[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Rules and Regulations]
[Pages 52660-52663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25431]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[TN 222-1-9928a; FRL-6448-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The United States Environmental Protection Agency (EPA) is 
approving the section 111(d) Plan submitted by the Tennessee Department 
of Environment and Conservation (DEC) for the State of Tennessee on 
January 8, 1999, for implementing and enforcing the Emissions 
Guidelines (EG) applicable to existing Municipal Solid Waste (MSW) 
Landfills.

DATES: This direct final rule is effective on November 29, 1999 without 
further notice, unless EPA receives significant, material, and adverse 
comment by November 1, 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: You should address comments on this action to Steven M. 
Scofield at the EPA, Region 4 Air Planning Branch, 61 Forsyth Street, 
SW, Atlanta, Georgia 30303.
    Copies of documents related to this action are available for the 
public to review during normal business hours at the locations below. 
If you would like to review these documents, please make an appointment 
with the appropriate office at least 24 hours before the visiting day. 
Reference file TN 222-1-9928a. The Region 4 office may have additional 
documents not available at the other locations.

    Environmental Protection Agency, Region 4 Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303. Steven M. Scofield, 404/
562-9034.
Tennessee Department of Environment and Conservation, Division of Air 
Pollution Control, 9th Floor L & C Annex, 401 Church Street, Nashville, 
Tennessee 37243-1531, 615/532-0554.

FOR FURTHER INFORMATION CONTACT: Scott Davis at 404/562-9127 or Steven 
M. Scofield at 404/562-9034.

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

[[Page 52661]]

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 
Tennessee DEC for the State of Tennessee to implement and enforce 
subpart Cc.

II. Discussion

    The Tennessee DEC submitted to EPA on January 8, 1999, in addition 
to a prior portion of the plan submitted on November 16, 1998, the 
following in their section 111(d) Plan for implementing and enforcing 
the emission guidelines for existing MSW landfills in the State of 
Tennessee: 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 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 State of Tennessee codes and Tennessee DEC Air Pollution 
Control regulations.
    The approval of the Tennessee State Plan is based on finding that: 
(1) The Tennessee DEQ provided adequate public notice of public 
hearings for the proposed rulemaking and State Plan which allows the 
Tennessee DEC to implement and enforce the EG for MSW landfills; and 
(2) The Tennessee DEC 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 and appendix A, the Tennessee DEC cites the following 
reference demonstrating their legal authority: Tennessee Code Annotated 
68-201-105. On the basis of these codes of the State of Tennessee, the 
State Plan is approved as being at least as protective as the Federal 
requirements for existing MSW landfills.
    In the plan and appendix B, the Tennessee DEC cites the enforceable 
mechanism for implementing the EG for existing MSW landfills. The 
enforceable mechanisms are the state regulations adopted by the State 
of Tennessee in Tennessee Air Pollution Control Regulations, Paragraphs 
1200-3-7-.07(7), (8), and (9). 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 and appendix B, the Tennessee DEC cites all emission 
limitations for the major pollutant categories related to the 
designated sites and facilities. These limitations in Paragraph 1200-3-
7-.07(7) 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 Tennessee DEC 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 Tennessee DEC cites the compliance schedules 
adopted in Paragraph 1200-3-7-.07(7)(c) for each existing MSW landfill 
to be in compliance within 30 months of the effective date of their 
State regulation (effective on December 28, 1998). 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 appendix E of the plan, the Tennessee DEC submitted a source and 
emission inventory of all designated pollutants for each MSW landfill 
in the State of Tennessee. This portion of the plan has been reviewed 
and approved as meeting the Federal requirements for existing MSW 
landfills.
    The plan includes Tennessee's 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 Tennessee DEC 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. Tennessee Code 68-201-105, Paragraph 1200-3-7-.07(7), and 
Paragraph 1200-3-9-.02(11) support the requirements of monitoring, 
recordkeeping, reporting, and compliance assurance. These Tennessee 
regulations (appendices A, B, and C) have been reviewed and approved as 
being at least as protective as Federal

[[Page 52662]]

requirements for existing MSW landfills.
    The Plan outlines how the Tennessee DEC 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 Tennessee State Plan meets all of 
the requirements applicable to such plans in 40 CFR part 60, subparts B 
and C. The Tennessee DEC 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

    EPA is approving the State of Tennessee section 111(d) Plan, as 
submitted on January 8, 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 
Tennessee State Plan or associated regulations will not be considered 
part of the applicable plan until submitted by the Tennessee DEC 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.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
November 29, 1999 without further notice unless the Agency receives 
relevant adverse comments by November 1, 1999.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Only parties interested in 
commenting should do so at this time. If no such comments are received, 
the public is advised that this rule will be effective on November 29, 
1999 and no further action will be taken on the proposed rule.

IV. 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 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 
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 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.

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 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

[[Page 52663]]

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 
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.

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 November 29, 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: July 28, 1999.
A. Stanley Meiburg,
Acting Regional Administrator,
Region 4.

    Part 62 of chapter I, title 40, 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. 7401-76719.

Subpart RR--Tennessee

    2. Sec. 62.10626 is amended by adding paragraph (b)(3) to read as 
follows:


Sec. 62.10626  Identification of plan.

* * * * *
    (b) * * *
    (3) State of Tennessee Plan for Implementing the Municipal Solid 
Waste Landfill Emission Guideline Requirements of 40 CFR part 60, 
subpart Cc, submitted on January 8, 1999, by the Tennessee Department 
of Environment and Conservation.
[FR Doc. 99-25431 Filed 9-29-99; 8:45 am]
BILLING CODE 6560-50-P