[Federal Register Volume 62, Number 240 (Monday, December 15, 1997)]
[Rules and Regulations]
[Pages 65616-65619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32640]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[ND-001-0003a; FRL-5933-8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; North Dakota; 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 North Dakota plan for implementing 
the Municipal Solid Waste (MSW) Landfill Emission Guidelines at 40 CFR 
part 60, subpart Cc, which was required pursuant to section 111(d) of 
the Clean Air Act (Act). The State's plan was submitted to EPA on 
September 11, 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. EPA finds that North Dakota's plan for existing MSW 
landfills adequately addresses all of the Federal requirements 
applicable to such plans.

DATES: This action is effective on February 13, 1998 unless adverse or 
critical comments are received in writing by January 14, 1998. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments on this action should be addressed 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 following locations: Air Program, 
Environmental Protection Agency, Region VIII, 999 18th Street, suite 
500, Denver, Colorado 80202-2466; and the North Dakota Department of 
Health, Division of Environmental Engineering, 1200 Missouri Avenue, 
room 304, Box 5520, Bismarck, North Dakota 58506-5520.

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, 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 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 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 
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 submit a plan 
for the control of the designated pollutant to which the EG applies 
within nine months after publication of the EG, or 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 September 11, 1997, the State of North Dakota 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 North Dakota's submittal in regard to those 
requirements. More detailed information on the requirements for an 
approvable plan and North Dakota's submittal can be found in the 
Technical Support Document (TSD) accompanying this notice, which is 
available upon request.

II. Review of North Dakota's MSW Landfill Plan

    EPA has reviewed North Dakota's section 111(d) plan for existing 
MSW landfills against the requirements of 40 CFR part 60, subpart B and 
subpart Cc, as follows:

[[Page 65617]]

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.'' North Dakota has adopted State 
regulations as the cornerstone of its State plan to control air 
emissions from certain existing landfills. Those regulations are in the 
State's Air Pollution Control Rules, chapter 33-15-12, section 02, of 
the North Dakota Administrative Code (NDAC). These regulations were 
adopted by the State in accordance with the State's and EPA's 
administrative procedures and became effective on September 1, 1997. 
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. North Dakota provided an opinion 
from the State's Assistant Attorney General and included a copy of the 
North Dakota Air Pollution Control Law, North Dakota Century Code 
(NDCC) Chapter 23-25, to demonstrate its authority for adopting, 
implementing, and enforcing its section 111(d) plan. EPA has reviewed 
the Assistant Attorney General's opinion and the State laws and has 
determined that the State has adequate legal authority to adopt and 
implement the section 111(d) plan in accordance with 40 CFR 60.26.
    The State did not 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.

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 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. North Dakota 
addressed this requirement in Section IV. of its section 111(d) plan by 
including a list of all MSW landfills in the State, regardless of 
design capacity, that have accepted waste since November 8, 1987. There 
are a total of 13 MSW landfills in North Dakota. The State believes 
that three of these MSW landfills appear to be subject to 40 CFR part 
60, subpart WWW due to expansions that have occurred since the date the 
State plan was first proposed and, thus, are not subject to the State 
plan. The State of North Dakota estimates that there is one 
``existing'' landfill, the City of Grand Forks Municipal Landfill, that 
is subject to the requirements to report solid waste capacity, 
calculate NMOC emissions, and potentially install a gas collection and 
control system. The State estimated in its section 111(d) plan that 
there are 9 additional landfills that have solid waste capacities less 
than 2.5 million Mg or 2.5 million m3 that have accepted 
waste since November 8, 1987. Since the State's adoption of its section 
111(d) plan, the State received the design capacity reports from these 
nine landfills and confirmed that none are over the 2.5 million Mg or 
2.5 million m3 design capacity threshold. Thus, these nine 
MSW landfills are not subject to any additional requirements of the 
State's section 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. North Dakota included 
in Section IV. of its section 111(d) plan an estimation of NMOC 
emissions for all of the thirteen 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 State of North Dakota incorporated the EG by reference at NDAC 33-
15-12-02, including the emission limitations of 40 CFR 60.33c. Thus, 
the State 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. In NDAC 33-15-12-02, the 
State has incorporated by reference the EG, including the requirements 
of 40 CFR 60.33c(b) for the submittal of site-specific design plans 
meeting the conditions of 40 CFR 60.752(b)(2)(ii). In addition, Section 
VII. of the State's section 111(d) plan discusses the State's process 
for review and approval of the design plans. Thus, North Dakota'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 (i.e., the effective date of EPA approval of 
the State plan). 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.
    North Dakota has adopted enforceable compliance schedules in NDAC 
33-15-12-02. The State's rules require that the landfills which are 
required to install a collection and control system be in final 
compliance with the requirements of the State plan no later than 
twenty-nine months from the effective date of EPA approval of this plan 
or, for those MSW landfills which are not currently subject to the 
collection and control system requirements, within twenty-nine 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. In addition, 
the State has included increments of progress

[[Page 65618]]

deadlines for the submittal of a final collection and control system 
design plan, awarding contracts for installation of the collection and 
control system, initiation of on-site installation of the collection 
and control system, and final compliance. Thus, the State's rule 
satisfies the requirements of 40 CFR 60.24(e). The State's regulations 
also include a requirement for the initial performance test to be 
conducted within 180 days of the installation of the collection and 
control equipment.

