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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[SD-001-0003a and SD-001-0004a; FRL-6351-8]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants; South 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: EPA approves the South Dakota plan and regulations for

controlling landfill gas emissions from existing municipal solid waste

(MSW) landfills. South Dakota's regulations require existing MSW

landfills to install a landfill gas collection and control system, if

the MSW landfill's design capacity and non-methane organic compound

(NMOC) emissions are above certain thresholds. South Dakota submitted

its original plan to EPA on May 2, 1997 and then submitted revisions to

the plan on May 6, 1999.

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South Dakota submitted this plan to meet section 111(d) of the Clean

Air Act (Act) and EPA's Emission Guidelines for existing MSW landfills

at 40 CFR part 60, subpart Cc. We approve South Dakota's plan because

the State has met these requirements.

DATES: This rule is effective on August 2, 1999 without further notice,

unless we receive adverse comment by July 6, 1999. If we receive

adverse comments, we will publish a timely withdrawal of the direct

final rule in the Federal Register informing the public that the rule

will not take effect.

ADDRESSES: You should mail your written comments to Richard R. Long,

Director, Air and Radiation Program, Mailcode 8P-AR, Environmental

Protection Agency (EPA), Region VIII, 999 18th Street, Suite 500,

Denver, Colorado 80202. Copies of the documents relative to this action

are available for inspection during normal business hours at the Air

and Radiation Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies of the

State documents relevant to this action are available for public

inspection at the Department of Environmental and Natural Resources,

Joe Foss Building, 523 East Capitol, Pierre, South Dakota 57501-3181.

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

312-6445.

SUPPLEMENTARY INFORMATION:

I. EPA Action

A. What Action Is EPA Taking Today?

We approve the South Dakota plan and regulations for controlling

landfill gas emissions from existing municipal solid waste (MSW)

landfills, except for those landfills located in Indian Country

1. South Dakota submitted its original plan to us on May 2,

1997 and then submitted revisions to the plan on May 6, 1999. South

Dakota's Plan includes the ``Section 111(d) State Plan for Municipal

Solid Waste Landfills'' and the State's regulations in Sections

74:36:07:34 through 74:36:07:42 of the Administrative Rules of South

Dakota (ARSD).

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\1\ See further discussion in Section I.D. of this preamble.

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We are publishing this rule without prior proposal because we view

this as a noncontroversial action and anticipate no adverse comments.

However, in the ``Proposed Rules'' section of today's Federal Register

publication, we are publishing a separate document that will serve as

the proposal to approve the SIP revision if adverse comments are filed.

This rule will be effective August 2, 1999 without further notice

unless we receive adverse comments by July 6, 1999. If we receive

adverse comments, we will publish a timely withdrawal in the Federal

Register informing the public that the rule will not take effect. We

will address all public comments in a subsequent final rule based on

the proposed rule. We will not institute a second comment period on

this action. Any parties interested in commenting must do so at this

time.

B. Why Is EPA Approving South Dakota's Plan for MSW Landfills?

We reviewed South Dakota's plan, as revised by the State, and found

that it meets the general requirements for section 111(d) plans in 40

CFR part 60, subpart B, and the specific requirements for existing MSW

landfills in 40 CFR part 60, subpart Cc (as revised on June 16, 1998,

63 FR 32743-53).

C. What Does the South Dakota Plan Contain?

South Dakota's plan includes:

1. A demonstration that South Dakota has adequate legal authority

to adopt and implement the plan;

2. Sections 74:36:07:34 through 74:36:07:42 of the ARSD as the

enforceable mechanism for implementing the Emission Guidelines;

3. An inventory of all existing MSW landfills subject to the State

Plan, including an estimation of NMOC emissions and design capacity of

each landfill;

4. Emission limits that are no less stringent than the Emission

Guidelines;

5. A process for the State's review and approval of the design plan

for a landfill's gas collection and control system;

6. A final compliance date of thirty months from the date of the

first NMOC emission rate report showing emissions equal to or greater

than 50 megagrams per year (Mg/yr);

7. ``Increments of progress'' deadlines to ensure the landfills are

on track to meet the final compliance date;

8. Testing, monitoring, recordkeeping and reporting requirements

for existing MSW landfills that are no less stringent than the Emission

Guidelines;

9. A commitment to submit annual progress reports to EPA on

implementation of the State Plan; and

10. Documentation that the State met all public participation

requirements for its two rulemaking hearings. Further details of the

State's Plan can be found in the Technical Support Document for this

action, which you can obtain by contacting the Regional Office contact

listed above. The specific requirements of the State's Plan as it

applies to MSW landfills are described below.

D. What MSW Landfills Are Subject to South Dakota's Plan?

If you are the owner or operator of a MSW landfill in South Dakota,

then you are subject to South Dakota's plan if

1. The landfill accepted waste since November 8, 1987;

2. The landfill was constructed, reconstructed, or modified before

May 30, 1991; and

3. The landfill's design capacity is greater than or equal to 2.5

million Mg and 2.5 million m\3\.

