[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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