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

    40 CFR 60.34c specifies the testing and monitoring provisions that 
State plans must include, and 40 CFR 60.35c specifies the reporting and 
recordkeeping requirements. In NDAC 33-15-12-02, the State has 
incorporated by reference the EG, including the test methods and 
procedures of 40 CFR 60.34c and the reporting and recordkeeping 
provisions of 40 CFR 60.35c.
    However, the State did adopt one 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 June 27, 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 (January through March) would make monitoring of surface 
methane concentrations nearly impossible. In examining this data for 
the one MSW landfill that currently appears to be subject to the 
collection and control system requirements of the State plan, the City 
of Grand Forks Municipal Landfill, the State found the following 
information:

    a. The mean temperature in Grand Forks is approximately 5 degrees 
Fahrenheit in January, 9 degrees in February, and 23 degrees in March;
    b. Using the average wind speed for the months of January through 
March in Fargo, which is 78 miles south of Grand Forks, the average 
wind chill factors would range from -22 degrees Fahrenheit in January 
to 2 degrees Fahrenheit in March. Average wind speed in those same 
months ranges from 13 to 13.6 mph;
    c. The Grand Forks area receives approximately 38 inches of snow 
during the winter season, and there is normally at least one inch of 
snow depth in Grand Forks from December 1 through the end of March; and
    d. The Grand Forks area has approximately 50 days with snow depths 
of 6 inches or more and approximately 115 days with snow depth of one 
inch or more, which generally fall within the December through March 
time frame.

    Thus, North Dakota contends that, with mean temperatures during the 
winter quarter below freezing and with snow covering the landfill at 
depths up to three 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, in the Grand Forks area 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.
    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. North 
Dakota 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 North Dakota 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. North Dakota committed in 
Section IX. of its section 111(d) plan to submit annual progress 
reports to EPA on compliance status, enforcement actions, increments of 
progress, identification of sources that have started operation, 
emission inventory information for sources that have started operation, 
updated emission inventory and compliance information, and technical 
reports on all performance testing and monitoring for landfills subject 
to the EG. 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 North Dakotas 
September 11, 1997 submittal of its section 111(d) plan for the control 
of landfill gas from existing MSW landfills, except those located in 
Indian Country. As provided by 40 CFR 60.28(c), any revisions to North 
Dakota'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 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 
February 13, 1998 unless, by January 14, 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 this action serving as a 
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 February 13, 1998.
    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.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare

[[Page 65619]]

a regulatory flexibility analysis assessing the impact of any proposed 
or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, 
EPA may certify 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 
government entities with jurisdiction over populations of less than 
50,000.
    State Plan approvals under section 111 of the 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 impose any new requirements, I certify that it does not have a 
significant impact on small entities affected. Moreover, due to the 
nature of the Federal-state relationship under the Act, preparation of 
a regulatory flexibility analysis would constitute Federal inquiry into 
the economic reasonableness of state action. The Act forbids EPA to 
base its actions concerning State Plans on such grounds. Union Electric 
Co.T1 v. U.S. E.P.A., 427 U.S. 246, 256-66 (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 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 General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. 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 February 13, 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: October 24, 1997.
William P. Yellowtail,
Regional Administrator, Region VIII.

    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. 7401-7642.

    2. Subpart JJ is added to read as follows:

Subpart JJ--North Dakota

LANDFILL GAS EMISSIONS FROM EXISTING MUNICIPAL SOLID WASTE LANDFILLS

Sec.
62.8600  Identification of plan.
62.8601  Identification of sources.
62.8602  Effective date.

Subpart JJ--North Dakota

LANDFILL GAS EMISSIONS FROM EXISTING MUNICIPAL SOLID WASTE LANDFILLS


Sec. 62.8600  Identification of plan.

    ``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the 
associated State regulation in section 33-15-12-02 of the North Dakota 
Administrative Code, submitted by the State on September 11, 1997.


Sec. 62.8601  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. 62.8602  Effective date.

    The effective date of the plan for municipal solid waste landfills 
is February 13, 1998.
[FR Doc. 97-32640 Filed 12-12-97; 8:45 am]
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