[Federal Register Volume 86, Number 36 (Thursday, February 25, 2021)]
[Proposed Rules]
[Pages 11485-11488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03054]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2020-0431, FRL-10016-26-Region 2]


Approval and Promulgation of State Plans for Designated 
Facilities; New York; Section 111(d) State Plan for MSW Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to New York's section 111(d) state plan (the ``State 
Plan'') for Municipal Solid Waste (MSW) landfills, pursuant to the 
Clean Air Act (``CAA'' or the ``Act''). The proposed State Plan 
revision consists of amendments to New York's ``Landfill Gas Collection 
and Control Systems for Certain Municipal Solid Waste Landfills,'' as 
well as attendant revisions to ``General Provisions.'' The primary goal 
of this regulation is to implement and enforce the Emission Guidelines 
(EG) promulgated by the EPA for MSW landfills on August 29, 2016. The 
goal of the revised federal EG is to reduce emissions of landfill gas 
containing Non-methane Organic Compounds (NMOC) and methane by lowering 
the emissions threshold at which an existing MSW landfill must install 
and operate a Gas Collection and Control System (GCCS). The emission 
threshold reduction will address air emissions from all affected MSW 
landfills, including NMOC and methane. The reduction of emissions will 
improve air quality and protect the public health from exposure to 
landfill gas emissions.

DATES: Written comments must be received on or before March 29, 2021.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2020-0431 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI), 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official 
comment, and should include discussion of all points you wish to make. 
The EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file-sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental 
Protection Agency, Region 2, 290 Broadway, New York, New York 10007-
1866, at (212) 637-3378, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The Supplementary Information section is 
arranged as follows:

I. EPA Action
    A. What action is the EPA proposing today?
    B. Who is affected by New York's revised State Plan?
II. Background
    A. What is a state plan?
    B. Why is the EPA requiring New York to submit a revised MSW 
landfill state plan?
    C. What are the requirements for a revised MSW landfill state 
plan?
    D. What revisions did the EPA make to 40 CFR part 60 subpart Cf 
on August 29, 2016?
III. New York's State Plan
    A. What is contained in the New York's revised State Plan?
    B. What approval criteria did we use to evaluate New York's 
revised State Plan?
IV. Incorporation by Reference
V. What is the EPA's conclusion?
VI. Statutory and Executive Order Reviews

I. EPA Action

A. What action is the EPA proposing today?

    The EPA is proposing to approve the State of New York's revised 
section 111(d) state plan for MSW landfills, for the purpose of 
incorporating the adoption of Title 6 of the New York Codes, Rules, and 
Regulations (NYCRR) Part 208. In a letter dated December 11, 2019, the 
New York State Department of Environmental Conservation (NYSDEC), on 
behalf of the State of New York, submitted to the EPA a state plan 
entitled, ``Landfill Gas Collection and Control Systems for Certain 
Municipal Solid Waste Landfills,'' which contains a New York State-
approved regulation for the purpose of lowering the emissions threshold 
within MSW landfills through the installation of Gas Collection and 
Control Systems (GCCS). The State Plan incorporates by reference the 
revised EG codified at 40 CFR part 60 subpart Cf, which applies to MSW 
landfills that have accepted waste at any

[[Page 11486]]

time since November 8, 1987, and commenced construction, 
reconstruction, or modification on or before July 17, 2014.
    In accordance with the CAA, New York previously submitted a state 
plan on October 8, 1998, which was approved by the EPA on July 19, 
1999. (See 64 FR 38582). New York submitted a revised State Plan dated 
December 11, 2019 to fulfill the requirements of section 111(d) of the 
Act. The EPA is proposing to approve New York's State Plan revision 
since it applies to major sources of NMOC and methane emissions. This 
proposed approval, once finalized and effective, will render New York's 
revised MSW rule federally enforceable.

B. Who is affected by New York's revised State Plan?

    New York's revised State Plan applies to existing MSW landfills 
with a design capacity threshold of 2.5 million megagrams (Mg) and 2.5 
million cubic meters of waste. Existing MSW landfills are landfills 
that have accepted waste after November 8, 1987, and began 
construction, reconstruction, or modification on or prior to July 17, 
2014.

