Proposed Rule2022-15553
National Emissions Standards for Hazardous Air Pollutants; Delegation of Authority to Washington
Primary source
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Published
July 21, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to fully approve a delegation request submitted by the Washington State Department of Health (WDOH) for full delegation of authority to implement and enforce the National Emission Standards for Hazardous Air Pollutants for radionuclide air emissions. The EPA granted WDOH partial delegation of authority to implement and enforce these standards effective July 5, 2006. The WDOH has addressed the partial approval issues, has updated its adoption of the applicable Federal standards to address all current Federal requirements, and has submitted to the EPA a request for full delegation of these standards.
Full Text
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<title>Federal Register, Volume 87 Issue 139 (Thursday, July 21, 2022)</title>
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[Federal Register Volume 87, Number 139 (Thursday, July 21, 2022)]
[Proposed Rules]
[Pages 43464-43467]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15553]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[EPA-R10-OAR-2022-0374; FRL-9881-01-R10]
National Emissions Standards for Hazardous Air Pollutants;
Delegation of Authority to Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
fully approve a delegation request submitted by the Washington State
Department of Health (WDOH) for full delegation of authority to
implement and enforce the National Emission Standards for Hazardous Air
Pollutants for radionuclide air emissions. The EPA granted WDOH partial
delegation of authority to implement and enforce these standards
effective July 5, 2006. The WDOH has addressed the partial approval
issues, has updated its adoption of the applicable Federal standards to
address all current Federal requirements, and has submitted to the EPA
a request for full delegation of these standards.
DATES: Comments must be received on or before August 22, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2022-0374, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The EPA may
publish any comment received to its public docket. Do not
electronically submit any information you consider to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Multimedia submissions (audio, video, etc.)
must be accompanied by a written comment. The written comment is
considered the official comment and should include discussion of all
points you wish to make. The EPA will generally not consider comments
or comment contents located outside of the primary submission (i.e., on
the web, cloud, or other file sharing system). For additional
submission methods, the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Jim McAuley, EPA Region 10, 1200 Sixth
Avenue, Suite 155, Seattle, WA 98101, at (206) 553-1987 or
<a href="/cdn-cgi/l/email-protection#1f727c7e6a737a66317576725f7a6f7e31787069"><span class="__cf_email__" data-cfemail="e9848a889c858c90c7838084a98c9988c78e869f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. WDOH's Delegation Request
III. EPA Action
A. What authorities are included?
B. What authorities are excluded?
IV. Implications
V. Summary of Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
Section 112(l) of the Clean Air Act (CAA) and the Code of Federal
Regulations (CFR) at 40 CFR part 63, subpart E, authorize the EPA to
delegate to State and local agencies authority to implement and enforce
the National Emission Standards for Hazardous Air Pollutants (NESHAPs)
if specified requirements are met. The NESHAPs are codified in 40 CFR
parts 61 and 63. One option for such delegation is ``straight
delegation,'' under which a State or local agency requests delegation
based on Federal rules adopted unchanged into State or local rules.
Criteria for
[[Page 43465]]
straight delegations are set forth in 40 CFR 63.91(d). There are two
basic requirements for straight delegation. First, the requesting
agency must show it has adequate authority and resources to implement
and enforce the specified NESHAP. This criterion must be met for
straight delegation as well as for all other types of delegation under
CAA section 112(l). Second, for straight delegation, the requesting
agency must show that it has adopted the Federal NESHAPs for which it
is requesting delegation unchanged into State or local law.
Effective July 5, 2006, the EPA granted WDOH partial approval and
delegation to implement and enforce the radionuclides NESHAPs in the
State of Washington, specifically, 40 CFR part 61, subparts A, B, H, I,
K, Q, R, T, and W (Radionuclides NESHAPs) as in effect on July 1, 2004
(71 FR 32276, June 5, 2006). The EPA granted WDOH partial rather than
full approval and delegation of the Radionuclides NESHAPs because WDOH
did not at that time have express authority to recover criminal fines
for certain actions, as required by 40 CFR 70.11(a)(3)(iii) and 40 CFR
63.91(d)(3)(i)(A). The EPA also approved a streamlined mechanism by
which WDOH could receive partial approval and delegation of newly
promulgated or revised Radionuclides NESHAPs as provided in 40 CFR
63.91(a)(1) and (d)(2).
