[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 [www.gpo.gov]
[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 https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting

[[Page 2058]]

comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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 https://www.epa.gov/dockets/commenting-epa-dockets. Publicly available docket materials are available at https://www.regulations.gov 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: [email protected].

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

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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

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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 https://www.regulations.gov 
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:
     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);
     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 Clean Air Act; and
     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

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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