Proposed Rule2023-00112
Approval of the Clean Air Act, Authority for Hazardous Air Pollutants: Asbestos Management and Control; State of New Hampshire Department of Environmental Services
Primary source
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Published
January 12, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve the amended "Env-Sw 2100: Management and Control of Asbestos Sites Not Operated after July 9, 1981," effective September 1, 2018 ("amended Asbestos Disposal Site Rule") in place of the National Emission Standard for Asbestos ("Asbestos NESHAP") provisions for inactive waste disposal sites not operated after July 9, 1981 submitted by the State of New Hampshire. The intended effect of this action is to propose approval of the amended Asbestos Disposal Site Rule in place of the Asbestos NESHAP provisions for inactive waste disposal sites not operated after July 9, 1981. This approval would make the New Hampshire Department of Environmental Services' (NH DES) amended Asbestos Disposal Site Rule federally enforceable. This action is being taken under the Clean Air Act.
Full Text
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<title>Federal Register, Volume 88 Issue 8 (Thursday, January 12, 2023)</title>
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[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Proposed Rules]
[Pages 2057-2061]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00112]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[EPA-R01-OAR-2022-0496; FRL-10522-01-R1]
Approval of the Clean Air Act, Authority for Hazardous Air
Pollutants: Asbestos Management and Control; State of New Hampshire
Department of Environmental Services
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the amended ``Env-Sw 2100: Management and Control of Asbestos
Sites Not Operated after July 9, 1981,'' effective September 1, 2018
(``amended Asbestos Disposal Site Rule'') in place of the National
Emission Standard for Asbestos (``Asbestos NESHAP'') provisions for
inactive waste disposal sites not operated after July 9, 1981 submitted
by the State of New Hampshire. The intended effect of this action is to
propose approval of the amended Asbestos Disposal Site Rule in place of
the Asbestos NESHAP provisions for inactive waste disposal sites not
operated after July 9, 1981. This approval would make the New Hampshire
Department of Environmental Services' (NH DES) amended Asbestos
Disposal Site Rule federally enforceable. This action is being taken
under the Clean Air Act.
DATES: Written comments must be received on or before February 13,
2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2022-0496 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#9bf5eef6e9f2f8f3b5f7f2faf6dbfeebfab5fcf4ed"><span class="__cf_email__" data-cfemail="8be5fee6f9e2e8e3a5e7e2eae6cbeefbeaa5ece4fd">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting
[[Page 2058]]
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. For either manner of submission, the EPA may publish
any comment received to its public docket. Do not submit electronically
any information you consider to be Confidential Business Information
(CBI) or other information whose disclosure 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, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
For 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>. Publicly available docket materials are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the U.S. Environmental Protection Agency, EPA
Region 1 Regional Office, Air and Radiation Division, 5 Post Office
Square--Suite 100, 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 a.m. to 4:30 p.m.,
excluding legal holidays and facility closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Liam Numrich, Air Permits, Toxics, and
Indoor Programs Branch, U.S. Environmental Protection Agency, EPA
Region 1, 5 Post Office Square-Suite 100, Boston, MA 02109-3912, tel:
(617) 918-1307, email: <a href="/cdn-cgi/l/email-protection#244a5149564d474c0a484d4549644154450a434b52"><span class="__cf_email__" data-cfemail="f698839b849f959ed89a9f979bb6938697d8919980">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
II. What requirements must a state rule meet to substitute or adjust
a section 112 rule?
III. How will EPA determine equivalency for state alternative NESHAP
requirements?
IV. Why did NH DES previously seek a partial rule substitution?
V. What changes did NH make to its Asbestos Disposal Site Rule?
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
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 Emission
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.
The Environmental Protection Agency (EPA) first promulgated
standards to regulate asbestos emissions on April 6, 1973 (see 38 FR
8826). These standards have since been amended several times and re-
codified in 40 CFR part 61, subpart M, ``National Emission Standard for
Asbestos'' (Asbestos NESHAP). On June 28, 2002, NH DES submitted a
partial rule substitution request to implement and enforce its
regulation Env-Wm 3900 titled ``Management and Control of Asbestos
Disposal Sites Not Operated After July 9, 1981'' (Asbestos Disposal
Site Rule) in lieu of some sections of the Asbestos NESHAP as they
apply to certain inactive waste disposal sites. On May 28, 2003, EPA
approved the Asbestos Disposal Site Rule as a partial rule substitution
for the provisions of the Asbestos NESHAP at 40 CFR 61.151, which apply
to inactive waste disposal sites not operated after July 9, 1981. (See
68 FR 31611). On January 28, 2010, NH DES requested approval of its
readopted and recodified rules pertaining to inactive waste disposal
sites in New Hampshire. On January 11, 2013, EPA approved New
Hampshire's readopted and re-codified rules in Env-Sw 2100 titled
``Management and Control of Asbestos Sites Not Operated After July 9,
1981,'' effective as of February 16, 2010. (See 78 FR 2333).
