[Federal Register Volume 83, Number 137 (Tuesday, July 17, 2018)]
[Rules and Regulations]
[Pages 33134-33139]
[FR Doc No: 2018-15240]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-1989-0007; FRL-9980-71--Region 5]

National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List: Partial Deletion of the Naval Industrial
Reserve Ordnance Plant Superfund Site

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) Region 5 is
publishing a direct final Notice of Deletion of Operable Unit 3 (OU3)
of the Naval Industrial Reserve Ordnance Plant (NIROP) Superfund Site
(Site), located in Fridley, Minnesota, from the National Priorities
List (NPL). The NPL, promulgated pursuant to section 105 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an appendix of the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). This direct
final partial deletion is being published by EPA with the concurrence
of the State of Minnesota, through the Minnesota Pollution Control
Agency (MPCA), because EPA has determined that all appropriate response
actions under CERCLA at OU3, other than operation, maintenance, and
five-year reviews, have been completed. However, this partial deletion
does not preclude future actions under Superfund.

DATES: This direct final partial deletion is effective September 17,
2018 unless EPA receives adverse comments by August 16, 2018. If
adverse comments are received, EPA will publish a timely withdrawal of
the direct final partial deletion in the Federal Register informing the
public that the partial deletion will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-1989-0007, by one of the following methods: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. 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, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Email: [email protected].
    Mail: Randolph Cano, NPL Deletion Coordinator, U.S. Environmental
Protection Agency Region 5 (SR-6J), 77 West Jackson Boulevard, Chicago,
IL 60604,<PHONE_NUMBER>.
    Hand deliver: Superfund Records Center, U.S. Environmental
Protection Agency Region 5, 77 West Jackson Boulevard, 7th Floor South,
Chicago, IL 60604,<PHONE_NUMBER>. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information. The normal business
hours are Monday through Friday, 8 a.m. to 4 p.m., excluding Federal
holidays.
    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-
1989-0007. The http://www.regulations.gov website 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 http://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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statue. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at:
    U.S. Environmental Protection Agency, Region 5, Superfund Records
Center, 77 West Jackson Boulevard, 7th Floor South, Chicago, IL 60604,
Phone:<PHONE_NUMBER>, Hours: Monday through Friday, 8 a.m. to 4 p.m.,
excluding Federal holidays.
    Mississippi Library, 410 Mississippi St. NE, Fridley, MN 55432,
Phone:<PHONE_NUMBER>, Hours: Monday and Wednesday, 12:00 p.m. to 8:00
p.m., Tuesday and Thursday, 10:00 a.m. to 6:00 p.m., Friday, 12:00 p.m.
to 6:00 p.m. and Saturday 10:00 a.m. to 5:00 p.m.
    The Navy has an online repository for the NIROP Site at the link
below. Please click on the Administrative Records link to see all the
documents. http://www.navfac.navy.mil/products_and_services/ev/products_and_services/env_restoration/administrative_records.html?p_instln_id=FRIDLEY_NIROP.
    The Minnesota Pollution Control Agency has an information
repository for the NIROP Site at their offices: 520 Lafayette Road, St.
Paul, MN 55155. Call<PHONE_NUMBER> or toll-free at<PHONE_NUMBER> to
schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Randolph Cano, NPL Deletion
Coordinator, U.S. Environmental Protection Agency Region 5 (SR-6J), 77
West Jackson Boulevard, Chicago, IL 60604,<PHONE_NUMBER>, or via email
at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. NPL Deletion Criteria
III. Partial Deletion Procedures
IV. Basis for Site Partial Deletion
V. Partial Deletion Action

I. Introduction

    EPA Region 5 is publishing this direct final Notice of Partial
Deletion for the Naval Industrial Reserve Ordnance Plant (NIROP)
Superfund Site (Site) from the National Priorities List (NPL). This
partial deletion pertains to OU3, which includes all the unsaturated
soils underlying the former Plating Shop Area. The NPL constitutes
Appendix B of 40 CFR part 300, which is the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), which EPA promulgated
pursuant to section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, as amended. EPA
maintains the NPL as the list of sites that appear to present a
significant risk to public health, welfare, or the environment. Sites
on the NPL may be the subject of remedial actions financed by the
Hazardous Substance Superfund (Fund). This partial deletion of the
NIROP Site is proposed in accordance with 40 CFR 300.425(e) and is
consistent with the Notice of Policy Change: Partial Deletion of Sites
Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As
described in 300.425(e)(3) of the NCP, a portion of a site deleted from
the NPL remains eligible for Fund-financed remedial action if future
conditions warrant such actions.
    Section II of this document explains the criteria for deleting
sites from the NPL. Section III discusses procedures that EPA is using
for this action. Section IV discusses OU3 of the NIROP Site and
demonstrates how OU3 meets the deletion criteria. Section V discusses
EPA's action to partially delete OU3 of the Site from the NPL unless
adverse comments are received during the public comment period.

II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from
the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted
from the NPL where no further response is appropriate. In making such a
determination pursuant to 40 CFR 300.425(e), EPA will consider, in
consultation with the State, whether any of the following criteria have
been met:
    i. Responsible parties or other persons have implemented all
appropriate response actions required;
    ii. all appropriate Fund-financed response under CERCLA has been
implemented, and no further response action by responsible parties is
appropriate; or
    iii. the remedial investigation has shown that the release poses no
significant threat to public health or the environment and, therefore,
the taking of remedial measures is not appropriate.
    Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-
year reviews (FYRs) to ensure the continued protectiveness of remedial
actions where hazardous substances, pollutants, or contaminants remain
at a site above levels that allow for unlimited use and unrestricted
exposure. EPA conducts such FYRs even if a site is deleted from the
NPL. EPA may initiate further action to ensure continued protectiveness
at a deleted site if new information becomes available that indicates
it is appropriate. Whenever there is a significant release from a site
deleted from the NPL, the deleted site may be restored to the NPL
without application of the hazard ranking system.

