[Federal Register Volume 63, Number 130 (Wednesday, July 8, 1998)]
[Rules and Regulations]
[Pages 36858-36861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18082]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[MT-001-0004a; FRL-6122-2]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Montana; Control of Landfill Gas Emissions
From Existing Municipal Solid Waste Landfills
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving the Montana plan and associated
regulations for implementing the Municipal Solid Waste (MSW) Landfill
Emission Guidelines at 40 CFR part 60, subpart Cc, which were required
pursuant to section 111(d) of the Clean Air Act (Act). The State's plan
was submitted to EPA on July 2, 1997 in accordance with the
requirements for adoption and submittal of State plans for designated
facilities in 40 CFR part 60, subpart B. The State's plan establishes
performance standards for existing MSW landfills and provides for the
implementation and enforcement of those standards. EPA finds that
Montana's plan for existing MSW landfills adequately addresses all of
the Federal requirements applicable to such plans.
DATES: This direct final rule is effective on September 8 1998 without
further notice, unless EPA receives adverse comment by August 7, 1998.
If adverse comment is received, EPA will publish a timely withdrawal of
the direct final
[[Page 36859]]
rule in the Federal Register and inform the public that the rule will
not take effect.
ADDRESSES: Written comments on this action may be mailed to Vicki
Stamper, 8P2-A, at the EPA Region VIII Office listed. Copies of the
documents relative to this action are available for inspection during
normal business hours at the Air Program, Environmental Protection
Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado
80202-2466. Copies of the State documents relevant to this action are
available for public inspection at the Montana Department of
Environmental Quality, 1520 East 6th Avenue, P.O. Box 200901, Helena,
Montana 59620-0901.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303)
312-6445.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the Act, EPA has established procedures
whereby States submit plans to control certain existing sources of
``designated pollutants.'' Designated pollutants are defined as
pollutants for which a standard of performance for new sources applies
under section 111, but which are not ``criteria pollutants'' (i.e.,
pollutants for which National Ambient Air Quality Standards (NAAQS) are
set pursuant to sections 108 and 109 of the Act) or hazardous air
pollutants (HAPs) regulated under section 112 of the Act. As required
by section 111(d) of the Act, EPA established a process at 40 CFR part
60, subpart B, which States must follow in adopting and submitting a
section 111(d) plan. Whenever EPA promulgates a new source performance
standard (NSPS) that controls a designated pollutant, EPA establishes
emissions guidelines in accordance with 40 CFR 60.22 which contain
information pertinent to the control of the designated pollutant from
that NSPS source category (i.e., the ``designated facility'' as defined
at 40 CFR 60.21(b)). Thus, a State's section 111(d) plan for a
designated facility must comply with the emission guideline for that
source category as well as 40 CFR part 60, subpart B.
On March 12, 1996, EPA published Emission Guidelines (EG) for
existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c-
60.36c) and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW
(40 CFR 60.750-60.759). (See 61 FR 9905-29.) The pollutant regulated by
the NSPS and EG is MSW landfill emissions, which contain a mixture of
volatile organic compounds (VOCs), other organic compounds, methane,
and HAPs. VOC emissions can contribute to ozone formation which can
result in adverse effects to human health and vegetation. The health
effects of HAPs include cancer, respiratory irritation, and damage to
the nervous system. Methane emissions contribute to global climate
change and can result in fires or explosions when they accumulate in
structures on or off the landfill site. To determine whether control is
required, nonmethane organic compounds (NMOCs) are measured as a
surrogate for MSW landfill emissions. Thus, NMOC is considered the
designated pollutant. The designated facility which is subject to the
EG is each existing MSW landfill (as defined in 40 CFR 60.31c) for
which construction, reconstruction or modification was commenced before
May 30, 1991.
Pursuant to 40 CFR 60.23(a), States were required to either (1)
submit a plan for the control of the designated pollutant to which the
EG applies or (2) submit a negative declaration if there were no
designated facilities in the State, within nine months after
publication of the EG, or by December 12, 1996.