Under 40 CFR 63.91(e)(2), within 90 days of any amendment, repeal,
or revision of any state rule approved as an alternative to a Federal
requirement, the state must provide EPA with a copy of the revised
authorities and request approval of the revised rule. NH DES enacted
amendments to Env-Sw 2100 in 2018. The purpose of these amendments is
to more effectively address large quantities of asbestos waste buried
throughout Nashua and Hudson, NH on residential, commercial, and
industrial properties. On December 29, 2021, NH DES requested EPA
approval to implement its amended rules in Env-Sw 2100 as a partial
substitute for 40 CFR 61.01 through 40 CFR 61.18 (subpart A, General
Provisions) and 40 CFR 61.151 (subpart M provisions applicable to
inactive asbestos disposal sites). NH DES now seeks to have the 2010
substituted rule formally replaced with the 2018 amended Asbestos
Disposal Site rule. While we acknowledge receiving New Hampshire's
submission of the revised rule after the 90-day deadline, pursuant to
40 CFR 63.91(e)(2)(iii), until such time as EPA approves or withdraws
approval of a revised rule, the previously approved rule remains
federally enforceable and the revision is not federally enforceable.
Therefore, EPA believes that it is appropriate to act on the state's
submission even though the state did not request approval of the
revised rule within 90 days. As explained below, EPA has reviewed the
State's submission and determined that the amended Asbestos Disposal
Site Rule is no less stringent than the provisions of the Asbestos
NESHAP. EPA is therefore proposing to approve NH DES's requests to
implement and enforce its amended rules in Env-Sw 2100, ``Management
and Control of Asbestos Disposal Sites Not Operated After July 9,
1981,'' effective September 1, 2018 (``amended Asbestos Disposal Site
Rule'') as a partial rule substitution for the same provisions of 40
CFR 61.01 through 40 CFR 61.18 and 40 CFR 61.151 that were substituted
by the predecessor rule Env-Wm 3900 on May 28, 2003 and amended in
2010.
II. What requirements must a State rule meet to substitute or adjust 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 24,
2001, EPA promulgated full approval of NH DES's operating permits
program. See
[[Page 2059]]
66 FR 48806. Accordingly, NH DES 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. A
rule will be approved as a substitute if the state or local government
demonstrates: (1) the state and local rules contain applicability
criteria that are no less stringent than the corresponding Federal
rule; (2) the state and local rule requires levels of control and
compliance and enforcement measures that would achieve emission
reductions from each affected source that are no less stringent than
would result from the otherwise applicable Federal standard; (3) the
schedule for implementation and compliance is consistent with the
deadlines established in the otherwise applicable Federal rule; and (4)
the state requirements include additional compliance and enforcement
measures as specified in 40 CFR 63.93(b)(4). See 40 CFR 63.93(b).
A state may also seek, and EPA may approve, a partial delegation of
the EPA's authorities. CAA 112(l)(1). To obtain a partial rule
substitution, the state's submittal must meet the otherwise applicable
requirements in 40 CFR 63.91 and 63.93, and be separable from the
portions of the program that the state is not seeking rule substitution
for. See 64 FR 1889.
III. How will EPA determine equivalency for State Alternative NESHAP
Requirements?
Before we can approve alternative requirements in place of a part
61 or 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 for a rule substitution, the level
of control and compliance and enforcement measures (monitoring,
reporting and recordkeeping (``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 under the rule substitution
option 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. Why did NH DES previously seek a partial rule substitution?
In its initial request for a partial rule substitution on June 28,
2002, NH DES stated that virtually all known inactive waste disposal
sites not operated after July 9, 1981, are concentrated in two
neighboring communities, Nashua and Hudson. Due to dumping practices by
a former asbestos manufacturing plant, over 250 sites are known to
exist in these two areas on properties that are actively in use for
residential, commercial, industrial, recreational and public purposes.
