[Federal Register Volume 78, Number 8 (Friday, January 11, 2013)]
[Rules and Regulations]
[Pages 2333-2339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00184]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R01-OAR-2012-0430; FRL-9697-2]


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: Direct final rule.

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SUMMARY: Under the Clean Air Act (``CAA'') and Federal regulations 
promulgated there under, the New Hampshire Department of Environmental 
Services (``NH DES'') submitted a request for approval to implement and 
enforce the readopted and re-codified ``Env-Sw 2100: Management and 
Control of Asbestos Disposal Sites Not Operated after July 9, 1981,'' 
and the amended ``Env-A 1801-1807.01: Asbestos Management and 
Control,'' (amended Asbestos Management Rules) in place of the National 
Emission Standard for Asbestos (``Asbestos NESHAP''). EPA has reviewed 
this request and has determined that the amended Asbestos Management 
Rules satisfy the requirements necessary for approval. Thus, EPA is 
hereby granting NH DES the authority to implement and enforce the 
amended Asbestos Management Rules in place of the Asbestos NESHAP. This 
approval makes NH DES's amended Asbestos Management Rules federally 
enforceable.

DATES: This direct final rule will be effective March 12, 2013, unless 
EPA receives adverse comments by February 11, 2013. If adverse comments 
are received, EPA will publish a timely withdrawal of the direct final 
rule in the Federal Register informing the public that the rule will 
not take effect. The incorporation by reference of certain publications 
listed in the rule is approved by the Director of the Federal Register 
as of March 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2012-0430 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: <a href="/cdn-cgi/l/email-protection#69040a0d0607070c050547000d08290c1908470e061f"><span class="__cf_email__" data-cfemail="640907000b0a0a0108084a0d0005240114054a030b12">[email protected]</span></a>.
    3. Fax: (617) 918-0653.
    4. Mail: ``EPA-R01-OAR-2012-0430'', Ida E. McDonnell, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 5 
Post Office Square (mail code OEP05-2), Boston, MA 02109-3912.
    5. Hand Delivery or Courier: Deliver your comments to: Ida 
McDonnell, Manager, Air Permits, Toxics and Indoor Programs Unit, 
Office of Ecosystem Protection, U.S. Environmental Protection Agency, 
EPA New England Regional Office, 5 Post Office Square, 5th floor, 
(OEP05-2), Boston, MA 02109-3912. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0430. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (``CBI'') or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. EPA will forward 
copies of all

[[Page 2334]]

submitted comments to the New Hampshire Department of Environmental 
Services.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, 5 Post Office 
Square, Boston, MA. EPA requests that if at all possible, you contact 
the contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding legal 
holidays.

FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and 
Indoor Programs Unit, Office of Ecosystem Protection, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 5 
Post Office Square (OEP05-2), Boston, MA 02109-3912, telephone number 
(617) 918-1656, fax number (617) 918-0656, email <a href="/cdn-cgi/l/email-protection#a0ccc1cec3c5d98ed3d5d3c1cee0c5d0c18ec7cfd6"><span class="__cf_email__" data-cfemail="a3cfc2cdc0c6da8dd0d6d0c2cde3c6d3c28dc4ccd5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever '' we,'' 
'' us,'' or '' our'' is used, we mean EPA. Organization of this 
document. The following outline is provided to aid in locating 
information in this preamble.

Table of Contents

I. Background and Purpose
II. What requirements must a state rule meet to substitute or adjust 
a section 112 rule?
III. How will EPA determine equivalency for state alternative NESHAP 
requirements?
IV. What changes did NH make to its asbestos disposal site rule?
V. What changes did NH make to its asbestos management and control 
rule?
VI. What is EPA's action regarding NH DES's amended asbestos 
management rules?
VII. Final Action
VIII. Judicial Review
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background and Purpose