III. Partial Deletion Procedures

    The following procedures apply to the deletion of OU3 of the NIROP
Site:
    (1) EPA has consulted with the State of Minnesota prior to
developing this direct final Notice of Partial Deletion and the
Notification of Intent for Partial Deletion published in the ``Proposed
Rules'' section of the Federal Register.
    (2) EPA has provided the State thirty (30) working days for review
of this action and the parallel Notification of Intent for Partial
Deletion prior to their publication today, and the State, through the
Minnesota Pollution Control Agency (MPCA), has concurred on the partial
deletion of the Site from the NPL.
    (3) Concurrent with the publication of this direct final Notice of
Partial Deletion, a notice of the availability of the parallel
Notification of Intent for Partial Deletion is being published in a
major local newspaper, the Sun Focus, located in Fridley, Minnesota.
The newspaper notice announces the 30-day public comment period
concerning the Notification of Intent for Partial Deletion of the Site
from the NPL.
    (4) EPA placed copies of documents supporting the partial deletion
in the deletion docket and made these items available for public
inspection and copying at the Site information repositories identified
in the Addresses Section of this rule.

    (5) If adverse comments are received within the 30-day public
comment period on this partial deletion action, EPA will publish a
timely notice of withdrawal of this direct final Notice of Partial
Deletion before its effective date and will prepare a response to
comments and continue with the deletion process on the basis of the
Notice of Intent for Partial Deletion and the comments already
received.
    Deletion of a portion of a site from the NPL does not itself
create, alter, or revoke any individual's rights or obligations.
Deletion of a portion of a site from the NPL does not in any way alter
EPA's right to take enforcement actions, as appropriate. The NPL is
designed primarily for informational purposes and to assist EPA
management. Section 300.425(e)(3) of the NCP states that the deletion
of a site from the NPL does not preclude eligibility for further
response actions, should future conditions warrant such actions.

IV. Basis for Site Partial Deletion

    The following information provides EPA's rationale for deleting OU3
of the NIROP Site from the NPL. EPA believes it is appropriate to
delete OU3 of the NIROP Site because all appropriate response actions
under CERCLA, other than operation, maintenance, and FYRs, have been
completed at OU3 and it is ready for redevelopment as a commercial and/
or industrial property.

