[Federal Register Volume 63, Number 195 (Thursday, October 8, 1998)]
[Rules and Regulations]
[Pages 54055-54058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26899]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AL-046-9826a; FRL-6168-4]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Alabama
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (EPA) is
approving the section 111(d) Plan submitted by the Alabama Department
of Environmental Management (ADEM) for the State of Alabama on January
6, 1998, for implementing and enforcing the Emissions Guidelines (EG)
applicable to existing Municipal Solid Waste (MSW) Landfills. See 40
CFR part 60, subpart Cc.
DATES: This final rule is effective on December 7, 1998 without further
notice, unless EPA receives relevant adverse comments by November 9,
1998. Should the EPA receive such comments, it will publish a timely
document withdrawing this rule.
ADDRESSES: Written comments should be addressed to: Kimberly Bingham,
EPA Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta,
Georgia 30303-3104.
Copies of materials submitted to EPA may be examined during normal
business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington DC 20460;
EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta,
Georgia 30303-3104; and
Alabama Department of Environmental Management, Air Division, 1751
Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.
FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or
Scott Davis at (404) 562-9127.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the Clean Air Act (Act), EPA 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 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
EG 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, local, or tribal agency's section 111(d) plan
for a designated facility must comply with the EG for that source
category as well as 40 CFR part 60, subpart B.
On March 12, 1996, EPA published EG for existing MSW landfills at
40 CFR part 60, subpart Cc (40 CFR 60.30c through 60.36c) and NSPS for
new MSW Landfills at 40 CFR part 60, subpart WWW (40 CFR 60.750 through
60.759). (See 61 FR 9905-9944.) The pollutants regulated by the NSPS
and EG are 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 60.32c) 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 (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 document 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 32743-32753, 32783-32784. 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 by EPA for review of
section 111(d) Plan submittals.
This action approves the section 111(d) Plan submitted by the ADEM
for the State of Alabama to implement and enforce Subpart Cc.
[[Page 54056]]
II. Analysis of State Submittal
On January 6, 1998, ADEM submitted the following information in
their section 111(d) Plan for implementing and enforcing the emission
guidelines for existing MSW landfills in the State of Alabama: Legal
Authority; Enforceable Mechanism; MSW Landfill Source and Emission
Inventory; Emission Limits; Collection and Control System Design Plan
Review Process; Compliance Schedule; Testing, Monitoring, Recordkeeping
and Reporting Requirements; Demonstration That the Public Had Adequate
Notice and Opportunity to Submit Written Comments; Submittal of
Progress Reports to EPA; and applicable State of Alabama statutes and
rules of the Alabama ADEM.
The approval of the Alabama State Plan is based on finding that:
(1) ADEM provided adequate public notice of public hearings for the
proposed rulemaking which allows the ADEM to implement and enforce the
EG for MSW landfills; and (2) ADEM also demonstrated legal authority to
adopt emission standards and compliance schedules applicable to the
designated facilities; enforce applicable laws, regulations, standards
and compliance schedules; seek injunctive relief; obtain information
necessary to determine compliance; require recordkeeping; conduct
inspections and tests; require the use of monitors; require emission
reports of owners and operators; and make emission data publicly
available.
In appendix C of the Plan, ADEM cites the following references for
the legal authority: Chapter 22A of section 22 of the Code of Alabama,
``The Alabama Environmental Management Act; and Chapter 28 of section
22 of the Code of Alabama, ``The Alabama Air Pollution Control Act.''
These statutes and regulations are approved as being at least as
protective as the Federal requirements for existing MSW landfills.
In appendix A of the Plan, ADEM cites the enforceable mechanism for
implementing the EG for existing MSW landfills. The enforceable
mechanism is the state regulation adopted by the State of Alabama in
Chapter 335-3-19, ``Control of Municipal Solid Waste Landfill Gas
Emissions.'' The State's regulation meets the Federal requirements for
an enforceable mechanism and is approved as being at least as
protective as the Federal requirements contained in Subpart Cc for
existing MSW landfills.
In appendix A of the Plan, ADEM cites all emission standards and
limitations for the major pollutant categories related to the
designated sites and facilities. These standards and limitations in the
Alabama ADEM's Chapter 335-3-19-.03, ``Standards for Existing Municipal
Solid Waste Landfills,'' are approved as being at least as protective
as the Federal requirements contained in Subpart Cc for existing MSW
landfills.