EPA has been involved in litigation over the requirements of the
MSW landfill EG and NSPS since the summer of 1996. On November 13,
1997, EPA issued a notice of proposed settlement in National Solid
Wastes Management Association v. Browner, et. al., No. 96-1152 (D.C.
Cir), in accordance with section 113(g) of the Act. (See 62 FR 60898.)
It is important to note that the proposed settlement does not vacate or
void the existing MSW landfill EG or NSPS. Pursuant to the proposed
settlement agreement, EPA published a direct final rulemaking on June
16, 1998, in which EPA is amending 40 CFR part 60, subparts Cc and WWW,
to add clarifying language, make editorial amendments, and to correct
typographical errors. See 63 FR 32783-4, 32743-53. EPA regulations at
40 CFR 60.23(a)(2) provide that a State has nine months to adopt and
submit any necessary State Plan revisions after publication of a final
revised emission guideline document. Thus, States are not yet required
to submit State Plan revisions to address the June 16, 1998 direct
final amendments to the EG. In addition, as stated in the June 16, 1998
preamble, the changes to 40 CFR part 60, subparts Cc and WWW, do not
significantly modify the requirements of those subparts. See 63 FR
32744. Accordingly, the MSW landfill EG published on March 12, 1996 was
used as a basis for EPA's review of Montana's submittal.
II. Analysis of State's Submittal
On July 2, 1997, the State of Montana submitted its plan and
regulations (hereafter referred to as the ``State Plan'') for
implementing EPA's MSW landfill EG. The Montana State Plan includes the
``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the
State's implementing regulations in Sections 17.8.302(1)(j) and
17.8.340 of the Administrative Rules of Montana (ARM).
Montana has incorporated by reference the EG of 40 CFR part 60,
subpart Cc, at ARM 17.8.302(1)(j). In addition, ARM 17.8.340(4)
provides that designated MSW landfill facilities under 40 CFR part 60,
subpart Cc, shall comply with the requirements in 40 CFR 60.33c,
60.34c, and 60.35c that are applicable to designated facilities and
that must be included in a State plan for approval. Montana has also
adopted compliance deadlines in ARM 17.8.340(4)(b) to comply with the
compliance timelines of the EG and the increments of progress
requirements of 40 CFR part 60, subpart B. Thus, the State's
regulations adequately address the requirements of the EG, including
the required applicability, emission limitations, test methods and
procedures, reporting and recordkeeping requirements, and compliance
times. Specifically, Montana's regulation requires that existing MSW
landfills that: (1) Accepted waste since November 8, 1987; (2) have a
design capacity equal to or greater than 2.5 million megagrams (Mg) or
2.5 million m3; and (3) have a NMOC emission rate,
calculated in accordance with the procedures of 40 CFR 60.754, equal to
or greater than 50 Mg/year to complete installation of a gas collection
and control system meeting the requirements of 40 CFR 60.752 within
twenty-seven months from the date of EPA approval of the State Plan
(or, for those existing MSW landfills whose NMOC emission rate is less
than 50 Mg/yr on the date EPA approves the State Plan, within twenty-
seven months after submittal of an NMOC emission rate report showing
NMOC emissions equal to or greater than 50 Mg/yr).
The State Plan also includes documentation showing that all
requirements of 40 CFR part 60, subpart B have been met. Specifically,
the State Plan includes a demonstration of legal authority to adopt and
implement the plan, an emissions inventory, increments of progress
compliance deadlines, a commitment to submit to EPA annual State
progress reports on
[[Page 36860]]
plan implementation and enforcement, and documentation that the State
addressed the public participation requirements of 40 CFR 60.23. In
addition, as stated above, the State has adopted emission standards and
compliance schedules into an enforceable State regulation that is no
less stringent than the EG.
