[Federal Register Volume 86, Number 59 (Tuesday, March 30, 2021)]
[Rules and Regulations]
[Pages 16538-16540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06360]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R08-OAR-2020-0516; FRL-10020-22-Region 8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; South Dakota; Control of Emissions From 
Existing Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is approving a Clean 
Air Act (CAA or the ``Act'') section 111(d) state plan submitted by the 
South Dakota Department of Environment and Natural Resources (DENR or 
the ``Department'') on January 3, 2020. This plan was submitted to 
fulfill the requirements of the CAA and is responsive to the EPA's 
promulgation of Emission Guidelines and Compliance Times (EG) for 
existing municipal solid waste (MSW) landfills. The South Dakota state 
plan establishes performance standards and operating requirements for 
existing MSW landfills within the State of South Dakota and provides 
for the implementation and enforcement of those standards and 
requirements by the Department. The EPA is taking this action pursuant 
to requirements of the CAA.

DATES: This rule is effective on April 29, 2021. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of April 29, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2020-0516. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 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 http://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Gregory Lohrke, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-TRM, 1595 Wynkoop Street, 
Denver, Colorado, 80202-1129, (303) 312-6396, [email protected].

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

I. Background

    The background for this action is discussed in detail in our 
October 29, 2020 proposed rule (85 FR 68538). In that document we 
proposed to approve the South Dakota state plan for existing MSW 
landfills as it was submitted by the Secretary of the South Dakota DENR 
on January 3, 2020. Analysis of the South Dakota state plan may be 
found in the aforementioned proposed rule and the technical support 
document (TSD) associated with the docket for today's action.
    We received comments from one commenter during the public comment 
period opened by the proposed rule. Our response to the comments is 
addressed in Section II. below.

II. Response to Comments

    The proposed rule published in the Federal Register at 85 FR 68538 
received comments on Sections I and II of the preamble of that 
publication. The comments relevant to today's action are summarized 
here with the corresponding Agency response.
    Comment: On Section I of the preamble of the proposed rule, the 
commenter broadly questioned the efficacy of both implementing the 
standards and requirements of ``outdated'' EG finalized in 2016, and 
the promulgation of two separate and distinct emission standards--one 
for new and another for existing facilities within the same source 
category.
    Response: The EPA is not statutorily obligated to conduct review 
and revision of EG for existing sources but maintains the discretion to 
do so when appropriate. Changes in best practices and cost 
effectiveness of available technology within the MSW landfill industry 
since the original EG for MSW landfills were promulgated in 1996 
prompted the Agency to review those standards and requirements. The 
review of the 1996 EG allowed EPA to find that a rule revision was 
appropriate and would increase potential for emission reductions at MSW 
landfills as well as streamline implementation of requirements and 
standards for landfill owners and operators. Although the standards and 
requirements promulgated in 2016 are over four years old at this point, 
these major revisions to the EG for MSW landfills are relatively new 
and reflect the accumulation of industry developments over a timeframe 
of 20 years. The EPA is neither statutorily obligated, nor capable, of 
revising EG at a pace faster than the development of new, practical 
control technologies or best practices in emission reductions. Rather, 
the Agency is constrained in its revision of EG by the realities of 
what best system of emissions reduction is available to the regulated 
population, while taking into account the cost and other limiting 
factors affecting implementation of such a system of reductions at 
designated facilities.
    The EPA differentiates regulations for new and existing facilities 
of the same source category under a similar logic. CAA section 111 
authorizes the EPA to develop new source performance standards (NSPS) 
and emission guidelines for existing sources (EG). This distinction in 
performance standards for different source populations acknowledges the 
reality that the best system of emission reduction reasonably available 
to newer and older facilities may be different when considering cost 
and practicability of implementation.
    Comment: The commenter desired a more in-depth review of the 
regulated facilities and the state plan submittal.
    Response: The requested information is available in associated 
documents found in the docket for the proposed

[[Page 16539]]

rule and today's action. The docket, including these supporting 
documents, is reviewable through http://www.regulations.gov.
    This concludes our response to the comments received. No changes 
have been made to the proposed rule as a result of the comments.

