[Federal Register Volume 63, Number 195 (Thursday, October 8, 1998)]
[Rules and Regulations]
[Pages 54055-54058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[AL-046-9826a; FRL-6168-4]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) is 
approving the section 111(d) Plan submitted by the Alabama Department 
of Environmental Management (ADEM) for the State of Alabama on January 
6, 1998, for implementing and enforcing the Emissions Guidelines (EG) 
applicable to existing Municipal Solid Waste (MSW) Landfills. See 40 
CFR part 60, subpart Cc.

DATES: This final rule is effective on December 7, 1998 without further 
notice, unless EPA receives relevant adverse comments by November 9, 
1998. Should the EPA receive such comments, it will publish a timely 
document withdrawing this rule.

ADDRESSES: Written comments should be addressed to: Kimberly Bingham, 
EPA Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303-3104.
    Copies of materials submitted to EPA may be examined during normal 
business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington DC 20460;
EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303-3104; and
Alabama Department of Environmental Management, Air Division, 1751 
Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or 
Scott Davis at (404) 562-9127.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 111(d) of the Clean Air Act (Act), EPA 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 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 
EG 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, local, or tribal agency's section 111(d) plan 
for a designated facility must comply with the EG for that source 
category as well as 40 CFR part 60, subpart B.
    On March 12, 1996, EPA published EG for existing MSW landfills 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 9905-9944.) The pollutants regulated by the NSPS 
and EG are 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 60.32c) 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 (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 document 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 32743-32753, 32783-32784. 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 by EPA for review of 
section 111(d) Plan submittals.
    This action approves the section 111(d) Plan submitted by the ADEM 
for the State of Alabama to implement and enforce Subpart Cc.

[[Page 54056]]

II. Analysis of State Submittal

    On January 6, 1998, ADEM submitted the following information in 
their section 111(d) Plan for implementing and enforcing the emission 
guidelines for existing MSW landfills in the State of Alabama: Legal 
Authority; Enforceable Mechanism; MSW Landfill Source and Emission 
Inventory; Emission Limits; Collection and Control System Design Plan 
Review Process; Compliance Schedule; Testing, Monitoring, Recordkeeping 
and Reporting Requirements; Demonstration That the Public Had Adequate 
Notice and Opportunity to Submit Written Comments; Submittal of 
Progress Reports to EPA; and applicable State of Alabama statutes and 
rules of the Alabama ADEM.
    The approval of the Alabama State Plan is based on finding that: 
(1) ADEM provided adequate public notice of public hearings for the 
proposed rulemaking which allows the ADEM to implement and enforce the 
EG for MSW landfills; and (2) ADEM also demonstrated 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.
    In appendix C of the Plan, ADEM cites the following references for 
the legal authority: Chapter 22A of section 22 of the Code of Alabama, 
``The Alabama Environmental Management Act; and Chapter 28 of section 
22 of the Code of Alabama, ``The Alabama Air Pollution Control Act.'' 
These statutes and regulations are approved as being at least as 
protective as the Federal requirements for existing MSW landfills.
    In appendix A of the Plan, ADEM cites the enforceable mechanism for 
implementing the EG for existing MSW landfills. The enforceable 
mechanism is the state regulation adopted by the State of Alabama in 
Chapter 335-3-19, ``Control of Municipal Solid Waste Landfill Gas 
Emissions.'' The State's regulation meets the Federal requirements for 
an enforceable mechanism and is approved as being at least as 
protective as the Federal requirements contained in Subpart Cc for 
existing MSW landfills.
    In appendix A of the Plan, ADEM cites all emission standards and 
limitations for the major pollutant categories related to the 
designated sites and facilities. These standards and limitations in the 
Alabama ADEM's Chapter 335-3-19-.03, ``Standards for Existing Municipal 
Solid Waste Landfills,'' are approved as being at least as protective 
as the Federal requirements contained in Subpart Cc for existing MSW 
landfills.
    The Alabama State Plan describes the process ADEM will utilize for 
the review of site-specific design plans for gas collection and control 
systems. The process outlined in the Plan meets the Federal 
requirements contained in subpart Cc for existing MSW landfills.
    In appendix A of the Plan, ADEM cites the compliance schedules 
adopted in Chapter 335-3-19-.04 for each existing MSW landfill to be in 
compliance within 30 months of the effective date of their implementing 
regulation (January 6, 1998). These compliance times for affected MSW 
landfills address the required compliance time lines of the EG. This 
portion of the Plan has been reviewed and approved as being at least as 
protective as Federal requirements for existing MSW landfills.
    In appendix B of the Plan, ADEM submitted a source and emission 
inventory of all designated pollutants for each MSW landfill in the 
State of Alabama. This portion of the Plan has been reviewed and 
approved as meeting the Federal requirements for existing MSW 
landfills.
    The Alabama State Plan includes its legal authority to require 
owners and operators of designated facilities to maintain records and 
report to the ADEM the nature and amount of emissions and any other 
information that may be necessary to enable the ADEM to judge the 
compliance status of the facilities. ADEM also cites its legal 
authority to provide for periodic inspection and testing and provisions 
for making reports of MSW landfill emissions data, correlated with 
emission standards that apply, available to the general public. ADEM 
submitted its Chapter 335-3-19 to support the requirements of 
monitoring, recordkeeping, reporting, and compliance assurance. These 
Alabama rules have been reviewed and approved as being at least as 
protective as Federal requirements for existing MSW landfills.
    As stated on page 4 of the Plan, ADEM will provide progress reports 
of Plan implementation to the EPA on an annual basis. These progress 
reports will include the required items pursuant to 40 CFR part 60, 
subpart B. This portion of the Plan has been reviewed and approved as 
meeting the Federal requirement for Plan reporting.
    Consequently, EPA finds that the Alabama State Plan meets all of 
the requirements applicable to such plans in 40 CFR part 60, subparts B 
and Cc. ADEM did not, however, submit evidence of authority to regulate 
existing MSW landfills in Indian Country. Therefore, EPA is not 
approving this Plan as it relates to those sources.

