[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Rules and Regulations]
[Pages 40049-40053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19937]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[MN51-01-7276a; FRL-6128-8]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Minnesota; Control of Landfill Gas Emissions
From Existing Municipal Solid Waste Landfills
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (EPA) is
approving the Minnesota State Plan submittal for implementing the
Municipal Solid Waste (MSW) Landfill Emission Guidelines. The State's
plan submittal was made pursuant to requirements found in the Clean Air
Act (Act). The State's plan was submitted to EPA on March 4, 1997, in
accordance with the requirements for adoption and submittal of State
plans for designated facilities in 40 CFR part 60, subpart B. It
establishes performance standards for existing MSW landfills and
provides for the implementation and enforcement of those standards. The
EPA finds that Minnesota's Plan for existing MSW landfills adequately
addresses all of the Federal requirements applicable to such plans. If
adverse comments are received on this action, the EPA will withdraw
this final rule and address the comments received in response to this
action in a final rule on the related proposed rule, which is being
published in the proposed rules section of this Federal Register. A
second public comment period will not be held. Parties interested in
commenting on this action should do so at this time. This approval
makes federally enforceable the State's rule that has been incorporated
by reference.
DATES: The ``direct final'' is effective on September 25, 1998, unless
EPA receives adverse or critical comments by August 26, 1998. Should
EPA receive adverse comments, a timely withdrawal of the Direct Final
Rule will be published in the Federal Register to inform the public
that the rule will not take effect.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section , Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the proposed State Plan submittal and EPA's analysis are
available for inspection at the U.S. Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. (Please telephone Douglas Aburano at (312)
353-6960 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
U.S. EPA, Region 5, Chicago, Illinois 60604, (312) 353-6960.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the Act, EPA established procedures whereby
States submit plans to control certain existing sources of ``designated
pollutants.'' Designated pollutants are defined as pollutants for which
a standard of performance for new sources applies under section 111,
but which are not ``criteria pollutants'' (i.e., pollutants for which
National Ambient Air Quality Standards (NAAQS) are set pursuant to
sections 108 and 109 of the Act) or hazardous air pollutants (HAPs)
regulated under section 112 of the Act (see 40 CFR 60.21(a)). As
required by section 111(d) of the Act, EPA established a process at 40
CFR part 60, subpart B, similar to the process required by section 110
of the Act (regarding State Implementation Plan (SIP) approval) which
States must follow in adopting and submitting a section 111(d) plan.
Whenever EPA promulgates a new source performance standard (NSPS) that
controls a designated pollutant, EPA establishes Emissions Guidelines
(EG) in accordance with 40 CFR 60.22 which contain information
pertinent to the control of the designated pollutant from those
existing facilities that, but for their construction prior to the
proposal of the NSPS, would be affected by the standard (i.e., the
``designated facility'' as defined at 40 CFR 60.21(b)). Thus, a State's
section 111(d) plan for a designated facility must comply with the EG
for that source category as well as 40 CFR part 60, subpart B.
On March 12, 1996, EPA published Emissions Guidelines for existing
MSW landfills (EG) at 40 CFR part 60, subpart Cc (40 CFR 60.30c through
60.36c) and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW
(40 CFR 60.750 through 60.759) (see 61 FR 9905-9929). The pollutant
regulated by the NSPS and EG is MSW landfill emissions, which contain a
mixture of volatile organic compounds (VOCs), other organic compounds,
methane, and HAPs. VOC emissions can contribute to ozone formation
which can result in adverse effects to human health and vegetation. The
health effects of HAPs include cancer, respiratory irritation, and
damage to the nervous system. Methane emissions contribute to global
climate change and can result in fires or explosions when they
accumulate in structures on or off the landfill site. To determine if
control is required, nonmethane organic compounds (NMOCs) are measured
as a surrogate for MSW landfill emissions. Thus, NMOC is considered the
designated pollutant. The designated facility which is subject to the
EG is each existing MSW landfill (as defined in 40 CFR 60.31c) for
which construction, reconstruction or modification was commenced before
May 30, 1991.
