00-28415. National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

This action proposes national emission standards for hazardous air pollutants (NESHAP) for municipal solid waste (MSW) landfills. The proposed rule is applicable to both major and area landfill sources, and contains the same requirements as the Emission Guidelines and New Source Performance Standards (EG/NSPS) for MSW landfills. The proposed rule adds startup, shutdown, and malfunction (SSM) requirements, adds operating condition deviations for out-of-bounds monitoring parameters, and changes the reporting frequency for one type of report.

The proposed rule fulfills the requirements of section 112(d) of the Clean Air Act (CAA), which requires the Administrator to regulate emissions of hazardous air pollutants (HAP) listed in section 112(b), and helps implement the Urban Air Toxics Strategy developed under section 112(k) of the CAA. The intent of the standards is to protect the public health by requiring new and existing sources to control emissions of HAP to the level reflecting the maximum achievable control technology (MACT). The HAP emitted by MSW landfills include, but are not limited to, vinyl chloride, ethyl benzene, toluene, and benzene. Each of the HAP emitted from MSW landfills can cause adverse health effects provided sufficient exposure. For example, vinyl chloride can adversely affect the central nervous system and has been shown to increase the risk of liver cancer in humans, while benzene is known to cause leukemia in humans.

DATES:

Comments. Submit comments on or before January 8, 2001.

Public Hearing: If anyone contacts the EPA requesting to speak at a public hearing by November 27, 2000, a public hearing will be held on December 7, 2000.

ADDRESSES:

Comments. Written comments should be submitted (in duplicate, if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket No. A-98-28, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. The EPA requests a separate copy also be sent to the contact person listed below (see FOR FURTHER INFORMATION CONTACT).

Public Hearing. If a public hearing is held, it will begin at 10:00 a.m. and will be held at EPA's Office of Administration Auditorium in Research Triangle Park, North Carolina, or an alternate site nearby.

Docket. Docket No. A-98-28 for this proposal and associated Docket No. A-88-09 contain supporting information used in developing the standards. These dockets are located at the U.S. EPA, 401 M Street SW, Washington, DC 20460, in Room M-1500, Waterside Mall (ground floor, central mall), and may be inspected from 8:30 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Ms. Michele Laur, Waste and Chemical Processes Group, Emission Standards Division (MD-13), Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, NC 27711, telephone number [phone], facsimile number [phone], electronic mail (e-mail) address [e-mail].

SUPPLEMENTARY INFORMATION:

Comments. Comments and data may be submitted by e-mail to: [e-mail]. Electronic comments must be submitted as an ASCII file to avoid the use of special characters and encryption problems and will also be accepted on disks in WordPerfect® version 5.1, 6.1 or Corel 8 file format. All comments and data submitted in electronic form must note the docket number: Docket No. A-98-28. No confidential business information (CBI) should be submitted by e-mail. Electronic comments may be filed online at many Federal Depository Libraries.

Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it “Confidential Business Information”. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Ms. Michele Laur, c/o OAQPS Document Control Officer (Room 740B), U.S. EPA, 411 W. Chapel Hill Street, Durham, NC 27701. Do not submit CBI electronically.

The EPA will disclose information identified as “Confidential Business Information” only to the extent allowed and by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter.

Public Hearing. Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact JoLynn Collins, Waste and Chemical Processes Group, Emission Standard Division (MD-13), U.S. EPA, Research Triangle Park, NC 27711, telephone [phone], at least 2 days in advance of the public hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emission standards.

Docket. The docket is an organized and complete file of all the information considered by the EPA in the development of this action. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section 307(d)(7)(A) of the CAA.) The regulatory text and other materials related to this action are available for review in the docket or copies may be mailed on request from the Air Docket by calling [phone]. A reasonable fee may be charged for copying docket materials.

World Wide Web (WWW). In addition to being available in the docket, an electronic copy of this action is also available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of this action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules http://www.epa.gov/​ttn/​oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at [phone].

Regulated Entities. Categories and entities potentially regulated by this action:

Category	NAICS code	SIC code	Examples of potentially regulated entities
Industry: Air and water resource and solid waste management	924110	9511	Solid waste landfills.
Industry: Refuse systems—solid waste landfills	562212	4953	Solid waste landfills.
State, local, and Tribal government agencies	562212 924110	4953	Solid waste landfills; Air and water resource and solid waste management.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in §§ 63.1935 and 63.1940 of proposed subpart AAAA. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Outline

The information presented in the preamble is organized as follows:

I. Introduction and Background Information

A. What is the source of authority for development of NESHAP?

B. What criteria are used in the development of NESHAP?

C. What are the health effects associated with municipal solid waste landfills?

II. Summary of the Proposed Rule

A. What source categories are affected by this proposed rule?

B. What are the primary sources of emissions and what are the emissions?

C. What is the affected source?

D. What would the proposed rule require?

E. When would I have to begin complying with the proposed rule?

F. Are new and existing sources defined differently for purposes of the proposed rule than for the EG/NSPS and what is the effect of this difference?

G. How must I demonstrate compliance?

III. Rationale for the Proposed Rule

A. How did EPA select the affected source?

B. How did EPA determine the basis and level of the proposed rule for existing and new major sources?

C. How did EPA determine the standard for area sources?

D. Why is NMOC used as a surrogate for HAP?

E. How did EPA select the format of the standard?

F. How did EPA determine the requirements of the proposed rule?

G. What is the basis for the startup, shutdown, and malfunction, and monitoring and reporting requirements?

H. How did EPA determine compliance dates?

I. What are some of the special issues affecting MSW landfills?

IV. Summary of the Environmental, Energy, and Economic Impacts

V. Administrative Requirements

A. Executive Order 12866—Regulatory Planning and Review

B. Executive Order 13132—Federalism

C. Executive Order 13084—Consultation and Coordination with Indian Tribal Governments

D. Executive Order 13045—Protection of Children from Environmental Health Risks and Safety Risks

E. Unfunded Mandates Reform Act

F. Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

G. Paperwork Reduction Act

H. National Technology Transfer and Advancement Act

Abbreviations and Acronyms Used in This Document

ASCII—American Standard Code for Information Interchange

CAA—Clean Air Act

CBI—Confidential Business Information

CEMS—continuous emissions monitoring systems

CFR—Code of Federal Regulations

CMS—continuous monitoring system

EPA—Environmental Protection Agency

EG—emission guidelines

FR—Federal Register

GACT—generally available control technology

HAP—hazardous air pollutants

ICR—Information Collection Request

kg/year—kilograms per year

m³—cubic meters

MACT—maximum achievable control technology

mg/dscm—milligrams per dry standard cubic meter

mg/m³—milligrams per cubic meter

Mg/year—megagrams per year

MSW—municipal solid waste

NAICS—North American Industrial Classification System

NESHAP—national emission standards for hazardous air pollutants

ng/dscm—nanograms per dry standard cubic meter

NMOC—nonmethane organic compounds

NSPS—new source performance standards

NTTAA—National Technology Transfer and Advancement Act

OAQPS—Office of Air Quality Planning and Standards

OMB—Office of Management and Budget

OP—Office of Policy

PCS—petroleum contaminated soils

PMACT—presumptive maximum achievable control technology

ppmv—parts per million by volume

Pub. L.—Public Law

RCRA—Resource Conservation and Recovery Act

RFA—Regulatory Flexibility Act

SBREFA—Small Business Regulatory Enforcement Fairness Act

SIC—Standard Industrial Classification

SSM—startup, shutdown, and malfunction

TTN—Technology Transfer Network

UMRA—Unfunded Mandates Reform Act

U.S.C.—United States Code

VOC—volatile organic compounds

I. Introduction and Background Information

The proposed subpart AAAA is based on the emission guidelines and new source performance standards in 40 CFR part 60, subparts Cc and WWW, with some additional requirements, and further ensures the reduction of HAP emissions from MSW landfills. The additional requirements above and beyond the EG/NSPS are provisions for a SSM plan with the associated records and reports, reporting of operating condition deviations for out-of-range monitoring parameters, and one type of annual report required by the EG/NSPS is required to be submitted every 6 months instead of once a year.

