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, 12917-12922 [2018-06005]
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Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
As noted in Table 1, we are proposing
to conditionally approve portions of
Maine’s infrastructure SIP submittals
pertaining to the state’s Board for the
2008 Pb, 2008 ozone, and 2010 NO2
NAAQS. Under section 110(k)(4) of the
Act, EPA may conditionally approve a
plan based on a commitment from the
State to adopt specific enforceable
measures by a date certain, but not later
than 1 year from the date of approval.
If EPA conditionally approves the
commitment in a final rulemaking
action, the State must meet its
commitment to submit an update to its
State Board rules that fully remedies the
deficiencies mentioned above under
element E. If the State fails to do so, this
action will become a disapproval one
year from the date of final approval.
EPA will notify the State by letter that
this action has occurred. At that time,
this commitment will no longer be a
part of the approved Maine SIP. EPA
subsequently will publish a document
in the Federal Register notifying the
public that the conditional approval
automatically converted to a
disapproval. If the State meets its
commitment, within the applicable time
frame, the conditionally approved
submission will remain a part of the SIP
until EPA takes final action approving
or disapproving the new submittal. If
EPA disapproves the new submittal, the
conditionally approved infrastructure
SIP elements for all affected pollutants
will be disapproved. In addition, a final
disapproval triggers the Federal
Implementation Plan requirement under
section 110(c). If EPA approves the new
submittal, the State Board rule and
relevant infrastructure SIP elements will
be fully approved and replace the
conditionally approved program in the
SIP.
EPA is soliciting public comments on
the issues discussed in this proposal or
on other relevant matters. These
comments will be considered before
EPA takes final action. Interested parties
may participate in the Federal
rulemaking procedure by submitting
written comments to the EPA New
England Regional Office listed in the
ADDRESSES section of this Federal
Register, or by submitting comments
electronically, by mail, or through hand
delivery/courier following the
directions in the ADDRESSES section of
this Federal Register.
VI. Incorporation by Reference
In this rule, 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, EPA is
proposing to incorporate by reference
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the two Maine statutes listed in Section
V above. EPA has made, and will
continue to make, these documents
generally available electronically
through https://www.regulations.gov
and/or in hard copy at the appropriate
EPA office (see the ADDRESSES section of
this preamble for more information).
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP 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 (Public Law 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
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12917
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP 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 in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: March 15, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–06006 Filed 3–23–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 61 and 63
[EPA–R01–OAR–2017–0641; FRL–9975–51–
Region 1]
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to grant the
New Hampshire Department of
Environmental Services (NH DES) the
authority to implement and enforce the
amended Asbestos Management and
Control Rule in place of the National
Emission Standard for Asbestos
(Asbestos NESHAP) as it applies to
certain asbestos-related activities. Upon
approval, NH DES’s amended rule
would apply to all sources that
otherwise would be regulated by the
Asbestos NESHAP with the exception of
inactive waste disposal sites that ceased
operation on or before July 9, 1981.
These inactive disposal sites are already
regulated by State rules that were
approved by EPA on January 11, 2013.
This proposed approval would make
NH DES’s amended Asbestos
SUMMARY:
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Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
Management and Control Rule federally
enforceable.
Written comments must be
received by April 25, 2018.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2017–0641 at https://
www.regulations.gov, or via email to
lancey.susan@epa.gov. 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
ADDRESSES:
1 North
Susan Lancey, Air Permits, Toxics, and
Indoor Programs Unit, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square—Suite 100, (Mail code
OEP05–2), Boston, MA 02109–3912,
telephone number 617–918–1656,
lancey.susan@epa.gov.
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SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
Table of Contents
I. General Information
A. Does this proposed rule apply to me?
B. What should I consider as I prepare my
comments for the EPA?
II. Background
III. What requirements must a state rule meet
to substitute for a section 112 rule?
IV. What are the differences between NH’s
rule and the Asbestos NESHAP and what
changes did NH make to its Asbestos
Management and Control Rule?
V. What is EPA’s evaluation regarding NH’s
amended Asbestos Management and
Control Rule?
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. General Information
A. Does this proposed rule apply to me?
Categories and entities potentially
regulated by this proposed rule include:
Examples of regulated entities
Construction.
Wrecking and Demolition Contractors.
Hazardous Waste Collection.
Hazardous Waste Treatment and Disposal.
Remediation and Other Waste Management Services.
Packaging and Labeling Services.
Small Arms Ammunition Manufacturing.
Motor Vehicle Systems Manufacturing.
Nonmetallic Mineral Product Manufacturing.
Other Nonmetallic Mineral Product Manufacturing.
Abrasive Product Manufacturing.
All Other Nonmetallic Mineral Product Manufacturing.
American Industry Classification System.
This Table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities potentially
regulated by this proposed rule. To
determine whether your facility is
affected you should examine the
applicability criteria in the amended
New Hampshire Asbestos Management
and Control Rule. If you have questions
regarding the applicability of any aspect
of this action to a particular entity,
please contact the person identified in
the ‘‘For Further Information Contact’’
section.
sradovich on DSK3GMQ082PROD with PROPOSALS
FOR FURTHER INFORMATION CONTACT:
NAICS 1
Category
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
Industrial
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. EPA will
forward copies of all submitted
comments to the New Hampshire
Department of Environmental Services.
B. What should I consider as I prepare
my comments for the EPA?
Do not submit information containing
CBI to the EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information on a disk or CD–ROM that
you mail to the EPA, mark the outside
of the disk or CD–ROM as CBI and then
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identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comments that
includes information claimed as CBI, a
copy of the comments that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2. Send or deliver
information identified as CBI only to the
following address: ‘‘EPA–R01–OAR–
2017–0641,’’ Susan Lancey, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square (mail code OEP05–2),
Boston, MA 02109–3912.
II. Background
Under CAA section 112(l), the EPA
may approve state or local rules or
programs to be implemented and
enforced in place of certain otherwise
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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 the EPA, the state agency is
authorized to implement and enforce its
rule in place of the Federal rule, and the
state rule becomes federally enforceable
in that state.
