESHAP
for area sources in Massachusetts. The EPA retains the requirements for
major source dry cleaners and dry cleaners installed in a residence
between December 21, 2005, and July 13, 2006.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the rule revision should
relevant adverse comments be filed. This rule will be effective January
22, 2010 without further notice unless the Agency receives relevant
adverse comments by December 23, 2009.
If the EPA receives such comments, then EPA will publish a notice
withdrawing the direct final rule and informing the public that the
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. The EPA will not institute a second comment period on the
proposed rule. All parties interested in commenting on the proposed
rule should do so at this time. If no such comments are received, the
public is advised that this rule will be effective on January 22, 2010
and no further action will be taken on the proposed rule. Please note
that if EPA receives adverse comment on an amendment, paragraph, or
section of this rule and if that provision may be severed from the
remainder of the rule, EPA may adopt as final those provisions of the
rule that are not the subject of an adverse comment.
VII. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available only by filing a petition for review in
the United States Court of Appeals for the appropriate circuit by
January 22, 2010. Under CAA section 307(b)(2), the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by EPA to enforce these
requirements.
Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for us to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to the EPA that it was impracticable to raise such objection within
[the period for public comment] or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule.'' Any person seeking to make such
a demonstration to us should submit a Petition for Reconsideration to
the Regional Administrator, U.S. Environmental Protection Agency, EPA
New England Regional Office, One Congress Street, 11th floor, (RAA),
Boston, MA 02114-2023, with a copy to the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Regional
Counsel, U.S. Environmental Protection Agency, EPA New England Regional
Office, One Congress Street, 11th floor, (RAA), Boston, MA 02114-2023.
Filing a petition for reconsideration by the Administrator of this
final rule under CAA section 307(d)(7)(B) does not affect the finality
of this rule for the purposes of judicial review, does not extend the
time within which a petition for judicial review may be filed, and does
not postpone the effectiveness of the rule.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action approves equivalent state requirements in place of
Federal requirements under CAA section 112(l). This type of action is
exempt from review under EO 12866.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This action
[[Page 61042]]
allows the Commonwealth of Massachusetts to implement equivalent state
requirements in lieu of pre-existing Federal requirements as applied
only to area source dry cleaners. Thus, this action does not require
any person to submit information.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the 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 organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business that meets the Small
Business Administration size standards found at 13 CFR 121.201 (coin
operated laundries and drycleaners as defined by NAICS code 812310 with
annual receipts of less than $7.0 million or drycleaning and laundry
services (except coin operated) as defined by NAICS code 812320 with
annual receipts of less than $4.5 million); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not have a significant impact on a substantial number of
small entities because approvals under CAA section 112(l) and 40 CFR
63.93 do not create any new requirements. Such approvals simply allow a
state to implement and enforce equivalent requirements in place of the
Federal requirements that EPA is already imposing.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. This action allows the
Commonwealth of Massachusetts to implement equivalent state
requirements in lieu of pre-existing Federal requirements as applied
only to area source dry cleaners. Thus, this action does not
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action 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 action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
allows the Commonwealth of Massachusetts to implement equivalent state
requirements in lieu of pre-existing Federal requirements as applied
only to area source dry cleaners. This action 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. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it approves a
state program such that it allows the Commonwealth of Massachusetts to
implement equivalent state requirements in lieu of pre-existing Federal
requirements as applied only to area source dry cleaners.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. 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. 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 involved technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This action allows the Commonwealth of Massachusetts to
implement equivalent state
[[Page 61043]]
requirements in lieu of pre-existing Federal requirements as applied
only to area source dry cleaners. As explained above, the state
requirements contain standards that are at least equivalent to the
Federal standards; thus, we anticipate only a positive impact from this
action.
K. Congressional Review Act
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. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 22, 2010.
List of Subjects in 40 CFR Part 63
Environmental protection, 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. 7412.
Dated: October 15, 2009.
Ira W. Leighton,
Acting Regional Administrator, EPA-New England.
0
40 CFR part 63 is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
2. Section 63.14 is amended by revising paragraph (d) introductory text
and paragraph (d)(4) to read as follows:
Sec. 63.14 Incorporation by reference.
* * * * *
(d) State and Local Requirements. The following materials listed
below are available at the Air and Radiation Docket and Information
Center, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone
number (202) 566-1745.
* * * * *
(4) Massachusetts Department of Environmental Protection
regulations at 310 CMR 7.26(10)-(16), Air Pollution Control, effective
as of September 5, 2008, corrected March 6, 2009, and 310 CMR 70.00,
Environmental Results Program Certification, effective as of December
28, 2007. Incorporation By Reference approved for Sec.
63.99(a)(22)(ii) of subpart E of this part.
* * * * *
Subpart E--[Amended]
3. Section 63.99 is amended by revising paragraph (a)(22) to read
as follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(22) 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)(22)(ii)(A) of this section:
(A) The material incorporated into the Massachusetts Department of
Environmental Protection regulations at 310 CMR 7.26(10)-(16), Air
Pollution Control, effective as of September 5, 2008, corrected March
6, 2009, and 310 CMR 70.00, Environmental Results Program
Certification, effective as of December 28, 2007, pertaining to dry
cleaning facilities in the Commonwealth of Massachusetts jurisdiction,
and approved under the procedures in Sec. 63.93 to be implemented and
enforced in place of the Federal NESHAP for Perchloroethylene Dry
Cleaning Facilities (subpart M of this part), effective as of July 11,
2008, for area sources only, as defined in Sec. 63.320(h).
(1) Authorities not delegated.
(i) Massachusetts is not delegated the Administrator's authority to
implement and enforce Massachusetts regulations at 310 CMR 7.26(10)-
(16) and 310 CMR 70.00, in lieu of those provisions of subpart M of
this part which apply to major sources, as defined in Sec. 63.320(g).
(ii) Massachusetts is not delegated the Administrator's authority
to implement and enforce Massachusetts regulations at 310 CMR 7.26(10)-
(16) and 310 CMR 70.00, in lieu of those provisions of subpart M of
this part which apply to dry cleaning systems installed in a building
with a residence between December 21, 2005 and July 13, 2006, as
defined in Sec. 63.320(b)(2)(ii) and Sec. 63.322(o)(5)(i)-(ii).
(B) [Reserved]
* * * * *
[FR Doc. E9-27820 Filed 11-20-09; 8:45 am]
BILLING CODE 6560-50-P