Rule2022-26343
National Emissions Standards for Hazardous Air Pollutants; Delegation of Authority to Washington
Primary source
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Published
December 5, 2022
Effective
January 4, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving 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.
Full Text
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<title>Federal Register, Volume 87 Issue 232 (Monday, December 5, 2022)</title>
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[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Rules and Regulations]
[Pages 74319-74322]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26343]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[EPA-R10-OAR-2022-0374; FRL-9881-02-R10]
National Emissions Standards for Hazardous Air Pollutants;
Delegation of Authority to Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving 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.
DATES: This final rule is effective January 4, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R10-OAR-2022-0374. All documents in the docket are
listed on the <a href="http://www.regulations.gov">www.regulations.gov</a> website. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information or other information the disclosure of which is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet
[[Page 74320]]
and will be publicly available only in hard copy form. Publicly
available docket materials are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the person listed in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
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#4b26282a3e272e32652122260b2e3b2a652c243d"><span class="__cf_email__" data-cfemail="81ece2e0f4ede4f8afebe8ecc1e4f1e0afe6eef7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Final Action
III. Statutory and Executive Order Reviews
I. Background
Effective July 5, 2006, the EPA granted WDOH partial approval and
delegation to implement and enforce the radionuclides National Emission
Standards for Hazardous Air Pollutants 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).
On February 3, 2012, WDOH submitted a request for full approval and
delegation of the Radionuclides NESHAPs and submitted updates to its
request in letters dated April 10, 2017, August 11, 2017, September 18,
2017, and February 25, 2022.
The EPA proposed to approve WDOH's request for full delegation of
the Radionuclides NESHAP on July 21, 2022 (87 FR 43464). The reasons
for proposed approval are included in the proposed action and will not
be restated here. The public comment period for the proposed action
closed on August 22, 2022, and we received two comments. Both
commenters supported the EPA's decision to grant full delegation of
authority to implement and enforce the Radionuclide NESHAPs to WDOH in
Washington State. One commenter stated that the delegation authorizes
WDOH to make ``minor changes to this rule.'' The EPA notes that the
authority to make minor changes is limited to those changes discussed
in the July 21, 2022, proposal (87 FR 43464 at page 43465) and
described in Section II of this preamble. The second commenter noted
that WDOH will be able to streamline further delegations through letter
of approvals resulting in efficiencies between the agencies. As
discussed in the proposal, this action includes approval of a
streamlined mechanism by which WDOH may 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. Final Action
A. Authorities Included From This Approval and Delegation
Except as provided in Section II.B of this preamble, the EPA is
granting WDOH full approval and delegation of authority to implement
and enforce the Radionuclides NESHAPs as in effect on July 1, 2021.
Included in this full approval and delegation of the Radionuclide
NESHAPs is the authority to approve: (1) ``Minor changes to
monitoring'' \1\ 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); (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 Section II.B. of this preamble and not identified in any
delegated subpart of the Radionuclides NESHAPs, including 40 CFR part
61, subpart A, as authorities that cannot be delegated shall be
considered delegated. See 67 FR 3106, at page 3109, footnote 3 (January
23, 2002).
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\1\ For purposes of this paragraph, the terms in quotations have
the meaning assigned to them in 40 CFR 63.90.
\2\ For purposes of this Table 1, the terms in quotations have
the meaning assigned to them in 40 CFR 63.90.
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B. Authorities Excluded From This Approval and Delegation
The EPA is not delegating to WDOH 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.
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'' \2\
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.
[[Page 74321]]
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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C. Other Implications of This Action
Under this full delegation and approval:
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 II.B. of this preamble). For those authorities
noted in Section II.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 II.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. 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. 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 Clean Air Act (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. WDOH 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. WDOH may receive full approval and delegation of newly
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.
III. 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 final 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 action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under
[[Page 74322]]
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 full approval and delegation of the Radionuclides NESHAPs does
not apply to sources or activities located in Indian country, as
defined in 18 U.S.C. 1151.\3\ 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, the 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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\3\ 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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This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 3, 2023. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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 61
Environmental protection, Air pollution control, Intergovernmental
relations, Radionuclides, Reporting and recordkeeping requirements.
Dated: November 29, 2022.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2022-26343 Filed 12-2-22; 8:45 am]
BILLING CODE 6560-50-P
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