2024-08737. Approval and Promulgation of Plans for Designated Facilities; New Jersey; Delegation of Authority

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a request from the New Jersey Department of Environmental Protection (NJDEP) for 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. On November 21, 2023, the NJDEP Assistant Commissioner signed a memorandum of agreement (MoA) concerning the delegation of authority of the Federal Plan for existing MSW landfills to the NJDEP by the EPA. Subsequently, on November 28, 2023, the MoA became effective upon the EPA Region 2 Regional Administrator's signature. The signed MoA serves as the mechanism for the transfer of the EPA's authority to the NJDEP. The purpose of this delegation is to acknowledge the NJDEP's ability to implement the Federal Plan and to transfer primary implementation and enforcement responsibilities from the EPA to the NJDEP for existing sources of MSW landfills. This notice informs the public of the MoA, provides a copy of the signed document, and amends regulatory text to promulgate the delegation of authority.

DATES:

This rule is effective on May 28, 2024.

ADDRESSES:

The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2023-0636. All documents in the docket are listed on the https://www.regulations.gov website. 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.

FOR FURTHER INFORMATION CONTACT:

Fausto Taveras, Environmental Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New York, New York 10007-1866, at [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

The Supplementary Information section is arranged as follows:

I. What is the background for this action?

II. What comments were received in response to the EPA's proposed action?

III. What action is the EPA taking?

IV. Statutory and Executive Order Reviews

I. What is the background for this action?

On February 20, 2024 (89 FR 12796), the EPA published a Notice of Proposed Rulemaking (NPRM) that proposed approving the New Jersey Department of Environmental Protection (NJDEP) request, dated May 8, 2023, for delegation of authority of 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), codified at 40 CFR part 62, subpart OOO, for existing sources of MSW Landfills. New Jersey's request letter included a commitment to enter a memorandum of agreement (MoA) developed by the NJDEP and the EPA, which defines the policies, responsibilities, and procedures that the NJDEP and the EPA will conform to in administering the Federal Plan requirements. The MoA was signed by the NJDEP Assistant Commissioner on November 21, 2023, and the EPA Region 2 Regional Administrator on November 28, 2023. The NPRM informed the public of the MoA, provided a copy of the signed document, and proposed amending associated 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 will continue to retain enforcement authority along with the NJDEP, and the EPA will continue to retain certain specific authorities reserved for the EPA in the Federal Plans 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).

II. What comments were received in response to the EPA's proposed action?

On February 20, 2024 (89 FR 12796), the EPA proposed to approve the NJDEP's request for delegation of the MSW landfill Federal Plan. For a detailed discussion on the content and requirements of the NJDEP's delegation request, the reader is referred to the EPA's proposed rulemaking action. The EPA received no public comments in response to its February 20, 2024, NPRM.

III. What action is the EPA taking?

The EPA approves amending regulatory text at 40 CFR part 62, subpart FF—New Jersey, to promulgate the 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.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator has the authority to delegate the authority to implement a 111(d)/129 Federal Plan that complies with the provisions of the CAA and applicable Federal regulations. See40 CFR 60.27. In reviewing 111(d)/129 Federal Plan delegation requests, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA and of the EPA's implementing regulations. Accordingly, this action merely codifies in the Code of Federal Regulations the EPA's delegation of authority to implement the Federal Plan and does not impose additional requirements beyond those imposed by the already-applicable Federal Plan. For that reason, this 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 14094 (88 FR 21879, April 11, 2023);

• 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 application of those requirements would be inconsistent with the Clean Air Act.

In addition, this rulemaking action, pertaining to New Jersey's section 111(d) request for delegation of authority to implement and enforce the Federal Plan for existing MSW landfills, is not approved to apply on any Indian reservation land or in any other area where the 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 it will not impose 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. The 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.” The 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 EJ considerations as part of its formal request; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The 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.

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 June 24, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Landfills
• Reporting and recordkeeping requirements
• Waste treatment and disposal

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

Lisa Garcia,

Regional Administrator, Region 2.

For the reasons set forth in the preamble, 40 CFR part 62 is amended as follows:

PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS

1. The authority citation for part 62 continues to read as follows:

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

Subpart FF—New Jersey

2. Amend § 62.7605, by adding paragraphs (e) through (h) to read as follows:

§ 62.7605

Identification of plan—delegation of authority.

* * * * *

(e) Letter from the New Jersey Department of Environmental Protection (NJDEP), submitted May 8, 2023, requested delegation of authority from EPA to implement and enforce the Federal Plan Requirements for existing Municipal Solid Waste Landfills. The Federal plan will be administered by both the NJDEP and the EPA, pursuant to “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” 40 CFR 62.16710-62.16730.

(f) Identification of sources. The Existing MSW Landfills Federal Plan applies to each municipal solid waste landfill that meets the following criteria:

(1) Commenced construction, reconstruction, or modification on or before July 17, 2014.

(2) Accepted waste at any time since November 8, 1987, or has additional capacity for future waste deposition.

(g) On November 21, 2023, the NJDEP Assistant Commissioner signed a Memorandum of Agreement (MoA) 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. On November 28, 2023, the EPA Region 2 Regional Administrator signed the MoA, therefore agreeing to the terms and conditions of the MoA and accepting responsibility to enforce and implement the policies, responsibilities, and procedures for existing MSW landfills.

(h) The delegation became fully effective on November 28, 2023, the date the MoA was signed by the EPA Region 2 Regional Administrator.