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 re-codified in 40 CFR
part 61, subpart M, ‘‘National Emission
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Standard for Asbestos’’ (Asbestos
NESHAP). On January 11, 2013, the EPA
approved the New Hampshire
regulation Env-A 1800 titled ‘‘Asbestos
Management and Control’’ (Asbestos
Management and Control Rule) as a rule
adjustment for the Asbestos NESHAP,
applicable to all sources in New
Hampshire except for inactive waste
disposal sites not operated after July 9,
1981. See 78 FR 2333.1 These inactive
disposal sites are regulated by other
State rules that were also approved by
the EPA on January 11, 2013. See id.2
Under 40 CFR 63.91(e), within 90
days of any state amendment, repeal, or
revision of any state rule approved as an
alternative to a Federal requirement, the
state must provide the EPA with a copy
of the revised authorities and satisfy
either 63.91(e)(1) or (e)(2). Under
63.91(e)(2), the State shall request
approval of the revised rule. In a letter
dated July 21, 2017, supplemented on
August 21, 2017, September 21, 2017,
and March 1, 2018, NH DES requested
approval of its amended rules pertaining
to asbestos management in New
Hampshire. Specifically, NH requested
approval of Env-A 1800 titled ‘‘Asbestos
Management and Control,’’ effective as
of May 5, 2017, Sections 1801–1807,
Appendices B, C and D.3 The EPA has
determined it is appropriate to consider
the request to approve the amended
Asbestos Management and Control Rule
under the rule substitution criteria in 40
CFR 63.93.
sradovich on DSK3GMQ082PROD with PROPOSALS
III. What requirements must a state rule
meet to substitute for a section 112
rule?
A state must demonstrate that it has
satisfied the up-front 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 implemented by EPA’s
regulations at 40 CFR 63.91(d). These
criteria require, among other things, that
the state has demonstrated that its
NESHAP program contains adequate
1 The EPA originally approved NH’s Asbestos
Management and Control Rule on November 28,
2006, see 71 FR 68746, and approved an updated
version of the rule on January 11, 2013.
2 The EPA originally approved NH’s Inactive
Waste Disposal Site Rule on May 28, 2003, see 68
FR 31611, and approved an updated version of the
rule on January 11, 2013.
3 NH is not requesting approval of the following
provisions 1801.02(e), 1801.07, 1802.02, 1802.04,
1802.07–1802.09, 1802.13, 1802.15–1802.17,
1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and
1803.05–1803.09. In addition, NH DES did not
request approval of Env-A 1808 (relating to asbestos
analytical requirements), Env-A 1808–1814 (relating
to personnel licensing and training), and Appendix
A: State Statutes and Federal Regulations
Implemented.
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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 under 40 CFR part 70 satisfies
the criteria set forth in 40 CFR 63.91(d)
for up-front approval. On October 2,
1996, EPA promulgated interim
approval of NH DES’s operating permits
program, and also approved New
Hampshire’s authority to implement
and enforce unchanged section 112
standards for part 70 sources under 40
CFR 63.91. See 61 FR 51371.
Subsequently, 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 regulations
governing approval of state
requirements that substitute for a
section 112 rule require EPA to evaluate
the state’s submittal to ensure that it
meets the stringency and other
requirements of 40 CFR 63.93. A rule
will be approved if the state
requirements contain or demonstrate:
(1) Applicability criteria that are no less
stringent than the corresponding
Federal rule; (2) levels of control and
compliance and enforcement measures
that result in emission reductions from
each affected source that are no less
stringent than would result from the
otherwise applicable Federal rule; (3) a
compliance schedule that requires each
affected source to be in compliance
within a time frame consistent with the
deadlines established in the otherwise
applicable Federal rule; and (4) the
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. See 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 40 CFR 63.91(f)(3); 64 FR 1889,
January 12, 1999.
Before we can approve alternative
requirements in place of a part 61
emissions standard, the state must
submit to us detailed information that
demonstrates how the alternative
requirements compare with the
otherwise applicable Federal standard.
A detailed discussion of how EPA will
determine equivalency for state
alternative NESHAP requirements is
provided in the preamble to EPA’s
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12919
proposed subpart E amendments on
January 12, 1999. See 64 FR 1908.
IV. What are the differences between
NH’s rule and the asbestos NESHAP
and what changes did NH make to its
Asbestos Management and Control
Rule?
NH DES’s amended Asbestos
Management and Control Rule, effective
as of May 5, 2017, continues to
incorporate by reference most, but not
all, of the federal national emission
standards for hazardous air pollutants
(40 CFR part 61, subpart M) for asbestos
(Asbestos NESHAP). The following
discussion compares those sections of
40 CFR part 61, subpart M that NH DES
has not adopted with the applicable
sections of New Hampshire’s rule,
demonstrating that New Hampshire’s
rule is in each case no less stringent
than the federal rule, and then describes
the material changes to NH’s amended
Asbestos Management and Control Rule,
effective as of May 5, 2017.
The first three exceptions to NH’s
incorporation by reference of the
Asbestos NESHAP under Env-A
1801.06(a), namely 40 CFR
61.145(c)(1)(i), 61.145(c)(1)(ii), and
61.145(c)(1)(iv), are demolition work
practices that may be considered
together. Section 61.145 contains the
standard for asbestos demolition and
renovation, subsection (c) contains the
procedures for asbestos emission
control, and paragraph (1) provides for
the removal of all regulated asbestoscontaining material (RACM), except
RACM need not be removed before
demolition if the criteria in paragraph
(1) is met.
In Env-A 1805.10, unlike the federal
rule, NH DES requires that all ACM
without exception must be removed
prior to demolition. Because New
Hampshire’s rule regulates a greater
range of asbestos activity than the
federal NESHAP, it contains
applicability criteria no less stringent
than those in the federal rule. See 40
CFR 63.93(b)(1).
The next exception to the federal rule
in New Hampshire’s rule is 40 CFR
61.149(c)(2). This section, together with
§§ 61.150(a)(4), 61.151(c), 61.152(b)(3),
61.154(d) and 61.155(a), is nondelegable to the states under 40 CFR
61.157.
NH DES did not adopt 40 CFR
61.150(a)(5), which provides an
exception to the standard for waste
disposal for manufacturing, fabricating,
demolition, renovation, and spraying
operations. Section 61.150(a) provides
that each owner or operator shall
discharge no visible emissions during
the collection, processing, packaging, or
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transporting of asbestos-containing
waste material. Subparagraph (5)
provides an exclusion for Category I and
II nonfriable ACM. NH DES regulates
both Category I and Category II
nonfriable ACM in demolitions, and
therefore did not adopt the provisions of
40 CFR 61.150(a). See Env-A 1805.10(a)
and 1805.08. Similarly, NH DES did not
adopt 40 CFR 61.150(b)(3). Paragraph
61.150(b) provides that all asbestoscontaining waste material shall be
deposited as soon as is practical by the
waste generator at an approved site.
Subparagraph 61.150(b)(3) excludes
Category I nonfriable ACM that is not
RACM. Again, NH DES has chosen to
regulate this material. Because the
amended Asbestos Management and
Control Rule regulates a greater range of
asbestos activity than the federal
NESHAP, it contains applicability
criteria that are no less stringent than
the federal rule. See 40 CFR 63.93(b)(1).
NH DES did not adopt 40 CFR 61.151
with respect to disposal sites not
operated after July 9, 1981. This is a
special case covered by New
Hampshire’s waste management
regulation Env-Sw 2100, which EPA has
already approved in a separate action.
