Air quality implementation plans; approval and promulgation; various States: Alabama,
[Federal Register: October 8, 1998 (Volume 63, Number 195)]
[Rules and Regulations]
[Page 54055-54058]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc98-8]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AL-046-9826a; FRL-6168-4]
Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Alabama
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
SUMMARY: The United States Environmental Protection Agency (EPA) is approving the section 111(d) Plan submitted by the Alabama Department of Environmental Management (ADEM) for the State of Alabama on January 6, 1998, for implementing and enforcing the Emissions Guidelines (EG) applicable to existing Municipal Solid Waste (MSW) Landfills. See 40 CFR part 60, subpart Cc.
DATES: This final rule is effective on December 7, 1998 without further notice, unless EPA receives relevant adverse comments by November 9, 1998. Should the EPA receive such comments, it will publish a timely document withdrawing this rule.
ADDRESSES: Written comments should be addressed to: Kimberly Bingham, EPA Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104.
Copies of materials submitted to EPA may be examined during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S. Environmental Protection Agency, 401 M Street, SW, Washington DC 20460; EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104; and Alabama Department of Environmental Management, Air Division, 1751 Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.
FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or Scott Davis at (404) 562-9127.
SUPPLEMENTARY INFORMATION:
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Background
Under section 111(d) of the Clean Air Act (Act), EPA 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 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 a new source performance standard (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, local, or tribal agency'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.
On March 12, 1996, EPA published EG for existing MSW landfills 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 9905-9944.) The pollutants regulated by the NSPS and EG are 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 whether 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 60.32c) for which construction, reconstruction or modification was commenced before May 30, 1991.
Pursuant to 40 CFR 60.23(a), States were required to either: (1) submit a plan for the control of the designated pollutant to which the EG applies; or (2) submit a negative declaration if there were no designated facilities in the State within nine months after publication of the EG (by December 12, 1996).
EPA has been involved in litigation over the requirements of the MSW landfill EG and NSPS since the summer of 1996. On November 13, 1997, EPA issued a document of proposed settlement in National Solid Wastes Management Association v. Browner, et. al, No. 96-1152 (D.C. Cir), in accordance with section 113(g) of the Act. See 62 FR 60898. It is important to note that the proposed settlement does not vacate or void the existing MSW landfill EG or NSPS. Pursuant to the proposed settlement agreement, EPA published a direct final rulemaking on June 16, 1998, in which EPA is amending 40 CFR part 60, subparts Cc and WWW, to add clarifying language, make editorial amendments, and to correct typographical errors. See 63 FR 32743-32753, 32783-32784. EPA regulations at 40 CFR 60.23(a)(2) provide that a State has nine months to adopt and submit any necessary State Plan revisions after publication of a final revised emission guideline document. Thus, States are not yet required to submit State Plan revisions to address the June 16, 1998, direct final amendments to the EG. In addition, as stated in the June 16, 1998, preamble, the changes to 40 CFR part 60, subparts Cc and WWW, do not significantly modify the requirements of those subparts. See 63 FR 32744. Accordingly, the MSW landfill EG published on March 12, 1996, was used as a basis by EPA for review of section 111(d) Plan submittals.
This action approves the section 111(d) Plan submitted by the ADEM for the State of Alabama to implement and enforce Subpart Cc.
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Analysis of State Submittal
On January 6, 1998, ADEM submitted the following information in their section 111(d) Plan for implementing and enforcing the emission guidelines for existing MSW landfills in the State of Alabama: Legal Authority; Enforceable Mechanism; MSW Landfill Source and Emission Inventory; Emission Limits; Collection and Control System Design Plan Review Process; Compliance Schedule; Testing, Monitoring, Recordkeeping and Reporting Requirements; Demonstration That the Public Had Adequate Notice and Opportunity to Submit Written Comments; Submittal of Progress Reports to EPA; and applicable State of Alabama statutes and rules of the Alabama ADEM.
The approval of the Alabama State Plan is based on finding that: (1) ADEM provided adequate public notice of public hearings for the proposed rulemaking which allows the ADEM to implement and enforce the EG for MSW landfills; and (2) ADEM also demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require recordkeeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.
In appendix C of the Plan, ADEM cites the following references for the legal authority: Chapter 22A of section 22 of the Code of Alabama, ``The Alabama Environmental Management Act; and Chapter 28 of section 22 of the Code of Alabama, ``The Alabama Air Pollution Control Act.'' These statutes and regulations are approved as being at least as protective as the Federal requirements for existing MSW landfills.
In appendix A of the Plan, ADEM cites the enforceable mechanism for implementing the EG for existing MSW landfills. The enforceable mechanism is the state regulation adopted by the State of Alabama in Chapter 335-3-19, ``Control of Municipal Solid Waste Landfill Gas Emissions.'' The State's regulation meets the Federal requirements for an enforceable mechanism and is approved as being at least as protective as the Federal requirements contained in Subpart Cc for existing MSW landfills.