If your landfill was constructed, reconstructed, or modified after

May 30, 1991, then you are subject to the New Source Performance

Standard in 40 CFR part 60, subpart WWW (incorporated into the ARSD in

section 74:36:07:43), rather than South Dakota's plan for ``existing

landfills.'' If you have questions on how a MSW landfill is defined,

refer to the definitions in 40 CFR part 60, subparts Cc and WWW.

If your landfill is located in Indian Country, then you will be

subject to the Federal Plan which was proposed on December 16, 1998 (63

FR 69634-69684) and which will be finalized in the near future. We are

not approving South Dakota's plan for landfills located in Indian

Country. Note that we are currently discussing with the State and the

Tribes how to describe Indian Country in South Dakota. A more specific

description of Indian Country will be published in a future Federal

Register notice concerning approval of the State's New Source

Performance Standard for MSW landfills.

E. What Requirements Apply to MSW Landfills in South Dakota That Are

Subject to the State's Plan?

If you are the owner or operator of an existing MSW landfill that

South Dakota determined has a design capacity of 2.5 million Mg or 2.5

million m\3\, then you must submit an initial report of your landfill's

NMOC emission rate to the State by November 1, 1999. You must also

submit updated NMOC emission rate reports annually or every five years

as required by ARSD 74:36:07:42.01. The landfill's NMOC emission rate

must be calculated in accordance with 40 CFR 60.754.

Once the landfill's NMOC emission rate is equal to or greater than

50 Mg/yr, then you must install a landfill gas collection and control

system that meets the specifications of ARSD 74:36:07:36-37. You must

also comply with the operational standards, compliance provisions,

monitoring provisions, and recordkeeping and reporting

[[Page 29798]]

requirements in sections 74:36:07:39-42 of the ARSD.

F. By What Date Are Existing MSW Landfills Required To Comply With

South Dakota's Plan?

If you are required to install a gas collection and control system,

then you must complete construction of that system within thirty months

of your first annual NMOC emission rate report showing emissions equal

to or greater than 50 Mg/yr. You must also meet the interim deadlines

specified in sections 74:36:07:35 and 38 for submitting your design

plan, awarding contracts, beginning construction, and demonstrating

compliance.

G. What Is a Section 111(d) State Plan?

Whenever we issue a New Source Performance Standard for a source

category controlling a pollutant which is not a ``criteria pollutant''

regulated under section 110 of the Act or a hazardous air pollutant

(HAP) regulated under section 112 of the Act, EPA must issue guidelines

for controlling that pollutant at existing sources of the same source

category. Criteria pollutants are pollutants for which EPA has issued

national ambient air quality standards (NAAQS) (see 40 CFR part 50).

A section 111(d) State Plan must meet the Emission Guidelines which

we issued for that source category, as well as the general requirements

that apply to all section 111(d) plans in 40 CFR part 60, subpart B.

States are required to submit plans meeting those requirements within

nine months after publication of Emission Guidelines.

H. Why Did EPA Regulate Landfill Gas Emissions?

Landfill gas emissions 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. NMOC emissions are measured as a surrogate for

MSW landfill emissions. We issued New Source Performance Standards to

control landfill gas emissions from new, modified, or reconstructed MSW

landfills on March 12, 1996. (See 40 CFR part 60, subpart WWW.) Since

NMOCs are not a criteria pollutant or a HAP, we also issued Emission

Guidelines for existing MSW landfills on March 12, 1996. (See 40 CFR

part 60, subpart Cc.)

Note that we revised the Emission Guidelines and New Source

Performance Standards for MSW landfills on June 16, 1998, in response

to our proposed settlement in National Solid Wastes Management

Association v. Browner, et. al., No. 96-1152 (D.C. Cir). (See 63 FR

32743-32784). In addition, we issued technical amendments to the

Emission Guidelines and New Source Performance Standard on February 24,

1999 (64 FR 9258-9262).

IV. What Are the Administrative Requirements Associated With This

Action?

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Enhancing the Intergovernmental Partnership

Under Executive Order 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, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to 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 any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 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 Executive

Order 12875 do not apply to this rule.

C. Executive Order 13045

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 does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084 Consultation and Coordination with Indian

Tribal Governments

Under Executive Order 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, or EPA consults

with those governments. If EPA complies by consulting, Executive Order

13084 requires EPA to 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, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

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

Executive Order 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

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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 State Plan

approvals under section 111 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 approval of the State Plan

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

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 here 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.

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 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 August 2, 1999. 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).)

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: May 21, 1999.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

40 CFR part 62, subpart QQ, of chapter I, title 40 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 QQ is added to read as follows:

Subpart QQ--South Dakota

Sec.

62.10350 Identification of plan.

62.10351 Identification of sources.

62.10352 Effective date.

Subpart QQ--South Dakota

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills

Sec. 62.10350 Identification of plan.

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

and the State's implementing regulations in Sections 74:36:07:34

through 74:36:07:42 of the Administrative Rules of South Dakota (ARSD),

submitted by the State on May 2, 1997 with amendments to the plan

submitted on May 6, 1999.

Sec. 62.10351 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. 62.10352 Effective date.

The effective date of the plan for municipal solid waste landfills

is August 2, 1999.

[FR Doc. 99-13797 Filed 6-2-99; 8:45 am]

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