[Federal Register Volume 85, Number 6 (Thursday, January 9, 2020)]
[Rules and Regulations]
[Pages 1121-1124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28235]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R09-OAR-2019-0393; FRL-10000-52-Region 9]


Partial Approval, Partial Disapproval and Promulgation of State 
Plans for Designated Facilities and Pollutants; California; Control of 
Emissions From Existing Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is partially 
approving and partially disapproving a Clean Air Act (CAA) section 
111(d) plan submitted by the California Air Resources Board (CARB) to 
implement the EPA's Emission Guidelines and Compliance Times for 
Municipal Solid Waste Landfills (Emission Guidelines). This State plan 
submittal pertains to the regulation of landfill gas and its components 
from existing municipal solid waste (MSW) landfills. We are partially 
approving the State plan because it meets many of the requirements of 
the Emission Guidelines. However, we are partially disapproving the 
State plan because it does not fully meet certain provisions of the 
Emission Guidelines.

DATES: This final rule is effective on February 10, 2020. The 
incorporation by reference of certain material listed in the rule is 
approved by the Director of the Federal Register as of February 10, 
2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2019-0393. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4152 or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On July 30, 2019, the EPA proposed to partially approve and 
partially disapprove a section 111(d) plan submitted by CARB for 
existing MSW landfills. 84 FR 36863. The submitted section 111(d) plan 
was in response to the August 29, 2016 promulgation of revised emission 
guidelines requirements for MSW landfills, 40 CFR part 60, subpart 
Cf.\1\ Included within the section 111(d) plan are regulations under 
the California Code of Regulations (CCR), at 17 CCR 95460-95476, 
entitled, ``Methane Emissions from Municipal Solid Waste Landfills.'' A 
detailed explanation of the rationale behind the proposed approval is 
available in the Technical Support Document in the docket for this 
rulemaking.
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    \1\ 81 FR 59276.
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    We proposed to partially approve this plan because we determined 
that it complies with the relevant CAA requirements, with the exception 
of the omission of the following operational, monitoring, 
recordkeeping, and corrective action requirements related either to 
temperature and/or oxygen or nitrogen: 40 CFR 60.34f(c), 60.36f(a)(5), 
60.37f(a)(2) and (3), 60.38f(k), and 60.39f(e)(2) and (5). Upon 
promulgation of the Federal plan in accordance with 40 CFR 60.27(c), 
the EPA plans to update 40 CFR part 62, subpart F, to identify the 
omitted requirements (40 CFR 60.34f(c), 60.36f(a)(5), 60.37f(a)(2) and 
(3), 60.38f(k), and 60.39f(e)(2) and (5)) that MSW landfills in 
California will have to implement in addition to the approved portion 
of the California plan.\2\ Our proposed action at 84 FR 36863 (July 30, 
2019) contains more information on the plan and our evaluation, and we 
incorporate that information by reference here.
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    \2\ The EPA is required to promulgate regulations setting forth 
a federal plan on or before November 6, 2019. State of California v. 
EPA, No. 4:18-cv-03237 (N.D. Cal. 2019) (Court Order issued May 6, 
2019). Pending before the court is a motion to vacate the deadline 
for promulgation of a federal plan, based on EPA's recent 
finalization of revisions to emission guidelines implementing 
regulations. Id., Motion to Amend Order and Judgment (filed August 
26, 2019) (citing 84 FR at 44556 (codified at 40 CFR 60.30f(b)).
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II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period we received one comment, from CARB.
    Comment: CARB stated that California law currently satisfies what 
the EPA identified as deficiencies in its July 30, 2019 proposed 
partial disapproval of the California plan. In support of its argument, 
CARB submitted rules with its comment regarding the regulation of MSW 
landfills from 32 of California's 35 local air districts, and 
documentation regarding public hearings related to their adoption. CARB 
also submitted a table summarizing the rules and a previously submitted 
letter addressing questions the EPA had asked about the California 
plan.\3\ CARB requests that the EPA withdraw its proposed partial 
disapproval of the California plan and approve it in its entirety, or, 
in the alternative, that the EPA incorporate the provisions of the 
rules and regulations into the State's plan and then fully approve the 
plan.
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    \3\ Appendix C to CARB's comment letter is entitled, ``Air 
District Rules, Regulations, and Permit Conditions.'' The EPA found 
district rules and regulations in Appendix C, but was unable to find 
permit conditions in the document.
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    Response: Pursuant to 40 CFR 60.24(c), a state plan must contain 
standards of performance that are no less stringent than the 
corresponding emission guideline(s) specified in subpart C of part 60. 
Subpart Cf sets