The Alabama State Plan describes the process ADEM will utilize for
the review of site-specific design plans for gas collection and control
systems. The process outlined in the Plan meets the Federal
requirements contained in subpart Cc for existing MSW landfills.
In appendix A of the Plan, ADEM cites the compliance schedules
adopted in Chapter 335-3-19-.04 for each existing MSW landfill to be in
compliance within 30 months of the effective date of their implementing
regulation (January 6, 1998). These compliance times for affected MSW
landfills address the required compliance time lines of the EG. This
portion of the Plan has been reviewed and approved as being at least as
protective as Federal requirements for existing MSW landfills.
In appendix B of the Plan, ADEM submitted a source and emission
inventory of all designated pollutants for each MSW landfill in the
State of Alabama. This portion of the Plan has been reviewed and
approved as meeting the Federal requirements for existing MSW
landfills.
The Alabama State Plan includes its legal authority to require
owners and operators of designated facilities to maintain records and
report to the ADEM the nature and amount of emissions and any other
information that may be necessary to enable the ADEM to judge the
compliance status of the facilities. ADEM also cites its legal
authority to provide for periodic inspection and testing and provisions
for making reports of MSW landfill emissions data, correlated with
emission standards that apply, available to the general public. ADEM
submitted its Chapter 335-3-19 to support the requirements of
monitoring, recordkeeping, reporting, and compliance assurance. These
Alabama rules have been reviewed and approved as being at least as
protective as Federal requirements for existing MSW landfills.
As stated on page 4 of the Plan, ADEM will provide progress reports
of Plan implementation to the EPA on an annual basis. These progress
reports will include the required items pursuant to 40 CFR part 60,
subpart B. This portion of the Plan has been reviewed and approved as
meeting the Federal requirement for Plan reporting.
Consequently, EPA finds that the Alabama State Plan meets all of
the requirements applicable to such plans in 40 CFR part 60, subparts B
and Cc. ADEM did not, however, submit evidence of authority to regulate
existing MSW landfills in Indian Country. Therefore, EPA is not
approving this Plan as it relates to those sources.
III. Final Action
Based on the rationale discussed above, EPA is approving the State
of Alabama's section 111(d) Plan, as submitted on January 6, 1998, 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 the Alabama State Plan or associated
regulations will not be considered part of the applicable plan until
submitted by ADEM 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.
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 revision should
significant, material, and adverse comments be filed. This action will
be effective December 7, 1998 without further notice unless the Agency
receives adverse comments by November 9, 1998.
If the EPA receives such comments, then EPA will publish a timely
withdrawal of the direct final rule and inform the public that the rule
will not take effect. All public comments received will be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this rule. Only parties interested
in commenting on this rule should do so at this time. If no such
comments are received, the public is advised that this rule will be
effective on December 7, 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 (E.O.)
[[Page 54057]]
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. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget 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 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 duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
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.
This rule is not subject to E.O. 13045 because it is does not
involved decisions intended to mitigate environmental health or safety
risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects 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. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, 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, 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. 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 (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 SIP approvals under
section 110 and subchapter I, part D 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 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
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 SIPs on such
grounds. 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
(``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
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.
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. 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. 804(2).
H. 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 December 7, 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 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).)
[[Page 54058]]
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, and Reporting and
recordkeeping requirements.
Dated: September 3, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
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 et seq.
Subpart B--Alabama
2. Part 62.100 is amended by adding paragraphs (b)(3) and (c)(3) to
read as follows:
Sec. 62.100 Identification of plan.
* * * * *
(b) * * *
(3) Alabama Department of Environmental Management Plan For the
Control of Landfill Gas Emissions at Existing Municipal Solid Waste
Landfills, submitted on January 6, 1998, by the Alabama Department of
Environmental Management.
(c) * * *
(3) Existing municipal solid waste landfills.
3. Subpart B is amended by adding a new Sec. 62.103 and a new
undesignated center heading to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.103 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 November 8,
1987, or that have additional capacity available for future waste
deposition, as described in 40 CFR part 60, subpart Cc.
[FR Doc. 98-26899 Filed 10-7-98; 8:45 am]
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