    Under CAA section 112(l), EPA may approve state or local rules or 
programs to be implemented and enforced in place of certain otherwise 
applicable Federal rules, emissions standards, or requirements. The 
Federal regulations governing EPA's approval of state and local rules 
or programs under section 112(l) are located at 40 CFR Part 63, Subpart 
E. See 58 FR 62262 (November 26, 1993), as amended by 65 FR 55810 
(September 14, 2000). Under these regulations, a state air pollution 
control agency has the option to request EPA's approval to substitute a 
state rule for the applicable Federal rule (e.g., the National Emission 
Standards for Hazardous Air Pollutants). Upon approval by EPA, the 
state agency is authorized to implement and enforce its rule in place 
of the Federal rule.
    The Environmental Protection Agency (EPA) first promulgated 
standards to regulate asbestos emissions on April 6, 1973 (see 38 FR 
8826). These standards have since been amended several times and re-
codified in 40 CFR part 61, subpart M, ``National Emission Standard for 
Asbestos'' (Asbestos NESHAP). On June 28, 2002, NH DES submitted a 
partial rule substitution request to implement and enforce its 
regulation Env-Wm 3900 titled ``Management and Control of Asbestos 
Disposal Sites Not Operated After July 9, 1981'' (Asbestos Disposal 
Site Rule) in lieu of some sections of the Asbestos NESHAP as they 
apply to certain inactive waste disposal sites. On May 28, 2003, EPA 
approved the Asbestos Disposal Site Rule as a partial rule substitution 
for the provisions of the Asbestos NESHAP, under section 61.151, which 
apply to inactive waste disposal sites not operated after July 9, 1981. 
(See 68 FR 31611). On November 15, 2005 and January 10, 2006, 
respectively, EPA received a request and a supplement from NH DES for a 
rule adjustment to implement and enforce its regulation Env-A 1800 
titled ``Asbestos Management and Control'' (Asbestos Management and 
Control Rule) in lieu of the Asbestos NESHAP, except for inactive waste 
disposal sites not operated after July 9, 1981. On November 28, 2006, 
EPA approved the Asbestos Management and Control Rule as a rule 
adjustment for the Asbestos NESHAP, except for inactive waste disposal 
sites not operated after July 9, 1981.
    Under Section 63.91(e)(2), 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 EPA with a copy of the 
revised authorities and request approval of the revised rule. In a 
letter dated January 28, 2010, NH DES requested approval of its 
readopted rules pertaining to inactive waste disposal sites in New 
Hampshire. Specifically, NH DES requested that EPA approve its 
readopted and re-codified rules in Env-Sw 2100 titled ``Management and 
Control of Asbestos Sites Not Operated After July 9, 1981'' (amended 
Asbestos Disposal Site Rule). On April 1, 2010, EPA determined that 
NH's submittal was complete. In a letter dated February 25, 2011, 
supplemented on September 16, 2011 and October 20, 2011, NH DES 
requested approval of its amended rules pertaining to asbestos 
management in New Hampshire. Specifically, NH DES requested approval of 
its amended rules in Env-A 1800 titled ``Asbestos Management and 
Control'', effective October 21, 2008, Sections 1801-1807, excluding 
the following provisions: 1801.02(e), 1802.02, 1802.04, 1802.07-
1802.09, 1802.13, 1802.15-1802.17, 1802.28-1802.29, 1802.36, 1802.42, 
1802.45, 1802.50, 1802.54, 1804.05-1804.09, and 1807.02 (amended 
Asbestos Management and Control Rule). On November 16, 2011, EPA 
determined that NH's submittal was complete.
    As explained below, EPA has reviewed the State's submissions and 
determined that the amended Asbestos Disposal Site Rule and the amended 
Asbestos Management and Control Rule are no less stringent than the 
provisions of the Asbestos NESHAP. EPA is therefore approving NH DES's 
requests to implement and enforce its readopted and re-codified rules 
in Env-Sw 2100, ``Management and Control of Asbestos Disposal Sites Not 
Operated After July 9, 1981,'' as a partial rule substitution for the 
same provisions of 40 CFR 61.01 through 40 CFR 61.18 and 40 CFR 61.151 
that were substituted by the predecessor rule Env-Wm 3900 on May 28, 
2003. EPA is also approving NH DES's request to implement and enforce 
its amended rules in Env-A 1800, ``Asbestos Management and Control'', 
effective October 21, 2008, Sections 1801-1807, excluding the following

