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

[Federal Register: June 24, 2003 (Volume 68, Number 121)]

[Rules and Regulations]

[Page 37421-37425]

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

[DOCID:fr24jn03-14]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[PA124-4079a; FRL-7517-3]

Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants, Commonwealth of Pennsylvania; Control of Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve the municipal solid waste (MSW) landfill section 111(d) plan (the plan) submitted by the Pennsylvania Department of Environmental Protection (PADEP). The plan establishes nonmethane organic compounds (NMOC) emissions limits for existing landfills in the Commonwealth of Pennsylvania, excluding the geographic areas of Allegheny County and the City of Philadelphia. The plan was submitted to fulfill requirements of the Clean Air Act (the Act).

DATES: This final rule is effective August 25, 2003 without further notice, unless EPA receives adverse written comment by July 24, 2003. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES: Comments may be submitted either by mail or electronically. Written comments should be mailed to Walter Wilkie, Chief, Air Quality Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania

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19103. Electronic comments should be sent either to wilkie.walter@epa.gov or to http://www.regulations.gov, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in part III of the Supplementary Information section. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Pennsylvania Department of Environmental Protection, Bureau of Air Quality, PO Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or by e-mail at topsale.jim@epa.gov. SUPPLEMENTARY INFORMATION:

1. Background

   The Act requires that States submit plans to EPA to implement and enforce the Emission Guidelines (EG) promulgated for MSW landfills pursuant to section 111(d) of the Act. Section 111(d) requires that the State submit its plan no later than nine months after EPA promulgates the EG. On March 12, 1996, EPA promulgated the MSW landfill EG at 40 CFR part 60, subpart Cc, and the related new source performance standard (NSPS), subpart WWW.

   Under section 111(d) of the Act, the EPA established procedures whereby States submit plans to control existing sources of designated pollutants. A designated pollutant means any air pollutant, emissions of which are subject to a standard of performance for new sources but for which air quality criteria have not been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, similar to the process required by section 110 of the Act (regarding State Implementation Plan (SIP) approval) which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates a NSPS that controls 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), as applicable.

   States were required to submit their MSW landfill 111(d) plans or negative declarations to EPA on December 12, 1996, pursuant to the provisions of section 111(d) of the Act and 40 CFR part 60, subpart B, and the March 12, 1996 promulgated MSW landfill EG, subpart Cc. Since that time, EPA has promulgated three separate landfill rule amendments, and has proposed a fourth. The promulgated amendments were published in the Federal Register on June 16, 1998, February 24, 1999, and April 10, 2000. A fourth set of amendments was published and proposed in the Federal Register on May 23, 2002. Also, EPA has promulgated a Federal plan , 40 CFR part 62, subpart GGG, (November 8, 1999) for existing landfills located in states, such as Pennsylvania, without an approved plan. The Federal plan acts as a place holder until the state plan is approved and becomes effective.

   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 hazardous air pollutants. To determine whether emissions control is required, the nonmethane organic compounds (NMOC) emission's rate is determined as a surrogate for the MSW landfill emissions rate. Thus, NMOC are considered collectively as 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. For any landfill with a design capacity and emission rate that exceeds the EG applicability thresholds, the landfill owner/ operator is required to install a landfill gas collection and control system. The system must be designed and operated to reduce collected NMOC concentrations by 98 weight-percent, or reduce the outlet NMOC concentration to 20 parts per million or less, as determined using the test methods specified under Sec. 60.754(d).

   On July 1, 1997, the Commonwealth of Pennsylvania submitted its 111(d) plan for MSW landfills for implementing the EG requirements. The following provides a brief discussion of the requirements for an approvable State plan for existing MSW landfills and EPA's review of the PADEP submittal with respect to those requirements. More detailed information on the requirements for an approvable plan and the Commonwealth's submittal can be found in the Technical Support Document (TSD) accompanying this notice, which is available upon request.

2. Review of the Pennsylvania MSW Landfill Plan

   EPA has reviewed the Pennsylvania section 111(d) plan for existing MSW landfills in the context of applicable requirements of 40 CFR part 60, subparts B, Cc, and WWW; and 40 CFR part 62, subpart GGG, as follows:

   1. Identification of Enforceable State Mechanisms Selected by the State for Implementing the EG

      The plan identifies a total of sixteen (16) designated landfills. In order to implement the requirements of the plan, the PADEP issued a Federally enforceable state operating permit (FESOP) to each of the sixteen landfills. Each FESOP permit incorporates by reference (IBR) all applicable EG and related NSPS requirements under the 111(d) plan. In addition, all designated landfills are required to complete a compliance test no later than 180 days of the final compliance date. Each submitted FESOP meets the requirements of 40 CFR 60.24(a) for an enforceable mechanism.