Pursuant to 40 CFR 60.23(a), States were required to submit a plan
for the control of the designated pollutant to which the EG applies
within nine months after publication of the EG (i.e., by December 12,
1996). If there were no designated facilities in the State, then the
State was required to submit a negative declaration by December 12,
1996.
On March 4, 1997, the State of Minnesota submitted its ``Section
111(d) Plan for MSW Landfills'' for implementing EPA's MSW landfill EG.
The following provides a brief discussion of the requirements for an
approvable State plan for existing MSW landfills and EPA's review of
Minnesota's submittal in regard to those requirements. More detailed
information on the requirements for an approvable plan and Minnesota's
submittal can be found in the Technical Support Document (TSD)
accompanying this document, which is available upon request.
[[Page 40050]]
II. Review of Minnesota's MSW Landfill Plan
EPA has reviewed Minnesota's section 111(d) plan for existing MSW
landfills against the requirements of 40 CFR part 60, subpart B and
subpart Cc, as follows:
A. Identification of Enforceable State Mechanism for Implementing the
EG
40 CFR 60.24(a) requires that the section 111(d) plan include
emissions standards, defined in 40 CFR 60.21(f) as ``a legally
enforceable regulation setting forth an allowable rate of emissions
into the atmosphere, or prescribing equipment specifications for
control of air pollution emissions.''
The State of Minnesota, through the Minnesota Pollution Control
Agency (MPCA), has adopted State rules to control air emissions from
existing landfills in the State. The rules are found at Minn. R.
7011.3500 through 7011.3510. They were proposed in the State Register
(21 SR 271) on August 26, 1996, and the notice of adoption appeared in
the State Register (21 SR 993) on January 21, 1997. The rules became
effective five working days after publication, January 28, 1997. Also
submitted as part of the 111(d) plan were definitions already adopted
at the State level as part of Solid Waste regulations. Thus, the State
has met the requirement of 40 CFR 60.24(a) to have legally enforceable
emission standards.
B. Demonstration of the State's Legal Authority to Carry out the
Section 111(d) State Plan as Submitted
40 CFR 60.26 requires the section 111(d) plan to demonstrate that
the State has legal authority to adopt and implement the emission
standards and compliance schedules.
MPCA has the legal authority to adopt and implement the rules
governing landfill gas emissions from existing MSW landfills. The MPCA
enclosed a letter dated February 3, 1997, from the Minnesota Assistant
Attorney General, Kathleen Winters, that identifies the statutory
sources of the MPCA's legal authority.
EPA has reviewed the Assistant Attorney General's opinion and the
State laws and has determined that the MPCA has adequate legal
authority to adopt and implement the section 111(d) plan in accordance
with 40 CFR 60.26.
C. Inventory of Existing MSW Landfills in the State Affected by the
State Plan
40 CFR 60.25(a) requires the section 111(d) plan to include a
complete source inventory of all existing MSW landfills (i.e., those
MSW landfills that were constructed, reconstructed, or modified prior
to May 30, 1991) in the State that are subject to the plan. This
includes all existing landfills that have accepted waste since November
8, 1987 or that have additional capacity for future waste deposition.
A list of the existing MSW landfills in Minnesota and an estimate
of NMOC emissions from each landfill have been submitted as part of the
State's landfill 111(d) plan.
D. Inventory of Emissions From Existing MSW Landfills in the State
40 CFR 60.25(a) requires that the plan include an emissions
inventory that estimates emissions of the pollutant regulated by the
EG, which, in the case of MSW landfills, is NMOC. Minnesota included in
Attachment V of its section 111(d) plan an estimation of NMOC emissions
for all of the landfills in the State using the Landfill Air Emissions
Estimation Model and AP-42 default emission factors.
E. Emission Limitations for MSW Landfills
40 CFR 60.24(c) specifies that the State plan must include emission
standards that are no less stringent than the EG (except as specified
in 40 CFR 60.24(f) which allows for less stringent emission limitations
on a case-by-case basis if certain conditions are met). 40 CFR 60.33c
contains the emissions standards applicable to existing MSW landfills.