[[Page 1122]]

forth clear mandatory requirements for an approvable state plan. 
Sections 60.34f, 60.36f, 60.37f, 60.38f, and 60.39f each include the 
specific phrase: ``For approval, a state plan must include,'' which is 
then followed by a reference to specific requirements such as 
``provisions for the operational standards in this section,'' ``the 
compliance provisions in this section,'' ``the monitoring provisions in 
this section,'' ``the reporting provisions listed in this section,'' or 
``the recordkeeping provisions in this section.'' As explained in our 
proposed action, the California plan, as submitted, omits these 
provisions.
    We note that CARB's comment does not dispute that the California 
state plan lacks the operational, monitoring, recordkeeping, and 
corrective action requirements previously identified by EPA, namely, 
those set forth in 40 CFR 60.34f(c), 60.36f(a)(5), 60.37f(a)(2) and 
(3), 60.38f(k), and 60.39f(e)(2) and (5). Nor does CARB dispute that 
the California State plan, which incorporates the California 
regulation, ``Methane Emissions from Municipal Solid Waste Landfills,'' 
does not itself contain these operational, monitoring, recordkeeping, 
and corrective action requirements.
    Instead, CARB argues that other provisions that ``are already part 
of California law,'' and that appear in the rules and regulations of 32 
of California's 35 air districts, can stand in lieu of what EPA 
identified as the operational, monitoring, recordkeeping, and 
corrective action requirements that are omitted from the California 
State plan. Although CARB provided these rules and regulations in an 
appendix to its comments, the rules and regulations are not part of 
CARB's submitted plan, and the EPA does not have authority to 
incorporate all or part of them into the plan on behalf of CARB. The 
EPA cannot approve a state plan that omits certain required elements on 
the basis that some other local regulation or permit that is not part 
of the submitted plan contains provisions that may resemble those 
elements. In accordance with CAA section 111(d)(1)(B),\4\ EPA's 
implementing regulations,\5\ and the Emission Guidelines,\6\ the 
required elements must be in the plan itself.
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    \4\ 42 U.S.C. 7411(d)(1)(B) (state plans must ``provide[] for 
the implementation and enforcement of [] standards of 
performance'').
    \5\ 40 CFR 60.25(b) (state plans must include monitoring, 
recordkeeping, and reporting requirements).
    \6\ See, e.g., 40 CFR 60.36f (``For approval, a state plan must 
include the compliance provisions in this section.'').
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    Additionally, even if CARB had properly incorporated the rules and 
regulations into its plan, the EPA notes that the rules and regulations 
for the most part cross-reference older EPA regulations that apply to 
MSW landfills for which the applicability threshold is 50 megagrams/
year (Mg/yr) of non-methane organic compounds (NMOC) emissions. Those 
older EPA regulations do not apply to MSW landfills whose emissions of 
NMOC are below 50 Mg/yr but above the currently applicable threshold in 
Subpart Cf, 34 Mg/yr.\7\ This discrepancy means that landfills in 
California with NMOC emissions greater than 34 Mg/yr but less than 50 
Mg/yr would not be required to comply with the requirements of 40 CFR 
60.34f, 60.36f, 60.37f, 60.38f, and 60.39f.\8\
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    \7\ Attachment A to CARB's letter indicates that many local 
rules cross-reference 40 CFR part 60, subparts Cc and WWW. The 
applicability threshold in subparts Cc and WWW is 50 Mg/yr NMOC. See 
40 CFR 60.33c(e)(2)(i) and 60.752(b)(2), respectively.
    \8\ As a condition for state plan approval, subpart Cf requires 
that a state's regulations control emissions at 34 Mg/yr or higher, 
regardless of whether a state has landfills at 34 Mg/yr. The EPA 
estimates, however, that 15 to 20 landfills in California fall 
within the range of 34 Mg/yr to 50 Mg/yr. See Emission Inventory for 
year 2019: MSW Landfill Federal Plan.
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    Many of the rules cited by CARB are requirements for 40 CFR part 70 
operating permit programs pursuant to title V of the CAA. Again, the 
EPA does not have the authority to incorporate California's local 
rules, regulations, and permit conditions into its state plan. 
Moreover, it is unclear whether a state's part 70 program or permit 
conditions--even if they were properly incorporated into a state plan--
could provide the requisite elements for an approvable state plan.
    In addition, CARB's comment included problematic requests to the 
EPA to take certain procedural steps regarding the submitted local 
rules. Again, the EPA lacks the authority to incorporate regulations 
into the California plan; only California can revise its plan by 
incorporating appropriate measures and then submit the revised plan to 
the EPA. The EPA can then review the revised plan as submitted to 
determine whether it is approvable.\9\
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    \9\ CARB's letter appears to acknowledge that additional 
procedural steps, at the state and/or local level, may be necessary 
for the local rules to be ``properly'' incorporated into the 
California plan. See CARB Letter at page 2 and Attachment A at page 
8.
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III. EPA Action