II. WDOH's Delegation Request
The WDOH submitted a request for full approval and delegation of
the Radionuclides NESHAPs on February 3, 2012. The WDOH also submitted
additional updates to its request in letters dated April 10, 2017,
August 11, 2017, September 18, 2016 and February 25, 2022. In its
request, WDOH explained that it has since adopted regulations that,
together with its existing criminal enforcement authority, address the
basis for the EPA granting partial rather than full approval and
delegation in 2006. Specifically, WDOH adopted regulations prohibiting
the making of a false material statement, representation, or
certification in any required submission. See Washington Administrative
Code (WAC) 246-247-080(12). The WDOH also adopted regulations
prohibiting any person from rendering inaccurate any required
monitoring device or method. See WAC 246-247-075(14). The WDOH's
submission included a letter from the Washington Attorney General's
office confirming that WDOH now has criminal authorities meeting the
requirements of 40 CFR 70.11.
In addition, WDOH's submittal showed that it has updated its
adoption by reference of the Radionuclides NESHAPs, without change, to
include the Federal rules in effect as of July 1, 2021. See WAC 246-
247-035. The WDOH also committed to undertaking updates to its adoption
by reference of the Radionuclides NESHAPs as needed to ensure they
remain consistent with the Federal regulations.
The WDOH's submission also included an updated agreement with the
Washington Department of Ecology under which WDOH is required to make
entries into EPA's Integrated Compliance Information System for Air
(ICIS-Air).
III. EPA Action
A. What authorities are included?
Based on WDOH's request for full approval and delegation, the EPA
has determined that WDOH has addressed the partial approval issue
discussed in the EPA's 2006 partial approval and delegation of the
Radionuclides NESHAPs, and that WDOH continues to meet the other
requirements for straight delegation of the Radionuclides NESHAPs.
First, together with the authority to pursue criminal penalties for
knowing violations provided by the Revised Code of Washington (RCW)
70A.15.3130 and 70A.15.3150,\1\ WDOH now has all the criminal
authorities required by 40 CFR 70.11(a)(3)(iii) and 63.91(d)(3)(i).\2\
Second, WDOH has updated its regulations, specifically, its
incorporation by reference of the Radionuclides NESHAPs as of July 1,
2021, so that it can fully implement and enforce the Radionuclides
NESHAPs as currently in effect. See WAC 246-247-035. Finally, WDOH has
confirmed that it continues to meet all other criteria of 40 CFR 63.91
that provided the basis for its 2006 partial delegation. See 40 CFR
63.91(a)(1) and (d)(2).
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\1\ Previously codified at RCW 70.94.422 and 70.94.430.
\2\ The EPA has previously determined that virtually identical
provisions meet the requirements of 40 CFR 70.11(a)(3)(iii) with
respect to the Washington Department of Ecology. See 66 FR 16, pp.
17-18 (January 2, 2001).
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Therefore, except as provided in Section III.B. of this preamble,
the EPA is granting full approval and delegation to WDOH of authority
to implement and enforce the Radionuclides NESHAPs as in effect on July
1, 2021. Radionuclides NESHAPs that are promulgated or revised
substantively after that date are not delegated to WDOH. These remain
the responsibility of the EPA.
Included in this full approval and delegation is the authority to
approve:
1. ``Minor changes to monitoring'' \3\ including the use of the
specified monitoring requirements and procedures with minor changes in
methodology as described in 40 CFR 61.14(g)(1)(i);
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\3\ For purposes of this paragraph, the terms in quotations have
the meaning assigned to them in 40 CFR 63.90.
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2. ``Intermediate changes to monitoring;''
3. ``Minor changes to recordkeeping/reporting;''
4. ``Minor changes in test methods,'' including the use of a
reference method with minor changes in methodology as described in 40
CFR 61.13(h)(1)(i); and
5. Waiver of the requirement for emission testing because the owner
or operator of a source has demonstrated by other means to WDOH's
satisfaction that the source is in compliance with the standard as
described in 40 CFR 61.13(h)(1)(iii).
Any authorities not addressed in this letter and not identified in
any delegated subpart of the Radionuclides NESHAPs as authorities that
cannot be delegated shall be considered delegated. See 67 FR 3106,
January 23, 2002, p. 3109, footnote 3.
In previously granting partial approval and delegation, we noted
that WDOH does, as a matter of State law, have additional regulations
and requirements that sources of radionuclide air emissions must meet.
As discussed in more detail below, those additional authorities and
requirements are not part of this full approval and delegation.
B. What authorities are excluded?
The EPA is not delegating authorities under 40 CFR part 61 that
specifically indicate they cannot be delegated, that require rulemaking
to implement, that affect the stringency of the standard, equivalency
determinations, or where national oversight is the only way to ensure
national consistency. The following Table 1 identifies specific
authorities within 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and
W, that the EPA is excluding from this delegation.
