[Federal Register Volume 87, Number 139 (Thursday, July 21, 2022)]
[Proposed Rules]
[Pages 43464-43467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15553]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[EPA-R10-OAR-2022-0374; FRL-9881-01-R10]


National Emissions Standards for Hazardous Air Pollutants; 
Delegation of Authority to Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
fully approve a delegation request submitted by the Washington State 
Department of Health (WDOH) for full delegation of authority to 
implement and enforce the National Emission Standards for Hazardous Air 
Pollutants for radionuclide air emissions. The EPA granted WDOH partial 
delegation of authority to implement and enforce these standards 
effective July 5, 2006. The WDOH has addressed the partial approval 
issues, has updated its adoption of the applicable Federal standards to 
address all current Federal requirements, and has submitted to the EPA 
a request for full delegation of these standards.

DATES: Comments must be received on or before August 22, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2022-0374, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. The EPA may 
publish any comment received to its public docket. Do not 
electronically submit any information you consider to be Confidential 
Business Information (CBI) or other information the disclosure of which 
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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jim McAuley, EPA Region 10, 1200 Sixth 
Avenue, Suite 155, Seattle, WA 98101, at (206) 553-1987 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. WDOH's Delegation Request
III. EPA Action
    A. What authorities are included?
    B. What authorities are excluded?
IV. Implications
V. Summary of Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    Section 112(l) of the Clean Air Act (CAA) and the Code of Federal 
Regulations (CFR) at 40 CFR part 63, subpart E, authorize the EPA to 
delegate to State and local agencies authority to implement and enforce 
the National Emission Standards for Hazardous Air Pollutants (NESHAPs) 
if specified requirements are met. The NESHAPs are codified in 40 CFR 
parts 61 and 63. One option for such delegation is ``straight 
delegation,'' under which a State or local agency requests delegation 
based on Federal rules adopted unchanged into State or local rules. 
Criteria for

[[Page 43465]]

straight delegations are set forth in 40 CFR 63.91(d). There are two 
basic requirements for straight delegation. First, the requesting 
agency must show it has adequate authority and resources to implement 
and enforce the specified NESHAP. This criterion must be met for 
straight delegation as well as for all other types of delegation under 
CAA section 112(l). Second, for straight delegation, the requesting 
agency must show that it has adopted the Federal NESHAPs for which it 
is requesting delegation unchanged into State or local law.
    Effective July 5, 2006, the EPA granted WDOH partial approval and 
delegation to implement and enforce the radionuclides NESHAPs in the 
State of Washington, specifically, 40 CFR part 61, subparts A, B, H, I, 
K, Q, R, T, and W (Radionuclides NESHAPs) as in effect on July 1, 2004 
(71 FR 32276, June 5, 2006). The EPA granted WDOH partial rather than 
full approval and delegation of the Radionuclides NESHAPs because WDOH 
did not at that time have express authority to recover criminal fines 
for certain actions, as required by 40 CFR 70.11(a)(3)(iii) and 40 CFR 
63.91(d)(3)(i)(A). The EPA also approved a streamlined mechanism by 
which WDOH could receive partial approval and delegation of newly 
promulgated or revised Radionuclides NESHAPs as provided in 40 CFR 
63.91(a)(1) and (d)(2).

II. WDOH's Delegation Request

    The WDOH submitted a request for full approval and delegation of 
the Radionuclides NESHAPs on February 3, 2012. The WDOH also submitted 
additional updates to its request in letters dated April 10, 2017, 
August 11, 2017, September 18, 2016 and February 25, 2022. In its 
request, WDOH explained that it has since adopted regulations that, 
together with its existing criminal enforcement authority, address the 
basis for the EPA granting partial rather than full approval and 
delegation in 2006. Specifically, WDOH adopted regulations prohibiting 
the making of a false material statement, representation, or 
certification in any required submission. See Washington Administrative 
Code (WAC) 246-247-080(12). The WDOH also adopted regulations 
prohibiting any person from rendering inaccurate any required 
monitoring device or method. See WAC 246-247-075(14). The WDOH's 
submission included a letter from the Washington Attorney General's 
office confirming that WDOH now has criminal authorities meeting the 
requirements of 40 CFR 70.11.
    In addition, WDOH's submittal showed that it has updated its 
adoption by reference of the Radionuclides NESHAPs, without change, to 
include the Federal rules in effect as of July 1, 2021. See WAC 246-
247-035. The WDOH also committed to undertaking updates to its adoption 
by reference of the Radionuclides NESHAPs as needed to ensure they 
remain consistent with the Federal regulations.
    The WDOH's submission also included an updated agreement with the 
Washington Department of Ecology under which WDOH is required to make 
entries into EPA's Integrated Compliance Information System for Air 
(ICIS-Air).

