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38726 Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules and Regulations

Id.

I. Programs to Demolish or Renovate

Residential Buildings

Since the publication of the 1990

revisions to the asbestos NESHAP,

certain questions have arisen regarding

whether demolitions or renovations of

residential homes that are demolished

or renovated by municipalities for

reasons of public health, welfare or

safety ("nuisance abatement

demolitions") are covered by the

asbestos NESHAP.2 Several

municipalities have stated that they

believe such demolitions or renovations

to be excluded from the NESHAP under

the residential building exemption.

Municipalities have also stated that EPA

officials have been inconsistent in their

determinations of this issue. In

particular, officials from several

municipalities in Florida have asked

EPA to issue a notice clarifying EPA's

interpretation of the asbestos NESHAP

with regard to this issue. In addition,

the House of Representatives Report

accompanying H.R. 4624 (House Report

103-555, reported by the House

Appropriations Committee), also noted

these allegedly inconsistent

interpretations and directed EPA to

issue a notice of clarification that a

nuisance abatement demolition or

renovation does not subject an

otherwise exempt structure to the

asbestos NESHAP regulations. In an

effort to clarify this issue for the

regulated community, EPA is presenting

this notice giving its interpretation of

the NESHAP with regard to this issue.

IV. EPA Interpretation

EPA believes that individual small

residential buildings that are

demolished or renovated are not

covered by the asbestos NESHAP. This

is true whether the demolition or

renovation is performed by agents of the

owner of the property or whether the

demolition or renovation is performed

by agents of the municipality. EPA

believes that the residential building

exemption applies equally to an

individual small residential building

regardless of whether a municipality is

an "owner or operator" for the purposes

of the demolition or renovation. EPA

believes that the exemption is based on

the type of building being demolished

or renovated and the type of demolition

or renovation project that is being

2 Demolition of such homes typically occur after

a municipality orders a building condemned for

public health or safety reasons (e.g. condemnation

of a building that is abandoned and/or in danger of

collapse). This type of demolition does not include

demolitions of buildings for the purpose of building

public facilities like highways or sports arenas.

undertaken, not the entity performing or

controlling the demolition or

renovation.

However, EPA believes that the

residential building exemption does not

apply where multiple (more than one)

small residential buildings on the samb

site 3 are demolished or renovated by the

same owner or operator as part of the

same project or where a single

residential building is demolished or

renovated as part of a larger project that

includes demolition or renovation of

non-residential buildings. The

definition of facility specifically

includes "any residential structure,

installation or building" but excludes

only "residential buildings having four

or fewer dwelling units" [emphasis

added). Id. at 48415. Specifically not

excluded from the definition of facility were residential installations. EPA

believes that the fact that the residential

building exemption .is limited to

residential buildings, and does not

include residential installations, shows

that the residential building exemption

was not designed to exempt from the

NESHAP demolitions or renovations of

multiple buildings at a single site by the

same owner or operator. Moreover, to

the extent the regulations are

ambiguous, EPA believes the language

of the preamble to the 1990 regulations

quoted above makes clear that the

Agency interpreted the residential

building exemption not to include the

demolition of a group of residential

buildings on the same site under the

control of the same owner or operator.

The preamble also notes that

demolitions of residential buildings as a

part of larger demolition projects (e.g.

construction of a shopping mall) are not

excluded from the NESHAP. EPA

believes that this interpretation is

consistent with the original purpose of

the residential building exemption,

3 The term "site" is not defined in the regulations

and EPA does not intend to provide any

determination of the boundaries of a "site" in

today's clarification. However, to provide guidance, EPA notes that a "site" should be a relatively

compact area. In EPA's view, an entire

municipality, or even a neighborhood in a municipality, should not be considered a single

site. Where an area is made up of multiple parcels

of land owned and operated by various parties, EPA

believes that parcels on the same city block may be

considered as a single site. (Where a site can not

be easily defined as a city block, the site should be a comparably compact site. In any event, the local

government should use common sense when

applying this guide.) Obviously, EPA believes that

if a demolition project involves the demolition of

several contiguous city blocks, the entire area could

be considered a site. However, EPA believes that

demolition of two individual residences separated

by several city blocks should not be considered a demolition on a single site. In EPA's view, the area of a site may be larger where the area is owned and

operated as a unitary area by a single owner/

operator (e.g. a shopping mall or amusement park).

which was to exempt demolitions or

renovations involving small amounts of

asbestos. EPA does not believe the

residential building exemption was

designed to exempt larger demolitions

or renovations on a particular site, even

where small residential buildings are

involved. 4

While this notice clarifies EPA's belief

that certain demolitions or renovations

performed by municipalities are not

subject to the asbestos NESHAP, EPA

encourages municipalities (and other

owners ind operators) to perform such

demolitions or renovations in a manner

that provides appropriate consideration

for any potential adverse health impacts

to the public. This notice applies only

to the Federal asbestos NESHAP. Other

Federal, State or local agency

regulations may apply.