II. Background

A. What is a state plan?

    Section 111 of the CAA, ``Standards of Performance for New 
Stationary Sources,'' directs the EPA to establish emission standards 
for stationary sources of air pollution that could potentially endanger 
the public health or welfare. These standards are referred to as New 
Source Performance Standards (NSPS). Section 111(d) addresses the 
process by which the EPA and states regulate standards of performance 
for existing sources. When NSPS are promulgated for new sources, 
section 111(d) and EPA regulations require that the EPA publish an 
Emission Guideline (EG) to regulate the same pollutants from existing 
facilities. States in which existing facilities are found must develop 
a state plan to adopt the requirements of the EG into the state's body 
of regulations. States must also include in their state plans other 
requirements, such as inventories, legal authority, reporting and 
recordkeeping, and public participation documentation, to demonstrate 
their ability to enforce the state plans. State plan submittal and 
revisions under CAA section 111(d) must be consistent with the 
applicable EG, in this case 40 CFR part 60 subpart Cf, and the 
requirements of 40 CFR part 60 subpart B, and part 62 subpart A. Under 
CAA section 111(d), states are required to submit state plan revisions 
within three years after promulgation of the EPA's emission guidelines 
in order to incorporate the federal provisions, unless otherwise 
specified within the emission guidelines. The original deadline 
specified within 40 CFR part 60 subpart Cf for a state plan to be 
submitted to the EPA was May 30, 2017; as amended on August 26, 2019, 
the new deadline to submit a state plan became August 29, 2019. See 40 
CFR 60.30f(b); 84 FR 44547, 44556 (Aug. 26, 2019).

B. Why is the EPA requiring New York to submit a revised MSW landfill 
state plan?

    On March 12, 1996, the EPA promulgated federal Emission Guidelines 
(EG), codified at 40 CFR part 60 subpart Cc, ``Standards of Performance 
for New Stationary Sources and Guidelines for Control of Existing 
Sources: Municipal Solid Waste Landfills.'' 61 FR 9905 (Mar. 12, 1996). 
Under this EG, a state plan must include the installation of a gas 
collection and control system at each MSW landfill that accepted waste 
after November 8, 1987, has a design capacity greater than or equal to 
2.5 million Mg and 2.5 million cubic meters, and that emits NMOC at a 
rate of 50 Mg per year or more. See 40 CFR 60.33c(b). In accordance 
with section 111 of the CAA, on September 24, 2001, the NYSDEC 
promulgated 6 NYCRR Part 208, ``Landfill Gas Collection and Control 
Systems for Certain Municipal Solid Waste Landfills,'' in compliance 
with the EPA's federal EG for MSW landfills 40 CFR part 60 subpart Cc.
    Due to the significant changes within the landfill industry, such 
as increased scientific understanding of landfill gas emissions, and 
changes in operation practices, as well as increase in landfill size 
and age, the EPA determined that it was appropriate to update the 1996 
EG. As a result, on August 29, 2016, the EPA promulgated a revised EG, 
codified at 40 CFR part 60 subpart Cf, entitled, ``Emission Guidelines 
and Compliance Times for Municipal Solid Waste Landfills.'' See 81 FR 
59275 (Aug. 29, 2016). The revised EG updated the control requirements, 
monitoring, reporting, and recordkeeping provisions for existing MSW 
landfill sources. The revised EG is designed to significantly reduce 
emissions of landfill gas containing NMOC and methane by further 
reducing the emissions threshold at which a landfill must install and 
operate a GCCS. In order to continue complying with the Act and the 
newly adopted EG, on August 5, 2019, New York adopted its revised 6 
NYCRR Part 208, ``Landfill Gas Collection and Control Systems for 
Certain Municipal Solid Waste Landfills,'' and amended Part 200, 
``General Provisions,'' with an effective date of September 4, 2019. 
The purpose of the revisions was to incorporate by reference the 
revised EG for MSW landfills promulgated at 40 CFR part 60 subpart Cf.
    On August 26, 2019, the EPA finalized a rule (referred to as the 
``Ba Rule'') that amended the revised EG codified at 40 CFR part 60 
subpart Cf. See 84 FR 44547 (Aug. 26, 2019). In a separate regulatory 
action, entitled, ``Revisions to Emission Guidelines Implementing 
Regulations,'' the EPA finalized revisions to the old implementing 
regulations for EG. See 84 FR 32520 (Jul. 8, 2019). Specifically, the 
new implementing regulations at 40 CFR part 60 subpart Ba amended the 
timing requirements in 40 CFR 60.23 and 60.27 for the submission of 
state plans, the EPA's review of state plans, and the issuance of 
federal plans. See 40 CFR 60.23a and 60.27a. Since New York's revised 
State Plan was submitted after the final Ba rule amendments, the plan 
was evaluated in accordance with the new implementing regulations. The 
EPA is proposing to approve New York's State Plan since it is at least 
as protective as the standards set forth in the EG, as amended on 
August 29, 2016, and is in accordance with the new Ba implementing 
regulations.

