Approval and Promulgation of State Plans for Designated Facilities and Pollutants; North Dakota; Control of Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[ND-001-0003a; FRL-5933-8]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants; North Dakota; Control of Landfill Gas

Emissions From Existing Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the North Dakota plan for implementing

the Municipal Solid Waste (MSW) Landfill Emission Guidelines at 40 CFR

part 60, subpart Cc, which was required pursuant to section 111(d) of

the Clean Air Act (Act). The State's plan was submitted to EPA on

September 11, 1997 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. EPA finds that North Dakota's plan for existing MSW

landfills adequately addresses all of the Federal requirements

applicable to such plans.

DATES: This action is effective on February 13, 1998 unless adverse or

critical comments are received in writing by January 14, 1998. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments on this action should be addressed to Vicki

Stamper, 8P2-A, at the EPA Region VIII Office listed. Copies of the

documents relative to this action are available for inspection during

normal business hours at the following locations: Air Program,

Environmental Protection Agency, Region VIII, 999 18th Street, suite

500, Denver, Colorado 80202-2466; and the North Dakota Department of

Health, Division of Environmental Engineering, 1200 Missouri Avenue,

room 304, Box 5520, Bismarck, North Dakota 58506-5520.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303)

312-6445.

SUPPLEMENTARY INFORMATION:

I. 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, 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 new source performance standard (NSPS) that controls

a designated pollutant, EPA establishes emissions guidelines 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 emission guideline for that source category as well as

40 CFR part 60, subpart B.

On March 12, 1996, EPA published Emission 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 pollutant

regulated by the NSPS and EG is 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

60.31c) 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, or 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 September 11, 1997, the State of North Dakota submitted its

``Section 111(d) Plan for MSW Landfills'' for implementing EPA's MSW

landfill EG. The following provides a brief discussion of the

requirements for an approvable State plan for existing MSW landfills

and EPA's review of North Dakota's submittal in regard to those

requirements. More detailed information on the requirements for an

approvable plan and North Dakota's submittal can be found in the

Technical Support Document (TSD) accompanying this notice, which is

available upon request.

II. Review of North Dakota's MSW Landfill Plan

EPA has reviewed North Dakota's section 111(d) plan for existing

MSW landfills against the requirements of 40 CFR part 60, subpart B and

subpart Cc, as follows:

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A. Identification of enforceable State Mechanism for Implementing the

EG

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.'' North Dakota has adopted State

regulations as the cornerstone of its State plan to control air

emissions from certain existing landfills. Those regulations are in the

State's Air Pollution Control Rules, chapter 33-15-12, section 02, of

the North Dakota Administrative Code (NDAC). These regulations were

adopted by the State in accordance with the State's and EPA's

administrative procedures and became effective on September 1, 1997.

Thus, the State 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. North Dakota provided an opinion

from the State's Assistant Attorney General and included a copy of the

North Dakota Air Pollution Control Law, North Dakota Century Code

(NDCC) Chapter 23-25, to demonstrate its authority for adopting,

implementing, and enforcing its section 111(d) plan. EPA has reviewed

the Assistant Attorney General's opinion and the State laws and has

determined that the State has adequate legal authority to adopt and

implement the section 111(d) plan in accordance with 40 CFR 60.26.

The State did not submit evidence of authority to regulate existing

MSW landfills in Indian Country. Therefore, EPA is not approving this

State Plan as it relates to those sources.