Dated: July 17, 1995.

Richard Wilson,

Acting Assistant AdministratorforAir and

Radiation.

[FR Doc. 95-18620 Filed 7-27-95; 8:45 am]

BILUNG CODE 6660-OP

40 CFR Part 81

[UT22-1-6925a; FRL-6265-6]

Designation of Area for Air Quality

Planning Purposes; Utah; Designation

of Ogden City PMio Nonattainment

Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: In this notice, EPA is revising

the PM~o (particles with an aerodynamic

diameter less than or equal to a nominal

10 micrometers) National Ambient Air

Quality Standards (NAAQS) designation

for Ogden City, a portion of Weber

County, Utah. Previously, consistent

with section 107(d)(3)(A) of the Act,

EPA notified the Governor of Utah that

Weber County, Utah should be

redesignated from unclassifiable to

nonattainment for PM1o. The

redesignation is based upon violations

of the PM1o NAAQS which were

monitored between January 1991 and

January 1993.

DATES: This final rule will become

effective on September 26, 1995 unlesd

adverse comments are received by

August 28,1995. If the effective date is

delayed, timely notice will be published

in the Federal Register.

4

EPA notes that 40 CFR 61.19 forbids owners and

operators from attempting to circumvent any

NESHAPs by carrying out an operation in a

piecemeal fashion to avoid coverage by a standard

that applies only to operations larger than a

specified size.

HeinOnline -- 60 Fed. Reg. 38726 1995
Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules and Regulations

ADDRESSES: Comments should be

addressed to: Douglas M. Skie, Chief,

Air Programs Branch, EPA Region VIII,

at the address listed below. Information

supporting this action can be found at

the following location: EPA Region VIII,

Air Pr6grams Branch, 999 18th Street,

3rd Floor, South Terrace, Denver,

Colorado 80202-2466.

The information may be inspected

between 8 a.m. and 4 p.m., on

weekdays, except for legal holidays. A

reasonable fee may be charged for

copying.

FOR FURTHER INFORMATION CONTACT: Lee

Hanley, Air Programs Branch, EPA

Region VIII, 999 18th Street, Suite 500,

Denver, Colorado 80202-2466, (303)

293-1760.

SUPPLEMENTARY INFORMATION:

A. General

The EPA is authorized to initiate

redesignation of areas (or portions

thereof) as nonattainment for PM,0

pursuant to section 107(d)(3) of the Act,

on the basis of air quality data, planning

and control considerations, or any other

air quality-related considerations the

Administrator deems appropriate. Following the process outlined in

section 107(d)(3), on July 14, 1994, the

Administrator of EPA Region VIII

requested that the Governor of Utah

recommend a PMo nonattainment

designation for Weber County based

upon six exceedances of the 24-hour

PMo NAAQS recorded between January

1991 and January 1993, ranging from

156 to 182 hg/m3. Under section

107(d)(3)(B), the Governor of Utah was

required to submit to EPA the

designation he considered appropriate

for Weber County within 120 days after

EPA's notification. The Governor

submitted a response recommending

redesignation of Ogden City, Utah to

nonattainment on January 9, 1995.

Ogden City is within Weber County, but

its boundaries are not coextensive with

those of Weber County.

Section 107(d)(1)(A) sets out

definitions of nonattainment,

attainment, and unclassifiable. A

nonattainment area is defined as any

area that does not meet (or that

significantly contributes to ambient air

quality in a nearby area that does not

meet) the national primary or secondary

ambient air quality standard for PM10.

1

Further, section 107(d)(1)(A)(i) provides

that a nonattainment area shall consist

IThe EPA has construed the definition of

nonattainment area to require some material Qr

ignificant contribution to a violation in a nearby

area. The Agency believes it is reasonable to

conclude that something greater than a molecular.

impact is required.

of that area violating the PMo NAAQS

or contributing significantly to

violations in a nearby area. Generally,

the PM, 0 nonattainment area boundaries

are presumed to be, as appropriate, the

county, township, or municipal

subdivision in which the ambient

particulate monitor recording the PMo

violations is located. EPA has presumed

that this would include both the area

violating the PMI0 NAAQS and any area

significantly contributing to the.

violations. However, a State may

demonstrate that a boundary other than

the county perimeter or municipal

boundary may be more appropriate.

