[Federal Register Volume 63, Number 152 (Friday, August 7, 1998)]
[Rules and Regulations]
[Pages 42235-42238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21030]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[OH116-1a; FRL-6134-5]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Ohio; Control of Landfill Gas Emissions From
Existing Municipal Solid Waste Landfills
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: The USEPA is approving the Ohio State Plan submittal for
implementing the Municipal Solid Waste (MSW) Landfill Emission
Guidelines. The State's plan submittal was made pursuant to
requirements found in the Clean Air Act (CAA). The State's plan was
submitted to USEPA on March 30, 1998, in accordance with the
requirements for adoption and submittal of State plans for designated
facilities in 40 CFR part 60, subpart B. It establishes performance
standards for existing MSW landfills and provides for the
implementation and enforcement of those standards. The USEPA finds that
Ohio's Plan for existing MSW landfills adequately addresses all of the
Federal requirements applicable to such plans. In the proposed rules
section of this Federal Register, the USEPA is proposing approval of,
and soliciting comments on, this approval. If adverse comments are
received on this action, the USEPA will withdraw this final rule and
address the comments received in response to this action in a final
rule on the related proposed rule, which is being published in the
proposed rules section of this Federal Register. A second public
comment period will not be held. Parties interested in commenting on
this action should do so at this time. This approval makes the State's
rule federally enforceable.
DATES: The ``direct final'' is effective on October 6, 1998, unless
USEPA receives adverse or critical written comments by September 8,
1998. If adverse comment is received, USEPA will publish a timely
withdrawal of the rule in the Federal Register informing the public
that the rule will not take effect.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section , Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the requested SIP revision and USEPA's analysis are
available for inspection at the U.S. Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. (Please telephone Randolph O. Cano at (312)
886-6036 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Randolph O. Cano, Environmental
Protection Specialist, Regulation Development Section, Air Programs
Branch (AR-18J), USEPA, Region 5, Chicago, Illinois 60604, (312) 886-
6036.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 111(d) of the CAA, USEPA established procedures
whereby States submit plans to control certain existing sources of
``designated pollutants.'' Designated pollutants are defined as
pollutants for which a standard of performance for new sources applies
under section 111, but which are not ``criteria pollutants'' (i.e.,
pollutants for which National Ambient Air Quality Standards (NAAQS) are
set pursuant to sections 108 and 109 of the CAA) or hazardous air
pollutants (HAPs) regulated under section 112 of the CAA. As required
by section 111(d) of the CAA, USEPA established a process, at 40 CFR
part 60, subpart B, similar to the process required by section 110 of
the CAA (regarding State Implementation Plan (SIP) approval) which
States must follow in adopting and submitting a section 111(d) plan.
Whenever USEPA promulgates a new source performance standard (NSPS)
that controls a designated pollutant, USEPA establishes emissions
guidelines in accordance with title 40 of the Code of Federal
Regulations, Sec. 60.22 (40 CFR 60.22) which contain information
pertinent to the control of the designated pollutant from that NSPS
source category (i.e., the ``designated facility'' as defined at 40 CFR
60.21(b)). Thus, a State's section 111(d) plan for a designated
facility must comply with the emission guideline for that source
category as well as 40 CFR part 60, subpart B.
On March 12, 1996, USEPA published emissions guidelines for
existing MSW landfills (EG) at 40 CFR part 60, subpart Cc (40 CFR
60.30c through 60.36c) and NSPS for new MSW Landfills at 40 CFR part
60, subpart WWW (40 CFR 60.750 through 60.759) (See 61 FR 9905-9929.).
The NSPS and EG regulate MSW landfill emissions, which contain a
mixture of volatile organic compounds (VOCs), other organic compounds,
methane, and HAPs. VOC emissions can contribute to ozone formation
which can result in adverse effects to human health and vegetation. The
health effects of HAPs include cancer, respiratory irritation, and
damage to the nervous system. Methane emissions contribute to global
climate change and can result in fires or explosions when they
accumulate in structures on or off the landfill site. To determine if
control is required, nonmethane organic compounds (NMOCs) are measured
as a surrogate for MSW landfill emissions. Thus, NMOC is considered the
designated pollutant. The designated facility which is subject to the
EG is each existing MSW landfill (as defined in 40 CFR 60.31c) for
which construction, reconstruction or modification was commenced before
May 30, 1991.