C. What are the requirements for a revised MSW landfill state plan?

    Under the new Ba implementing regulations, a section 111(d) state 
plan submittal must meet the completeness requirements of 40 CFR part 
60 subpart Ba, sections 60.23a and 60.27a(g). Section 60.27a(g) states 
in relevant part, ``Any plan or plan revision that a State submits to 
the EPA, and that has not been determined by the EPA by the date 6 
months after receipt of the submission to have failed to meet the 
minimum criteria, shall on that date be deemed by operation of law to 
meet such minimum criteria.'' See 40 CFR 60.27a(g)(1). New York 
submitted its plan to the EPA on December 11, 2019. Since more than six 
months have passed since the date of the plan submission, the plan is 
deemed to have met the completeness criteria contained in 40 CFR 
60.27a(g).
    The EPA has reviewed the substance of New York's revised State Plan 
in accordance with the EG at 40 CFR part 60 subpart Cf, as amended on 
August 29, 2016. Subpart Cf establishes EG and compliance times for the 
control of designated pollutants from certain

[[Page 11487]]

designated MSW landfills. Subpart Cf requires that MSW landfills that 
have a design capacity of greater than or equal to 2.5 Mg by mass and 
2.5 million cubic meters by volume incorporate a GCCS if they exceed 
the emission threshold. The amended EG apply to landfills that 
commenced construction, reconstruction, or modification on or before 
July 17, 2014, and have accepted waste at any time since November 8, 
1987. States with affected facilities are required to submit a section 
111(d) state plan to implement and enforce all provisions of the EG, as 
amended on August 29, 2016, and codified at subpart Cf.

D. What revisions did the EPA make to the EG, as amended on August 29, 
2016, and codified at 40 CFR part 60 subpart Cf?

    Landfills are the third largest source of human-related methane 
emissions in the United States.\1\ Methane is a potent greenhouse gas 
that is 28 to 36 times more effective than carbon dioxide at trapping 
heat in the atmosphere over a 100-year period.\2\ For these reasons, 
and due to significant changes within the landfill industry that 
allowed for additional reduction of emissions at a reasonable cost, the 
EPA updated its emission guidelines that were adopted in 1996 on August 
29, 2016. In addition to revisions to the EG and compliance times for 
existing MSW landfills, the control requirements, monitoring, 
reporting, and record-keeping provisions were also updated.
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    \1\ ``[MSW] landfills are the third-largest source of human-
related methane emissions in the United States, accounting for 
approximately 15.1 percent of these emissions in 2018.'' See https://www.epa.gov/lmop/basic-information-about-landfill-gas.
    \2\ Id.
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    The revised EG is designed to further reduce emissions of landfill 
gas containing NMOC and methane. The revised EG lowers the emission 
threshold at which a landfill must install and operate a GCCS. Under 
the 1996 EG, the emission threshold at which MSW landfills were 
required to install and operate a GCCS was 50 Mg/year of NMOC. By 
contrast the revised EG reduces the threshold for installing a GCCS to 
34 Mg/year for active MSW landfills. Closed MSW landfills will retain 
the threshold of 50 Mg/year of NMOC for installing a GCCS. Other major 
revisions to the EG include revisions to surface emissions monitoring, 
wellhead monitoring, and address the definition of landfill gas 
treatment system.
    A summary of major provisions in the revised EG include the 
following:
     Retention of the design capacity threshold of 2.5 million 
Mg and 2.5 million cubic meters of waste in order for the rule to 
apply.
     A new alternative modeling procedure, referred to as 
``Tier 4,'' used to determine when to install a GCCS.
     Clarification of the definition of Landfill Gas Treatment 
and use of treated landfill gas.
     Removal of wellhead oxygen/nitrogen operational standards 
and corresponding corrective action for their exceedances.
     Addition of an electronic reporting requirement using the 
EPA's electronic reporting tool (ERT).
     Updated criteria for capping, removing, or decommissioning 
a portion of the GCCS in low-producing landfill gas areas.
     Addition of a requirement that landfills must conduct 
surface emission monitoring (SEM) at all cover penetrations and 
openings within the area of the landfill in which the waste has been 
placed and where a GCCS is required.
     New provisions for startup, shutdown, and malfunction 
periods.
    New York's revised State Plan, dated December 11, 2019, for 
existing MSW landfills, incorporates by reference all the revisions to 
the EG as of August 29, 2016, codified at 40 CFR part 60 subpart Cf.