[[Page 43466]]
Table 1--Part 61 Authorities Excluded From Approval and Delegation
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Section Authorities
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61.04(b).......................... Waiver of recordkeeping.
61.04(c).......................... Delegations to state and local
agencies.
61.05(c).......................... Waivers/exemptions.
61.11............................. Waiver of compliance.
61.12(d).......................... Approval of alternative means of
emission limitation.
61.13(h)(1)(ii)................... Approval of alternatives to test
methods (except as provided in 40
CFR 61.13(h)(1)(i)).
61.14(d).......................... Combined effluents.
61.14(g)(1)(ii)................... Approval of alternatives to
monitoring that do not qualify as
``Minor changes to monitoring,''
``Intermediate changes to
monitoring,'' or ``Minor changes to
recordkeeping/reporting.\4\
61.16............................. Availability of information.
61.23(b).......................... Subpart B--Radon Emissions from
Underground Uranium Mines
Alternative; compliance
demonstration to COMPLY-R.
61.93(b)(2)(iii), (c)(2)(iii)..... Subpart H--Emissions of
Radionuclides Other than Radon from
DOE Facilities.
61.107(b)(2)(iii), (d)(2)(iii).... Subpart I--Radionuclide Emissions
from Federal Facilities Other than
NRC Licensees and Not Covered by
Subpart H.
61.125(a)......................... Subpart K--Radionuclide Emissions
from Elemental Phosphorus Plants.
61.206(c), (d), and (e)........... Subpart R--Radon Emission from
Phosphogypsum Stacks.
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IV. Implications
As with the previous partial delegation and approval and consistent
with other delegations to the State of Washington, under this full
delegation and approval:
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\4\ For purposes of this Table, the terms in quotations have the
meaning assigned to them in 40 CFR 63.90.
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1. Sources in Washington subject to the delegated Radionuclides
NESHAPs should continue to direct questions and compliance issues to
WDOH except with respect to those authorities that are not delegated
(those noted in Section III.B. of this preamble). For those authorities
noted in Section III.B of this preamble, affected sources should
continue to work with the EPA as their primary contact and submit
materials directly to the EPA, copying WDOH on all submittals,
questions, and requests.
2. Sources subject to the Radionuclides NESHAPs continue to be
required to send required notifications, reports and requests to WDOH
for WDOH's action and to provide copies to the EPA. For authorities
that are excluded from this delegation (see Section III.B of this
preamble), sources should continue to send required notifications,
reports, and requests to the EPA and to provide copies to WDOH.
3. Any records or reports provided to or otherwise obtained by WDOH
relating to the Radionuclides NESHAPs should be made available to the
EPA upon request. In accordance with 40 CFR 61.16 and 63.15, the
availability to the public of information provided to or otherwise
obtained by the EPA in connection with this delegation shall be
governed by 40 CFR part 2. The EPA may request notifications and
reports from owners/operators and/or WDOH.
4. The WDOH must continue to maintain a record of all approved
alternatives to all monitoring, testing, recordkeeping, and reporting
requirements and provide this list of alternatives to the EPA at least
semi-annually, or at a more frequent basis if requested by the EPA. The
EPA may audit the WDOH-approved alternatives and disapprove any that it
determines are inappropriate, after discussion with WDOH. If changes
are disapproved, WDOH must notify the source that it must revert to the
original applicable monitoring, testing, recordkeeping, and/or
reporting requirements. Also, in cases where the source does not
maintain the conditions which prompted the approval of the alternatives
to the monitoring testing, recordkeeping, and/or reporting
requirements, WDOH must require the source to revert to the original
monitoring, testing, recordkeeping, and reporting requirements, or more
stringent requirements, if justified.
5. The WDOH shall require affected facilities to use the methods
specified in 40 CFR part 61 in performing source tests pursuant to the
regulations. See 40 CFR 61.7.
6. Enforcement of these delegated Radionuclides NESHAPs in WDOH's
jurisdiction will be the primary responsibility of WDOH. Nevertheless,
the EPA may exercise its concurrent enforcement authority pursuant to
sections 112(l)(7) and 113 of the CAA and 40 CFR 63.90(d)(2) with
respect to sources which are subject to the Radionuclides NESHAPs.
7. Implementation and enforcement of the delegated NESHAP are
subject to the Environmental Performance Partnership Agreement between
the State of Washington and the EPA and its successor documents. The
Agreement defines roles and responsibilities, including timely and
appropriate enforcement response and the maintenance of ICIS-Air via
the Exchange Network. Your agency will ensure that all relevant source
notification and report information is entered as provided in the
Agreement into the specified EPA database system to meet your
recordkeeping/reporting requirements.
