[Federal Register: December 1, 2004 (Volume 69, Number 230)]
[Rules and Regulations]
[Page 69823-69826]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de04-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R10-OAR-2004-OR-0001; FRL-7839-5]
Approval and Promulgation of Air Quality Implementation Plans;
Oregon; Removal of Perchloroethylene Dry Cleaning Systems Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
Oregon State Implementation Plan and repeal rules which are no longer
required by the Clean Air Act. The revision consists of the repeal of
Oregon's control technology guidelines for perchloroethylene (perc) dry
cleaning systems and related definitions and provisions. Perc is a
solvent commonly used in dry cleaning, maskant operations, and
degreasing operations. In 1996, EPA excluded perc from the Federal
definition of volatile organic compounds for the purpose of preparing
state implementation plans to attain the national ambient air quality
standards for ozone under title I of the Clean Air Act. Emissions from
perc dry cleaners continue to be regulated as hazardous air pollutants
under the National Emissions Standards for Hazardous Air Pollutants.
DATES: This direct final rule will be effective January 31, 2005,
without further notice, unless EPA receives adverse comments by January
3, 2005. 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.
ADDRESSES: Submit your comments, identified by Docket ID No. R10-OAR-
2004-OR-0001, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
Mail: Colleen Huck, Office of Air, Waste and Toxics, AWT-
107 EPA, Region 10, 1200 Sixth Ave., Seattle, Washington 98101.
Hand Delivery: Colleen Huck, Office of Air, Waste and
Toxics, AWT-107, 9th Floor, EPA, Region 10, 1200 Sixth Ave., Seattle,
Washington 98101. Such deliveries are only accepted during normal hours
of operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. R10-OAR-2004-
OR-0001. 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.epa.gov/edocket, 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 information that you
consider to be CBI or otherwise protected through EDOCKET,
regulations.gov or e-mail. The EPA EDOCKET and the Federal
regulations.gov Web site are ``anonymous access'' systems, 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 EDOCKET or 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
[[Page 69824]]
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.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, such as 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 EDOCKET or in hard
copy at EPA, Region 10, Office of Air, Waste and Toxics, 1200 Sixth
Avenue, Seattle, Washington, from 8 a.m. to 4:30 p.m. Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Colleen Huck at telephone number:
(206) 553-1770, e-mail address: Huck.Colleen@epa.gov; or Donna Deneen
at telephone number: (206) 553-6706, e-mail address:
Deneen.Donna@epa.gov, fax number: (206) 553-0110, or the above EPA,
Region 10 address.
SUPPLEMENTARY INFORMATION:
I. Background
In 1996, EPA excluded perc from the Federal definition of volatile
organic compounds (VOC) for the purpose of preparing state
implementation plans (SIPs) to attain the national ambient air quality
standards (NAAQS) for ozone under title I of the Clean Air Act. See 61
FR 4588 (February 7, 1996). The basis for EPA's decision was that perc
has negligible photochemical reactivity and that removing perc from the
definition of VOC would result in a more accurate assessment of ozone
formation potential and assist States in avoiding exceedances of the
ozone health standard. 61 FR at 4588. EPA noted that perc would
continue to be regulated as a hazardous air pollutant under section 112
of the Clean Air Act and the National Emission Standard for Hazardous
Air Pollutants (NESHAPs), such as the NESHAP for Perchloroethylene Air
Emission Standards for Dry Cleaning Facilities, 40 CFR part 63, subpart
M. 61 FR at 4588.
EPA specifically stated that, as a result of the change in
definition of VOC, EPA's perc dry cleaning control technology guideline
no longer has the legal status of a control technology guideline for
ozone control and States are no longer required to have rules based on
EPA's perc dry cleaning control technology guideline. 61 FR at 4590.
EPA also stated that it would no longer enforce measures controlling
perc as part of a federally-approved ozone SIP. 61 FR at 4590. EPA
emphasized, however, that if a state had taken reduction credit for
measures controlling perc as part of an ozone control plan, the state
would need to submit new reduction measures as necessary to account for
the loss of those reduction credits. 61 FR at 4590.
In response to the exclusion of perc from the definition of VOC in
the Federal Clean Air Act, the State of Oregon, Division of
Environmental Quality (ODEQ) revised its rules to make Oregon's
definition of VOC consistent with the Federal definition. EPA
previously approved this change to the definition of VOC as revision to
the Oregon SIP. See 63 FR 24935 (May 6, 1998). On December 7, 2001, in
response to the change in the Federal and state definition of VOC, ODEQ
repealed its control technology guideline for perc dry cleaning systems
contained in Oregon Administrative Rules (OAR) 340-232-0240,
Perchloroethylene Dry Cleaning. ODEQ also repealed the related
definitions and provisions in OAR chapter 340, Division 232. ODEQ
submitted this repeal of its control technology guideline for perc dry
cleaning systems to EPA as a formal SIP submission on December 2, 2002.