C. Inventory of Existing MSW Landfills in the State Affected by the

State Plan

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. North Dakota

addressed this requirement in Section IV. of its section 111(d) plan by

including a list of all MSW landfills in the State, regardless of

design capacity, that have accepted waste since November 8, 1987. There

are a total of 13 MSW landfills in North Dakota. The State believes

that three of these MSW landfills appear to be subject to 40 CFR part

60, subpart WWW due to expansions that have occurred since the date the

State plan was first proposed and, thus, are not subject to the State

plan. The State of North Dakota estimates that there is one

``existing'' landfill, the City of Grand Forks Municipal Landfill, that

is subject to the requirements to report solid waste capacity,

calculate NMOC emissions, and potentially install a gas collection and

control system. The State estimated in its section 111(d) plan that

there are 9 additional landfills that have solid waste capacities less

than 2.5 million Mg or 2.5 million m3 that have accepted

waste since November 8, 1987. Since the State's adoption of its section

111(d) plan, the State received the design capacity reports from these

nine landfills and confirmed that none are over the 2.5 million Mg or

2.5 million m3 design capacity threshold. Thus, these nine

MSW landfills are not subject to any additional requirements of the

State's section 111(d) plan.

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

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. North Dakota included

in Section IV. of its section 111(d) plan an estimation of NMOC

emissions for all of the thirteen landfills in the State using the

Landfill Air Emissions Estimation Model and AP-42 default emission

factors.

E. Emission Limitations for MSW Landfills

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 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 State of North Dakota incorporated the EG by reference at NDAC 33-

15-12-02, including the emission limitations of 40 CFR 60.33c. Thus,

the State 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

40 CFR 60.33c(b) in the EG requires State plans to include a

process for State review and approval of site-specific design plans for

required gas collection and control systems. In NDAC 33-15-12-02, the

State has incorporated by reference the EG, including the requirements

of 40 CFR 60.33c(b) for the submittal of site-specific design plans

meeting the conditions of 40 CFR 60.752(b)(2)(ii). In addition, Section

VII. of the State's section 111(d) plan discusses the State's process

for review and approval of the design plans. Thus, North Dakota'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 (i.e., the effective date of EPA approval of

the State plan). 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.

North Dakota has adopted enforceable compliance schedules in NDAC

33-15-12-02. The State's rules require that the landfills which are

required to install a collection and control system be in final

compliance with the requirements of the State plan no later than

twenty-nine months from the effective date of EPA approval of this plan

or, for those MSW landfills which are not currently subject to the

collection and control system requirements, within twenty-nine 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. In addition,

the State has included increments of progress

[[Page 65618]]

deadlines for the submittal of a final collection and control system

design plan, awarding contracts for installation of the collection and

control system, initiation of on-site installation of the collection

and control system, and final compliance. Thus, the State's rule

satisfies the requirements of 40 CFR 60.24(e). The State's regulations

also include a requirement for the initial performance test to be

conducted within 180 days of the installation of the collection and

control equipment.

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

40 CFR 60.34c specifies the testing and monitoring provisions that

State plans must include, and 40 CFR 60.35c specifies the reporting and

recordkeeping requirements. In NDAC 33-15-12-02, the State has

incorporated by reference the EG, including the test methods and

procedures of 40 CFR 60.34c and the reporting and recordkeeping

provisions of 40 CFR 60.35c.

However, the State did adopt one exception to the quarterly

monitoring requirements for surface methane concentrations in 40 CFR

60.756(f): the State rule only requires surface methane concentration

monitoring during the second, third, and fourth quarters of the

calendar year. In a June 27, 1997 letter to EPA, the State submitted

extensive climatological data and explained why it believes this data

shows that exceedingly cold temperatures and snow cover during the

winter quarter (January through March) would make monitoring of surface

methane concentrations nearly impossible. In examining this data for

the one MSW landfill that currently appears to be subject to the

collection and control system requirements of the State plan, the City

of Grand Forks Municipal Landfill, the State found the following

information:

a. The mean temperature in Grand Forks is approximately 5 degrees

Fahrenheit in January, 9 degrees in February, and 23 degrees in March;

b. Using the average wind speed for the months of January through

March in Fargo, which is 78 miles south of Grand Forks, the average

wind chill factors would range from -22 degrees Fahrenheit in January

to 2 degrees Fahrenheit in March. Average wind speed in those same

months ranges from 13 to 13.6 mph;

c. The Grand Forks area receives approximately 38 inches of snow

during the winter season, and there is normally at least one inch of

snow depth in Grand Forks from December 1 through the end of March; and

d. The Grand Forks area has approximately 50 days with snow depths

of 6 inches or more and approximately 115 days with snow depth of one

inch or more, which generally fall within the December through March

time frame.

