[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 [www.gpo.gov]
[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 www.regulations.gov 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 https://www.regulations.gov, 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 
[email protected].

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:
     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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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
     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]
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