Air programs; State authority delegations: New Hampshire,

[Federal Register: May 28, 2003 (Volume 68, Number 102)]

[Rules and Regulations]

[Page 31611-31615]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr28my03-9]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[FRL-7490-6]

Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981: State of New Hampshire Department of Environmental Services

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

[[Page 31612]]

SUMMARY: EPA is taking direct final action to approve New Hampshire Department of Environmental Services' (NHDES) request for partial rule substitution for inactive waste disposal sites pursuant to section 112(l) of the Clean Air Act (CAA).

DATES: This action will be effective July 28, 2003, unless EPA receives relevant adverse comments by June 27, 2003. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. The incorporation by reference of certain publications in this rule is approved by the Director of the Federal Register as of July 28, 2003.

ADDRESSES: Written comments should be mailed concurrently to the addresses below: Steven Rapp, Chief, Air Permits, Toxics, and Indoor Programs Unit (CAP), U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Boston, MA 02114 and Philip J. O'Brien, Ph.D., Director, Waste Management Division, New Hampshire Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095. Copies of the requests for approval are available for public inspection at EPA's Region I Office, Air Permits, Toxics, and Indoor Programs Unit, during normal business hours.

FOR FURTHER INFORMATION CONTACT: Ida McDonnell, Air Permits, Toxics, and Indoor Programs Unit, U.S. EPA Region I, One Congress St., Suite 1100 (CAP), Boston, MA 02114, (617) 918-1653, mcdonnell.ida@epa.gov. SUPPLEMENTARY INFORMATION:

This SUPPLEMENTARY INFORMATION is organized as follows:

1. Background and Purpose II. What Requirements Must a State Rule Meet To Substitute for a Section 112 Rule? III. Why is NH DES Seeking Partial Rule Substitution? IV. When Did the Authority To Implement and Enforce Section 112 Standards Become Effective in New Hampshire? V. Opportunities for Public Comments VI. Summary of EPA's Action VII. Statutory and Executive Order Reviews

1. Background and Purpose

   The Environmental Protection Agency (EPA) first promulgated standards to regulate asbestos emissions on April 6, 1973 (see 38 FR 8826), and added requirements for the control of asbestos emissions at inactive waste disposal sites on October 14, 1975 (see 40 FR 48299). 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 entitled ``Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981'' in lieu of some sections of the Asbestos NESHAP rule as they apply to certain inactive waste disposal sites. NH DES's request for approval was submitted pursuant to the provisions of 40 CFR part 63, subpart E and was found to be complete on July 30, 2002.

2. What Requirements Must a State Rule Meet To Substitute for a Section 112 Rule?

   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, when the State or local rules are determined to be no less stringent than the corresponding Federal rules 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 at 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 section 112 Federal rule (National Emission Standard for Hazardous Air Pollutants (NESHAP)). Upon approval, the State agency is given the authority to implement and enforce its rule in place of the NESHAP.

   Section 112(l)(5) of the Act requires that a State's NESHAP program contain adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. These are also requirements for an adequate operating permits program under 40 CFR part 70. On September 24, 2001, EPA promulgated full approval of the State's operating permits program as administered by NH DES (see 66 FR 48806). In addition, on May 16, 2001, EPA provided ``up-front'' approval of NH DES's request to implement and enforce alternative requirements in the form of title V permit terms and conditions for subpart S, ``National Emission Standards for Hazardous Air Pollutants from the Pulp and Paper Industry'' (Pulp and Paper MACT I), and subpart MM, ``National Emission Standards for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite and Stand-Alone Semichemical Pulp Mills'' (Pulp and Paper MACT II) (see 66 FR 27032). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals. NH DES has affirmed that it still meets the up-front approval criteria.

   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 62274). A rule will be approved if EPA finds: (1) The State or local rules are `no less stringent'' than the corresponding Federal regulations, (2) the State or 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. See 40 CFR 63.93(b). After reviewing NH DES's partial rule substitution request and equivalency demonstration for the Asbestos NESHAP as it applies to certain inactive waste disposal sites, 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.