    For the reasons discussed in our proposed action and above, as 
authorized in 40 CFR 60.27(b), the EPA is partially approving and 
partially disapproving the plan submitted by CARB. The EPA's partial 
approval of the California plan is limited to those landfills that meet 
the criteria established in subpart Cf.

IV. Incorporation by Reference

    In accordance with the requirements of 1 CFR 51.5, the EPA is 
finalizing regulatory text that includes the incorporation by reference 
of 17 CCR 95460-95476, (collectively, subarticle 6 entitled ``Methane 
Emissions from Municipal Solid Waste Landfills,'') operative June 17, 
2010, which is part of the CAA section 111(d) plan applicable to 
existing MSW landfills in California as discussed in section I of this 
preamble. The regulatory provisions in 17 CCR 95460-95476 establish 
requirements to reduce air emissions of methane and other landfill 
gases from all MSW landfills located in California that received solid 
waste after January 1, 1977. The regulations include measures related 
to emission standards, installation of emission control systems, 
testing, monitoring, reporting, and recordkeeping provisions. The EPA 
has made, and will continue to make, the entire California plan 
generally available through www.regulations.gov, Docket No. EPA-R09-
OAR-2019-0393, and at the EPA Region IX Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). This incorporation by reference 
has been approved by the Office of the Federal Register and the plan is 
federally enforceable under the CAA, and is limited to those sources 
subject to 40 CFR part 60, subpart Cf, as of the effective date of this 
final rulemaking.

V. Statutory and Executive Order Reviews

    Under the CAA, the EPA Administrator is required to approve section 
111(d) state plan submissions that comply with the provisions of the 
Act and applicable Federal regulations. 42 U.S.C. 7411(d); 40 CFR part 
60, subparts B and Cf; and 40 CFR part 62, subpart A. Thus, in 
reviewing CAA section 111(d) state plan submissions, the EPA's role is 
to approve state choices, provided that they meet the criteria of the 
Act and implementing regulations. Accordingly, this action merely 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under

[[Page 1123]]

Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 
3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because this action is not significant under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the CAA section 111(d) plans are not approved to apply 
in Indian country, as defined at 18 U.S.C. 1151, located in the state. 
As such, this rule does not have tribal implications, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), and it will not 
impose substantial direct costs on tribal governments or preempt tribal 
law.
    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. The EPA will submit a report containing this action 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. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 9, 2020. Filing a petition for 
reconsideration by the EPA Administrator of this final rule does not 
affect the finality of this action 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, Landfills, 
Incorporation by reference, Intergovernmental relations, Methane, 
Ozone, Reporting and recordkeeping requirements, Sulfur Oxides, 
Volatile organic compounds.