III. EPA Action

A. What authorities are included?

    Based on WDOH's request for full approval and delegation, the EPA 
has determined that WDOH has addressed the partial approval issue 
discussed in the EPA's 2006 partial approval and delegation of the 
Radionuclides NESHAPs, and that WDOH continues to meet the other 
requirements for straight delegation of the Radionuclides NESHAPs. 
First, together with the authority to pursue criminal penalties for 
knowing violations provided by the Revised Code of Washington (RCW) 
70A.15.3130 and 70A.15.3150,\1\ WDOH now has all the criminal 
authorities required by 40 CFR 70.11(a)(3)(iii) and 63.91(d)(3)(i).\2\ 
Second, WDOH has updated its regulations, specifically, its 
incorporation by reference of the Radionuclides NESHAPs as of July 1, 
2021, so that it can fully implement and enforce the Radionuclides 
NESHAPs as currently in effect. See WAC 246-247-035. Finally, WDOH has 
confirmed that it continues to meet all other criteria of 40 CFR 63.91 
that provided the basis for its 2006 partial delegation. See 40 CFR 
63.91(a)(1) and (d)(2).
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    \1\ Previously codified at RCW 70.94.422 and 70.94.430.
    \2\ The EPA has previously determined that virtually identical 
provisions meet the requirements of 40 CFR 70.11(a)(3)(iii) with 
respect to the Washington Department of Ecology. See 66 FR 16, pp. 
17-18 (January 2, 2001).
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    Therefore, except as provided in Section III.B. of this preamble, 
the EPA is granting full approval and delegation to WDOH of authority 
to implement and enforce the Radionuclides NESHAPs as in effect on July 
1, 2021. Radionuclides NESHAPs that are promulgated or revised 
substantively after that date are not delegated to WDOH. These remain 
the responsibility of the EPA.
    Included in this full approval and delegation is the authority to 
approve:
    1. ``Minor changes to monitoring'' \3\ including the use of the 
specified monitoring requirements and procedures with minor changes in 
methodology as described in 40 CFR 61.14(g)(1)(i);
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    \3\ For purposes of this paragraph, the terms in quotations have 
the meaning assigned to them in 40 CFR 63.90.
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    2. ``Intermediate changes to monitoring;''
    3. ``Minor changes to recordkeeping/reporting;''
    4. ``Minor changes in test methods,'' including the use of a 
reference method with minor changes in methodology as described in 40 
CFR 61.13(h)(1)(i); and
    5. Waiver of the requirement for emission testing because the owner 
or operator of a source has demonstrated by other means to WDOH's 
satisfaction that the source is in compliance with the standard as 
described in 40 CFR 61.13(h)(1)(iii).
    Any authorities not addressed in this letter and not identified in 
any delegated subpart of the Radionuclides NESHAPs as authorities that 
cannot be delegated shall be considered delegated. See 67 FR 3106, 
January 23, 2002, p. 3109, footnote 3.
    In previously granting partial approval and delegation, we noted 
that WDOH does, as a matter of State law, have additional regulations 
and requirements that sources of radionuclide air emissions must meet. 
As discussed in more detail below, those additional authorities and 
requirements are not part of this full approval and delegation.

B. What authorities are excluded?

    The EPA is not delegating authorities under 40 CFR part 61 that 
specifically indicate they cannot be delegated, that require rulemaking 
to implement, that affect the stringency of the standard, equivalency 
determinations, or where national oversight is the only way to ensure 
national consistency. The following Table 1 identifies specific 
authorities within 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and 
W, that the EPA is excluding from this delegation.

[[Page 43466]]