A. What Is the Source of Authority for Development of NESHAP?

Under section 112(d) of the CAA, we are required to regulate major sources of the 188 HAP listed in section 112(b). On July 16, 1992, we published a list of industrial source categories, which included MSW landfills, that emit one or more of these HAP. We must promulgate standards for the control of emissions of HAP from both new and existing major source MSW landfills. For “major” source MSW landfills (those that emit 10 tons per year (tpy) or more of a listed pollutant or 25 tpy or more of a combination of pollutants), the CAA requires us to develop standards that require the application of MACT.

Under section 112(k) of the CAA, EPA developed a strategy to control emissions of HAP from area sources in urban areas, identifying 33 HAP that present the greatest threat to public health in the largest number of urban areas as the result of emissions from area sources. Municipal solid waste landfills were listed as one of the 29 area source categories on July 19, 1999 because 13 of the listed HAP are emitted from MSW landfills (64 FR 38706).

B. What Criteria Are Used in the Development of NESHAP?

The CAA requires NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable for new and existing major sources. This level of control is commonly referred to as the MACT.

The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. In essence, the MACT floor ensures that all major hazardous air pollutant emission sources achieve the level of control already achieved by the better-controlled and lower-emitting sources in each category. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources (or the best-performing 5 sources for categories or subcategories with fewer than 30 sources).

In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost, nonair quality health and environmental impacts, and energy requirements.

Finally, the CAA allows NESHAP to reflect an alternative standard for area sources. The alternative standard provides for the use of generally available control technologies (GACT) or management practices to reduce emissions of HAP.

C. What Are the Health Effects Associated With Municipal Solid Waste Landfills?

The proposed rule ensures reductions of emissions of nearly 30 HAP including, but not limited to, vinyl chloride, ethyl benzene, toluene, and benzene. The degree of adverse effects to human health from exposure to these HAP can range from mild to severe. The extent and degree to which the human health effects may be experienced are dependent upon the ambient concentration observed in the area (as influenced by emission rates, meteorological conditions, and terrain); the frequency of and duration of exposures; characteristics of exposed individuals (genetics, age, preexisting health conditions, and lifestyle), which vary significantly with the population; and pollutant-specific characteristics (toxicity, half-life in the environment, bioaccumulation, and persistence).

Vinyl Chloride. Acute (short-term) exposure to high levels of vinyl chloride in air has resulted in central nervous system (CNS) effects, such as dizziness, drowsiness, and headaches in humans. Chronic (long-term) exposure to vinyl chloride through inhalation and oral exposure in humans has resulted in liver damage. There are human and animal studies showing adverse effects which raise a concern about potential reproductive and developmental hazards to humans from exposure to vinyl chloride. Cancer is a major concern from exposure to vinyl chloride via inhalation. Vinyl chloride exposure has been shown to increase the risk of a rare form of liver cancer in humans. The EPA has classified vinyl chloride as a Group A, known human carcinogen.

Ethyl Benzene. Acute exposure to ethyl benzene in humans results in respiratory effects, such as throat irritation and chest constriction, irritation of the eyes, and neurological effects such as dizziness. Chronic exposure to ethyl benzene by inhalation in humans has shown conflicting results regarding its effects on the blood. Animal studies have reported effects on the blood, liver, and kidneys from chronic inhalation exposure to ethyl benzene. No information is available on the developmental or reproductive effects of ethyl benzene in humans, but animal studies have reported developmental effects, including birth defects in animals exposed via inhalation. The EPA has classified ethyl benzene in Group D, not classifiable as to human carcinogenicity.

Toluene. Acute inhalation of toluene by humans may cause effects to the CNS, such as fatigue, sleepiness, headache, and nausea, as well as irregular heartbeat. Repeated exposure to high concentrations may induce loss of coordination, tremors, decreased brain size, involuntary eye movements, and impaired speech, hearing, and vision. Chronic inhalation exposure of humans to lower levels of toluene also causes irritation of the upper respiratory tract, eye irritation, sore throat, nausea, dizziness, headaches, and difficulty with sleep. Studies of children of pregnant women exposed by inhalation to toluene or to mixed solvents have reported CNS problems, facial and limb abnormalities, and delayed development. In addition, inhalation of toluene during pregnancy may increase the risk of spontaneous abortion. The EPA has developed a reference concentration of 0.4 milligrams per cubic meter for toluene. Inhalation of this concentration or less over a lifetime would be unlikely to result in adverse noncancer effects. No data exist that suggest toluene is carcinogenic. The EPA has classified toluene in Group D, not classifiable as to human carcinogenicity.

Benzene. Acute inhalation exposure of humans to benzene may cause drowsiness, dizziness, headaches, as well as eye, skin, and respiratory tract irritation, and, at high levels, unconsciousness. Chronic inhalation exposure has caused various disorders in the blood, including reduced numbers of red blood cells and aplastic anemia, in occupational settings. Reproductive effects have been reported for women exposed by inhalation to high levels, and adverse effects on the developing fetus have been observed in animal tests. Increased incidence of leukemia (cancer of the tissues that form white blood cells) has been observed in humans occupationally exposed to benzene. The EPA has classified benzene as a Group A, known human carcinogen.

The proposed rule reduces nonhazardous air pollutant volatile organic compound (VOC) emissions as well. Emissions of VOC have been associated with a variety of health and welfare impacts. Volatile organic compound emissions, together with nitrogen oxides, are precursors to the formation of tropospheric ozone, or smog. Exposure to ambient ozone is responsible for a series of public health impacts, such as alterations in lung capacity; eye, nose, and throat irritation; nausea; and aggravation of existing respiratory disease. Ozone exposure can also damage forests and crops.

II. Summary of the Proposed Rule

The proposed rule contains the same requirements as the EG/NSPS, plus SSM definition and reporting of deviations for out-of-range monitoring parameters. Also, the proposed rule requires compliance reporting every 6 months while the EG/NSPS requires annual reporting.

A. What Source Categories Are Affected by This Proposed Rule?

The proposed rule applies to all MSW landfills that are major sources or are co-located with a major source, and some landfills that are area sources. However, most requirements are proposed to take effect when landfills emit equal to or greater than 50 megagrams per year (Mg/year) nonmethane organic compounds (NMOC) and have a design capacity equal to or greater than 2.5 million Mg and 2.5 million cubic meters (m³).

We estimate that all MSW landfills that are major sources of HAP have a design capacity equal to or greater than 2.5 million Mg and 2.5 million m³ and emit or will emit 50 Mg/yr or greater of NMOC. Therefore the requirements of the proposed rule would apply to all MSW landfill major sources. Several MSW landfill area sources would also be subject to the requirements of these proposed standards.

B. What Are the Primary Sources of Emissions and What Are the Emissions?

The majority of emissions of HAP at MSW landfills come from the natural anaerobic (without air) decomposition of municipal solid waste. Typical municipal solid waste contains household and commercial rubbish, paints, solvents, pesticides, and adhesives, which contain numerous organic compounds. During the decomposition process, landfill gas is generated. This gas is primarily composed of methane and carbon dioxide. The organic compounds in the decomposing waste are stripped from the waste by these gases and transported to the surface, or the organic compounds travel underground to other locations prior to their release.

A second but significantly lesser source of emissions of HAP comes from the collection, storage and treatment of landfill leachate. Landfill leachate is a liquid generated during the waste decomposition process. This liquid contains a much smaller concentration of the same HAP contained in landfill gas. During collection, storage and treatment, small amounts of HAP may volatilize to the air or may come in contact with groundwater.

Regardless of the emission pathway, it is the decomposition of organic-containing solid waste that is the source of the HAP. Landfills have been identified as the source of nearly 30 HAP, including but not limited to toluene, ethyl benzene, vinyl chloride and benzene. Estimated uncontrolled emissions from all landfills can be as high as 36,000 tpy.