Pursuant to 40 CFR 60.23(a), States were required to submit a plan
for the control of the designated pollutant to which the EG applies
within nine months after publication of the EG (i.e. by December 12,
1996). If there were no designated facilities in the State, then the
State was required to submit a negative declaration by December 12,
1996.
On March 30, 1998, the State of Ohio submitted its ``Section 111(d)
Plan for MSW Landfills'' for implementing USEPA's MSW Landfill EG. The
following provides a brief discussion of the requirements for an
approvable State plan for existing MSW landfills and USEPA's review of
Ohio's submittal with respect to those requirements. More detailed
information on the requirements for an approvable plan and Ohio's
submittal can be found in the Technical Support Document (TSD)
accompanying this notice, which is available upon request.
II. Review of Ohio's MSW Landfill Plan
USEPA has reviewed Ohio's section 111(d) plan for existing MSW
landfills against the requirements of 40 CFR part 60, subpart B and
subpart Cc, as follows:
A. Identification of Enforceable State Mechanism for Implementing the
EG
The regulation at 40 CFR 60.24(a) requires that the section 111(d)
plan include emissions standards, defined in 40 CFR 60.21(f) as ``a
legally enforceable regulation setting forth an allowable rate
[[Page 42236]]
of emissions into the atmosphere, or prescribing equipment
specifications for control of air pollution emissions.''
The State of Ohio, through the Ohio Environmental Protection Agency
(OEPA), has adopted State rules to control air emissions from existing
landfills in the State. The Ohio rules for Municipal Solid Waste
Landfills are found at Rule 3745-76 of the Ohio Administrative Code
(OAC). They were certified by the Director of OEPA, filed with the Ohio
Secretary of State on December 17, 1997 and became effective on January
31, 1998. Thus Ohio has met the requirement of 40 CFR 60.24(a) to have
legally enforceable emission standards.
B. Demonstration of the State's Legal Authority to Carry Out the
Section 111(d) State Plan as Submitted
40 CFR 60.26 requires the section 111(d) plan to demonstrate that
the State has legal authority to adopt and implement the emission
standards and compliance schedules.
OEPA has demonstrated that it has legal authority to adopt and
implement the rules governing landfill gas emissions from existing MSW
landfills. Ohio Revised Code 3704.03 grants OEPA statutory authority to
request this revision to the Ohio State Implementation Plan. OAC 3745-
76 provides the regulatory authority necessary to implement the plan.
C. Inventory of Existing MSW Landfills in the State Affected by the
State Plan
The regulation at 40 CFR 60.25(a) requires the section 111(d) plan
to include a complete source inventory of all existing MSW landfills
(i.e., those MSW landfills that constructed, reconstructed, or modified
prior to May 30, 1991) in the State that are subject to the plan. This
includes all existing landfills that have accepted waste since November
8, 1987 or that have additional capacity for future waste deposition.
A list of the existing MSW landfills in Ohio and an estimate of
NMOC emissions from each landfill have been submitted as part of the
State's landfill 111(d) plan.
D. Inventory of Emissions From Existing MSW Landfills in the State
The regulation at 40 CFR 60.25(a) requires that the plan include an
emissions inventory that estimates emissions of the pollutant regulated
by the EG, which in the case of MSW landfills is NMOC. Ohio included as
a part of appendix B of its section 111(d) plan an estimation of NMOC
emissions for all of the landfills in the State using the Landfill Air
Emissions Estimation Model and AP-42 default emission factors.
E. Emission Limitations for MSW Landfills
The regulation at 40 CFR 60.24c specifies that the State plan must
include emission standards that are no less stringent than the EG
(except as specified in 40 CFR 60.24(f) which allows for less stringent
emission limitations on a case-by-case basis if certain conditions are
met). 40 CFR 60.33c contains the emissions standards applicable to
existing MSW landfills.
