[Federal Register Volume 68, Number 11 (Thursday, January 16, 2003)]
[Rules and Regulations]
[Pages 2227-2242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-88]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2002-0047; FRL-7418-2]
RIN 2060-AH13


National Emission Standards for Hazardous Air Pollutants: 
Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action promulgates national emission standards for 
hazardous air pollutants (NESHAP) for municipal solid waste (MSW) 
landfills. The final rule is applicable to both major and area sources 
and contains the same requirements as the Emission Guidelines and New 
Source Performance Standards (EG/NSPS). The final rule adds startup, 
shutdown, and malfunction (SSM) requirements, adds operating condition 
deviations for out-of-bounds monitoring parameters, requires timely 
control of bioreactor landfills, and changes the reporting frequency 
for one type of report.
    The final rule fulfills the requirements of section 112(d) of the 
Clean Air Act (CAA), which requires the Administrator to regulate 
emissions of hazardous air pollutants (HAP) listed in section 112(b), 
and helps implement the Urban Air Toxics Strategy developed under 
section 112(k) of the CAA. The intent of the standards is to protect 
the public health by requiring new and existing sources to control 
emissions of HAP to the level reflecting the maximum achievable control 
technology (MACT).
    The HAP emitted by MSW landfills include, but are not limited to, 
vinyl chloride, ethyl benzene, toluene, and benzene. Each of the HAP 
emitted from MSW landfills can cause adverse health effects provided 
sufficient exposure. For example, vinyl chloride can adversely affect 
the central nervous system and has been shown to increase the risk of 
liver cancer in humans, while benzene is known to cause leukemia in 
humans.

EFFECTIVE DATE: January 16, 2003.

ADDRESSES: Follow the detailed instructions in the SUPPLEMENTARY 
INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For information concerning 
applicability and rule determinations, contact your State or local 
regulatory agency representative or the appropriate EPA Regional Office 
representative. For information concerning the development of the final 
rule, contact Ms. JoLynn Collins, Waste and Chemical Processes Group, 
Emission Standards Division (C439-03), Office of Air Quality Planning 
and Standards, U.S. Environmental Protection Agency, Research Triangle 
Park, NC 27711, telephone number (919) 541-5671, facsimile number (919) 
541-0246, electronic mail address [email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities 
potentially regulated by this action:

------------------------------------------------------------------------
                                                           Examples of
                                                           potentially
           Category             NAICS code    SIC code      regulated
                                                             entities
------------------------------------------------------------------------
Industry: Air and water             924110         9511  Solid waste
 resource and solid waste                                 landfills.
 management.
Industry: Refuse systems--          562212         4953  Solid waste
 solid waste landfills.                                   landfills.

[[Page 2228]]

 
State, local, and tribal            562212         4953  Solid waste
 government agencies.               924110                landfills; Air
                                                          and water
                                                          resource and
                                                          solid waste
                                                          management.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility is regulated by this action, 
you should examine the applicability criteria in sections 63.1935 and 
63.1940 of subpart AAAA. If you have any questions regarding the 
applicability of this action to a particular entity, contact the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
    Docket. We have established an official public docket for this 
action under Docket ID No. OAR-2002-0047. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information or other information whose 
disclosure is restricted by statute. The official public docket is the 
collection of materials that is available for public viewing at the 
Office of Air and Radiation Docket and Information Center (Air Docket) 
in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Avenue, NW, Washington, DC. The EPA Docket Center Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742.
    Electronic Docket Access. You may access the final rule 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility in the above paragraph 
entitled ``Docket.'' Once in the system, select ``search,'' then key in 
the appropriate docket identification number.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rule is also available on the WWW 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the final rule will be posted on the TTN's policy and guidance 
page for newly proposed or promulgated rules at the following address: 
http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control. If more 
information regarding the TTN is needed, call the TTN HELP line at 
(919) 541-5384.
    Judicial Review. The NESHAP for MSW landfills was proposed on 
November 7, 2000 (65 FR 66672). A supplemental proposal with additional 
bioreactor provisions was published on May 23, 2002 (67 FR 36460). The 
final rule announces the EPA's final decision. Under section 307(b)(1) 
of the CAA, judicial review of the final rule is available by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit by March 17, 2003. Only those objections to the final 
rule which were raised with reasonable specificity during the period 
for public comment may be raised during judicial review. Under section 
307(b)(2) of the CAA, the requirements that are the subject of the 
final rule may not be challenged later in civil or criminal proceedings 
brought by EPA to enforce these requirements.
    Outline. The information presented in the preamble is organized as 
follows:

I. Introduction and Background Information
    A. What Is the Source of Authority for Development of NESHAP?
    B. What Criteria Are Used in the Development of NESHAP?
    C. What Are the Health Effects Associated With Municipal Solid 
Waste Landfills?
II. Summary of the NESHAP
    A. What Source Categories Are Affected by the Final Rule?
    B. What Is the Affected Source?
    C. What Do the Standards Require?
    D. When Must I Begin Complying With the Standards?
    E. How Are New and Existing Sources Defined Differently For 
Purposes of the NESHAP and for the EG/NSPS?
    F. How Must I Demonstrate Compliance?
    G. What Are the Additional Requirements for Bioreactors?
III. Summary of Public Comments and Responses
    A. Applicability of the NESHAP
    B. Major Source Determination
    C. Bioreactors
    D. Mercury
    E. Title V Operating Permits
IV. Summary of the Energy, Environmental, and Economic Impacts
V. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review
    B. Executive Order 13132, Federalism
    C. Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments
    D. Executive Order 13045, Protection of Children From 
Environmental Health Risks and Safety Risks
    E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    F. Unfunded Mandates Reform Act (UMRA) of 1995
    G. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
United States Code (U.S.C.) 601, et seq.
    H. Paperwork Reduction Act
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Introduction and Background Information

A. What Is the Source of Authority for Development of NESHAP?

    Under section 112(d) of the CAA, we are required to regulate major 
sources of 188 HAP listed in section 112(b) of the CAA. On July 16, 
1992 (57 FR 31576), we published a list of industrial source 
categories, which included MSW landfills, that emit one or more of 
these HAP. We must promulgate standards for the control of emissions of 
HAP from both new and existing major source MSW landfills.
    Under section 112(k) of the CAA, we developed a strategy to control 
emissions of HAP from area sources in urban areas, identifying 33 HAP 
that present the greatest threat to public health in the largest number 
of urban areas as the result of emissions from area sources. Municipal 
solid waste landfills were listed on July 19, 1999, as an area source 
category to be regulated pursuant to section 112(k) because 13 of the 
listed HAP are emitted from MSW landfills (64 FR 38706).

B. What Criteria Are Used in the Development of NESHAP?

    The CAA requires NESHAP to reflect the maximum degree of reduction 
in

[[Page 2229]]

emissions of HAP that is achievable for new and existing major sources. 
This level of control is commonly referred to as MACT.
    The MACT floor is the minimum control level allowed for NESHAP and 
is defined under section 112(d)(3) of the CAA. The MACT floor ensures 
that all major HAP emissions sources achieve the level of control 
already achieved by the better-controlled and lower-emitting sources in 
each category. For new sources, the MACT floor cannot be less stringent 
than the emission control that is achieved in practice by the best-
controlled similar source. The standards for existing sources can be 
less stringent than standards for new sources, but they cannot be less 
stringent than the average emissions limitation achieved by the best-
performing 12 percent of existing sources (or the best-performing 5 
sources for categories or subcategories with fewer than 30 sources).
    In developing MACT, we also must consider control options that are 
more stringent than the floor. We may establish standards more 
stringent than the floor based on the consideration of cost, non-air-
quality health and environmental impacts, and energy requirements.
    Finally, the CAA allows NESHAP to reflect an alternative standard 
for area sources. The alternative standard provides for the use of 
generally available control technologies (GACT) or management practices 
to reduce emissions of HAP.

C. What Are the Health Effects Associated With Municipal Solid Waste 
Landfills?

    The final rule ensures reductions of emissions of nearly 30 HAP 
including, but not limited to, vinyl chloride, ethyl benzene, toluene, 
and benzene. Each of the HAP emitted from MSW landfills can cause 
adverse health effects provided sufficient exposure. For example, vinyl 
chloride can adversely affect the central nervous system and has been 
shown to increase the risk of liver cancer in humans, while benzene is 
known to cause leukemia in humans. Additional discussion of health 
effects is provided in the proposal (65 FR 66672) and Docket A-98-28. 
The degree of adverse effects to human health from exposure to these 
HAP can range from mild to severe. The extent and degree to which the 
human health effects may be experienced depend on the ambient 
concentration observed in the area (as influenced by emissions rates, 
meteorological conditions, and terrain); the frequency and duration of 
exposures; characteristics of exposed individuals (genetics, age, 
preexisting health conditions, and lifestyle), which vary significantly 
with the population; and pollutant-specific characteristics (toxicity, 
half-life in the environment, bioaccumulation, and persistence). We 
recognize that health risks are significantly reduced at landfills that 
collect and control landfill gas.

II. Summary of the NESHAP

    The final rule contains the same requirements as the EG/NSPS (40 
CFR part 60, subparts Cc and WWW), plus SSM definition and reporting of 
deviations for out-of-range monitoring parameters. Also, the final rule 
requires compliance reporting every 6 months while the EG/NSPS requires 
annual reporting. For bioreactors at large landfills, the NESHAP also 
require timely installation of controls, and allows timely removal of 
controls.

A. What Source Categories Are Affected by the Final Rule?

    The final rule applies to all MSW landfills that are major sources 
or are collocated with a major source, and to some landfills that are 
area sources. We estimate that all MSW landfills that are major sources 
of HAP (i.e., with a potential to emit at least 10 tons per year (tpy) 
of any individual HAP or 25 tpy total HAP) will also meet the EG/NSPS 
criteria for installing collection and control systems (i.e., have a 
design capacity equal to or greater than 2.5 million megagrams (Mg) and 
2.5 million cubic meters (m\3\) and have estimated uncontrolled 
emissions of 50 megagrams per year (Mg/yr) nonmethane organic compound 
(NMOC)). All major source landfills, including those operated partially 
or completely as bioreactors, are covered by the final rule and, in 
addition to EG/NSPS control requirements, are subject to the additional 
SSM, deviation, and compliance reporting requirements of the NESHAP. 
Landfills that do not themselves emit major source levels of HAP but 
that are collocated with major sources of HAP are also covered by the 
final rule. However, if these landfills are smaller than the EG/NSPS 
thresholds, they have fewer requirements under the NESHAP, as 
previously discussed in this preamble.
    In addition, as previously discussed in this preamble, landfills 
have been listed as an area source category pursuant to section 112(k). 
The final rule applies to area source landfills if they have a design 
capacity equal to or greater than 2.5 million Mg and 2.5 million m\3\, 
and they have estimated uncontrolled emissions of 50 Mg/yr NMOC or 
more, or are operated as a bioreactor. The final rule does not apply to 
area source landfills (including bioreactors) with a design capacity 
less than 2.5 million Mg or 2.5 million m\3\. It also does not apply to 
conventional area source landfills that have estimated uncontrolled 
emissions of less than 50 Mg/yr NMOC. (The EG/NSPS require landfills 
that meet the design capacity criteria to periodically calculate 
uncontrolled annual NMOC emissions. If an area source landfill that 
currently has estimated uncontrolled emissions less than 50 Mg/yr 
increases to 50 Mg/yr in the future, it will become subject to the 
NESHAP at that time.) For a complete description of applicability, see 
section III.A of this preamble and sections 63.1935 through 63.1945 of 
the final rule.

