[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Rules and Regulations]
[Pages 19290-19293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9595]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[KY111-9914a; FRL-6326-1]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Kentucky
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
Section 111(d) Plan submitted by the Kentucky Division for Air Quality
(DAQ) for the Commonwealth of Kentucky on December 3, 1998, for
implementing and enforcing the Emissions Guidelines (EG) applicable to
existing Municipal Solid Waste (MSW) Landfills.
DATES: This direct final rule is effective on June 21, 1999 without
further notice, unless EPA receives significant, material, and adverse
comment by May 20, 1999. If EPA receives adverse comment, we will
publish a timely withdrawal of the direct final rule in the Federal
Register and inform the public that the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Karla McCorkle, EPA
Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia
30303-8960.
Copies of materials submitted to EPA may be examined during normal
business hours at the following locations: EPA Region 4, Atlanta
Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960; and
at the Kentucky Division for Air Quality, Department for Environmental
Protection, Natural Resources and Environmental Protection Cabinet, 803
Schenkel Lane, Frankfort, Kentucky 40601.
FOR FURTHER INFORMATION CONTACT: Karla McCorkle at (404) 562-9043 or
Scott Davis at (404) 562-9127.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the Clean Air Act (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 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 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 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
Kentucky DAQ for the Commonwealth of Kentucky to implement and enforce
Subpart Cc.
II. Discussion
The Kentucky DAQ submitted to EPA on December 3, 1998, the
following in their section 111(d) Plan for implementing and enforcing
the emission guidelines for existing MSW landfills in the Commonwealth
of Kentucky: Statutory and Legal Authority; Enforceable Mechanisms; MSW
Landfill Source and Emissions Inventory; Emission Limitations; Process
for Review and Approval of Collection and Control System Design
[[Page 19291]]
Plans; Testing, Monitoring, Recordkeeping, and Reporting; Compliance
Schedule; Demonstration That the Public Had Adequate Notice and Public
Hearing Record; Submittal of Progress Reports to EPA; Quality
Assurance; and applicable Commonwealth of Kentucky statutes and
Kentucky DAQ rules.
The approval of the Kentucky State Plan is based on finding that:
(1) the Kentucky DAQ provided adequate public notice of public hearings
for the proposed rulemaking and State Plan which allows the Kentucky
DAQ to implement and enforce the EG for MSW landfills; and (2) the
Kentucky DAQ 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 the Plan, the Kentucky DAQ cites the following references for
the legal authority: Kentucky Revised Statute (KRS) 224.10-100; KRS
224.20-100; KRS 224.20-110; and KRS 224.20-120. On the basis of these
statutes of the Commonwealth of Kentucky, the State Plan is approved as
being at least as protective as the Federal requirements for existing
MSW landfills.
In the Plan, the Kentucky DAQ cites the enforceable mechanism for
implementing the EG for existing MSW landfills. The enforceable
mechanisms are the Commonwealth regulations adopted by the Commonwealth
of Kentucky in 401 Kentucky Administrative Regulation (KAR) 61:036
``Emission Guidelines and Compliance Times for Municipal Solid Waste
Landfills'' and 401 KAR 60:750 ``Standards of Performance for Municipal
Solid Waste Landfills.'' The State's regulations meet the Federal
requirements for an enforceable mechanism and are approved as being at
least as protective as the Federal requirements contained in Subpart Cc
for existing MSW landfills.
In the Plan, the Kentucky DAQ cites all emission limitations for
the major pollutant categories related to the designated sites and
facilities. These limitations in 401 KAR 61:036 are approved as being
at least as protective as the Federal requirements contained in Subpart
Cc for existing MSW landfills.
The Plan describes the process the Kentucky DAQ 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 the Plan, the Kentucky DAQ cites the compliance schedules
adopted in 401 KAR 61:036 for each existing MSW landfill to be in
compliance within 30 months of the effective date of their state plan.
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 Table 1 and Appendix A of the Plan, the Kentucky DAQ submitted a
source and emission inventory of all designated pollutants for each MSW
landfill in the Commonwealth of Kentucky. This portion of the Plan has
been reviewed and approved as meeting the Federal requirements for
existing MSW landfills.
The Plan includes its legal authority to require owners and
operators of designated facilities to maintain records and report to
their agency the nature and amount of emissions and any other
information that may be necessary to enable their agency to judge the
compliance status of the facilities. The Kentucky DAQ 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. 401 KAR 61:036 and 401 KAR 60:750 support the requirements of
monitoring, recordkeeping, reporting, and compliance assurance. These
Kentucky regulations have been reviewed and approved as being at least
as protective as Federal requirements for existing MSW landfills.
The Plan outlines how the Kentucky DAQ will provide progress
reports of Plan implementation updates 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 Kentucky State Plan meets all of
the requirements applicable to such plans in 40 CFR part 60, subparts B
and Cc. The Kentucky DAQ 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
Commonwealth of Kentucky section 111(d) Plan, as submitted on December
3, 1998, for the control of landfill gas from existing MSW landfills.
As provided by 40 CFR 60.28(c), any revisions to the Kentucky State
Plan or associated regulations will not be considered part of the
applicable plan until submitted by the Kentucky DAQ 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.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the revision
should significant, material, and adverse comments be filed. This
action will be effective June 21, 1999 unless by May 20, 1999, adverse
or critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. 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 June 21, 1999.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any section 111(d) plan. Each request for revision to the
section 111(d) 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 (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,
[[Page 19292]]
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
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 does not involve
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 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, Executive Order 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
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. Disclaimer Language Approving SIP Revisions in Audit Law States
Nothing in this action should be construed as making any
determination or expressing any position regarding Kentucky's audit
privilege and penalty immunity law, Kentucky KRS 224.01-040 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 Clean Air Act program resulting from the effect of
Kentucky'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, 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.
H. 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
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.
I. 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
[[Page 19293]]
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).
J. 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 June 21, 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, Municipal waste
combustors, Reporting and recordkeeping requirements.
Dated: March 24, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR Part 62 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. 7401-7671q.
Subpart S--Kentucky
2. Section 62.4350 is amended by adding paragraphs (b)(2) and
(c)(4) to read as follows:
Sec. 62.4350 Identification of plan.
* * * * *
(b) * * *
(2) Commonwealth of Kentucky's Section 111(d) Plan For Existing
Municipal Solid Waste Landfills, submitted on December 3, 1998, by the
Kentucky Division for Air Quality.
(c) * * *
(4) Existing municipal solid waste landfills.
3. Subpart S is amended by adding a new Sec. 62.4355 and a new
undesignated center heading to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.4355 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. 99-9595 Filed 4-19-99; 8:45 am]
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