In appendix A of the Plan, ADEM cites all emission standards and limitations for the major pollutant categories related to the designated sites and facilities. These standards and limitations in the Alabama ADEM's Chapter 335-3-19-.03, ``Standards for Existing Municipal Solid Waste Landfills,'' are approved as being at least as protective as the Federal requirements contained in Subpart Cc for existing MSW landfills.
The Alabama State Plan describes the process ADEM will utilize for the review of site-specific design plans for gas collection and control systems. The process outlined in the Plan meets the Federal requirements contained in subpart Cc for existing MSW landfills.
In appendix A of the Plan, ADEM cites the compliance schedules adopted in Chapter 335-3-19-.04 for each existing MSW landfill to be in compliance within 30 months of the effective date of their implementing regulation (January 6, 1998). These compliance times for affected MSW landfills address the required compliance time lines of the EG. This portion of the Plan has been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.
In appendix B of the Plan, ADEM submitted a source and emission inventory of all designated pollutants for each MSW landfill in the State of Alabama. This portion of the Plan has been reviewed and approved as meeting the Federal requirements for existing MSW landfills.
The Alabama State Plan includes its legal authority to require owners and operators of designated facilities to maintain records and report to the ADEM the nature and amount of emissions and any other information that may be necessary to enable the ADEM to judge the compliance status of the facilities. ADEM also cites its legal authority to provide for periodic inspection and testing and provisions for making reports of MSW landfill emissions data, correlated with emission standards that apply, available to the general public. ADEM submitted its Chapter 335-3-19 to support the requirements of monitoring, recordkeeping, reporting, and compliance assurance. These Alabama rules have been reviewed and approved as being at least as protective as Federal requirements for existing MSW landfills.
As stated on page 4 of the Plan, ADEM will provide progress reports of Plan implementation to the EPA on an annual basis. These progress reports will include the required items pursuant to 40 CFR part 60, subpart B. This portion of the Plan has been reviewed and approved as meeting the Federal requirement for Plan reporting.
Consequently, EPA finds that the Alabama State Plan meets all of the requirements applicable to such plans in 40 CFR part 60, subparts B and Cc. ADEM did not, however, 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.
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Final Action
Based on the rationale discussed above, EPA is approving the State of Alabama's section 111(d) Plan, as submitted on January 6, 1998, for the control of landfill gas from existing MSW landfills, except for those existing MSW landfills located in Indian Country. As provided by 40 CFR 60.28(c), any revisions to the Alabama State Plan or associated regulations will not be considered part of the applicable plan until submitted by ADEM 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.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment 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 revision should significant, material, and adverse comments be filed. This action will be effective December 7, 1998 without further notice unless the Agency receives adverse comments by November 9, 1998.
If the EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule and inform the public that the rule will not take effect. All public comments received will be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Only parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 7, 1998 and no further action will be taken on the proposed rule.
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Administrative Requirements
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Executive Order 12866
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order (E.O.)
[[Page 54057]]
12866, entitled ``Regulatory Planning and Review.''
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Executive Order 12875
Under E.O. 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 the mandate is unfunded, EPA must 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 concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 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 E.O. 12875 do not apply to this rule.
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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 E.O. 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 E.O. 13045 because it is does not involved decisions intended to mitigate environmental health or safety risks.
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Executive Order 13084
Under E.O. 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 the mandate is unfunded, EPA must 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, 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. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.
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Regulatory Flexibility Act
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 SIP approvals under section 110 and subchapter I, part 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 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 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 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).
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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 annual 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 annual 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.
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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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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 December 7, 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).)
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List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, and Reporting and recordkeeping requirements.
Dated: September 3, 1998. A. Stanley Meiburg, Acting Regional Administrator, Region 4.
40 CFR Part 62 is amended as follows:
PART 62--[AMENDED]
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The authority citation for Part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Alabama
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Part 62.100 is amended by adding paragraphs (b)(3) and (c)(3) to read as follows:
Sec. 62.100 Identification of plan.
* * * * *
(b) * * *
(3) Alabama Department of Environmental Management Plan For the Control of Landfill Gas Emissions at Existing Municipal Solid Waste Landfills, submitted on January 6, 1998, by the Alabama Department of Environmental Management.
(c) * * *
(3) Existing municipal solid waste landfills.
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Subpart B is amended by adding a new Sec. 62.103 and a new undesignated center heading to read as follows:
Landfill Gas Emissions From Existing Municipal Solid Waste Landfills
Sec. 62.103 Identification of sources.
The plan applies to 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.
[FR Doc. 98-26899Filed10-7-98; 8:45 am]
BILLING CODE 6560-50-P
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