III. Final Action

    Based on the rationale discussed above, EPA is approving the State 
of Alabama's section 111(d) Plan, as submitted on January 6, 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 the Alabama State Plan or associated 
regulations will not be considered part of the applicable plan until 
submitted by ADEM 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 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 revision should 
significant, material, and adverse comments be filed. This action will 
be effective December 7, 1998 without further notice unless the Agency 
receives adverse comments by November 9, 1998.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal of the direct final rule and inform the public that the rule 
will not take effect. All public comments received will be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this rule. Only parties interested 
in commenting on this rule should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on December 7, 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 (E.O.)

[[Page 54057]]

12866, entitled ``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is does not 
involved decisions intended to mitigate environmental health or safety 
risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, representatives of Indian tribal governments 
``to provide meaningful and timely input in the development of 
regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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 SIP approvals under 
section 110 and subchapter I, part D 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 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 
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 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).

F. 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 
annual costs to State, local, or tribal governments in the aggregate; 
or to 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 annual 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.

G. 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. 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. 804(2).

H. 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 December 7, 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 54058]]

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, and Reporting and 
recordkeeping requirements.

    Dated: September 3, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    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 et seq.

Subpart B--Alabama

    2. Part 62.100 is amended by adding paragraphs (b)(3) and (c)(3) to 
read as follows:


Sec. 62.100  Identification of plan.

* * * * *
    (b) * * *
    (3) Alabama Department of Environmental Management Plan For the 
Control of Landfill Gas Emissions at Existing Municipal Solid Waste 
Landfills, submitted on January 6, 1998, by the Alabama Department of 
Environmental Management.
    (c) * * *
    (3) Existing municipal solid waste landfills.
    3. Subpart B is amended by adding a new Sec. 62.103 and a new 
undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.103  Identification of sources.

    The plan applies to 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.

[FR Doc. 98-26899 Filed 10-7-98; 8:45 am]
BILLING CODE 6560-50-P