   2. Demonstration of Legal Authority

      PADEP's Chief Counsel submitted an opinion that PADEP has the statutory and regulatory authority under its State operating permits programs to implement applicable requirements under section 111(d) of the Act. A copy of the Commonwealth's Air Pollution Control Act (35 P.S. 4001, et seq.) and applicable operating permits regulations, under 25 Pa. Code Chapter 127, were submitted. This meets the requirements of 40 CFR 60.26(a), (b), and (c).

   3. Inventory of MSW Landfills in the Pennsylvania, Excluding Allegheny County and the City of Philadelphia

      The PADEP inventory identifies twenty-four (24) existing landfills, excluding those in the geographical areas of Allegheny County and the City of Philadelphia. Of the twenty-four noted landfills, sixteen (16) are identified as designated landfills and eight (8) are identified as having a capacity of less than 2.5 million megagrams of design capacity. The submitted PADEP landfill inventory of sources meets the requirement of 40 CFR 60.25(a).

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   4. Inventory of Emissions From MSW Landfills in Pennsylvania, Excluding Allegheny County

      The Pennsylvania 111(d) plan contains information on estimated NMOC emission rates in tons per year (TPY) for each existing landfill. This meets the emission inventory requirements of 40 CFR 60.25(a).

   5. Emission Limitation for MSW Landfills

      Each submitted FESOP contains the emission limitations established in the EG. Existing landfills having design capacities equal to or greater than 2.5 million megagrams (Mg) by mass and 2.5 million cubic meters (m3) by volume, and a NMOC emissions rate of 50 Mg/year or greater, must install a gas collection and control system. This and other FESOP provisions meet the requirement of 40 CFR 60.24(c) that the State plan include emission standards that are no less stringent than the EG.

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

      The submitted Pennsylvania 111(d) plan describes a process for the review and approval of site-specific design plans for gas collection and control systems. The process is described in detail in the plan narrative, section VI, Process for Review of Design Plans. The described process meets the requirements of 40 CFR 60.33c(b).

   7. Compliance Schedules

      The final compliance dates and enforceable increments of progress of the plan are linked to the date when both the facility capacity and NMOC emission rate equal or exceed the EG applicability thresholds. A State section 111(d) plan must include an expeditious compliance schedule that owners and operators of designated MSW landfills must meet in order to comply with the requirements of the plan. The EG at 40 CFR 60.36c provide that planning, awarding of contracts, and installation of air emission collection and control equipment capable of meeting the EG requirements must be accomplished within 30 months after triggering the 50 Mg/yr NMOC emissions rate applicability threshold. Subpart B, 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. Twelve (12) of the designated landfill FESOPs contain compliance schedules, including increments of progress, that requires final compliance within 30 months after permit issuance, or 30 months after the calculated annual NMOC emissions rate equals or exceeds 50 Mg/yr. The FESOPs for three (3) other designated landfills, with already installed gas collection and control systems, require final compliance on the date when the initial or first annual capacity and NMOC emissions rate reports both show an exceedance of the EG applicability thresholds. These three landfills are identified as: (1) Arden-East Valley, permit No. 63-322-001; (2) Valley, permit No. 65-322-001A; and (3) Arnoni, permit No. 63-322-003A. For a fourth landfill, Lycoming County, permit No. 41-322-01, with reported exceedances of both EG applicablility thresholds for capacity and NMOC emissions rate, final compliance is required on or before March 10, 1998. Each submitted FESOP establishes expeditious interim and/or final compliance dates, and meets the requirements of 40 CFR 60.24(e)(1), and 60.36c, and the Federal landfill plan.

   8. Testing, Monitoring, Recordkeeping, and Reporting Requirements

      Each FESOP contains provisions for testing, monitoring, reporting, and recordkeeping. Each FESOP meets the requirements of 40 CFR 60.34c, testing and monitoring, and 60.35c, reporting and recordkeeping requirements.

1. Submittal of Title V Applications

   Owners/operators of affected landfills are subject to PADEP's Title V rule, section 127.505, Initial application submittal of Title V facilities. These requirements are consistent with the EG and the Federal landfill plan (64 FR 60689).

   10. A Record of Public Hearing on the State Plan

       Public hearings for the Pennsylvania plan were held on June 6, 9, and 10, 1997 in Harrisburg, Conshohocken, and Pittsburgh, respectively. Each FESOP was subject to public notice and then an opportunity for a public hearing. The state provided evidence of complying with public notice and other hearing requirements, including a record of public comments received. The 40 CFR 60.23 requirement for a public hearing on the 111(d) plan has been met by the PADEP.

   11. Provision for Annual State Progress Reports to EPA

       The PADEP will submit to EPA on an annual basis a report which details its progress in the enforcement of the 111(d) plan in accordance with 40 CFR 60.25. The first progress report will be submitted to EPA one year after the approval of the plan by EPA.