B. What Is the Affected Source?

    The affected source is the entire MSW landfill in a contiguous 
geographical space where household waste is placed in or on the land 
and consists of one or more cells that are under common ownership or 
control. The facility may receive household waste as well as other 
types of Resource Conservation and Recovery Act (RCRA) Subtitle D 
waste. The affected source may be operated as a conventional landfill, 
or it may be operated completely or partially as a bioreactor. To be an 
affected source, the landfill must have accepted waste since November 
8, 1987, or have additional capacity for waste deposition, and must be 
either: (1) A major source of HAP; (2) collocated with a major source 
of HAP; (3) an area source with a design capacity greater than or equal 
to 2.5 million Mg and 2.5 million m\3\ and with estimated uncontrolled 
NMOC emissions equal to or greater than 50 Mg/yr; or (4) an active area 
source landfill with a design capacity greater than or equal to 2.5 
million Mg and 2.5 million m\3\ that operates an anaerobic bioreactor, 
as defined in the final rule. The bioreactor provisions do not apply to 
closed landfills.

C. What Do the Standards Require?

    Major and area source landfills with a design capacity of greater 
than or equal to 2.5 million Mg and 2.5 million m\3\, and with 
estimated uncontrolled NMOC emissions of at least 50 Mg/yr, would 
continue to be subject to the EG/NSPS as applicable, plus additional 
requirements imposed by the final rule. These requirements also apply 
to bioreactors within active landfills at both major and area sources 
if the landfill meets the design capacity criteria.
    You are required to meet the SSM requirements that are listed in 
the general provisions to 40 CFR part 63.

[[Page 2230]]

You must develop and implement a written SSM plan that describes in 
detail the procedures for operating and maintaining the collection and 
control system and the continuous monitoring system (CMS) during 
periods of SSM (section 63.6(e)(3)). There are also recordkeeping and 
reporting requirements for SSM incidents.
    The final rule also requires you to operate the control device 
within the operating parameter boundaries as described in 40 CFR 
60.758(c)(1) and to continuously monitor control device operating 
parameters. Compliance with the operating conditions is demonstrated 
when monitoring data show that the gas control devices are operated 
within the established operating parameter range. Compliance also 
occurs when data quality is sufficient to constitute a valid hour of 
data in a 3-hour block period. Deviations occur when a source's 3-hour 
average falls outside the established boundaries. A deviation also 
occurs when more than 1 hour in a 3-hour average is considered invalid. 
To be considered a valid hour, measured values must be available for at 
least three 15-minute periods within the hour. If such a deviation 
occurs, then the source may be in violation of operating conditions 
(that is, in violation of proper operation and maintenance of a control 
device).
    With one exception, the final rule also requires you to submit the 
reports that are specified in 40 CFR part 60, subpart WWW, or in the 
Federal plan, the EPA-approved State plan, or Tribal plan that 
implements 40 CFR part 60 subpart Cc, whichever is applicable. As an 
exception, the report required in section 60.757(f) must be submitted 
every 6 months rather than annually. The report pertains to the control 
device operating parameter value and the duration of time that control 
devices were operating in out-of-bounds conditions, the duration of 
periods when the landfill gas stream was diverted from the control 
device(s), the location of areas that exceed the 500 parts per million 
methane concentration limit, and the dates of installation and location 
of each added well or collection system expansion.
    If a landfill is subject to the final rule because it is collocated 
with a major source and the landfill has a design capacity less than 
2.5 million Mg or 2.5 million m\3\, the landfill must comply with the 
applicable EG/NSPS requirements (i.e., it must submit a design capacity 
report). The landfill would not be subject to additional control and 
reporting requirements under the NESHAP.
    Note that while area source landfills that have a design capacity 
less than 2.5 million Mg or 2.5 million m\3\, or estimated uncontrolled 
NMOC emissions less than 50 Mg/yr (for landfills other than 
bioreactors) are not subject to the final rule, they must continue to 
comply with the provisions of the NSPS or State, tribal, or Federal 
plan that implements the EG, as applicable.

D. When Must I Begin Complying With the Standards?

    If your landfill is a new affected source, you must comply with the 
final rule by January 16, 2003 or at the time you begin operating, 
whichever occurs last. The final rule requires you to comply with the 
NSPS at that time. For the requirements in the final rule that are over 
and above the NSPS, you must begin complying by the date your new major 
or area source landfill is required to install a collection and control 
system by the NSPS. If you own or operate a bioreactor at a landfill 
that is a new affected source, then you are required to install the gas 
collection and control system in the bioreactor prior to initiating 
liquids addition, regardless of whether the landfill emissions rate 
equals or exceeds the estimated uncontrolled emissions rate of 50 Mg/yr 
specified in the EG/NSPS. Startup of the collection and control system 
is required within 180 days after initiating liquids addition or within 
180 days after reaching 40 percent moisture content within the 
bioreactor, whichever is later.
    If your landfill is an existing affected source, then you must 
comply with the final rule by January 16, 2004. The final rule requires 
you to comply with the NSPS or Federal, State, or Tribal plan that 
implements the EG, whichever applies to your landfill, at that time. 
You must begin complying with the additional requirements of the final 
rule (that are over and above the EG/NSPS) by January 16, 2004, or the 
date your landfill is required to install a collection and control 
system by the NSPS or Federal, State, or Tribal plan that implements 
the EG, whichever is later. If your landfill has a bioreactor and the 
landfill is an existing affected source, then you must install and 
begin operating a collection and control system for the bioreactor 
within 3 years after publication of the final rule unless earlier 
control is already required by the EG/NSPS. You are required to conduct 
a performance test and report the results within 180 days after startup 
of the bioreactor collection and control system. If an existing source 
landfill installs and begins to operate a bioreactor at a date later 
than 3 years after the final rule is published, you must install a 
collection and control system for the bioreactor before the initiation 
of liquids addition. The control system is required to begin operation 
within 180 days after the first date of liquids addition or within 180 
days after reaching 40 percent moisture content. See sections 63.1935 
through 63.1947 for the complete requirements regarding compliance 
times.

E. How Are New and Existing Sources Defined Differently for Purposes of 
the NESHAP and for the EG/NSPS?

    For the final rule, a new affected source is one that commenced 
construction or reconstruction (defined in 40 CFR part 63, subpart A) 
after November 7, 2000. An existing affected source is any affected 
source that is not a new source, that is, any source that commenced 
construction on or before November 7, 2000, and accepted waste any time 
since November 8, 1987, or has additional capacity for waste 
deposition.
    For purposes of the NSPS, a new source is each MSW landfill for 
which construction, modification, or reconstruction commenced on or 
after May 30, 1991. For purposes of the EG, an existing source is any 
MSW landfill that is not a new source and has accepted waste since 
November 8, 1987, or has capacity for additional waste deposition.
    Because regulatory impacts can vary based on these different 
definitions, it is important for sources to know how they are defined 
and the regulatory implications for each rule that applies to them. The 
regulatory implications of new versus existing source determination for 
sources affected by the EG/NSPS are well understood, unaffected by the 
final rule, and, thus, will not be discussed further here. The 
regulatory implications of new versus existing source determination for 
sources affected by the final rule are limited to compliance timing and 
are previously discussed in this preamble.

F. How Must I Demonstrate Compliance?

    You must demonstrate compliance by meeting the applicable 
requirements in the EG/NSPS and, if you are required to install a 
collection and control system, by maintaining monitoring parameters 
within acceptable ranges. In addition, you must submit reports every 6 
months which would include any notifications of deviations from the 
monitoring parameter values. You must develop and implement a written 
SSM plan according to the provisions in section

[[Page 2231]]

63.6(e)(3). If you take action during a SSM event, you must keep 
records for that SSM event which demonstrate that you followed the 
procedures specified in the SSM plan. You must submit a report every 6 
months if the action is consistent with the SSM plan. However, if the 
action is not consistent with the SSM plan, you must notify EPA within 
2 days of the SSM event and must follow up with a letter within 7 days 
of the event (section 63.10(d)(5)(ii)).

G. What Are the Additional Requirements for Bioreactors?

    A bioreactor is defined as a MSW landfill or portion of a MSW 
landfill where any liquid other than leachate (leachate includes 
landfill gas condensate) is added in a controlled fashion into the 
waste mass (often in combination with recirculating leachate) to reach 
a minimum average moisture content of at least 40 percent by weight to 
accelerate or enhance the anaerobic (without oxygen) biodegradation of 
the waste. We consider landfill gas condensate to be a constituent of 
leachate. Addition of wastewater sludges to the waste mass is 
considered addition of liquids other than leachate. Bioreactors at 
active landfills that meet the design capacity criteria are required to 
install and begin operating gas collection and control systems in a 
timely manner as previously discussed in this preamble. The timing for 
extending the collection and control system into new cells or areas of 
the bioreactor is also different from conventional landfills. Once 
control of your bioreactor is required, you must install collection and 
control systems in new areas or cells of the bioreactor prior to 
initiating liquids addition to that area, cell, or group of cells. 
Controls may be removed from the bioreactor portion of the landfill 
either:
    (1) When the criteria for control removal specified in the 
landfills EG/NSPS are met, or (2) When the bioreactor is permanently 
closed, liquids addition has ceased, and liquids have not been added to 
the bioreactor for at least 1 year.
    At some landfills, a portion of the landfill is a bioreactor and 
the remainder is designed and operated as a conventional landfill. In 
these situations, the control requirements and the timing of control 
installation for the conventional portion of the landfill do not 
change. You must continue to use the equations and factors in the EG/
NSPS to calculate the annual estimated uncontrolled NMOC emissions for 
your landfill as a whole (including the total waste placed in the 
bioreactor area and the conventional area). When your calculated 
uncontrolled NMOC emissions equal or exceed 50 Mg/yr, then you must 
install a collection and control system for the conventional portions 
of the landfill according to the schedule in the NSPS, or the 
applicable State, Tribal, or Federal plan that implements the EG. Only 
the bioreactor portion of the landfill must meet the control schedule 
for bioreactors.
    Note that as a general rule, it is currently difficult for an 
owner/operator of a MSW landfill to operate a large bioreactor as 
defined in the final rule. This is because of the Federal criteria 
regulating MSW landfills, specifically 40 CFR part 258.28 which 
prohibits the addition of liquids other than leachate and gas 
condensate to a landfill and 40 CFR part 258.26 which limits the entry 
of rainwater into MSW landfills through specified run-on control 
systems. A few landfills have gained site specific variances under 
Project XL to operate landfill bioreactors.
    However, on June 10, 2002, EPA proposed a revision to 40 CFR part 
258 that would allow the Director of an approved State to issue a 
research, development, and demonstration (RD&D) permit for a MSW 
landfill (67 FR 39662). That proposed RD&D rule would allow the States 
to grant variances to certain parts of the MSW landfill criteria (40 
CFR part 258) through the issuance of RD&D permits. As a result, once 
the RD&D rule becomes final and an approved State integrates the new 
Federal regulations, the Director of an approved State may issue 
permits which could potentially allow for the operation of a bioreactor 
landfill as long as there is no increased risk to human health and the 
environment (as compared to a MSW landfill permitted under the existing 
40 CFR part 258 criteria). Therefore, once the proposed rule allowing 
RD&D permits for MSW landfills becomes final, we expect the number of 
bioreactor landfills to increase.

