[Federal Register Volume 64, Number 107 (Friday, June 4, 1999)]
[Rules and Regulations]
[Pages 29961-29964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13942]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[FL-79-9918a; FRL-6352-7]


Approval and Promulgation of State Plans For Designated 
Facilities and Pollutants: Florida

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The United States Environmental Protection Agency (EPA) is 
approving the section 111(d) Plan submitted by the Florida Department 
of Environmental Protection (DEP) for the State of Florida on October 
28, 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 August 3, 1999 unless 
significant, material, and adverse comments are received by July 6, 
1999. If such adverse comments are received, timely notice of the 
withdrawal will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Joey LeVasseur, 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.
    Florida Department of Environmental Protection, Air Resources 
Management Division, Twin Towers Office Building, 2600 Blair Stone 
Road, Tallahassee, Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur at (404) 562-9035 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

[[Page 29962]]

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. The State 
of Florida has amended their rules for MSW landfills in Chapter 62-204 
of the Florida Administrative Code (FAC), Rule 62-204.800(8)(c) and 
Rule 62-204.800(7)(b)72 (effective dates of October 19, 1998), to 
reflect the June 16, 1998, amendments to subparts Cc and WWW. 
Accordingly, the MSW landfill EG published on March 12, 1996, and 
amended on June 16, 1998, was used as the basis by EPA for review of 
this section 111(d) Plan submittal.
    This action approves the section 111(d) Plan submitted by the 
Florida DEP for the State of Florida to implement and enforce subpart 
Cc.

II. Discussion

    The Florida DEP submitted to EPA on October 28, 1998, the following 
in their section 111(d) Plan for implementing and enforcing the 
emission guidelines for existing MSW landfills in the State of Florida: 
Legal Authority; Enforceable Mechanisms; MSW Landfill Source and 
Emission Inventory; Emission Limits; Review and Approval Process for 
Collection and Control System Design Plans; Compliance Schedules; 
Testing, Monitoring, Recordkeeping and Reporting Requirements; 
Demonstration That the Public Had Adequate Notice and Public Hearing 
Record; Submittal of Progress Reports to EPA; and applicable State of 
Florida statutes and rules of the FAC.
    The approval of the Florida State Plan is based on finding that: 
(1) The Florida DEP provided adequate public notice of public hearings 
for the proposed rulemaking which allows the Florida DEP to implement 
and enforce the EG for MSW landfills; and (2) the Florida DEP 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 section 1.0 and Appendix B of the Plan, the Florida DEP cites 
the following references for the legal authority: Florida Statutes (FS) 
section 403.061; section 403.8055; section 403.061(6), (7), (8), (12), 
and (13); section 403.121; section 403.131; section 403.141; section 
403.161; and section 119.07. These statutes are approved as being at 
least as protective as the Federal requirements for existing MSW 
landfills.
    In section 2.0 of the Plan, the Florida DEP cites the enforceable 
mechanisms for implementing the EG for existing MSW landfills. The 
enforceable mechanisms are the State regulations adopted by the State 
of Florida in Rule 62-204.800(8)(c) and Rule 62-204.800(7)(b)72 of the 
FAC. Florida'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 section 2.0 of the Plan, the Florida DEP cites all emission 
limitations for the major pollutant categories related to the 
designated sites and facilities. These limitations in Rule 62-
204.800(8)(c) are approved as being at least as protective as the 
Federal requirements contained in subpart Cc for existing MSW 
landfills.
    In section 3.0 and 4.0 of the Plan, the Florida DEP submitted a 
source and emission inventory of all designated pollutants for each MSW 
landfill in the State of Florida. This portion of the Plan has been 
reviewed and approved as meeting the Federal requirements for existing 
MSW landfills.
    Section 5.0 of the Florida State Plan describes the process that 
Florida DEP 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 section 5.0 of the Plan, the Florida DEP cites the compliance 
schedules adopted in Rule 62-204.800(8)(c) for each existing MSW 
landfill to be in compliance within 30 months of the designated date of 
December 31, 1996, in their implementing regulation. These compliance 
times for affected MSW landfills will be no later than June 30, 1999, 
and 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.
    Section 6.0 of the Florida State 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 Florida DEP 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. Rule 62-204.800(8)(c) and Rule 62-204.800(7)(b)72 of 
the FAC support the requirements of monitoring, recordkeeping, 
reporting, and compliance assurance. These Florida rules have been 
reviewed and approved as being at least as protective as Federal 
requirements for existing MSW landfills.
    Section 7.0 of the Plan outlines how the Florida DEP will provide 
progress

[[Page 29963]]

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 Florida State Plan meets all of 
the requirements applicable to such plans in 40 CFR part 60, subparts B 
and Cc. The Florida DEP 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.

Final Action

    Based on the rationale discussed above, EPA is approving the State 
of Florida section 111(d) Plan, as submitted on October 28, 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 Florida State Plan or associated 
regulations will not be considered part of the applicable plan until 
submitted by the Florida DEP 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 August 3, 1999 unless by July 6, 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 the 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 August 3, 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.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under Executive Order 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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 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 any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 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.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 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 officials 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. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

D. 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.

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 CAA 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

[[Page 29964]]

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 August 3, 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, Methane, Municipal 
solid waste landfills, Nonmethane organic compounds, Reporting and 
recordkeeping requirements.

    Dated: April 21, 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. 7401-7642.

Subpart K--Florida

    2. Section 62.2350 is amended by adding paragraphs (b)(6) and 
(c)(4) to read as follows:


Sec. 62.2350  Identification of plan.

* * * * *
    (b) * * *
    (6) State of Florida Department of Environmental Protection Section 
111(d) State Plan For Municipal Solid Waste Landfills, submitted on 
October 28, 1998, by the Florida Department of Environmental 
Protection.
    (c) * * *
    (4) Existing municipal solid waste landfills.

Subpart K--[Amended]

    3. Subpart K is amended by adding a new Sec. 62.2360 and a new 
undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.2360  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. 99-13942 Filed 6-3-99; 8:45 am]
BILLING CODE 6560-50-P