The OAC Rule 3745-76-01 through 15 requires existing MSW landfills
to comply with the same equipment design criteria and level of control
as prescribed in the NSPS. The controls required by the NSPS are the
same as those required by the EG. Thus, the emission limitations/
standards are ``no less stringent than'' subpart Cc, which meets the
requirements of 40 CFR 60.24(c).
The regulation at Sec. 60.24(f) allows States, in certain case-by-
case situations, to provide for a less stringent standard. To account
for this provision, the Ohio Rule requires an owner/operator to apply a
less stringent standard, or longer compliance schedule to submit a
written request to the Director of OEPA.
Thus, Ohio's plan meets the emission limitation requirements by
requiring emission limitations that are no less stringent than the EG.
F. A Process for State Review and Approval of Site-Specific Gas
Collection and Control System Design Plans
The provision of the EG at 40 CFR 60.33c(b) requires State plans to
include a process for State review and approval of site-specific design
plans for required gas collection and control systems.
Ohio's rules regulating landfill gas emissions from MSW landfills
essentially make the Federal NSPS applicable to existing MSW landfills.
The design criteria and the design specifications for active collection
systems specified in the NSPS also apply to existing landfills, unless
a request pursuant to 40 CFR 60.24(f) has been approved by the State.
The OEPA will then review the submittal for completeness and will
request additional information if necessary. The Director will either
approve or disapprove the request within six months of its receipt.
Thus, Ohio's section 111(d) plan adequately addresses this
requirement.
G. Compliance Schedules
The State's section 111(d) plan must include a compliance schedule
that owners and operators of affected MSW landfills must meet in
complying with the requirements of the plan. 40 CFR 60.36c provides
that planning, awarding of contracts, and installation of air emission
collection and control equipment capable of meeting the EG must be
accomplished within 30 months of the effective date of a State emission
standard for MSW landfills. 40 CFR 60.24(e)(1) provides that any
compliance schedule extending more than 12 months from the date
required for plan submittal shall include legally enforceable
increments of progress as specified in 40 CFR 60.21(h), including
deadlines for submittal of a final control plan, awarding of contracts
for emission control systems, initiation of on-site construction or
installation of emission control equipment, completion of on-site
construction/installation of emission control equipment, and final
compliance.
Ohio Rule 3745-76-06 provides that landfills that are required to
install collection and control systems be in final compliance with the
requirements of the State plan no later than 30 months from the
effective date of State adoption of the State rule or, for those MSW
landfills which are not currently subject to the collection and control
system requirements, within 30 months of first becoming subject to such
requirements (i.e., within 30 months of reporting a NMOC emission rate
of 50 Mg/yr or greater). Thus, the State's rule satisfies the
requirement of 40 CFR 60.36c.
H. Testing, Monitoring, Recordkeeping and Reporting Requirements
The regulation at 40 CFR 60.34c specifies the testing and
monitoring provisions that State plans must include (60.34c actually
refers to the requirements found in 40 CFR 60.754 to 60.756), and 40
CFR 60.35c specifies the reporting and recordkeeping requirements
(60.35c refers to the requirements found in 40 CFR 60.757 and 60.758).
Ohio Rule 3745-76 satisfies these requirements.
I. A Record of Public Hearings on the State Plan
The regulation at 40 CFR 60.23 contains the requirements for public
hearings that must be met by the State in adopting a section 111(d)
plan. Additional guidance is found in USEPA's ``Summary of the
Requirements for section 111(d) State Plans for Implementing the
Municipal
[[Page 42237]]
Solid Waste Landfill Emission Guidelines (EPA-456R/96-005, October
1996).'' Ohio included documents in its plan submittal demonstrating
that these procedures, as well as the State's administrative
procedures, were complied with in adopting the State's plan. Therefore,
USEPA finds that Ohio has adequately met this requirement.
J. Submittal of Annual State Progress Reports to USEPA
The regulation at 40 CFR 60.25(e) and (f) requires States to submit
to USEPA annual reports on the progress of plan enforcement. Ohio
committed in its section 111(d) plan to submit annual progress reports
to USEPA. The first progress report will be submitted by the State one
year after USEPA approval of the State plan.