III. Summary of Public Comments and Responses

    This section of the preamble is a brief summary of the major public 
comments received in response to the original proposal and the 
supplemental proposal for the MSW landfills NESHAP, and changes 
resulting from the comments. Additional comments are summarized in the 
document ``Municipal Solid Waste Landfills: Background Information 
Document for National Emission Standards for Hazardous Air Pollutants--
Public Comments and Responses.'' The document contains a full report of 
all comments received and our responses. The document may be found in 
Docket A-98-28.

A. Applicability of the NESHAP

    Comment: Two commenters recommended that additional MACT 
requirements apply only to major sources and that EPA require no 
controls for area sources.
    Response: We believe regulation of area sources is appropriate 
under section 112(k) of the CAA. Under Section 112(k), we developed a 
strategy to control emissions of HAP from area sources in urban areas, 
identifying 33 HAP that present the greatest threat to public health in 
the largest number of urban areas as the result of emissions from area 
sources. Municipal solid waste landfills were listed on July 19, 1999, 
as an area source category to be regulated pursuant to section 112(k) 
because 13 of the listed HAP are emitted from MSW landfills (64 FR 
38706). Section 112(k) requires that sufficient categories of area 
sources be regulated to assure that sources accounting for at least 90 
percent of the aggregate emissions of each of the HAP identified 
pursuant to 112(k) as being the greatest threat to health in urban 
areas are subject to standards. As we stated at proposal, we believe it 
is necessary to regulate some area MSW landfills to meet this 
requirement of section 112(k). Therefore, we have not changed this 
aspect of the final rule's applicability. (Note that the bioreactor 
provisions of the final rule apply to major and area sources that 
exceed the EG/NSPS design capacity criteria of 2.5 million Mg and 2.5 
million m\3\ and operate as a bioreactor regardless of whether they 
meet or exceed the EG/NSPS estimated uncontrolled NMOC emissions 
criteria of 50 Mg/yr. See sections II and III.C of this preamble for 
further information on bioreactor applicability and requirements.)
    Comment: A commenter expressed concern that small landfills that 
are collocated with major source facilities become subject to EG/NSPS 
control under the final rule.
    Response: Small landfills that are collocated with major source 
facilities are subject to the final rule. The final rule requires them 
to comply with the EG/NSPS. If the design capacity of the collocated 
landfills is less than 2.5 million Mg or 2.5 million m\3\, the 
landfills comply by submitting a design capacity report as required by 
the EG/NSPS. The final rule language has been revised to clarify that 
the final rule applies to these landfills but does not extend the 
additional final rule requirements and EG/NSPS collection and control 
requirements to landfills

[[Page 2232]]

that do not meet the control device applicability thresholds of the EG/
NSPS.
    Comment: Several other comments included suggested changes to 
proposed rule applicability language.
    Response: We have revised sections 63.1935, 63.1940, and 63.1945 to 
clarify the application of the final rule to major sources, area 
sources and smaller landfills collocated with major sources, as well as 
identify the affected source for the final rule and clarify the timing 
of the regulatory requirements. We also added language to section 
63.1955 to further explain that landfills required to install a 
collection and control system under NSPS, Federal, State or tribal 
plans that implement the EG must also meet the requirements in sections 
63.1960 through 63.1980 of the final rule.
    Comment: Two commenters requested clarification of the timing of 
the final rule regulatory requirements. They pointed out that the 
proposal preamble indicated that the additional requirements of the 
final rule (compared to the NSPS) do not take effect until the landfill 
is required to install controls under the EG/NSPS, but the regulation 
language was not clear.
    Response: In response to this comment, we revised section 63.1945 
to be consistent with our intent at proposal. The wording of this 
section continues to require that new sources comply with the final 
rule on the date of publication of the final rule or at the time they 
begin operation, whichever is later; and that existing sources comply 
with the final rule by January 16, 2004. At that time, the source is 
required to comply with the NSPS or the Federal, State, or tribal plan 
that implements the EG. We have added language to this section to 
clarify when landfills must comply with certain requirements within the 
final rule. New affected sources must comply with the additional final 
rule requirements (such as the SSM plan and the semiannual reporting of 
deviations) on the date the landfill is required to install collection 
and control systems under the NSPS. Existing affected sources must 
comply with the additional final rule requirements on the date the 
landfill is required to install collection and control systems under 
the NSPS, Federal, State or tribal plan or 1 year after publication of 
the final rule, whichever is later.

B. Major Source Determination

    Comment: Several commenters expressed concern that we overestimated 
the number of major source landfills. The commenters contend that AP-42 
emissions factors are incorrect and provide overestimates of landfill 
gas emissions, that EG/NSPS controls should be taken into account when 
determining major source status of landfills, and that using NMOC as a 
HAP surrogate is too arbitrary.
    Response: We respond that we used the best method for calculating 
emissions that is currently available and accepted, which is the 
current version of AP-42. The EPA program responsible for AP-42 factors 
is reviewing existing reports and technical data as well as undertaking 
a landfill testing program to collect additional HAP data. Currently, 
the data collection and analysis are not yet complete, and could not be 
completed prior to promulgation of the final rule. When we update the 
AP-42 chapter on landfill emissions, we will consider all relevant 
data. However, any update of AP-42 or adjustment of calculation 
procedures would not affect our regulatory decisions in developing the 
final rule. We find that the MACT floor is the EG/NSPS level of 
control. The floor is based on the current level of control at major 
and synthetic area sources and would not change if there were somewhat 
fewer or more major sources than previously estimated.
    We agree that in determining whether a source is major, enforceable 
control requirements should be considered. The statement in the 
proposal preamble identifying 1,140 facilities as major sources may not 
have been clear. The intent was to say that based on estimates of 
maximum uncontrolled emissions, 1,140 landfills have potential 
emissions greater than 10 tpy individual HAP or 25 tpy of a combination 
of HAP. Some of the 1,140 landfills are major sources and others are 
``synthetic area'' sources (sources that would otherwise be major if 
not for enforceable emissions controls). Both major and synthetic area 
sources were correctly included in the MACT floor determination. The 
CAA does not suggest we exclude a control technology from consideration 
in the MACT floor because it is so effective it reduces emissions from 
a source such that the source is no longer a major source of HAP.
    To determine major source status for rule applicability, a landfill 
owner/operator would consider enforceable control requirements such as 
the NSPS. Since the landfills NESHAP requirements for area sources that 
meet the NSPS capacity criteria and have uncontrolled NMOC emissions of 
50 Mg/yr or greater are the same as for major sources, this 
classification would not change the control or reporting requirements 
for the landfill. It should be noted that the final rule has not 
redefined major source. Major source status is determined according to 
the NESHAP general provisions definition. Nonmethane organic compounds 
are a surrogate for HAP control, not for whether a facility is a major 
source. Nonmethane organic compounds are an appropriate surrogate for 
HAP control because all HAP regulated by the final rule are contained 
in the NMOC portion of the landfill gas. Landfill owners/operators are 
already required to estimate NMOC under the EG/NSPS, and it is not 
necessary to increase the burden by requiring specific HAP measurements 
as well.

C. Bioreactors

    Comment: We received several comments about the timing of startup 
of the gas collection and control system. Three commenters expressed 
concern that due to a wide range of possible development scenarios, 
commencing operation of the gas collection and control system within 90 
days of liquids addition may not be appropriate in all cases. Two of 
the commenters stated that the generation rates of landfill gas during 
the initial development phases of bioreactors are a function of many 
factors and substantial quantities of recoverable landfill gas may not 
be available due to low waste acceptance rates, hybrid bioreactor 
operations, high inorganic waste fractions, or low liquids addition 
rates where gas generation is likely to be similar to that of 
conventional landfills. Under these circumstances, premature startup of 
the gas control system may result in significant volumes of air being 
introduced into the bioreactor, thus killing methane-producing 
bacteria. These commenters recommended extending the startup time frame 
to 180 days or establishing a process for waiving or delaying the 
startup date if local conditions warrant.
    Response: In response to this comment, we have changed the final 
rule to allow 180 days instead of 90 days to begin operation of the 
collection and control system. We are aware that bioreactors may 
experience variable emissions rates upon initial liquids addition due 
to site-specific factors such as those described by the commenters. 
Furthermore, gas collection systems for bioreactors are site-specific 
and are likely to use newer designs, so operators may require time to 
gain experience and make operational adjustments to their systems. The 
180 day period will allow time for landfill operators to adjust their 
collection systems such that they can achieve continuous, stable 
collection and control system operation.
    Comment: Four commenters requested clarification as to whether the

