[Federal Register Volume 64, Number 51 (Wednesday, March 17, 1999)]
[Rules and Regulations]
[Pages 13075-13078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6500]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[PA-107-4066c; FRL-6311-3]
Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; Allegheny County, Pennsylvania;
Control of Landfill Gas Emissions from Existing Municipal Solid Waste
Landfills
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a municipal solid waste landfill (MSW) 111(d)
plan submitted by the Commonwealth of Pennsylvania Department of
Environmental Protection (PADEP) on behalf of the Allegheny County
Health Department (ACHD) for the purpose of controlling MSW landfill
gas emissions from existing facilities. The plan was submitted to
fulfill requirements of the Clean Air Act (CAA). The Allegheny County
plan establishes landfill gas emissions limits for existing MSW
landfills, and provides for the implementation and enforcement of those
limits.
EFFECTIVE DATE: This final rule is effective on April 16, 1999.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; and Allegheny
County Health Department, Bureau of Environmental Quality, Division of
Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.
FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On April 10, 1998 (63 FR 17683), EPA published a direct final rule
for approval of the MSW landfill 111(d) plan submitted by the PADEP on
behalf of ACHD. EPA concurrently published a proposed rule on April 10,
1998 (63 FR 17793) to allow interested parties to submit comments.
During the public comment period, EPA received one adverse comment from
Browning-Ferrris Industries, Inc. As a result, EPA withdrew the direct
final rule granting approval of the MSW landfill 111(d) plan for
Allegheny County on June 18, 1998 (63 FR 33250).
On June 16, 1998, EPA published in the Federal Register (63 FR
32743) a direct final action which amends, corrects errors, and
clarifies the regulatory text of the ``Standards of Performance for New
Stationary Sources and Guidelines for Control of Existing Sources:
Municipal Solid Waste Landfills,'' which was promulgated on March 12,
1996. The Background section of the amended rule (63 FR 32744) states,
``These changes do not significantly modify the requirements of the
regulation.'' No adverse comments were received on the amended landfill
rule, and as a result, it became effective on August 17, 1998.
II. Response to Public Comments
During the public comment period offered on the approval of the
Allegheny County MSW landfill 111(d) plan, EPA received an adverse
comment from Browing-Ferris Industries, Inc. opposing approval of the
Allegheny County portion of the Commonwealth of Pennsylvania's plan.
The following paragraphs present the commenter's remarks and EPA's
responses.
Comment: On May 12, 1998, the commenter noted that the effective
date specified in ``Section G. Compliance Schedule'' of the direct
final rule can be no sooner than the date of Federal Register
publication, April 10, 1998. The direct final rule states: ``The final
compliance date and enforceable increments of progress under the 111(d)
plans are tied to the effective date of the County's MSW landfill
regulation (Article XXI, section 2105.73).'' The table ``Reporting and
Required Increments of Progress,'' which appears in Section G,
indicates that the first compliance/reporting deadline pursuant to the
emission guidelines (EG) is ``Within 90 days of the effective date of
Article XXI Regulation*.'' The footnote (*) states that ``The
regulation became effective on August 15, 1997.'' According to the
commenter, use of the state/county effective date to trigger subsequent
requirements is inconsistent with previous EPA approvals under 40 CFR
Part 60, Subpart Cc, and with proposed revisions to the landfill new
source performance standards/emission guidelines (NSPS/EG). Also, the
Pennsylvania Air Pollution Control Act
[[Page 13076]]
(Section 4004.2(b)) prohibits the state from establishing more
stringent requirements than the federal government. The commenter
identified four EPA 111(d) plan approvals, excluding Allegheny County,
to support his argument that the EG ``effective date'' is not
established by the effective date of the state/local regulation.
Furthermore, the commenter noted that a Title V application should not
be due until one year plus 90 days from April 10, 1998, and that
installation/operation of an EG compliant gas collection/control system
should not be required until three years plus ninety days from April
10, 1998. To support his position, the commenter referenced the pending
amended EG provision, 40 CFR 60.32c(c), relating to Title V permits,
that was negotiated under the lawsuit settlement over the MSW Landfill
NSPS/EG [National Solid Waste Management Association v. Browner No. 96-
1152 (D.C. Cir)].
EPA's Response: It appears the commenter has misinterpreted the
requirements of the EG, as amended, and EPA's approval with respect to
compliance schedule requirements for Allegheny County's 111(d) plan
landfills. Any ambiguity in the text of the direct final rule published
on April 10, 1998 that may have caused confusion should now be
clarified with the discussion below.
