2024-03324. Approval and Promulgation of Plans for Designated Facilities; New Jersey; Delegation of Authority

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve a request from the New Jersey Department of Environmental Protection (NJDEP) for the delegation of authority to implement and enforce the Federal Plan Requirements for Municipal Solid Waste (MSW) landfills that commenced construction on or before July 17, 2014, and have not been modified or reconstructed since July 17, 2014 (Federal Plan). On November 21, 2023, the NJDEP Assistant Commissioner signed a memorandum of agreement (MoA) concerning the delegation of authority of the Federal Plan to NJDEP by the EPA. Subsequently, on November 28, 2023, the MoA became effective upon the EPA Region 2 Administrator's signature. The Federal plan addresses the implementation and enforcement of the emission guidelines applicable to existing MSW landfills located in areas not covered by an approved and currently effective state plan. The Federal plan imposes emission limits and other control requirements for existing affected MSW landfills which will reduce designated pollutants. The purpose of this delegation is to transfer primary implementation and enforcement responsibilities from the EPA to NJDEP for existing sources of MSW landfills. This document informs the public of the MoA, provides a copy of the signed document, and proposes to amend regulatory text.

DATES:

Written comments must be received on or before March 21, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA–R02–OAR–2023–0636 at https://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Controlled Unclassified Information (CUI) (formally referred to as Confidential Business Information (CBI)) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be CUI or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CUI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Fausto Taveras, Environmental Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New York, New York 10007–1866, at (212) 637–3378, or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

The SUPPLEMENTARY INFORMATION section is arranged as follows:

I. Background

II. What is the EPA's Proposed Action?

III. Statutory and Executive Order Reviews

I. Background

On May 21, 2021, the EPA published a final rule in the Federal Register at 86 FR 27756 to promulgate the Federal Plan Requirements for Municipal Solid Waste (MSW) Landfills That Commenced Construction On or Before July 17, 2014, and Have Not Been Modified or Reconstructed Since July 17, 2014, (Federal Plan), pursuant to section 111(d) of the Clean Air Act (CAA). This Federal Plan implements the 2016 Emission Guidelines (EG), 40 CFR part 60, subpart Cf, which applies to MSW landfills that have accepted waste at any time since November 8, 1987, and commenced construction, reconstruction, or modification on or before July 17, 2014. See81 FR 59332. The CAA requires States with existing MSW landfills subject to the EG to submit State Plans to the EPA in order to implement and enforce the EG. For States without an approved plan, CAA section 111 and 40 CFR 60.27(c) and (d) require the EPA to develop, implement, and enforce a Federal plan for existing MSW landfills. This Federal Plan applies in areas without an approved State Plan by requiring existing MSW landfills that reach a landfill gas emission threshold of 34 megagrams (Mg) of nonmethane organic compounds (NMOC) or more per year to install a system to collect and control landfill gas. Other requirements for applicable sources include presumptive emission limits, compliance schedules, testing, monitoring, reporting, and recordkeeping. The final rule's preamble also establishes how a State can request delegation of the Federal Plan for implementation and enforcement authority on behalf of the EPA. The procedure requires the State to submit a letter to the EPA that: (1) Demonstrates that the State has adequate resources, as well as the legal and enforcement authority, to administer and enforce the program; (2) includes an inventory of designated MSW landfills, which includes those that have ceased operation, but have not been dismantled or rendered inoperable, and an inventory of the designated units' air emissions; (3) certifies that a public hearing was held on the State's delegation request; and (4) includes an MoA between the State and the EPA that sets forth the terms and conditions of delegation, the effective date of the agreement, and the mechanism to transfer authority.

On May 8, 2023, NJDEP submitted to the EPA a formal written request for delegation of authority to implement and enforce the Federal Plan for MSW landfills located in New Jersey. The goal of the request was to acquire the delegation of authority to implement and enforce the Federal Plan for existing MSW landfills located in New Jersey, in accordance with CAA section 112(l) and 40 CFR 63.91. The letter also provided the following enclosures:

• Attachment 1: Demonstration of Adequate Resources and Legal Authority;

• Attachment 2: Inventory of Affected MSW Landfills, their emissions, and provisions for Progress Reports to the EPA (40 CFR 60.25(a));

• Attachment 3: Compliance Schedule (40 CFR 62.16712); ^[1]

• Attachment 4: Certification of Public Hearing on the State Delegation Request (40 CFR 60.23); and

• Attachment 5: Commitment to Enter into a Memorandum of Agreement with the EPA.

Within New Jersey's formal request for delegation of authority to implement and enforce the Federal Plan, the State provides that all of the Federal Plan requirements in 40 CFR part 62, subpart OOO will be incorporated in each affected designated facility's Title V operating permit or preconstruction permit (PCP), when issued. The NJDEP approves, and issues permits and certificates under the authority of N.J.S.A. 26:2C–9.2. NJDEP asserts that all Title V operating permits (issued N.J.A.C. 7:27–22) and PCPs (issued under N.J.A.C. 7:27–8) for affected MSW landfill facilities with have matching, or stricter, emission limits than are stipulated under the Federal Plan at 40 CFR 62.16714 and 62.16716.

