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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OR-2-0001; FRL-6115-5]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the Section

111(d) State Plan submitted by Oregon on May 14, 1997, for implementing

and enforcing the Emissions Guidelines (EG) applicable to existing

Municipal Solid Waste (MSW) Landfills.

DATES: This action is effective on August 25, 1998 unless significant,

material, and adverse comments are received by July 27, 1998. If

significant, material, and adverse comments are received a timely

withdrawal will be published in the Federal Register informing the

public that this rule will not take effect.

ADDRESSES: Written comments should be addressed to: Catherine Woo,

Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle,

Washington 98101.

Copies of materials submitted to EPA may be examined during normal

business hours at the following locations: EPA, Region 10, Office of

Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101,

and at Oregon Department of Environmental Quality, 811 SW Sixth Avenue,

Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Catherine Woo, Office of Air Quality

(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1814.

SUPPLEMENTARY INFORMATION:

I. Background

On March 12, 1996, pursuant to Section 111 of the Clean Air Act

(Act), the EPA promulgated new source performance standards (NSPS)

applicable to new MSW Landfills and EG applicable to existing MSW

Landfills. The NSPS and EG are codified at 40 CFR Part 60, Subparts WWW

and Cc, respectively. See 61 FR 9905 (March 12, 1996). Under Section

111(d) of the Act, the EPA established procedures whereby States submit

plans to control existing sources of designated pollutants. Designated

pollutants are defined as pollutants which are not included on a list

published under Section 108(a) of the Act (i.e., National Ambient Air

Quality Standard pollutants), but to which a standard of performance

for new sources applies under Section 111. Under Section 111(d),

emission standards are to be adopted by the States and submitted to EPA

for approval. The standards limit the emissions of designated

pollutants from existing facilities which, if new, would be subject to

the NSPS. Such facilities are called designated facilities.

The procedures under which States submit these plans to control

existing sources are defined in 40 CFR Part 60,

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Subpart B. According to Subpart B, the States are required to develop

plans within Federal guidelines for the control of designated

pollutants. The EPA publishes guideline documents for development of

State emission standards along with the promulgation of any NSPS for a

designated pollutant. These guidelines apply to designated pollutants

and include information such as a discussion of the pollutant's

effects, description of control techniques and their effectiveness,

costs and potential impacts. Also as guidance for the States,

recommended emission limits and times for compliance are set forth, and

control equipment which will achieve these emission limits are

identified in Subpart Cc for existing MSW Landfills. The EG specified

limits for landfill gas requires affected facilities to operate a

control system designed to reduce collected non-methane organic

compounds (NMOC) concentrations by 98 weight-percent, or reduce the

outlet NMOC concentration to 20 parts per million or less, using the

test methods specified in 40 CFR 60.754(d).

II. Discussion

On May 14, 1997, the Oregon Department of Environmental Quality

(ODEQ) submitted to EPA their 111(d) State Plan for implementing and

enforcing the emission guidelines for existing MSW landfills in the

State. The Plan contained Emission Standards and Limitations,

Compliance Schedule, Emission Inventory, Source Surveillance,

Compliance Assurance and Enforcement, and applicable State regulations

(OAR 340-025-0740, and OAR 340-025-0745).

The approval of ODEQ's State Plan is based on finding that: (1)

ODEQ provided adequate public notice of public hearings for the

proposed rulemaking which allows Oregon to implement and enforce the EG

for MSW Landfills, and (2) ODEQ also demonstrated that it has the 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.

ODEQ's regulations adopt 40 CFR Part 60, Subpart WWW and require

existing MSW Landfills to comply with the Subpart WWW emission

standards and limitations. In its State Plan submittal, ODEQ affirms

that MSW Landfills subject to OAR 340-025-0740 must comply with 40 CFR

Part 60, Subpart WWW. Attachment 3a summarizes all emission standards

and limitations for the major pollutant categories related to the

designated sites and facilities. This approach is approved because the

NSPS Subpart WWW requirements are at least as protective as the Federal

requirements contained in Subpart Cc for existing MSW Landfills.

ODEQ also submitted Oregon Administrative Rule (OAR) 340-025-00745,

which adopts 40 CFR Subpart WWW. Thus, the compliance schedules and

increments of progress specified in Subpart WWW are part of the State

Plan and apply to each existing MSW Landfill as stipulated in Subpart

WWW. The State Rule's requirement that existing MSW Landfills comply

with the compliance schedule and legally enforceable increments of

progress as stated in Subpart WWW has been reviewed and is approved as

being at least as protective as Federal requirements for existing MSW

Landfills in Subpart Cc.

