[Federal Register Volume 86, Number 214 (Tuesday, November 9, 2021)]
[Rules and Regulations]
[Pages 62098-62100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24207]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R08-OAR-2021-0004; FRL-8789-02-R8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Colorado; 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 approving a Clean 
Air Act (CAA or the ``Act'') section 111(d) state plan submitted by the 
Colorado Department of Public Health and Environment (CDPHE or the 
``Department'') on March 23, 2021. This state 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 Colorado state plan 
establishes performance standards and other operating requirements for 
existing MSW landfills within the State of Colorado and provides for 
the implementation and enforcement of those standards and requirements 
by the Department. The EPA is taking this action pursuant to the CAA.

DATES: This rule is effective on December 9, 2021. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of December 9, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2021-0004. 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: Allison Reibach, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-TRM, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6949, [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 July 
1, 2021 proposed rule (86 FR 35044). In that document we proposed to 
approve the Colorado CAA section 111(d) state plan for existing MSW 
landfills as the plan was submitted by the CDPHE on March 23, 2021. The 
EPA's analysis of the Colorado state plan may be found in the 
aforementioned proposed rule and the technical support document (TSD) 
associated with the docket for today's action. Comments on the EPA's 
proposed approval of the state plan for existing MSW landfills were due 
on or before August 2, 2021. We received feedback from two commenters 
during the public comment period opened by the proposed rule. Our 
responses to the comments are addressed in section II. below.

II. Response to Comments

    Comment: Commenter, which represents solid waste management 
professionals, stated that Colorado's state plan should include all 
standards outlined in the Federal Plan Requirements for MSW Landfills 
(40 CFR part 62, subpart OOO), as the Colorado state plan currently 
includes standards from the Emission Guidelines and Compliance Times 
for MSW Landfills (40 CFR part 60, subpart Cf). The commenter cites 
significant differences for ``legacy controlled landfills,'' between 
the state plan and the federal plan, with the federal plan exempting 
``legacy-controlled landfills'' from tasks that they completed under 40 
CFR part 60, subpart WWW; subpart GGG of this part; or a state plan 
implementing 40 CFR part 60, subpart Cc. Without these exemptions, the 
commenter asserts that Colorado's plan indirectly imposes additional 
administrative requirements for these ``legacy controlled landfills'' 
that would not apply if Colorado adopted the language of the federal 
plan. The commenter urges EPA to ask the CDPHE to adopt the federal 
plan standards and withdraw their state plan.
    Response: Section 111(d) of the CAA gives EPA the authority to 
prescribe regulations for states to submit plans that establish 
standards of performance for certain existing sources of air 
pollutants. Section 111(d) plans adress existing sources for any air 
pollutant for which air quality criteria have not been issued or which 
is not included on a list published under section 108(a) of the CAA, 
but to which a standard of performance would apply if such existing 
source were a new source. CAA Section 111(d) also requires states to 
provide in their plans the implementation and enforcement of such 
standards of performance. In addition, CAA section 111(d)(2)(A) 
provides EPA with the authority to establish and enforce a plan in 
cases where the state fails to submit a satisfactory plan. 40 CFR 62.13 
addresses instances where a state has failed to submit a satisfactory 
plan. Commenter should reference 40 CFR 62.13(b) which states, 
``[a]fter June 21, 2021, per paragraph (j) of this section, the 
substantive requirements of the MSW landfills Federal plan are 
contained in subpart OOO of this part and owners and operators of MSW 
landfills must comply with subpart OOO of this part or a state/tribal 
plan implementing 40 CFR part 60, subpart Cf of this chapter . . .''
    As stated in our proposal, Colorado's 111(d) state plan for MSW 
landfills meets all requirements under 40 CFR part 60, subpart Cf of 
this chapter. The commenter does not state that Colorado's 111(d) state 
plan for MSW landfills does not meet the requirements under 40 CFR part 
60, subpart Cf of this chapter, but asks EPA to request that Colorado 
withdraw their state plan

