[Federal Register Volume 63, Number 145 (Wednesday, July 29, 1998)]
[Rules and Regulations]
[Pages 40371-40373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20282]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[CO-001-0026a; FRL-6131-7]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Colorado; 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 EPA is approving the Colorado plan and associated
regulations for implementing the Municipal Solid Waste (MSW) Landfill
Emission Guidelines at 40 CFR part 60, subpart Cc, which were required
pursuant to section 111(d) of the Clean Air Act (Act). The State's plan
was submitted to EPA on April 13, 1998, in accordance with the
requirements for adoption and submittal of State plans for designated
facilities in 40 CFR part 60, subpart B. The State's plan establishes
performance standards for existing MSW landfills and provides for the
implementation and enforcement of those standards. EPA finds that
Colorado's plan for existing MSW landfills adequately addresses all of
the Federal requirements applicable to such plans.
DATES: This direct final rule is effective on September 28, 1998
without further notice, unless EPA receives adverse comment by August
28, 1998. If adverse comment is received, EPA will publish a timely
withdrawl of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Written comments on this action may be mailed to Vicki
Stamper, 8P2-A, at the EPA Region VIII Office listed. Copies of the
documents relative to this action are available for inspection during
normal business hours at the Air Program, Environmental Protection
Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado
80202-2466. Copies of the State documents relevant to this action are
available for public inspection at the Air Pollution Control Division,
Colorado Department of Public Health and Environment, 4300 Cherry Creek
Drive South, Denver, Colorado 80222-1530.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303)
312-6445.
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 a new source performance
standard (NSPS) that controls a designated pollutant, EPA establishes
emissions guidelines 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 emission guideline for that
source category as well as 40 CFR part 60, subpart B.
On March 12, 1996, EPA published Emission Guidelines (EG) for
existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c-
60.36c) and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW
(40 CFR 60.750-60.759). (See 61 FR 9905-29.) 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 whether 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 either (1)
submit a plan for the control of the designated pollutant to which the
EG applies or (2) submit a negative declaration if there were no
designated facilities in the State within nine months after publication
of the EG, or by December 12, 1996.
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 32783-32784, 32743-32753. 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
Colorado's submittal.
II. Analysis of State's Submittal
On April 13, 1998, the State of Colorado submitted its plan and
regulations (hereafter referred to as the ``State Plan'') for
implementing EPA's MSW landfill EG. The Colorado State Plan includes
the ``111(d) Plan for Existing Municipal Solid Waste Landfills Existing
in Colorado'' and the State's implementing regulations in Part A of
Colorado Regulation No. 6.
[[Page 40372]]
Colorado has incorporated by reference the EG of 40 CFR part 60,
subpart Cc in Part A of Colorado Regulation No. 6. In addition, the
State has adopted language in Part A of Colorado Regulation No. 6 which
clarifies the requirements applicable to existing MSW landfills in
Colorado. Part A of Colorado Regulation No. 6 also includes compliance
deadlines to address the compliance timelines of the EG and the
increments of progress requirements of 40 CFR part 60, subpart B. Thus,
the State's regulations adequately address the requirements of the EG,
including the required applicability, emission limitations, test
methods and procedures, reporting and recordkeeping requirements, and
compliance times. Specifically, Colorado's regulation requires that
existing MSW landfills that: (1) Accepted waste since November 8, 1987;
(2) have a design capacity equal to or greater than 2.5 million
megagrams (Mg) or 2.5 million m3; and (3) have a NMOC
emission rate, calculated in accordance with the procedures of 40 CFR
60.754, equal to or greater than 50 Mg/year to install a gas collection
and control system meeting the requirements of 40 CFR 60.33c(b) and (c)
within thirty months from the effective date of the State regulation
(or, for those existing MSW landfills whose initial NMOC emission rate
is less than 50 Mg/yr on the effective date of the State regulation,
within thirty months after submittal of the first annual NMOC emission
rate report showing emissions equal to or exceeding 50 Mg/yr).
The State Plan also includes documentation showing that all
requirements of 40 CFR part 60, subpart B have been met. Specifically,
the State Plan includes a demonstration of legal authority to adopt and
implement the plan, an emissions inventory, increments of progress
compliance deadlines, a commitment to submit to EPA annual State
progress reports on plan implementation and enforcement, and
documentation that the State addressed the public participation
requirements of 40 CFR part 60.23. In addition, as stated above, the
State has adopted emission standards and compliance schedules into an
enforceable State regulation that is no less stringent than the EG.
Consequently, EPA finds that the State Plan and implementing
regulations meet all of the requirements applicable to such plans in 40
CFR part 60, subparts B and Cc. The State did not, however, submit
evidence of authority to regulate existing MSW landfills in Indian
Country. Therefore, EPA is not approving this State Plan as it relates
to those sources.
More detailed information on the requirements for an approvable
plan and Colorado's submittal can be found in the Technical Support
Document (TSD) accompanying this notice, which is available upon
request.
III. Final Action
Based on the rationale discussed above and in further detail in the
TSD associated with this action, EPA is approving Colorado's plan and
associated regulations, as submitted on April 13, 1998, for the control
of landfill gas from existing MSW landfills, except for those existing
MSW landfills located in Indian Country. As provided by 40 CFR
60.28(c), any revisions to Colorado's State 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 approved by EPA in accordance with 40 CFR part 60,
subpart B.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Plan. Each request for revision to a State Plan
shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment 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 State Plan should
adverse comments be filed. This rule will be effective September 28,
1998 without further notice unless the Agency receives adverse comments
by August 28, 1998.
If the 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 then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period. Any parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on September 28, 1998 and
no further action will be taken on the proposed rule.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review,'' review.
The 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.
B. Regulatory Flexibility Act
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 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).
C. 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
the 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
[[Page 40373]]
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.
D. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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. section 804(2).
E. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Colorado's audit
privilege and penalty immunity law (sections 13-25-126.5, 13-90-107,
and 25-1-114.5 Colorado Revised Statutes (C.R.S.); S.B. 94-139,
effective June 1, 1994) or its impact upon any approved provision in
the State Plan, including the submittal 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 Colorado'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, 114, 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.
F. 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 September 28, 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 must 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.
Dated: July 20, 1998.
William P. Yellowtail,
Regional Administrator, Region VIII.
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.
SUBPART G--[AMENDED]
2. Subpart G is amended by adding an undesignated center heading
and sections 62.1350, 62.1351 and 62.1352 to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.1350 Identification of plan.
``111(d) Plan for Existing Municipal Solid Waste Landfills Existing
in Colorado'' and the associated State regulations in Part A of
Colorado Regulation No. 6, submitted by the State on April 13, 1998.
Sec. 62.1351 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 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. 62.1352 Effective date.
The effective date of the plan for municipal solid waste landfills
is September 28, 1998.
[FR Doc. 98-20282 Filed 7-28-98; 8:45 am]
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