See 78 FR 2333.
Finally, NH DES did not adopt 40
CFR 61.154(c). This section includes the
standard for active waste disposal sites.
Paragraph (c) provides an alternative to
the ‘‘no visible emissions’’ standard of
40 CFR 61.154(a), but New Hampshire’s
rule is no less stringent than the federal
rule in that it does not allow this
alternative approach. See 40 CFR
63.93(b)(2).
In amending Env-A 1800, NH DES
made some changes to Env-A 1800,
editorial in nature, intended to clarify
the Asbestos Management and Control
Rule. NH DES also made other, material
changes, which we discuss below.
In NH’s amended Asbestos
Management and Control Rule, NH
added section Env-A 1801.05 which
reads as follows: ‘‘Federal Definitions
Incorporated. Terms used in this
chapter that are defined in 40 CFR
61.141 shall be as reprinted in
Appendix D, except for the following:
(a) Asbestos; (b) Facility; (c) Regulated
Asbestos-Containing Material (RACM);
and (d) Remove.’’ These terms are
defined in the amended Asbestos
Management and Control Rule in either
Env-A 1802 or Appendix C and include
minor differences from the Asbestos
NESHAP. As discussed in greater detail
below, the EPA has determined that for
each of the four terms NH did not
incorporate, NH’s regulation includes
terms and requirements that are either
equivalent to the terms in the Asbestos
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NESHAP or result in applicability
criteria that are no less stringent than
those in the NESHAP. See 40 CFR
63.93(b)(1).
Under 40 CFR 61.141, ‘‘Asbestos’’ is
defined to mean ‘‘the asbestiform
varieties of serpentinite (chrysotile),
riebeckite (crocidolite), cummingtonitegrunerite, anthophyllite, and actinolitetremolite’’. In Appendix C of the State
rule, NH defines ‘‘Asbestos’’ to mean
‘‘amosite, chrysotile, crocidolite, or
asbestiform tremolite, actinolite, or
anthophylite.’’ The mineral series
cummingtonite-grunerite is also referred
to as amosite. Therefore, EPA has
determined NH’s definition of asbestos
is equivalent to the federal definition.
NH’s definition of ‘‘Facility,’’ unlike
the federal definition, does not
explicitly exclude residential buildings
having four or fewer dwelling units. See
Env-A 1802.27. In addition, NH
explicitly includes utility infrastructure
in the definition of ‘‘Facility,’’ and
includes a definition for ‘‘utility
infrastructure’’ whereas the federal rule
regulates utility infrastructures but the
federal definition does not include an
explicit reference to utility
infrastructures. The federal definition of
Facility, as found in the Asbestos
NESHAP at 40 CFR 61.141, specifies
that for purposes of this definition, any
building, structure, or installation that
contains a loft used as a dwelling is not
considered a residential structure,
installation, or building. NH did not
incorporate this language because NH’s
rule applies to all residential buildings
including residential buildings with
fewer than four dwellings. The federal
definition also specifies any structure,
installation or building that was
previously subject to this subpart is not
excluded, regardless of its current use or
function. NH includes this requirement
in section Env-A 1801.02(d), rather than
in the definition of Facility. Thus, EPA
finds that these aspects of the NH rule
result in applicability criteria no less
stringent than the applicable NESHAP
requirements. See 40 CFR 61.93(b)(1).
Under the Asbestos NESHAP,
‘‘Regulated asbestos-containing material
(RACM)’’ is defined in 40 CFR 61.141 to
mean ‘‘(a) Friable asbestos material, (b)
Category I nonfriable ACM that has
become friable, (c) Category I nonfriable
ACM that will be or has been subjected
to sanding, grinding, cutting, or
abrading, or (d) Category II nonfriable
ACM that has a high probability of
becoming or has become crumbled,
pulverized, or reduced to powder by the
forces expected to act on the material in
the course of demolition or renovation
operations regulated by this subpart.’’
NH’s definition of RACM is nearly
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identical to the federal definition,
except that NH uses the term ‘‘sawing’’
instead of ‘‘cutting’’ and NH’s definition
uses the phrase ‘‘will likely become’’
rather than ‘‘has a high probability of
becoming.’’ NH’s rule incorporates the
federal Asbestos NESHAP definition of
cutting at 40 CFR 61.141 which means
‘‘to penetrate with a sharp-edged
instrument and includes sawing, but
does not include shearing, slicing, or
punching.’’ In addition, NH’s rule
requires all ACM be removed prior to
demolition, requires all ACM during
renovation to be adequately wetted
before removal and maintained wet
during removal, and requires transport
and disposal as specified in 40 CFR
61.150 of all ACM, whether RACM or
not. See Env-A 1805.10(a), 1805.07, and
1805.08(c). Because sawing is
referenced in the incorporated Asbestos
NESHAP definition of cutting, and
because NH’s rule regulates all ACM,
rather than RACM, during renovation,
demolition and disposal, EPA finds this
aspect of the NH rule to be no less
stringent than the Asbestos NESHAP.
‘‘Remove’’ is defined in 40 CFR
61.141 to mean ‘‘to take out RACM or
facility components that contain or are
covered with RACM from any facility.’’
NH’s rule includes a definition for
‘‘Removal,’’ rather than ‘‘Remove.’’
Under the NH rule, ‘‘Removal’’ means
‘‘the stripping of any RACM from
surfaces or components within or at a
facility.’’ See Env-A 1802.42. The
Asbestos NESHAP and the amended NH
Asbestos Management and Control
Regulation both use the term ‘‘Removal’’
as well as ‘‘Remove’’ in the regulatory
text. NH’s definition of ‘‘Removal’’ is
similar to the Asbestos NESHAP
definition of ‘‘Remove’’. In addition to
incorporating the federal requirements
for removing RACM during renovation
and demolition, NH’s rule includes
work practice standards for asbestos
removal procedures which require all
ACM to be adequately wetted before and
during removal, and placed in leak-tight
containers for disposal. See Env-A
1805.07. NH’s rule also includes ACM
disposal procedures which require the
owner or operator to remove all
packaged ACM, whether RACM or not,
from the worksite. See Env-A 1805.08.
EPA finds that because NH’s regulatory
text requires all ACM, i.e., not just
RACM, to be placed into leak-tight
containers and removed from the
worksite, this aspect of NH’s rule is no
less stringent than the Asbestos
NESHAP. Therefore, the EPA has
determined that for each of the four
terms NH did not incorporate, NH’s
regulation includes terms and
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requirements that are either equivalent
to the terms in the Asbestos NESHAP,
or result in applicability criteria that are
no less stringent than those in the
NESHAP. See 40 CFR 63.93(b)(1).