Site Background and History

    The NIROP Site (CERCLIS ID MN3170022914) is located in the northern
portion of the Minneapolis/St. Paul Metropolitan Area in an industrial/
commercial area at 4800 E. River Road within the limits of Fridley,
Anoka County, Minnesota. The NIROP Site is not adjacent to any
residential areas and is not located in an environmentally sensitive
area, nor near any known environmentally sensitive areas.
    The Site is approximately 82.6 acres, most of which are covered
with buildings or pavement. The U.S. Navy and/or its contractors
produced advanced weapons systems at the facility beginning in 1940. In
2004, the U.S. Navy sold the property to FMC (now BAE). BAE then sold
the property to ELT Minneapolis, LLC. ELT Minneapolis owned the former
NIROP property and leased the space to United Defense LP until 2013. In
2013, ELT sold the property to Fridley Land, LLC, the current owner.
Fridley Land LLC is in the process of redeveloping the property in
phases for commercial and/or industrial use.
    The formerly government-owned portion of the facility constitutes
what is now the NIROP Site. See the site map in NIROP Map Delineating
Operable Units, Docket Document ID No. EPA-HQ-SFUND-1989-0007-0075 in
the Deletion Docket for OU3. (Note: portions of the main facility
building depicted in the Site Map have since been demolished for
redevelopment.) The Site Map also shows that the southern portion of
the original facility is not part of the NIROP Site.
    The Navy and/or its contractors disposed paint sludges and
chlorinated solvents generated from ordnance manufacturing processes in
pits and trenches in the undeveloped area of the NIROP Site immediately
north of the main facility building in the early 1970s. This area is
called the North 40 area. MPCA received information concerning the
historical waste disposal practices at NIROP and about the contaminant
sources in the North 40 area and beneath the NIROP building in 1980.
    Trichloroethylene (TCE) was discovered in on-site groundwater wells
and in the City of Minneapolis's drinking water treatment plant intake
pipe, located in the Mississippi River less than 1 mile downstream from
the Site, in 1981. The Navy conducted investigations in 1983 which
identified pits and trenches in the North 40 area of the NIROP Site
where drummed wastes were deposited. The Navy excavated approximately
1,200 cubic yards of contaminated soil and 43 (55-gallon) drums and
disposed them off-site from November 1983 to March 1984.
    EPA proposed the NIROP Site to the NPL on July 14, 1989 (54 FR
29820). EPA finalized the NIROP Site on the NPL on November 21, 1989
(54 FR 48184).
    EPA, MPCA and the Navy signed a Federal Facilities Agreement (FFA)
in March 1991. Per the FFA, one of the purposes of that agreement was
to ''Identify alternatives for Remedial Action for Operable Units''
appropriate for the Site prior to the implementation of Final Remedial
Actions for the Site.
    EPA divided the NIROP Site into three operable units (OUs) to make
it easier to address the contaminant issues at the Site. OU3, the
subject of this partial deletion, includes all the unsaturated soils
underlying the former Plating Shop Area of the Site. The extent of OU3
is detailed in the site map in NIROP Map Delineating Operable Units,
Docket Document ID No. EPA-HQ-SFUND-1989-0007-0075 in the Deletion
Docket for OU3.
    The current scope of OU3 is provided in EPA's August 12, 2013
Memorandum to File that restructured the OUs at the Site. OU3 initially
included: (1) All saturated and unsaturated soil underneath the main
NIROP manufacturing building, excluding the extreme southern portion of
the building, and (2) all saturated soil under and outside the main
NIROP manufacturing building, within the legal boundaries of the Site.
    EPA's 2013 Memorandum limited the scope of OU3 to unsaturated soil
under the former Plating Shop Area. The saturated soils that were
initially part of OU3 are now included with OU1. The remaining
unsaturated soil under the main NIROP building outside the former
Plating Shop Area that were part of OU3 are being addressed as part of
OU2.
    OU1, which includes the contaminated groundwater within and
originating from the NIROP Site, and now saturated soils, will remain
on the NPL and is not being considered for deletion as part of this
action. EPA deleted OU2, which includes all the unsaturated soils
within the legal boundaries of the NIROP Site excluding the unsaturated
soils under the former Plating Shop Area, from the NPL effective August
29, 2014 (79 FR 36658, June 30, 2014).
Remedial Investigation and Feasibility Study (RI/FS)
    The groundwater in the unconsolidated aquifer beneath the Site is
contaminated with volatile organic compounds (VOCs), including: TCE,
1,1,1-trichloroethane (TCA), 1,2-dichloroethylene (DCE),
tetrachloroethylene (PERC), 1,1-dichloroethane, toluene, xylene, and
ethylbenzene. Some or all of the contaminants identified are hazardous
substances as defined in section 104(14) of CERCLA, 42 U.S.C. 9601(14),
and 40 CFR 302.4. TCE was found more frequently and at higher
concentrations than any other VOC, and is considered to be the best
indicator chemical for the Site.
    In April 1995, the Navy was renovating the East Plating Shop (now
called the former Plating Shop Area or OU3) inside the main
manufacturing building, to accommodate an electrical assembly facility.
During the renovation, when all of the tanks were removed and prior to
the floor repairs being made, the Navy collected soil and groundwater
samples to determine whether past plating activities had impacted soil
and groundwater beneath the building.
    The Navy detected TCE, TCA, PERC and DCE at elevated levels in soil
and groundwater. The Navy also found