The MPCA rules require existing MSW landfills to comply with the
same equipment design criteria and level of control as prescribed in
the NSPS. The controls required by the NSPS are the same as those
required by the EG. Thus, the emission limitations/standards are ``no
less stringent than'' subpart Cc, which meets the requirements of 40
CFR 60.24(c).
Section 60.24(f) allows States, in certain case-by-case situations,
to provide for a less stringent standard or longer compliance schedule.
Minn. R. 7011.3505, subp. 6, requires an owner/operator seeking to
apply a less stringent standard, or longer compliance schedule, to
submit a written request to the MPCA and the EPA which demonstrates
compliance with the criteria set forth in to 40 CFR 60.24(f).
Thus, MPCA's plan meets the emission limitation requirements by
requiring emission limitations that are no less stringent than the EG.
F. A Process for State Review and Approval of Site-Specific Gas
Collection and Control System Design Plans
40 CFR 60.33c(b) in the EG requires State plans to include a
process for State review and approval of site-specific design plans for
required gas collection and control systems.
The MPCA's rules regulating landfill gas emissions from MSW
landfills essentially make the federal NSPS applicable to existing MSW
landfills. The design criteria and the design specifications for active
collection systems specified in the NSPS also apply to existing
landfills, unless a request pursuant to 40 CFR 60.24(f) has been
approved by the MPCA and by EPA. Once a design plan is received, MPCA
will record the date the plan is received. MPCA will then review the
submittal for completeness and will request additional information if
necessary. A review of the design plan will be completed within 180
days of its receipt.
Thus, Minnesota's section 111(d) plan adequately addresses this
requirement.
G. Compliance Schedules
The State's section 111(d) plan must include a compliance schedule
that owners and operators of affected MSW landfills must meet in
complying with the requirements of the plan. 40 CFR 60.36c provides
that planning, awarding of contracts, and installation of air emission
collection and control equipment capable of meeting the EG must be
accomplished within 30 months of the effective date of a State emission
standard for MSW landfills. 40 CFR 60.24(e)(1) provides that any
compliance schedule extending more than 12 months from the date
required for plan submittal shall include legally enforceable
increments of progress as specified in 40 CFR 60.21(h), including
deadlines for submittal of a final control plan, awarding of contracts
for emission control systems, initiation of on-site construction or
installation of emission control equipment, completion of on-site
construction/installation of emission control equipment, and final
compliance.
MPCA has adopted enforceable compliance schedules in Minn. R.
7011.3505 Subpart 5. The State's rules require landfills that are
required to install collection and control systems be in final
compliance with the requirements of the State plan no later than 30
months from the effective date of State adoption of the State rule or,
for those MSW landfills which are not currently subject to the
collection and control system requirements, within 30 months of first
becoming subject to such requirements (i.e., within 30 months of
reporting a NMOC emission rate of 50 Mg/yr or greater). Thus, the
State's rule satisfies the requirement of 40 CFR 60.36c.
[[Page 40051]]
H. Testing, Monitoring, Recordkeeping and Reporting Requirements
40 CFR 60.34c specifies the testing and monitoring provisions that
State plans must include (60.34c references the requirements found in
40 CFR 60.753 to 60.756), and 40 CFR 60.35c specifies the reporting and
recordkeeping requirements (60.35c references to the requirements found
in 40 CFR 60.757 and 60.758). The MPCA has adopted by reference 40 CFR
60.750 through 60.759 with certain specific exceptions that apply only
to those sources subject to the EG standards.