   Table 1--Part 61 Authorities Excluded From Approval and Delegation
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              Section                            Authorities
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61.04(b)..........................  Waiver of recordkeeping.
61.04(c)..........................  Delegations to state and local
                                     agencies.
61.05(c)..........................  Waivers/exemptions.
61.11.............................  Waiver of compliance.
61.12(d)..........................  Approval of alternative means of
                                     emission limitation.
61.13(h)(1)(ii)...................  Approval of alternatives to test
                                     methods (except as provided in 40
                                     CFR 61.13(h)(1)(i)).
61.14(d)..........................  Combined effluents.
61.14(g)(1)(ii)...................  Approval of alternatives to
                                     monitoring that do not qualify as
                                     ``Minor changes to monitoring,''
                                     ``Intermediate changes to
                                     monitoring,'' or ``Minor changes to
                                     recordkeeping/reporting.\4\
61.16.............................  Availability of information.
61.23(b)..........................  Subpart B--Radon Emissions from
                                     Underground Uranium Mines
                                     Alternative; compliance
                                     demonstration to COMPLY-R.
61.93(b)(2)(iii), (c)(2)(iii).....  Subpart H--Emissions of
                                     Radionuclides Other than Radon from
                                     DOE Facilities.
61.107(b)(2)(iii), (d)(2)(iii)....  Subpart I--Radionuclide Emissions
                                     from Federal Facilities Other than
                                     NRC Licensees and Not Covered by
                                     Subpart H.
61.125(a).........................  Subpart K--Radionuclide Emissions
                                     from Elemental Phosphorus Plants.
61.206(c), (d), and (e)...........  Subpart R--Radon Emission from
                                     Phosphogypsum Stacks.
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IV. Implications

    As with the previous partial delegation and approval and consistent 
with other delegations to the State of Washington, under this full 
delegation and approval:
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    \4\ For purposes of this Table, the terms in quotations have the 
meaning assigned to them in 40 CFR 63.90.
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    1. Sources in Washington subject to the delegated Radionuclides 
NESHAPs should continue to direct questions and compliance issues to 
WDOH except with respect to those authorities that are not delegated 
(those noted in Section III.B. of this preamble). For those authorities 
noted in Section III.B of this preamble, affected sources should 
continue to work with the EPA as their primary contact and submit 
materials directly to the EPA, copying WDOH on all submittals, 
questions, and requests.
    2. Sources subject to the Radionuclides NESHAPs continue to be 
required to send required notifications, reports and requests to WDOH 
for WDOH's action and to provide copies to the EPA. For authorities 
that are excluded from this delegation (see Section III.B of this 
preamble), sources should continue to send required notifications, 
reports, and requests to the EPA and to provide copies to WDOH.
    3. Any records or reports provided to or otherwise obtained by WDOH 
relating to the Radionuclides NESHAPs should be made available to the 
EPA upon request. In accordance with 40 CFR 61.16 and 63.15, the 
availability to the public of information provided to or otherwise 
obtained by the EPA in connection with this delegation shall be 
governed by 40 CFR part 2. The EPA may request notifications and 
reports from owners/operators and/or WDOH.
    4. The WDOH must continue to maintain a record of all approved 
alternatives to all monitoring, testing, recordkeeping, and reporting 
requirements and provide this list of alternatives to the EPA at least 
semi-annually, or at a more frequent basis if requested by the EPA. The 
EPA may audit the WDOH-approved alternatives and disapprove any that it 
determines are inappropriate, after discussion with WDOH. If changes 
are disapproved, WDOH must notify the source that it must revert to the 
original applicable monitoring, testing, recordkeeping, and/or 
reporting requirements. Also, in cases where the source does not 
maintain the conditions which prompted the approval of the alternatives 
to the monitoring testing, recordkeeping, and/or reporting 
requirements, WDOH must require the source to revert to the original 
monitoring, testing, recordkeeping, and reporting requirements, or more 
stringent requirements, if justified.
    5. The WDOH shall require affected facilities to use the methods 
specified in 40 CFR part 61 in performing source tests pursuant to the 
regulations. See 40 CFR 61.7.
    6. Enforcement of these delegated Radionuclides NESHAPs in WDOH's 
jurisdiction will be the primary responsibility of WDOH. Nevertheless, 
the EPA may exercise its concurrent enforcement authority pursuant to 
sections 112(l)(7) and 113 of the CAA and 40 CFR 63.90(d)(2) with 
respect to sources which are subject to the Radionuclides NESHAPs.
    7. Implementation and enforcement of the delegated NESHAP are 
subject to the Environmental Performance Partnership Agreement between 
the State of Washington and the EPA and its successor documents. The 
Agreement defines roles and responsibilities, including timely and 
appropriate enforcement response and the maintenance of ICIS-Air via 
the Exchange Network. Your agency will ensure that all relevant source 
notification and report information is entered as provided in the 
Agreement into the specified EPA database system to meet your 
recordkeeping/reporting requirements.
    8. This full approval and delegation delegates to WDOH authority to 
implement and enforce the Radionuclides NESHAPs, as in effect on July 
1, 2021. Radionuclides NESHAPs that that are promulgated or revised 
substantively after that date are not delegated to WDOH.
    9. This approval and delegation does not extend to any additional 
State standards or requirements, including other State standards or 
requirements regulating radionuclide air emissions. Section 116 of the 
CAA provides that, with some exceptions not applicable here, nothing in 
the CAA precludes or denies the right of any State or political 
subdivision thereof to adopt or enforce any standard or limitation 
respecting emissions of air pollutants or any requirement respecting 
control or abatement of air pollution so long as the State requirement 
is not less stringent than a standard or limitation in effect under an 
applicable implementation plan or under section 111 or 112 of the CAA. 
Washington State standards that are more stringent than the 
Radionuclides NESHAPs are enforceable as provided under State law, but 
are not enforceable under the CAA or in any way part of this full 
approval and delegation of the Radionuclides NESHAPs to WDOH.
    10. The WDOH may receive full approval and delegation of newly