[[Page 2335]]

provisions: 1801.02(e), 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 
1802.15-1802.17, 1802.28-1802.29, 1802.36, 1802.42, 1802.45, 1802.50, 
1802.54, 1804.05-1804.09, and 1807.02, as a rule adjustment for the 
Asbestos NESHAP, except inactive waste disposal sites not operated 
after July 9, 1981.
    In addition, in the Federal Register on May 13, 2009, EPA corrected 
a sequential numbering error in 40 CFR 63.99. See 74 FR 22437. In this 
rulemaking, paragraph (a)(29) of section 63.99, the subparagraph for 
the state of New Hampshire, was redesignated as paragraph (a)(30). 
However, the references to paragraph (a)(29) in the incorporation by 
reference section 63.14(d)(5)(i) and (ii) were not corrected to refer 
to paragraph (a)(30) at that time. Therefore, today's notice also 
corrects the references in 40 CFR 63.14(d)(5) to appropriately refer to 
paragraph (a)(30).

II. What requirements must a state rule meet to substitute or adjust a 
section 112 rule?

    A state must demonstrate that it has satisfied the general 
delegation/approval criteria contained in 40 CFR 63.91(d). The process 
of providing ``up-front approval'' assures that a state has met the 
delegation criteria in Section 112(l)(5) of the CAA (as codified in 40 
CFR 63.91(d)), that is, that the state has demonstrated that its NESHAP 
program contains adequate authorities to assure compliance with each 
applicable Federal requirement, adequate resources for implementation, 
and an expeditious compliance schedule. Under 40 CFR 63.91(d) (3), 
interim or final Title V program approval satisfies the criteria set 
forth in 40 CFR 63.91(d) for ``up-front approval.'' On September 24, 
2001, EPA promulgated full approval of NH DES's operating permits 
program. See 66 FR 48806. Accordingly, NH DES has satisfied the up-
front approval criteria of 40 CFR 63.91(d).
    Additionally, the ``rule substitution'' and ``rule adjustment'' 
options require EPA to make a detailed and thorough evaluation of the 
state's submittal to ensure that it meets the stringency and other 
requirements of 40 CFR 63.93 and 40 CFR 63.92, respectively. A rule 
will be approved as a substitute if the state or local government 
demonstrates: (1) The state and local rules contain applicability 
criteria that are no less stringent than the corresponding Federal 
rule; (2) the state and local rule requires levels of control and 
compliance and enforcement measures that would achieve emission 
reductions from each affected source that are no less stringent than 
would result from the otherwise applicable Federal standard; (3) the 
schedule for implementation and compliance is consistent with the 
deadlines established in the otherwise applicable Federal rule; and (4) 
the state requirements include additional compliance and enforcement 
measures as specified in 40 CFR 63.93(b)(4). See 40 CFR 63.93(b). A 
rule will be approved as an adjustment if the state or local government 
demonstrates: (1) The public within the state has had adequate notice 
and opportunity to submit written comments on the state requirements; 
and (2) that each state adjustment to the Federal rule individually 
results in requirements that are unequivocally no less stringent than 
the applicable Federal rule regarding applicability and level of 
control and compliance and enforcement measures for each affected 
source and emission point and assure compliance by every affected 
source no later than would be required by the Federal rule. See 40 CFR 
63.92(b).
    After reviewing NH DES's amended Asbestos Management Rules and 
equivalency demonstrations for the Asbestos NESHAP, as the rules apply 
to sources in New Hampshire, EPA has determined these requests meet all 
the requirements necessary for approval under CAA section 112(l) and 40 
CFR 63.91, 63.92 and 63.93.

III. How will EPA determine equivalency for state alternative NESHAP 
requirements?

    Before we can approve alternative requirements in place of a part 
63 emissions standard, the state must submit to us detailed information 
that demonstrates how the alternative requirements compare with the 
otherwise applicable Federal standard. Under 40 CFR part 63 subpart E, 
the level of control in the state rule must be at least as stringent as 
the level of control in the Federal rule. For a rule adjustment, each 
adjustment taken individually must be no less stringent than the 
corresponding requirement in our standard. In addition, in order for 
equivalency to be granted for a rule substitution, the level of control 
and compliance and enforcement measures (monitoring, reporting and 
recordkeeping (``MRR'')) of the state rule, taken together as a whole, 
must be equivalent to the level of control and MRR of the Federal rule, 
taken together as a whole. A detailed discussion of how EPA will 
determine equivalency under the rule substitution option for state 
alternative NESHAP requirements is provided in the preamble to EPA's 
proposed Subpart E amendments on January 12, 1999. See 64 FR 1908.