The asbestos manufacturing plant operated in Nashua disposed of its
asbestos containing waste by delivering it to the property owners for
use as fill (i.e., in low-lying areas) until the late 1970's. The
material exists in and around schoolyards, roadways, parking lots, and
shopping centers as well as within wooded areas, along riverbanks, and
within conservation areas. In its initial request, NH DES also stated
that the requirements of 40 CFR 61.151, the portion of the Asbestos
NESHAP that applies to inactive waste disposal sites, were established
with traditional industrial/commercial dumpsites in mind, rather than
dumpsites spread throughout a developed and active community setting.
Consequently, certain aspects of Sec. 61.151 are not well suited for
inactive waste disposal sites not operated after July 9, 1981, in New
Hampshire.
For example, in its initial request, NH DES stated that Sec.
61.151 of the Asbestos NESHAP requires unfenced/non-posted sites to be
covered with a minimum of six inches of soil if vegetated, or a minimum
of 24 inches of soil if not vegetated. If the site is not fenced and
posted, other viable capping materials can be used but only with EPA
approval pursuant to 40 CFR 61.151(c). This means that neither asphalt
nor concrete can be used as a surface treatment without EPA approval.
In these communities, asbestos waste is currently buried beneath
parking lots, driveways, and sidewalks. NH DES substituted performance-
based specifications for the ``one-size-fits-all'' cover specifications
in 40 CFR 61.151.
As another example, 40 CFR 61.151(d) requires the owner/operator of
an inactive waste disposal site to supply notice at least 45 days in
advance of excavating or disturbing any asbestos-containing waste at
the site. In its initial request, NH DES explained that due to the
built-up nature of these inactive waste disposal sites, the need to
disturb asbestos on short notice is a common occurrence and needs to be
addressed. For instance, asbestos waste often must be disturbed to
replace broken water lines as well as to repair or replace cover
materials exposed due to storm water runoff. NH DES's substituted rules
reduce the length of the notice period but also require all persons who
disturb asbestos waste to be qualified and to employ specific safe work
practices and engineering controls.
In its initial request, NH DES also noted that the general
provisions of 40 CFR part 61, subpart A generally apply to new
stationary sources that are not yet constructed or to existing
stationary sources that are actively operating. Inactive waste disposal
sites are already constructed and are no longer operating or allowed to
emit pollutants. Therefore, NH DES's rule includes general requirements
that are more relevant to inactive waste disposal sites. For example,
the alternative rules address site monitoring, maintenance, and
reporting requirements in a manner appropriate to closed nonoperating
sources that by their nature cannot be constructed or modified to
increase their emissions.
V. What changes did NH make to its asbestos disposal site rule?
Effective as of September 1, 2018, NH DES amended its rules in Env-
Sw 2100, ``Management and Control of Asbestos Disposal Sites Not
Operated After July 9, 1981.'' The following provides an overview of
the changes NH DES made to its amended Asbestos Disposal Site Rule.
Detailed side-by-side comparison tables of NH DES's amended Asbestos
Disposal Site Rule compared to the Asbestos NESHAP and the General
Provisions are included in the docket identified in the ADDRESSES
section of this Federal Register. See Table 1 and Table 2 of NH DES's
December 29, 2021, submission.
In section Env-Sw 2102 of the amended Asbestos Disposal Site Rule,
definitions were added and amended to more clearly explain the roles
and responsibilities including Certified Asbestos Disposal Site (ADS)
Workers, Contractors, Qualified ADS Contractors, and Qualified
Individuals. The definition of ``Utility Project'' was expanded to
include projects that occur in roadways and railroad right of ways, so
that those projects involving multiple property owners can be handled
similarly to utility projects that also often involve multiple property
owners. In addition, NH DES moved the definitions of Asbestos, Asbestos
Disposal Site, and Contractor to
[[Page 2060]]
Appendix C: Statutory Definitions of Env-Sw 2100.
In Env-Sw 2103, Waivers, application criteria were updated and
clarified regarding who can apply for a waiver, signature requirements,
criteria for granting and denying waiver requests, and decision-making
procedures and requirements. Language in Env-Sw 2103.05(e) was added to
provide that NH DES may grant a waiver only after the requestor obtains
approval from EPA for the alternative control method pursuant to 40 CFR
60.151(c).