elevated metals concentrations, including chromium, in the vicinity of
a former sump. (Note: With the ongoing redevelopment at the Site, OU3
is no longer inside the main manufacturing building. The portion of the
building that housed OU3 has since been demolished.)
    The Navy detected the highest concentrations of TCE and PERC in the
1995 sampling event in surface (0 to 4 feet below ground surface
[bgs]), shallow subsurface (4 to 12 feet bgs), and deep subsurface (>12
feet bgs) soil samples collected from the East Plating Shop. This
indicated the possible presence of a ``hot spot'' of TCE and PERC in
this area and the likelihood that the East Plating Shop was the source
area for these VOCs and chromium.
    The 2002 Baseline Human Health Risk Assessment (HHRA) identified an
unacceptable potential risk/hazard in OU3 for exposure to soil in the
East Plating Shop area under the major-infrequent construction worker
exposure scenario. The major-infrequent construction worker exposure
scenario assumed construction workers would have a short-term exposure
to the maximum concentration of soil contaminants detected from 0-12
feet bgs in the East Plating Shop area during major modifications to
the building slab and foundations. The HHRA did not identify any
unacceptable risks or hazards to exposure to OU3 soil under a
commercial/industrial scenario.
    The cancer risk calculated for the major-infrequent construction
worker in the 2002 HHRA was 2.1 x 10-6. This risk is within
EPA's acceptable risk range of 1 x 10-4 to 1 x
10-6, but exceeds MPCA's acceptable subchronic incremental
cancer risk of 1 x 10-6.
    The noncancer risks calculated for the major-infrequent
construction worker in OU3 in the 2002 HHRA was a hazard quotient (HQ)
of 1.35 for chromium, and a total hazard index (HI) of 2.9 for all
chemicals. These levels exceed EPA's acceptable noncancer HQ of 1 for
individual contaminants and a HI of 1 for multiple chemicals, and
MCPA's acceptable subchronic HQ and HI levels of 1 for individual and
multiple chemicals.
    Chromium is most commonly present in its less-toxic trivalent form
because environmental conditions typically favor the reduction of the
more-toxic hexavalent chromium to its less-toxic trivalent state. The
2002 HHRA, however, conservatively assumed that 100 percent of the
chromium detected in the East Plating Shop area was in the hexavalent
form, due to the absence of site-specific speciated data and
considering historic Site use. Based on this assumption of 100 percent
hexavalent chromium, the potential risks to OU3 receptors from exposure
to chromium in the 2002 HHRA were likely overestimated.
    Several years after the OU3 remedy was selected and implemented, in
2015, the Navy conducted additional soil sampling in OU3 for total and
hexavalent chromium analysis. The analytical results show that at most,
the more toxic hexavalent chromium constitutes only 7 percent of the
total OU3 chromium measured. The 2015 total and hexavalent chromium
concentrations in soil were both below the MPCA soil reference values
for industrial use. The Navy used these speciated chromium results to
complete a more accurate, focused risk assessment for OU3 chromium in
2016.
    In 2016, the Navy also excavated soils beneath the East Plating
Shop to remove a potential source of TCE to the groundwater. The
excavated soil was in the same area as the elevated chromium
concentrations evaluated in the 2002 HHRA. This soil removal aided in
reducing any potential health risks associated with chromium.
    The Navy completed the Focused Human Health Risk Assessment (FHHRA)
for the East Plating Shop area in 2016. The Navy did not include in the
data set the soil samples collected in 2015 in the areas subsequently
excavated as part of the 2016 East Plating Shop excavation because they
were no longer present or available for contact by human receptors.
    The FHHRA determined that, for the major-infrequent construction
worker exposure scenario, the potential non-cancer HI for all
contaminants of potential concern (COPCs)/target organs combined is
0.16. This HI is below EPA's and MPCA's target HI of 1 and does not
exceed MPCA's target HQ level of 0.2 for individual COCs. Therefore,
the 2016 FHHRA concluded that there are no unacceptable risks or
hazards for major-infrequent construction workers who may be exposed to
chemicals in mixed OU3 soil.
Selected Remedy
    EPA, MPCA and the Navy issued a Record of Decision (ROD) for OU1 on
September 28, 1990, and a ROD for OU2 and OU3 on September 17, 2003.
EPA issued a Memorandum to File on September 5, 2013 clarifying the OU
definitions at the site. The changes to the structure of the OUs in the
2013 Memorandum to File did not alter any of the selected remedies for
the Site. EPA, MPCA and the Navy issued an Explanation of Significant
Differences (ESD) documenting a requirement for groundwater
institutional controls (ICs) as part of the OU1 remedy on September 26,
2014. EPA, MPCA and the Navy issued an ESD documenting a change in some
of the IC requirements for OU3 on July 19, 2017. These documents are
available the Docket under Docket Document IDs EPA-HQ-SFUND-1989-0007-
0062 (1990 OU1 ROD), EPA-HQ-SFUND-1989-0007-0063 (2003 OU2 and OU3
ROD), EPA-HQ-SFUND-1989-0007-0068 (2013 Memorandum to File), EPA-HQ-
SFUND-1989-0007-0069 (2014 OU1 ESD) and EPA-HQ-SFUND-1989-0007-0071
(2017 OU3 ESD).
    The original remedial action objectives (RAOs) for OU3 in the 2003
OU2 and OU3 ROD were: (1) To prevent unacceptable risks due to
residential or other unrestricted exposures to contaminated soils at
the Site, and (2) to prevent unacceptable risks to industrial or
construction workers due to exposures to contaminated soils at the
Site. The remedial action specified for OU3 soils in the 2003 ROD were
engineering controls (ECs) and ICs. The original selected remedy for
OU3 was: (1) To restrict the use of the Property to industrial or
restricted commercial use, until and unless EPA and MPCA determine that
concentrations of hazardous substances in the soils have been reduced
to levels that allow for a less restrictive use; (2) to prohibit the
disturbance of soils beneath the Designated Restricted Area known as
the concrete pit foundations where metal-finishing operations
previously occurred at the former Plating Shop within the Main
Manufacturing Building without the prior written approval of the EPA
and MPCA; and (3) to ensure that the concrete pit floor (approximately
8 to 12 feet below grade floor) where metal finishing operations
previously occurred at the former Plating Shop within the Main
Manufacturing Building is not removed without the prior written
approval of EPA and MPCA. That floor will serve as an EC.
    On July 19, 2017, EPA, MPCA and the Navy issued an ESD to remove
the requirement for some of the ICs and ECs in the OU3 remedy. The
remedy components described in the 2003 OU2 and OU3 ROD were initially
required to ensure the long-term protectiveness of the OU3 soil because
the OU3 soil contamination remained at the Site above levels that allow
for unlimited use and unrestricted exposure.
    The 2017 ESD modified the selected remedy for OU3 by removing the
second and third remedy components described above from the OU3 remedy.

