[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

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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

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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]
BILLING CODE 6560-50-P