III. New York's State Plan

A. What is contained in the New York revised State Plan?

    In order to implement the 2016 amended EG for existing MSW 
landfills located in New York state, NYSDEC submitted its revised 
section 111(d) state plan for existing MSW landfills, dated December 
11, 2019, which made revisions to Title 6 of the NYCRR, at Parts 200 
and 208.
    On August 5, 2019, New York repealed previously enacted 6 NYCRR 
Part 208, and replaced it with a newly adopted Part 208, ``Landfill Gas 
Collection and Control Systems for Certain Municipal Solid Waste 
Landfills,'' and simultaneously revised Part 200, ``General 
Provisions.'' \3\ The majority of MSW landfills that are regulated by 
Part 208 are located in rural communities throughout New York state. 
The revised rule is designed to reduce emissions of NMOC and methane 
from these landfills by lowering the emission threshold at which the 
owners and operators of these landfills must install a GCCS. The 
emission guidelines and revised Part 208 retain the formal design 
capacity threshold of 2.5 Mg and 2.5 million cubic meters of waste for 
MSW landfills. Part 208 defines existing MSW landfills as landfills 
that accepted waste after November 8, 1987 and began construction, 
reconstruction, or modification prior to July 17, 2014. Consistent with 
the revised EG promulgated at 40 CFR part 60 subpart Cf, the trigger 
threshold for installing a GCCS in Part 208 is reduced from 50 Mg/year 
to 34 Mg/year of NMOC for active MSW landfills. Since closed landfills 
do not produce as much landfill gas as an active landfill, the trigger 
threshold for installing a GCCS remains at 50 Mg/year of NMOC for 
closed MSW landfills. Landfill operators and owners had thirty days 
from the adoption date of the revised Parts 200 and 208 to comply with 
the revised regulation, or until September 4, 2019. In order to be 
considered for the ``closed landfill subcategory,'' MSW landfills had 
to submit a closure report within one year after the revised Part 208 
became effective, i.e., by September 4, 2020. New York's revised rule 
also includes the alternative site-specific emission threshold 
determination methodology to determine when a landfill must install a 
GCCS, referred to as Tier 4. Tier 4 is based on SEM and requires four 
consecutive quarters of surface emissions below 500 parts per million 
(ppm) of methane, followed by quarterly SEM reports for active 
landfills and annual SEM reports for closed landfills. Both active and 
closed landfills are required to notify delegated authorities thirty 
days prior to conducting the Tier 4 test so that officials can be 
present to observe the SEM, keep up-to-date records of the SEM readily 
accessible for at least five years, and send annual reports to NYSDEC 
of the SEM monitoring results.
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    \3\ New York previously codified landfill regulations at NYCRR 
Part 360, ``Municipal Solid Waste Landfill Permitting,'' which were 
included in New York's section 111(d) state plan that was submitted 
on October 8, 1998 and approved by the EPA on July 19, 1999. (See 64 
FR 38582, 38585). To avoid duplication between NYSDEC's Division of 
Air Resources and Division of Solid and Hazardous Materials, and to 
add compliance milestones pursuant to 40 CFR 60.23, NYSDEC 
transferred the EG requirements from NYCRR Part 360 to Part 208 in 
2001. No revisions to the State Plan were made at that time to 
reflect the regulatory transfer within NYSDEC.
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    NYSDEC's revised Part 208 also incorporates the removal of certain 
wellhead oxygen/nitrogen operational standards in 40 CFR part 60 
subpart Cf. Owners and operators are no longer required to report or 
take corrective action based on exceedances of specified operational 
standards for nitrogen/oxygen levels at wellheads. However, landfill 
owners or operators

