[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32427-32430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15265]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[TX-108-1-7408a; FRL-6361-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We are approving the section 111(d) Plan submitted by the 
Governor of Texas on November 3, 1998, to implement and enforce the 
Emissions Guidelines (EG) for existing Municipal Solid Waste (MSW) 
Landfills. The EG require States to develop plans to collect landfill 
gas from large MSW landfills.

DATES: This direct final rule is effective on August 16, 1999, without 
further notice, unless we receive adverse comments by July 19, 1999. If 
we receive adverse comments, 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: You should address comments on this action to Lt. Mick Cote, 
EPA Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202. Copies of all materials considered in this 
rulemaking may be examined during normal business hours at the 
following locations: EPA Region 6 offices, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202, and at the Texas Natural Resource Conservation 
Commission offices, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote at (214) 665-7219.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is being taken by EPA today?
II. Why do we need to regulate landfill gas?
III. What is being acted on in this document?
IV. What is a State Plan?
V. What does the Texas State Plan contain?
VI. How can I determine whether my landfill is subject to these 
regulations?
VII. What steps do I need to take?
VIII. Administrative Requirements.

I. What Action Is Being Taken by EPA Today?

    We are approving the Texas State Plan to control landfill gas from 
existing MSW landfills, as submitted to us by Texas on November 3, 
1998. This State Plan does not affect those existing MSW landfills 
located in Indian Country.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial action and anticipate no adverse 
comments. However, in a separate document in this Federal Register 
publication, we are proposing to approve the revision should 
significant, material, and adverse comments be filed. This action is 
effective August 16, 1999, unless by July 19, 1999, adverse or critical 
comments are received. If we receive 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. We will not institute a second comment period on this 
action.

[[Page 32428]]

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 is effective August 16, 1999.

II. Why Do We Need To Regulate Landfill Gas?

    Landfill gas contains a mixture of volatile organic compounds 
(VOCs), other hazardous air pollutants (HAPs), and methane. These VOC 
emissions can contribute to ozone formation, which can cause adverse 
health effects to humans 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. We presented our concerns with the health and 
welfare effects of landfill gases in the preamble to our proposed EG 
(56 FR 24468, May 30, 1991).

III. What Is Being Acted on in This Document?

    When we developed our New Source Performance Standard (NSPS) for 
landfills, we also developed EG to control landfill gas from older 
landfills (See 61 FR 9905-9944, March 12, 1996). The Texas Natural 
Resource Conservation Commission (TNRCC) developed a State Plan, as 
required by section 111(d) of the Clean Air Act (the Act), to adopt the 
EG into their body of regulations, and we are acting today to approve 
it.

IV. What Is a State Plan?

    Section 111(d) of the Act requires that ``designated'' pollutants 
controlled under the NSPS must also be controlled at existing sources 
in the same source category. To ensure proper implementation of the 
requirements of section 111(d), we approved 40 CFR part 60, subpart B 
(40 FR 53340, November 17, 1975). Subpart B provides that, once an NSPS 
is promulgated, we then publish an EG applicable to the control of the 
same pollutant from designated (existing) facilities. Affected States 
must then adopt the EG into their body of regulations.

V. What Does the Texas State Plan Contain?

    The Texas State Plan was reviewed for approval against the 
following criteria: 40 CFR Part 60, Secs. 60.23 through 60.26, subpart 
B--Adoption and Submittal of State Plans for Designated Facilities; 
and, 40 CFR part 60, Secs. 60.30c through 60.36c, subpart Cc--Emission 
Guidelines and Compliance Times for Municipal Solid Waste Landfills.
    The evaluation of the Texas State Plan indicates that it contains:
    1. a demonstration of the State's legal authority to implement the 
section 111(d) State Plan, as authorized under the Texas Clean Air Act 
Sections 382.011, 382.012, and 382.017;
    2. an incorporation of the Federal regulations into the Texas 
Administrative Code (TAC) at 30 TAC Chapter 113, Subchapter D, Sections 
113.2060, Definitions; 2061, Standards for Air Emissions; 2067, 
Exemptions; and 2069, Compliance Schedule;
    3. an inventory of approximately 113 known designated facilities, 
with estimated design capacities, as listed in Tables 4, 5a, and 5b of 
the State Plan;
    4. emission limits that are as stringent as the EG, listed in TAC 
Section 113.2061;
    5. a process to review gas collection system design plans;
    6. a final compliance date 30 months after the date a designated 
facility reaches or exceeds 50 Mg of NMOC emissions annually;
    7. testing, monitoring, reporting and recordkeeping requirements 
for the designated facilities, as listed in TAC Section 113.2061;
    8. records from the three public hearings; and,
    9. provisions for progress reports to EPA.
    The Texas State Plan does deviate from the EG on two issues. The EG 
defines designated facilities as those that have accepted waste after 
November 8, 1987. The TNRCC provided a detailed technical analysis 
which indicates that no designated landfills which closed between 
November 8, 1987, and October 9, 1993, will have estimated non-methane 
organic compounds (NMOC) emissions above the 50 megagram (Mg) control 
threshold by the year 2000. Controlling these closed landfills would 
not result in a significant reduction in NMOC emissions compared to the 
cost to install gas collection systems at these sites. Our Code of 
Federal Regulations (CFR), at 40 CFR Sec. 60.24(f), allows for less 
stringent regulations if a technical or economic justification supports 
it. Based on Sec. 60.24(f), the TNRCC adjusted its definition to 
reflect actual conditions in Texas. The definition of MSW landfills in 
Texas then includes facilities that have accepted waste since November 
8, 1987, and either closed after October 8, 1993, or are currently 
still accepting waste. We agree with the justification for excluding 
this group of MSW landfills from the State Plan, and accept the State's 
use of Sec. 60.24(f) to change its definition of MSW landfills in 
Texas.
    Second, the Texas State Plan does not include specific increments 
of progress towards the final 30 month compliance date, as discussed in 
40 CFR 60.24(e)(1). However, the State can develop separate increments 
of progress for each designated facility and submit these as revisions 
to the State Plan within a year of the Federal approval of the Texas 
State Plan (40 CFR 60.24(e)(2)). For this reason we can approve the 
State Plan in its current form. We fully expect the TNRCC to submit 
increments of progress within a year of our approval of this State 
Plan. Please request a copy of our official file to review our detailed 
discussion of the requirements of the NSPS and EG, along with our 
evaluation of the Texas State Plan.

