[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32427-32430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15265]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[TX-108-1-7408a; FRL-6361-4]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: We are approving the section 111(d) Plan submitted by the
Governor of Texas on November 3, 1998, to implement and enforce the
Emissions Guidelines (EG) for existing Municipal Solid Waste (MSW)
Landfills. The EG require States to develop plans to collect landfill
gas from large MSW landfills.
DATES: This direct final rule is effective on August 16, 1999, without
further notice, unless we receive adverse comments by July 19, 1999. If
we receive adverse comments, we will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: You should address comments on this action to Lt. Mick Cote,
EPA Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite
1200, Dallas, Texas 75202. Copies of all materials considered in this
rulemaking may be examined during normal business hours at the
following locations: EPA Region 6 offices, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202, and at the Texas Natural Resource Conservation
Commission offices, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote at (214) 665-7219.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is being taken by EPA today?
II. Why do we need to regulate landfill gas?
III. What is being acted on in this document?
IV. What is a State Plan?
V. What does the Texas State Plan contain?
VI. How can I determine whether my landfill is subject to these
regulations?
VII. What steps do I need to take?
VIII. Administrative Requirements.
I. What Action Is Being Taken by EPA Today?
We are approving the Texas State Plan to control landfill gas from
existing MSW landfills, as submitted to us by Texas on November 3,
1998. This State Plan does not affect those existing MSW landfills
located in Indian Country.
We are publishing this action without prior proposal because we
view this as a noncontroversial action and anticipate no adverse
comments. However, in a separate document in this Federal Register
publication, we are proposing to approve the revision should
significant, material, and adverse comments be filed. This action is
effective August 16, 1999, unless by July 19, 1999, adverse or critical
comments are received. If we receive such comments, this action will be
withdrawn before the effective date by publishing a subsequent document
that will withdraw the final action. All public comments received will
be addressed in a subsequent final rule based on this action serving as
a proposed rule. We will not institute a second comment period on this
action.
[[Page 32428]]
Any parties interested in commenting on this action should do so at
this time. If no such comments are received, the public is advised that
this action is effective August 16, 1999.
II. Why Do We Need To Regulate Landfill Gas?
Landfill gas contains a mixture of volatile organic compounds
(VOCs), other hazardous air pollutants (HAPs), and methane. These VOC
emissions can contribute to ozone formation, which can cause adverse
health effects to humans 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. We presented our concerns with the health and
welfare effects of landfill gases in the preamble to our proposed EG
(56 FR 24468, May 30, 1991).
III. What Is Being Acted on in This Document?
When we developed our New Source Performance Standard (NSPS) for
landfills, we also developed EG to control landfill gas from older
landfills (See 61 FR 9905-9944, March 12, 1996). The Texas Natural
Resource Conservation Commission (TNRCC) developed a State Plan, as
required by section 111(d) of the Clean Air Act (the Act), to adopt the
EG into their body of regulations, and we are acting today to approve
it.
IV. What Is a State Plan?
Section 111(d) of the Act requires that ``designated'' pollutants
controlled under the NSPS must also be controlled at existing sources
in the same source category. To ensure proper implementation of the
requirements of section 111(d), we approved 40 CFR part 60, subpart B
(40 FR 53340, November 17, 1975). Subpart B provides that, once an NSPS
is promulgated, we then publish an EG applicable to the control of the
same pollutant from designated (existing) facilities. Affected States
must then adopt the EG into their body of regulations.
V. What Does the Texas State Plan Contain?
The Texas State Plan was reviewed for approval against the
following criteria: 40 CFR Part 60, Secs. 60.23 through 60.26, subpart
B--Adoption and Submittal of State Plans for Designated Facilities;
and, 40 CFR part 60, Secs. 60.30c through 60.36c, subpart Cc--Emission
Guidelines and Compliance Times for Municipal Solid Waste Landfills.
The evaluation of the Texas State Plan indicates that it contains:
1. a demonstration of the State's legal authority to implement the
section 111(d) State Plan, as authorized under the Texas Clean Air Act
Sections 382.011, 382.012, and 382.017;
2. an incorporation of the Federal regulations into the Texas
Administrative Code (TAC) at 30 TAC Chapter 113, Subchapter D, Sections
113.2060, Definitions; 2061, Standards for Air Emissions; 2067,
Exemptions; and 2069, Compliance Schedule;
3. an inventory of approximately 113 known designated facilities,
with estimated design capacities, as listed in Tables 4, 5a, and 5b of
the State Plan;
4. emission limits that are as stringent as the EG, listed in TAC
Section 113.2061;
5. a process to review gas collection system design plans;
6. a final compliance date 30 months after the date a designated
facility reaches or exceeds 50 Mg of NMOC emissions annually;
7. testing, monitoring, reporting and recordkeeping requirements
for the designated facilities, as listed in TAC Section 113.2061;
8. records from the three public hearings; and,
9. provisions for progress reports to EPA.