As part of its submittal, ODEQ showed that it had not taken any credit
for emission reductions associated with perc in any of its attainment
or maintenance plans. ODEQ also noted that it had adopted by reference
the Federal NESHAP for Perchloroethylene Air Emission Standards for Dry
Cleaning Facilities, 40 CFR part 63, subpart M (perc dry cleaning
NESHAP), and had in fact expanded the universe of sources subject to
the perc dry cleaning NESHAP as a matter of State law. See OAR 340-244-
0220(3) (Federal Regulations Adopted by Reference). This makes the
regulation of perc dry cleaners in Oregon more stringent than Federal
law requires.
II. This Action
EPA is approving revisions to OAR chapter 340, Division 232, which
removes requirements for perc dry cleaning systems, as well as related
definitions and provisions, from the Oregon SIP. As discussed above, as
a result of EPA's change to the definition of VOC, there is no Federal
requirement to regulate perc as part of a State's ozone control
strategy. ODEQ's rule for perc in OAR 340-232-0240 was based on EPA's
control technology guideline for perc dry cleaners and is therefore no
longer required. ODEQ has demonstrated that it has not taken any
reduction credits for measures controlling perc as part of any of its
ozone attainment or maintenance plans. ODEQ therefore does not need to
submit any replacement reduction measures in connection with the
removal of the perc dry cleaning rules from its SIP.
As discussed above, although emissions from perc dry cleaners will
no longer be regulated in Oregon for ozone control, such emissions will
continue to be regulated in Oregon as hazardous air pollutants under
the Federal perc dry cleaning NESHAP, which ODEQ has adopted as a
matter of State law for an expanded universe of sources. See OAR 340-
244-0220(3). Maintaining the SIP rules for perc is not needed for ozone
control and would be largely duplicative of these NESHAP requirements.
For these reasons, EPA is approving the repeal of the perc dry cleaning
rule and the related definitions and provisions in OAR chapter 340,
Division 232 from the Oregon SIP.
III. Oregon Notice Provision
ORS 468.126, which remains unchanged since EPA last approved
Oregon's SIP, prohibits ODEQ from imposing a penalty for violation of
an air, water or solid waste permit unless the source has been provided
five days' advanced written notice of the violation and has not come
into compliance or submitted a compliance schedule within that five-day
period. By its terms, the statute does not apply to Oregon's Title V
program or to any program if application of the notice provision would
disqualify the program from Federal delegation. Oregon has previously
confirmed that, because application of the notice provision would
preclude EPA approval of the Oregon SIP, no advance notice is required
for violation of SIP requirements.
IV. Scope of EPA Approval
Oregon has not demonstrated authority to implement and enforce the
Oregon Administrative Rules within ``Indian Country'' as defined in 18
U.S.C. 1151. ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way
[[Page 69825]]
running through the reservation, (2) all dependent Indian communities
within the borders of the United States, whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a State, and (3) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same. Under this definition, EPA treats as reservations
trust lands validly set aside for the use of a Tribe even if the trust
lands have not been formally designated as a reservation. Therefore,
this SIP approval does not extend to ``Indian Country'' in Oregon. See
CAA sections 110(a)(2)(A) (SIP shall include enforceable emission
limits), 110(a)(2)(E)(i) (State must have adequate authority under
State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall
include enforceable emission limits).
V. Direct Final Action
EPA is publishing this action without a prior proposal because EPA
views this as a noncontroversial amendment and anticipates no adverse
comments. In the proposed rules section of this Federal Register
publication, however, EPA is publishing a separate document that will
serve as the proposal to approve the SIP revision should relevant
adverse comments be filed. This direct final rule is effective on
January 31, 2005 without further notice, unless EPA receives adverse
comment by January 3, 2005. If adverse comment is received, EPA will
publish a timely withdrawal of the direct final rule in the Federal
Register and inform the public that the rule did 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 action. Any parties interested in commenting
must do so at this time. Please note that if EPA receives adverse
comment on an amendment, paragraph, or section of this rule, EPA may
adopt as final those provisions of the rule that are not the subject of
an adverse comment.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves State law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under State law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65
FR 67249, November 6, 2000). This action also does not have Federalism
implications because it does 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 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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).
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 January 31, 2005. 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 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: October 29, 2004.
Richard Albright,
Acting Regional Administrator, Region 10.
0
Chapter I, title 40 of the Code of Federal Regulations is amended as
follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart MM--Oregon
0
2. Section 52.1970 is amended in paragraph (c)(139) by removing the
number ``232-0240'' and by adding paragraph (c)(143) to read as
follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
[[Page 69826]]
(143) On December 2, 2002, the Oregon Department of Environmental
Quality submitted a SIP revision to repeal the Perchloroethylene Dry
Cleaning rule and revise related parts of the Introduction and
Definitions sections of Division 232.
(i) Incorporation by reference.
(A) The following sections of the Oregon Administrative Rules 340:
232-0010 and 232-0030, as effective October 14, 1999.
[FR Doc. 04-26476 Filed 11-30-04; 8:45 am]
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