Specifically, there was no longer a need to prohibit the disturbance of
soils beneath the former Plating Shop area, nor to ensure that the
concrete pit floor at the former Plating Shop remains in place.
    EPA, MPCA and the Navy included these two OU3 remedy components in
the 2003 ROD based on the conservative assumption in the 2002 HHRA that
all of the chromium in OU3 soil was in the more-toxic hexavalent form.
Based on the 2015 sampling data, which included speciated chromium
results, and the 2016 FHHRA, which found no unacceptable risks or
hazards for the major-infrequent construction worker scenario at OU3,
the floor in the Plating Shop is no longer needed as an EC and OU3 ICs
prohibiting the soils beneath the Plating Shop from being disturbed are
no longer necessary.
    The IC restricting OU3 to industrial or restricted commercial use
in the 2003 OU2 and OU3 ROD [i.e., OU3 remedy component (1) listed
above], remains part of the selected remedy for OU3. Implemented ICs at
the Site are shown in Figure 2 of the 2017 OU3 ESD in the Docket
(Docket Document ID No. EPA-HQ-SFUND-1989-0007-0071).
Response Actions
    EPA concurred with the Navy's March 2004 Land Use Control Remedial
Design (LUCRD) for OU3 in August 2004. The LUCRD specifies how the OU3
remedy will be implemented, maintained, and enforced if any breach of
the remedy should occur. The LUCRD details the Navy's continuing
responsibilities with respect to OU3, including: Ensuring that annual
on-site physical inspections of OU3 are performed to confirm continued
compliance with all Land Use Control (LUC) Performance Objectives;
ensuring that annual LUC Compliance Certifications are provided to EPA
and MPCA that explain any deficiency, if found; conducting FYRs of the
remedy as required by CERCLA and the NCP; notifying EPA and MPCA prior
to any planned property conveyance; providing EPA and MPCA the
opportunity to review the text of intended deed provisions; and
notifying EPA and MPCA if Site activities might interfere with LUC
effectiveness.
    The LUCs were incorporated into a Quitclaim Deed that was executed
by the property owner, the United States and MPCA on June 17, 2004. The
Quitclaim Deed acts as an environmental covenant describing the
property restrictions. The deed restrictions run with the land such
that any subsequent property owner is bound by the same restrictions.
The LUCs are to remain in place until EPA and MPCA determine that the
concentrations of hazardous substances in the OU3 soils have been
reduced to levels that allow for a less restrictive use.
    In 2017, EPA, MPCA and the Navy issued an ESD for OU3 removing the
requirement for two of the three OU3 LUCs required by the 2003 OU2 and
OU3 ROD. The 2017 ESD removed the requirement for the LUCs that
required the concrete pit floor in the former Plating Shop to remain in
place and for the soils in the former Plating Shop area to remain
undisturbed.
Cleanup Levels
    There was no cleanup associated with the original remedy for OU3.
In 2016, however, soils beneath the East Plating Shop were excavated
and replaced with clean soil to address a potential source of TCE to
the groundwater as part of OU1. The excavated soil was in the same area
as the elevated chromium concentrations evaluated in the 2002 HHRA. The
2016 TCE soil removal also aided in reducing any potential health risk
associated with chromium. This further justified the removal of the
LUCs for the former Plating Shop floor and for the soil below the floor
described in the 2017 OU3 ESD.
Operation and Maintenance
    The Navy is the lead agency for the Site and is responsible for
conducting routine inspections to ensure that the LUCs are maintained
and enforced. The Navy is responsible for reporting the results of the
inspections and any breach of the LUCs to the MPCA and EPA.
Five-Year Review
    The Navy conducted the last FYR at the Site in October 2013. The
2013 FYR concluded that the remedy at NIROP for OU3 is protective of
human health and the environment. The 2013 FYR did not identify any
issues or recommendations for OU3. The FYR calls for the Navy to
continue long-term stewardship to ensure that the LUC restricting land
use at the Site to industrial or restricted commercial use is
maintained. The next FYR for the Site is scheduled for October 2018.
Redevelopment
    Redevelopment is currently underway to redevelop the NIROP Site
into a commercial office/warehouse complex. This redevelopment is
consistent with the existing Land Use Designation for the Site. The
three parties to the FFA agree that delisting OU3 from the NPL will
facilitate the redevelopment effort and allow OU3 to become eligible
for State and Federal Brownfields funding. Superfund NPL site property
is not eligible for Federal Brownfields funding.
    A developer has enrolled the NIROP Site and adjacent land into
MPCA's Voluntary Investigation and Cleanup (VIC) program. In
conjunction with the redevelopment of the NIROP Site, any additional
investigations will be conducted under the oversight and direction of
MPCA's VIC program. Under the VIC program, MPCA also requested that all
buildings at the NIROP Site have vapor mitigation units installed them
and the builder has complied.
Community Involvement
    Public participation activities have been satisfied as required in
CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42
U.S.C. 9617. EPA published a document announcing this proposed Direct
Final Partial Deletion and announcing the 30-day public comment period
in the Sun Focus concurrent with publishing this partial deletion in
the Federal Register. Documents in the deletion docket, which EPA
relied on for recommending the partial deletion of the Site from the
NPL, are available to the public in the information repositories and at
www.regulations.gov. Documents in the docket include maps which
identify the specific parcels of land that are included in this
proposed Direct Final Partial Deletion (i.e., OU3).
Determination That the Criteria for Partial Deletion Have Been Met
    The NCP (40 CFR 300.425(e)) states that portions of a site may be
deleted from the NPL when no further response action is appropriate in
that area or media. All cleanup actions specified for OU3 of the NIROP
Site in the 2003 OU2 and OU3 ROD and the 2017 OU3 ESD have been
implemented at the Site. EPA, in consultation with the State of
Minnesota, has determined that no further action is warranted to
protect human health and the environment at OU3 and that OU3 of the
NIROP Site meets the criteria for Partial Deletion from the NPL.

V. Partial Deletion Action

    EPA, with concurrence of the State of Minnesota through the MPCA,
has determined that all appropriate response actions under CERCLA at
OU3, other than operation, maintenance, and five-year reviews, have
been completed. Therefore, EPA is deleting OU3 of the NIROP Site from
the NPL.
    Because EPA considers this action to be noncontroversial and
routine, EPA is

taking it without prior publication. This action will be effective
September 17, 2018 unless EPA receives adverse comments by August 16,
2018. If adverse comments are received within the 30-day public comment
period, EPA will publish a timely withdrawal of this direct final
notice of partial deletion before the effective date of the partial
deletion and it will not take effect. EPA will prepare a response to
comments and continue with the deletion process on the basis of the
notification of intent to partially delete and the comments already
received. There will be no additional opportunity to comment.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.

    Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626,
77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3
CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp.,
p. 193.

    Dated: June 25, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-15240 Filed 7-16-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Proposed Rules]
[Pages 2057-2061]
[FR Doc No: 2023-00112]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R01-OAR-2022-0496; FRL-10522-01-R1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the amended ``Env-Sw 2100: Management and Control of Asbestos
Sites Not Operated after July 9, 1981,'' effective September 1, 2018
(``amended Asbestos Disposal Site Rule'') in place of the National
Emission Standard for Asbestos (``Asbestos NESHAP'') provisions for
inactive waste disposal sites not operated after July 9, 1981 submitted
by the State of New Hampshire. The intended effect of this action is to
propose approval of the amended Asbestos Disposal Site Rule in place of
the Asbestos NESHAP provisions for inactive waste disposal sites not
operated after July 9, 1981. This approval would make the New Hampshire
Department of Environmental Services' (NH DES) amended Asbestos
Disposal Site Rule federally enforceable. This action is being taken
under the Clean Air Act.

DATES: Written comments must be received on or before February 13,
2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2022-0496 at https://www.regulations.gov, or via email to
[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. Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA
Region 1 Regional Office, Air and Radiation Division, 5 Post Office
Square--Suite 100, Boston, MA. EPA requests that if at all possible,
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Liam Numrich, Air Permits, Toxics, and
Indoor Programs Branch, U.S. Environmental Protection Agency, EPA
Region 1, 5 Post Office Square-Suite 100, Boston, MA 02109-3912, tel:
(617) 918-1307, email: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background and Purpose
II. What requirements must a state rule meet to substitute or adjust
a section 112 rule?
III. How will EPA determine equivalency for state alternative NESHAP
requirements?
IV. Why did NH DES previously seek a partial rule substitution?
V. What changes did NH make to its Asbestos Disposal Site Rule?
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews

I. Background and Purpose

    Under CAA section 112(l), EPA may approve state or local rules or
programs to be implemented and enforced in place of certain otherwise
applicable Federal rules, emissions standards, or requirements. The
Federal regulations governing EPA's approval of state and local rules
or programs under section 112(l) are located at 40 CFR part 63, subpart
E. 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 at 40 CFR 61.151, which apply
to inactive waste disposal sites not operated after July 9, 1981. (See
68 FR 31611). On January 28, 2010, NH DES requested approval of its
readopted and recodified rules pertaining to inactive waste disposal
sites in New Hampshire. On January 11, 2013, EPA approved New
Hampshire's readopted and re-codified rules in Env-Sw 2100 titled
``Management and Control of Asbestos Sites Not Operated After July 9,
1981,'' effective as of February 16, 2010. (See 78 FR 2333).
    Under 40 CFR 63.91(e)(2), within 90 days of any amendment, repeal,
or revision of any state rule approved as an alternative to a Federal
requirement, the state must provide EPA with a copy of the revised
authorities and request approval of the revised rule. NH DES enacted
amendments to Env-Sw 2100 in 2018. The purpose of these amendments is
to more effectively address large quantities of asbestos waste buried
throughout Nashua and Hudson, NH on residential, commercial, and
industrial properties. On December 29, 2021, NH DES requested EPA
approval to implement its amended rules in Env-Sw 2100 as a partial
substitute for 40 CFR 61.01 through 40 CFR 61.18 (subpart A, General
Provisions) and 40 CFR 61.151 (subpart M provisions applicable to
inactive asbestos disposal sites). NH DES now seeks to have the 2010
substituted rule formally replaced with the 2018 amended Asbestos
Disposal Site rule. While we acknowledge receiving New Hampshire's
submission of the revised rule after the 90-day deadline, pursuant to
40 CFR 63.91(e)(2)(iii), until such time as EPA approves or withdraws
approval of a revised rule, the previously approved rule remains
federally enforceable and the revision is not federally enforceable.
Therefore, EPA believes that it is appropriate to act on the state's
submission even though the state did not request approval of the
revised rule within 90 days. As explained below, EPA has reviewed the
State's submission and determined that the amended Asbestos Disposal
Site Rule is no less stringent than the provisions of the Asbestos
NESHAP. EPA is therefore proposing to approve NH DES's requests to
implement and enforce its amended rules in Env-Sw 2100, ``Management
and Control of Asbestos Disposal Sites Not Operated After July 9,
1981,'' effective September 1, 2018 (``amended Asbestos Disposal Site
Rule'') as a partial rule substitution for the same provisions of 40
CFR 61.01 through 40 CFR 61.18 and 40 CFR 61.151 that were substituted
by the predecessor rule Env-Wm 3900 on May 28, 2003 and amended in
2010.