C. What Is the Affected Source?

The affected source is the entire municipal solid waste landfill in a contiguous geographical space where household waste is placed in or on the land and consists of one or more cells that are under common ownership or control. The facility may receive household waste as well as other types of Resource Conservation and Recovery Act (RCRA) Subtitle D waste. The affected source may also include equipment for the collection and control of landfill gas or leachate.

D. What Would the Proposed Rule Require?

This proposed rule does not apply to landfills with a design capacity less than 2.5 million Mg or 2.5 million m³ or that emit less than 50 Mg/yr of NMOC; these landfills continue to remain subject to the provisions of the EG/NSPS as applicable. Landfills with a design capacity of greater than or equal to 2.5 million Mg and 2.5 million m³ and that emit at least 50 Mg/yr NMOC also would continue to be subject to the EG/NSPS as applicable, but there are additional requirements in this proposed rule that would apply. Listed below are the requirements of the proposed rule that are beyond the EG/NSPS requirements.

You would be required to meet the SSM requirements that are listed in the general provisions to 40 CFR part 63. You would develop and implement a written SSM plan that describes, in detail, the procedures for operating and maintaining the collection and control system and the continuous monitoring system (CMS) during periods of startup, shutdown, and malfunction (§ 63.6(e)(3)). There are also recordkeeping and reporting requirements for SSM incidents.

The proposed rule would also require you to operate the control device within the operating parameter boundaries as described in § 60.758(c)(1) and to continuously monitor control device operating parameters. Compliance with the operating limits is demonstrated when monitoring data show that the gas control devices are operating within the established operating parameter range. Compliance also occurs when data quality is sufficient to constitute a valid hour of data in a 3-hour block period.

For the proposed rule, deviations occur when a source's 3-hour average falls outside the established boundaries. A deviation also occurs when more than 1 hour in a 3-hour average is considered invalid. Monitoring data are insufficient to calculate a valid hourly average if measured values are unavailable for more than one 15-minute period within the hour. If such a deviation occurs, then the source may be in violation of operating conditions (that is, in violation of proper operation and maintenance of a control device). However, consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the SSM plan. The Administrator will determine whether deviations that occur during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e). (It should be noted that the EG/NSPS limits the duration of startup, shutdown or malfunction. See § 60.755(e).)

With one exception, the proposed rule will also require you to submit the reports that are specified in 40 CFR part 60, subpart WWW, or in the Federal plan, the EPA-approved State plan, or the Tribal plan that implements 40 CFR part 60 subpart Cc, whichever is applicable. As an exception, the report required in § 60.757(f) would be submitted every 6 months rather than annually. This report pertains to the value and duration that control devices were operating in out-of-bounds conditions, the duration of periods when the landfill gas stream was diverted from the control device(s), the location of areas that exceed the 500 parts per million methane concentration limit, and the dates of installation and location of each added well or collection system expansion.

E. When Would I Have To Begin Complying With the Proposed Rule?

If your landfill is a new affected source, you would need to comply with the proposed rule by [the effective date of the final rule] or at the time you begin operating, whichever occurs last. If your landfill is an existing affected source, you would need to comply with the proposed rule by 1 year after [the effective date of the final rule]. The compliance dates and time line for the EG/NSPS are unaffected by this proposed rule. It is important to note that to be in compliance with the proposed rule, you must follow the requirements of the EG/NSPS, and you must comply with the additional requirements included in proposed subpart AAAA.

F. Are New and Existing Sources Defined Differently for Purposes of the Proposed Rule Than for the EG/NSPS and What Is the Effect of This Difference?

Yes, there is a difference. For the proposed rule, a new affected source is one that commenced construction or reconstruction (defined in 40 CFR part 63, subpart A) after November 7, 2000. An existing affected source is any affected source that is not a new source, that is, any source that commenced construction on or before November 7, 2000 and accepted waste at anytime since November 8, 1987.

For purposes of the NSPS, a new source is each MSW landfill for which construction, modification, or reconstruction commenced on or after May 30, 1991. For purposes of the EG, an existing source is any MSW landfill that is not a new source and has accepted waste since November 8, 1987.

Because regulatory impacts can vary based on these different definitions, it is important for sources to know how they are defined and the regulatory implications for each rule that applies to them. The regulatory implications of new versus existing source determination for sources affected by the EG/NSPS are well understood, unaffected by this proposed rule, and, thus, will not be discussed further here. The regulatory implications of new versus existing source determination for sources affected by this proposed rule are limited to compliance timing. While new sources must comply with the proposed subpart by the publication date of the final rule or at the time they begin operating, existing sources must comply with the proposed subpart within 1 year of the publication of the final rule.

G. How Must I Demonstrate Compliance?

You must demonstrate compliance by meeting the requirements in the EG/NSPS and by maintaining monitoring parameters within acceptable ranges. In addition, you must submit reports every 6 months which must include any notifications of deviations from the monitoring parameter values. You must develop and implement a written SSM plan according to the provisions in § 63.6(e)(3). If you take action during a SSM event, you must keep records for that SSM event which demonstrate that you followed the procedures specified in the SSM plan. You must submit a report every 6 months if the action is consistent with the SSM plan. However, if the action is not consistent with the SSM plan, you must notify EPA within 2 days of the SSM event and must follow up with a letter within 7 days of the event (§ 63.10(d)(5)(ii)).

III. Rationale for the Proposed Rule

A. How Did EPA Select the Affected Source?

Selection of the affected source defines the boundary of the unit to which the proposed rule applies. This definition is used in combination with the term “reconstruction”, defined in § 63.2, to determine when an “existing source” becomes a “new source”.

The affected source can be narrowly or broadly defined. If narrowly defined, identification as a new source may occur sooner. By contrast, identification may be delayed or never occur if the affected source is broadly defined.

A change to new source status can result in the application of more stringent control requirements or a shorter time to comply. Since the reconstruction of an existing source may result in greater emissions of HAP, it may be desirable to require greater or earlier control.

During the development of the proposed rule, we considered the impact of a narrow and broad affected source definition. This evaluation took into consideration the nature of the source category, noting that landfills do not reconstruct in the same sense as defined in § 63.2. In addition, we noted that this proposal requires the same level of control for new and existing sources. Based on this evaluation, we decided to broadly define the affected source.

B. How Did EPA Determine the Basis and Level of the Proposed Rule for Existing and New Major Sources?

To determine the basis and level of control for existing and new major sources, we gathered readily available data on the physical, operational, and emission characteristics of landfills. In addition, we made site visits to 20 landfills in seven States to further characterize the source and the control technologies in use. From these data, we developed a database for MSW landfills.

1. How Did EPA Determine the MACT Floor?

To determine the MACT floor for existing sources, we used collected data to estimate emissions, determine major and area source status, and identify controls currently in use at landfills. We determined the source status for 9,539 landfills based on maximum uncontrolled emission estimates from landfill gas. We estimated 1,140 facilities are, or will be, major sources of HAP.

Similarly, we used maximum NMOC emission estimates and landfill capacity data to determine the number of landfills subject to the landfill gas collection and control requirements of the EG/NSPS. We identified 1,312 facilities subject to the EG/NSPS level of control. We determined that the 1,140 major sources are a subset of the EG/NSPS facilities. Since substantially greater than 12 percent of the existing major sources apply this level of control, we determined that the MACT floor for existing sources is the EG/NSPS level of control.

To determine the MACT floor for new sources, we tried to locate information identifying gas control technologies that are more effective than the controls required by the EG/NSPS. We were unable to locate any information identifying any landfill gas emissions control technologies that are more effective in reducing HAP emissions than the controls required under the EG/NSPS for MSW landfills. Because no better controls are available, the EG/NSPS is the emission control achieved in practice by the best controlled similar source and, therefore, is also the MACT floor for new sources.