Thus, in determining the appropriate

boundaries for the nonattainment area,

EPA has considered not only the area

where the violations of the PM,0

NAAQS are occurring, but nearby areas

which significantly contribute to such

violations. Based on the information

provided by the Governor, including

monitoring data, EPA believes that the

nonattainment boundaries submitted by

the Governor are appropriate at this

time.

Note: The boundaries of the nonattainment

area may be adjusted as a result of analyses

made during the SIP development process.

B. Background for PMo

On July 1, 1987, the EPA revised the

NAAQS for particulate matter (52 FR

24634), replacing total suspended

particulates as the indicator for

particulate matter with a new indicator

called PMo, that includes only those

particles with an aerodynamic diameter

less than or equal to a nominal 10

micrometers. At the same time, EPA set

forth the regulations for implementing

the revised particulate matter standards

and announced EPA's State

Implementation Plan (SIP) development

policy, elaborating PMo control

strategies necessary to assure attainment

and maintenance of the PMo NAAQS

(see generally 52 FR 24672). The EPA

adopted a PMo SIP development policy

dividing all areas of the country into

three categories based upon their

probability of violating the new

NAAQS: (1) Areas with a strong

likelihood of violating the new PM,0

NAAQS and requiring substantial SIP

adjustment were placed in Group I; (2)

areas that might well have been

attaining the PMmo NAAQS and whose

existing SIPs most likely needed less

adjustment were placed in Group II; and

(3) areas with a strong likelihood of

attaining the PMIo NAAQS and,

therefore, needing adjustments only to

their preconstruction review program

and monitoring network were placed in

Group III (52 FR 24672, 24679-24682).

At that time, Ogden City was

categorized as a Group III area.

Pursuant to section 107(d)(4)(B) of the

Act, areas previously identified as

Group I and other areas which had

monitored violations of the PMo

NAAQS prior to January 1, 1989, were,

by operation of law upon enactment of

the 1990 Amendments, designated

nonattainment for PMo. All other areas

of the Country, such as the Ogden City

area, were similarly designated

unclassifiable for PMo (see section

107(d)(4)(B)(iii) of the Act; 40 CFR

81.327 (1992) as amended by 57 FR

56762, 56772 (Nov. 30, 1992) (PMjo

designations for Utah).) After EPA

adopted the PMo NAAQS, EPA

identified and listed the Group I and

Group II areas in a Federal Register

document published on August 7, 1987,

(52 FR 29383). In that document, EPA

indicated that Group III areas consisted

of that portion of a State not placed in

Group I or II. Descriptions of the areas

identified as Group I and II areas were

later clarified in a Federal Register

document dated October 31, 1990 (55

FR 45799). That notice also identified

Group II areas which violated the

standards prior to January 1, 1989. EPA

announced all areas which were

designated nonattainment by operation

of law for PMo upon enactment of the

1990 Amendments in a Federal Register

document dated March 15, 1991 (56 FR

11101). In addition, EPA has published

a follow-up document correcting the

boundaries and designations of some of

the areas in light of comments received

addressing the March 1991 document

(see 56 FR 37654 (August 8, 1991).)

Formal codification in 40 CFR part 81

of those areas designated nonattainment

for PM,0 by operation of law upon

enactment was announced in a Federal

Register document dated November 6,

1991, (56 FR 56694). The November 6,

1991 Federal Register document was

subsequently amended on November 30,

1992 (57 FR 56762).

II. Final Action

As noted above, pursuant to section

107(d)(3) of the Act, EPA is authorized

to initiate the redesignation of areas as

nonattainment for PMo. Based on six

exceedances of the 24-hr PMlo NAAQS

recorded between January 1991 and

January 1993, EPA notified the

Governor of Utah on July 14, 1994, that

the air quality designation for Weber

County should be revised from

unclassifiable to nonattainment for PM,o

(see 40 CFR 50.6.). In response to EPA's

July 14, 1994; letter, 8PA received a

letter dated January 9, 1995, from the

Governor of Utah requesting that Ogden

City, in a portion of.Weber County,

38727

HeinOnline -- 60 Fed. Reg. 38727 1995
38728 Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules and Regulations

Utah, be redesignated as nonattainment

for PM1 o. EPA is taking final action to

redesignate Ogden City, Utah to

nonattainment for PMo.

