[Federal Register Volume 64, Number 181 (Monday, September 20, 1999)]
[Rules and Regulations]
[Pages 50764-50768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24261]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[NV 015-MSWa; FRL-6440-4]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving the Nevada State Plan for implementing the
emissions guidelines (EG) applicable to existing municipal solid waste
(MSW) landfills. The Plan was submitted by the Nevada Division of
Environmental Protection (NDEP) for the State of Nevada to satisfy
requirements of section 111(d) of the Clean Air Act (the Act).
DATES: This direct final rule is effective on November 19, 1999 without
further notice, unless EPA receives relevant adverse comments by
October 20, 1999. If EPA receives such comments, then it will publish a
timely withdrawal in the Federal Register informing the public that
this rule will not take effect.
ADDRESSES: Comments must be submitted to Andrew Steckel at the Region
IX office listed below. Copies of the submitted Plan and EPA's
evaluation report are available for public inspection at EPA's Region
IX
[[Page 50765]]
office during normal business hours. Copies of the submitted Plan are
available for inspection at the following locations:
Rulemaking Office (AIR-4), Air Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105
Bureau of Air Quality, Division of Environmental Protection,
Department of Conservation and Natural Resources, 333 W. Nye Lane,
Carson City, Nevada 89706-0851.
FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, (AIR-4), Air
Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901, Telephone: (415) 744-1188.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the Act, EPA has 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. As required
by section 111(d) of the Act, EPA established a process at 40 CFR part
60, subpart B, which States must follow in adopting and submitting a
section 111(d) plan. Whenever EPA promulgates new source performance
standards (NSPS) that control a designated pollutant, EPA establishes
EG in accordance with 40 CFR 60.22 which contain information pertinent
to the control of the designated pollutant from that NSPS source
category (i.e., the ``designated facility'' as defined at 40 CFR
60.21(b)). Thus, a State'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 (40 CFR 60.23 through 60.26).
On March 12, 1996, EPA promulgated NSPS for new MSW landfills at 40
CFR part 60, subpart WWW (Standards of Performance for Municipal Solid
Waste Landfills) and EG for existing MSW landfills at 40 CFR part 60,
subpart Cc (Emission Guidelines and Compliance Times for Municipal
Solid Waste Landfills) (see 61 FR 9905). The pollutants regulated by
the NSPS and EG are MSW landfill emissions, which contain a mixture of
volatile organic compounds (VOC), other organic compounds, methane, and
HAPs. VOC emissions contribute to ozone formation which can result in
adverse effects to human health and vegetation. The health effects of
HAPs include cancer, respiratory irritation, and damage to the nervous
system. Methane emissions contribute to global climate change and can
result in fires or explosions when they accumulate in structures on or
off the landfill site. To determine whether control is required,
nonmethane organic compounds (NMOC) are measured as a surrogate for MSW
landfill emissions. Thus, NMOC is considered the designated pollutant.
The designated facility which is subject to the EG is each existing MSW
landfill (as defined in 40 CFR 60.32c) for which construction,
reconstruction or modification was commenced before May 30, 1991.
Pursuant to 40 CFR 60.23(a), States were required within nine
months after promulgation of subpart Cc (by December 12, 1996) to
submit either a plan to implement and enforce the EG or, if there are
no existing MSW landfills subject to the EG in the State, a negative
declaration letter.
EPA published a direct final rulemaking on June 16, 1998, in which
EPA amended 40 CFR part 60, subpart Cc (and subpart WWW), to add
clarifying language, make editorial amendments, and to correct
typographical errors (see 63 FR 32743). EPA published additional
technical amendments and corrections on February 24, 1999 (see 64 FR
9258). These amendments did not change the submittal date or the
requirements for State plans for existing MSW landfills.
On June 3, 1998, NDEP submitted to EPA the Nevada State Plan for
implementing the MSW landfill EG. NDEP submitted a technical revision
to the Nevada State Plan on May 21, 1999.
The Nevada State Plan does not apply to landfills in the two
counties that are not under the jurisdiction of the NDEP: Clark and
Washoe. Washoe County submitted a negative declaration letter on May 7,
1997 certifying that there are no existing MSW landfills that are
subject to the control requirements of the emission guidelines within
the County. Clark County has affected existing landfills but has not
submitted its portion of the Nevada State Plan. Existing landfills in
Clark County will be subject to the requirements of the Federal Plan
upon its promulgation until EPA receives and approves Clark County's
portion of the Nevada State Plan.