III. Final Action
Based on the rationale discussed above, and in further detail in
the TSD associated with this action, USEPA is approving Ohio's March
30, 1998 section 111(d) plan for the control of landfill gas from
existing MSW landfills. As provided by 40 CFR 60.28(c), any revisions
to Ohio's section 111(d) plan or associated regulations will not be
considered part of the applicable plan until submitted by the State in
accordance with 40 CFR 60.28(a) or (b), as applicable, and until
approved by USEPA in accordance with 40 CFR part 60, subpart B.
USEPA is publishing this action without prior proposal because
USEPA views this as a noncontroversial revision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, USEPA is proposing to approve the State Plan
should adverse or critical written comments be filed. This action will
be effective without further notice unless USEPA receives relevant
adverse written comment by September 8, 1998. Should USEPA receive such
comments, it will publish a final rule informing the public that this
action will not take effect. Any parties interested in commenting on
this action should do so at this time. If no such comments are
received, the public is advised that this action will be effective on
October 6, 1998.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Plan. Each request for revision to a State Plan
shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Executive Order 13045
This final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This direct final rule will not have a significant
impact on a substantial number of small entities because plan approvals
under section 111(d) do not create any new requirements but simply
approve requirements that the State is already imposing. Therefore,
because the Federal SIP approval does not create any new requirements,
I certify that this action will not have a significant economic impact
on a substantial number of small entities. Moreover, due to the nature
of the Federal-State relationship under the CAA preparation of a
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of a State action. The CAA forbids USEPA to base its
actions concerning SIPs on such grounds. Union Electric Co., v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, USEPA must undertake various actions
in association with any proposed or final rule that includes a Federal
mandate that may result in estimated costs to State, local, or tribal
governments in the aggregate; or to the private sector, of $100 million
or more. This Federal action approves pre-existing requirements under
State law, and imposes no new requirements. Accordingly, no additional
costs to state, local, or tribal governments, or the private sector,
result from this action.
E. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Ohio's audit
privilege and penalty immunity law sections 3745.70-3745.73 of the Ohio
Revised Code or its impact upon any approved provision in the SIP,
including the revision at issue here. The action taken herein does not
express or imply any viewpoint on the question of whether there are
legal deficiencies in this or any other CAA program resulting from the
effect of Ohio's audit privilege and immunity law. A State audit
privilege and immunity law can affect only State enforcement and cannot
have any impact on Federal enforcement authorities. USEPA may at any
time invoke its authority under the CAA including, for example,
sections 113, 167, 205, 211 or 213, to enforce the requirements or
prohibitions of the State plan, independently of any State enforcement
effort. In addition, citizen enforcement under section 304 of the CAA
is likewise unaffected by a State audit privilege or immunity law.
F. Submission to Congress and the Comptroller General
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. The USEPA will submit a report containing this rule 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 the publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
G. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 6, 1998. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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 42238]]
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Methane, Municipal
solid waste landfills, Nonmethane organic compounds, Reporting and
recordkeeping requirements.
Dated: July 24, 1998.
David A. Ullrich,
Acting Regional Administrator, Region V.
40 CFR part 62 is amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart KK--Ohio
2. Subpart KK is amended by adding a new center heading and
Secs. 62.8870, 62.8871, and 62.8872 to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills
Sec. 62.8870 Identification of plan.
The Ohio State Implementation Plan for implementing the Federal
Municipal Solid Waste Landfill Emission Guidelines including Ohio
Administrative Code (OAC) Rules 3745-76-01 through 3745-76-15 was
submitted on March 30, 1998.
Sec. 62.8871 Identification of sources.
The plan applies to all existing municipal solid waste landfills
for which construction, reconstruction or modification was commenced
before May 30, 1991 that accepted waste at any time since November 8,
1987 or that have additional capacity available for future waste
deposition, as described in 40 CFR part 60, subpart Cc.
Sec. 62.8872 Effective date.
The effective date of the plan for municipal solid waste landfills
is October 6, 1998.
[FR Doc. 98-21030 Filed 8-6-98; 8:45 am]
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