[Federal Register Volume 69, Number 10 (Thursday, January 15, 2004)]
[Rules and Regulations]
[Pages 2302-2304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-889]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. NY66-271a, FRL-7610-5]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the State Plan submitted by New York implementing the 
Municipal Solid Waste (MSW) Landfill Emission Guidelines, as 
promulgated by EPA. The State Plan establishes performance standards 
for existing MSW landfills located in New York State and provides for 
the implementation and enforcement of those standards, which will 
reduce the designated pollutants. The State Plan revision consists of 
moving the federally approved MSW requirements from Subpart 360-2.21 of 
title 6 of the New York Codes, Rules and Regulations (NYCRR) to Part 
208 of title 6 NYCRR.

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DATES: This direct final rule is effective on March 15, 2004, without 
further notice, unless EPA receives adverse comment by February 17, 
2004. If adverse comment is received, EPA 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 Raymond Werner, Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866. Electronic 
comments could be sent either to [email protected] or to http://www.regulations.gov, which is an alternative method for 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. Please follow the on-line instructions for 
submitting comments.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division of 
Air Resources, 625 Broadway, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, SW., Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Kirk Wieber, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3381 or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 19, 1999 (64 FR 38582), EPA conditionally approved and 
subsequently on May 10, 2001 (66 FR 23851), EPA fully approved the New 
York State Plan for regulating existing Municipal Solid Waste (MSW) 
Landfills. The reader is referred to the July 19, 1999 and May 10, 
2001, rulemaking actions for a more detailed description and the 
rationale of EPA's approval of the New York MSW Landfills State Plan. 
As part of that State Plan, New York adopted revisions to State rules 
to control air emissions from existing landfills in the State. The New 
York State rules for MSW Landfills were primarily found in Subpart 360-
2.21 of title 6 of the New York Codes, Rules and Regulations (NYCRR) of 
the State of New York, entitled ``Landfill Gas Collection and Control 
Systems for Certain Municipal Solid Waste Landfills''. On July 19, 
1999, EPA approved the revisions to Part 360-2.21 as meeting EPA 
guidelines and policy.

II. State Submittal

    On December 24, 2001, and supplemented on June 25, 2003, New York 
submitted to EPA a revision to the State Plan for MSW Landfills. The 
revision consisted of the adoption of Part 208, of title 6 NYCRR, 
entitled, ``Landfill Gas Collection and Control Systems for Certain 
Municipal Solid Waste Landfills'' and the removal of Subpart 360-2.21. 
Part 208 replaces the MSW landfill provisions that were previously 
contained in Subpart 360-2.21. New York made this change because the 
MSW landfill requirements would be more effectively implemented under 
the State ``Air Regulations'', i.e., Part 200 series of regulations of 
title 6 NYCRR rather than the State ``Solid Waste Management 
Regulations'', i.e., Part 360 series of regulations of title 6 NYCRR. 
Specifically, this change would avoid duplication of conditions of 
permits and duplication of effort between the State Divisions of Air 
Resources and Solid and Hazardous Materials. The only difference among 
the two rules is the addition of compliance milestones into Part 208, 
as required by 40 CFR 60.23 for all state plans. These milestones 
specify the increments of progress a landfill must achieve between the 
time the landfill first becomes subject to Part 208 and the time it is 
in compliance with Part 208.

III. Conclusion

    EPA has evaluated New York's revision to the Municipal Solid Waste 
Landfill State Plan submitted by New York for consistency with the 
Clean Air Act, EPA guidelines and policy. EPA has determined that 
removal/relocation of the MSW Landfill requirements from Subpart 360-
2.21 of title 6 NYCRR entitled, ``Landfill Gas Collection and Control 
Systems for Certain Municipal Solid Waste Landfills'' to Part 208 of 
title 6 NYCRR entitled, ``Landfill Gas Collection and Control Systems 
for Certain Municipal Solid Waste Landfills'' is approvable.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the State Plan revision 
should adverse comments be filed. This rule will be effective March 15, 
2004, without further notice unless the Agency receives adverse 
comments by February 17, 2004.
    If the EPA receives adverse comments, then EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

    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 (Public Law 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). New York's State plan applies to all 
affected sources regardless of whether it has been identified in its 
plan. Therefore, EPA has concluded that this rulemaking action does not 
have federalism implications nor does it have substantial direct 
effects on the States, on the

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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), because it is not economically 
significant.
    In reviewing state 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 state plan submission for failure to use VCS. It would 
thus be inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a state 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.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 March 15, 2004. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Intergovernmental 
relations, Methane, Municipal solid waste landfills, Nonmethane organic 
compounds, Reporting and recordkeeping requirements.

    Dated: December 29, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.
[FR Doc. 04-889 Filed 1-14-04; 8:45 am]
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