Oregon included in its Plan, under Attachment 3b, emission

inventories for all its applicable sources. There are approximately 91

existing landfills in Oregon's inventory, including several closed

facilities subject to the initial reporting requirements of the EG. In

these inventories, all designated pollutants have been identified and

data provided for each.

Oregon cites its legal authority (ORS468.095, 468A.050(2), and

468A.070) to determine the compliance status by requiring owners and

operators of designated facilities to maintain records and report to

ODEQ the nature and amount of emissions from the facilities. Oregon

also cites it legal authority (468.055(1)&(2)) to conduct periodic

inspection and testing, as necessary, of designated facilities. The

State's ability to provide emission data correlated with the emission

standards to the public is referenced in its State Plan submittal as

well as in OAR 340-025-0740 and OAR 340-025-0745. Finally, Oregon will

provide reports on progress of plan enforcement as required by 40 CFR

60.25.

All measures and other elements in the State Plan must be

enforceable by ODEQ. (See Sections 111(d) and 40 CFR Part 60.) During

EPA's review of a previous State Implementation Plan revision, a

problem was detected concerning the State's ability to adequately

enforce point source permits. EPA determined that, because a five-day

advance notice provision required by Oregon Revised Statute (ORS)

468.126(1) (1991) can bar civil penalties from being imposed for

certain permit violations, ORS 468 fails to provide the adequate

enforcement authority the State must demonstrate to obtain State Plan

submittal, required by the Clean Air Act for program approval.

However, following EPA notification to Oregon, the Governor of

Oregon signed into law new legislation amending ORS 468.126 on

September 3, 1993. This amendment added paragraph 468.126(2)(e) which

provides that the five-day advance notice required by ORS 468.126(1)

does not apply if the notice requirement will disqualify the State's

program from Federal approval or delegation. ODEQ responded to EPA's

interpretation of the application of 468.126(2)(e) and agreed that, if

Federal statutory requirements preclude the use of the five-day advance

notice provision, no advance notice will be required for violations of

the State Plan requirements. Because the five-day notice provision in

ORC 468.126(1) could preclude enforcement of the State Plan in some

instances, application of the notice provision would preclude approval

of the State MWC Plan. Accordingly, pursuant to ORS 468.126(2)(e), the

five-day notice will not be required for permit violations of the State

Plan.

Nothing in this action should be construed as making any

determination or expressing any position regarding Oregon's audit

privilege and penalty immunity law ORS 468.963, Oregon Audit Privilege

Act, or its impact upon any approved provision in the State Plan,

including any subsequent revisions. 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 Oregon'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.

The 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, the EPA has included a parallel proposal to

approve the ODEQ

[[Page 34818]]

State Plan. If no significant, material, and adverse comments are

received by July 27, 1998, this action will be effective August 25,

1998.

If the EPA receives significant, material, and adverse comments by

the above date, this action will be withdrawn before the effective date

by publishing a subsequent document in the Federal Register that will

withdraw this final action. All public comments received will be

addressed in a subsequent final rule based on the parallel proposed

rule published in today's Federal Register. The 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 August 25, 1998.

III. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. 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 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 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.

Pursuant to section 605(b) of the Regulatory Flexibility Act, I

certify that this rule will not have a significant economic impact on a

substantial number of small entities. This Federal action approves pre-

existing requirements under federal, State or local law, and imposes no

new requirements on any entity affected by this rule, including small

entities. Therefore, these amendments will not have a significant

impact on a substantial number of small entities.

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 on 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 amended 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 the 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 August 25, 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), 42

U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 62

Environmental protection, Administrative practice and procedure,

Air pollution control, Emission guidelines, Intergovernmental

relations, Municipal solid waste landfills, Reporting and recordkeeping

requirements.

Dated: June 8, 1998.

Chuck Findley,

Acting Regional Administrator, Region 10.

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.

Subpart MM--Oregon

2. Section 62.9350 is amended by adding paragraphs (b)(5) and

(c)(5) to read as follows:

Sec. 62.9350 Identification of plan.

* * * * *

(b) * * *

(5) Control of landfill gas emission from existing Municipal Solid

Waste Landfill plan was submitted by Oregon Department of Environmental

Quality on May 14, 1997.

(c) * * *

(5) Existing municipal solid waste landfills.

3. Subpart MM is amended to add Sec. 62.9510 and a new undesignated

heading to read as follows:

Control of Landfill Gas Emissions From Existing Municipal Solid

Waste Landfills

Sec. 62.9510 Identification of sources.

The plan applies to all existing MSW landfill facilities in Oregon

meeting the requirements as stated in their State regulations.

[FR Doc. 98-17119 Filed 6-25-98; 8:45 am]

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