[[Page 2233]]

rule was meant to require the operation of the gas collection and 
control system within 90 days after the initial liquids addition or 
within 90 days after the moisture content has reached 40 percent. 
Commenters stated that they believed the intent was to require 
operation of the gas collection and control system after the moisture 
content reached 40 percent. The commenters stated that it may take 
longer than 90 days of liquids addition to reach a moisture content of 
40 percent.
    Response: It was our intent that attaining 40 percent moisture 
triggers the operation of the control system, and not merely the 
introduction of liquids. If operation of the control system is based on 
the time of liquids addition and the landfill has not reached 40 
percent moisture content within 90 days, then the rule (as proposed) 
would be requiring collection and control to be installed and operated 
prior to the landfill meeting the definition of a bioreactor. We have 
revised the final rule to clarify that the operation of the collection 
and control system is required within 180 days after the landfill 
starts liquids addition or within 180 days after the bioreactor has 
reached 40 percent moisture content (i.e. 180 days after the landfill 
has met the definition of bioreactor), whichever is later. Landfills 
must use the procedures in section 63.1980(g) and (h) to determine when 
40 percent moisture content is reached. (No calculation is needed if 
you start operating the collection and control system within 180 days 
after the initial liquids addition.) Installation of the collection and 
control system is still required prior to liquids addition, as required 
in the supplemental proposal.
    Comment: We received several comments pertaining to the exclusion 
of landfills that recirculate leachate and do not add any other liquids 
from the definition of a bioreactor landfill. Three commenters who 
supported the exclusion stated that liquids addition other than that 
provided by leachate recirculation is normally needed to achieve 
optimum moisture for bioreactors. Many landfills recirculate leachate 
as part of their leachate management system without creating bioreactor 
conditions. A commenter who opposed the exclusion contended that a 
landfill in a relatively moist climate could sustain an effective 
bioreactor operation on leachate recirculation alone. This commenter 
pointed out that there were odor problems at landfills in his State 
that began recirculating leachate without a collection and control 
system. The commenter stated that his State now requires collection and 
control for all landfills that recirculate leachate. The commenter also 
expressed concern that landfills recirculating leachate only may reach 
the 40 percent moisture level in the waste by recirculating leachate 
from the entire landfill into a single bioreactor cell. Another 
commenter who opposed the exclusion contended that minimal data from 
landfills recirculating leachate has been collected to allow for the 
exclusion.
    Response: We have not changed the bioreactor definition. A very 
small percentage of bioreactors in moist climates would reach moisture 
content of 40 percent with leachate recirculation only. Due to 
variations in rainfall throughout the year, it would be difficult to 
consistently maintain a high moisture content in the waste to function 
as a fully operational bioreactor. We expect that landfill owners that 
decide to create bioreactors in the future will typically plan to 
operate a large area as a bioreactor to achieve potential benefits such 
as earlier stabilization of waste, extended use of current sites and 
reduced need for new sites. Liquids addition would be needed to 
maintain such bioreactors.
    It would be a large and unnecessary burden to require potentially 
hundreds of landfills that recirculate leachate, but do not add any 
other liquids, to calculate their percent moisture content and 
determine if they are a bioreactor, when we expect that they will not 
meet the 40 percent moisture criteria in the definition of a 
bioreactor. These landfills would still be subject to the final rule 
and EG/NSPS control requirements for conventional landfills, which will 
require gas collection and control after their estimated uncontrolled 
NMOC emissions reach 50 Mg/yr. State, local, or tribal agencies may 
develop more stringent State or local regulations for landfills 
recirculating leachate in cases where odor or air emissions warrant 
active landfill gas collection and control.
    Comment: One commenter pointed out that the potential exists for 
smaller bioreactor landfills that add liquids, to generate significant 
air emissions that warrant timely installation of gas collection and 
control systems. The commenter recommended requiring control of 
bioreactors at landfills with design capacities less than 2.5 million 
Mg or 2.5 million m\3\.
    Response: We have not changed our conclusion since proposal. In 
determining GACT for area sources, we decided not to require control at 
small area source conventional or bioreactor landfills. While 
bioreactors generate larger amounts of landfill gas early in their 
life, we expect that their lifetime total landfill gas generation 
potential would not be significantly greater than a conventional 
landfill accepting the same total amount of waste. Therefore, potential 
emissions reductions from control of bioreactors would be similar to 
potential long-term emissions reductions from control of small 
conventional landfills. Requiring bioreactors at small landfills (i.e., 
landfills with design capacities less than 2.5 million Mg or 2.5 
million m\3\) to install controls would result in additional control 
costs because they are not required to install controls by the EG/NSPS. 
The design capacity exemption excludes those landfills that can least 
afford the costs of collection and control systems including small 
businesses and, particularly, municipalities. Other reasons for 
exempting small landfills are described in the proposed landfills 
NESHAP (65 FR 66677, November 7, 2000) and also apply to bioreactors.
    Comment: Four commenters encouraged us to include aerobic 
bioreactor operations by imposing the anaerobic bioreactor emissions 
requirements on aerobic bioreactor landfills. Two of these commenters 
provide references to available literature on MSW composting. They 
suggested that controls for aerobic bioreactor landfills may be 
warranted, although one of these commenters concluded that there is not 
enough scientifically valid data to develop a MACT standard for aerobic 
bioreactor landfills. Five other commenters agreed there is limited 
data, especially HAP emissions data, and believe it is important to 
exclude aerobic bioreactors at this time.
    Response: The references provided for composting operations are not 
applicable because composting of MSW is not the same as operating an 
aerobic bioreactor within a MSW landfill. We know of no full scale 
aerobic bioreactors in operation in the United States, and an 
insufficient amount of aerobic landfill data are available to properly 
characterize HAP emissions from aerobic bioreactors. We expect a 
significant number of aerobic bioreactors will not be built in the next 
several years (in contrast to the trend for anaerobic bioreactors). For 
these reasons, we have determined that it is not appropriate to include 
aerobic bioreactors in the bioreactor definition or related timing 
requirements. Portions of a landfill that are operated as aerobic 
bioreactors would continue to be subject to the EG/NSPS and the final 
rule requirements for conventional landfills. Under section 112(f) of 
the CAA, we

[[Page 2234]]

will evaluate residual risks and promulgate standards to address 
residual risks within 8 years of promulgation of the final rule. In 
addition, section 112(d)(6) requires review of the final rule every 8 
years. At that time, we will consider any new information on the 
prevalence and emissions of aerobic bioreactors to determine if 
additional requirements are necessary.

D. Mercury

    Comment: Four commenters questioned the reliability of the 
available mercury data. Some commenters quoted mercury emissions tests 
that showed mercury emissions from MSW landfills to be insignificant.
    Response: We considered data from a number of studies, including 
one specifically mentioned by the commenters, prior to proposal. We 
found insufficient data to adequately characterize the concentrations 
of mercury in landfill gas or determine their significance. Based on 
the available information, we concluded that the MACT floor for mercury 
is no emissions reductions and because there are no alternatives above 
that floor, the MACT standard is also no reduction in emissions.
    Comment: Other commenters wrote in support of the cooperative 
efforts of EPA and the Environmental Research and Education Foundation 
to conduct tests for HAP metals such as mercury in landfill gas and 
emissions from gas combustion. The commenters suggested waiting until 
the test results are complete before making any decision on mercury 
controls. Another commenter also asked us to clarify the level of 
mercury emissions from MSW landfill gas and requested that we 
investigate beyond-the-floor control options.
    Response: We find that the currently available data support the 
promulgation of the rulemaking without a mercury emissions limit. 
Because there are no control devices, pollution prevention practices or 
other techniques to reduce landfill mercury emissions, we could not 
identify any beyond-the-floor control options, and we consider the MACT 
for new and existing landfills to be no reduction in mercury emissions.

E. Title V Operating Permits

    Comment: A commenter recommended that we delete the requirement 
mandating that area sources be required to obtain a title V permit and 
instead allow part 60 to address the permitting of area source 
landfills. The commenter further suggested that if we retain the 
requirement of permitting area source landfills, that we justify why 
area source landfills must be permitted.
    Response: In response to that comment, title V requirements 
included in Sec.  63.1935 at proposal have been deleted. We further 
respond that section 502(a) of the CAA requires any source, including 
an area source, subject to standards or regulations under section 111 
or 112 of the CAA to operate in compliance with a title V permit after 
the effective date of any title V permits program. This section states 
that the Administrator may promulgate regulations to exempt one or more 
source categories, in whole or in part, from the requirements of the 
section if the Administrator finds that compliance with title V 
requirements is impracticable, infeasible, or unnecessarily burdensome 
on such categories. Thus, we do not need to justify requiring title V 
permits. The CAA mandates criteria that must be met to justify an 
exemption for any category of sources. According to section 502(a), 
however, the Administrator may not exempt any major source from the 
requirements of title V.
    Although section 502(a) requires that area sources subject to 
regulations under section 111 or 112 be permitted unless the test in 
this section is met (i.e., the Administrator finds that compliance with 
title V permitting requirements is impracticable, infeasible, or 
unnecessarily burdensome), we are not applying this test to the 
landfills NESHAP.\1\ Rather, consistent with what the commenter 
suggested, EPA is allowing the EG/NSPS for MSW landfills to address the 
permitting requirements for area source landfills. This approach is 
justified because the same universe of area source landfills would have 
been required to apply for a title V permit under the final rule (if 
the final rule were promulgated as proposed) as is currently subject to 
title V permitting requirements under the NSPS for landfills and 
whatever plan is used to implement 40 CFR part 60, subpart Cc in an 
area (i.e., an EPA approved and effective section 111(d) State or 
tribal plan for landfills or the landfills Federal plan (40 CFR part 
62, subpart GGG)). Moreover, most area source landfills which have a 
design capacity equal to or greater than 2.5 million Mg and 2.5 million 
m\3\ have already been required to apply for a title V permit due to 
either the NSPS for landfills, an EPA approved and effective section 
111(d) State or tribal plan for landfills, or the landfills Federal 
plan. See 40 CFR 60.752(c), 60.32c(c), and 62.14352(e). See also the 
``Clarification of Title V Permitting Requirements'' section of the EG/
NSPS direct final rule amendments for MSW Landfills (63 FR 32743, 
32746, June 16, 1998). In fact, unless the owner/operator of a MSW 
landfill only recently commenced construction of the landfill and has 
not yet been required to file a design capacity report (which the NSPS 
requires within 90 days after the owner/operator commences 
construction), all area source landfills of the design capacity noted 
above and which meet the definition of new or existing under the EG/
NSPS should have already applied for a title V permit. As a result, EPA 
believes that it is unnecessary for area sources to be required to 
apply for a title V permit as a result of the landfills NESHAP.
---------------------------------------------------------------------------

    \1\ It is important to note that the determination regarding the 
permitting of area sources under this NESHAP does not affect the 
permitting of area sources under other section 111 or 112 standards. 
Rather, to exempt area sources under either a section 111 or 112 
standard, the test in section 502(a) must be met. If commenters 
choose to try and meet this test when commenting on a proposed 
section 111 or 112 standard, they must submit comments which 
document in detail the ways in which title V requirements are 
impracticable, infeasible, or unnecessarily burdensome for the 
source catergory in question.
---------------------------------------------------------------------------

    If a MSW landfill is a major source or is a part of a major source 
as defined under one or more of title V's three major source 
definitions (section 112, section 302, and part D of title I of the 
CAA),\2\ a title V application from such a source may be due even 
earlier than the deadlines established by 40 CFR part 60, subpart WWW, 
any EPA approved and effective section 111(d) State or tribal plan, or 
the landfills Federal plan. When a source is subject to title V for 
more than one reason (e.g., meeting the title V applicability criteria 
in subpart WWW as well as having the potential to emit one or more 
pollutants at major source levels), the 12-month timeframe (or earlier 
if required by the title V permitting authority) for submitting a title 
V application is triggered by the requirement which first causes the 
source to become subject to title V. See CAA section 503(c) and 40 CFR 
70.3(a) and (b), 70.5(a)(1), 71.3(a) and (b), and 71.5(a)(1). See also 
the ``Clarification of Title V Permitting Requirements'' section of the 
EG/NSPS direct final rule for MSW Landfills (63 FR 32743, 32746, June 
16, 1998).\3\
---------------------------------------------------------------------------

    \2\ For information on aggregating emissions units to determine 
what is a source under title V, see the definition of major source 
in 40 CFR 70.2, 71.2, and 63.2. Nothing in this subpart revises how 
affected sources are aggregated for purposes of determining whether 
an affected source is a part of an area, nonmajor, or major source 
under any provisions of the CAA or EPA's regulations.
    \3\ Consistent with the above, it is important to note that an 
application deadline once established for a source cannot be 
superseded by another later application deadline unless the title V 
program itself changes (e.g., a State program under 40 CFR part 70 
becomes a Federal program under 40 CFR part 71).

