[Federal Register Volume 63, Number 130 (Wednesday, July 8, 1998)]
[Rules and Regulations]
[Pages 36858-36861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18082]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[MT-001-0004a; FRL-6122-2]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Montana; 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 Montana 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 July 2, 1997 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 
Montana'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 8 1998 without 
further notice, unless EPA receives adverse comment by August 7, 1998. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the direct final

[[Page 36859]]

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 Montana Department of 
Environmental Quality, 1520 East 6th Avenue, P.O. Box 200901, Helena, 
Montana 59620-0901.

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 32783-4, 32743-53. 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 Montana's submittal.

II. Analysis of State's Submittal

    On July 2, 1997, the State of Montana submitted its plan and 
regulations (hereafter referred to as the ``State Plan'') for 
implementing EPA's MSW landfill EG. The Montana State Plan includes the 
``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the 
State's implementing regulations in Sections 17.8.302(1)(j) and 
17.8.340 of the Administrative Rules of Montana (ARM).
    Montana has incorporated by reference the EG of 40 CFR part 60, 
subpart Cc, at ARM 17.8.302(1)(j). In addition, ARM 17.8.340(4) 
provides that designated MSW landfill facilities under 40 CFR part 60, 
subpart Cc, shall comply with the requirements in 40 CFR 60.33c, 
60.34c, and 60.35c that are applicable to designated facilities and 
that must be included in a State plan for approval. Montana has also 
adopted compliance deadlines in ARM 17.8.340(4)(b) to comply with 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, Montana'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 complete installation of a gas collection 
and control system meeting the requirements of 40 CFR 60.752 within 
twenty-seven months from the date of EPA approval of the State Plan 
(or, for those existing MSW landfills whose NMOC emission rate is less 
than 50 Mg/yr on the date EPA approves the State Plan, within twenty-
seven months after submittal of an NMOC emission rate report showing 
NMOC emissions equal to or greater than 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

[[Page 36860]]

plan implementation and enforcement, and documentation that the State 
addressed the public participation requirements of 40 CFR 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 meets 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 Montana'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 Montana's section 
111(d) plan and its implementing regulations in ARM 17.8.302(1)(j) and 
ARM 17.8.340, as submitted on July 2, 1997, 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 Montana'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 
until 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 rule 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 8, 
1998 without further notice unless the Agency receives adverse comments 
by August 7, 1998.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
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 on the proposed rule. Any parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on September 8, 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 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 Montana's audit 
privilege and penalty immunity law [The Voluntary Environmental Audit 
Act, 75-1-101 et seq., M.C.A. (H.B. 293, effective October 1, 1997)] or 
its impact upon any approved provision in the State Plan, including the 
submittal at issue here.

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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 Montana's audit 
privilege and penalty immunity law. A State audit privilege and penalty 
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 and penalty 
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 8 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; June 29, 1998.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    40 CFR part 62, subpart BB, 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 BB is added to read as follows:

Subpart BB--Montana

Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

Sec.
62.6600  Identification of plan.
62.6601  Identification of sources.
62.6602  Effective date.

Subpart BB--Montana

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.6600  Identification of plan.

    ``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the 
associated State regulations in sections 17.8.302(1)(j) and 17.8.340 of 
the Administrative Rules of Montana, submitted by the State on July 2, 
1997.


Sec. 62.6601  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. 62.6602  Effective date.

    The effective date of the plan for municipal solid waste landfills 
is September 8, 1998.

[FR Doc. 98-18082 Filed 7-7-98; 8:45 am]
BILLING CODE 6560-50-P