[Federal Register Volume 63, Number 123 (Friday, June 26, 1998)]
[Rules and Regulations]
[Pages 34816-34818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17119]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OR-2-0001; FRL-6115-5]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the Section 
111(d) State Plan submitted by Oregon on May 14, 1997, for implementing 
and enforcing the Emissions Guidelines (EG) applicable to existing 
Municipal Solid Waste (MSW) Landfills.

DATES: This action is effective on August 25, 1998 unless significant, 
material, and adverse comments are received by July 27, 1998. If 
significant, material, and adverse comments are received a timely 
withdrawal will be published in the Federal Register informing the 
public that this rule will not take effect.

ADDRESSES: Written comments should be addressed to: Catherine Woo, 
Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, 
Washington 98101.
    Copies of materials submitted to EPA may be examined during normal 
business hours at the following locations: EPA, Region 10, Office of 
Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101, 
and at Oregon Department of Environmental Quality, 811 SW Sixth Avenue, 
Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Catherine Woo, Office of Air Quality 
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1814.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 12, 1996, pursuant to Section 111 of the Clean Air Act 
(Act), the EPA promulgated new source performance standards (NSPS) 
applicable to new MSW Landfills and EG applicable to existing MSW 
Landfills. The NSPS and EG are codified at 40 CFR Part 60, Subparts WWW 
and Cc, respectively. See 61 FR 9905 (March 12, 1996). Under Section 
111(d) of the Act, the EPA established procedures whereby States submit 
plans to control existing sources of designated pollutants. Designated 
pollutants are defined as pollutants which are not included on a list 
published under Section 108(a) of the Act (i.e., National Ambient Air 
Quality Standard pollutants), but to which a standard of performance 
for new sources applies under Section 111. Under Section 111(d), 
emission standards are to be adopted by the States and submitted to EPA 
for approval. The standards limit the emissions of designated 
pollutants from existing facilities which, if new, would be subject to 
the NSPS. Such facilities are called designated facilities.
    The procedures under which States submit these plans to control 
existing sources are defined in 40 CFR Part 60,

[[Page 34817]]

Subpart B. According to Subpart B, the States are required to develop 
plans within Federal guidelines for the control of designated 
pollutants. The EPA publishes guideline documents for development of 
State emission standards along with the promulgation of any NSPS for a 
designated pollutant. These guidelines apply to designated pollutants 
and include information such as a discussion of the pollutant's 
effects, description of control techniques and their effectiveness, 
costs and potential impacts. Also as guidance for the States, 
recommended emission limits and times for compliance are set forth, and 
control equipment which will achieve these emission limits are 
identified in Subpart Cc for existing MSW Landfills. The EG specified 
limits for landfill gas requires affected facilities to operate a 
control system designed to reduce collected non-methane organic 
compounds (NMOC) concentrations by 98 weight-percent, or reduce the 
outlet NMOC concentration to 20 parts per million or less, using the 
test methods specified in 40 CFR 60.754(d).