[[Page 11488]]

must continue to monitor and maintain records of nitrogen/oxygen levels 
on a monthly basis, in order to make any necessary adjustments to the 
GCCS. New York's revised Part 208 adopts the federally mandated 
electronic reporting requirements, including, certain performance test 
reports, NMOC emission rate reports, annual reports, Tier 4 emission 
rate reports, and wet landfilling practices. The test reports are 
submitted through the EPA web portal, known as the Central Data 
Exchange (CDX), using the Compliance and Emissions Data Reporting 
Interface (CEDRI, or the ERT). New requirements for landfill gas 
treatment were developed within the revised Part 208 in compliance with 
the federal EG. Landfills are required to develop a site-specific 
treatment system monitoring plan, and keep records demonstrating 
effective monitoring of filtration, dewatering, and compression system 
performance. The treatment system monitoring plan must be submitted as 
part of a Title V permit application, and the monitoring parameters 
would be included in the permit as applicable enforceable conditions. 
Accordingly, the EPA proposes to approve New York's revised State Plan 
for existing MSW landfills, since it includes all elements required by 
the amended EG in 40 CFR part 60 subpart Cf.

B. What approval criteria did we use to evaluate New York's revised 
State Plan?

    The EPA reviewed the substance of New York's revised State Plan for 
approval based on the requirements set forth in 40 CFR 60.24 through 
60.26, ``Subpart B-Adoption and Submittal of State Plans for Designated 
Facilities;'' 40 CFR 60.23a, ``Adoption and submittal of State plans; 
public hearings;'' 40 CFR 60.27a, ``Actions by the Administrator;'' 40 
CFR part 60 subpart Cf, ``Emission Guidelines and Compliance Times for 
Municipal Solid Waste Landfills;'' and 40 CFR part 62 subpart A, 
``General Provisions'' for ``Approval and Promulgation of State Plans 
for Designated Facilities and Pollutants.''

IV. Incorporation by Reference

    In this document, the EPA is also proposing to incorporate by 
reference NYSDEC rules discussed in section III of this preamble in 
accordance with the requirements of 1 CFR 51.5. The EPA has made, and 
will continue to make, these materials available through the docket for 
this action, EPA-R02_OAR-2020-0431, at http://www.regulations.gov, and 
at the EPA Region II Office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).

V. What is the EPA's Conclusion?

    The EPA has determined that New York's revised State Plan meets all 
the applicable approval criteria in 40 CFR part 60 subpart Cf, 40 CFR 
60.24 through 60.26, 40 CFR 60.23a; 40 CFR 60.27a, and 40 CFR part 62 
subpart A. Therefore, the EPA is proposing to approve New York State's 
section 111(d) revised State Plan for existing MSW landfills, which 
includes revisions to 6 NYCRR Part 208, ``Landfill Gas Collection and 
Control Systems for Certain Municipal Solid Waste Landfills,'' and Part 
200, ``General Provisions,'' with an effective date of September 4, 
2019.

VI. Statutory and Executive Order Reviews

    Pursuant to EPA regulations, the Administrator may approve a plan 
or any portion thereof upon a determination that it meets sections 
111(d) and 129 of the Act and applicable regulations. See 40 CFR 62.02.
    Accordingly, this action, if finalized, would merely approve state 
law that meets federal requirements, and would not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action, if finalized:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735 (Oct. 4, 1993)); and Executive Order 13563 (76 FR 
3821 (Jan. 21, 2011));
     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, as 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 (Aug. 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 (Pub. L. 104-
113) 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 (Feb. 16, 1994)).
    In addition, this proposed rule is not approved to apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications, and will 
not impose substantial direct compliance costs on tribal governments, 
or preempt tribal law, as specified by Executive Order 13175 (65 FR 
67249 (Nov. 9, 2000)).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Landfills, Reporting and recordkeeping requirements, Waste 
treatment and disposal.

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

    Dated: February 10, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.
[FR Doc. 2021-03054 Filed 2-24-21; 8:45 am]
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