[Federal Register Volume 68, Number 121 (Tuesday, June 24, 2003)]
[Rules and Regulations]
[Pages 37421-37425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15759]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[PA124-4079a; FRL-7517-3]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Commonwealth of Pennsylvania; 
Control of Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the municipal 
solid waste (MSW) landfill section 111(d) plan (the plan) submitted by 
the Pennsylvania Department of Environmental Protection (PADEP). The 
plan establishes nonmethane organic compounds (NMOC) emissions limits 
for existing landfills in the Commonwealth of Pennsylvania, excluding 
the geographic areas of Allegheny County and the City of Philadelphia. 
The plan was submitted to fulfill requirements of the Clean Air Act 
(the Act).

DATES: This final rule is effective August 25, 2003 without further 
notice, unless EPA receives adverse written comment by July 24, 2003. 
If EPA receives such comments, it will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Comments may be submitted either by mail or electronically. 
Written comments should be mailed to Walter Wilkie, Chief, Air Quality 
Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania

[[Page 37422]]

19103. Electronic comments should be sent either to 
[email protected] or to http://www.regulations.gov, which is an 
alternative method for submitting electronic comments to EPA. To submit 
comments, please follow the detailed instructions described in part III 
of the Supplementary Information section. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103; and the Pennsylvania Department of 
Environmental Protection, Bureau of Air Quality, PO Box 8468, 400 
Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Act requires that States submit plans to EPA to implement and 
enforce the Emission Guidelines (EG) promulgated for MSW landfills 
pursuant to section 111(d) of the Act. Section 111(d) requires that the 
State submit its plan no later than nine months after EPA promulgates 
the EG. On March 12, 1996, EPA promulgated the MSW landfill EG at 40 
CFR part 60, subpart Cc, and the related new source performance 
standard (NSPS), subpart WWW.
    Under section 111(d) of the Act, the EPA established procedures 
whereby States submit plans to control existing sources of designated 
pollutants. A designated pollutant means any air pollutant, emissions 
of which are subject to a standard of performance for new sources but 
for which air quality criteria have not been issued, and which is not 
included on a list published under section 108(a) or section 
112(b)(1)(A) of the Act. As required by section 111(d) of the Act, EPA 
established a process at 40 CFR part 60, subpart B, similar to the 
process required by section 110 of the Act (regarding State 
Implementation Plan (SIP) approval) which States must follow in 
adopting and submitting a section 111(d) plan. Whenever EPA promulgates 
a NSPS that controls a designated pollutant, EPA establishes EG in 
accordance with 40 CFR 60.22 which contain information pertinent to the 
control of the designated pollutant from that NSPS source category 
(i.e., the ``designated facility'' as defined at 40 CFR 60.21(b)). 
Thus, a State's section 111(d) plan for a designated facility must 
comply with the EG for that source category as well as 40 CFR part 60, 
subpart B (40 CFR 60.23 through 60.26), as applicable.
    States were required to submit their MSW landfill 111(d) plans or 
negative declarations to EPA on December 12, 1996, pursuant to the 
provisions of section 111(d) of the Act and 40 CFR part 60, subpart B, 
and the March 12, 1996 promulgated MSW landfill EG, subpart Cc. Since 
that time, EPA has promulgated three separate landfill rule amendments, 
and has proposed a fourth. The promulgated amendments were published in 
the Federal Register on June 16, 1998, February 24, 1999, and April 10, 
2000. A fourth set of amendments was published and proposed in the 
Federal Register on May 23, 2002. Also, EPA has promulgated a Federal 
plan , 40 CFR part 62, subpart GGG, (November 8, 1999) for existing 
landfills located in states, such as Pennsylvania, without an approved 
plan. The Federal plan acts as a place holder until the state plan is 
approved and becomes effective.
    The pollutants regulated by the NSPS and EG are MSW landfill 
emissions, which contain a mixture of volatile organic compounds (VOC), 
other organic compounds, methane, and hazardous air pollutants. To 
determine whether emissions control is required, the nonmethane organic 
compounds (NMOC) emission's rate is determined as a surrogate for the 
MSW landfill emissions rate. Thus, NMOC are considered collectively as 
the designated pollutant. The designated facility, which is subject to 
the EG, is each existing MSW landfill (as defined in 40 CFR 60.32c) for 
which construction, reconstruction or modification was commenced before 
May 30, 1991. For any landfill with a design capacity and emission rate 
that exceeds the EG applicability thresholds, the landfill owner/
operator is required to install a landfill gas collection and control 
system. The system must be designed and operated to reduce collected 
NMOC concentrations by 98 weight-percent, or reduce the outlet NMOC 
concentration to 20 parts per million or less, as determined using the 
test methods specified under Sec.  60.754(d).
    On July 1, 1997, the Commonwealth of Pennsylvania submitted its 
111(d) plan for MSW landfills for implementing the EG requirements. The 
following provides a brief discussion of the requirements for an 
approvable State plan for existing MSW landfills and EPA's review of 
the PADEP submittal with respect to those requirements. More detailed 
information on the requirements for an approvable plan and the 
Commonwealth's submittal can be found in the Technical Support Document 
(TSD) accompanying this notice, which is available upon request.