In the amended Asbestos Management
and Control Rule, NH added section
Env-A 1806 Alternative Requirements
for Specific ACM which provides
certain alternatives for asbestos
abatement activities on vinyl asbestos
floor tile, asbestos floor sheeting,
asbestos roofing materials, asbestos
siding and other preformed
cementitious asbestos materials.
Sections Env-A 1806.02, 1806.03(a), and
1806.04 provide alternatives to ACM
that is not sanded, sawed, cut, drilled or
otherwise treated to create a fine dust or
particles. These alternatives do not
apply to RACM so the NESHAP does
not regulate these activities. Thus, the
NH rule regulates a greater range of
asbestos activity than the federal
NESHAP, and contains applicability
criteria and levels of control that are no
less stringent than those in the federal
rule. See 40 CFR 63.93(b)(1) and
63.93(b)(2). Env-A 1806.03(b) does
include alternatives for asbestos
containing roofing materials that are cut
and therefore become RACM which is
regulated by the NESHAP. Under the
NESHAP, appendix A section III(A)
3.A.3, the EPA considers a roof removal
project to be in compliance with the
‘‘adequately wet’’ and ‘‘discharge no
visible emission’’ requirements of the
NESHAP if the roof cutter is equipped
with a blade guard that completely
encloses the blade and water
application is used at the roof surface
during the cutting of the roof. Env-A
1806.03(b) permits (in lieu of otherwise
applicable requirements at Env-A
1805.04, 1805.05, and 1805.09) a HEPAfiltered tool be used to prevent
generation of visible emissions, together
with water application at the point of
abrasion with an airless sprayer and in
sufficient volume so that no visible
emissions result from the operation
other than water spray. NH’s work
practice requires ‘‘no visible emissions’’
and does not exclude the requirements
for ACM to be ‘‘adequately wet,’’ as the
NESHAP work practice allows. See EnvA 1805.07 and Env-A 1806.04(b). The
EPA has determined the requirements in
Env-A 1806.03(b) are equivalent to the
NESHAP and would result in emissions
reductions from each affected source
that are no less stringent than would
result from the NESHAP. See 40 CFR
63.93(b)(2).
In addition to the changes described
above, in the amended Asbestos
Management and Control Rule, NH
made the following changes. As an
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editorial change, NH moved its statutory
definitions to Appendix C and moved
the federal definitions incorporated to
Appendix D. In addition, under Env-A
1805.08 Asbestos Disposal Procedures,
NH added a requirement for packaged
ACM to be removed from the worksite
as soon as practicable, but in no event
longer than 30 days following
completion of the abatement work. The
Asbestos NESHAP requires all asbestos
containing waste material to be
deposited as soon as practicable but
does not specify a timeframe not to be
exceeded. See 40 CFR 61.150(b). The
EPA finds NH’s requirement to be no
less stringent than the compliance time
frame established in the NESHAP. See
40 CFR 63.93(b)(3). The EPA has
determined that these aspects of the
State rule are no less stringent than the
Asbestos NESHAP requirements.
In addition to incorporating the
federal rule compliance monitoring
requirements by reference, NH’s rule
specifies that the chapter applies to
provisions for inspection, compliance
monitoring, and enforcement by the
department. See Env-A 1801.02(f) and
40 CFR 63.93(b)(4). In other aspects, the
State rule imposes additional State
requirements in addition to the federal
requirements. A detailed comparison of
the NH additional rule requirements
and the federal requirements is available
in NH’s equivalency demonstration
table available in the public docket.
Because these State requirements
simply add onto the federal
requirements, they inherently are no
less stringent than their federal
counterparts. See 40 CFR 63.93(b)(2).
V. What is EPA’s evaluation regarding
NH’s amended Asbestos Management
and Control Rule?
After reviewing the request for
approval of NH DES’s amended
Asbestos Management and Control rule,
the EPA has determined that this
request meets all of the requirements
necessary to qualify for a rule
substitution approval under CAA
section 112(l) and 40 CFR 63.91 and
63.93. Specifically, the EPA has
preliminarily determined that NH DES’s
amended Asbestos Management and
Control Rule is equivalent to or not less
stringent than the Asbestos NESHAP as
required by each of the criteria set forth
in 40 CFR 63.93(b)(1)–(3), and satisfies
the compliance and enforcement
requirements in 40 CFR 63.93(b)(4), as
the State rule applies to all sources in
New Hampshire, except for inactive
waste disposal sites not operated after
July 9, 1981. Therefore, the EPA hereby
proposes to approve NH DES’s amended
Asbestos Management and Control Rule,
PO 00000
Frm 00058
Fmt 4702
Sfmt 4702
12921
effective as of May 5, 2017, in lieu of the
Asbestos NESHAP, for all sources in
New Hampshire except for inactive
waste disposal sites not operated after
July 9, 1981.
VI. Proposed Action
The EPA is proposing to approve NH
DES’s amended rules in Env-A 1800,
‘‘Asbestos Management and Control,’’
effective as of May 5, 2017, Sections
1801–1807, Appendices B, C, and D
(excluding the following provisions:
1801.02(e), 801.07, 1802.02, 1802.04,
1802.07–1802.09, 1802.13, 1802.15–
1802.17, 1802.25, 1802.31, 1802.37,
1802.40, 1802.44, and 1803.05–1803.09)
as a rule substitution for the Asbestos
NESHAP, for all sources in New
Hampshire except for inactive waste
disposal sites not operating after July 9,
1981.
VII. Incorporation by Reference
In this rulemaking, 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’s Env-A 1800, ‘‘Asbestos
Management and Control,’’ effective as
of May 5, 2017, Sections 1801–1807,
Appendices B, C, and D; excluding the
following provisions: 1801.02(e),
1801.07, 1802.02, 1802.04, 1802.07–
1802.09, 1802.13, 1802.15–1802.17,
1802.25, 1802.31, 1802.37, 1802.40,
1802.44, and 1803.05–1803.09. The EPA
is also proposing to incorporate by
reference a letter from Clark B. Freise,
Assistant Commissioner, Department of
Environmental Services, State of New
Hampshire, to David J. Alukonis,
Interim Director, Office of Legislative
Services, dated June 23, 2017, certifying
that the copy of the rule enclosed with
the letter, Env-A 1800, is the official
version of this rule. The EPA has made,
and will continue to make, these
documents generally available
electronically through https://
www.regulations.gov and/or in hard
copy at the appropriate EPA office.
VIII. Statutory and Executive Order
Reviews
Under the CAA, 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 and objectives of
the CAA and of EPA’s implementing
regulations. Accordingly, this action
merely proposes to approve the State’s
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request 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 (Public Law 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);
In addition, this rulemaking 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. It also 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). And it does not
have Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the EPA is
not proposing to approve the submitted
rule to apply in Indian country located
in the State, and because the submitted
rule will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
List of Subjects in 40 CFR Parts 61 and
63
Environmental protection,
Administrative practice and procedure,
Air pollution control, Hazardous
substances, Incorporation by reference,
Intergovernmental relations, Reporting
and record keeping requirements.