8. This full approval and delegation delegates to WDOH authority to
implement and enforce the Radionuclides NESHAPs, as in effect on July
1, 2021. Radionuclides NESHAPs that that are promulgated or revised
substantively after that date are not delegated to WDOH.
9. This approval and delegation does not extend to any additional
State standards or requirements, including other State standards or
requirements regulating radionuclide air emissions. Section 116 of the
CAA provides that, with some exceptions not applicable here, nothing in
the CAA precludes or denies the right of any State or political
subdivision thereof to adopt or enforce any standard or limitation
respecting emissions of air pollutants or any requirement respecting
control or abatement of air pollution so long as the State requirement
is not less stringent than a standard or limitation in effect under an
applicable implementation plan or under section 111 or 112 of the CAA.
Washington State standards that are more stringent than the
Radionuclides NESHAPs are enforceable as provided under State law, but
are not enforceable under the CAA or in any way part of this full
approval and delegation of the Radionuclides NESHAPs to WDOH.
10. The WDOH may receive full approval and delegation of newly
[[Page 43467]]
promulgated or revised Radionuclides NEHAPs by the following
streamlined process: (1) WDOH will send a letter to the EPA requesting
delegation for such new or revised Radionuclides NESHAPs which WDOH has
adopted by reference into Washington regulations, reference its
previous demonstration, and reaffirm that it still meets the criteria
for any full approval and delegation of the NESHAPs; (2) the EPA will
send a letter of response back to WDOH granting approval of the
delegation request (or explaining why the EPA cannot grant the
request), and publish notice of the EPA's approval in the Federal
Register; (3) WDOH does not need to send a response back to the EPA.
11. Although WDOH is not obligated to request or receive future
delegations of the Radionuclides NESHAPs, the EPA encourages WDOH, on
an annual basis if the Federal standards have changed, to revise its
rules to incorporate by reference newly promulgated or revised
Radionuclides NESHAPs and request updated delegation of those
standards.
V. Summary of Proposed Action
The EPA proposes to fully approve WDOH's request for approval and
delegation of authority to implement and enforce the Radionuclides
NESHAPs. Pursuant to the authority of section 112(l) of the CAA, this
approval is based on the EPA's finding that State law, regulations, and
agency resources meet the requirements for full straight program
approval and delegation of authority as specified in 40 CFR 63.91. The
purpose of this full approval and delegation is to acknowledge WDOH's
ability to implement a Radionuclides NESHAPs program within the State
of Washington (except with respect to Indian country, as discussed in
Section VI. of this preamble, and to continue the transfer of primary
implementation and enforcement responsibility for this program from the
EPA to WDOH. Although the EPA will look to WDOH as the lead for
implementing delegated Radionuclides NESHAPs for its sources, the EPA
retains authority under section 113 of the CAA to enforce any
applicable emission standard or requirement, if needed. With this
approval, WDOH may request newly promulgated or revised Radionuclides
NESHAPs by way of a streamlined process.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator has the authority to approve
NESHAP delegation requests that comply with CAA section 112(l) and
applicable Federal regulations. In reviewing NESHAP delegation
requests, the EPA's role is to approve State choices, provided that
they meet the criteria and objectives of the CAA and the EPA's
implementing regulations. Accordingly, this proposed action would
merely approve the State's request as meeting Federal requirements and
does not impose additional requirements under the CAA beyond those
imposed by State law. For that reason, this proposed action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practical and legally permissible methods,
under Executive Order 12898 (59 FR 7629, February 16, 1994).
This proposed full approval and delegation of the Radionuclides
NESHAPs would not apply to sources or activities located in Indian
country, as defined in 18 U.S.C. 1151.\5\ Consistent with previous
Federal program approvals or delegations, the EPA will continue to
implement the NESHAPs in Indian country in Washington because WDOH has
not adequately demonstrated authority over sources and activities
located within the exterior boundaries of Indian reservations and in
other areas of Indian country. In those areas of Indian country, this
proposed rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The
one exception is within the exterior boundaries of the Puyallup Indian
Reservation, also known as the 1873 Survey Area. Under the Puyallup
Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress
explicitly provided State and local agencies in Washington authority
over activities on non-trust lands within the 1873 Survey Area.
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\5\ Under this definition, the 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.
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List of Subjects in 40 CFR Part 61
Environmental protection, Air pollution control, Intergovernmental
relations, Radionuclides, Reporting and recordkeeping requirements.
Dated: July 15, 2022.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2022-15553 Filed 7-20-22; 8:45 am]
BILLING CODE 6560-50-P
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