II. Discussion

    On May 14, 1997, the Oregon Department of Environmental Quality 
(ODEQ) submitted to EPA their 111(d) State Plan for implementing and 
enforcing the emission guidelines for existing MSW landfills in the 
State. The Plan contained Emission Standards and Limitations, 
Compliance Schedule, Emission Inventory, Source Surveillance, 
Compliance Assurance and Enforcement, and applicable State regulations 
(OAR 340-025-0740, and OAR 340-025-0745).
    The approval of ODEQ's State Plan is based on finding that: (1) 
ODEQ provided adequate public notice of public hearings for the 
proposed rulemaking which allows Oregon to implement and enforce the EG 
for MSW Landfills, and (2) ODEQ also demonstrated that it has the legal 
authority to adopt emission standards and compliance schedules 
applicable to the designated facilities; enforce applicable laws, 
regulations, standards and compliance schedules; seek injunctive 
relief; obtain information necessary to determine compliance; require 
recordkeeping; conduct inspections and tests; require the use of 
monitors; require emission reports of owners and operators; and make 
emission data publicly available.
    ODEQ's regulations adopt 40 CFR Part 60, Subpart WWW and require 
existing MSW Landfills to comply with the Subpart WWW emission 
standards and limitations. In its State Plan submittal, ODEQ affirms 
that MSW Landfills subject to OAR 340-025-0740 must comply with 40 CFR 
Part 60, Subpart WWW. Attachment 3a summarizes all emission standards 
and limitations for the major pollutant categories related to the 
designated sites and facilities. This approach is approved because the 
NSPS Subpart WWW requirements are at least as protective as the Federal 
requirements contained in Subpart Cc for existing MSW Landfills.
    ODEQ also submitted Oregon Administrative Rule (OAR) 340-025-00745, 
which adopts 40 CFR Subpart WWW. Thus, the compliance schedules and 
increments of progress specified in Subpart WWW are part of the State 
Plan and apply to each existing MSW Landfill as stipulated in Subpart 
WWW. The State Rule's requirement that existing MSW Landfills comply 
with the compliance schedule and legally enforceable increments of 
progress as stated in Subpart WWW has been reviewed and is approved as 
being at least as protective as Federal requirements for existing MSW 
Landfills in Subpart Cc.
    Oregon included in its Plan, under Attachment 3b, emission 
inventories for all its applicable sources. There are approximately 91 
existing landfills in Oregon's inventory, including several closed 
facilities subject to the initial reporting requirements of the EG. In 
these inventories, all designated pollutants have been identified and 
data provided for each.
    Oregon cites its legal authority (ORS468.095, 468A.050(2), and 
468A.070) to determine the compliance status by requiring owners and 
operators of designated facilities to maintain records and report to 
ODEQ the nature and amount of emissions from the facilities. Oregon 
also cites it legal authority (468.055(1)&(2)) to conduct periodic 
inspection and testing, as necessary, of designated facilities. The 
State's ability to provide emission data correlated with the emission 
standards to the public is referenced in its State Plan submittal as 
well as in OAR 340-025-0740 and OAR 340-025-0745. Finally, Oregon will 
provide reports on progress of plan enforcement as required by 40 CFR 
60.25.
    All measures and other elements in the State Plan must be 
enforceable by ODEQ. (See Sections 111(d) and 40 CFR Part 60.) During 
EPA's review of a previous State Implementation Plan revision, a 
problem was detected concerning the State's ability to adequately 
enforce point source permits. EPA determined that, because a five-day 
advance notice provision required by Oregon Revised Statute (ORS) 
468.126(1) (1991) can bar civil penalties from being imposed for 
certain permit violations, ORS 468 fails to provide the adequate 
enforcement authority the State must demonstrate to obtain State Plan 
submittal, required by the Clean Air Act for program approval.
    However, following EPA notification to Oregon, the Governor of 
Oregon signed into law new legislation amending ORS 468.126 on 
September 3, 1993. This amendment added paragraph 468.126(2)(e) which 
provides that the five-day advance notice required by ORS 468.126(1) 
does not apply if the notice requirement will disqualify the State's 
program from Federal approval or delegation. ODEQ responded to EPA's 
interpretation of the application of 468.126(2)(e) and agreed that, if 
Federal statutory requirements preclude the use of the five-day advance 
notice provision, no advance notice will be required for violations of 
the State Plan requirements. Because the five-day notice provision in 
ORC 468.126(1) could preclude enforcement of the State Plan in some 
instances, application of the notice provision would preclude approval 
of the State MWC Plan. Accordingly, pursuant to ORS 468.126(2)(e), the 
five-day notice will not be required for permit violations of the State 
Plan.
    Nothing in this action should be construed as making any 
determination or expressing any position regarding Oregon's audit 
privilege and penalty immunity law ORS 468.963, Oregon Audit Privilege 
Act, or its impact upon any approved provision in the State Plan, 
including any subsequent revisions. 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 Oregon'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.
    The 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, the EPA has included a parallel proposal to 
approve the ODEQ

[[Page 34818]]

State Plan. If no significant, material, and adverse comments are 
received by July 27, 1998, this action will be effective August 25, 
1998.
    If the EPA receives significant, material, and adverse comments by 
the above date, this action will be withdrawn before the effective date 
by publishing a subsequent document in the Federal Register that will 
withdraw this final action. All public comments received will be 
addressed in a subsequent final rule based on the parallel proposed 
rule published in today's Federal Register. The 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 August 25, 1998.

III. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. 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 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 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.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. This Federal action approves pre-
existing requirements under federal, State or local law, and imposes no 
new requirements on any entity affected by this rule, including small 
entities. Therefore, these amendments will not have a significant 
impact on a substantial number of small entities.

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 on 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 amended 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 the 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 August 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), 42 
U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Emission guidelines, Intergovernmental 
relations, Municipal solid waste landfills, Reporting and recordkeeping 
requirements.

    Dated: June 8, 1998.
Chuck Findley,
Acting Regional Administrator, Region 10.

    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.

Subpart MM--Oregon

    2. Section 62.9350 is amended by adding paragraphs (b)(5) and 
(c)(5) to read as follows:


Sec. 62.9350  Identification of plan.

* * * * *
    (b) * * *
    (5) Control of landfill gas emission from existing Municipal Solid 
Waste Landfill plan was submitted by Oregon Department of Environmental 
Quality on May 14, 1997.
    (c) * * *
    (5) Existing municipal solid waste landfills.
    3. Subpart MM is amended to add Sec. 62.9510 and a new undesignated 
heading to read as follows:

Control of Landfill Gas Emissions From Existing Municipal Solid 
Waste Landfills


Sec. 62.9510  Identification of sources.

    The plan applies to all existing MSW landfill facilities in Oregon 
meeting the requirements as stated in their State regulations.

[FR Doc. 98-17119 Filed 6-25-98; 8:45 am]
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