VerDate Sep<11>2014
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Dated: March 15, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–06005 Filed 3–23–18; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF VETERANS
AFFAIRS
[8320–01]
48 CFR Parts 801, 811, 832, 852, and
870
RIN 2900–AP81
Revise and Streamline VA Acquisition
Regulation—Parts 811 and 832
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is proposing to amend and
update its VA Acquisition Regulation
(VAAR) in phased increments to revise
or remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove any
procedural guidance internal to VA into
the VA Acquisition Manual (VAAM),
and to incorporate any new agency
specific regulations or policies. These
changes seek to streamline and align the
VAAR with the FAR and remove
outdated and duplicative requirements
and reduce burden on contractors. The
VAAM incorporates portions of the
removed VAAR as well as other internal
agency acquisition policy. VA will
rewrite certain parts of the VAAR and
VAAM, and as VAAR parts are
rewritten, we’ll publish them in the
Federal Register. VA will combine
related topics, as appropriate. In
particular, this rulemaking revises
VAAR Parts 811—Describing Agency
Needs and Part 832—Contract
Financing, as well as affected parts
801—Department of Veterans Affairs
Acquisition Regulation System, 852—
Solicitation Provisions and Contract
Clauses, and 870—Special Procurement
Controls.
DATES: Comments must be received on
or before May 25, 2018 to be considered
in the formulation of the final rule.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy
and Management (00REG), Department
of Veterans Affairs, 810 Vermont
Avenue NW, Room 1063B, Washington,
DC 20420; or by fax to (202) 273–9026.
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AP81—Revise and Streamline VA
SUMMARY:
PO 00000
Frm 00059
Fmt 4702
Sfmt 4702
Acquisition Regulation to Adhere to
Federal Acquisition Regulation
Principles (VAAR Case 2014–V004—
parts 811, 832).’’ Copies of comments
received will be available for public
inspection in the Office of Regulation
Policy and Management, Room 1063B,
between the hours of 8:00 a.m. and 4:30
p.m., Monday through Friday (except
holidays). Please call (202) 461–4902 for
an appointment. (This is not a toll-free
number.) In addition, during the
comment period, comments may be
viewed online through the Federal
Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Ricky Clark, Senior Procurement
Analyst, Procurement Policy and
Warrant Management Services, 003A2A,
425 I Street NW, Washington DC 20001,
(202) 697–3565. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION:
Background
This rulemaking is issued under the
authority of the Office of Federal
Procurement Policy (OFPP) Act which
provides the authority for an agency
head to issue agency acquisition
regulations that implement or
supplement the FAR.
VA is proposing to revise the VAAR
to add new policy or regulatory
requirements and to remove any
redundant guidance and guidance that
is applicable only to VA’s internal
operating processes or procedures.
Codified acquisition regulations may be
amended and revised only through
rulemaking. All amendments, revisions,
and removals have been reviewed and
concurred with by VA’s Integrated
Product Team of agency stakeholders.
The VAAR uses the regulatory
structure and arrangement of the FAR
and headings and subject areas are
broken up consistent with the FAR
content. The VAAR is divided into
subchapters, parts (each of which covers
a separate aspect of acquisition),
subparts, sections, and subsections.
The Office of Federal Procurement
Policy Act, as codified in 41 U.S.C.
1707, provides the authority for the
Federal Acquisition Regulation and for
the issuance of agency acquisition
regulations consistent with the FAR.
When Federal agencies acquire
supplies and services using
appropriated funds, the purchase is
governed by the FAR, set forth at Title
48 Code of Federal Regulations (CFR),
chapter 1, parts 1 through 53, and the
agency regulations that implement and
supplement the FAR. The VAAR is set
forth at Title 48 CFR, chapter 8, parts
801 to 873.
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[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)]
[Proposed Rules]
[Pages 12917-12922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06005]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[EPA-R01-OAR-2017-0641; FRL-9975-51-Region 1]
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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant the New Hampshire Department of Environmental Services (NH DES)
the authority to implement and enforce the amended Asbestos Management
and Control Rule in place of the National Emission Standard for
Asbestos (Asbestos NESHAP) as it applies to certain asbestos-related
activities. Upon approval, NH DES's amended rule would apply to all
sources that otherwise would be regulated by the Asbestos NESHAP with
the exception of inactive waste disposal sites that ceased operation on
or before July 9, 1981. These inactive disposal sites are already
regulated by State rules that were approved by EPA on January 11, 2013.
This proposed approval would make NH DES's amended Asbestos
[[Page 12918]]
Management and Control Rule federally enforceable.
DATES: Written comments must be received by April 25, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0641 at https://www.regulations.gov, or via email to
[email protected]. 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. EPA will
forward copies of all submitted comments to the New Hampshire
Department of Environmental Services.
FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics, and
Indoor Programs Unit, U.S. Environmental Protection Agency, EPA New
England Regional Office, 5 Post Office Square--Suite 100, (Mail code
OEP05-2), Boston, MA 02109-3912, telephone number 617-918-1656,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. General Information
A. Does this proposed rule apply to me?
B. What should I consider as I prepare my comments for the EPA?
II. Background
III. What requirements must a state rule meet to substitute for a
section 112 rule?
IV. What are the differences between NH's rule and the Asbestos
NESHAP and what changes did NH make to its Asbestos Management and
Control Rule?
V. What is EPA's evaluation regarding NH's amended Asbestos
Management and Control Rule?
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. General Information
A. Does this proposed rule apply to me?
Categories and entities potentially regulated by this proposed rule
include:
------------------------------------------------------------------------
Examples of regulated
Category NAICS \1\ entities
------------------------------------------------------------------------
Industrial..................... 23 Construction.
Industrial..................... 23594 Wrecking and Demolition
Industrial..................... 562112 Contractors.
Industrial..................... 562211 Hazardous Waste
Industrial..................... 5629 Collection.
Industrial..................... 56191 Hazardous Waste
Industrial..................... 332992 Treatment and
Industrial..................... 33634 Disposal.
Industrial..................... 327 Remediation and Other
Industrial..................... 3279 Waste Management
Industrial..................... 32791 Services.
Industrial..................... 32799 Packaging and Labeling
Services.
Small Arms Ammunition
Manufacturing.
Motor Vehicle Systems
Manufacturing.
Nonmetallic Mineral
Product Manufacturing.
Other Nonmetallic
Mineral Product
Manufacturing.
Abrasive Product
Manufacturing.
All Other Nonmetallic
Mineral Product
Manufacturing.
------------------------------------------------------------------------
\1\ North American Industry Classification System.