The following provides a brief discussion of the requirements for
an approvable State plan for existing MSW landfills and EPA's review of
the Nevada State Plan with respect to those requirements. A detailed
discussion of the State Plan and EPA's evaluation can be found in the
Technical Support Document for the Nevada Plan (8/99).
II. Review of the Nevada MSW Landfill Plan
EPA has reviewed the Nevada section 111(d) plan for existing MSW
landfills against the requirements of 40 CFR part 60, subparts B and
Cc, as follows:
A. Identification of Enforceable State Mechanism for Implementing the
EG
Subpart B at 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 Nevada State Plan uses the
following State regulation as the enforceable mechanism: Nevada
Administrative Code (NAC) 445B.383 ``Municipal Solid Waste Landfills,''
as amended on April 9, 1999 by the Nevada State Environmental
Commission (SEC). This State regulation controls air emissions from
existing MSW landfills in the NDEP's jurisdiction.1 Thus,
Nevada has met the requirement of 40 CFR 60.24(a) to have legally
enforceable emission standards.
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\1\ The Air Quality Bureau of NDEP has jurisdiction over the
landfills within the State of Nevada, excluding the landfills within
the counties of Clark and Washoe.
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B. Demonstration of Legal Authority
Subpart B at 40 CFR 60.26 requires that the section 111(d) plan
demonstrate that the State has legal authority to adopt and implement
the emission standards and compliance schedules. The State has
demonstrated that the Nevada SEC has sufficient legal authority to
adopt rules governing MSW landfills and that the NDEP has sufficient
legal authority to enforce these rules and to develop and administer
this MSW landfill plan. The State statutes providing such authority are
sections 233B (Nevada Administrative Procedure Act) and 445B (Air
Pollution) of the Nevada Revised Statutes (NRS).
C. Inventory of Existing MSW Landfills in the State Affected by the
State Plan
Subpart B at 40 CFR 60.25(a) requires that the section 111(d) plan
include a complete source inventory of all designated facilities
regulated by the EG: existing MSW landfills (i.e., those MSW landfills
that constructed, reconstructed, or modified prior to May 30, 1991)
that have accepted waste since
[[Page 50766]]
November 8, 1987 or have additional capacity for future waste
deposition (see 40 CFR 60.32c(a)(1)). NDEP submitted a list of the
existing MSW landfills in Nevada as part of the State Plan.
D. Inventory of Emissions From Existing MSW Landfills in the State
Subpart B at 40 CFR 60.25(a) requires that the 111(d) plan include
an emissions inventory that estimates emissions of the designated
pollutant regulated by the EG: NMOC. NDEP has submitted an estimate of
annual NMOC emissions from the landfills in the source inventory as
part of the State Plan. NDEP used the procedures in 40 CFR 60.754 to
estimate the NMOC emissions.
E. Emission Standards for MSW Landfills
Subpart B at 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 standards on a case-by-case basis if certain conditions are
met). The State regulation, NAC 445B.383, contains the emission
standards that are in subpart Cc. Thus, Nevada's State Plan complies
with this requirement.
F. A Process for State Review and Approval of Site-Specific Gas
Collection and Control System Design Plans
Subpart Cc at 40 CFR 60.33c(b) 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 process for NDEP
review and approval of site-specific gas collection and control systems
is specified in the State Plan. Thus, Nevada'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. Subpart Cc at 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 date on which the NMOC
emission rate equals or exceeds 50 megagrams per year. The State
regulation, NAC 445B.383, contains the same compliance schedule as
subpart Cc.
H. Testing, Monitoring, Recordkeeping and Reporting Requirements
Subpart Cc at 40 CFR 60.34c specifies the testing and monitoring
provisions that State plans must include (60.34c specifically refers to
the requirements found in 40 CFR 60.754 to 60.756), and 40 CFR 60.35c
specifies the reporting and recordkeeping requirements (60.35c refers
to the requirements found in 40 CFR 60.757 and 60.758). The Nevada
landfill regulation incorporates by reference the requirements found in
40 CFR 60.754 to 60.758. Thus, the State Plan satisfies the
requirements of 40 CFR 60.34c and 60.35c.