After consideration of these materials, the EPA determined that the request letter and attached documents adequately fulfilled the State delegation criteria outlined in Federal Plan's final rulemaking notice, Section VI–D. Delegation of the Federal Plan and Retained Authorities. See86 FR 27756. NJDEP demonstrated that its air agency has the requisite authority and resources to administer and enforce the Federal Plan. New Jersey's legal authority to support delegation of the Federal Plan is demonstrated by the opinion of the Acting Attorney General of New Jersey which states that the NJDEP has adequate legal authority to implement and enforce the MSW landfill Federal Plan.^[2] Additionally, NJDEP certifies that it has adequate staffing levels and divisional resources to ensure complete and timely review and issuance of conforming permits, and to monitor and ensure compliance of all affected landfills in the State. According to the submitted inventory, New Jersey currently has eight (8) existing MSW landfill facilities, as defined under 40 CFR 62.16711, that are expected to be affected by the Federal Plan. Of the eight (8) identified MSW landfills, four (4) facilities are currently in operation: Cape May County MUA Secure Landfill, Gloucester County Solid Waste Complex, Keegan SLF, and Monmouth County Reclamation Center. The remaining four (4) landfills are closed: Cinnamon Bay LLC & Edgeboro Landfill Disposal, Linden City SFL, Parklands Recycling & Disposal Facility, and Pinelands Park. Within NJDEP's formal request, the State also provided an inventory of emissions from the affected MSW landfills in New Jersey and compared those emissions to the Federal Plan Emission Limits. NJDEP's Certification of Public Hearing on the State's Delegation Request was also provided with the State's formal request. NJDEP published a notice of proposed Request for Delegation of Authority and Public Hearing in the New Jersey Register on March 6, 2023, 55 N.J.R. 498(a), and a second notice with corrected close of comment period on April 3, 2023, 55 N.J.R. 612(a). A public hearing was also held on April 10, 2023, in accordance with the requirements outlined in 40 CFR 60.23. NJDEP provided a copy of the public notices of the public hearing within the State's formal request.

The Memorandum of Agreement Concerning the Delegation of Authority of the Federal Plan for Existing Municipal Solid Waste Landfills to the New Jersey Department of Environmental Protection by the United States Environmental Protection Agency includes the delegation conditions established, the authorities which NJDEP assumes and EPA retains, a policy statement defining the responsibilities of both parties, program implementation procedures, reporting and transmittal of information requirements, and contact information. Moreover, the MoA states that it is effective upon authorized signature by both NJDEP and EPA and that it shall have an effective date of the last date on which it is signed. The mechanism to transfer authority is explicitly identified to be upon signature of both parties. The MoA also states that EPA will publish an action in the Federal Register delegating to the NJDEP the authority to implement and enforce the Federal Plan.

The MoA was signed by the NJDEP Assistant Commissioner on November 21, 2023, and became effective upon signature of the EPA Region 2 Regional Administrator on November 28, 2023. The Federal Plan is codified at 40 CFR part 62, subpart OOO. The text of EPA's and NJDEP MoA, effective November 28, 2023, can be found in the docket of this rulemaking.

II. Proposed Action

The EPA has evaluated New Jersey's submittal for consistency with the CAA, EPA regulations, and EPA policy. New Jersey has met all the requirements of EPA's guidance for obtaining the delegation of authority to implement and enforce the Federal Plan. New Jersey entered into a MoA with the EPA, and it became effective on November 28, 2023. Accordingly, EPA is proposing to approve New Jersey's request dated May 8, 2023, for the delegation of authority of the Federal Plans for existing sources of MSW Landfills. The EPA will continue to retain enforcement authority along with NJDEP, and the EPA will continue to retain certain specific authorities reserved to EPA in the Federal Plan and as indicated in the MoA ( e.g., authority to approve major alternatives to test methods or monitoring, authority to approve alternative methods to determine the site-specific NMOC concentration or a site-specific methane generation rate constant, etc.).

The EPA is proposing to amend regulatory text at 40 CFR part 62, subpart FF—New Jersey, to promulgate the approved delegation of authority to the NJDEP for implementing and enforcing the Federal Plan Requirements for Municipal Solid Waste Landfills That Commenced Construction On or Before July 17, 2014 and Have Not Been Modified or Reconstructed Since July 17, 2014 at 40 CFR part 62, subpart OOO.

The EPA is soliciting public comment on this proposed revision to the regulatory text or on relevant matters overall. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed action by following the instructions listed in the ADDRESSES section of this document.

III. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a State Plan submittal that complies with the provisions of the CAA and applicable Federal regulations. CAA sections 111(d) and 129(b); 40 CFR part 60, subparts B and Cf; and 40 CFR part 62, subpart A; and 40 CFR 62.04. Thus, in reviewing state plan submissions, EPA's role is to approve state choices, provided they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993), and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

In addition, this proposed rulemaking action, pertaining to New Jersey's submission, is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose any substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The NJDEP did not evaluate environmental justice considerations as part of its formal request; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 62

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Landfills
• Reporting and recordkeeping requirements
• Waste treatment and disposal

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

Lisa Garcia,

Regional Administrator, Region 2.

Footnotes

1.  In identifying this document, New Jersey's submittal cited the Emission Guideline requirements under 40 CFR part 60, subpart Cf. The EPA understands that to be a typographical error as, within that same submittal, the State affirms that the Department will follow the compliance schedule prescribed under 40 CFR 62.16712. The citation is corrected accordingly.

2.  A copy of New Jersey's Acting Attorney General opinion is attached to NJDEP's request letter to implement and enforce the Federal Plan Requirements for MSW landfills that commenced construction on or before July 17, 2014 and have not been modified or reconstructed since July 17, 2014.