Consequently, EPA finds that the State Plan meets all of the
requirements applicable to such plans in 40 CFR part 60, subparts B and
Cc. The State did not, however, submit evidence of authority to
regulate existing MSW landfills in Indian Country. Therefore, EPA is
not approving this State Plan as it relates to those sources.
More detailed information on the requirements for an approvable
plan and Montana's submittal can be found in the Technical Support
Document (TSD) accompanying this notice, which is available upon
request.
III. Final Action
Based on the rationale discussed above and in further detail in the
TSD associated with this action, EPA is approving Montana's section
111(d) plan and its implementing regulations in ARM 17.8.302(1)(j) and
ARM 17.8.340, as submitted on July 2, 1997, for the control of landfill
gas from existing MSW landfills, except for those existing MSW
landfills located in Indian Country. As provided by 40 CFR 60.28(c),
any revisions to Montana's State Plan or associated regulations will
not be considered part of the applicable plan until submitted by the
State in accordance with 40 CFR 60.28(a) or (b), as applicable, and
until approved by EPA in accordance with 40 CFR part 60, subpart B.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Plan. Each request for revision to a State Plan
shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
EPA is publishing this rule 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 State Plan should
adverse comments be filed. This rule will be effective September 8,
1998 without further notice unless the Agency receives adverse comments
by August 7, 1998.
If the EPA receives such comments, then EPA will publish a notice
withdrawing the final rule and informing the public that the 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. Any 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 September 8, 1998 and no further action will
be taken on the proposed rule.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review,'' review.
The final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because State Plan approvals under
section 111 of the Clean Air Act do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the Federal State Plan approval does not create any
new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its actions concerning State Plans on
such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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 the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. section 804(2).
E. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Montana's audit
privilege and penalty immunity law [The Voluntary Environmental Audit
Act, 75-1-101 et seq., M.C.A. (H.B. 293, effective October 1, 1997)] or
its impact upon any approved provision in the State Plan, including the
submittal at issue here.
[[Page 36861]]
The action taken herein does not express or imply any viewpoint on the
question of whether there are legal deficiencies in this or any other
Clean Air Act program resulting from the effect of Montana's audit
privilege and penalty immunity law. A State audit privilege and penalty
immunity law can affect only State enforcement and cannot have any
impact on Federal enforcement authorities. EPA may at any time invoke
its authority under the Clean Air Act, including, for example, sections
113, 114, 167, 205, 211, or 213, to enforce the requirements or
prohibitions of the State Plan, independently of any State enforcement
effort. In addition, citizen enforcement under section 304 of the Clean
Air Act is likewise unaffected by a State audit privilege and penalty
immunity law.
F. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 8 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review must be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Methane, Municipal
solid waste landfills, Nonmethane organic compounds, Reporting and
recordkeeping requirements.
Dated; June 29, 1998.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
40 CFR part 62, subpart BB, is amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7642.
2. Subpart BB is added to read as follows:
Subpart BB--Montana
Landfill Gas Emissions From Existing Municipal Solid Waste Landfills
Sec.
62.6600 Identification of plan.
62.6601 Identification of sources.
62.6602 Effective date.
Subpart BB--Montana
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.6600 Identification of plan.
``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the
associated State regulations in sections 17.8.302(1)(j) and 17.8.340 of
the Administrative Rules of Montana, submitted by the State on July 2,
1997.
Sec. 62.6601 Identification of sources.
The plan applies to all existing municipal solid waste landfills
for which construction, reconstruction, or modification was commenced
before May 30, 1991 that accepted waste at any time since November 8,
1987 or that have additional capacity available for future waste
deposition, as described in 40 CFR part 60, subpart Cc.
Sec. 62.6602 Effective date.
The effective date of the plan for municipal solid waste landfills
is September 8, 1998.
[FR Doc. 98-18082 Filed 7-7-98; 8:45 am]
BILLING CODE 6560-50-P
