[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Rules and Regulations]
[Pages 45770-45772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11422]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R01-OAR-2022-0496; FRL-10522-02-R1]


Approval of the Clean Air Act, Section 112(l), Authority for 
Hazardous Air Pollutants: Asbestos Management and Control; State of New 
Hampshire Department of Environmental Services

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting the New 
Hampshire Department of Environmental Services (NH DES) the authority 
to implement and enforce the state's amended Asbestos Disposal Site 
Rule in place of the National Emission Standard for Asbestos provisions 
for inactive waste disposal sites. NH DES's amended rule applies to all 
inactive waste disposal sites that ceased operation on or before July 
9, 1981. This approval makes the NH DES amended Asbestos Disposal Site 
Rule federally enforceable. This action is being taken under the Clean 
Air Act (CAA).

DATES: This rule is effective on June 24, 2024. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of June 24, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification No. EPA-R01-OAR-2022-0496. All documents in the 
docket are listed on the https://www.regulations.gov website. Although 
listed in the index, some information is not publicly available, i.e., 
CBI or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, is not placed on 
the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA 
Region 1 Office, Office of Ecosystem Protection, Air Permits, Toxics 
and Indoor Programs Unit, 5 Post Office Square--Suite 100, Boston, MA. 
The 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.

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. Response to Comments
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On January 12, 2023 (88 FR 2057), the EPA published a Notice of 
Proposed Rulemaking (NPR) that proposed approval of NH DES's amended 
rules in Env-Sw 2100, ``Management and Control of Asbestos Sites Not 
Operated after July 9, 1981,'' (Asbestos Disposal Site Rule) effective 
September 1, 2018, as a partial rule substitution for the National 
Emission Standard for Asbestos (Asbestos NESHAP).
    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 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 recodified in 40 CFR part 61, subpart M. 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'' 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 NH DES's earlier version of 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 recodified 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).
    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 seeks to have the 2010 
substituted rule formally replaced with the 2018 amended Asbestos 
Disposal Site rule. 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.

II. Response to Comments

    We received two comments on the proposed action in favor of 
finalizing the proposal. The comments did not identify any concerns 
specific to this action. Therefore, the EPA will not provide any 
further responses to these comments.

III. Final Action

    EPA is approving NH DES's 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 as a 
partial rule substitution for the same provisions of 40 CFR 61.01 
through 40 CFR 61.18 and 40 CFR 61.151.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of New 
Hampshire Regulations at Env-Sw 2100:

[[Page 45771]]

``Management and Control of Asbestos Disposal Sites Not Operated after 
July 9, 1981,'' effective September 1, 2018, which establishes 
requirements for managing asbestos disposal sites where asbestos exists 
on or in the ground due to dumping activities that ceased prior to July 
10, 1981. The EPA has made, and will continue to make, these documents 
generally available at the EPA Region 1 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. 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 and of EPA's implementing 
regulations. Accordingly, this 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 
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 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).

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, Hazardous substances, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: May 17, 2024.
David Cash,
Regional Administrator, EPA Region 1.
    For the reasons set out in the preamble, title 40, CFR parts 61 and 
63 of the Code of Federal Regulations is amended as follows:

PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

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. Amend Sec.  61.04 by revising paragraph (c)(1)(i) to read as 
follows:


Sec.  61.04  Address.

* * * * *
    (c) * * * (1) * * *
    (i) Inactive waste disposal sites not operated after July 9, 1981 
within the state of New Hampshire must comply with the New Hampshire 
Regulations at Env-Sw 2100 (incorporated by reference, see Sec.  
61.18).
* * * * *

0
3. Amend Sec.  61.18 by revising and republishing paragraph (e)(1) to 
read as follows:


Sec.  61.18  Incorporation by reference.

* * * * *
    (e) * * * (1) State of New Hampshire, New Hampshire Department of 
Environmental Services. 29 Hazen Drive, Concord, NH 03302-0095, (603) 
271-3503, https://www.des.nh.gov/.
    (i) New Hampshire Code of Administrative Rules: Chapter Env-Sw 
2100, Management and Control of Asbestos Disposal Sites Not Operated 
after July 9, 1981, effective September 1, 2018, (including a letter 
from Robert R. Scott, Commissioner, Department of Environmental 
Services, State of New Hampshire, to David J. Alukonis, Director, 
Office of Legislative Services, dated October 23, 2018, certifying that 
the enclosed rule, Env-Sw 2100, is the official version of this rule), 
IBR approved for Sec.  61.04(c). (ii) New Hampshire Code of 
Administrative Rules: Chapter Env-A 1800, Asbestos Management and 
Control, effective as of May 5, 2017 (certified with June 23, 2017 
letter from Clark B. Freise, Assistant Commissioner, Department of 
Environmental Services, State of New Hampshire), as follows: Revision 
Notes #1 and #2; Part Env-A 1801-1807, excluding Env-A 1801.02(e), Env-
A 1801.07, Env-A 1802.02, Env-A 1802.04, Env-A 1802.07-1802.09, Env-A 
1802.13, Env-A 1802.15-1802.17, Env-A 1802.25, Env-A 1802.31, Env-A 
1802.37, Env-A 1802.40, Env-A 1802.44, and Env-A 1803.05-1803.09; and 
Appendices B, C, and D; IBR approved for Sec.  61.04(c).
* * * * *

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

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

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

Subpart A--General Provisions

0
5. Amend Sec.  63.14 by revising paragraph (n)(6)(i) to read as 
follows:


Sec.  63.14  Incorporation by reference.

* * * * *
    (n) * * *
    (6)(i) New Hampshire Regulations at Env-Sw 2100, Management and 
Control

[[Page 45772]]

of Asbestos Disposal Sites Not Operated after July 9, 1981, effective 
September 1, 2018, (including a letter from Robert R. Scott, 
Commissioner, Department of Environmental Services, State of New 
Hampshire, to David J. Alukonis, Director, Office of Legislative 
Services, dated October 23, 2018, certifying that the enclosed rule, 
Env-Sw 2100, is the official version of this rule),IBR approved for 
Sec.  63.99(a).
* * * * *

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

0
6. Amend Sec.  63.99 by revising paragraph (a)(30)(iii) to read as 
follows:


Sec.  63.99  Delegated Federal authorities.

* * * * *
    (a) * * *
    (30) * * *
    (iii) Affected inactive waste disposal sites not operated after 
July 9, 1981 within New Hampshire must comply with New Hampshire 
Regulations Chapter Env-Sw 2100: Management and Control of Asbestos 
Disposal Sites Not Operated after July 9, 1981, effective September 1, 
2018 (incorporated by reference, see Sec.  63.14) as described in 
paragraph (a)(30)(iii)(A) of this section:
    (A) The material incorporated by reference from Chapter Env-Sw 
2100, Management and Control of Asbestos Disposal Sites Not Operated 
after July 9, 1981, 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 Sec.  63.93 
to be implemented and enforced in place of the Federal NESHAPs for 
Inactive Waste Disposal Sites (40 CFR 61.151).
    (B) [Reserved]
* * * * *
[FR Doc. 2024-11422 Filed 5-23-24; 8:45 am]
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