This Table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially regulated by this
proposed rule. To determine whether your facility is affected you
should examine the applicability criteria in the amended New Hampshire
Asbestos Management and Control Rule. If you have questions regarding
the applicability of any aspect of this action to a particular entity,
please contact the person identified in the ``For Further Information
Contact'' section.
B. What should I consider as I prepare my comments for the EPA?
Do not submit information containing CBI to the EPA through https://www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information on a disk or
CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comments that includes information claimed as
CBI, a copy of the comments that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. Send or deliver information
identified as CBI only to the following address: ``EPA-R01-OAR-2017-
0641,'' Susan Lancey, U.S. Environmental Protection Agency, EPA New
England Regional Office, 5 Post Office Square (mail code OEP05-2),
Boston, MA 02109-3912.
II. Background
Under CAA section 112(l), the 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 the EPA, the state agency is authorized to implement and
enforce its rule in place of the Federal rule, and the state rule
becomes federally enforceable in that state.
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 re-codified in 40 CFR part 61, subpart M,
``National Emission
[[Page 12919]]
Standard for Asbestos'' (Asbestos NESHAP). On January 11, 2013, the EPA
approved the New Hampshire regulation Env-A 1800 titled ``Asbestos
Management and Control'' (Asbestos Management and Control Rule) as a
rule adjustment for the Asbestos NESHAP, applicable to all sources in
New Hampshire except for inactive waste disposal sites not operated
after July 9, 1981. See 78 FR 2333.\1\ These inactive disposal sites
are regulated by other State rules that were also approved by the EPA
on January 11, 2013. See id.\2\
---------------------------------------------------------------------------
\1\ The EPA originally approved NH's Asbestos Management and
Control Rule on November 28, 2006, see 71 FR 68746, and approved an
updated version of the rule on January 11, 2013.
\2\ The EPA originally approved NH's Inactive Waste Disposal
Site Rule on May 28, 2003, see 68 FR 31611, and approved an updated
version of the rule on January 11, 2013.
---------------------------------------------------------------------------
Under 40 CFR 63.91(e), within 90 days of any state amendment,
repeal, or revision of any state rule approved as an alternative to a
Federal requirement, the state must provide the EPA with a copy of the
revised authorities and satisfy either 63.91(e)(1) or (e)(2). Under
63.91(e)(2), the State shall request approval of the revised rule. In a
letter dated July 21, 2017, supplemented on August 21, 2017, September
21, 2017, and March 1, 2018, NH DES requested approval of its amended
rules pertaining to asbestos management in New Hampshire. Specifically,
NH requested approval of Env-A 1800 titled ``Asbestos Management and
Control,'' effective as of May 5, 2017, Sections 1801-1807, Appendices
B, C and D.\3\ The EPA has determined it is appropriate to consider the
request to approve the amended Asbestos Management and Control Rule
under the rule substitution criteria in 40 CFR 63.93.
---------------------------------------------------------------------------
\3\ NH is not requesting approval of the following provisions
1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13,
1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and
1803.05-1803.09. In addition, NH DES did not request approval of
Env-A 1808 (relating to asbestos analytical requirements), Env-A
1808-1814 (relating to personnel licensing and training), and
Appendix A: State Statutes and Federal Regulations Implemented.
---------------------------------------------------------------------------
III. What requirements must a state rule meet to substitute for a
section 112 rule?
A state must demonstrate that it has satisfied the up-front
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 implemented by EPA's
regulations at 40 CFR 63.91(d). These criteria require, among other
things, 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 under 40 CFR part 70 satisfies the
criteria set forth in 40 CFR 63.91(d) for up-front approval. On October
2, 1996, EPA promulgated interim approval of NH DES's operating permits
program, and also approved New Hampshire's authority to implement and
enforce unchanged section 112 standards for part 70 sources under 40
CFR 63.91. See 61 FR 51371. Subsequently, 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 regulations governing approval of state
requirements that substitute for a section 112 rule require EPA to
evaluate the state's submittal to ensure that it meets the stringency
and other requirements of 40 CFR 63.93. A rule will be approved if the
state requirements contain or demonstrate: (1) Applicability criteria
that are no less stringent than the corresponding Federal rule; (2)
levels of control and compliance and enforcement measures that result
in emission reductions from each affected source that are no less
stringent than would result from the otherwise applicable Federal rule;
(3) a compliance schedule that requires each affected source to be in
compliance within a time frame consistent with the deadlines
established in the otherwise applicable Federal rule; and (4) the
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. See 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 40 CFR 63.91(f)(3); 64 FR 1889, January 12, 1999.
Before we can approve alternative requirements in place of a part
61 emissions standard, the state must submit to us detailed information
that demonstrates how the alternative requirements compare with the
otherwise applicable Federal standard. A detailed discussion of how EPA
will determine equivalency 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. What are the differences between NH's rule and the asbestos NESHAP
and what changes did NH make to its Asbestos Management and Control
Rule?
NH DES's amended Asbestos Management and Control Rule, effective as
of May 5, 2017, continues to incorporate by reference most, but not
all, of the federal national emission standards for hazardous air
pollutants (40 CFR part 61, subpart M) for asbestos (Asbestos NESHAP).
The following discussion compares those sections of 40 CFR part 61,
subpart M that NH DES has not adopted with the applicable sections of
New Hampshire's rule, demonstrating that New Hampshire's rule is in
each case no less stringent than the federal rule, and then describes
the material changes to NH's amended Asbestos Management and Control
Rule, effective as of May 5, 2017.
The first three exceptions to NH's incorporation by reference of
the Asbestos NESHAP under Env-A 1801.06(a), namely 40 CFR
61.145(c)(1)(i), 61.145(c)(1)(ii), and 61.145(c)(1)(iv), are demolition
work practices that may be considered together. Section 61.145 contains
the standard for asbestos demolition and renovation, subsection (c)
contains the procedures for asbestos emission control, and paragraph
(1) provides for the removal of all regulated asbestos-containing
material (RACM), except RACM need not be removed before demolition if
the criteria in paragraph (1) is met.
In Env-A 1805.10, unlike the federal rule, NH DES requires that all
ACM without exception must be removed prior to demolition. Because New
Hampshire's rule regulates a greater range of asbestos activity than
the federal NESHAP, it contains applicability criteria no less
stringent than those in the federal rule. See 40 CFR 63.93(b)(1).
The next exception to the federal rule in New Hampshire's rule is
40 CFR 61.149(c)(2). This section, together with Sec. Sec.
61.150(a)(4), 61.151(c), 61.152(b)(3), 61.154(d) and 61.155(a), is non-
delegable to the states under 40 CFR 61.157.