II. Review of the Pennsylvania MSW Landfill Plan

    EPA has reviewed the Pennsylvania section 111(d) plan for existing 
MSW landfills in the context of applicable requirements of 40 CFR part 
60, subparts B, Cc, and WWW; and 40 CFR part 62, subpart GGG, as 
follows:

A. Identification of Enforceable State Mechanisms Selected by the State 
for Implementing the EG

    The plan identifies a total of sixteen (16) designated landfills. 
In order to implement the requirements of the plan, the PADEP issued a 
Federally enforceable state operating permit (FESOP) to each of the 
sixteen landfills. Each FESOP permit incorporates by reference (IBR) 
all applicable EG and related NSPS requirements under the 111(d) plan. 
In addition, all designated landfills are required to complete a 
compliance test no later than 180 days of the final compliance date. 
Each submitted FESOP meets the requirements of 40 CFR 60.24(a) for an 
enforceable mechanism.

B. Demonstration of Legal Authority

    PADEP's Chief Counsel submitted an opinion that PADEP has the 
statutory and regulatory authority under its State operating permits 
programs to implement applicable requirements under section 111(d) of 
the Act. A copy of the Commonwealth's Air Pollution Control Act (35 
P.S. 4001, et seq.) and applicable operating permits regulations, under 
25 Pa. Code Chapter 127, were submitted. This meets the requirements of 
40 CFR 60.26(a), (b), and (c).

C. Inventory of MSW Landfills in the Pennsylvania, Excluding Allegheny 
County and the City of Philadelphia

    The PADEP inventory identifies twenty-four (24) existing landfills, 
excluding those in the geographical areas of Allegheny County and the 
City of Philadelphia. Of the twenty-four noted landfills, sixteen (16) 
are identified as designated landfills and eight (8) are identified as 
having a capacity of less than 2.5 million megagrams of design 
capacity. The submitted PADEP landfill inventory of sources meets the 
requirement of 40 CFR 60.25(a).

[[Page 37423]]

D. Inventory of Emissions From MSW Landfills in Pennsylvania, Excluding 
Allegheny County

    The Pennsylvania 111(d) plan contains information on estimated NMOC 
emission rates in tons per year (TPY) for each existing landfill. This 
meets the emission inventory requirements of 40 CFR 60.25(a).

E. Emission Limitation for MSW Landfills

    Each submitted FESOP contains the emission limitations established 
in the EG. Existing landfills having design capacities equal to or 
greater than 2.5 million megagrams (Mg) by mass and 2.5 million cubic 
meters (m3) by volume, and a NMOC emissions rate of 50 Mg/year or 
greater, must install a gas collection and control system. This and 
other FESOP provisions meet the requirement of 40 CFR 60.24(c) that the 
State plan include emission standards that are no less stringent than 
the EG.

F. A State Process of Review and Approval of Site-Specific Gas 
Collection and Control System Design Plans

    The submitted Pennsylvania 111(d) plan describes a process for the 
review and approval of site-specific design plans for gas collection 
and control systems. The process is described in detail in the plan 
narrative, section VI, Process for Review of Design Plans. The 
described process meets the requirements of 40 CFR 60.33c(b).