IV. What changes did NH make to its asbestos disposal site rule?

    The NH DES recently completed the process of readopting expiring 
administrative rules pertaining to management of certain inactive 
asbestos sites in New Hampshire. These rules, known as the Asbestos 
Disposal Site Rule, had been previously approved by the EPA in 2003, 
under the provisions of 40 CFR 63.93, as a substitute for certain 
requirements in the Asbestos NESHAP (see 68 FR 31611, May 28, 2003). 
The Asbestos Disposal Site Rule, originally codified as Env-Wm 3900, 
became re-designated editorially in 2008, with a new subtitle, as Env-
Sw 2100, pursuant to a state approved reorganization plan for NH DES 
rules. The Env-Sw 2100 rules were set to expire on February 16, 2010. 
On January 26, 2010, with an effective date of February 16, 2010, NH 
readopted the Env-Sw 2100 rules with minor amendments (amended Asbestos 
Disposal Site Rule). No substantive changes were made to the rules. The 
changes to the regulations include the following: (1) In 2005, NH DES 
enacted legislation to transfer the portions of the asbestos control 
program that had been at the NH Department of Health and Human Services 
(DHHS) to NH DES. In the amended Asbestos Disposal Site Rule, 
references to DHHS were updated accordingly; and (2) In 2008, NH DES 
consolidated the former DHHS rules into Env-A 1800 from He-P 5000. In 
the amended Asbestos Disposal Site Rule, references to He-P 5000 were 
updated accordingly.

V. What changes did NH make to its asbestos management and control 
rule?

    On October 28, 2008, NH DES readopted the Asbestos Management and 
Control Rule Env-A 1800 (amended Asbestos Management and Control Rule) 
and incorporated the state's asbestos licensing rules, which were 
previously codified in He-P 5000. NH DES is not requesting approval of 
the amended sections of Env-A 1800 which incorporate the asbestos 
licensing rules and are unrelated to the Asbestos NESHAP. In readopting 
Env-A 1800, NH DES also made some changes to Env-A 1800 editorial in 
nature, intended to clarify rather than substantially amend the 
Asbestos Management and Control Rule. As in the original approved rule, 
the amended Asbestos Management and Control Rule continues to 
incorporate most, but not all, of the Asbestos NESHAP into Section 
1807.01. The only changes to the Asbestos NESHAP incorporation by 
reference section 1807.01 are the following: (1) NH

[[Page 2336]]

revised the reference to the NH Statute; (2) NH updated the 
incorporation by reference date to the version of the Asbestos NESHAP 
rule in the July 2007 Code of Federal Regulations; and (3) NH changed 
the term ``owner/operator'' to the acronym ``O/O''. The November 28, 
2006 Federal Register Notice contains a more detailed discussion of the 
differences between the Asbestos Management and Control Rule and the 
Asbestos NESHAP.

VI. What is EPA's action regarding NH DES's amended asbestos management 
rules?

    After reviewing the request for approval of NH DES's amended 
Asbestos Disposal Site Rule, and NH DES's amended Asbestos Management 
and Control rule, EPA has determined that these requests meet all of 
the requirements necessary to qualify for partial rule substitution 
approval and rule adjustment approval under CAA section 112(l) and 40 
CFR 63.91, 63.92, and 63.93. EPA has determined that NH DES's amended 
Asbestos Disposal Site Rule is equivalent to or not less stringent than 
the Asbestos NESHAP, as it applies to inactive waste disposal sites not 
operated after July 9, 1981. EPA has also determined that NH DES's 
amended Asbestos Management and Control Rule is equivalent to or not 
less stringent than the Asbestos NESHAP, as it applies to sources 
except for inactive waste disposal sites not operated after July 9, 
1981. Therefore, EPA hereby approves NH DES's amended Asbestos 
Management Rules to be used in place of the Asbestos NESHAP. As of the 
effective date of this action, NH DES's amended Asbestos Disposal Site 
Rule and NH DES's amended Asbestos Management and Control Rule are 
enforceable by the EPA and citizens under the CAA. Although NH DES has 
primary implementation and enforcement responsibility, EPA retains the 
right, pursuant to CAA section 112(l)(7), to enforce any applicable 
emission standard or requirement under CAA section 112.