NH DES did not adopt 40 CFR 61.150(a)(5), which provides an
exception to the standard for waste disposal for manufacturing,
fabricating, demolition, renovation, and spraying operations. Section
61.150(a) provides that each owner or operator shall discharge no
visible emissions during the collection, processing, packaging, or
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transporting of asbestos-containing waste material. Subparagraph (5)
provides an exclusion for Category I and II nonfriable ACM. NH DES
regulates both Category I and Category II nonfriable ACM in
demolitions, and therefore did not adopt the provisions of 40 CFR
61.150(a). See Env-A 1805.10(a) and 1805.08. Similarly, NH DES did not
adopt 40 CFR 61.150(b)(3). Paragraph 61.150(b) provides that all
asbestos-containing waste material shall be deposited as soon as is
practical by the waste generator at an approved site. Subparagraph
61.150(b)(3) excludes Category I nonfriable ACM that is not RACM.
Again, NH DES has chosen to regulate this material. Because the amended
Asbestos Management and Control Rule regulates a greater range of
asbestos activity than the federal NESHAP, it contains applicability
criteria that are no less stringent than the federal rule. See 40 CFR
63.93(b)(1).
NH DES did not adopt 40 CFR 61.151 with respect to disposal sites
not operated after July 9, 1981. This is a special case covered by New
Hampshire's waste management regulation Env-Sw 2100, which EPA has
already approved in a separate action. See 78 FR 2333.
Finally, NH DES did not adopt 40 CFR 61.154(c). This section
includes the standard for active waste disposal sites. Paragraph (c)
provides an alternative to the ``no visible emissions'' standard of 40
CFR 61.154(a), but New Hampshire's rule is no less stringent than the
federal rule in that it does not allow this alternative approach. See
40 CFR 63.93(b)(2).
In amending Env-A 1800, NH DES made some changes to Env-A 1800,
editorial in nature, intended to clarify the Asbestos Management and
Control Rule. NH DES also made other, material changes, which we
discuss below.
In NH's amended Asbestos Management and Control Rule, NH added
section Env-A 1801.05 which reads as follows: ``Federal Definitions
Incorporated. Terms used in this chapter that are defined in 40 CFR
61.141 shall be as reprinted in Appendix D, except for the following:
(a) Asbestos; (b) Facility; (c) Regulated Asbestos-Containing Material
(RACM); and (d) Remove.'' These terms are defined in the amended
Asbestos Management and Control Rule in either Env-A 1802 or Appendix C
and include minor differences from the Asbestos NESHAP. As discussed in
greater detail below, the EPA has determined that for each of the four
terms NH did not incorporate, NH's regulation includes terms and
requirements that are either equivalent to the terms in the Asbestos
NESHAP or result in applicability criteria that are no less stringent
than those in the NESHAP. See 40 CFR 63.93(b)(1).
Under 40 CFR 61.141, ``Asbestos'' is defined to mean ``the
asbestiform varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-
tremolite''. In Appendix C of the State rule, NH defines ``Asbestos''
to mean ``amosite, chrysotile, crocidolite, or asbestiform tremolite,
actinolite, or anthophylite.'' The mineral series cummingtonite-
grunerite is also referred to as amosite. Therefore, EPA has determined
NH's definition of asbestos is equivalent to the federal definition.
NH's definition of ``Facility,'' unlike the federal definition,
does not explicitly exclude residential buildings having four or fewer
dwelling units. See Env-A 1802.27. In addition, NH explicitly includes
utility infrastructure in the definition of ``Facility,'' and includes
a definition for ``utility infrastructure'' whereas the federal rule
regulates utility infrastructures but the federal definition does not
include an explicit reference to utility infrastructures. The federal
definition of Facility, as found in the Asbestos NESHAP at 40 CFR
61.141, specifies that for purposes of this definition, any building,
structure, or installation that contains a loft used as a dwelling is
not considered a residential structure, installation, or building. NH
did not incorporate this language because NH's rule applies to all
residential buildings including residential buildings with fewer than
four dwellings. The federal definition also specifies any structure,
installation or building that was previously subject to this subpart is
not excluded, regardless of its current use or function. NH includes
this requirement in section Env-A 1801.02(d), rather than in the
definition of Facility. Thus, EPA finds that these aspects of the NH
rule result in applicability criteria no less stringent than the
applicable NESHAP requirements. See 40 CFR 61.93(b)(1).
Under the Asbestos NESHAP, ``Regulated asbestos-containing material
(RACM)'' is defined in 40 CFR 61.141 to mean ``(a) Friable asbestos
material, (b) Category I nonfriable ACM that has become friable, (c)
Category I nonfriable ACM that will be or has been subjected to
sanding, grinding, cutting, or abrading, or (d) Category II nonfriable
ACM that has a high probability of becoming or has become crumbled,
pulverized, or reduced to powder by the forces expected to act on the
material in the course of demolition or renovation operations regulated
by this subpart.'' NH's definition of RACM is nearly identical to the
federal definition, except that NH uses the term ``sawing'' instead of
``cutting'' and NH's definition uses the phrase ``will likely become''
rather than ``has a high probability of becoming.'' NH's rule
incorporates the federal Asbestos NESHAP definition of cutting at 40
CFR 61.141 which means ``to penetrate with a sharp-edged instrument and
includes sawing, but does not include shearing, slicing, or punching.''
In addition, NH's rule requires all ACM be removed prior to demolition,
requires all ACM during renovation to be adequately wetted before
removal and maintained wet during removal, and requires transport and
disposal as specified in 40 CFR 61.150 of all ACM, whether RACM or not.
See Env-A 1805.10(a), 1805.07, and 1805.08(c). Because sawing is
referenced in the incorporated Asbestos NESHAP definition of cutting,
and because NH's rule regulates all ACM, rather than RACM, during
renovation, demolition and disposal, EPA finds this aspect of the NH
rule to be no less stringent than the Asbestos NESHAP.
``Remove'' is defined in 40 CFR 61.141 to mean ``to take out RACM
or facility components that contain or are covered with RACM from any
facility.'' NH's rule includes a definition for ``Removal,'' rather
than ``Remove.'' Under the NH rule, ``Removal'' means ``the stripping
of any RACM from surfaces or components within or at a facility.'' See
Env-A 1802.42. The Asbestos NESHAP and the amended NH Asbestos
Management and Control Regulation both use the term ``Removal'' as well
as ``Remove'' in the regulatory text. NH's definition of ``Removal'' is
similar to the Asbestos NESHAP definition of ``Remove''. In addition to
incorporating the federal requirements for removing RACM during
renovation and demolition, NH's rule includes work practice standards
for asbestos removal procedures which require all ACM to be adequately
wetted before and during removal, and placed in leak-tight containers
for disposal. See Env-A 1805.07. NH's rule also includes ACM disposal
procedures which require the owner or operator to remove all packaged
ACM, whether RACM or not, from the worksite. See Env-A 1805.08. EPA
finds that because NH's regulatory text requires all ACM, i.e., not
just RACM, to be placed into leak-tight containers and removed from the
worksite, this aspect of NH's rule is no less stringent than the
Asbestos NESHAP. Therefore, the EPA has determined that for each of the
four terms NH did not incorporate, NH's regulation includes terms and
[[Page 12921]]
requirements that are either equivalent to the terms in the Asbestos
NESHAP, or result in applicability criteria that are no less stringent
than those in the NESHAP. See 40 CFR 63.93(b)(1).