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

    A state must demonstrate that it has satisfied the general
delegation/approval criteria contained in 40 CFR 63.91(d). The process
of providing ``up-front approval'' assures that a state has met the
delegation criteria in section 112(l)(5) of the CAA (as codified in 40
CFR 63.91(d)), that is, that the state has demonstrated that its NESHAP
program contains adequate authorities to assure compliance with each
applicable Federal requirement, adequate resources for implementation,
and an expeditious compliance schedule. Under 40 CFR 63.91(d) (3),
interim or final Title V program approval satisfies the criteria set
forth in 40 CFR 63.91(d) for ``up-front approval.'' On September 24,
2001, EPA promulgated full approval of NH DES's operating permits
program. See

66 FR 48806. Accordingly, NH DES has satisfied the up-front approval
criteria of 40 CFR 63.91(d).
    Additionally, the ``rule substitution'' option requires EPA to make
a detailed and thorough evaluation of the state's submittal to ensure
that it meets the stringency and other requirements of 40 CFR 63.93. A
rule will be approved as a substitute if the state or local government
demonstrates: (1) the state and local rules contain applicability
criteria that are no less stringent than the corresponding Federal
rule; (2) the state and local rule requires levels of control and
compliance and enforcement measures that would achieve emission
reductions from each affected source that are no less stringent than
would result from the otherwise applicable Federal standard; (3) the
schedule for implementation and compliance is consistent with the
deadlines established in the otherwise applicable Federal rule; and (4)
the state requirements include additional compliance and enforcement
measures as specified in 40 CFR 63.93(b)(4). See 40 CFR 63.93(b).
    A state may also seek, and EPA may approve, a partial delegation of
the EPA's authorities. CAA 112(l)(1). To obtain a partial rule
substitution, the state's submittal must meet the otherwise applicable
requirements in 40 CFR 63.91 and 63.93, and be separable from the
portions of the program that the state is not seeking rule substitution
for. See 64 FR 1889.

III. How will EPA determine equivalency for State Alternative NESHAP
Requirements?

    Before we can approve alternative requirements in place of a part
61 or part 63 emissions standard, the state must submit to us detailed
information that demonstrates how the alternative requirements compare
with the otherwise applicable Federal standard. Under 40 CFR part 63,
subpart E, the level of control in the state rule must be at least as
stringent as the level of control in the Federal rule. In addition, in
order for equivalency to be granted for a rule substitution, the level
of control and compliance and enforcement measures (monitoring,
reporting and recordkeeping (``MRR'')) of the state rule, taken
together as a whole, must be equivalent to the level of control and MRR
of the Federal rule, taken together as a whole. A detailed discussion
of how EPA will determine equivalency under the rule substitution
option for state alternative NESHAP requirements is provided in the
preamble to EPA's proposed Subpart E amendments on January 12, 1999.
See 64 FR 1908.

IV. Why did NH DES previously seek a partial rule substitution?

    In its initial request for a partial rule substitution on June 28,
2002, NH DES stated that virtually all known inactive waste disposal
sites not operated after July 9, 1981, are concentrated in two
neighboring communities, Nashua and Hudson. Due to dumping practices by
a former asbestos manufacturing plant, over 250 sites are known to
exist in these two areas on properties that are actively in use for
residential, commercial, industrial, recreational and public purposes.
The asbestos manufacturing plant operated in Nashua disposed of its
asbestos containing waste by delivering it to the property owners for
use as fill (i.e., in low-lying areas) until the late 1970's. The
material exists in and around schoolyards, roadways, parking lots, and
shopping centers as well as within wooded areas, along riverbanks, and
within conservation areas. In its initial request, NH DES also stated
that the requirements of 40 CFR 61.151, the portion of the Asbestos
NESHAP that applies to inactive waste disposal sites, were established
with traditional industrial/commercial dumpsites in mind, rather than
dumpsites spread throughout a developed and active community setting.
Consequently, certain aspects of Sec.  61.151 are not well suited for
inactive waste disposal sites not operated after July 9, 1981, in New
Hampshire.
    For example, in its initial request, NH DES stated that Sec.
61.151 of the Asbestos NESHAP requires unfenced/non-posted sites to be
covered with a minimum of six inches of soil if vegetated, or a minimum
of 24 inches of soil if not vegetated. If the site is not fenced and
posted, other viable capping materials can be used but only with EPA
approval pursuant to 40 CFR 61.151(c). This means that neither asphalt
nor concrete can be used as a surface treatment without EPA approval.
In these communities, asbestos waste is currently buried beneath
parking lots, driveways, and sidewalks. NH DES substituted performance-
based specifications for the ``one-size-fits-all'' cover specifications
in 40 CFR 61.151.
    As another example, 40 CFR 61.151(d) requires the owner/operator of
an inactive waste disposal site to supply notice at least 45 days in
advance of excavating or disturbing any asbestos-containing waste at
the site. In its initial request, NH DES explained that due to the
built-up nature of these inactive waste disposal sites, the need to
disturb asbestos on short notice is a common occurrence and needs to be
addressed. For instance, asbestos waste often must be disturbed to
replace broken water lines as well as to repair or replace cover
materials exposed due to storm water runoff. NH DES's substituted rules
reduce the length of the notice period but also require all persons who
disturb asbestos waste to be qualified and to employ specific safe work
practices and engineering controls.
    In its initial request, NH DES also noted that the general
provisions of 40 CFR part 61, subpart A generally apply to new
stationary sources that are not yet constructed or to existing
stationary sources that are actively operating. Inactive waste disposal
sites are already constructed and are no longer operating or allowed to
emit pollutants. Therefore, NH DES's rule includes general requirements
that are more relevant to inactive waste disposal sites. For example,
the alternative rules address site monitoring, maintenance, and
reporting requirements in a manner appropriate to closed nonoperating
sources that by their nature cannot be constructed or modified to
increase their emissions.