The EG/NSPS do not address emissions from landfill wastewater. Landfill wastewater emissions were evaluated for the proposed rule because emissions of HAP are possible at any point in a landfill wastewater collection, storage, and treatment system that is open to the atmosphere. However, we have found no information on the prevalence or effectiveness of any practices that may reduce air emissions from wastewater collection and treatment at landfills. As a result, we have been unable to identify a MACT floor for landfill wastewater emission points.

Limited data are available to characterize the potential emissions of HAP from landfill wastewater. However, the available data indicate that volatile concentrations of HAP in landfill wastewater are low. We developed emission estimates for HAP using several worst case assumptions, such as assuming that all HAP from landfill wastewater would volatilize and be released to the atmosphere, and using median reported HAP concentrations and maximum estimates of all wastewater produced at landfills. Even with these conservative assumptions, we estimate that total nationwide emissions from wastewater operations at all of the landfills in the United States are no more than 57 tpy of HAP. We expect that this estimate is high for the reasons stated. When considering that there are more than 10,000 landfills in the United States, the amount of HAP released from any one landfill's wastewater operations would be very small. We estimate that emissions from landfill wastewater represent no more than 0.4 percent of the combined landfill gas-wastewater emissions.

Metal HAP, including mercury, may be emitted from landfills and would not be controlled by the EG/NSPS control technologies. No controls for emissions of metal HAP have been demonstrated for landfill gas or landfill gas combustion technologies. Therefore, the MACT floor for metal HAP is no control.

2. How Did EPA Consider Beyond-the-Floor Options?

The EG/NSPS requirements for landfill gas collection and emissions reductions are the best available control for landfill gas. Therefore, there were no options to consider that were more stringent than the MACT floor for landfill gas control. The gas collection system required by the EG/NSPS (described in § 60.753) is designed to capture as much landfill gas as possible and requires several parameters to be monitored to ensure this, including pressure, nitrogen or oxygen concentration, temperature, and surface methane concentration. There are no data indicating that collection systems are in use that are more effective than those required by the EG/NSPS.

Similarly, there are no known technologies that can regularly achieve reduction efficiencies greater than those specified in the EG/NSPS. The EG/NSPS regulations require 98 percent reduction efficiency for NMOC, or a maximum outlet concentration of 20 parts per million by volume (ppmv) if an enclosed combustion device is used. These reduction efficiencies can be regularly achieved by several types of control technologies with proper operation.

Because there are no collection and control technologies more stringent than the EG/NSPS, MACT for both existing and new sources is the same as the MACT floor, that is the control level of the EG/NSPS.

We have been unable to identify a MACT floor for landfill wastewater because we have not found information on the prevalence of any practices that may reduce air emissions from wastewater collection and treatment. Therefore, we were unable to consider control options, and we propose that the MACT not include any control requirements or emission limits for these operations. As previously stated, emissions from landfill wastewater are expected to be minimal, no more than 0.4 percent of all landfill emissions.

The EG/NSPS do not require control of emissions of metal HAP, and no capture devices or controls for metals have been demonstrated for landfill gas or for landfill gas combustion technologies. For this reason, the MACT floor and the MACT for control of metal HAP at new and existing major source landfills are no control, and no other options were considered.

C. How Did EPA Determine the Standard for Area Sources?

The CAA requires control of area sources listed pursuant to section 112(c). Under section 112(k), we must consider regulation of any listed area source category and ultimately regulate enough such categories to account for 90 percent of the aggregate emissions of the identified HAP. We are proposing to regulate some area source landfills, but do not believe that all area source landfills warrant regulation to meet the requirements of section 112(k).

Area sources may be controlled using MACT or GACT. To determine control requirements for area sources, we reviewed the area sources and their emissions profile and are proposing to apply GACT to these sources. For MSW area source landfills that are 2.5 million Mg and 2.5 million m³ or greater in design capacity, and that emit 50 Mg per year or more of NMOC (or approximately 5.9 Mg of HAP per year), EPA has selected GACT to be the same as MACT. The EG/NSPS already cover these sources, so requiring GACT does not impose additional control burdens on these sources. Additionally, as discussed in the previous section, there are no control options more stringent than those required by the EG/NSPS.

For MSW landfills smaller than 2.5 million Mg or 2.5 million m³, or that emit less than 50 Mg per year of NMOC, this proposal requires no control for area sources. These landfills are costly to control, and they emit relatively little HAP. During the development of the EG/NSPS, we also made a decision not to control these smaller landfills. As discussed in the preamble to the EG/NSPS (61 FR 9916), the design capacity exemption of 2.5 million Mg or 2.5 million m³ excludes those landfills that can least afford the cost of landfill gas collection and control systems, for example, small businesses and, particularly, municipalities. Furthermore, the analysis for the EG/NSPS found that a more stringent design capacity exemption level would increase the number of landfills required to apply control, while only achieving an additional 25 percent NMOC emissions reduction. The emission rate cutoff of 50 Mg per year of NMOC, in conjunction with the design capacity exemption, required control of less than 5 percent of all landfills (at the time of EG/NSPS promulgation), but reduced NMOC emissions by approximately 53 percent.

Other reasons for exempting the smaller area source landfills from control requirements exist. For example, many existing area source MSW landfills are closed (82 percent were closed as of January 1999). Landfill emissions are at their highest level within the year right after closure and then begin to decrease steadily. Thus, landfills are a unique emissions source, because they have naturally diminishing emissions over time. It makes little sense to require expensive controls for small, closed area source landfills when their emissions are low and will decrease over time. As emissions decrease, there would be a dramatic decrease in the average cost effectiveness per Mg of NMOC reduction achieved through control of small, closed area source landfills.

Most new landfills will be much larger than the design capacity cutoff of 2.5 million Mg and 2.5 million m³. Economies-of-scale make it cheaper to operate larger facilities, thus encouraging companies and municipalities to build ever larger landfills that receive waste from larger areas. Whereas waste was previously moved not much farther than 15 miles from point-of-origin to the landfill, it now moves an average of 45 miles, and the trend is increasing. The effect of this will be to ensure that future facilities will be very large to be cost competitive.

D. Why Is NMOC Used As a Surrogate for HAP?

The proposed rule would require the collection and control of landfill gas, which is the same pollutant regulated by the EG/NSPS. By volume, landfill gas is approximately 50 percent methane, 50 percent carbon dioxide, and less than 1 percent of many different NMOC. Nonmethane organic compounds include VOC, HAP, and odorous compounds. Therefore, by collecting and controlling landfill gas, HAP emitted by landfills are collected and controlled. To reduce the burden and complexity of measuring and monitoring the various HAP, NMOC is specified as a surrogate in the proposed rule for determining the applicability of collection and control of HAP emissions. Nonmethane organic compounds are an appropriate surrogate for HAP because all HAP are contained in the NMOC portion of landfill gas. Also, landfill owners and operators are already required to estimate NMOC under the EG/NSPS. It is not necessary to increase the burden by requiring specific HAP measurements.

E. How Did EPA Select the Format of the Standard?

Section 112(d) of the CAA requires that emission standards for control of HAP be prescribed unless, in the judgement of the Administrator, it is not feasible to prescribe or enforce emission standards. Section 112(h) identifies two conditions under which it is not considered feasible to prescribe or enforce emission standards: (1) If the HAP cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or (2) if the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitation. If it is not feasible to prescribe or enforce emission standards, then the Administrator may instead promulgate design, equipment, work practice, and operational standards, or a combination of these.

We concluded that the format used in the EG/NSPS was appropriate for the proposed rule for this source category for the same reasons the format was selected for the EG/NSPS. An emission standard is not appropriate for gas collection system design because it is not feasible to measure gas generated versus gas collected at a landfill, and then to determine what performance a collection system is achieving. Monitoring of surface concentration alone will not demonstrate the fraction of gas that is collected, nor will it determine whether the system is designed and performing optimally. However, monitoring surface concentrations will indicate when cover maintenance and well adjustments should be made, as well as when additional wells should be added to the collection system. Surface monitoring also provides a safeguard against uncertainties in determining the area of influence of the wells.

