[Federal Register Volume 63, Number 152 (Friday, August 7, 1998)]
[Rules and Regulations]
[Pages 42235-42238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21030]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OH116-1a; FRL-6134-5]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Ohio; Control of Landfill Gas Emissions From 
Existing Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is approving the Ohio State Plan submittal for 
implementing the Municipal Solid Waste (MSW) Landfill Emission 
Guidelines. The State's plan submittal was made pursuant to 
requirements found in the Clean Air Act (CAA). The State's plan was 
submitted to USEPA on March 30, 1998, 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. The USEPA finds that 
Ohio's Plan for existing MSW landfills adequately addresses all of the 
Federal requirements applicable to such plans. In the proposed rules 
section of this Federal Register, the USEPA is proposing approval of, 
and soliciting comments on, this approval. If adverse comments are 
received on this action, the USEPA will withdraw this final rule and 
address the comments received in response to this action in a final 
rule on the related proposed rule, which is being published in the 
proposed rules section of this Federal Register. A second public 
comment period will not be held. Parties interested in commenting on 
this action should do so at this time. This approval makes the State's 
rule federally enforceable.

DATES: The ``direct final'' is effective on October 6, 1998, unless 
USEPA receives adverse or critical written comments by September 8, 
1998. If adverse comment is received, USEPA will publish a timely 
withdrawal of the rule in the Federal Register informing the public 
that the rule will not take effect.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section , Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the requested SIP revision and USEPA's analysis are 
available for inspection at the U.S. Environmental Protection Agency, 
Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. (Please telephone Randolph O. Cano at (312) 
886-6036 before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Randolph O. Cano, Environmental 
Protection Specialist, Regulation Development Section, Air Programs 
Branch (AR-18J), USEPA, Region 5, Chicago, Illinois 60604, (312) 886-
6036.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 111(d) of the CAA, USEPA 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 CAA) or hazardous air 
pollutants (HAPs) regulated under section 112 of the CAA. As required 
by section 111(d) of the CAA, USEPA established a process, at 40 CFR 
part 60, subpart B, similar to the process required by section 110 of 
the CAA (regarding State Implementation Plan (SIP) approval) which 
States must follow in adopting and submitting a section 111(d) plan. 
Whenever USEPA promulgates a new source performance standard (NSPS) 
that controls a designated pollutant, USEPA establishes emissions 
guidelines in accordance with title 40 of the Code of Federal 
Regulations, Sec. 60.22 (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, USEPA published emissions 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 NSPS and EG regulate 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 if 
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 (i.e. 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 March 30, 1998, the State of Ohio submitted its ``Section 111(d) 
Plan for MSW Landfills'' for implementing USEPA's MSW Landfill EG. The 
following provides a brief discussion of the requirements for an 
approvable State plan for existing MSW landfills and USEPA's review of 
Ohio's submittal with respect to those requirements. More detailed 
information on the requirements for an approvable plan and Ohio's 
submittal can be found in the Technical Support Document (TSD) 
accompanying this notice, which is available upon request.

II. Review of Ohio's MSW Landfill Plan

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

A. Identification of Enforceable State Mechanism for Implementing the 
EG

    The regulation at 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

[[Page 42236]]

of emissions into the atmosphere, or prescribing equipment 
specifications for control of air pollution emissions.''
    The State of Ohio, through the Ohio Environmental Protection Agency 
(OEPA), has adopted State rules to control air emissions from existing 
landfills in the State. The Ohio rules for Municipal Solid Waste 
Landfills are found at Rule 3745-76 of the Ohio Administrative Code 
(OAC). They were certified by the Director of OEPA, filed with the Ohio 
Secretary of State on December 17, 1997 and became effective on January 
31, 1998. Thus Ohio 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.
    OEPA has demonstrated that it has legal authority to adopt and 
implement the rules governing landfill gas emissions from existing MSW 
landfills. Ohio Revised Code 3704.03 grants OEPA statutory authority to 
request this revision to the Ohio State Implementation Plan. OAC 3745-
76 provides the regulatory authority necessary to implement the plan.

C. Inventory of Existing MSW Landfills in the State Affected by the 
State Plan

    The regulation at 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.
    A list of the existing MSW landfills in Ohio and an estimate of 
NMOC emissions from each landfill have been submitted as part of the 
State's landfill 111(d) plan.

D. Inventory of Emissions From Existing MSW Landfills in the State

    The regulation at 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. Ohio included as 
a part of appendix B of its section 111(d) plan an estimation of NMOC 
emissions for all of the landfills in the State using the Landfill Air 
Emissions Estimation Model and AP-42 default emission factors.