EPA is publishing this action without

prior proposal because the Agency

views this as a noncontroversial action

and anticipates no adverse comments.

However, in a separate document in this

Federal Register publication, EPA is

proposing to redesignate the area to

nonattainment should adverse or critical

comments be filed. Under the

procedures established in the May 10,

1994 Federal Register (59 FR 24054),

this action will be effective September

26, 1995 unless, by August 28, 1995,

adverse or critical comments are

received.

If such comments are received, this

action will be withdrawn before the

effective date by publishing a

subsequent document that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. EPA will not institute a

second comment period on this action.

Any parties interested in commenting

on this action should do so at this time.

If no such comments are received, the

public is advised that this action will be

effective on September 26, 1995.

I. Significance of This Action for

Ogden City, Utah

Ogden City is being redesignated as a

moderate PM1o nonattainment area.

Utah must submit an implementation

plan to EPA for this area within 18

months after the effective date of this

nonattainment redesignation. The plan

must meet the requirements of Part D,

Title I of the Act (see section

189(a)(2)(B) of the Act).

The Clean Air Act provides that the

plan for the area must contain, among

other things, the following

requirements: 1. Either a demonstration (including

air quality modeling) that the plan will

provide for attainment of the PM1o

NAAQS as expeditiously as practicable,

but no later than the end of the sixth

calendar year after the area's

designation as nonattainment, or a

demonstration that attainment by such

date is impracticable;

2. Provisions to ensure that

reasonably available control measures

(including reasonably available control

technology) are implemented within 4

years of the redesignation; 3. A permit program meeting the

requirements of section 173 governing

the construction and operation of new

and modified major stationary sources

of PMo; and

4. Quantitative milestones which are

to be achieved every three years until

the area is redesignated attainment and

which demonstrate reasonable further

progress, as defined in section 171(1),

toward timely attainment.

See. e.g, sections 188(c), 189(a), 189(c)

and 172(c) of the Act. EPA has issued

detailed guidance on the statutory

requirements applicable to moderate

PM10 nonattainment areas. (see 57 FR

13498 (April 16, 1992) and 57 FR 18070

(April 28, 1992).)

In taking final action to redesignate

Ogden City as nonattainment, EPA is

also establishing a date by which the

State must submit the contingency

measures required by section 172(c)(9)

of the Act (see 57 FR 13498 at 13510-

13512 and 13543-13544). Section 172(b)

of the Act provides that such date shall

not be later than 3 years from the date

of the nonattainment redesignation. The

due date established for submittal of the

contingency measures is 18 months

from this redesignation. This due date

coincides with the due date for the rest

of the moderate PM10 nonattainment

area SIP.

VI. Other Regulatory Requirements

A. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 600 et seq., EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

Redesignation of an area to

nonattainment under section 107(d)(3)

of the Act does not impose any new

requirements on small entities.

Redesignation is an action that affects

the planning status of a geographical

area and does not in itself, impose any

regulatory requirements on sources. To

the extent that the State must adopt new

regulations based on the area's

nonattainment status; EPA will review

the effect of those actions on small

entities at the time the State submits

those regulations. I certify that approval

of the redesignation request will not

affect a substantial number of small

entities.

B. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 ("UMRA"), Public

Law 104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with "Federal mandates" that may

result in expenditures to State, local and

tribal governments, in the aggregate, or

to the private sector, of $100 million or

more in any one year. When a written

statement is needed for an EPA rule,

section 205 of the UMRA generally

requires EPA to'identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, or tribal

governments in the aggregate, or for the

private sector, in any one year.'

Redesignation of an area to

nonattainment under section 107(d)(3)

of the Clean Air Act affects the air

quality planning status of an area and

does not, in itself, impose any

regulatory requirements on sources and,

therefore, does not impose any

mandates or costs on the private sector.

Redesignation of an area to

nonattainment, however, does trigger an

obligation of the State to develop, adopt

and submit to EPA certain State

Implementation Plan revisions under

part D of title I of the Clean Air Act. EPA

has determined that the cost to the State

government of developing, adopting and

submitting any necessary State

Implementation Plan revisions will not

exceed $100 million. Thus, today's rule

HeinOnline -- 60 Fed. Reg. 38728 1995
Federal Register / Vol. 60, No. 145 / Friday, July 28, 1995 / Rules and Regulations

is not subject to the requirements of

sections 202 and 205 of the UMRA. EPA

has determined that this rule contains

no regulatory requirements that might

significantly or uniquely affect small

governments because only the State

government has to take any action as a

result of today's rule.