Because an emission standard is not feasible for gas collection, a design and operational standard was set under the EG/NSPS for gas collection systems. The specifications for active collection systems do not give prescriptive design specifications, but they do present criteria on which to base a collection system design plan. The EG/NSPS set an emission standard for the control devices because once gas is collected, the destruction efficiency of a control device can be established.

F. How Did EPA Determine the Requirements of the Proposed Rule?

To determine the requirements of the proposed rule, the EPA compared the two statutory authorities that regulate landfills. Landfills are already regulated in the EG/NSPS under authority of section 111 of the CAA. The proposed rule would regulate landfills as required under section 112. We compared the requirements of section 112, which requires regulations to control HAP, to the requirements of section 111, which regulates the emissions of landfill gas pursuant to the EG/NSPS. We determined that there are no better controls than the collection and control system required by the EG/NSPS. Therefore, the proposed rule incorporates the control requirements of the EG/NSPS as MACT. The next step was to determine if the rules promulgated under section 111 met all the section 112 rule requirements.

We compared the general provisions developed for regulations under these two CAA sections. The essential differences between the section 111 general provisions and the section 112 general provisions are the SSM provisions, continuous parameter monitoring data being a measure of compliance with the operating conditions, and reporting of deviations every 6 months as opposed to annual reporting. Therefore, the proposed rule contains the provisions of the EG/NSPS, plus the provisions discussed above from section 112.

G. What Is the Basis for the Startup, Shutdown, and Malfunction and Monitoring and Reporting Requirements?

In the proposed rule, we have included the recordkeeping requirements in the 40 CFR part 63 general provisions (59 FR 12408, March 16, 1994) requiring operators to develop a plan for how gas collection and control systems would be operated during SSM events, and how malfunctioning gas collection and control systems would be repaired. We believe that it is appropriate to require compliance on a continual basis for sources that emit HAP. We require a SSM plan because deviations occur during SSM events, that is, air pollution is emitted in quantities greater than anticipated by the applicable standards. The plan is a means to minimize the emissions to the extent possible.

Deviations from the requirements of the standards are typically direct indications of noncompliance with the emission standards, and, therefore, are directly enforceable. Therefore, an owner or operator must demonstrate that the SSM plan was followed during an SSM event that has caused the deviation to certify compliance with the emission standards.

You must keep records of all periods of SSM events of gas collection and control equipment and all measurements taken during these periods. This approach is consistent with the requirement that control systems be operated at all times, but it allows special situations to occur, such as unpredicted and reasonably unavoidable failures of air pollution control systems, when it is technically impossible to properly operate these systems.

Rules developed under section 112 of the CAA typically include monitoring strategies that incorporate the concepts of enhanced monitoring that were established in section 114(a)(3) of the CAA. This approach is designed to ensure that monitoring procedures developed for section 112 standards provide data that can be used to determine compliance with applicable standards, including emission standards.

For the proposed rule, continuous emissions monitoring systems (CEMS) are not appropriate. We considered use of CEM but found them to be infeasible due to the lack of CEM technology for landfill sources regulated by the proposed rule. Therefore, we established operating parameters that must be continuously monitored to determine a facility's compliance status. To determine compliance status, parameters must be monitored with a frequency that will allow the source owner or operator to certify whether compliance is continuous or intermittent for each recordkeeping period associated with the applicable emission limitation or standard. For the proposed rule, control device operating parameters will be directly enforceable and will be used to determine a source's compliance status.

H. How Did EPA Determine Compliance Dates?

The compliance date for existing sources is required by section 112(i)(3) of the CAA to be as “* * * expeditiously as practicable, but in no event later than 3 years after the effective date * * *.” We are proposing a compliance date of 1 year after publication of the final rule for existing sources. One year was chosen because much of the effort required to comply with the proposed rule is already taken into account under compliance with the EG/NSPS. The only additional requirement under the proposed rule will be for a source to prepare a SSM plan and prepare to submit reports every 6 months rather than annually under the EG/NSPS. We consider 1 year sufficient time to make these adjustments. Also, the additional requirements do not go into effect until a landfill has met the collection control applicability criteria of the EG/NSPS (design capacity of equal to or greater than 2.5 million Mg and 2.5 million m³ and emit equal to or greater than 50 Mg/yr of NMOC). This may result in certain sources having additional time to prepare for compliance with the proposed rule.

The compliance date for new sources must be the effective date of the final rule as required by section 112(i)(1) of the CAA. Section 112(d)(10) provides that regulations promulgated under section 112(d) are effective upon publication. However, although a new source must be in compliance by the effective date of the final rule, a majority of the provisions of the proposed rule will only apply to landfills with a design capacity of equal to or greater than 2.5 million Mg and 2.5 million m³, and will not take effect until a source emits equal to or greater than 50 Mg/year of NMOC, and is required to install controls under the EG/NSPS.

Because of the large number of landfills, the nature of landfills history, and the fact that emissions steadily decrease after closure, we determined that an applicability date was needed to make the proposed rule manageable. November 8, 1987 was chosen as that date for the reasons outlined in the preamble of the proposed EG/NSPS (56 FR 24468, May 30, 1991).

I. What Are Some of the Special Issues Affecting MSW Landfills?

1. Petroleum Contaminated Soil

The majority of emissions of HAP at MSW landfills come from the biodegradation of the municipal solid waste in the landfill in the form of landfill gas emissions. However, some landfills may also emit HAP from volatilization of HAP contained in their surface covers if they use petroleum contaminated soils (PCS) as cover material.

Available information indicates several States allow the use of PCS as daily cover, but we do not know how many landfills actually use PCS. Also, most States impose some level of restriction on the use of PCS, such as limiting concentration of total petroleum hydrocarbons allowed in the soil, but those restrictions appear to be based on water quality concerns and vary by State, or sometimes on a case-by-case basis within a State.

Additionally, it appears that PCS used at landfills may be declining. It appears that most PCS used at landfills are obtained from the excavation and remediation of underground storage tanks. Available information indicates that the number of underground storage tanks that are being excavated for removal is declining and that, in many instances, States are simply allowing the excavated soil to be returned to the excavation site. Therefore, we believe that the amount of PCS available for use as cover material at landfills is declining. Finally, little is known about control of air emissions from PCS in use at landfills, but available information indicates that there is little or no control. An important consideration in this matter is one of overall emissions. Again, evidence indicates that the majority of air emissions from PCS may occur during excavation, storage, and transport prior to entering the boundaries of a landfill for use as cover material.

We are soliciting comment about the use of PCS at MSW landfills. Specifically, we are interested in any information regarding the amount of PCS used and the number of landfills using them, as well as levels of contamination (in terms of total petroleum hydrocarbon concentrations or total benzene, toluene, ethyl benzene, and xylene). On the basis of our current information on emissions and controls for landfilling PCS, we do not consider this a landfill issue. We plan to evaluate PCS in the context of a future MACT standard for site remediation activities.

2. Mercury Emissions From Landfills

We are also seeking information with respect to mercury emissions from landfills. Municipal solid waste landfills receive refuse that contains mercury in organic and inorganic forms. Common wastes that contain mercury that are routinely disposed of in landfills include thermometers, batteries, light switches, thermostats, and fluorescent lights. Mercury has been identified as one of the many HAP present in landfill gas. Furthermore, mercury has been identified in emissions from the working face of landfills, that is, it is emitted from waste being deposited at the surface of the landfill prior to burial. Mercury emissions have also been measured in trucks transporting waste to landfills and in waste transfer containers, such as dumpsters and curbside waste carts. Thus, it is clear that mercury is emitted from MSW prior to the waste entering landfills.