III. Final Action

    The EPA is finalizing approval of the South Dakota section 111(d) 
state plan for existing MSW landfills, submitted by the South Dakota 
DENR on January 3, 2020, pursuant to 40 CFR part 60, subparts B, Ba, 
and Cf. Therefore, the EPA is amending 40 CFR part 62, subpart QQ to 
reflect this approval action. This approval is based on the rationale 
provided in section II of the proposed rule for this action (86 FR 
68539) and discussed in detail in the TSD associated with this 
rulemaking action.\1\ The scope of this approval is limited to the 
provisions of 40 CFR parts 60 and 62. The EPA's proposed approval of 
the South Dakota plan is limited to those landfills that meet the 
criteria established in 40 CFR part 60, subpart Cf.
---------------------------------------------------------------------------

    \1\ EPA Document ID No. EPA-R08-OAR-2020-0516-0004, available at 
www.regulations.gov.
---------------------------------------------------------------------------

    The EPA Administrator continues to retain authority for approval of 
alternative methods to determine the nonmethane organic compound 
concentration or a site-specific methane generation rate constant (k), 
as stipulated in 40 CFR 60.30f(c).

IV. Incorporation by Reference

    In accordance with the requirements of 1 CFR 51.5, we are 
finalizing regulatory text that includes the incorporation by reference 
of section 74:36:01:19 and sections 74:36:07:94--145 of the 
Administrative Rules of South Dakota (ARSD) as effective on November 
25, 2019 which are part of the CAA section 111(d) state plan applicable 
to existing MSW landfills in South Dakota. The regulatory provisions of 
these sections of the ARSD incorporate the required 111(d) state plan 
elements required by the EG for existing MSW landfills promulgated 
found at 40 CFR part 60, subpart Cf and establish emission standards 
and compliance times for the control of methane and other organic 
compounds from certain MSW landfills that commenced construction, 
modification, or reconstruction on or before July 17, 2014. The 
emissions standards and compliance times established within these ARSD 
sections and the South Dakota state plan are at least as stringent as 
those required by the EG for existing MSW landfills. The EPA has made, 
and will continue to make, ARSD sections 74:36:01:19 and 74:36:07:94--
145 (as well as the South Dakota 111(d) state plan document for 
existing MSW landfills) generally available electronically through 
www.regulations.gov, Docket No. EPA-R06-OAR-2020-0516 and in hard copy 
at the EPA Region 8 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 Plans are federally enforceable 
under the CAA as of the effective date of this final rulemaking.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the 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 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 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. 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 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 June 1, 2021. Filing a 
petition for reconsideration by the 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)).

[[Page 16540]]

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Landfills, Methane, Ozone, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds.

    Dated: March 23, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
    40 CFR part 62 is amended 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 QQ--South Dakota

0
2. Revise Sec. Sec.  62.10350, 62.10351, and 62.10352 to read as 
follows:


Sec.  62.10350  Identification of plan.

    Section 111(d) State Plan for Existing Municipal Solid Waste 
Landfills and the associated State regulations contained in the 
Administrative Rules of South Dakota (ARSD) at 74:36:01:19 and 
74:36:07:94--145 ARSD (incorporated by reference, see Sec.  62.10353), 
submitted by the State on January 3, 2020.


Sec.  62.10351  Identification of sources.

    The plan applies to all existing municipal solid waste landfills 
under the jurisdiction of the South Dakota Department of Environment 
and Natural Resources for which construction, reconstruction, or 
modification was commenced on or before July 17, 2014, and are subject 
to the requirements of 40 CFR part 60, subpart Cf.


Sec.  62.10352  Effective date.

    The effective date of the plan for existing municipal solid waste 
landfills is April 29, 2021.

0
3. Add Sec.  62.10353 to read as follows:


Sec.  62.10353  Incorporation by reference.

    (a) The material incorporated by reference in this subpart was 
approved by the Director of the Federal Register Office in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. The material may be inspected 
or obtained from the EPA Region 8 office, 1595 Wynkoop Street, Denver, 
CO 80202-1129, 303-312-6312 or from the other sources listed in this 
section. It may also 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.
    (b) State of South Dakota, Legislative Research Council, 5007, 500 
E Capitol Ave. #3, Pierre, SD 57501, (605) 773-3251, https://rules.sd.gov/; Administrative Rules of South Dakota (ARSD). Title 74 
South Dakota Department of Environment and Natural Resources:
    (1) 74:36:01:19 ARSD, Article 74:36--Air Pollution Control Program, 
Chapter 01--Definitions, Section 19--Existing municipal solid waste 
landfill defined, effective November 25, 2019.
    (2) 74:36:07:94 through 145 ARSD, Article 74:36--Air Pollution 
Control Program, Chapter 07--New Source Performance Standards, Sections 
94 through 145, effective November 25, 2019.

[FR Doc. 2021-06360 Filed 3-29-21; 8:45 am]
BILLING CODE 6560-50-P