Approval and Promulgation of State Plans For Designated Facilities and Pollutants: Florida

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[FL-79-9918a; FRL-6352-7]

Approval and Promulgation of State Plans For Designated

Facilities and Pollutants: Florida

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 Florida Department

of Environmental Protection (DEP) for the State of Florida on October

28, 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 August 3, 1999 unless

significant, material, and adverse comments are received by July 6,

1999. If such adverse comments are received, timely notice of the

withdrawal will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Joey LeVasseur, EPA

Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia

30303-8960. Copies of materials submitted to EPA may be examined during

normal business hours at the following locations:

EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW,

Atlanta, Georgia 30303-8960.

Florida Department of Environmental Protection, Air Resources

Management Division, Twin Towers Office Building, 2600 Blair Stone

Road, Tallahassee, Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur at (404) 562-9035 or

Scott Davis at (404) 562-9127.

SUPPLEMENTARY INFORMATION:

I. Background

Under section 111(d) of the Clean Air Act (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, 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

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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 notice 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. The State

of Florida has amended their rules for MSW landfills in Chapter 62-204

of the Florida Administrative Code (FAC), Rule 62-204.800(8)(c) and

Rule 62-204.800(7)(b)72 (effective dates of October 19, 1998), to

reflect the June 16, 1998, amendments to subparts Cc and WWW.

Accordingly, the MSW landfill EG published on March 12, 1996, and

amended on June 16, 1998, was used as the basis by EPA for review of

this section 111(d) Plan submittal.

This action approves the section 111(d) Plan submitted by the

Florida DEP for the State of Florida to implement and enforce subpart

Cc.

II. Discussion

The Florida DEP submitted to EPA on October 28, 1998, the following

in their section 111(d) Plan for implementing and enforcing the

emission guidelines for existing MSW landfills in the State of Florida:

Legal Authority; Enforceable Mechanisms; MSW Landfill Source and

Emission Inventory; Emission Limits; Review and Approval Process for

Collection and Control System Design Plans; Compliance Schedules;

Testing, Monitoring, Recordkeeping and Reporting Requirements;

Demonstration That the Public Had Adequate Notice and Public Hearing

Record; Submittal of Progress Reports to EPA; and applicable State of

Florida statutes and rules of the FAC.

The approval of the Florida State Plan is based on finding that:

(1) The Florida DEP provided adequate public notice of public hearings

for the proposed rulemaking which allows the Florida DEP to implement

and enforce the EG for MSW landfills; and (2) the Florida DEP 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 section 1.0 and Appendix B of the Plan, the Florida DEP cites

the following references for the legal authority: Florida Statutes (FS)

section 403.061; section 403.8055; section 403.061(6), (7), (8), (12),

and (13); section 403.121; section 403.131; section 403.141; section

403.161; and section 119.07. These statutes are approved as being at

least as protective as the Federal requirements for existing MSW

landfills.

In section 2.0 of the Plan, the Florida DEP cites the enforceable

mechanisms for implementing the EG for existing MSW landfills. The

enforceable mechanisms are the State regulations adopted by the State

of Florida in Rule 62-204.800(8)(c) and Rule 62-204.800(7)(b)72 of the

FAC. Florida's regulations meet the Federal requirements for an

enforceable mechanism and are approved as being at least as protective

as the Federal requirements contained in subpart Cc for existing MSW

landfills.

In section 2.0 of the Plan, the Florida DEP cites all emission

limitations for the major pollutant categories related to the

designated sites and facilities. These limitations in Rule 62-

204.800(8)(c) are approved as being at least as protective as the

Federal requirements contained in subpart Cc for existing MSW

landfills.

In section 3.0 and 4.0 of the Plan, the Florida DEP submitted a

source and emission inventory of all designated pollutants for each MSW

landfill in the State of Florida. This portion of the Plan has been

reviewed and approved as meeting the Federal requirements for existing

MSW landfills.

Section 5.0 of the Florida State Plan describes the process that

Florida DEP 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 section 5.0 of the Plan, the Florida DEP cites the compliance

schedules adopted in Rule 62-204.800(8)(c) for each existing MSW

landfill to be in compliance within 30 months of the designated date of

December 31, 1996, in their implementing regulation. These compliance

times for affected MSW landfills will be no later than June 30, 1999,

and 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.

Section 6.0 of the Florida State Plan includes its legal authority

to require owners and operators of designated facilities to maintain

records and report to their agency the nature and amount of emissions

and any other information that may be necessary to enable their agency

to judge the compliance status of the facilities. The Florida DEP 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. Rule 62-204.800(8)(c) and Rule 62-204.800(7)(b)72 of

the FAC support the requirements of monitoring, recordkeeping,

reporting, and compliance assurance. These Florida rules have been

reviewed and approved as being at least as protective as Federal

requirements for existing MSW landfills.

Section 7.0 of the Plan outlines how the Florida DEP will provide

progress

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reports of Plan implementation updates 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 Florida State Plan meets all of

the requirements applicable to such plans in 40 CFR part 60, subparts B

and Cc. The Florida DEP 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.

Final Action

Based on the rationale discussed above, EPA is approving the State

of Florida section 111(d) Plan, as submitted on October 28, 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 Florida State Plan or associated

regulations will not be considered part of the applicable plan until

submitted by the Florida DEP 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.

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 is proposing to approve the revision

should significant, material, and adverse comments be filed. This

action will be effective August 3, 1999 unless by July 6, 1999, adverse

or critical comments are received.

If the 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 be

addressed in a subsequent final rule based on the proposed rule. 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 3, 1999.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any section 111(d) plan. Each request for revision to the

section 111(d) plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

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.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly 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.

D. 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.

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 CAA 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

CAA, preparation

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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 August 3, 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: April 21, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR Part 62 of the Code of Federal Regulations 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 K--Florida

2. Section 62.2350 is amended by adding paragraphs (b)(6) and

(c)(4) to read as follows:

Sec. 62.2350 Identification of plan.

* * * * *

(b) * * *

(6) State of Florida Department of Environmental Protection Section

111(d) State Plan For Municipal Solid Waste Landfills, submitted on

October 28, 1998, by the Florida Department of Environmental

Protection.

(c) * * *

(4) Existing municipal solid waste landfills.

Subpart K--[Amended]

3. Subpart K is amended by adding a new Sec. 62.2360 and a new

undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills

Sec. 62.2360 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. 99-13942 Filed 6-3-99; 8:45 am]

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