The Texas State Plan does deviate from the EG on two issues. The EG
defines designated facilities as those that have accepted waste after
November 8, 1987. The TNRCC provided a detailed technical analysis
which indicates that no designated landfills which closed between
November 8, 1987, and October 9, 1993, will have estimated non-methane
organic compounds (NMOC) emissions above the 50 megagram (Mg) control
threshold by the year 2000. Controlling these closed landfills would
not result in a significant reduction in NMOC emissions compared to the
cost to install gas collection systems at these sites. Our Code of
Federal Regulations (CFR), at 40 CFR Sec. 60.24(f), allows for less
stringent regulations if a technical or economic justification supports
it. Based on Sec. 60.24(f), the TNRCC adjusted its definition to
reflect actual conditions in Texas. The definition of MSW landfills in
Texas then includes facilities that have accepted waste since November
8, 1987, and either closed after October 8, 1993, or are currently
still accepting waste. We agree with the justification for excluding
this group of MSW landfills from the State Plan, and accept the State's
use of Sec. 60.24(f) to change its definition of MSW landfills in
Texas.
Second, the Texas State Plan does not include specific increments
of progress towards the final 30 month compliance date, as discussed in
40 CFR 60.24(e)(1). However, the State can develop separate increments
of progress for each designated facility and submit these as revisions
to the State Plan within a year of the Federal approval of the Texas
State Plan (40 CFR 60.24(e)(2)). For this reason we can approve the
State Plan in its current form. We fully expect the TNRCC to submit
increments of progress within a year of our approval of this State
Plan. Please request a copy of our official file to review our detailed
discussion of the requirements of the NSPS and EG, along with our
evaluation of the Texas State Plan.
VI. How Can I Determine Whether My Landfill Is Subject to These
Regulations?
Any MSW landfill which began construction, reconstruction or
modification before May 30, 1991, and has accepted waste at any time
since October 9, 1993, is affected by the EG and the Texas State Plan.
If your facility meets these two criteria, your landfill is subject to
these regulations.
VII. What Steps Do I Need To Take?
You must report your landfill's design capacity to the
TNRCC within 90 days of the effective date of our approval of the Texas
State Plan (See Section 113.2069).
If your landfill has a design capacity above 2.5 million
Mg, you must also estimate and report your annual NMOC emission rate to
the TNRCC within the same 90-day timeframe (See Section 113.2069).
If your landfill has a design capacity below 2.5 million
Mg, you have met all the requirements of the Texas State Plan. However,
if you modify your landfill and increase the design capacity above the
2.5 million Mg threshold, you must submit an amended design capacity
report to the TNRCC within 90 days of the modification. You must also
estimate and submit your annual NMOC emission rate to the TNRCC within
90 days of the modification (Section 113.2061). Your landfill will then
be considered an NSPS source and subject to the requirements listed
under 40 CFR part 60, subpart WWW.
You must have a gas collection system installed and
operating within 30 months of the date you project to be at or above
the 50 Mg threshold (Section 113.2061).
You must record and keep accurate records regarding site
information and
[[Page 32429]]
gas collection system operational data (Section 113.2061).
VIII. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local and tribal governments, the nature of their
concerns, copies of any written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, E.O. 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a mandate on State, local, or tribal
governments. The rule does not impose any enforceable rules on any of
these entities. This action does not create any new requirements but
simply approves requirements that the State is already imposing.
Accordingly, the requirements of section 1(a) of E.O. 12875 do not
apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be ``economically
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it approves a State program.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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 approvals
under section 111 of the Federal Clear Air Act (the Act) do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP 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
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
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 annual costs to State,
local, or tribal governments in the aggregate; or to 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.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual 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.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The 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. A major rule can
not take
[[Page 32430]]
effect until 60 days after it is published in the Federal Register.
This action is not a ``major'' rule as defined by 5 U.S.C. 804(2). This
rule will be effective August 16, 1999.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 16, 1999. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).
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 7, 1999.
Gregg A. Cooke,
Regional Administrator, Region 6.
40 CFR part 62 is amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart SS--Texas
2. Section 62.10850 is amended by adding paragraph (b)(3) to read
as follows:
Sec. 62.10850 Identification of plan.
* * * * *
(b) * * *
(3) Control of landfill gas emissions from existing municipal solid
waste landfills, submitted by the Governor on November 3, 1998.
* * * * *
3. Subpart SS is amended by adding a Sec. 62.10880 and a new
undesignated center heading to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.10880 Identification of sources.
The plan applies to existing municipal solid waste landfills for
which construction, reconstruction, or modification was commenced
before May 30, 1991, that accepted waste at any time since October 8,
1993, or that have additional capacity available for future waste
deposition, as described in 40 CFR part 60, subpart Cc.
[FR Doc. 99-15265 Filed 6-16-99; 8:45 am]
BILLING CODE 6560-50-P