G. Compliance Schedules

    The final compliance dates and enforceable increments of progress 
of the plan are linked to the date when both the facility capacity and 
NMOC emission rate equal or exceed the EG applicability thresholds. A 
State section 111(d) plan must include an expeditious compliance 
schedule that owners and operators of designated MSW landfills must 
meet in order to comply with the requirements of the plan. The EG at 40 
CFR 60.36c provide that planning, awarding of contracts, and 
installation of air emission collection and control equipment capable 
of meeting the EG requirements must be accomplished within 30 months 
after triggering the 50 Mg/yr NMOC emissions rate applicability 
threshold. Subpart B, 40 CFR 60.24(e)(1), provides that any compliance 
schedule extending more than 12 months from the date required for plan 
submittal shall include legally enforceable increments of progress as 
specified in 40 CFR 60.21(h), including deadlines for submittal of a 
final control plan, awarding of contracts for emission control systems, 
initiation of on-site construction or installation of emission control 
equipment, completion of on-site construction/installation of emission 
control equipment, and final compliance. Twelve (12) of the designated 
landfill FESOPs contain compliance schedules, including increments of 
progress, that requires final compliance within 30 months after permit 
issuance, or 30 months after the calculated annual NMOC emissions rate 
equals or exceeds 50 Mg/yr. The FESOPs for three (3) other designated 
landfills, with already installed gas collection and control systems, 
require final compliance on the date when the initial or first annual 
capacity and NMOC emissions rate reports both show an exceedance of the 
EG applicability thresholds. These three landfills are identified as: 
(1) Arden-East Valley, permit No. 63-322-001; (2) Valley, permit No. 
65-322-001A; and (3) Arnoni, permit No. 63-322-003A. For a fourth 
landfill, Lycoming County, permit No. 41-322-01, with reported 
exceedances of both EG applicablility thresholds for capacity and NMOC 
emissions rate, final compliance is required on or before March 10, 
1998. Each submitted FESOP establishes expeditious interim and/or final 
compliance dates, and meets the requirements of 40 CFR 60.24(e)(1), and 
60.36c, and the Federal landfill plan.

H. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    Each FESOP contains provisions for testing, monitoring, reporting, 
and recordkeeping. Each FESOP meets the requirements of 40 CFR 60.34c, 
testing and monitoring, and 60.35c, reporting and recordkeeping 
requirements.

I. Submittal of Title V Applications

    Owners/operators of affected landfills are subject to PADEP's Title 
V rule, section 127.505, Initial application submittal of Title V 
facilities. These requirements are consistent with the EG and the 
Federal landfill plan (64 FR 60689).

J. A Record of Public Hearing on the State Plan

    Public hearings for the Pennsylvania plan were held on June 6, 9, 
and 10, 1997 in Harrisburg, Conshohocken, and Pittsburgh, respectively. 
Each FESOP was subject to public notice and then an opportunity for a 
public hearing. The state provided evidence of complying with public 
notice and other hearing requirements, including a record of public 
comments received. The 40 CFR 60.23 requirement for a public hearing on 
the 111(d) plan has been met by the PADEP.

K. Provision for Annual State Progress Reports to EPA

    The PADEP will submit to EPA on an annual basis a report which 
details its progress in the enforcement of the 111(d) plan in 
accordance with 40 CFR 60.25. The first progress report will be 
submitted to EPA one year after the approval of the plan by EPA.

III. Final Action

    PADEP has submitted a 111(d) plan that conforms to the June 16, 
1998 EG, as amended and the Federal plan. 25 Pa. Code section 127.463 
requires designated landfill owners/operators with FESOPs to comply 
with promulgated requirements, including meeting the applicable Clean 
Air Act standards or regulations within the time frame required by 
those standards or regulations, regardless of whether the permit is 
revised. The PADEP confirmed this in a June 30, 1997 opinion from its 
Chief Counsel, and a subsequent September 5, 2002 letter to EPA.
    When considering the plan's due date for submittal of the initial 
landfill design capacity and emissions rate reports and the related 
final compliance date, it is important to note that 40 CFR part 60, 
subpart B, Sec.  60.24(g)(2) allows states to impose compliance 
schedules requiring final compliance at earlier times than those 
specified in the EG. Accordingly, the PADEP has the authority to impose 
earlier compliance times, and thus reporting requirements than those 
stipulated in the EG and Federal plan. Also, each FESOP contains a 
provision that states for purposes of meeting the section 111(d) Clean 
Air Act requirements, the terms and conditions of the permit, relating 
to 40 CFR part 60, subpart Cc, are nonexpiring with respect to the 
requirements of the EG and the section 111(d) plan. Therefore, expired 
FESOPs, which are part of the plan and include applicable section 
111(d) requirements, including compliance schedules and reporting 
dates, are still valid and enforceable for purposes of the plan.
    EPA is taking no action to approve permit terms and conditions that 
imply that a facility is actually in compliance with section 111(d) 
plan requirements, such as conditions 30 and 34 under the Lycoming 
County landfill permit, No. 41-322-01. Such terms and conditions are 
outside the scope of EPA's section 111(d) plan approval authority.
    Based on the rationale discussed above, EPA is approving the 
Pennsylvania 111(d) plan for the control of MSW landfill gas emissions 
(i.e., NMOC) from designated facilities. Accordingly, the Federal 
landfill plan,

