[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Rules and Regulations]
[Pages 46989-46992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17292]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2020-0431, FRL-8851-02-Region 2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 State Plan revision consists of 
amendments to ``Landfill Gas Collection and Control Systems for Certain 
Municipal Solid Waste Landfills,'' as well as attendant revisions to 
the ``General Provisions.'' New York has implemented this regulation to 
incorporate by reference the revised Emission Guideline (EG) 
promulgated by the EPA for existing MSW landfills on August 29, 2016. 
The purpose of the revised Emission Guideline is to reduce emissions of 
landfill gas containing Non-methane Organic Compounds (NMOC) and 
methane by lowering the emission threshold at which an existing MSW 
landfill must install and operate a Gas Collection and Control System 
(GCCS). The emissions 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: This final rule is effective on September 22, 2021. The 
incorporation by reference of certain material listed in the rule is 
approved by the Director of the Federal Register September 22, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R02-OAR-2020-0431. 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., 
confidential business information 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 www.regulations.gov, or please contact the person 
identified in the For Further Information Contact section for 
additional available information.

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].

[[Page 46990]]


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

I. What action is the EPA taking today?
II. What are the details of the EPA's action?
III. What comments were received in response to the EPA's proposed 
action?
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. What action is the EPA taking today?

    The EPA is approving 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 
Emission Guidelines (EG) codified at 40 CFR part 60 subpart Cf, which 
applies to MSW landfills that have accepted waste at any 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 (Jul. 19, 1999). 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 approving New York's State Plan 
revision since it applies to major sources of NMOC and methane 
emissions. This approval, once finalized and effective, will render New 
York's revised MSW rule federally enforceable.

II. What are the details of the EPA's action?

    On March 12, 1996, the EPA promulgated federal Emission Guidelines 
(1996 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.'' See 61 FR 9905 
(Mar. 12, 1996). Under the 1996 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 Megagrams (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, codified at 40 CFR part 60 subpart Cc.
    Due to significant changes within the landfill industry, such as 
increased scientific understanding of landfill gas emissions, changes 
in operation practices, and an increase in the average size and age of 
landfills, 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 contrast to the 1996 EG, the 
revised EG reduces the threshold for installing a GCCS to 34 Mg/year of 
NMOC for active MSW landfills. Meanwhile, closed MSW landfills will 
retain the threshold of 50 Mg/year of NMOC for installing 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.
    In its proposal (see 86 FR 11485 (Feb. 25, 2021)), the EPA 
evaluated New York's State Plan for compliance with regulations at 40 
CFR part 60 subpart Ba governing the timing and completeness 
requirements for the submission of state plans. See 40 CFR 60.23a and 
60.27a. On August 26, 2019, the EPA finalized a rule (referred to as 
the ``Ba Rule'') that amended the EG codified at 40 CFR part 60 subpart 
Cf to incorporate these subpart Ba timing and completeness 
requirements. See 84 FR 44547 (Aug. 26, 2019); 40 CFR 60.30f. However, 
on January 19, 2021, the D.C. Circuit issued a decision vacating these 
requirements of subpart Ba, see Am. Lung Ass'n v. EPA, 985 F.3d 914, 
991-95, and the court subsequently also vacated the Ba Rule in an April 
5, 2021 order, see Environmental Defense Fund v. EPA, No. 19-1222, Dkt. 
1893133. Accordingly, the review of New York's State Plan is no longer 
subject to the timing and completeness requirements of the Ba Rule, and 
the requirements of 40 CFR part 60 subpart B (sections 60.23 and 60.27) 
now apply instead.
    The court's vacatur of the Ba Rule does not affect the 
approvability of New York's State Plan. First, the completeness 
requirements of subpart Ba evaluated at proposal no longer apply, and 
New York's State Plan meets the applicable requirements of 40 CFR 60.23 
and 60.27. Further, the vacatur did not affect the substantive 
requirements of the EG at 40 CFR part 60 subpart Cf.

III. What comments were received in response to the EPA's proposed 
action?

    The EPA received four comments during the 30-day public comment 
period in response to its February 25, 2021 proposed approval of New 
York's State Plan revision. The specific comments may be viewed under 
Docket ID Number EPA-R02-OAR-2020-0431 on the http://www.regulations.gov website. Two public comments, posted on March 2, 
2021 and March 26, 2021, support the EPA's proposed rulemaking to 
approve New York's revised State Plan.
    Two public comments, received on March 28, 2021 and March 29, 2021, 
were submitted by the New York Chapter of the Solid Waste Association 
of North America (SWANA-NY) and the National Waste & Recycling 
Association (NWRA). Both comments are substantially similar and 
acknowledge that New York's State Plan was submitted to the EPA on 
December 11, 2019. However, on March 26, 2020, the EPA promulgated the 
National Emission Standards for Hazardous Air Pollutants: Municipal 
Solid Waste Landfills Residual Risk and Technology Review (NESHAP MSW 
RTTR) (85 FR 17244). This final rule revised the most recent MSW 
Landfill New Source Performance Standards (NSPS) (see 40 CFR part 60 
subpart XXX) and EG (subpart Cf) in order to allow affected MSW 
landfills to demonstrate compliance with the ``major compliance 
provisions'' of the NESHAP (40 CFR part 63 subpart AAAA) in lieu of 
complying with analogous provisions in the NSPS and EG. This revision 
permits affected MSW