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

[[Page 2235]]

    Given that most area source landfills subject to the final rule are 
already subject to the requirements of title V, it is important to note 
the following. In cases where the owner/operator of a landfill has 
submitted a timely and complete title V application\4\, but the draft 
title V permit has not yet been released by the permitting authority, 
the owner/operator must supplement his title V application \5\ by 
incorporating the applicable requirements of the final landfills NESHAP 
in accordance with 40 CFR 70.5(b) or 71.5(b). Additionally, if a 
landfill is a major source, or is a part of a major source, and is 
covered by a title V permit with a remaining permit term of 3 or more 
years on the promulgation date of the landfills NESHAP, the title V 
permitting authority must complete a reopening of the source's title V 
permit to incorporate the requirements of the final rule within 18 
months of the promulgation date of the final rule. See CAA section 
502(b)(9) and 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i).
---------------------------------------------------------------------------

    \4\ A title V application should be submitted early enough for 
the permitting authority to find the application either complete or 
incomplete before the title V application deadline. In the event the 
application is found incomplete by the permitting authority, the 
source must submit the information needed to make the application 
complete by the application deadline in order to obtain an 
application shield. (An application shield allows a source to 
operate without being in violation of title V prior to being issued 
a final title V permit.) To maintain an application shield, a source 
must submit information as requested by the permitting authority and 
by the specified deadline. See section 503(d) of the CAA, 40 CFR 
70.5(a)(2), 70.7(b), 71.5(a)(2), and 71.7(b).
    \5\ A title V application from a major source must address all 
emissions units at the title V source, not just the section 111 or 
112 emissions unit. See 40 CFR 70.3(c)(1) and 71.3(c)(1).
---------------------------------------------------------------------------

    Comment: Two commenters recommended that we clarify that deviations 
that are properly addressed in accordance with the SSM plan under the 
proposed rule will not become violations under any CAA program or 
permit, such as a title V permit, in which the standard, limitation, 
prohibition, or other Federally-enforceable requirement is contained. 
The commenters stated that the proposed rule suggested that any 
deviations that occur during SSM would not be violations under section 
112 if the SSM plan were adequate and followed. The commenters are 
concerned that such a deviation might be considered a violation under 
title V and/or the EG/NSPS for MSW landfills.
    Response: To the extent that a source is in compliance with the 
applicable SSM provisions of parts 60 and 63, the source is in 
compliance with its title V permit with respect to these specific 
applicable requirements. In terms of the EG/NSPS for landfills, 
deviations, and, therefore, potential violations, will be defined by 
the applicable requirements (i.e., 40 CFR part 60, subpart WWW, an EPA 
approved and effective State or tribal plan, or the landfills Federal 
plan.)
    Furthermore, in response to this comment, section 63.1970 has been 
removed from the final rule to eliminate any confusion regarding the 
use of SSM plans. Given that the revisions to the General Provisions 
for part 63 (67 FR 16582, April 5, 2002) included revisions to 40 CFR 
63.6(e), a subsection which addresses SSM plans, and given the other 
language in the General Provisions for parts 60 and 63, the NSPS for 
landfills, and the landfills Federal plan relevant to this topic, EPA 
does not believe a regulatory section regarding the use of SSM plans is 
needed in the final rule. See 40 CFR 60.11(c), 60.755(e), 63.6(e), 
63.6(f)(1), and 62.14354(b).
    Comment: Two commenters requested a more detailed discussion of 
which reporting requirements under the final rule would satisfy 
specific requirements under the title V program. The commenters cited a 
specific example: the proposed rule requires that the landfill owner/
operator notify EPA within 2 days of a SSM event. The commenters 
questioned whether this requirement would satisfy the prompt reporting 
requirements of the title V program.
    Response: As many owners/operators of landfills subject to this 
subpart will have the requirements of the final rule in their title V 
permits, any reports submitted for such sources will need to satisfy 
the reporting requirements of the landfills NESHAP and title V (e.g., 
type of report, content of report, and frequency of submission.) A 
permitting authority is not, however, precluded from consolidating 
required reports as long as all reporting requirements of the landfills 
NESHAP and title V are met.
    We would like to emphasize that under 40 CFR part 70 or 71, any 
application form, report, compliance certification, or other document 
required by a permit to be submitted to a permitting authority must 
contain certification by a responsible official that the statements and 
information in the document are true, accurate, and complete. See 40 
CFR 70.5(d), 70.6(c)(1), 71.5(d), and 71.6(c)(1). Thus, to the extent 
reports submitted under the final rule are also required by a title V 
permit to be submitted, they must meet the title V certification 
requirement to meet the reporting requirements of title V.
    The commenters mentioned a specific requirement in 40 CFR 
63.10(d)(5)(ii). This provision states that any time an owner/operator 
takes an action during a SSM event which is not consistent with the 
procedures specified in the affected source's SSM plan, the owner/
operator shall report the actions taken for that event within 2 working 
days after commencing actions inconsistent with the plan followed by a 
letter within 7 working days after the end of the event. The commenters 
questioned whether this requirement would satisfy the prompt reporting 
requirements of title V.
    In terms of the prompt reporting of deviations, 40 CFR 
70.6(a)(3)(iii)(B) requires the permitting authority to define prompt 
in relation to the degree and type of deviation likely to occur and the 
applicable requirements. Therefore, it is the responsibility of the 
part 70 permitting authority to determine whether the timing of reports 
under 40 CFR 63.10(d)(5)(ii) is sufficient to meet the permitting 
authority's requirements for the prompt reporting of deviations. The 
permitting authority may decide for a particular source or source 
category, or as a general matter, to impose more stringent reporting 
requirements (e.g., type of report, content of report, and frequency of 
submission) than those specified in the applicable requirement.

IV. Summary of the Energy, Environmental, and Economic Impacts

    We foresee minimal economic impacts to major sources since all of 
these landfills are currently required to comply with the EG/NSPS. For 
such sources, the final rule will only impose a requirement to prepare 
a SSM plan, recordkeeping and reporting requirements for SSM events, 
and semiannual reports instead of annual reports. The expected annual 
cost to affected major source landfills is only $1,700 (1998 dollars), 
which represents less than 0.001 percent of the tipping fees collected 
by an average sized landfill. For more information on the economic 
impacts of the standards, refer to the economic impact analysis in the 
docket.
    We also foresee no environmental, energy, or economic impacts for 
collection and control of landfill gas to area source landfills. As 
with major source landfills, all area source landfills subject to the 
final rule are already required to implement the EG/NSPS. Area source 
landfills that are too small to trigger the EG/NSPS applicability are 
not subject to control under the

[[Page 2236]]

standards and, therefore, will not incur impacts.
    We expect a positive environmental impact and negligible economic 
impacts from the requirements for bioreactors. One reason for the small 
economic impact is that the final rule bioreactor provisions will 
require gas collection and control for only the same landfills that are 
already required to install collection and control systems under the 
EG/NSPS and the final rule. It will not change the number of landfills 
that must apply controls.
    In the analysis described in the supplemental proposal (67 FR 
36460, May 23, 2002), we found that greater emissions reductions are 
achieved by timely control of bioreactor landfills. The analysis also 
concludes that the bioreactor provisions will not increase the costs of 
control for most landfills compared to the previous EG/NSPS and final 
rule cost analyses, and some landfills with bioreactors will experience 
reduced control costs. We expect the number of bioreactors to increase 
over the next few years given their potential environmental and 
economic benefits, and pending regulatory clarifications. A regulation 
proposed under 40 CFR 258 (67 FR 39662) will provide approved States 
the ability to issue research, development, and demonstration permits 
to allow liquids other than leachate to be recirculated into bioreactor 
landfills. Promulgation of the regulation will lift a barrier for some 
landfills to become bioreactors and, therefore, is likely to result in 
an increase of bioreactor landfills. Overall, the bioreactor provisions 
of the final rule will have minimal economic impacts and may in fact 
have an overall beneficial economic impact. Additional information on 
this analysis, including example cases examined, HAP emissions 
reductions, and NMOC emissions reductions, are contained in Docket No. 
A-98-28 and in the supplemental proposal (67 FR 36460).

V. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and, 
therefore, subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that the final rule is not a ``significant regulatory 
action'' because the final rule will not have an annual effect on the 
economy of $100 million or more and does not impose any additional 
control requirements above the 1996 EG/NSPS. We considered the 1996 EG/
NSPS to be ``significant'' because the 1996 EG/NSPS were expected to 
have an annual effect on the economy in excess of $100 million. We 
submitted the 1996 EG/NSPS to OMB for review (61 FR 9905, March 12, 
1996). The rule promulgated today is projected to have no significant 
impact above the 1996 EG/NSPS. Consequently, the final rule was not 
submitted to OMB for review under Executive Order 12866.