[[Page 37424]]

subpart GGG, is no longer applicable to designated landfills under this 
approval action. However, if an unknown designated landfill is not 
covered by the scope of this plan and is discovered after EPA plan 
approval, that landfill will be subject to the promulgated Federal plan 
requirements until the PADEP amends its plan to include the previously 
unknown designated landfill. As provided by 40 CFR 60.28(c), any 
revisions to the Pennsylvania section 111(d) plan or associated FESOPs 
will not be considered part of the applicable plan until submitted by 
the PADEP in accordance with 40 CFR 60.28(a) or (b), as applicable, and 
until approved by EPA in accordance with 40 CFR part 60, subpart B, 
requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies and existing MSW 
landfills that are subject to the provisions of 40 CFR part 60, 
subparts B, Cc, WWW, as applicable; and 40 CFR part 62, subpart GGG. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
EPA is publishing a separate document that will serve as the proposal 
to approve the section 111(d) plan should relevant adverse or critical 
comments be filed. This rule will be effective August 25, 2003 without 
further notice unless EPA receives adverse comments by July 24, 2003. 
If EPA receives adverse comments, EPA will publish a timely withdrawal 
in the Federal Register informing the public that the rule did not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number PA124-4079 in the subject line on the first page 
of your comment. Please ensure that your comments are submitted within 
the specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' EPA is not required to consider 
these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], attention PA124-4079. EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
without going through Regulations.gov , EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket, and made 
available in EPA's electronic public docket.
    ii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select ``Environmental Protection Agency'' at 
the top of the page and use the ``go'' button. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in the ADDRESSES 
section of this document. These electronic submissions will be accepted 
in WordPerfect, Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By Mail. Written comments should be addressed to the EPA 
Regional office listed in the ADDRESSES section of this document.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997),

[[Page 37425]]

because it is not economically significant.
    In reviewing 111(d) plan submissions, EPA's role is to approve 
state choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use voluntary consensus standards (VCS), EPA has no 
authority to disapprove a 111(d) plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d) plan submission, to use VCS in place of a 111(d) plan 
submission that otherwise satisfies the provisions of the Clean Air 
Act. Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability establishing source-
specific requirements for sixteen (16) specific sources.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 25, 2003. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action to approve the Pennsylvania section 111(d) 
landfill plan may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: June 16, 2003.
James W. Newsom,
Acting Regional Administrator, Region III.

0
Therefore, for the reasons discussed in the preamble 40 CFR part 62, 
subpart NN, is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. Sections 62.9635, 62.9636, and 62.9637 are added to read as follows:


Sec.  62.9635  Identification of plan.

    Section 111(d) plan for municipal solid waste landfills, as 
submitted on July 1, 1997, and as amended through April 9, 2003 by the 
Pennsylvania Department of Environmental Protection. The plan excludes 
the geographical areas of Allegheny County and the City of 
Philadelphia.


Sec.  62.9636  Identification of sources.

    The plan applies to existing Pennsylvania landfills for which 
construction, reconstruction, or modification was commenced before May 
30, 1991, that accepted waste at any time since November 8, 1987, or 
that have additional capacity available for future waste deposition, as 
described in 40 CFR part 60, subpart Cc.


Sec.  62.9637  Effective date.

    The effective date of the plan for municipal solid waste landfills 
is August 25, 2003.

[FR Doc. 03-15759 Filed 6-23-03; 8:45 am]
BILLING CODE 6560-50-P