3. Final Action

   PADEP has submitted a 111(d) plan that conforms to the June 16, 1998 EG, as amended and the Federal plan. 25 Pa. Code section 127.463 requires designated landfill owners/operators with FESOPs to comply with promulgated requirements, including meeting the applicable Clean Air Act standards or regulations within the time frame required by those standards or regulations, regardless of whether the permit is revised. The PADEP confirmed this in a June 30, 1997 opinion from its Chief Counsel, and a subsequent September 5, 2002 letter to EPA.

   When considering the plan's due date for submittal of the initial landfill design capacity and emissions rate reports and the related final compliance date, it is important to note that 40 CFR part 60, subpart B, Sec. 60.24(g)(2) allows states to impose compliance schedules requiring final compliance at earlier times than those specified in the EG. Accordingly, the PADEP has the authority to impose earlier compliance times, and thus reporting requirements than those stipulated in the EG and Federal plan. Also, each FESOP contains a provision that states for purposes of meeting the section 111(d) Clean Air Act requirements, the terms and conditions of the permit, relating to 40 CFR part 60, subpart Cc, are nonexpiring with respect to the requirements of the EG and the section 111(d) plan. Therefore, expired FESOPs, which are part of the plan and include applicable section 111(d) requirements, including compliance schedules and reporting dates, are still valid and enforceable for purposes of the plan.

   EPA is taking no action to approve permit terms and conditions that imply that a facility is actually in compliance with section 111(d) plan requirements, such as conditions 30 and 34 under the Lycoming County landfill permit, No. 41-322-01. Such terms and conditions are outside the scope of EPA's section 111(d) plan approval authority.

   Based on the rationale discussed above, EPA is approving the Pennsylvania 111(d) plan for the control of MSW landfill gas emissions (i.e., NMOC) from designated facilities. Accordingly, the Federal landfill plan,

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   subpart GGG, is no longer applicable to designated landfills under this approval action. However, if an unknown designated landfill is not covered by the scope of this plan and is discovered after EPA plan approval, that landfill will be subject to the promulgated Federal plan requirements until the PADEP amends its plan to include the previously unknown designated landfill. As provided by 40 CFR 60.28(c), any revisions to the Pennsylvania section 111(d) plan or associated FESOPs will not be considered part of the applicable plan until submitted by the PADEP 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, requirements.

   EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirement for state air pollution control agencies and existing MSW landfills that are subject to the provisions of 40 CFR part 60, subparts B, Cc, WWW, as applicable; and 40 CFR part 62, subpart GGG. However, in the ``Proposed Rules'' section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the section 111(d) plan should relevant adverse or critical comments be filed. This rule will be effective August 25, 2003 without further notice unless EPA receives adverse comments by July 24, 2003. If EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule did not take effect. EPA will address all public comments 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 must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

   You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA124-4079 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments.

   1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

   i. E-mail. Comments may be sent by electronic mail (e-mail) to wilkie.walter@epa.gov, attention PA124-4079. EPA's e-mail system is not an ``anonymous access'' system. If you send an e-mail comment directly without going through Regulations.gov , EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

   ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov , then select ``Environmental Protection Agency'' at the top of the page and use the ``go'' button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an ``anonymous access'' system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

   iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

   2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

4. Statutory and Executive Order Reviews

   1. General Requirements

      Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997),

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      because it is not economically significant.

      In reviewing 111(d) plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a 111(d) plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d) plan submission, to use VCS in place of a 111(d) plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

   2. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source- specific requirements for sixteen (16) specific sources.

   3. Petitions for Judicial Review

      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 August 25, 2003. 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 to approve the Pennsylvania section 111(d) landfill plan 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, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Paper and paper products industry, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Sulfur acid plants, Waste treatment and disposal.

      Dated: June 16, 2003. James W. Newsom, Acting Regional Administrator, Region III.

      0 Therefore, for the reasons discussed in the preamble 40 CFR part 62, subpart NN, is amended as follows:

      PART 62--[AMENDED]

      0 1. The authority citation for part 62 continues to read as follows:

      Authority: 42 U.S.C. 7401 et seq.

      Subpart NN--Pennsylvania

      0 2. Sections 62.9635, 62.9636, and 62.9637 are added to read as follows:

      Sec. 62.9635 Identification of plan.

      Section 111(d) plan for municipal solid waste landfills, as submitted on July 1, 1997, and as amended through April 9, 2003 by the Pennsylvania Department of Environmental Protection. The plan excludes the geographical areas of Allegheny County and the City of Philadelphia.

      Sec. 62.9636 Identification of sources.

      The plan applies to existing Pennsylvania 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. 62.9637 Effective date.

      The effective date of the plan for municipal solid waste landfills is August 25, 2003.

      [FR Doc. 03-15759 Filed 6-23-03; 8:45 am]

      BILLING CODE 6560-50-P