Insufficient data are available to us to adequately characterize the concentrations of mercury in landfill gas, the emissions of mercury in fugitive landfill gas, and in residuals from landfill gas combustion devices. Although we have concluded that the MACT floor for mercury control is no control, we are interested in characterizing mercury in landfill gas because of its bioaccumulative capacity and known health effects. We specifically request comment or data on mercury concentrations in landfill gas, mercury emissions from fugitive landfill gas, and from landfill gas control devices.

3. Bioreactor Operation of Landfills

Conventional MSW landfills currently practice “dry tomb” operations. Dry tomb operations means the infiltration of liquids into the solid waste stream is minimized. This can be accomplished by placement of bottom and side liners and by placement of a low permeability final cap over the waste. In addition, some sites install and operate systems to remove leachate produced during the natural biodegradation process. The rationale for using this method was minimization of groundwater contamination. The method also resulted in a slower biodegradation process and reduced landfill gas.

A newer concept, bioreactor operation, is gaining interest in the solid waste industry. In contrast to conventional landfilling, bioreactor operation attempts to maximize liquid infiltration of the solid waste stream by leachate recirculation and in some cases by the introduction of other liquids. Bioreactor landfill operations can take one of two forms, aerobic or anaerobic, each with its own potential benefits and risks. In general, the rationale for using either or both of these methods is the potential achievement of improved environmental and economic benefits such as:

• More rapid biodegradation and earlier stabilization of waste;
• Extended use of current sites and reduced need for new sites;
• Improved quality of leachate and reduced risk of groundwater contamination; and
• Earlier and more rapid generation of landfill gas resulting in more economical energy recovery.

While we agree that some environmental benefits may result from either or both forms of bioreactor operation at landfills, we are concerned about the potential impact on public health and the environment.

The operation of a landfill as an aerobic bioreactor requires the injection of air along with the addition of liquids. This operation may result in the rapid decomposition of waste, the generation of large quantities of gases such as carbon dioxide, and increased internal landfill temperature. During this type of operation, there is potential for fugitive emissions of VOC and HAP unless aggressive steps are taken to collect and control these emissions. In addition, the combination of air in the waste stream and increased internal landfill temperature could increase the potential for a landfill fire. Once started, landfill fires are difficult to extinguish and potentially lead to increased release of dioxin/furan emissions from the combustion of municipal solid waste. Active prevention of landfill fires may need to include frequent monitoring of landfill temperatures, as well as the development of a contingency plan should a fire occur. If the potential for a fire is great enough, it may be inappropriate to allow aerobic bioreactor operation.

The operation of a landfill as an anaerobic bioreactor may result in generation of landfill gas, including methane, sooner after waste deposition and at a more rapid rate than with conventional landfilling. Current solid waste Federal rules, 40 CFR part 60, subparts Cc and WWW, do not require the collection and control of landfill gas unless the site is 2.5 million Mg in size and has estimated NMOC emissions of 50 Mg per year or more. The NMOC emissions estimate is based on a methane generation rate, k, derived from conventional landfilling data. The use of this “k” value may not be appropriate under bioreactor landfill operations since the methane generation rate is expected to be much greater under these conditions. A value greater than the current regulatory value, 0.05 per year, may be more appropriate. In addition, sites currently required to control landfill gas need not control it until the waste is 2 years old in closed cells or cells at final grade, or 5 years old in active cells. The timing of gas collection and control was based on conventional landfilling practices. This timing may not be appropriate under anaerobic bioreactor operations. To prevent increased emissions, it may be more appropriate to delay liquid addition until a final cap is in place or until gas collection and control has begun, regardless of the age of the waste in active or closed cells.

There are little data available on full scale anaerobic bioreactor landfill operations and even less data on aerobic bioreactor landfill operations. In addition, a great deal of uncertainty exists regarding the health and environmental impacts associated with each form of bioreactor operation. Current solid waste Federal rules may not adequately address the health and environmental impacts associated with either form of bioreactor operation. Therefore, EPA requests comment on amending the NSPS to require the application of collection and control systems to aerobic bioreactor cells, and require the use of a higher “k” value for anaerobic bioreactor cells which could result in the installation and operation of collection and control systems sooner after waste deposition in these cells.

IV. Summary of Environmental, Energy, and Economic Impacts

We foresee minimal economic impacts to major sources because all of these landfills are currently required to comply with the EG/NSPS. The proposed rule would only impose a requirement to prepare a SSM plan, the recordkeeping and reporting requirements for SSM events, and semiannual reports instead of annual reports. The expected annual cost to affected major source landfills is only $1,700 (1998 dollars), which represents less than 0.001 percent of the tipping fees collected by an average sized landfill. For more information on the economic impacts of the proposed standards, refer to the economic impact analysis in the docket.

We also foresee no environmental, energy, or economic impacts for collection and control of landfill gas to area source landfills. As with major source landfills, all area source landfills subject to the proposed rule are already required to implement the EG/NSPS. Area source landfills that are too small to trigger the EG/NSPS applicability are not subject to control under the proposed standards and, therefore, will not incur impacts.

The additional requirements for the SSM plan and the semiannual report are projected to affect approximately 1,309 MSW landfills in the first year. The estimated average annual burden for industry for the first 3 years after promulgation of the final rule would be 39,276 person-hours annually. There will be $13,128 of operation and maintenance costs associated with monitoring or recordkeeping during the first 3 years.

It is possible that a source exists that is major but is not subject to the collection and control requirements of the EG/NSPS. This could occur if a landfill does not meet the EG/NSPS collection and control applicability criteria, and the contribution of emissions of HAP from collocated operations causes the full source to emit at major source levels. We do not have any data to indicate that this situation exists, and we believe that this situation is unlikely to occur. Therefore, no impacts were assessed for this category of facilities.

V. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant”, and therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that the proposed rule is not a “significant regulatory action” because it will not have an annual effect on the economy of $100 million or more and it does not impose any additional control requirements above the 1996 EG/NSPS. The EPA considered the 1996 EG/NSPS to be “significant” because the 1996 EG/NSPS were expected to have an annual effect on the economy in excess of $100 million. The EPA submitted the 1996 EG/NSPS to OMB for review (61 FR 9905, March 12, 1996). However, the proposed rule is projected to have no significant impact above the 1996 EG/NSPS. Consequently, the proposed rule is not submitted to OMB for review under Executive Order 12866.

B. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications”. “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government”. Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement. The federalism summary impact statement must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the EPA's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from its federalism official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

The proposed rule for MSW landfills will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The EPA has concluded that the proposed rule may create a mandate on a number of city and county governments, and the Federal government would not provide the funds necessary to pay the direct costs incurred by these city and county governments in complying with the mandate. However, the proposed rule does not impose any additional control costs or result in any additional control requirements above those considered during promulgation of the 1996 EG/NSPS. In developing the 1996 EG/NSPS, EPA consulted extensively with State and local governments to enable them to provide meaningful and timely input in the development of that rulemaking. Because the control requirements of the proposed rule are substantially the same as those developed in 1996, these previous consultations still apply. For a discussion of EPA's consultations with State and local governments, the nature of the governments' concerns, and EPA's position supporting the need for the specific control requirements included in both the EG/NSPS and the proposed rule, see the preamble to the 1996 EG/NSPS (60 FR 9918, March 12, 1996). Thus, the requirements of section 6 of the Executive Order do not apply to the proposed rule.

C. Executive Order 13084, Consultation and Coordination With Indian Tribal Governments

Under Executive Order 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, Executive Order 13084 requires EPA to provide to 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, Executive Order 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”.

The proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to the proposed rule.

D. Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks

Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 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, EPA 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 EPA.

The EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation.

The proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because it is based on technology performance and not on health and safety risks. Furthermore, as no alternative technologies exist that would provide greater stringency at a reasonable cost, the results of any children's health analysis would have no impact on the stringency decision.

E. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The maximum total annual cost of the proposed rule for any year has been estimated to be less than $2.2 million. Thus, the proposed rule is not subject to the requirements of section 202 and 205 of the UMRA. In addition, the EPA has determined that the proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small government. Therefore, the proposed rule is not subject to the requirements of section 203 of the URMA.

F. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certified that the rule will not have a significant impact or a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impact of the proposed rule, small entities are defined as: (1) A small business that is primarily engaged in the collection and disposal of refuse in a landfill operation as defined by SIC codes 4953 and 5911 with annual receipts less than 6 million dollars; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000, and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the proposed rule for MSW landfills on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. We have determined that small entities will experience little impact since this proposed rule will rely on the requirements specified in 40 CFR part 60, subparts Cc and WWW. Additional requirements for the proposed rule are limited to a slight increase in the reporting frequency of some reports and the development of a SSM plan. This increase in requirements leads to an increase in annual costs to each affected landfill of only $1,700 (1998 dollars), an increase of less than 0.001 percent of the tipping fees taken in by a landfill of average size nationally. Hence, the estimated impacts to small communities, organizations, and firms from the proposed rule should be insignificant. For more information on the economic impacts of the proposed rule, refer to the economic impact analysis in the docket.

Although the proposed rule for MSW landfills will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this proposed rule on small entities. To that end, we have evaluated the operational practices, collection systems and control systems required by 40 CFR part 60, subparts Cc and WWW, for co-control environmental benefits. Since the requirements in 40 CFR part 60, subparts Cc and WWW, adequately address the emissions of HAP while controlling landfill gas, we are using these same requirements with only a slight increase in reporting activity/frequency for this rulemaking. In addition to the reduction effort, we have performed a number of outreach activities to interact with small entities during the development of the proposed rule. We have held formal stakeholder meetings. We have presented rule related information at national conferences sponsored by the trade organizations for these entities, and we requested the establishment of an electronic link between the International City/County Management Association website and our rule development website. Through the efforts discussed above, small entities have been engaged in the development of the proposed rule. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments or issues related to such impacts.

G. Paperwork Reduction Act

An Information Collection Request (ICR) document has been prepared for the proposed rule by EPA (ICR No. 1938.01) and submitted to OMB for approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. A copy may be obtained from Sandy Farmer by mail at the Office of Environmental Information, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Avenue, NW, Washington, DC 20460, by e-mail at [e-mail] or by calling [phone]. A copy may also be downloaded off the Internet at http://www.epa.gov/​icr.

Comments are requested on the EPA's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Office of Environmental Information, Collection Strategies Division, U.S. Environmental Protection Agency (2137), 1200 Pennsylvania Avenue, NW, Washington, DC 20460, and to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW, Washington, DC 20503, marked “Attention: Desk Officer for EPA (ICR Tracking No. 1938.01)”. Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after November 7, 2000, a comment to OMB is best assured of having its full effect if OMB receives it by December 7, 2000. The final rule will respond to any OMB or public comments on the information collection requirements contained in the proposed rule.

The information would be used by the EPA to ensure that the requirements for the proposed rule are implemented properly and are complied with on a continuous basis. Records and reports are necessary to enable EPA to identify MSW landfills that may not be in compliance with this standard. Based on reported information, EPA would decide which landfills should be inspected and what records or processes should be inspected. The records that owners or operators of MSW landfills maintain would indicate to EPA whether personnel are operating and maintaining control equipment properly.

The proposed rule is projected to affect approximately 1,309 MSW landfills in the first year. The estimated average annual burden for industry for the first 3 years after promulgation of the proposed rule would be 39,276 person-hours annually. There will be $13,128 of operation and maintenance costs associated with monitoring or recordkeeping during the first 3 years. The estimated average annual burden, over the first 3 years, for the implementing agency would be 21,105 hours with a cost of $843,150 (including travel expenses) per year.

Burden means total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

H. National Technology Transfer and Advancement Act

Under section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113), all Federal agencies are required to use voluntary consensus standards (VCS) in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires Federal agencies such as EPA to provide Congress, through annual reports to the OMB, with explanations when an agency does not use available and applicable VCS.

The proposed rule references 40 CFR part 60, subpart WWW—Standards of Performance for Municipal Solid Waste Landfills. Since there are no new standard requirements in the proposed rule, and there are no new technical standard requirements resulting from specifying subpart WWW in this proposal, EPA is not proposing/adopting any VCS in the proposed rule.

The EPA takes comment on proposed compliance demonstration requirements in the proposed rule and specifically invites the public to identify potentially-applicable VCS. Commenters should also explain why the proposed rule should adopt these VCS in lieu of EPA's standards. Emission test methods and performance specifications submitted for evaluation should be accompanied with a basis for the recommendation, including method validation data and the procedure used to validate the candidate method (if method other than Method 301, 40 CFR part 63, appendix A was used).

List of Subjects in 40 CFR Part 63

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Hazardous substances
• Intergovernmental relations

Dated: October 31, 2000.

Carol M. Browner,

Administrator.

For the reasons cited in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is proposed to be amended as follows:

PART 63—[AMENDED]

1. The authority citation for part 63 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Part 63 is proposed to be amended by adding a new subpart AAAA to read as follows:

Subpart AAAA—National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills

What This Subpart Covers

63.1930

What is the purpose of this subpart?

63.1935

Am I subject to this subpart?

63.1940

What parts of my facility does this subpart cover?

63.1945

When do I have to comply with this subpart?

63.1950

When am I no longer required to comply with this subpart?

Standards

63.1955

What requirements must I meet?

General and Continuing Compliance Requirements

63.1960

How is compliance determined?

63.1965

What is a deviation?

63.1970

Are there any deviations that are not considered out of compliance?

63.1975

How do I calculate the 3-hour block average used to demonstrate compliance?

Notifications, Reports and Records

63.1980

What records and reports must I keep and submit?

Other Requirements and Information

63.1985

Who enforces this subpart?

63.1990

What definitions apply to this subpart?

Tables

Table 1 of subpart AAAA—Part 63 General Provisions

Applicable Paragraphs

What This Subpart Covers

§ 63.1930

What is the purpose of this subpart?

This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for existing and new municipal solid waste (MSW) landfills. This subpart requires all landfills to meet the requirements of 40 CFR part 60, subpart Cc or WWW. This subpart also requires landfills to meet the startup, shutdown, and malfunction (SSM) requirements of the general provisions of this part and provides that compliance with the operating conditions are demonstrated by parameter monitoring results that are within the specified ranges. It also includes additional reporting requirements.

§ 63.1935

Am I subject to this subpart?

Yes, if you own or operate a MSW landfill that is a major source, is co-located with a major source, or is an area source that meets the design capacity and control criteria specified in the 40 CFR Part 60 new source performance standards (NSPS), you must collect and control landfill gas according to the requirements specified in the NSPS. In addition, each area source subject to this subpart is required to obtain a title V permit. Finally, most of the requirements of this subpart will not take effect until your landfill emits equal to or greater than 50 Mg/yr NMOC and has a design capacity equal to or greater than 2.5 million Mg and 2.5 million m³.

§ 63.1940

What parts of my facility does this subpart cover?

(a) The affected source for this subpart is each new or existing MSW landfill that has accepted waste at anytime since November 8, 1987, or has additional design capacity available for future waste deposition.

(b) An affected source is a new source if you commenced construction or reconstruction after November 7, 2000. An affected source is reconstructed if you meet the criteria as defined in § 63.2.

(c) An affected source is existing if it is not new.

§ 63.1945

When do I have to comply with this subpart?

(a) If your landfill is a new affected source, you must comply with this subpart by [DATE OF PUBLICATION OF FINAL RULE] or at the time you begin operating, whichever occurs last.

(b) If your landfill is an existing affected source, you must comply with the standards by [DATE ONE YEAR AFTER PUBLICATION OF THE FINAL RULE].

§ 63.1950

When am I no longer required to comply with this subpart?

You are no longer required to comply with the requirements of this subpart when you are no longer required to apply controls as specified in § 60.752(b)(2)(v) of 40 CFR part 60, subpart WWW, or the Federal plan or EPA-approved and effective State plan or Tribal plan that implements 40 CFR part 60, subpart Cc, whichever is applicable.

