[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
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1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et. seq.
Subpart HH--New York
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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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