3. Why Is NH DES Seeking Partial Rule Substitution?

   In New Hampshire, 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, and until the late 1970's disposed of its asbestos containing waste by delivering it to the property owners for use as fill (i.e., in low-lying areas). 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.

   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.

   [[Page 31613]]

   For example, 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. NHDES is substituting 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. 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. NHDES's proposed substitute 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 addition, 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, NHDES is proposing to substitute 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.

   NH DES is seeking partial rule substitution because its alternative rules apply only to a subset of the inactive waste disposal sites subject to 40 CFR 61.151, namely those inactive waste disposal sites not operating after July 9, 1981.

4. When Did the Authority To Implement and Enforce Section 112 Standards Become Effective in New Hampshire?

   On October 2, 1996, EPA approved New Hampshire's program under section 112(l)(5) and 40 CFR 63.91 for receiving delegation of section 112 standards that are unchanged from Federal standards as promulgated. This delegation mechanism only applied to part 70 sources (see 61 FR 51370). On May 9, 2002, the NH DES submitted a request to EPA to receive straight delegation of authority to implement and enforce NESHAPs and New Source Performance Standards (NSPSs) for both major and area sources under a new delegation mechanism. NH DES sought to take delegation of these standards by incorporating the standards into NH DES's regulations. On September 19, 2002, EPA approved this delegation mechanism (see 67 FR 59001). Among other standards, NH DES incorporated by reference the Asbestos NESHAP, with the exception of 40 CFR 61.151, standard for inactive waste disposal sites for asbestos mills and manufacturing and fabricating operations.

   NH DES did not request straight delegation of Sec. 61.151 because it had submitted a partial rule substitution pursuant to 40 CFR 63.93 for a portion of that rule. NH DES's request for rule substitution applies only to those inactive waste disposal sites not operating after July 9, 1981 which are subject to 40 CFR 61.151 (i.e., sites operated by certain asbestos mills, manufacturers, and fabricating facilities). NH DES's request seeks no change in delegation relative to inactive asbestos waste disposal sites operating after July 9, 1981 (i.e., NH DES will continue to regulate such facilities according to Sec. 61.151 standards).

5. Opportunities for Public Comments

   EPA views the approval of NH DES's request to use its regulation for inactive waste disposal sites as a partial rule substitute for applicable requirements in the Asbestos NESHAP as a noncontroversial action since the State program is in operation and is no less stringent than the Asbestos NESHAP. EPA anticipates no adverse comments. Therefore, EPA is publishing this direct final rule without prior proposal. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal for this action should relevant adverse comments be filed. This action will be effective July 28, 2003, without further notice, unless EPA receives relevant adverse comments by June 27, 2003.

   If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this 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. EPA will not institute a second comment period on this rule. Any parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective July 28, 2003, and no further action will be taken on the proposed rule.

6. Summary of EPA's Action

   After reviewing the request for approval of the NH DES's Administrative Rules for Management and Control of Asbestos Disposal Sites not operated after July 9, 1981, EPA has determined that this request meets all of the requirements necessary to qualify for partial rule substitution approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. EPA has determined that NH DES's asbestos rule is equivalent to or not less stringent than the Federal Asbestos NESHAP. Therefore, EPA hereby approves NH DES's rule to be used in place of the Federal Asbestos NESHAP, as it applies to those inactive waste disposal sites not operating after July 9, 1981, that are subject to 40 CFR 61.151. As of the effective date of this action, NH DES's asbestos rule is enforceable by the EPA and citizens under the CAA. Although NH DES has primary implementation and enforcement responsibility, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112.

7. Statutory and Executive Order Reviews

   1. Executive Order 12866: Regulatory Planning and Review

      The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.'' This rule is not subject to Executive Order 13045, entitled, ``Protection of Children from Environmental Health Risks and Safety Risks,'' because it is not an ``economically significant'' action under Executive Order 12866.

