2023-00112. 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.

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 [e-mail]. For comments submitted at Regulations.gov, follow the online instructions for submitting 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: [phone], email: [e-mail].

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. See58 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. ( See68 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. ( See78 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 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). See40 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. See64 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. See64 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 §  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 §  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 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 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.