[[Page 62099]]

because it does not contain language for ``legacy-controlled 
landfills.'' EPA is aware of the differences between Colorado's plan 
which meets the requirements for state plans under 40 CFR part 60, 
subpart Cf and the federal plan requirements under 40 CFR part 62, 
subpart OOO. We have discussed these differences in detail with 
Colorado, but whether or not Colorado addresses these changes remains 
at their discretion since Colorado is in compliance with the 
requirements of 40 CFR part 60, subpart Cf. Section 110(k)(3) of the 
CAA requires EPA to approve a plan if it meets all of the CAA 
applicable requirements for state implementation plans. Therefore, we 
are approving Colorado's 111(d) state plan for MSW landfills as meeting 
the requirements for 40 CFR part 60, subpart Cf of this chapter. Upon 
approval of Colorado's 111(d) plan, the Federal plan will no longer 
apply to MSW landfills in the State.
    Comment: Commenter stated that establishing performance standards 
and operating requirements for MSW landfills is a necessary measure in 
tackling air pollution and that air pollutants from landfills can cause 
adverse health effects. Commenter further suggests that addressing 
these existing MSW landfills could help to achieve the National Ambient 
Air Quality Standards (NAAQS) that are often under non-attainment for 
various pollutants including carbon monoxide (CO), sulfur dioxide 
(SO2), nitrogen oxide (NOX), and more. CAA 
section 111(d) requires the EPA to establish procedures for requiring 
states to submit a plan that establishes standards for their existing 
sources. However, Executive Order 12898 states that section 111(d) does 
not provide the EPA with the discretionary authority to address 
disproportionate human health or environmental effects. The EPA's 
mission is to protect the environment and human health, so the 
commenter believes the EPA should have the authority to address these 
matters. The only way to achieve better regulations is for federal 
agencies to hold sources accountable for their emissions. Using 
evidence collected from a nearby MSW landfill of emissions in regard to 
human and environmental health, the EPA could uphold section 111(d) and 
aid in its overall effectiveness.
    Response: 40 CFR part 60, subpart Cf addresses the emission 
guidelines and compliance timeframes for MSW landfills in accordance 
with section 111(d) of the CAA and subpart B. In particular, subpart Cf 
requires CAA 111(d) state plans to address the emissions of landfill 
gas for MSW landfills. Commenter suggests that Colorado's CAA 111(d) 
plan could help Colorado achieve the NAAQS, however that is beyond the 
scope of CAA 111(d) and the regulations for MSW landfills (found in 40 
CFR part 60, subpart Cf). Our authority in reviewing the State's 
submission is limited to evaluating whether it meets the requirements 
of the MSW landfill emission guidelines. We evaluated this in our 
proposal, finding that the State of Colorado met the requirements of 
the MSW landfill emission guidelines for landfill gas. See 86 FR 35044 
(July 1, 2021) and related docket # EPA-R08-OAR-2021-0004. The EPA does 
not, in the context of this action, have the authority to require the 
State to regulate pollutants beyond ``landfill gas,'' which is 
comprised primarily of carbon dioxide and methane, with smaller amounts 
of other gases, including nitrogen, oxygen, and non-methane organic 
compounds. CAA 111(d) state plans implementing the regulations under 
subpart Cf for emission guidelines do not cover the additional 
pollutants named by the commenter.
    EPA acknowledges the commenter's desire for this action to address 
disproportionate human health and environmental effects, and as an 
agency, we strive to incorporate environmental justice considerations 
into our actions and decisions. However, since this action merely 
approves state law as meeting Federal requirements and does not impose 
any additional requirements, this action does not provide EPA with the 
discretionary authority to address disproportionate human health or 
environmental effects. While the commenter states that the only way to 
achieve better regulations is for federal agencies to hold sources 
accountable for their emissions, we believe that we are holding MSW 
landfill sources accountable for their emissions with this Colorado 
plan since the state plan meets the requirements for MSW landfills 
under CAA 111(d) and 40 CFR part 60, subpart Cf.