   2. 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.

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      Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

      An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

   3. Regulatory Flexibility Act

      The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq. 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 not-for-profit enterprises, and small governmental entities with jurisdiction over populations of less than 50,000. This final rule will not have a significant impact on a substantial number of small entities because approvals under 40 CFR 63.93 do not create any new requirements, but simply allows the State to implement and enforce equivalent requirements in place of the Federal requirements that EPA is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

   4. Unfunded Mandates Reform Act

      Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

      EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector.

      This Federal action allows New Hampshire to implement equivalent alternative requirements to replace pre-existing requirements under Federal law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

   5. Executive Order 13132: Federalism

      Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that 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.''

      This final rule 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 New Hampshire 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 rule.

   6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

      Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' ``Policies that have tribal implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.''

      This final rule does not have tribal implications. It 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. This Federal action allows the State of New Hampshire to implement an equivalent regulation to replace pre-existing requirements under Federal law and does not have tribal implications. Thus, Executive Order 13175 does not apply to this rule.

   7. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

      Protection of Children From Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be ``economically significant'' as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

      This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

   8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

      This rule is not subject to Executive Order 13211, ``Actions Concerning

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      Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

1. 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. The 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 involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

   10. 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. This rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

   11. Petitions for Judicial Review

       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 July 28, 2003. 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

       40 CFR Part 61

       Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

       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: April 15, 2003. Robert W. Varney, Regional Administrator, EPA New England.

       0 40 CFR parts 61 and 63 are amended as follows:

       PART 61--[AMENDED]

       0 1. The authority citation for part 61 continues to read as follows:

       Authority: 42 U.S.C. 7401, et seq.

       Subpart A--General Provisions

       0 2. Section 61.04 is amended by adding paragraphs (c)(1) to read as follows:

       Sec. 61.04 Address.

       * * * * *

       (c) * * *

       (1) Inactive waste disposal sites not operated after July 9, 1981 within the State of New Hampshire must comply with the New Hampshire Regulations Applicable To Hazardous Air Pollutants, March 2003. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the Air and Radiation Docket and Information Center, U.S. EPA, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC. You may examine this material at the above EPA office or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. * * * * *

       PART 63--[AMENDED]

       0 3. The authority citation for part 63 continues to read as follows:

       Authority: 42 U.S.C. 7401, et seq.

       Subpart A--General Provisions

       0 4. Section 63.14 is amended by adding paragraph (d)(5) to read as follows:

       Sec. 63.14 Incorporation by reference.

       * * * * *

       (d) * * *

       (5) New Hampshire Regulations Applicable to Hazardous Air Pollutants, March, 2003. Incorporation by Reference approved for Sec. 63.99(a)(29)(iii) of subpart E of this part. * * * * *

       Subpart E--Approval of State Programs and Delegation of Federal Authorities

       0 5. Section 63.99 is amended by adding paragraphs (a)(29)(iii) to read as follows:

       Sec. 63.99 Delegated Federal authorities.

       (a) * * *

       (29) New Hampshire.

       (i) * * *

       (ii) * * *

       (iii) Affected inactive waste disposal sites not operated after July 9, 1981 must comply with the New Hampshire Regulations Applicable to Hazardous Air Pollutants, March, 2003, (incorporated by reference as specified in Sec. 63.14) as described as follows:

       (A) The material incorporated in the New Hampshire Regulations Applicable to Hazardous Air Pollutants, March, 2003, (incorporated by reference as specified in Sec. 63.14) pertains to inactive waste disposal sites not operated after July 9, 1981 in the State of New Hampshire's jurisdiction, and has been approved under the procedures in 40 CFR 63.93 to be implemented and enforced in place of the Federal NESHAPs for Inactive Waste Disposal Sites (40 CFR 61.151). * * * * *

       [FR Doc. 03-13174 Filed 5-27-03; 8:45 am]

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