B. Executive Order 13132, Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    The final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. We have concluded the final rule 
may create a mandate on a number of city and county governments, and 
the Federal government would not provide the funds necessary to pay the 
direct costs incurred by the city and county governments in complying 
with the mandate. However, it will not impose substantial direct 
compliance costs on State or local governments, it will not preempt 
State law. Thus, Executive Order 13132 does not apply to the final 
rule.
    Although section 6 of Executive Order 13132 does not apply to the 
final rule, EPA did consult with State and local governments in 
developing the 1996 EG/NSPS. The EPA consulted extensively with State 
and local governments early in the process of developing the proposed 
regulations to permit them to have meaningful and timely input into its 
development. Because the control requirements of the final rule are 
substantially the same as those developed in 1996, the previous 
consultations still apply. In addition, State and local government 
agencies participated in a conference call on the bioreactor provisions 
of the final rule, and provided comments on the proposal, which we 
considered. For a discussion of our consultations with State and local 
governments, the nature of the governments' concerns, and our position 
supporting the need for the specific control requirements included in 
both the EG/NSPS and the final rule, see the preamble to the 1996 EG/
NSPS (60 FR 9918, March 12, 1996).

C. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, (65 FR 67249, November 9, 2000), requires us 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' The final rule does not have tribal 
implications, as specified in Executive Order 13175. Information 
received from the Regions during development of the Federal Plan showed 
no landfills on tribal land large enough to require control under the 
NSPS or the final rule. Thus, Executive Order 13175 does not apply to 
the final rule.

D. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, we must evaluate the environmental

[[Page 2237]]

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 we considered.
    We interpret Executive Order 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 Executive Order has 
the potential to influence the regulation.
    The final rule is not subject to Executive Order 13045 because it 
is not economically significant as defined in Executive Order 12866 and 
because it is based on technology performance and not on health and 
safety risks. Furthermore, as no alternative technologies exist that 
would provide greater stringency at a reasonable cost, the results of 
any children's health analysis would have no impact on the stringency 
decision.

E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    The final rule is not subject to Executive Order 13211, (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

F. Unfunded Mandates Reform Act (UMRA) of 1995

    Title II of the UMRA of 1995, Public Law 104-4, establishes 
requirements for Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments and the 
private sector. Under section 202 of the UMRA, we generally must 
prepare a written statement, including a cost-benefit analysis, for 
proposed and final rules with ``Federal mandates'' that may result in 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any 1 year. Before 
promulgating an EPA rule for which a written statement is needed, 
section 205 of the UMRA generally requires us to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows us to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if we 
publish with the final rule an explanation why that alternative was not 
adopted.
    Before we establish any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, we must have developed a small government agency plan 
under section 203 of the UMRA. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of our regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    We have determined that the final rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any 1 year. The average total annual cost of the final rule 
for any year has been estimated to be less than $2.2 million. Thus, the 
final rule is not subject to the requirements of section 202 and 205 of 
the UMRA. In addition, we have determined that the final rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments because the burden is small and the regulation does 
not unfairly apply to small government. Therefore, the final rule is 
not subject to the requirements of section 203 of the UMRA.

G. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 United States 
Code (U.S.C.). 601 et seq.

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with the final rule. The 
EPA has also determined that the final rule will not have a significant 
economic impact on a substantial number of small entities. For purposes 
of assessing the impact of the final rule on small entities, small 
entities are defined as: (1) A small business that is primarily engaged 
in the collection and disposal of refuse in a landfill operation as 
defined by North American Industrial Classification System (NAICS) 
codes 562212 and 924110 with annual receipts less than 10 million 
dollars; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of the final rule on small 
entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
We have determined that small entities will experience little impact 
since the final rule relies on the requirements specified in 40 CFR 
part 60, subparts Cc and WWW. Additional requirements for the final 
rule are limited to a slight increase in the reporting frequency of 
some reports and the development of a SSM plan. This increase in 
requirements leads to an increase in annual costs to each affected 
landfill of $1700 (1998 dollars), an increase of less than 0.001 
percent of the tipping fees taken in by a landfill of average size 
nationally. Hence, the estimated impacts to small communities, 
organizations, and firms from the final rule should be insignificant. 
For more information on the economic impacts, refer to the economic 
analysis in the docket.
    Although the final rule for MSW landfills will not have a 
significant economic impact on a substantial number of small entities, 
we nonetheless have tried to reduce the impact of the final rule on 
small entities. To that end, we have evaluated the operational 
practices, collection systems and control systems required by 40 CFR 
part 60, subparts Cc and WWW, for co-control environmental benefits. 
Since the requirements in 40 CFR part 60, subparts Cc and WWW, 
adequately address the emissions of HAP while controlling landfill gas, 
we are using these same requirements with a slight increase in 
reporting activity/frequency for the final rule. In addition to the 
reduction effort, we performed a number of outreach activities to 
interact with small entities during the development of the rule. We 
held formal stakeholder meetings. In addition, we presented rule 
related information at national conferences sponsored by the trade 
organizations for these entities, and we requested the establishment of 
an electronic link between the International City/County Management 
Association website and our rule development website. Through the 
efforts discussed above, small entities have been engaged in the 
rulemaking effort.

H. Paperwork Reduction Act

    The information collection requirements in the final rule are being 
submitted for approval to OMB under the requirements of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request 
(ICR) document has been prepared by EPA,

[[Page 2238]]

and a (ICR No. 1938.02) copy may be obtained from Susan Auby by mail at 
U.S. EPA, Office of Environmental Information, Collection Strategies 
Division (2822T), 1200 Pennsylvania Avenue, NW, Washington, DC 20460, 
by email at [email protected], or by calling (202) 566-1672. A copy 
may also be downloaded off the Internet at ``http://www.epa.gov/icr''.
    The information would be used to ensure that the requirements for 
the rule are implemented properly and are complied with on a continuous 
basis. Records and reports are necessary to enable us to identify MSW 
landfills that may not be in compliance with this standard. Based on 
reported information, we would decide which landfills should be 
inspected and what records or processes should be inspected. The 
records that owners or operators of MSW landfills maintain would 
indicate to us whether personnel are operating and maintaining control 
equipment properly.
    The final rule is projected to affect approximately 1,331 MSW 
landfills in the first year. The estimated average annual burden for 
industry for the first 3 years after promulgation of this NESHAP would 
be 39,360 person-hours annually. There will be $13,128 of operation and 
maintenance costs associated with monitoring or recordkeeping during 
the first 3 years. The estimated average annual burden, over the first 
3 years, for the implementing agency would be 21,105 hours with a cost 
of $843,150 (including travel expenses) per year.
    Burden means total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

I. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal 
agencies are required to use voluntary consensus standards (VCS) in 
their regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., material 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA requires Federal agencies such as EPA to provide Congress, 
through annual reports to the OMB, with explanations when an agency 
does not use available and applicable VCS.
    The final rule references 40 CFR part 60, subpart WWW--Standards of 
Performance for Municipal Solid Waste Landfills. Since there are no new 
standard requirements in the final rule, and there are no new technical 
standard requirements resulting from specifying subpart WWW in the 
final rule, we are not adopting any VCS in the final rule. Landfills 
have been using the methods in 40 CFR part 60, subpart WWW since March 
1996 and are familiar with these technical standards. In addition, no 
new VCS have been identified, although comments on applicable VCS were 
requested at the time of proposal. We received no comments on the 
subject. Also, landfills may request approval to use alternative 
testing or monitoring methods, as stated in the final rule.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the SBREFA, 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. Therefore, we will submit a 
report containing the final 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 cannot take effect until 60 days after 
it is published in the Federal Register. The final rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2), and, therefore, will be 
effective January 16, 2003.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: November 26, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons cited in the preamble, title 40, chapter I, part 63 
of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


    2. Part 63 is amended by adding a new subpart AAAA to read as 
follows:

Subpart AAAA--National Emission Standards for Hazardous Air 
Pollutants: Municipal Solid Waste Landfills

Sec.

What This Subpart Covers

63.1930 What is the purpose of this subpart?
63.1935 Am I subject to this subpart?
63.1940 What is the affected source of this subpart?
63.1945 When do I have to comply with this subpart?
63.1947 When do I have to comply with this subpart if I own or 
operate a bioreactor?
63.1950 When am I no longer required to comply with this subpart?
63.1952 When am I no longer required to comply with the requirements 
of this subpart if I own or operate a bioreactor?

Standards

63.1955 What requirements must I meet?

General and Continuing Compliance Requirements

63.1960 How is compliance determined?
63.1965 What is a deviation?
63.1975 How do I calculate the 3-hour block average used to 
demonstrate compliance?

Notifications, Reports and Records

63.1980 What records and reports must I keep and submit?

Other Requirements and Information

63.1985 Who enforces this subpart?
63.1990 What definitions apply to this subpart?

Tables to Subpart AAAA of Part 63

Table 1 of Subpart AAAA of Part 63--Applicability of NESHAP General 
Provisions to Subpart AAAA

[[Page 2239]]

What This Subpart Covers


Sec.  63.1930  What is the purpose of this subpart?

    This subpart establishes national emission standards for hazardous 
air pollutants for existing and new municipal solid waste (MSW) 
landfills. This subpart requires all landfills described in Sec.  
63.1935 to meet the requirements of 40 CFR part 60, subpart Cc or WWW 
and requires timely control of bioreactors. This subpart also requires 
such landfills to meet the startup, shutdown, and malfunction (SSM) 
requirements of the general provisions of this part and provides that 
compliance with the operating conditions shall be demonstrated by 
parameter monitoring results that are within the specified ranges. It 
also includes additional reporting requirements.


Sec.  63.1935  Am I subject to this subpart?

    You are subject to this subpart if you meet the criteria in 
paragraph (a) or (b) of this section.
    (a) You are subject to this subpart if you own or operate a MSW 
landfill that has accepted waste since November 8, 1987 or has 
additional capacity for waste deposition and meets any one of the three 
criteria in paragraphs (a)(1) through (3) of this section:
    (1) Your MSW landfill is a major source as defined in 40 CFR 63.2 
of subpart A.
    (2) Your MSW landfill is collocated with a major source as defined 
in 40 CFR 63.2 of subpart A.
    (3) Your MSW landfill is an area source landfill that has a design 
capacity equal to or greater than 2.5 million megagrams (Mg) and 2.5 
million cubic meters (m3) and has estimated uncontrolled 
emissions equal to or greater than 50 megagrams per year (Mg/yr) NMOC 
as calculated according to Sec.  60.754(a) of the MSW landfills new 
source performance standards in 40 CFR part 60, subpart WWW, the 
Federal plan, or an EPA approved and effective State or tribal plan 
that applies to your landfill.
    (b) You are subject to this subpart if you own or operate a MSW 
landfill that has accepted waste since November 8, 1987 or has 
additional capacity for waste deposition, that includes a bioreactor, 
as defined in Sec.  63.1990, and that meets any one of the criteria in 
paragraphs (b)(1) through (3) of this section:
    (1) Your MSW landfill is a major source as defined in 40 CFR 63.2 
of subpart A.
    (2) Your MSW landfill is collocated with a major source as defined 
in 40 CFR 63.2 of subpart A.
    (3) Your MSW landfill is an area source landfill that has a design 
capacity equal to our greater than 2.5 million Mg and 2.5 million m\3\ 
and that is not permanently closed as of January 16, 2003.