[[Page 43467]]

promulgated or revised Radionuclides NEHAPs by the following 
streamlined process: (1) WDOH will send a letter to the EPA requesting 
delegation for such new or revised Radionuclides NESHAPs which WDOH has 
adopted by reference into Washington regulations, reference its 
previous demonstration, and reaffirm that it still meets the criteria 
for any full approval and delegation of the NESHAPs; (2) the EPA will 
send a letter of response back to WDOH granting approval of the 
delegation request (or explaining why the EPA cannot grant the 
request), and publish notice of the EPA's approval in the Federal 
Register; (3) WDOH does not need to send a response back to the EPA.
    11. Although WDOH is not obligated to request or receive future 
delegations of the Radionuclides NESHAPs, the EPA encourages WDOH, on 
an annual basis if the Federal standards have changed, to revise its 
rules to incorporate by reference newly promulgated or revised 
Radionuclides NESHAPs and request updated delegation of those 
standards.

V. Summary of Proposed Action

    The EPA proposes to fully approve WDOH's request for approval and 
delegation of authority to implement and enforce the Radionuclides 
NESHAPs. Pursuant to the authority of section 112(l) of the CAA, this 
approval is based on the EPA's finding that State law, regulations, and 
agency resources meet the requirements for full straight program 
approval and delegation of authority as specified in 40 CFR 63.91. The 
purpose of this full approval and delegation is to acknowledge WDOH's 
ability to implement a Radionuclides NESHAPs program within the State 
of Washington (except with respect to Indian country, as discussed in 
Section VI. of this preamble, and to continue the transfer of primary 
implementation and enforcement responsibility for this program from the 
EPA to WDOH. Although the EPA will look to WDOH as the lead for 
implementing delegated Radionuclides NESHAPs for its sources, the EPA 
retains authority under section 113 of the CAA to enforce any 
applicable emission standard or requirement, if needed. With this 
approval, WDOH may request newly promulgated or revised Radionuclides 
NESHAPs by way of a streamlined process.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve 
NESHAP delegation requests that comply with CAA section 112(l) and 
applicable Federal regulations. In reviewing NESHAP delegation 
requests, the EPA's role is to approve State choices, provided that 
they meet the criteria and objectives of the CAA and the EPA's 
implementing regulations. Accordingly, this proposed action would 
merely approve the State's request as meeting Federal requirements and 
does not impose additional requirements under the CAA 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 CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practical and legally permissible methods, 
under Executive Order 12898 (59 FR 7629, February 16, 1994).
    This proposed full approval and delegation of the Radionuclides 
NESHAPs would not apply to sources or activities located in Indian 
country, as defined in 18 U.S.C. 1151.\5\ Consistent with previous 
Federal program approvals or delegations, the EPA will continue to 
implement the NESHAPs in Indian country in Washington because WDOH has 
not adequately demonstrated authority over sources and activities 
located within the exterior boundaries of Indian reservations and in 
other areas of Indian country. In those areas of Indian country, this 
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). The 
one exception is within the exterior boundaries of the Puyallup Indian 
Reservation, also known as the 1873 Survey Area. Under the Puyallup 
Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress 
explicitly provided State and local agencies in Washington authority 
over activities on non-trust lands within the 1873 Survey Area.
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    \5\ Under this definition, the EPA treats as reservations trust 
lands validly set aside for the use of a Tribe even if the trust 
lands have not been formally designated as a reservation.
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List of Subjects in 40 CFR Part 61

    Environmental protection, Air pollution control, Intergovernmental 
relations, Radionuclides, Reporting and recordkeeping requirements.

    Dated: July 15, 2022.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2022-15553 Filed 7-20-22; 8:45 am]
BILLING CODE 6560-50-P