E. Emission Limitations for MSW Landfills

    The regulation at 40 CFR 60.24c 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 OAC Rule 3745-76-01 through 15 requires existing MSW landfills 
to comply with the same equipment design criteria and level of control 
as prescribed in the NSPS. The controls required by the NSPS are the 
same as those required by the EG. Thus, the emission limitations/
standards are ``no less stringent than'' subpart Cc, which meets the 
requirements of 40 CFR 60.24(c).
    The regulation at Sec. 60.24(f) allows States, in certain case-by-
case situations, to provide for a less stringent standard. To account 
for this provision, the Ohio Rule requires an owner/operator to apply a 
less stringent standard, or longer compliance schedule to submit a 
written request to the Director of OEPA.
    Thus, Ohio's 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

    The provision of the EG at 40 CFR 60.33c(b) requires State plans to 
include a process for State review and approval of site-specific design 
plans for required gas collection and control systems.
    Ohio's rules regulating landfill gas emissions from MSW landfills 
essentially make the Federal NSPS applicable to existing MSW landfills. 
The design criteria and the design specifications for active collection 
systems specified in the NSPS also apply to existing landfills, unless 
a request pursuant to 40 CFR 60.24(f) has been approved by the State. 
The OEPA will then review the submittal for completeness and will 
request additional information if necessary. The Director will either 
approve or disapprove the request within six months of its receipt.
    Thus, Ohio'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. 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.
    Ohio Rule 3745-76-06 provides that landfills that are required to 
install collection and control systems be in final compliance with the 
requirements of the State plan no later than 30 months from the 
effective date of State adoption of the State rule or, for those MSW 
landfills which are not currently subject to the collection and control 
system requirements, within 30 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.

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

    The regulation at 40 CFR 60.34c specifies the testing and 
monitoring provisions that State plans must include (60.34c actually 
refers to the requirements found in 40 CFR 60.754 to 60.756), and 40 
CFR 60.35c specifies the reporting and recordkeeping requirements 
(60.35c refers to the requirements found in 40 CFR 60.757 and 60.758). 
Ohio Rule 3745-76 satisfies these requirements.

I. A Record of Public Hearings on the State Plan

    The regulation at 40 CFR 60.23 contains the requirements for public 
hearings that must be met by the State in adopting a section 111(d) 
plan. Additional guidance is found in USEPA's ``Summary of the 
Requirements for section 111(d) State Plans for Implementing the 
Municipal

[[Page 42237]]

Solid Waste Landfill Emission Guidelines (EPA-456R/96-005, October 
1996).'' Ohio 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, 
USEPA finds that Ohio has adequately met this requirement.

J. Submittal of Annual State Progress Reports to USEPA

    The regulation at 40 CFR 60.25(e) and (f) requires States to submit 
to USEPA annual reports on the progress of plan enforcement. Ohio 
committed in its section 111(d) plan to submit annual progress reports 
to USEPA. The first progress report will be submitted by the State one 
year after USEPA 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, USEPA is approving Ohio's March 
30, 1998 section 111(d) plan for the control of landfill gas from 
existing MSW landfills. As provided by 40 CFR 60.28(c), any revisions 
to Ohio'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 USEPA in accordance with 40 CFR part 60, subpart B.
    USEPA is publishing this action without prior proposal because 
USEPA views this as a noncontroversial revision and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, USEPA is proposing to approve the State Plan 
should adverse or critical written comments be filed. This action will 
be effective without further notice unless USEPA receives relevant 
adverse written comment by September 8, 1998. Should USEPA receive such 
comments, it will publish a final rule informing the public that this 
action will not take effect. 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 
October 6, 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 has exempted this regulatory 
action from Executive Order 12866 review.

B. Executive Order 13045

    This 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.

C. Regulatory Flexibility

    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 direct final rule will not have a significant 
impact on a substantial number of small entities because plan approvals 
under section 111(d) do not create any new requirements but simply 
approve requirements that the State is already imposing. Therefore, 
because the Federal SIP 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 CAA preparation of a 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of a State action. The CAA forbids USEPA to base its 
actions concerning SIPs on such grounds. Union Electric Co., v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, USEPA must undertake various actions 
in association with 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. This Federal action approves pre-existing requirements under 
State law, and imposes no new requirements. Accordingly, no additional 
costs to state, local, or tribal governments, or the private sector, 
result from this action.

E. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Ohio's audit 
privilege and penalty immunity law sections 3745.70-3745.73 of the Ohio 
Revised Code or its impact upon any approved provision in the SIP, 
including the revision 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 CAA program resulting from the 
effect of Ohio'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. USEPA may at any 
time invoke its authority under the CAA 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 CAA 
is likewise unaffected by a State audit privilege or immunity law.

F. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 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. The USEPA 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 the publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

G. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 6, 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)).

[[Page 42238]]

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 24, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.

    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. 7401-7671q.

Subpart KK--Ohio

    2. Subpart KK is amended by adding a new center heading and 
Secs. 62.8870, 62.8871, and 62.8872 to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.8870  Identification of plan.

    The Ohio State Implementation Plan for implementing the Federal 
Municipal Solid Waste Landfill Emission Guidelines including Ohio 
Administrative Code (OAC) Rules 3745-76-01 through 3745-76-15 was 
submitted on March 30, 1998.


Sec. 62.8871  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. 62.8872  Effective date.

    The effective date of the plan for municipal solid waste landfills 
is October 6, 1998.

[FR Doc. 98-21030 Filed 8-6-98; 8:45 am]
BILLING CODE 6560-50-P