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

    Effective as of September 1, 2018, NH DES amended its rules in Env-
Sw 2100, ``Management and Control of Asbestos Disposal Sites Not
Operated After July 9, 1981.'' The following provides an overview of
the changes NH DES made to its amended Asbestos Disposal Site Rule.
Detailed side-by-side comparison tables of NH DES's amended Asbestos
Disposal Site Rule compared to the Asbestos NESHAP and the General
Provisions are included in the docket identified in the ADDRESSES
section of this Federal Register. See Table 1 and Table 2 of NH DES's
December 29, 2021, submission.
    In section Env-Sw 2102 of the amended Asbestos Disposal Site Rule,
definitions were added and amended to more clearly explain the roles
and responsibilities including Certified Asbestos Disposal Site (ADS)
Workers, Contractors, Qualified ADS Contractors, and Qualified
Individuals. The definition of ``Utility Project'' was expanded to
include projects that occur in roadways and railroad right of ways, so
that those projects involving multiple property owners can be handled
similarly to utility projects that also often involve multiple property
owners. In addition, NH DES moved the definitions of Asbestos, Asbestos
Disposal Site, and Contractor to

Appendix C: Statutory Definitions of Env-Sw 2100.
    In Env-Sw 2103, Waivers, application criteria were updated and
clarified regarding who can apply for a waiver, signature requirements,
criteria for granting and denying waiver requests, and decision-making
procedures and requirements. Language in Env-Sw 2103.05(e) was added to
provide that NH DES may grant a waiver only after the requestor obtains
approval from EPA for the alternative control method pursuant to 40 CFR
60.151(c).
    In Env-Sw 2104, General Site Management Requirements, multiple
requirements for capping systems and owner responsibilities were
clarified. This includes design and maintenance requirements for
capping systems, how the requirements of these rules relate to other
local, state, and federal requirements, owner responsibility to protect
capping systems and assure asbestos is not disturbed except in
controlled situations, and owner responsibility to keep and disclose
clearance determination records produced by qualified individuals when
projects are completed.
    In Env-Sw 2105, Work Practices and Engineering Controls, it was
clarified that the rules in this part apply to all projects involving
the disturbance of asbestos, even those that do not require the work to
be done by licensed/certified persons. New and amended terms were
incorporated from the definitions section to clarify rule
implementation including, for example, that work plans must be prepared
and signed by qualified individuals, that clearance determinations must
be performed and signed by certified qualified individuals, that air
monitoring results can be summarized in the project completion report,
and that lab data is allowed to be placed in the owner records versus
submitted to NH DES. The amendments also clarified signature
requirements for project completion reports and clearance
determinations, project notice requirements, as well as roles and
responsibilities for notification, reporting, and clearance
determinations. In addition, hyperlinks were added to provide
information on documents that were incorporated by reference into the
rule.
    In Env-Sw 2106, Work Plans for Major Non-Emergency Projects, rule
implementation was clarified by incorporating new and amended terms
from the definitions section. In addition, the requirements for and the
process of submitting work plans for approval were clarified, and the
process for updating approved generic work plans was clarified.
    In Env-Sw 2107, Suspension and Revocation, the amendments clarified
and expanded the good cause provision for suspension or revocation of
any approval issued pursuant to Chapter Env-Sw 2100.
    After reviewing NH DES's amended Asbestos Disposal Site Rule and
equivalency demonstrations for the Asbestos NESHAP inactive waste
disposal site provisions, as the rules apply to sources in New
Hampshire for inactive waste disposal sites not operated after July 9,
1981, EPA has determined that the amended Asbestos Disposal Site Rule
is no less stringent than the provisions of the Asbestos NESHAP and
these requests meet all the requirements necessary for approval under
CAA section 112(l) and 40 CFR 63.91 and 63.93.

VI. Proposed Action

    EPA is proposing to grant NH DES the authority to implement the
revised Env-Sw 2100, ``Management and Control of Asbestos Disposal
Sites Not Operated After July 9, 1981,'' effective September 1, 2018,
in place of the Asbestos NESHAP provisions for inactive waste disposal
sites not operated after July 9, 1981. Upon approval the rule will be
federally enforceable. EPA is soliciting public comments on the issues
discussed in this document or on other relevant matters. These comments
will be considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to this proposed rule by following the instructions listed in
the ADDRESSES section of this Federal Register.

VII. Incorporation by Reference

    In this proposed rule, the EPA is proposing to include in a final
EPA rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference New Hampshire Regulations at Env-Sw 2100:
``Management and Control of Asbestos Disposal Sites Not Operated after
July 9, 1981,'' effective September 1, 2018, as described in section VI
of this proposed rule. The EPA has made, and will continue to make,
these documents generally available through https://www.regulations.gov
and at the EPA Region 1 Office (please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator has the authority to
approve section 112(l) submissions that comply with the provisions of
the Act and applicable Federal regulations. In reviewing section 112(l)
submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the Clean Air Act. Accordingly, this proposed
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the 112(l) submission is not approved to apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian

country, the proposed rule does not have tribal implications and will
not impose substantial direct costs on tribal governments or preempt
tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).

List of Subjects

40 CFR Part 61

    Environmental protection, Air pollution control, Administrative
practice and procedure, Arsenic, Asbestos, Benzene, Beryllium,
Hazardous substances, Incorporation by reference, Intergovernmental
relations, Mercury, Radioactive materials, Radon, Reporting and
recordkeeping requirements, Uranium, Vinyl chloride.

40 CFR Part 63

    Environmental protection, Air pollution control, Administrative
practice and procedure, Business and industry, Carbon oxides, Hazardous
substances, Incorporation by reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.

    Dated: January 3, 2023.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2023-00112 Filed 1-11-23; 8:45 am]
BILLING CODE 6560-50-P