I. A Record of Public Hearings on the State Plan
Subpart B at 40 CFR 60.23 contains the requirements for public
hearings that must be met by the State in adopting a section 111(d)
plan. NDEP included documents in its plan submittal demonstrating that
these requirements, as well as the State's administrative procedures,
were complied with in adopting the State landfill regulation and in
developing the State Plan. Therefore, EPA finds that Nevada has met
this requirement.
J. Submittal of Annual State Progress Reports to EPA
Subpart B at 40 CFR 60.25(e) and (f) requires States to submit to
EPA annual reports on the progress of plan enforcement. Nevada
committed in 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. Therefore, EPA finds that
Nevada has adequately met this requirement.
In summary, EPA finds that the Nevada State Plan meets all of the
requirements applicable to such plans in 40 CFR part 60, subparts B and
Cc.
III. Final Action
Based on the rationale discussed above, EPA is approving the State
of Nevada section 111(d) plan for the control of landfill gas emissions
from existing MSW landfills.2 As provided by 40 CFR
60.28(c), any revisions to the Nevada State Plan or associated
regulations will not be considered part of the applicable plan until
submitted by the NDEP 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.
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\2\ The State did not submit evidence of authority to regulate
existing MSW landfills in Indian Country; therefore, EPA is not
approving this Plan as it relates to those sources.
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The EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the 111(d) plan should
relevant adverse or critical comments be filed. This rule will be
effective November 19, 1999 without further notice unless the Agency
receives relevant adverse comments by October 20, 1999.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule did
not take effect. All public comments received will be addressed in a
subsequent final rule based on the 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 November 19, 1999 and no further action will be
taken on the proposed rule.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any section 111(d) plan. Each request for revision to the
section 111(d) plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to the Office of Management and Budget a
description of the extent of EPA's prior consultation with
representatives of affected state, local, and tribal governments, the
nature of their
[[Page 50767]]
concerns, copies of written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of state, local,
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.'' Today's rule does not create a mandate on state, local or
tribal governments. The rule does not impose any enforceable duties on
these entities. Accordingly, the requirements of section 1(a) of
Executive Order 12875 do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
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, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
E. 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 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 Clean Air Act 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
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning State Plans on
such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
F. Disclaimer Language Approving State Plans in Audit Law States
Nothing in this action should be construed as making any
determination or expressing any position regarding Nevada's audit
privilege and penalty immunity law (NRS Chapter 445C.010-.120) or its
impact upon any approved State Plan, including the plan at issue here.
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
Clean Air Act program resulting from the effect of Nevada'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 Clean Air 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 Clean Air Act is likewise
unaffected by a state audit privilege or immunity law.
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
H. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
[[Page 50768]]
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 19, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Non-methane organic
compounds, Methane, Municipal solid waste landfills, Reporting and
recordkeeping requirements.
Dated: September 10, 1999.
David P. Howekamp,
Acting Regional Administrator, Region IX.
40 CFR part 62 is amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Subpart DD is added to part 62 to read as follows:
Subpart DD--Nevada
Landfill Gas Emissions From Existing Municipal Solid Waste Landfill
Sec.
62.7100 Identification of plan.
62.7101 Identification of sources.
62.7102 Effective date.
Subpart DD--Nevada
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.7100 Identification of plan.
(a) The Washoe County Department of Health submitted on May 7, 1997
a letter certifying that there are no existing municipal solid waste
landfills in Washoe County subject to 40 CFR part 60, subpart Cc.
(b) The Nevada Division of Environmental Protection submitted on
June 3, 1998 and May 21, 1999 the State of Nevada's Section 111(d) Plan
for Existing Municipal Solid Waste Landfills.
Sec. 62.7101 Identification of sources.
The plan applies to all existing municipal solid waste landfills
for which construction, reconstruction, or modification was commenced
before May 30, 1991, as described in 40 CFR part 60, subpart Cc.
Sec. 62.7102 Effective date.
The effective date of EPA approval of the plan is November 19,
1999.
[FR Doc. 99-24261 Filed 9-17-99; 8:45 am]
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