Standards

§ 63.1955

What requirements must I meet?

(a) You must fulfill one of the requirements in paragraph (a)(1) or (2) of this section, whichever is applicable:

(1) Comply with the requirements of 40 CFR part 60, subpart WWW.

(2) Comply with the requirements of the Federal plan or EPA-approved and effective State plan or Tribal plan that implements 40 CFR part 60, subpart Cc.

(b) If you are required by § 60.752(b)(2) of 40 CFR part 60, subpart WWW, the Federal plan, EPA approved State or Tribal plan, to install a collection and control system, you must comply with the general provisions specified in Table 1 of this subpart.

General and Continuing Compliance Requirements

§ 63.1960

How is compliance determined?

Compliance is determined in the same way it is determined for 40 CFR part 60, subpart WWW, including performance testing, monitoring of the collection system, and continuous parameter monitoring. In addition, continuous parameter monitoring data, collected under § 60.756(b)(1), (c)(1), and (d), of 40 CFR part 60, are used to demonstrate compliance with the operating conditions for control systems. If a deviation occurs, you have failed to meet the control device operating conditions described in this subpart and have deviated from the requirements of this subpart. Finally, you must develop and implement a written SSM plan according to the provisions in § 63.6(e)(3). A copy of the SSM plan must be maintained on site. Failure to write, implement, or maintain a copy of the SSM plan is a deviation from the requirements of this subpart.

§ 63.1965

What is a deviation?

(a) A deviation occurs when the control device operating parameter boundaries described in 40 CFR 60.758(c)(1) are exceeded.

(b) A deviation occurs when 1 hour or more of the hours during the 3-hour block averaging period does not constitute a valid hour of data due to insufficient monitoring data. An hour of monitoring data are insufficient if measured values are unavailable for more than one 15-minute period within the hour.

(c) A deviation occurs when a SSM plan is not developed, implemented, or maintained on site.

§ 63.1970

Are there any deviations that are not considered out of compliance?

Yes, consistent with 40 CFR 60.755(e), §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the SSM plan. The Administrator will determine whether deviations that occur during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e).

§ 63.1975

How do I calculate the 3-hour block average used to demonstrate compliance?

Averages are calculated in the same way as they are calculated in 40 CFR part 60, subpart WWW, except that the data collected during the events listed in paragraphs (a), (b), (c), and (d) of this section are not to be included in any average computed under this subpart:

(a) Monitoring system breakdowns, repairs, calibration checks, and zero (low-level) and high-level adjustments.

(b) Startups.

(c) Shutdowns.

(d) Malfunctions.

Notifications, Records, and Reports

§ 63.1980

What records and reports must I keep and submit?

(a) Keep records and reports as specified in 40 CFR part 60, subpart WWW, or in the Federal plan, EPA-approved State plan or Tribal plan that implements 40 CFR part 60, subpart Cc, whichever is applicable with one exception. You must submit the annual report described in 40 CFR 60.757(f) every 6 months.

(b) You must also keep records and reports as specified in the general provisions of 40 CFR part 60 and this part as shown in Table 1 of this subpart. Applicable records in the general provisions include items such as SSM plans and the SSM reports.

Other Requirements and Information

§ 63.1985

Who enforces this subpart?

(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or tribal agency. If the EPA Administrator has delegated authority to a State, local, or tribal agency, then that agency as well as the U.S. EPA has the authority to implement and enforce this subpart. Contact the applicable EPA Regional Office to find out if this subpart is delegated to a State, local, or tribal agency.

(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the EPA Administrator and are not transferred to the State, local, or tribal agency.

(c) The authorities that will not be delegated to State, local, or tribal agencies are as follows. Approval of alternatives to the standards in § 63.1955. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.

§ 63.1990

What definitions apply to this subpart?

Terms used in this subpart are defined in the Clean Air Act, 40 CFR part 60, subparts A, Cc, and WWW; 40 CFR part 62, subpart GGG, and subpart A of this part, and this section as follows:

Deviation means any instance in which an affected source subject to this subpart, or an owner or operator of such a source:

(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard;

(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or

(3) Fails to meet any emission limitation (including any operating limit), or work practice standard in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart.

Emission limitation means any emission limit, opacity limit, operating limit, or visible emission limit.

EPA-approved State plan means a State plan that EPA has approved based on the requirements in 40 CFR part 60, subpart B, to implement and enforce 40 CFR part 60, subpart Cc. An approved State plan becomes effective on the date specified in the notice published in the Federal Register announcing EPA's approval.

Federal plan means the EPA plan to implement 40 CFR part 60, subpart Cc, for existing municipal solid waste landfills located in States and Indian country where State plans or Tribal plans are not currently in effect. On the effective date of an EPA-approved State or Tribal plan, the Federal plan no longer applies. The Federal plan is found at 40 CFR part 62, subpart GGG.

Modification means as increase in the permitted volume design capacity of the landfill by either horizontal or vertical expansion based on its permitted design capacity as of May 30, 1991. Modification does not occur until the owner or operator commences construction on the horizontal or vertical expansion.

Municipal solid waste landfill means an entire disposal facility in a contiguous geographical space where household waste is placed in or on land. A municipal solid waste landfill may also receive other types of RCRA Subtitle D wastes (see § 257.2 of this chapter) such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and industrial solid waste. Portions of a municipal solid waste landfill may be separated by access roads. A municipal solid waste landfill may be publicly or privately owned. A municipal solid waste landfill may be a new municipal solid waste landfill, an existing municipal solid waste landfill, or a lateral expansion.

Tribal plan means a plan submitted by a tribal authority pursuant to 40 CFR parts 9, 35, 49, 50, and 81 to implement and enforce 40 CFR part 60, subpart Cc.

Work practice standard means any design, equipment, work practice, or operational standard, or combination thereof, that is promulgated pursuant to section 112(h) of the Clean Air Act.

Table 1 of Subpart AAAA—Part 63 General Provisions Applicable Paragraphs

[As stated in § 63.1955(b), you must comply with the General Provisions requirements according to the following table]

Part 63 citation	Description	Explanation
63.1(a) except (a)(7)	Applicability: general applicability of NESHAP in this part	Affected sources are already subject to the provisions of paragraphs (a)(10)-(12) of this section through the same provisions under 40 CFR part 60, subpart A.
63.1(b)	Applicability determination for stationary sources	Affected sources are already subject to the provisions of paragraph (b)(2) of this section through the same provisions under 40 CFR part 60, subpart A.
63.1(e)	Applicability of permit program before a relevant standard has been set under this part
63.2	Definitions
63.4	Prohibited activities and circumvention	Affected sources are already subject to the provisions of paragraph (b) of this section through the same provisions under 40 CFR part 60, subpart A.
63.5(b)	Requirements for existing, newly constructed, and reconstructed sources	Affected sources are already subject to the provisions of paragraph (b)(2) of this section through the same provisions under 40 CFR part 60, subpart A.
63.6(e)	Operation and maintenance requirements, SSM provisions	Affected sources are already subject to the provisions of paragraph (e)(2) of this section through the same provisions under 40 CFR part 60, subpart A.
63.6(f)	Compliance with nonopacity emission standards	Affected sources are already subject to the provisions of paragraphs (f)(1) and (2)(i) of this section through the same provisions under 40 CFR part 60, subpart A.
63.10(b)(2)(i)-(v)	General recordkeeping requirements
63.10(d)(5)	If actions taken during a SSM are consistent with the procedures in the SSM plan, this information shall be included in a semiannual SSM report. Any time an action taken during a SSM is not consistent with the SSM plan, the source shall report actions taken within 2 working days after commencing such actions, followed by a letter 7 days after the event
63.12(a)	These provisions do not preclude the State from adopting and enforcing any standard, limitation, etc., requiring permits, or requiring emissions reductions in excess of those specified
63.15	Availability of information and confidentiality