    Dated: September 6, 2019.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 62 as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

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

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

Subpart F--California

0
2. Amend Sec.  62.1100 by:
0
a. In paragraph (b)(3)(i) introductory text, removing ``rules;'' and 
adding ``rules.'' in its place;
0
b. Redesignating paragraphs (b)(3)(i)(a) through (c) as paragraphs 
(b)(3)(i)(A) through (C), respectively;
0
c. In paragraph (b)(3)(vi) introductory text, removing the semicolon 
and adding a period in its place;
0
d. Redesignating paragraphs (b)(3)(vi)(a) through (d) as paragraphs 
(b)(3)(vi)(A) through (D), respectively; and
0
e. Adding paragraphs (b)(7) and (d).
    The additions read as follows:


Sec.  62.1100  Identification of plan.

* * * * *
    (b) * * *
    (7) State of California's Section 111(d) Plan for Existing 
Municipal Solid Waste Landfills, including 17 CCR 95460-95476 
(collectively, subarticle 6 entitled ``Methane Emissions from Municipal 
Solid Waste Landfills,'') operative June 17, 2010, submitted on May 30, 
2017 by the California Air Resources Board to implement 40 CFR part 60, 
subpart Cf. The Plan does not include provisions relating to 40 CFR 
60.34f(c), 60.36f(a)(5), 60.37f(a)(2) and (3), 60.38f(k), and 
60.39f(e)(2) and (5). The Plan includes the regulatory provisions cited 
in paragraph (d) of this section, which the EPA incorporates by 
reference.
* * * * *
    (d)(1) The material incorporated by reference in this section was 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the material 
at the EPA Region 9 office, 75 Hawthorne Street, San Francisco, CA 
94105, 415-947-8000 or from the source listed in paragraph (d) of this 
section. Copies may be inspected at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (2) State of California, Barclays Official California Code of 
Regulations.
    (i) 17 CCR, Division 3. Air Resources, Chapter 1. Air Resources 
Board, Subchapter 10. Climate Change, Article 4. Regulations to Achieve 
Greenhouse Gas Emission Reductions, Subarticle 6. Methane Emissions 
from Municipal Solid Waste Landfills, sections 95460-95476, operative 
June 17, 2010.
    (ii) [Reserved]

0
3. Section 62.1115 is revised to read as follows:


Sec.  62.1115  Identification of sources.

    (a) The plan in Sec.  62.1100(b)(5) applies to existing municipal 
solid waste landfills for which construction, reconstruction, or 
modification was commenced before May 30, 1991, as described in 40 CFR 
part 60, subpart Cc.
    (b) The plan in Sec.  62.1100(b)(7) applies to existing municipal 
solid waste landfills that commenced construction, modification or 
reconstruction on or before July 17, 2014.
    (1) After February 10, 2020, the substantive requirements of the 
municipal solid waste landfills State plan are contained in paragraph 
(b) of this section and owners and operators of municipal solid waste 
landfills in

[[Page 1124]]

California must comply with the requirements in paragraph (b) of this 
section.
    (2) [Reserved]
    (c)(1) The effective date of the plan in Sec.  62.1100(b)(5) by the 
California Air Resources Board for municipal solid waste landfills is 
November 22, 1999.
    (2) The effective date of the plan in Sec.  62.1100(b)(7) by the 
California Air Resources Board for municipal solid waste landfills is 
February 10, 2020.

[FR Doc. 2019-28235 Filed 1-8-20; 8:45 am]
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