[Federal Register Volume 64, Number 163 (Tuesday, August 24, 1999)]
[Rules and Regulations]
[Pages 46148-46151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21823]



[[Page 46148]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[SC-36-1-9932a ; FRL-6426-8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: South Carolina

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) is 
approving the section 111(d) Plan submitted by the South Carolina 
Department of Health and Environmental Control (DHEC) for the State of 
South Carolina on April 12, 1999, 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 October 25, 1999 unless 
significant, material, and adverse comments are received by September 
23, 1999. If adverse comments are received, timely notice of withdrawal 
will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Gregory Crawford, 
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 South Carolina Department of Health and Environmental Control, 
Bureau of Air Quality Control, 2600 Bull Street, Columbia, South 
Carolina 29201.

FOR FURTHER INFORMATION CONTACT: Gregory Crawford at (404) 562-9046 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 was involved in litigation over the requirements of the MSW 
landfill EG and NSPS beginning in 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 settlement did not vacate or void the 
existing MSW landfill EG or NSPS. Pursuant to the settlement agreement, 
EPA published a direct final rulemaking on June 16, 1998, in which EPA 
amended 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 South Carolina has amended 
their rules for MSW landfills in Regulation 61-62.60 (effective dates 
of February 26, 1999), 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 South 
Carolina DHEC for the State of South Carolina to implement and enforce 
Subpart Cc.

II. Discussion

    The South Carolina DHEC submitted to EPA on April 12, 1999, and in 
supplemental information submitted on July 14, 1999, the following in 
their section 111(d) Plan for implementing and enforcing the emission 
guidelines for existing MSW landfills in the State of South Carolina: 
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 
South Carolina statutes and rules of the South Carolina DHEC.
    The approval of the South Carolina State Plan is based on finding 
that: (1) the South Carolina DHEC provided adequate public notice of 
public hearings for the proposed rulemaking which allows the South 
Carolina DHEC to implement and enforce the EG for MSW landfills; and 
(2) the South Carolina DHEC 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

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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 submittal, the South Carolina DHEC cites the following 
references for the legal authority: State of South Carolina's Attorney 
General's Opinion Regarding State Authority to Operate the Title V 
Operating Permit Program; the South Carolina Pollution Control Act 
(South Carolina Code Sections 48-1-10 through 48-1-350); and Regulation 
61-62.60 of the South Carolina DHEC Air Pollution Control Regulations 
and Standards. On the basis of the Attorney General's Opinion, the 
statutes, and rules of the State of South Carolina, the State Plan is 
approved as being at least as protective as the Federal requirements 
for existing MSW landfills.
    In the Plan submittal, the South Carolina DHEC cites the 
enforceable mechanisms for implementing the EG for existing MSW 
landfills. The enforceable mechanisms are the state regulations adopted 
by the State of South Carolina in Regulation 61-62.60, ``South Carolina 
Designated Facility Plan and New Source Performance Standards.'' 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 submittal, the South Carolina DHEC cites all emission 
limitations for the major pollutant categories related to the 
designated sites and facilities. These limitations in Reguation 61-
62.60 are approved as being at least as protective as the Federal 
requirements contained in subpart Cc for existing MSW landfills.
    In the Plan submittal and the supplemental information, the South 
Carolina DHEC submitted a source and emission inventory of all 
designated pollutants for each MSW landfill in the State of South 
Carolina. This portion of the Plan has been reviewed and approved as 
meeting the Federal requirements for existing MSW landfills.
    The Plan submittal and the supplemental information describes the 
process the South Carolina DHEC 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 submittal and the supplemental information, the South 
Carolina DHEC cites the compliance schedules and increments of progress 
adopted in Regulation 61-62.60 for each existing MSW landfill to be in 
compliance within 30 months of the approval date of the 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.
    The South Carolina State Plan submittal 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 
South Carolina DHEC 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. The South Carolina DHEC 
submitted regulations to support the requirements of monitoring, 
recordkeeping, reporting, and compliance assurance in the Plan 
submittal. These South Carolina rules have been reviewed and approved 
as being at least as protective as Federal requirements for existing 
MSW landfills.
    The Plan submittal and the supplemental information outlines how 
the South Carolina DHEC 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 South Carolina State Plan meets 
all of the requirements applicable to such plans in 40 CFR part 60, 
subparts B and Cc. The South Carolina DHEC 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 State 
of South Carolina section 111(d) Plan, as submitted on April 12, 1999, 
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 South Carolina State Plan or 
associated regulations will not be considered part of the applicable 
plan until submitted by the South Carolina DHEC 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 October 25, 1999 unless by September 23, 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 notice 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 October 25, 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, 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

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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 South Carolina's 
audit privilege and penalty immunity law 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 South Carolina'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.

G. 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.

H. 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

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``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 October 25, 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: August 6, 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 PP--South Carolina

    2. Part 62.10100 is amended by adding paragraphs (b)(4) and (c)(4) 
to read as follows:


Sec. 62.10100  Identification of plan.

* * * * *
    (b) * * *
    (4) South Carolina Implementation Plan for Existing Municipal Solid 
Waste Landfills, submitted on April 12, 1999, by the South Carolina 
Department of Health and Environmental Control.
    (c) * * *
    (4) Existing municipal solid waste landfills.

Subpart PP--[Amended]

    3. Subpart PP is amended by adding a new Sec. 62.10160 and a new 
undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.10160  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. 99-21823 Filed 8-23-99; 8:45 am]
BILLING CODE 6560-50-P