VI. How Can I Determine Whether My Landfill Is Subject to These 
Regulations?

    Any MSW landfill which began construction, reconstruction or 
modification before May 30, 1991, and has accepted waste at any time 
since October 9, 1993, is affected by the EG and the Texas State Plan. 
If your facility meets these two criteria, your landfill is subject to 
these regulations.

VII. What Steps Do I Need To Take?

     You must report your landfill's design capacity to the 
TNRCC within 90 days of the effective date of our approval of the Texas 
State Plan (See Section 113.2069).
     If your landfill has a design capacity above 2.5 million 
Mg, you must also estimate and report your annual NMOC emission rate to 
the TNRCC within the same 90-day timeframe (See Section 113.2069).
     If your landfill has a design capacity below 2.5 million 
Mg, you have met all the requirements of the Texas State Plan. However, 
if you modify your landfill and increase the design capacity above the 
2.5 million Mg threshold, you must submit an amended design capacity 
report to the TNRCC within 90 days of the modification. You must also 
estimate and submit your annual NMOC emission rate to the TNRCC within 
90 days of the modification (Section 113.2061). Your landfill will then 
be considered an NSPS source and subject to the requirements listed 
under 40 CFR part 60, subpart WWW.
     You must have a gas collection system installed and 
operating within 30 months of the date you project to be at or above 
the 50 Mg threshold (Section 113.2061).
     You must record and keep accurate records regarding site 
information and

[[Page 32429]]

gas collection system operational data (Section 113.2061).

VIII. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from 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, or EPA consults with those governments. If EPA complies by 
consulting, E.O. 12875 requires EPA to provide to the OMB 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, 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 rules on any of 
these entities. This action does not create any new requirements but 
simply approves requirements that the State is already imposing. 
Accordingly, the requirements of section 1(a) of E.O. 12875 do not 
apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``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.
    The EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This final rule is not subject to E.O. 13045 
because it approves a State program.

D. Executive Order 13084

    Under E.O. 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, E.O. 13084 requires EPA to 
provide to the OMB, 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 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. 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, 5 U.S.C. 600 et seq., 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 approvals 
under section 111 of the Federal Clear Air Act (the 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 
Act, preparation of a flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Act 
forbids EPA to base its actions concerning SIPs on such grounds. See 
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, 
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.
    The 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. The 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. A major rule can 
not take

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effect until 60 days after it is published in the Federal Register. 
This action is not a ``major'' rule as defined by 5 U.S.C. 804(2). This 
rule will be effective August 16, 1999.

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 16, 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: June 7, 1999.
Gregg A. Cooke,
Regional Administrator, Region 6.
    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. 7401-7671q.

Subpart SS--Texas

    2. Section 62.10850 is amended by adding paragraph (b)(3) to read 
as follows:


Sec. 62.10850  Identification of plan.

* * * * *
    (b) * * *
    (3) Control of landfill gas emissions from existing municipal solid 
waste landfills, submitted by the Governor on November 3, 1998.
* * * * *
    3. Subpart SS is amended by adding a Sec. 62.10880 and a new 
undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.10880  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 October 8, 
1993, or that have additional capacity available for future waste 
deposition, as described in 40 CFR part 60, subpart Cc.

[FR Doc. 99-15265 Filed 6-16-99; 8:45 am]
BILLING CODE 6560-50-P