In Env-Sw 2104, General Site Management Requirements, multiple
requirements for capping systems and owner responsibilities were
clarified. This includes design and maintenance requirements for
capping systems, how the requirements of these rules relate to other
local, state, and federal requirements, owner responsibility to protect
capping systems and assure asbestos is not disturbed except in
controlled situations, and owner responsibility to keep and disclose
clearance determination records produced by qualified individuals when
projects are completed.
In Env-Sw 2105, Work Practices and Engineering Controls, it was
clarified that the rules in this part apply to all projects involving
the disturbance of asbestos, even those that do not require the work to
be done by licensed/certified persons. New and amended terms were
incorporated from the definitions section to clarify rule
implementation including, for example, that work plans must be prepared
and signed by qualified individuals, that clearance determinations must
be performed and signed by certified qualified individuals, that air
monitoring results can be summarized in the project completion report,
and that lab data is allowed to be placed in the owner records versus
submitted to NH DES. The amendments also clarified signature
requirements for project completion reports and clearance
determinations, project notice requirements, as well as roles and
responsibilities for notification, reporting, and clearance
determinations. In addition, hyperlinks were added to provide
information on documents that were incorporated by reference into the
rule.
In Env-Sw 2106, Work Plans for Major Non-Emergency Projects, rule
implementation was clarified by incorporating new and amended terms
from the definitions section. In addition, the requirements for and the
process of submitting work plans for approval were clarified, and the
process for updating approved generic work plans was clarified.
In Env-Sw 2107, Suspension and Revocation, the amendments clarified
and expanded the good cause provision for suspension or revocation of
any approval issued pursuant to Chapter Env-Sw 2100.
After reviewing NH DES's amended Asbestos Disposal Site Rule and
equivalency demonstrations for the Asbestos NESHAP inactive waste
disposal site provisions, as the rules apply to sources in New
Hampshire for inactive waste disposal sites not operated after July 9,
1981, EPA has determined that the amended Asbestos Disposal Site Rule
is no less stringent than the provisions of the Asbestos NESHAP and
these requests meet all the requirements necessary for approval under
CAA section 112(l) and 40 CFR 63.91 and 63.93.
VI. Proposed Action
EPA is proposing to grant NH DES the authority to implement the
revised Env-Sw 2100, ``Management and Control of Asbestos Disposal
Sites Not Operated After July 9, 1981,'' effective September 1, 2018,
in place of the Asbestos NESHAP provisions for inactive waste disposal
sites not operated after July 9, 1981. Upon approval the rule will be
federally enforceable. EPA is soliciting public comments on the issues
discussed in this document or on other relevant matters. These comments
will be considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to this proposed rule by following the instructions listed in
the ADDRESSES section of this Federal Register.
VII. Incorporation by Reference
In this proposed rule, the EPA is proposing to include in a final
EPA rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference New Hampshire Regulations at Env-Sw 2100:
``Management and Control of Asbestos Disposal Sites Not Operated after
July 9, 1981,'' effective September 1, 2018, as described in section VI
of this proposed rule. The EPA has made, and will continue to make,
these documents generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and at the EPA Region 1 Office (please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
VIII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator has the authority to
approve section 112(l) submissions that comply with the provisions of
the Act and applicable Federal regulations. In reviewing section 112(l)
submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the Clean Air Act. Accordingly, this proposed
action merely approves state law as meeting Federal requirements and
does not impose additional requirements 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 Clean Air Act; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the 112(l) submission is not approved to apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian
[[Page 2061]]
country, the 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).
List of Subjects
40 CFR Part 61
Environmental protection, Air pollution control, Administrative
practice and procedure, Arsenic, Asbestos, Benzene, Beryllium,
Hazardous substances, Incorporation by reference, Intergovernmental
relations, Mercury, Radioactive materials, Radon, Reporting and
recordkeeping requirements, Uranium, Vinyl chloride.
40 CFR Part 63
Environmental protection, Air pollution control, Administrative
practice and procedure, Business and industry, Carbon oxides, Hazardous
substances, Incorporation by reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: January 3, 2023.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2023-00112 Filed 1-11-23; 8:45 am]
BILLING CODE 6560-50-P
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