III. Final Action

    The EPA is finalizing approval of Colorado's CAA section 111(d) 
plan for MSW landfills. The state plan was submitted in full compliance 
with the requirements of 40 CFR part 60, subparts B and Cf. Therefore, 
the EPA is amending 40 CFR part 62, subpart G 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 35044) and discussed in 
detail in the TSD associated with this rulemaking action. The Agency's 
approval is in accordance with the general provisions of plan approval 
found in 40 CFR part 60, subpart B and in part 62, subpart A of that 
Title and is pursuant to the Agency's role under 42 U.S.C. 7411(d). The 
EPA's approval of the Colorado plan is limited to those landfills that 
meet the criteria established in 40 CFR part 60, subpart Cf and grants 
the State authority to implement and enforce the performance standards 
and source requirements of the EG, except in those cases where 
authorities are specifically reserved for the EPA Administrator or his 
designee. Authorities retained by the EPA Administrator are those 
listed 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 5 CCR 1001-8 from the Code of Colorado Regulations (CCR), as 
effective on July 15, 2020. 5 CCR 1001-8 is part of the Colorado CAA 
section 111(d) state plan applicable to existing MSW landfills. The 
regulatory provisions of this section of the CCR incorporate the 
required CAA 111(d) state plan elements required by the EG for existing 
MSW landfills promulgated at 40 CFR part 60, subpart Cf. This 
incorporation establishes emission standards and compliance times for 
the control of air pollutants from certain MSW landfills that commenced 
construction, modification, or reconstruction on or before July 17, 
2014. The emissions standards and compliance times established within 
this CCR section and the Colorado 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, 5 CCR 1001-8 (as well as the Colorado 
state plan documents for existing MSW landfills) generally available 
electronically through www.regulations.gov, Docket No. EPA-R08-OAR-
2021-0004 and 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 CAA, 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);

[[Page 62100]]

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);
     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 Colorado CAA 111(d) state plan for existing MSW 
landfills is not approved to apply on any Indian reservation land or in 
any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the proposed 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 January 10, 2022. 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)).

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.

    Dated: November 1, 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 G--Colorado

0
2. Revise Sec. Sec.  62.1350, 62.1351, and 62.1352 to read as follows:


Sec.  62.1350  Identification of plan.

    Section 111(d) State Plan for Municipal Solid Waste Landfills and 
the associated State regulations contained in the Code of Colorado 
Regulations (CCR) at 5 CCR 1001-8 part A, subpart Cf (incorporated by 
reference, see Sec.  62.1490), submitted by the State on March 23, 
2021.


Sec.  62.1351  Identification of sources.

    The plan applies to all existing municipal solid waste landfills 
under the jurisdiction of the Colorado Department of Public Health and 
Environment 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.  62.1352  Effective date.

    The effective date of the plan for existing municipal solid waste 
landfills is December 9, 2021.
0
3. Add an undesignated center heading and Sec.  62.1490 to read as 
follows:

Incorporation by Reference


Sec.  62.1490  Incorporation by reference.

    (a) The material incorporated by reference in this subpart was 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. All approved 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 Colorado, Colorado Department of State, 1700 Broadway, 
Suite 550, Denver, CO 80290, (303) 894-2200, https://www.sos.state.co.us/CCR/NumericalDeptList.do, Code of Colorado 
Regulations (CCR).
    (1) 5 CCR 1001-8, part A, subpart Cf: Department of Public Health 
and Environment--Air Quality Control Commission--Regulation Number 6--
Standards of Performance for New Stationary Sources--5 CCR 1001-8. Part 
A--Federal Register Regulations Adopted by Reference, Subpart Cf--
Emission Guidelines and Compliance Times for Municipal Solid Waste 
Landfills, 40 CFR part 60, subpart Cf (July 1, 2019), as amended March 
26, 2020; effective July 15, 2020; IBR approved for Sec.  62.1350.
    (2) [Reserved]

[FR Doc. 2021-24207 Filed 11-8-21; 8:45 am]
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