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

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.

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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:

I. 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.

[[Page 54056]]

II. 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.

III. 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.

IV. Administrative Requirements

A. 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.''

B. 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.

C. 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.

D. 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.

E. 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).

F. 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.

G. 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).

H. 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 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).)

[[Page 54058]]

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]

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

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

Subpart B--Alabama

2. 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.

3. 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. 98-26899 Filed 10-7-98; 8:45 am]

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