[[Page 46991]]

landfills to follow one set of operational, compliance, monitoring, and 
reporting provisions for pressure and temperature measurements. The 
commenters state that since New York's State Plan submittal predates 
the NESHAP MSW RTTR, it does not incorporate the NESHAP MSW RTTR. Both 
commenters recommend that the approval of New York's State Plan be 
contingent on including these changes.
    The NESHAP MSW RTTR does not require affected MSW landfills to 
demonstrate compliance with the ``major compliance provisions'' of the 
NESHAP AAAA in lieu of complying with the NSPS (subpart XXX) and the EG 
(subpart Cf). Instead, sources can, depending on the circumstances, 
demonstrate compliance through either the NESHAP AAAA, the NSPS, or the 
EG. With respect to the EG, the March 26, 2020 revisions to subpart Cf 
permitted, but did not require, states to adopt the updates provided in 
the rule into their section 111(d) state plans. Accordingly, New York's 
State Plan is approvable as submitted, despite the fact that it 
predates the promulgation of the NESHAP MSW RTTR, because it meets all 
of the requirements of 40 CFR part 60 subpart Cf.
    This concludes our response to the comments received. No changes 
have been made to the proposed rule as a result of the comments.

IV. What is the EPA's conclusion?

    The EPA has determined that New York's revised State Plan meets all 
the applicable approval criteria as discussed above and, therefore, the 
EPA is approving New York State's CAA section 111(d) revised State Plan 
for existing municipal solid waste landfills.

V. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with the 
requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by 
reference of the 6 NYCRR Part 208, ``Landfill Gas Collection and 
Control Systems for Certain Municipal Solid Waste Landfills,'' 
regulation described in the amendments to 40 CFR part 62 set forth 
below. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov, Docket No. EPA-R02-
OAR-2020-0431 and in hard copy at the EPA Region 2 Office (please 
contact the person identified in the For Further Information Contact 
section of this preamble for more information).

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, once 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, once 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));
     Is not an Executive Order 13771 (82 FR 9339 (Feb. 3, 
2017)) regulatory action because section 111(d) plan approvals are 
exempted 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, 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 (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 (Feb. 16, 1994)).
    In addition, this 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: August 6, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.

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

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 HH--New York

0
2. Section 62.8104 is revised to read as follows:


Sec.  62.8104   Identification of plan.

    (a) Identification of plan. On December 11, 2019, the New York 
State Department of Environmental Conservation (NYSDEC) submitted to 
the Environmental Protection Agency (EPA) a Clean Air Act revised 
section 111(d) state plan, to incorporate revisions to Title 6 NYCRR 
Parts 208 and 200 for the implementation of 40 CFR part 60, subpart Cf, 
``Emissions Guidelines for Municipal Solid Waste Landfills.''
    (b) Identification of sources. The plan applies to all existing 
municipal solid waste landfills under the jurisdiction of the New York 
State Department of Environmental Conservation that have accepted waste 
after November 8, 1987, and began construction, reconstruction, or 
modification on or prior to July 17, 2014, and have a design capacity 
threshold of 2.5 million megagrams (Mg) and 2.5 million cubic meters, 
as described in 40 CFR 60 subpart Cf.
    (c) Effective date. The effective date of the plan for September 
22, 2021.
    (d) Incorporation by reference. (1) The material incorporated by 
reference in

[[Page 46992]]

this section was approved by the Director of the Federal Register 
Office in accordance with U.S.C. 552(a)(1) and 1 CFR part 51. The 
material is available from the sources identified elsewhere in this 
paragraph. It may be inspected or obtained from the EPA Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866, 212-
637-3378. 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 New York, Department of State, Albany, New York 12231; 
https://dos.ny.gov/state-register.
    (i) 6 NYCRR Part 208: Official Compilation of (New York) Codes, 
Rules and Regulations; Title 6--Environmental Conservation; Part 208--
Landfill Gas Collection and Control Systems for Certain Municipal Solid 
Waste Landfills, effective September 4, 2019.
    (ii) [Reserved]

[FR Doc. 2021-17292 Filed 8-20-21; 8:45 am]
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