A state's 111(d) plan must include a compliance schedule that
landfill owners/operators must meet. Most states have proposed that the
initial design capacity and NMOC emissions rate report must be
submitted 90 days after EPA approval of their 111(d) plans. The
promulgated landfill EG require the same reporting and record keeping
as the related NSPS. However, the EG do not stipulate when the initial
NMOC emissions and design capacity reports are due for existing
landfills. Even if a date were clearly specified in the EG, states can
exercise their own judgement as to when the initial reporting
requirement must be met, providing the requirement is no less stringent
than that in the EG. EPA has no documentation that the Allegheny County
landfill regulation violates any of the requirements of the
Pennsylvania Air Pollution Control Act (Section 4004.2(b)). Based on
our review of the public participation documents submitted with
Allegheny County's 111(d) plan, the issues now raised by the commenter
in his May 12, 1998 comments to EPA were not raised by that commenter,
or anyone else, during the 111(d) plan public comment period.
Furthermore, none of these comments or concerns were identified in the
PADEP submittal of the Allegheny County MSW landfill 111(d) plan to
EPA.
Although the 111(d) plan increments of progress are tied to the
effective date of the County's MSW landfill regulation, the controlling
date that triggers and defines the required increments of progress
dates, from the time of submittal of the design plan to final source
compliance, is the date when the NMOC emissions rate is first
calculated to exceed 50 Mg/yr. This is clearly noted in ``Section G.
Compliance Schedule'' of the direct final rule. Nevertheless, the
design capacity and initial NMOC emission rate reports were due within
90 days of the effective date (i.e., August 15, 1997) of the Article
XXI Regulation.
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 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 did not vacate or void
the March 12, 1996 MSW landfill EG or NSPS. Pursuant to the proposed
settlement agreement, EPA published a direct final rulemaking on June
16, 1998, in which EPA amends 40 CFR Part 60, Subparts Cc and WWW, to
add clarifying language, make editorial amendments, and to correct
typographical errors. One particular clarification addresses the
commenters concern regarding the date when Title V applications are
due. Specifically, 60.32c(c), as amended, makes it clear that EG
sources will not become subject to the requirement to apply for a Title
V permit until 90 days after the effective date of EPA's approval of a
state's 111(d) plan. (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 in the EG. In addition, as
stated in the June 16, 1998 rule's 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
state 111(d) plan submittals.
III. Final Action
Based upon the rationale discussed in the proposed and related
direct final rulemaking (63 FR 17793 and 17683, April 10, 1998), EPA is
approving the Allegheny County portion of the Pennsylvania MSW landfill
111(d) plan. As provided by 40 CFR 60.28(c), any revisions to the
Allegheny County portion of the plan or associated regulations will not
be considered part of the applicable plan until submitted by PADEP in
accordance with 40 CFR 60.28(a) or (b), as applicable, and until
approved by EPA .
IV. Administrative Requirements
A. Executive Orders 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order (E.O.) 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 EPA complies by consulting, E.O. 12875 requires EPA to
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
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If
[[Page 13077]]
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 final rule is not subject to E.O. 13045 because it
is not an economically significant regulatory action as defined by E.O.
12866, and it does not address an environmental health or safety risk
that would have a disproportionate effect on children.
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 EPA complies by
consulting, E.O. 13084 requires EPA to 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, E.O. 13084 requires EPA to
develop an effective process permitting elected and other
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. This action does not involve or impose any
requirements that affect Indian Tribes. 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. Pursuant to section 605 (b) of the RFA 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.
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 a 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 to approve the Allegheny County portion
of the Pennsylvania MSW landfill 111(d) plan must be filed in the
United States Court of Appeals for the appropriate circuit by May 17,
1999. 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).)
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Non-methane organic
compounds, Methane, Municipal solid waste landfills, Hydrocarbons,
Reporting and record keeping requirement.
Dated: March 9, 1999.
Thomas Voltaggio,
Acting, Regional Administratopr, Region III.
40 CFR Part 62, Subpart NN, 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 NN--Pennsylvania
2. Subpart NN is amended by adding a new center heading and
Secs. 62.9630, 62.9631, and 62.9632 to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills (Section 111(d) Plan)
Sec. 62.9630 Identification of plan.
Section 111(d) plan for municipal solid waste landfills and the
associated Allegheny County Health Department Regulation in Article
XXI, Sec. 2105.73, as submitted on October 23, 1997, by the
Commonwealth of Pennsylvania.
Sec. 62.9631 Identification of sources.
The plan applies to all Allegheny County, Pennsylvania, existing
municipal solid waste landfills for which construction, reconstruction,
or modification was commenced before May 30, 1991 and that has accepted
waste at any time since November 8, 1987 or that has additional
capacity available for future waste deposition, as described in 40 CFR
part 60, subpart Cc.
[[Page 13078]]
Sec. 62.9632 Effective date.
The effective date of the plan for municipal solid waste landfills
is April 16, 1999.
[FR Doc. 99-6500 Filed 3-16-99; 8:45 am]
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