Sec.  63.1940  What is the affected source of this subpart?

    (a) An affected source of this subpart is a MSW landfill, as 
defined in Sec.  63.1990, that meets the criteria in Sec.  63.1935(a) 
or (b). The affected source includes the entire disposal facility in a 
contiguous geographic space where household waste is placed in or on 
land, including any portion of the MSW landfill operated as a 
bioreactor.
    (b) A new affected source of this subpart is an affected source 
that commenced construction or reconstruction after November 7, 2000. 
An affected source is reconstructed if it meets the definition of 
reconstruction in 40 CFR 63.2 of subpart A.
    (c) An affected source of this subpart is existing if it is not 
new.


Sec.  63.1945  When do I have to comply with this subpart?

    (a) If your landfill is a new affected source, you must comply with 
this subpart by January 16, 2003 or at the time you begin operating, 
whichever is last.
    (b) If your landfill is an existing affected source, you must 
comply with this subpart by January 16, 2004.
    (c) If your landfill is a new affected source and is a major source 
or is collocated with a major source, you must comply with the 
requirements in Sec. Sec.  63.1955(b) and 63.1960 through 63.1980 by 
the date your landfill is required to install a collection and control 
system by 40 CFR 60.752(b)(2) of subpart WWW.
    (d) If your landfill is an existing affected source and is a major 
source or is collocated with a major source, you must comply with the 
requirements in Sec. Sec.  63.1955(b) and 63.1960 through 63.1980 by 
the date your landfill is required to install a collection and control 
system by 40 CFR 60.752(b)(2) of subpart WWW, the Federal plan, or EPA 
approved and effective State or tribal plan that applies to your 
landfill or by January 13, 2004, whichever occurs later.
    (e) If your landfill is a new affected source and is an area source 
meeting the criteria in Sec.  63.1935(a)(3), you must comply with the 
requirements of Sec. Sec.  63.1955(b) and 63.1960 through 63.1980 by 
the date your landfill is required to install a collection and control 
system by 40 CFR 60.752(b)(2) of subpart WWW.
    (f) If your landfill is an existing affected source and is an area 
source meeting the criteria in Sec.  63.1935(a)(3), you must comply 
with the requirements in Sec. Sec.  63.1955(b) and 63.1960 through 
63.1980 by the date your landfill is required to install a collection 
and control system by 40 CFR 60.752(b)(2) of subpart WWW, the Federal 
plan, or EPA approved and effective State or tribal plan that applies 
to your landfill or by January 16, 2004, whichever occurs later.


Sec.  63.1947  When do I have to comply with this subpart if I own or 
operate a bioreactor?

    You must comply with this subpart by the dates specified in Sec.  
63.1945(a) or (b) of this subpart. If you own or operate a bioreactor 
located at a landfill that is not permanently closed as of January 16, 
2003 and has a design capacity equal to or greater than 2.5 million Mg 
and 2.5 million m\3\, then you must install and operate a collection 
and control system that meets the criteria in 40 CFR 60.752(b)(2)(v) of 
part 60, subpart WWW, the Federal plan, or EPA approved and effective 
State plan according to the schedule specified in paragraph (a), (b), 
or (c) of this section.
    (a) If your bioreactor is at a new affected source, then you must 
meet the requirements in paragraphs (a)(1) and (2) of this section:
    (1) Install the gas collection and control system for the 
bioreactor before initiating liquids addition.
    (2) Begin operating the gas collection and control system within 
180 days after initiating liquids addition or within 180 days after 
achieving a moisture content of 40 percent by weight, whichever is 
later. If you choose to begin gas collection and control system 
operation 180 days after achieving a 40 percent moisture content 
instead of 180 days after liquids addition, use the procedures in Sec.  
63.1980(g) and (h) to determine when the bioreactor moisture content 
reaches 40 percent.
    (b) If your bioreactor is at an existing affected source, then you 
must install and begin operating the gas collection and control system 
for the bioreactor by January 17, 2006 or by the date your bioreactor 
is required to install a gas collection and control system under 40 CFR 
part 60, subpart WWW, the Federal plan, or EPA approved and effective 
State plan or tribal plan that applies to your landfill, whichever is 
earlier.
    (c) If your bioreactor is at an existing affected source and you do 
not initiate liquids addition to your bioreactor until later than 
January 17, 2006, then you

[[Page 2240]]

must meet the requirements in paragraphs (c)(1) and (2) of this 
section:
    (1) Install the gas collection and control system for the 
bioreactor before initiating liquids addition.
    (2) Begin operating the gas collection and control system within 
180 days after initiating liquids addition or within 180 days after 
achieving a moisture content of 40 percent by weight, whichever is 
later. If you choose to begin gas collection and control system 
operation 180 days after achieving a 40 percent moisture content 
instead of 180 days after liquids addition, use the procedures in Sec.  
63.1980(g) and (h) to determine when the bioreactor moisture content 
reaches 40 percent.


Sec.  63.1950  When am I no longer required to comply with this 
subpart?

    You are no longer required to comply with the requirements of this 
subpart when you are no longer required to apply controls as specified 
in 40 CFR 60.752(b)(2)(v) of subpart WWW, or the Federal plan or EPA 
approved and effective State plan or tribal plan that implements 40 CFR 
part 60, subpart Cc, whichever applies to your landfill.


Sec.  63.1952  When am I no longer required to comply with the 
requirements of this subpart if I own or operate a bioreactor?

    If you own or operate a landfill that includes a bioreactor, you 
are no longer required to comply with the requirements of this subpart 
for the bioreactor provided you meet the conditions of either 
paragraphs (a) or (b).
    (a) Your affected source meets the control system removal criteria 
in 40 CFR 60.752(b)(2)(v) of part 60, subpart WWW or the bioreactor 
meets the criteria for a nonproductive area of the landfill in 40 CFR 
60.759(a)(3)(ii) of part 60, subpart WWW.
    (b) The bioreactor portion of the landfill is a closed landfill as 
defined in 40 CFR 60.751, subpart WWW, you have permanently ceased 
adding liquids to the bioreactor, and you have not added liquids to the 
bioreactor for at least 1 year. A closure report for the bioreactor 
must be submitted to the Administrator as provided in 40 CFR 60.757(d) 
of subpart WWW.
    (c) Compliance with the bioreactor control removal provisions in 
this section constitutes compliance with 40 CFR part 60, subpart WWW or 
the Federal plan, whichever applies to your bioreactor.

Standards


Sec.  63.1955  What requirements must I meet?

    (a) You must fulfill one of the requirements in paragraph (a)(1) or 
(2) of this section, whichever is applicable:
    (1) Comply with the requirements of 40 CFR part 60, subpart WWW.
    (2) Comply with the requirements of the Federal plan or EPA 
approved and effective State plan or tribal plan that implements 40 CFR 
part 60, subpart Cc.
    (b) If you are required by 40 CFR 60.752(b)(2) of subpart WWW, the 
Federal plan, or an EPA approved and effective State or tribal plan to 
install a collection and control system, you must comply with the 
requirements in Sec. Sec.  63.1960 through 63.1985 and with the general 
provisions of this part specified in table 1 of this subpart.
    (c) For approval of collection and control systems that include any 
alternatives to the operational standards, test methods, procedures, 
compliance measures, monitoring, recordkeeping or reporting provisions, 
you must follow the procedures in 40 CFR 60.752(b)(2). If alternatives 
have already been approved under 40 CFR part 60 subpart WWW or the 
Federal plan, or EPA approved and effective State or tribal plan, these 
alternatives can be used to comply with this subpart, except that all 
affected sources must comply with the SSM requirements in Subpart A of 
this part as specified in Table 1 of this subpart and all affected 
sources must submit compliance reports every 6 months as specified in 
Sec.  63.1980(a) and (b), including information on all deviations that 
occurred during the 6-month reporting period. Deviations for continuous 
emission monitors or numerical continuous parameter monitors must be 
determined using a 3 hour monitoring block average.
    (d) If you own or operate a bioreactor that is located at a MSW 
landfill that is not permanently closed and has a design capacity equal 
to or greater than 2.5 million Mg and 2.5 million m\3\, then you must 
meet the requirements of paragraph (a) and the additional requirements 
in paragraphs (d)(1) and (2) of this section.
    (1) You must comply with the general provisions specified in Table 
1 of this subpart and Sec. Sec.  63.1960 through 63.1985 starting on 
the date you are required to install the gas collection and control 
system.
    (2) You must extend the collection and control system into each new 
cell or area of the bioreactor prior to initiating liquids addition in 
that area, instead of the schedule in 40 CFR 60.752(b)(2)(ii)(A)(2).

General and Continuing Compliance Requirements


Sec.  63.1960  How is compliance determined?

    Compliance is determined in the same way it is determined for 40 
CFR part 60, subpart WWW, including performance testing, monitoring of 
the collection system, continuous parameter monitoring, and other 
credible evidence. In addition, continuous parameter monitoring data, 
collected under 40 CFR 60.756(b)(1), (c)(1), and (d) of subpart WWW, 
are used to demonstrate compliance with the operating conditions for 
control systems. If a deviation occurs, you have failed to meet the 
control device operating conditions described in this subpart and have 
deviated from the requirements of this subpart. Finally, you must 
develop and implement a written SSM plan according to the provisions in 
40 CFR 63.6(e)(3). A copy of the SSM plan must be maintained on site. 
Failure to write, implement, or maintain a copy of the SSM plan is a 
deviation from the requirements of this subpart.


Sec.  63.1965  What is a deviation?

    A deviation is defined in Sec.  63.1990. For the purposes of the 
landfill monitoring and SSM plan requirements, deviations include the 
items in paragraphs (a) through (c) of this section.
    (a) A deviation occurs when the control device operating parameter 
boundaries described in 40 CFR 60.758(c)(1) of subpart WWW are 
exceeded.
    (b) A deviation occurs when 1 hour or more of the hours during the 
3-hour block averaging period does not constitute a valid hour of data. 
A valid hour of data must have measured values for at least three 15-
minute monitoring periods within the hour.
    (c) A deviation occurs when a SSM plan is not developed, 
implemented, or maintained on site.


Sec.  63.1975  How do I calculate the 3-hour block average used to 
demonstrate compliance?

    Averages are calculated in the same way as they are calculated in 
40 CFR part 60, subpart WWW, except that the data collected during the 
events listed in paragraphs (a), (b), (c), and (d) of this section are 
not to be included in any average computed under this subpart:
    (a) Monitoring system breakdowns, repairs, calibration checks, and 
zero (low-level) and high-level adjustments.
    (b) Startups.
    (c) Shutdowns.
    (d) Malfunctions.