In the amended Asbestos Management and Control Rule, NH added
section Env-A 1806 Alternative Requirements for Specific ACM which
provides certain alternatives for asbestos abatement activities on
vinyl asbestos floor tile, asbestos floor sheeting, asbestos roofing
materials, asbestos siding and other preformed cementitious asbestos
materials. Sections Env-A 1806.02, 1806.03(a), and 1806.04 provide
alternatives to ACM that is not sanded, sawed, cut, drilled or
otherwise treated to create a fine dust or particles. These
alternatives do not apply to RACM so the NESHAP does not regulate these
activities. Thus, the NH rule regulates a greater range of asbestos
activity than the federal NESHAP, and contains applicability criteria
and levels of control that are no less stringent than those in the
federal rule. See 40 CFR 63.93(b)(1) and 63.93(b)(2). Env-A 1806.03(b)
does include alternatives for asbestos containing roofing materials
that are cut and therefore become RACM which is regulated by the
NESHAP. Under the NESHAP, appendix A section III(A) 3.A.3, the EPA
considers a roof removal project to be in compliance with the
``adequately wet'' and ``discharge no visible emission'' requirements
of the NESHAP if the roof cutter is equipped with a blade guard that
completely encloses the blade and water application is used at the roof
surface during the cutting of the roof. Env-A 1806.03(b) permits (in
lieu of otherwise applicable requirements at Env-A 1805.04, 1805.05,
and 1805.09) a HEPA-filtered tool be used to prevent generation of
visible emissions, together with water application at the point of
abrasion with an airless sprayer and in sufficient volume so that no
visible emissions result from the operation other than water spray.
NH's work practice requires ``no visible emissions'' and does not
exclude the requirements for ACM to be ``adequately wet,'' as the
NESHAP work practice allows. See Env-A 1805.07 and Env-A 1806.04(b).
The EPA has determined the requirements in Env-A 1806.03(b) are
equivalent to the NESHAP and would result in emissions reductions from
each affected source that are no less stringent than would result from
the NESHAP. See 40 CFR 63.93(b)(2).
In addition to the changes described above, in the amended Asbestos
Management and Control Rule, NH made the following changes. As an
editorial change, NH moved its statutory definitions to Appendix C and
moved the federal definitions incorporated to Appendix D. In addition,
under Env-A 1805.08 Asbestos Disposal Procedures, NH added a
requirement for packaged ACM to be removed from the worksite as soon as
practicable, but in no event longer than 30 days following completion
of the abatement work. The Asbestos NESHAP requires all asbestos
containing waste material to be deposited as soon as practicable but
does not specify a timeframe not to be exceeded. See 40 CFR 61.150(b).
The EPA finds NH's requirement to be no less stringent than the
compliance time frame established in the NESHAP. See 40 CFR
63.93(b)(3). The EPA has determined that these aspects of the State
rule are no less stringent than the Asbestos NESHAP requirements.
In addition to incorporating the federal rule compliance monitoring
requirements by reference, NH's rule specifies that the chapter applies
to provisions for inspection, compliance monitoring, and enforcement by
the department. See Env-A 1801.02(f) and 40 CFR 63.93(b)(4). In other
aspects, the State rule imposes additional State requirements in
addition to the federal requirements. A detailed comparison of the NH
additional rule requirements and the federal requirements is available
in NH's equivalency demonstration table available in the public docket.
Because these State requirements simply add onto the federal
requirements, they inherently are no less stringent than their federal
counterparts. See 40 CFR 63.93(b)(2).
V. What is EPA's evaluation regarding NH's amended Asbestos Management
and Control Rule?
After reviewing the request for approval of NH DES's amended
Asbestos Management and Control rule, the EPA has determined that this
request meets all of the requirements necessary to qualify for a rule
substitution approval under CAA section 112(l) and 40 CFR 63.91 and
63.93. Specifically, the EPA has preliminarily determined that NH DES's
amended Asbestos Management and Control Rule is equivalent to or not
less stringent than the Asbestos NESHAP as required by each of the
criteria set forth in 40 CFR 63.93(b)(1)-(3), and satisfies the
compliance and enforcement requirements in 40 CFR 63.93(b)(4), as the
State rule applies to all sources in New Hampshire, except for inactive
waste disposal sites not operated after July 9, 1981. Therefore, the
EPA hereby proposes to approve NH DES's amended Asbestos Management and
Control Rule, effective as of May 5, 2017, in lieu of the Asbestos
NESHAP, for all sources in New Hampshire except for inactive waste
disposal sites not operated after July 9, 1981.
VI. Proposed Action
The EPA is proposing to approve NH DES's amended rules in Env-A
1800, ``Asbestos Management and Control,'' effective as of May 5, 2017,
Sections 1801-1807, Appendices B, C, and D (excluding the following
provisions: 1801.02(e), 801.07, 1802.02, 1802.04, 1802.07-1802.09,
1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44,
and 1803.05-1803.09) as a rule substitution for the Asbestos NESHAP,
for all sources in New Hampshire except for inactive waste disposal
sites not operating after July 9, 1981.
VII. Incorporation by Reference
In this rulemaking, 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's Env-A 1800, ``Asbestos
Management and Control,'' effective as of May 5, 2017, Sections 1801-
1807, Appendices B, C, and D; excluding the following provisions:
1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13,
1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and
1803.05-1803.09. The EPA is also proposing to incorporate by reference
a letter from Clark B. Freise, Assistant Commissioner, Department of
Environmental Services, State of New Hampshire, to David J. Alukonis,
Interim Director, Office of Legislative Services, dated June 23, 2017,
certifying that the copy of the rule enclosed with the letter, Env-A
1800, is the official version of this rule. The EPA has made, and will
continue to make, these documents generally available electronically
through https://www.regulations.gov and/or in hard copy at the
appropriate EPA office.
VIII. Statutory and Executive Order Reviews
Under the CAA, 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 and objectives of the CAA and of EPA's implementing
regulations. Accordingly, this action merely proposes to approve the
State's
[[Page 12922]]
request 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 (Public Law 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);
In addition, this rulemaking 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. It also 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). And it does not have Tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the EPA is not proposing to approve the
submitted rule to apply in Indian country located in the State, and
because the submitted rule will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Parts 61 and 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and record keeping
requirements.
Dated: March 15, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-06005 Filed 3-23-18; 8:45 am]
BILLING CODE 6560-50-P