C. Petition Language

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by September 26, 1995. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

Executive Order 12866

The OMB has exempted this action

from the requirements of Section 6 of

Executive Order 12866.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: July 19, 1995.

Jack McGraw,

Acting Regional Administrator.

40 CFR part 81 is amended as follows:

PART 81--:AMENDED]

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

2. In § 81.345 the table for Utah-PM10 Nonattainment Areas is amended by

adding an entry for Weber County to

read as follows:

§81.345 Utah.

Utah-PM-10 Nonattainment Areas

CiassificaDesignated area Designation date Designation type Classification date tin yp

Ogden Area Weber County (part) September 26, 1995 ...................... Nonattainment .... September 26, 1995 ...................... Moderate.

city of Ogden.

[FR Doc. 95-18520 Filed 7-27-95; 8:45 am

BILUNG COOE 6560-60-P

40 CFR Part 82

[FRL-5266-41

Protection of Strtospheric Ozone;

Acceptable Substitutes for the

Significant New Alternatives Policy

(SNAP) Program

AGENCY: Environmental Protection

Agency.

ACTION: Notice of acceptability.

SUMMARY: This notice expands the list of

acceptable substitutes for ozone

depleting substances (ODSs) under the

Environmental Protection Agency's

(EPA) Significant New Alternatives

Policy (SNAP) program. SNAP

implements section 612 of the amended

Clean Air Act of 1990, which requires

EPA to evaluate substitutes for the

ODSs, and regulate the use of

substitutes where other alternatives

exist that reduce overall risk to human

health and the environment. Through

these evaluations, SNAP generates lists

of acceptable and unacceptable

substitutes for each of the major

industrial use sectors.

On March 18, 1994, EPA promulgated

its plan for administering the SNAP

program, and issued decisions on the

acceptabiliy and unacceptability of a

number of substitutes (59 FR 13044). In

today's Notice, EPA issues decisions on

the acceptability of substitutes not

previously reviewed by the Agency. The

intended effect of this action is to

expedite movement away from ozone

depleting compounds. To arrive at

determinations on the acceptability of

substitutes, the Agency completed a

cross-media sector end-use screening

assessment of risks to human health and

the environment.

EFFECTIVE DATE: July 28, 1995.

ADDRESSES: Information relevant to this

notice is contained in Air Docket A-91-

42, Central Docket Section, South

Conference Room 4, U.S. Environmental

Agency, 401 M Street SW., Washington,

D.C. 20460. Telephone: (202) 260-7548.

The docket may be inspected between

8:00 a.m. and 5:30 p.m. weekdays. As

provided in 40 CFR part 2, a reasonable

fee may be charged for photocopying.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Levy at (202) 233-9727 or fax

(202) 233-9577, U.S. EPA, Stratospheric

Protection Division, 401 M Street SW.,

Mail Code 6205J, Washington, D.C.

20460.

SUPPLEMENTARY INFORMATION:

I. Section 612 Program

A. Statutory Requirements

B. Regulatory History

II. Listing of Acceptable Substitutes

A. Refrigeration and Air Conditioning

B. Fire Suppression and Explosion

Protection

C. Medical Sterilants

Ill. Substitutes Pending Review

IV. Additional Information

Appendix A: Summary of Acceptable and

Pending Decisions

Section 612 Program

Statutory Requirements

Section 612 of the Clean Air Act

authorizes EPA to develop a program for

evaluating alternatives to ozonedepleting substances. EPA is referring to

this program as the Significant New

Alternatives Policy (SNAP) program.

The major provisions of section 612 are:

* Rulemaing-Section 612(c)

requires EPA to promulgate rules

making it unlawful to replace any class

I (chlorofluorocarbon, halon, carbon

tetrachloride, methyl chloroform,

methyl bromide, and

hydrobromofluorocarbon) or class II

(hydrochlorofluorocarbon) substance

with any substitute that the

Administrator determines may present

adverse effects to human health or the

environment where the Administrator

has identified an alternative that (1)

reduces the overall risk to human health

and the environment, and (2) is

currently or potentially available.

* Listing of Unacceptable/Acceptable

Substitutes-Section 612(c) also

requires EPA to publish a list of the

substitutes unacceptable for specific

uses. EPA must publish a corresponding

list of acceptable alternatives for

specific uses.

38729

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