VII. Final Action

    The EPA is approving NH's readopted and re-codified rules in Env-Sw 
2100, ``Management and Control of Asbestos Disposal Sites Not Operated 
After July 9, 1981,'' effective as of February 16, 2010, as a partial 
rule substitution for the Asbestos NESHAP, as it applies to those 
inactive waste disposal sites not operating after July 9, 1981, that 
are subject to 40 CFR 61.151 in New Hampshire. The EPA is also 
approving NH DES's amended rules in Env-A 1800, ``Asbestos Management 
and Control'', effective October 21, 2008, Sections 1801-1807, 
excluding the following provisions: 1801.02(e), 1802.02, 1802.04, 
1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.28-1802.29, 1802.36, 
1802.42, 1802.45, 1802.50, 1802.54, 1804.05-1804.09, and 1807.02, as a 
rule adjustment for the Asbestos NESHAP except for inactive waste 
disposal sites not operating after July 9, 1981. The EPA is publishing 
this action without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comments. 
However, in the proposed rules section of this Federal Register 
publication, EPA is publishing a separate document that will serve as 
the proposal to approve the rule revision should relevant adverse 
comments be filed. This rule will be effective March 12, 2013 without 
further notice unless the Agency receives relevant adverse comments by 
February 11, 2013.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the direct final rule and informing the public that the 
direct final rule will not take effect. All public comments received 
will then be addressed in a subsequent final rule based on the proposed 
rule. The EPA will not institute a second comment period on the 
proposed rule. All parties interested in commenting on the proposed 
rule should do so at this time. If no such comments are received, the 
public is advised that this rule will be effective on March 12, 2013 
and no further action will be taken on the proposed rule. Please note 
that if EPA receives adverse comment on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, EPA may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

VIII. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 
of this final rule is available only by filing a petition for review in 
the United States Court of Appeals for the appropriate circuit by March 
12, 2013. Under CAA section 307(b)(2), the requirements established by 
this final rule may not be challenged separately in any civil or 
criminal proceedings brought by EPA to enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for us to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to the EPA that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration to us should submit a Petition for Reconsideration to 
the Regional Administrator, U.S. Environmental Protection Agency, EPA 
New England Regional Office, 5 Post Office Square, (ORA 01-4), Boston, 
MA 02109-3912, with a copy to the person(s) listed in the preceding FOR 
FURTHER INFORMATION CONTACT section, and the Regional Counsel, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 5 
Post Office Square, (ORA 18-1), Boston, MA 02109-3912. Filing a 
petition for reconsideration by the Administrator of this final rule 
under CAA section 307(d)(7)(B) does not affect the finality of this 
rule for the purposes of judicial review, does not extend the time 
within which a petition for judicial review may be filed, and does not 
postpone the effectiveness of the rule.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action approves equivalent state requirements in place of 
Federal requirements under CAA section 112(l). This type of action is 
exempt from review under EO 12866.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action allows the state of 
New Hampshire to implement equivalent state requirements in lieu of 
pre-existing Federal requirements as applied only to certain asbestos-
emitting activities. Thus, this action does not require any person to 
submit information.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant

[[Page 2337]]

economic impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and small governmental jurisdictions. For purposes of assessing the 
impacts of today's rule on small entities, small entity is defined as: 
(1) A small business that meets the Small Business Administration size 
standards found at 13 CFR 121.201, (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000, and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. 
After considering the economic impacts of today's final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not have a significant impact on a substantial number of 
small entities because approvals under CAA section 112(l) and 40 CFR 
63.92 and 40 CFR 63.93 do not create any new requirements. Such 
approvals simply allow a state to implement and enforce equivalent 
requirements in place of the Federal requirements that EPA is already 
imposing.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA. This 
action is also not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments. This action allows the state of 
New Hampshire to implement equivalent state requirements in lieu of 
pre-existing Federal requirements as applied only to certain asbestos-
emitting activities. Thus, this action does not significantly or 
uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action simply allows New 
Hampshire to implement equivalent alternative requirements to replace a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Government

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
allows the state of New Hampshire to implement equivalent state 
requirements in lieu of pre-existing Federal requirements as applied 
only to certain asbestos-emitting activities. This action will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it approves a state program such that it allows the state 
of New Hampshire to implement equivalent state requirements in lieu of 
pre-existing Federal requirements as applied only to certain asbestos-
emitting activities.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action allows the state of New Hampshire to implement 
equivalent state requirements in lieu of pre-existing Federal 
requirements as applied only to certain asbestos-emitting activities. 
The state requirements contain standards that are at least equivalent 
to the federal standards; thus, we anticipate only a positive impact 
from this action.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in

[[Page 2338]]

the Federal Register. A Major rule cannot take effect until 60 days 
after it is published in the Federal Register. This action is not a 
``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective March 12, 2013.

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 recordkeeping 
requirements.

    Authority:  This action is issued under the authority of section 
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.

    Dated: December 19, 2012.
Ira Leighton,
Acting Regional Administrator, EPA-New England.

    Therefore, 40 CFR parts 61 and 63 are amended as follows:

PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

0
1. The authority citation for parts 61 and part 63 continues to read as 
follows:

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

Subpart A--General Provisions

0
2. Section 61.04 is amended by revising paragraph (c)(1) to read as 
follows:


Sec.  61.04  Address.

    (c) * * *
    (1)(i) Inactive waste disposal sites not operated after July 9, 
1981 within the state of New Hampshire must comply with the New 
Hampshire Regulations at Env-Sw 2100: Management and Control of 
Asbestos Disposal Sites Not Operated after July 9, 1981, effective 
February 16, 2010 (incorporated by reference, see Sec.  61.18).
    (ii) The remainder of the sources subject to the Part 61 Subpart M 
Asbestos provisions, except for those listed under paragraph (c)(1)(i) 
of this section, must comply with the New Hampshire Regulations at Env-
A 1800, Asbestos Management and Control, effective October 21, 2008, 
Sections 1801-1807, excluding the following provisions: 1801.02(e), 
1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.28-
1802.29, 1802.36, 1802.42, 1802.45, 1802.50, 1802.54, 1804.05-1804.09, 
and 1807.02 (incorporated by reference, see Sec.  61.18).
* * * * *

0
3. Section 61.18 is amended by revising paragraph (e)(1) to read as 
follows:


Sec.  61.18  Incorporation by reference.

* * * * *
    (e) State and Local Requirements. The following materials listed 
below are available at the Air and Radiation Docket and Information 
Center, 1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone 
number (202) 566-1745.
    (1)(i) New Hampshire Regulations at Env-Sw 2100, Management and 
Control of Asbestos Disposal Sites Not Operated after July 9, 1981, 
effective February 16, 2010 (including a letter from Thomas S. Burack, 
Commissioner, Department of Environmental Services, State of New 
Hampshire, to Carol J. Holahan, Director, Office of Legislative 
Services, dated February 12, 2010, certifying that the enclosed rule, 
Env-Sw 2100, is the official version of this rule). Incorporation By 
Reference approved for Sec.  61.04(c).
    (ii) New Hampshire Regulations at Env-A 1800, Asbestos Management 
and Control, effective October 21, 2008, Sections 1801-1807, excluding 
the following provisions: 1801.02(e), 1802.02, 1802.04, 1802.07-
1802.09, 1802.13, 1802.15-1802.17, 1802.28-1802.29, 1802.36, 1802.42, 
1802.45, 1802.50, 1802.54, 1804.05-1804.09, 1807.02 (including a letter 
from Thomas S. Burack, Commissioner, Department of Environmental 
Services, State of New Hampshire, to Carol J. Holahan, Director, Office 
of Legislative Services, dated November 14, 2008, certifying that the 
enclosed rule, Env-A 1800, is the official version of this rule). 
Incorporation By Reference approved for Sec.  61.04(c).
* * * * *

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

Subpart A--General Provisions

0
4. Section 63.14 is amended by revising paragraph (d)(5) to read as 
follows:


Sec.  63.14  Incorporation by reference.

