Air programs; approval and promulgation; State plans for designated facilities and pollutants: Nevada,

[Federal Register: September 20, 1999 (Volume 64, Number 181)]

[Rules and Regulations]

[Page 50764-50768]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20se99-12]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[NV 015-MSWa; FRL-6440-4]

Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving the Nevada State Plan for implementing the emissions guidelines (EG) applicable to existing municipal solid waste (MSW) landfills. The Plan was submitted by the Nevada Division of Environmental Protection (NDEP) for the State of Nevada to satisfy requirements of section 111(d) of the Clean Air Act (the Act).

DATES: This direct final rule is effective on November 19, 1999 without further notice, unless EPA receives relevant adverse comments by October 20, 1999. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region IX office listed below. Copies of the submitted Plan and EPA's evaluation report are available for public inspection at EPA's Region IX

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office during normal business hours. Copies of the submitted Plan are available for inspection at the following locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105 Bureau of Air Quality, Division of Environmental Protection, Department of Conservation and Natural Resources, 333 W. Nye Lane, Carson City, Nevada 89706-0851.

FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-1188.

SUPPLEMENTARY INFORMATION:

1. Background

   Under section 111(d) of the Act, EPA has 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 Act) or hazardous air pollutants (HAPs) regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates new source performance standards (NSPS) that control a designated pollutant, EPA establishes EG in accordance with 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 EG for that source category as well as 40 CFR part 60, subpart B (40 CFR 60.23 through 60.26).

   On March 12, 1996, EPA promulgated NSPS for new MSW landfills at 40 CFR part 60, subpart WWW (Standards of Performance for Municipal Solid Waste Landfills) and EG for existing MSW landfills at 40 CFR part 60, subpart Cc (Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills) (see 61 FR 9905). The pollutants regulated by the NSPS and EG are MSW landfill emissions, which contain a mixture of volatile organic compounds (VOC), other organic compounds, methane, and HAPs. VOC emissions 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 whether control is required, nonmethane organic compounds (NMOC) 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 60.32c) for which construction, reconstruction or modification was commenced before May 30, 1991.

   Pursuant to 40 CFR 60.23(a), States were required within nine months after promulgation of subpart Cc (by December 12, 1996) to submit either a plan to implement and enforce the EG or, if there are no existing MSW landfills subject to the EG in the State, a negative declaration letter.

   EPA published a direct final rulemaking on June 16, 1998, in which EPA amended 40 CFR part 60, subpart Cc (and subpart WWW), to add clarifying language, make editorial amendments, and to correct typographical errors (see 63 FR 32743). EPA published additional technical amendments and corrections on February 24, 1999 (see 64 FR 9258). These amendments did not change the submittal date or the requirements for State plans for existing MSW landfills.

   On June 3, 1998, NDEP submitted to EPA the Nevada State Plan for implementing the MSW landfill EG. NDEP submitted a technical revision to the Nevada State Plan on May 21, 1999.

   The Nevada State Plan does not apply to landfills in the two counties that are not under the jurisdiction of the NDEP: Clark and Washoe. Washoe County submitted a negative declaration letter on May 7, 1997 certifying that there are no existing MSW landfills that are subject to the control requirements of the emission guidelines within the County. Clark County has affected existing landfills but has not submitted its portion of the Nevada State Plan. Existing landfills in Clark County will be subject to the requirements of the Federal Plan upon its promulgation until EPA receives and approves Clark County's portion of the Nevada State Plan.

   The following provides a brief discussion of the requirements for an approvable State plan for existing MSW landfills and EPA's review of the Nevada State Plan with respect to those requirements. A detailed discussion of the State Plan and EPA's evaluation can be found in the Technical Support Document for the Nevada Plan (8/99).

2. Review of the Nevada MSW Landfill Plan

   EPA has reviewed the Nevada section 111(d) plan for existing MSW landfills against the requirements of 40 CFR part 60, subparts B and Cc, as follows:

   1. Identification of Enforceable State Mechanism for Implementing the EG

      Subpart B 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 of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.'' The Nevada State Plan uses the following State regulation as the enforceable mechanism: Nevada Administrative Code (NAC) 445B.383 ``Municipal Solid Waste Landfills,'' as amended on April 9, 1999 by the Nevada State Environmental Commission (SEC). This State regulation controls air emissions from existing MSW landfills in the NDEP's jurisdiction.‹SUP›1‹/SUP› Thus, Nevada has met the requirement of 40 CFR 60.24(a) to have legally enforceable emission standards.

      \1\ The Air Quality Bureau of NDEP has jurisdiction over the landfills within the State of Nevada, excluding the landfills within the counties of Clark and Washoe.

   2. Demonstration of Legal Authority

      Subpart B at 40 CFR 60.26 requires that the section 111(d) plan demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. The State has demonstrated that the Nevada SEC has sufficient legal authority to adopt rules governing MSW landfills and that the NDEP has sufficient legal authority to enforce these rules and to develop and administer this MSW landfill plan. The State statutes providing such authority are sections 233B (Nevada Administrative Procedure Act) and 445B (Air Pollution) of the Nevada Revised Statutes (NRS).

   3. Inventory of Existing MSW Landfills in the State Affected by the State Plan

      Subpart B at 40 CFR 60.25(a) requires that the section 111(d) plan include a complete source inventory of all designated facilities regulated by the EG: existing MSW landfills (i.e., those MSW landfills that constructed, reconstructed, or modified prior to May 30, 1991) that have accepted waste since

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      November 8, 1987 or have additional capacity for future waste deposition (see 40 CFR 60.32c(a)(1)). NDEP submitted a list of the existing MSW landfills in Nevada as part of the State Plan.