Minn. R. 7011.3505 Subpart 2 allows an exception to the quarterly
monitoring requirements for surface methane concentrations in 40 CFR
60.756(f). The State rule only requires surface methane concentration
monitoring during the second, third, and fourth quarters of the
calendar year. In a November 14, 1997 letter to EPA, the State
submitted extensive climatological data and explained why it believes
this data shows that exceedingly cold temperatures and snow cover
during the winter quarter (essentially the months of December, January
and February) would make monitoring of surface methane concentrations
nearly impossible. In examining the data for the MSW landfills that
currently appear to be subject to the collection and control system
requirements of the State plan, the State found the following
information:
1. The daily mean temperatures in range from 8.1 to 17.9 degrees
Fahrenheit during December, January and February;
2. Average wind chill factors range from -9.0 degrees to 3.0
degrees Fahrenheit;
3. An average total snowfall receive each year is between 45 and 50
inches, of which 27 to 28 inches are received in December, January and
February;
4. At least one inch of snow covers the area from November 24 to
April 1; and
5. The mean duration of snow on the ground is:
a. Greater than or equal to 1 inch, 95-100 days;
b. Greater than or equal to 3 inches, 75-90 days;
c. Greater than or equal to 6 inches, 50-65 days;
d. Greater than or equal to 12 inches, 20-30 days; and
e. Greater than or equal to 24 inches, 5-10 days.
Thus, MPCA contends that, with mean temperatures during the winter
quarter below freezing and with snow covering the landfill at depths
sometimes greater than two feet, surface monitoring for methane during
the winter quarter is not practical and, at best, extremely difficult.
EPA believes that the State has provided substantial documentation
showing that the extremely cold temperatures and wind chill factors, as
well as the snow cover, justify the exemption from first quarter
monitoring for surface methane concentrations. If any other existing
MSW landfills become subject to the State's section 111(d) plan in the
future, EPA will need to re-evaluate the State's exemption from first
quarter monitoring based on the location and meteorological data for
that location.
40 CFR 60.756(b)(2) and 60.756(c)(2) require the installation of a
gas flow rate measuring device (which will record the flow to the
control device) or that the bypass line valve shall be secured in the
closed position with a car-seal or a lock-and-key type configuration.
These requirements assume that there is some way to bypass the control
device. If there is no bypass, then this requirement for equipment to
monitor bypasses is obviated. Minn. R 7011.3505 Subp. 3 allows landfill
owners or operators seeking to comply with 40 CFR 60.756(b)(2) and
60.756(c)(2), to alternatively confirm that there is no means to bypass
the control device in the design plan. Therefore, MPCA's alternative
compliance method is acceptable.
Consequently, EPA finds that the State's section 111(d) plan for
MSW landfills adequately addresses the testing, monitoring, reporting,
and recordkeeping requirements of the EG.
I. A Record of Public Hearings on the State Plan
40 CFR 60.23 contains the requirements for public hearings that
must be met by the State in adopting a section 111(d) plan. Additional
guidance is found in EPA's ``Summary of the Requirements for Section
111(d) State Plans for Implementing the Municipal Solid Waste Landfill
Emission Guidelines (EPA-456R/96-005, October 1996).'' Minnesota
included documents in its plan submittal demonstrating that these
procedures, as well as the State's administrative procedures, were
complied with in adopting the State's plan. Therefore, EPA finds that
Minnesota has adequately met this requirement.
J. Submittal of Annual State Progress Reports to EPA
40 CFR 60.25(e) and (f) require States to submit to EPA annual
reports on the progress of plan enforcement. Minnesota committed in the
submittal letter for its section 111(d) plan to submit annual progress
reports to EPA. The first progress report will be submitted by the
State one year after EPA approval of the State plan.
III. Final Action
Based on the rationale discussed above and in further detail in the
TSD associated with this action, EPA is approving Minnesota's March 4,
1997 submittal of its section 111(d) plan for the control of landfill
gas from existing MSW landfills. As provided by 40 CFR 60.28(c), any
revisions to Minnesota's section 111(d) plan or associated regulations
will not be considered part of the applicable plan until submitted by
the State in accordance with 40 CFR 60.28(a) or (b), as applicable, and
until approved by EPA in accordance with 40 CFR part 60, subpart B.
EPA has been involved in litigation over the requirements of the
MSW landfill EG and NSPS since the summer of 1996. On November 13,
1997, EPA issued a notice of proposed settlement in National Solid
Wastes Management Association v. Browner, et. al., No. 96-1152 (D.C.
Cir), in accordance with section 113(g) of the Act. (See 62 FR 60898.)