Thus, North Dakota contends that, with mean temperatures during the

winter quarter below freezing and with snow covering the landfill at

depths up to three feet, surface monitoring for methane during the

winter quarter is not practical and, at best, extremely difficult.

EPA believes that the State has provided substantial documentation

showing that the extremely cold temperatures and wind chill factors, as

well as the snow cover, in the Grand Forks area justify the exemption

from first quarter monitoring for surface methane concentrations. If

any other existing MSW landfills become subject to the State's section

111(d) plan in the future, EPA will need to re-evaluate the State's

exemption from first quarter monitoring based on the location and

meteorological data for that location.

Consequently, EPA finds that the State's section 111(d) plan for

MSW landfills adequately addresses the testing, monitoring, reporting,

and recordkeeping requirements of the EG.

I. A Record of Public Hearings on the State Plan

40 CFR 60.23 contains the requirements for public hearings that

must be met by the State in adopting a section 111(d) plan. North

Dakota 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, EPA finds

that North Dakota has adequately met this requirement.

J. Submittal of Annual State Progress Reports to EPA

40 CFR 60.25(e) and (f) require States to submit to EPA annual

reports on the progress of plan enforcement. North Dakota committed in

Section IX. of its section 111(d) plan to submit annual progress

reports to EPA on compliance status, enforcement actions, increments of

progress, identification of sources that have started operation,

emission inventory information for sources that have started operation,

updated emission inventory and compliance information, and technical

reports on all performance testing and monitoring for landfills subject

to the EG. The first progress report will be submitted by the State one

year after EPA 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, EPA is approving North Dakotas

September 11, 1997 submittal of its section 111(d) plan for the control

of landfill gas from existing MSW landfills, except those located in

Indian Country. As provided by 40 CFR 60.28(c), any revisions to North

Dakota'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 EPA in accordance with 40 CFR part 60, subpart B.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the State Plan should

adverse or critical comments be filed. This action will be effective

February 13, 1998 unless, by January 14, 1998, adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

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 February 13, 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 (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare

[[Page 65619]]

a regulatory flexibility analysis assessing the impact of any proposed

or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively,

EPA may certify 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

government entities with jurisdiction over populations of less than

50,000.

State Plan approvals under section 111 of the 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 impose any new requirements, I certify that it does not have a

significant impact on small entities affected. Moreover, due to the

nature of the Federal-state relationship under the Act, preparation of

a regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of state action. The Act forbids EPA to

base its actions concerning State Plans on such grounds. Union Electric

Co.T1 v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C.

7410(a)(2).

C. 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

the 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. 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 February 13, 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 must 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, Methane, Municipal

solid waste landfills, Nonmethane organic compounds, Reporting and

recordkeeping requirements.

Dated: October 24, 1997.

William P. Yellowtail,

Regional Administrator, Region VIII.

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. 7401-7642.

2. Subpart JJ is added to read as follows:

Subpart JJ--North Dakota

LANDFILL GAS EMISSIONS FROM EXISTING MUNICIPAL SOLID WASTE LANDFILLS

Sec.

62.8600 Identification of plan.

62.8601 Identification of sources.

62.8602 Effective date.

Subpart JJ--North Dakota

LANDFILL GAS EMISSIONS FROM EXISTING MUNICIPAL SOLID WASTE LANDFILLS

Sec. 62.8600 Identification of plan.

``Section 111(d) Plan for Municipal Solid Waste Landfills'' and the

associated State regulation in section 33-15-12-02 of the North Dakota

Administrative Code, submitted by the State on September 11, 1997.

Sec. 62.8601 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. 62.8602 Effective date.

The effective date of the plan for municipal solid waste landfills

is February 13, 1998.

[FR Doc. 97-32640 Filed 12-12-97; 8:45 am]

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