* * * * *
    (d) * * *
    (5)(i) New Hampshire Regulations at Env-Sw 2100, Management and 
Control of Asbestos Disposal Sites Not Operated after July 9, 1981, 
effective February 16, 2010 (including a letter from Thomas S. Burack, 
Commissioner, Department of Environmental Services, State of New 
Hampshire, to Carol J. Holahan, Director, Office of Legislative 
Services, dated February 12, 2010, certifying that the enclosed rule, 
Env-Sw 2100, is the official version of this rule). Incorporation By 
Reference approved for Sec.  63.99(a).
    (ii) New Hampshire Regulations at Env-A 1800, Asbestos Management 
and Control, effective October 21, 2008, Sections 1801-1807, excluding 
the following provisions: 1801.02(e), 1802.02, 1802.04, 1802.07-
1802.09, 1802.13, 1802.15-1802.17, 1802.28-1802.29, 1802.36, 1802.42, 
1802.45, 1802.50, 1802.54, 1804.05-1804.09, 1807.02 (including a letter 
from Thomas S. Burack, Commissioner, Department of Environmental 
Services, State of New Hampshire, to Carol J. Holahan, Director, Office 
of Legislative Services, dated November 14, 2008, certifying that the 
enclosed rule, Env-A 1800, is the official version of this rule). 
Incorporation By Reference approved for Sec.  63.99(a).
* * * * *

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

0
5. Section 63.99 is amended by revising paragraphs (a)(30)(iii) and 
(iv) to read as follows:


Sec.  63.99  Delegated Federal authorities.

    (a) * * *
    (30) * * *
    (iii) Affected inactive waste disposal sites not operated after 
July 9, 1981 within New Hampshire must comply with New Hampshire 
Regulations Applicable to Hazardous Air Pollutants (incorporated by 
reference as specified in Sec.  63.14(d)) as described in paragraph 
(a)(30)(iii)(A) of this section:
    (A) The material incorporated into the New Hampshire Regulations at 
Env-Sw 2100: Management and Control of Asbestos Disposal Sites Not 
Operated after July 9, 1981, effective February 16, 2010, pertaining to 
inactive waste disposal sites not operated after July 9, 1981 in the 
State of New Hampshire's jurisdiction, and has been approved under the 
procedures in 40 CFR Part 63.93 to be implemented and enforced in place 
of the Federal NESHAPs for Inactive Waste Disposal Sites (40 CFR 
61.151).
    (B) [RESERVED]
    (iv) Affected asbestos facilities (i.e., facilities found under 40 
CFR Part 61, subpart M, except those listed under paragraph 
(a)(30)(iii)) of this section) must comply with New Hampshire 
Regulations Applicable to Hazardous Air Pollutants (incorporated by 
reference as specified in Sec.  63.14(d)) as described in paragraph 
(a)(30)(iv)(A) of this section:

[[Page 2339]]

    (A) The material incorporated into the New Hampshire Regulations at 
Env-A 1800, Asbestos Management and Control, effective October 21, 
2008, Sections 1801-1807, excluding the following provisions: 
1801.02(e), 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-
1802.17, 1802.28-1802.29, 1802.36, 1802.42, 1802.45, 1802.50, 1802.54, 
1804.05-1804.09, and 1807.02, pertaining to those affected sources in 
the State of New Hampshire's jurisdiction, and has been approved under 
the procedures in 40 CFR 63.92 to be implemented and enforced in place 
of the federal NESHAPs found at 40 CFR part 61, subpart M (except those 
listed under paragraph (a)(30)(iii) of this section).
    (B) [RESERVED]
* * * * *
[FR Doc. 2013-00184 Filed 1-10-13; 8:45 am]
BILLING CODE P


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