It is important to note that the proposed settlement does not vacate or
void the existing MSW landfill EG or NSPS. Pursuant to the proposed
settlement agreement, EPA published a direct final rulemaking on June
16, 1998, in which EPA is amending 40 CFR part 60, subparts Cc and WWW,
to add clarifying language, make editorial amendments, and to correct
typographical errors. See 63 FR 32783-4, 32743-53. EPA regulations at
40 CFR 60.23(a)(2) provide that a State has nine months to adopt and
submit any necessary State Plan revisions after publication of a final
revised emission guideline document. Thus, States are not yet required
to submit State Plan revisions to address the June 16, 1998 direct
final amendments to the EG. In addition, as stated in the June 16, 1998
preamble, the changes to 40 CFR part 60, subparts Cc and WWW, do not
significantly modify the requirements of those subparts (see 63 FR
32744). Accordingly, the MSW landfill EG published on March 12, 1996
was used as a basis for EPA's review of Minnesota's submittal.
Minnesota is not required to make a subsequent submittal since its
original submittal was reviewed against the March 12, 1996 EG and these
latest amendments to the EG do not increase the stringency of the rule
or add additional control requirements, nor do the amendments
[[Page 40052]]
alter control, monitoring, recordkeeping, or reporting requirements of
the March 12, 1996 EG (see 63 FR 32750).
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the State Plan should
adverse or critical comments be filed. This action will be effective
September 25, 1998, unless, by August 26, 1998, adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the companion proposed
rule. EPA will not institute a second comment period on this action.
Any parties interested in commenting on this action should do so at
this time. If no such comments are received, the public is advised that
this action will be effective on September 25, 1998.
IV. Administrative
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Executive Order 13045
This final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This direct final rule will not have a significant
impact on a substantial number of small entities because State Plan
approvals under section 111(d) of the CAA do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal State Plan approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
CAA preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of a State action. The CAA
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with any proposed or final rule that includes a Federal
mandate that may result in estimated costs to State, local, or tribal
governments in the aggregate; or to the private sector, of $100 million
or more. This Federal action approves pre-existing requirements under
State law, and imposes no new requirements. Accordingly, no additional
costs to state, local, or tribal governments, or the private sector,
result from this action.
E. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Minnesota's audit
privilege and penalty immunity law sections 114C.20 to 114C.31 of the
Minnesota Statute or its impact upon any approved provision in the
State Plan. The action taken herein does not express or imply any
viewpoint on the question of whether there are legal deficiencies in
this or any other Act program resulting from the effect of Minnesota's
audit privilege and immunity law. A State audit privilege and immunity
law can affect only State enforcement and cannot have any impact on
Federal enforcement authorities. EPA may at any time invoke its
authority under the Act including, for example, sections 113, 167, 205,
211 or 213, to enforce the requirements or prohibitions of the State
plan, independently of any State enforcement effort. In addition,
citizen enforcement under section 304 of the CAA is likewise unaffected
by a State audit privilege or immunity law.
F. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to the publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
G. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 25, 1998. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Methane, Municipal
solid waste landfills, Nonmethane organic compounds, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 10, 1998.
David A. Ullrich,
Acting Regional Administrator.
Part 62, Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7642.
2. Subpart Y is amended by adding an undesignated center heading
and sections 62.5860, 62.5861 and 62.5862 to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.5860 Identification of plan.
``Section 111(d) Plan for Municipal Solid Waste Landfills,''
submitted by the State on March 4, 1997.
Sec. 62.5861 Identification of sources.
The plan applies to all existing municipal solid waste landfills
for which construction, reconstruction, or
[[Page 40053]]
modification was commenced before May 30, 1991 that accepted waste at
any time since November 8, 1987 or that have additional capacity
available for future waste deposition, as described in 40 CFR part 60,
subpart Cc.
Sec. 62.5862 Effective date.
The effective date of the plan for municipal solid waste landfills
is September 25, 1998.
[FR Doc. 98-19937 Filed 7-24-98; 8:45 am]
BILLING CODE 6560-50-P