   4. Inventory of Emissions From Existing MSW Landfills in the State

      Subpart B at 40 CFR 60.25(a) requires that the 111(d) plan include an emissions inventory that estimates emissions of the designated pollutant regulated by the EG: NMOC. NDEP has submitted an estimate of annual NMOC emissions from the landfills in the source inventory as part of the State Plan. NDEP used the procedures in 40 CFR 60.754 to estimate the NMOC emissions.

   5. Emission Standards for MSW Landfills

      Subpart B at 40 CFR 60.24(c) 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 standards on a case-by-case basis if certain conditions are met). The State regulation, NAC 445B.383, contains the emission standards that are in subpart Cc. Thus, Nevada's State Plan complies with this requirement.

   6. A Process for State Review and Approval of Site-Specific Gas Collection and Control System Design Plans

      Subpart Cc 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. The process for NDEP review and approval of site-specific gas collection and control systems is specified in the State Plan. Thus, Nevada's section 111(d) plan adequately addresses this requirement.

   7. 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. Subpart Cc at 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 date on which the NMOC emission rate equals or exceeds 50 megagrams per year. The State regulation, NAC 445B.383, contains the same compliance schedule as subpart Cc.

   8. Testing, Monitoring, Recordkeeping and Reporting Requirements

      Subpart Cc at 40 CFR 60.34c specifies the testing and monitoring provisions that State plans must include (60.34c specifically 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). The Nevada landfill regulation incorporates by reference the requirements found in 40 CFR 60.754 to 60.758. Thus, the State Plan satisfies the requirements of 40 CFR 60.34c and 60.35c.

1. A Record of Public Hearings on the State Plan

   Subpart B 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. NDEP included documents in its plan submittal demonstrating that these requirements, as well as the State's administrative procedures, were complied with in adopting the State landfill regulation and in developing the State Plan. Therefore, EPA finds that Nevada has met this requirement.

   10. Submittal of Annual State Progress Reports to EPA

   Subpart B at 40 CFR 60.25(e) and (f) requires States to submit to EPA annual reports on the progress of plan enforcement. Nevada committed in its section 111(d) plan to submit annual progress reports to EPA. The first progress report will be submitted by the State one year after EPA approval of the State Plan. Therefore, EPA finds that Nevada has adequately met this requirement.

   In summary, EPA finds that the Nevada State Plan meets all of the requirements applicable to such plans in 40 CFR part 60, subparts B and Cc.

3. Final Action

   Based on the rationale discussed above, EPA is approving the State of Nevada section 111(d) plan for the control of landfill gas emissions from existing MSW landfills.‹SUP›2‹/SUP› As provided by 40 CFR 60.28(c), any revisions to the Nevada State Plan or associated regulations will not be considered part of the applicable plan until submitted by the NDEP in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B.

   \2\ The State did not submit evidence of authority to regulate existing MSW landfills in Indian Country; therefore, EPA is not approving this Plan as it relates to those sources.

   The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the 111(d) plan should relevant adverse or critical comments be filed. This rule will be effective November 19, 1999 without further notice unless the Agency receives relevant adverse comments by October 20, 1999.

   If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule did not take effect. All public comments received will be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. 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 November 19, 1999 and no further action will be taken on the proposed rule.

   Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any section 111(d) plan. Each request for revision to the section 111(d) plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

4. Administrative Requirements

   1. Executive Order 12866

      The Office of Management and Budget (OMB) has exempted this regulatory action from review under Executive Order 12866, entitled ``Regulatory Planning and Review.''

   2. Executive Order 12875

      Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their

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      concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

   3. Executive Order 13045

      Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be ``economically significant'' as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

      This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

   4. Executive Order 13084

      Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

      Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

   5. 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 final rule will not have a significant impact on a substantial number of small entities because State Plan approvals under section 111(d) of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal State Plan 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 Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning State Plans on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

   6. Disclaimer Language Approving State Plans in Audit Law States

      Nothing in this action should be construed as making any determination or expressing any position regarding Nevada's audit privilege and penalty immunity law (NRS Chapter 445C.010-.120) or its impact upon any approved State Plan, including the plan 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 Clean Air Act program resulting from the effect of Nevada'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. EPA may at any time invoke its authority under the Clean Air Act, 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 Clean Air Act is likewise unaffected by a state audit privilege or immunity law.

   7. Unfunded Mandates

      Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany 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 private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

      EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre- existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

   8. 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. EPA 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 publication of the rule in the Federal Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

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1. Petitions for Judicial Review

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by November 19, 1999. 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).)

   List of Subjects in 40 CFR Part 62

   Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Non-methane organic compounds, Methane, Municipal solid waste landfills, Reporting and recordkeeping requirements.

   Dated: September 10, 1999. David P. Howekamp, Acting Regional Administrator, Region IX.

   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.

   2. Subpart DD is added to part 62 to read as follows:

      Subpart DD--Nevada

      Landfill Gas Emissions From Existing Municipal Solid Waste Landfill

      Sec. 62.7100 Identification of plan. 62.7101 Identification of sources. 62.7102 Effective date.

      Subpart DD--Nevada

      Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

      Sec. 62.7100 Identification of plan.

      (a) The Washoe County Department of Health submitted on May 7, 1997 a letter certifying that there are no existing municipal solid waste landfills in Washoe County subject to 40 CFR part 60, subpart Cc.

      (b) The Nevada Division of Environmental Protection submitted on June 3, 1998 and May 21, 1999 the State of Nevada's Section 111(d) Plan for Existing Municipal Solid Waste Landfills.

      Sec. 62.7101 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, as described in 40 CFR part 60, subpart Cc.

      Sec. 62.7102 Effective date.

      The effective date of EPA approval of the plan is November 19, 1999.

      [FR Doc. 99-24261Filed9-17-99; 8:45 am]

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