[[Page 2241]]

Notifications, Records, and Reports


Sec.  63.1980  What records and reports must I keep and submit?

    (a) Keep records and reports as specified in 40 CFR part 60, 
subpart WWW, or in the Federal plan, EPA approved State plan or tribal 
plan that implements 40 CFR part 60, subpart Cc, whichever applies to 
your landfill, with one exception: You must submit the annual report 
described in 40 CFR 60.757(f) every 6 months.
    (b) You must also keep records and reports as specified in the 
general provisions of 40 CFR part 60 and this part as shown in Table 1 
of this subpart. Applicable records in the general provisions include 
items such as SSM plans and the SSM plan reports.
    (c) For bioreactors at new affected sources you must submit the 
initial semiannual compliance report and performance test results 
described in 40 CFR 60.757(f) within 180 days after the date you are 
required to begin operating the gas collection and control system by 
Sec.  63.1947(a)(2) of this subpart.
    (d) For bioreactors at existing affected sources, you must submit 
the initial semiannual compliance report and performance test results 
described in 40 CFR 60.757(f) within 180 days after the compliance date 
specified in Sec.  63.1947(b) of this subpart, unless you have 
previously submitted a compliance report for the bioreactor required by 
40 CFR part 60, subpart WWW, the Federal plan, or an EPA approved and 
effective State plan or tribal plan.
    (e) For bioreactors that are located at existing affected sources, 
but do not initiate liquids addition until later than the compliance 
date in Sec.  63.1947(b) of this subpart, you must submit the initial 
semiannual compliance report and performance tests results described in 
40 CFR 60.757(f) within 180 days after the date you are required to 
begin operating the gas collection and control system by Sec.  
63.1947(c) of this subpart.
    (f) If you must submit a semiannual compliance report for a 
bioreactor as well as a semiannual compliance report for a conventional 
portion of the same landfill, you may delay submittal of a subsequent 
semiannual compliance report for the bioreactor according to paragraphs 
(f)(1) through (3) of this section so that the reports may be submitted 
on the same schedule.
    (1) After submittal of your initial semiannual compliance report 
and performance test results for the bioreactor, you may delay 
submittal of the subsequent semiannual compliance report for the 
bioreactor until the date the initial or subsequent semiannual 
compliance report is due for the conventional portion of your landfill.
    (2) You may delay submittal of your subsequent semiannual 
compliance report by no more than 12 months after the due date for 
submitting the initial semiannual compliance report and performance 
test results described in 40 CFR 60.757(f) for the bioreactor. The 
report shall cover the time period since the previous semiannual report 
for the bioreactor, which would be a period of at least 6 months and no 
more than 12 months.
    (3) After the delayed semiannual report, all subsequent semiannual 
reports for the bioreactor must be submitted every 6 months on the same 
date the semiannual report for the conventional portion of the landfill 
is due.
    (g) If you add any liquids other than leachate in a controlled 
fashion to the waste mass and do not comply with the bioreactor 
requirements in Sec. Sec.  63.1947, 63.1955(c) and 63.1980(c) through 
(f) of this subpart, you must keep a record of calculations showing 
that the percent moisture by weight expected in the waste mass to which 
liquid is added is less than 40 percent. The calculation must consider 
the waste mass, moisture content of the incoming waste, mass of water 
added to the waste including leachate recirculation and other liquids 
addition and precipitation, and the mass of water removed through 
leachate or other water losses. Moisture level sampling or mass 
balances calculations can be used. You must document the calculations 
and the basis of any assumptions. Keep the record of the calculations 
until you cease liquids addition.
    (h) If you calculate moisture content to establish the date your 
bioreactor is required to begin operating the collection and control 
system under Sec.  63.1947(a)(2) or (c)(2), keep a record of the 
calculations including the information specified in paragraph (g) of 
this section for 5 years. Within 90 days after the bioreactor achieves 
40 percent moisture content, report the results of the calculation, the 
date the bioreactor achieved 40 percent moisture content by weight, and 
the date you plan to begin collection and control system operation.

Other Requirements and Information


Sec.  63.1985  Who enforces this subpart?

    (a) This subpart can be implemented and enforced by the U.S. EPA, 
or a delegated authority such as the applicable State, local, or tribal 
agency. If the EPA Administrator has delegated authority to a State, 
local, or tribal agency, then that agency as well as the U.S. EPA has 
the authority to implement and enforce this subpart. Contact the 
applicable EPA Regional Office to find out if this subpart is delegated 
to a State, local, or tribal agency.
    (b) In delegating implementation and enforcement authority of this 
subpart to a State, local, or tribal agency under subpart E of this 
part, the authorities contained in paragraph (c) of this section are 
retained by the EPA Administrator and are not transferred to the State, 
local, or tribal agency.
    (c) The authorities that will not be delegated to State, local, or 
tribal agencies are as follows. Approval of alternatives to the 
standards in Sec.  63.1955. Where these standards reference another 
subpart, the cited provisions will be delegated according to the 
delegation provisions of the referenced subpart.


Sec.  63.1990  What definitions apply to this subpart?

    Terms used in this subpart are defined in the Clean Air Act, 40 CFR 
part 60, subparts A, Cc, and WWW; 40 CFR part 62, subpart GGG, and 
subpart A of this part, and this section that follows:
    Bioreactor means a MSW landfill or portion of a MSW landfill where 
any liquid other than leachate (leachate includes landfill gas 
condensate) is added in a controlled fashion into the waste mass (often 
in combination with recirculating leachate) to reach a minimum average 
moisture content of at least 40 percent by weight to accelerate or 
enhance the anaerobic (without oxygen) biodegradation of the waste.
    Deviation means any instance in which an affected source subject to 
this subpart, or an owner or operator of such a source:
    (1) Fails to meet any requirement or obligation established by this 
subpart, including, but not limited to, any emissions limitation 
(including any operating limit) or work practice standard;
    (2) Fails to meet any term or condition that is adopted to 
implement an applicable requirement in this subpart and that is 
included in the operating permit for any affected source required to 
obtain such a permit; or
    (3) Fails to meet any emission limitation, (including any operating 
limit), or work practice standard in this subpart during SSM, 
regardless of whether or not such failure is permitted by this subpart.
    Emissions limitation means any emission limit, opacity limit, 
operating limit, or visible emissions limit.

[[Page 2242]]

    EPA approved State plan means a State plan that EPA has approved 
based on the requirements in 40 CFR part 60, subpart B to implement and 
enforce 40 CFR part 60, subpart Cc. An approved State plan becomes 
effective on the date specified in the notice published in the Federal 
Register announcing EPA's approval.
    Federal plan means the EPA plan to implement 40 CFR part 60, 
subpart Cc for existing MSW landfills located in States and Indian 
country where State plans or tribal plans are not currently in effect. 
On the effective date of an EPA approved State or tribal plan, the 
Federal plan no longer applies. The Federal plan is found at 40 CFR 
part 62, subpart GGG.
    Municipal solid waste landfill or MSW landfill means an entire 
disposal facility in a contiguous geographical space where household 
waste is placed in or on land. A municipal solid waste landfill may 
also receive other types of RCRA Subtitle D wastes (see Sec.  257.2 of 
this chapter) such as commercial solid waste, nonhazardous sludge, 
conditionally exempt small quantity generator waste, and industrial 
solid waste. Portions of a municipal solid waste landfill may be 
separated by access roads. A municipal solid waste landfill may be 
publicly or privately owned. A municipal solid waste landfill may be a 
new municipal solid waste landfill, an existing municipal solid waste 
landfill, or a lateral expansion.
    Tribal plan means a plan submitted by a tribal authority pursuant 
to 40 CFR parts 9, 35, 49, 50, and 81 to implement and enforce 40 CFR 
part 60, subpart Cc.
    Work practice standard means any design, equipment, work practice, 
or operational standard, or combination thereof, that is promulgated 
pursuant to section 112(h) of the Clean Air Act.
    As stated in Sec. Sec.  63.1955 and 63.1980, you must meet each 
requirement in the following table that applies to you.

  Table 1 of Subpart AAAA of Part 63.--Applicability of NESHAP General
                       Provisions to Subpart AAAA
------------------------------------------------------------------------
      Part 63 Citation             Description           Explanation
------------------------------------------------------------------------
63.1(a).....................  Applicability:        Affected sources are
                               general               already subject to
                               applicability of      the provisions of
                               NESHAP in this part.  paragraphs (a)(10)-
                                                     (12) through the
                                                     same provisions
                                                     under 40 CFR, part
                                                     60 subpart A.
63.1(b).....................  Applicability
                               determination for
                               stationary sources.
63.1(e).....................  Title V permitting..
63.2........................  Definitions.........
63.4........................  Prohibited            Affected sources are
                               activities and        already subject to
                               circumvention.        the provisions of
                                                     paragraph (b)
                                                     through the same
                                                     provisions under 40
                                                     CFR, part 60
                                                     subpart A.
63.5(b).....................  Requirements for
                               existing, newly
                               constructed, and
                               reconstructed
                               sources.
63.6(e).....................  Operation and
                               maintenance
                               requirements,
                               startup, shutdown
                               and malfunction
                               plan provisions.
63.6(f).....................  Compliance with       Affected sources are
                               nonopacity emission   already subject to
                               standards.            the provisions of
                                                     paragraphs (f)(1)
                                                     and (2)(i) through
                                                     the same provisions
                                                     under 40 CFR, part
                                                     60 subpart A.
63.10(b)(2)(i)-(b)(2)(v)....  General
                               recordkeeping
                               requirements.
63.10(d)(5).................  If actions taken
                               during a startup,
                               shutdown and
                               malfunction plan
                               are consistent with
                               the procedures in
                               the startup,
                               shutdown and
                               malfunction plan,
                               this information
                               shall be included
                               in a semi-annual
                               startup, shutdown
                               and malfunction
                               plan report. Any
                               time an action
                               taken during a
                               startup, shutdown
                               and malfunction
                               plan is not
                               consistent with the
                               startup, shutdown
                               and malfunction
                               plan, the source
                               shall report
                               actions taken
                               within 2 working
                               days after
                               commencing such
                               actions, followed
                               by a letter 7 days
                               after the event.
63.12(a)....................  These provisions do
                               not preclude the
                               State from adopting
                               and enforcing any
                               standard,
                               limitation, etc.,
                               requiring permits,
                               or requiring
                               emissions
                               reductions in
                               excess of those
                               specified.
63.15.......................  Availability of
                               information and
                               confidentiality.
------------------------------------------------------------------------

[FR Doc. 03-88 Filed 1-15-03; 8:45 am]
BILLING CODE 6560-50-P