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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[TX-108-1-7408a; FRL-6361-4]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We are approving the section 111(d) Plan submitted by the

Governor of Texas on November 3, 1998, to implement and enforce the

Emissions Guidelines (EG) for existing Municipal Solid Waste (MSW)

Landfills. The EG require States to develop plans to collect landfill

gas from large MSW landfills.

DATES: This direct final rule is effective on August 16, 1999, without

further notice, unless we receive adverse comments by July 19, 1999. If

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

direct final rule in the Federal Register and inform the public that

the rule will not take effect.

ADDRESSES: You should address comments on this action to Lt. Mick Cote,

EPA Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite

1200, Dallas, Texas 75202. Copies of all materials considered in this

rulemaking may be examined during normal business hours at the

following locations: EPA Region 6 offices, 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202, and at the Texas Natural Resource Conservation

Commission offices, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote at (214) 665-7219.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is being taken by EPA today?

II. Why do we need to regulate landfill gas?

III. What is being acted on in this document?

IV. What is a State Plan?

V. What does the Texas State Plan contain?

VI. How can I determine whether my landfill is subject to these

regulations?

VII. What steps do I need to take?

VIII. Administrative Requirements.

I. What Action Is Being Taken by EPA Today?

We are approving the Texas State Plan to control landfill gas from

existing MSW landfills, as submitted to us by Texas on November 3,

1998. This State Plan does not affect those existing MSW landfills

located in Indian Country.

We are publishing this action without prior proposal because we

view this as a noncontroversial action and anticipate no adverse

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

publication, we are proposing to approve the revision should

significant, material, and adverse comments be filed. This action is

effective August 16, 1999, unless by July 19, 1999, adverse or critical

comments are received. If we receive 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 this action serving as

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

action.

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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 is effective August 16, 1999.

II. Why Do We Need To Regulate Landfill Gas?

Landfill gas contains a mixture of volatile organic compounds

(VOCs), other hazardous air pollutants (HAPs), and methane. These VOC

emissions can contribute to ozone formation, which can cause adverse

health effects to humans 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. We presented our concerns with the health and

welfare effects of landfill gases in the preamble to our proposed EG

(56 FR 24468, May 30, 1991).

III. What Is Being Acted on in This Document?

When we developed our New Source Performance Standard (NSPS) for

landfills, we also developed EG to control landfill gas from older

landfills (See 61 FR 9905-9944, March 12, 1996). The Texas Natural

Resource Conservation Commission (TNRCC) developed a State Plan, as

required by section 111(d) of the Clean Air Act (the Act), to adopt the

EG into their body of regulations, and we are acting today to approve

it.

IV. What Is a State Plan?

Section 111(d) of the Act requires that ``designated'' pollutants

controlled under the NSPS must also be controlled at existing sources

in the same source category. To ensure proper implementation of the

requirements of section 111(d), we approved 40 CFR part 60, subpart B

(40 FR 53340, November 17, 1975). Subpart B provides that, once an NSPS

is promulgated, we then publish an EG applicable to the control of the

same pollutant from designated (existing) facilities. Affected States

must then adopt the EG into their body of regulations.

V. What Does the Texas State Plan Contain?

The Texas State Plan was reviewed for approval against the

following criteria: 40 CFR Part 60, Secs. 60.23 through 60.26, subpart

B--Adoption and Submittal of State Plans for Designated Facilities;

and, 40 CFR part 60, Secs. 60.30c through 60.36c, subpart Cc--Emission

Guidelines and Compliance Times for Municipal Solid Waste Landfills.

The evaluation of the Texas State Plan indicates that it contains:

1. a demonstration of the State's legal authority to implement the

section 111(d) State Plan, as authorized under the Texas Clean Air Act

Sections 382.011, 382.012, and 382.017;

2. an incorporation of the Federal regulations into the Texas

Administrative Code (TAC) at 30 TAC Chapter 113, Subchapter D, Sections

113.2060, Definitions; 2061, Standards for Air Emissions; 2067,

Exemptions; and 2069, Compliance Schedule;

3. an inventory of approximately 113 known designated facilities,

with estimated design capacities, as listed in Tables 4, 5a, and 5b of

the State Plan;

4. emission limits that are as stringent as the EG, listed in TAC

Section 113.2061;

5. a process to review gas collection system design plans;

6. a final compliance date 30 months after the date a designated

facility reaches or exceeds 50 Mg of NMOC emissions annually;

7. testing, monitoring, reporting and recordkeeping requirements

for the designated facilities, as listed in TAC Section 113.2061;

8. records from the three public hearings; and,

9. provisions for progress reports to EPA.

The Texas State Plan does deviate from the EG on two issues. The EG

defines designated facilities as those that have accepted waste after

November 8, 1987. The TNRCC provided a detailed technical analysis

which indicates that no designated landfills which closed between

November 8, 1987, and October 9, 1993, will have estimated non-methane

organic compounds (NMOC) emissions above the 50 megagram (Mg) control

threshold by the year 2000. Controlling these closed landfills would

not result in a significant reduction in NMOC emissions compared to the

cost to install gas collection systems at these sites. Our Code of

Federal Regulations (CFR), at 40 CFR Sec. 60.24(f), allows for less

stringent regulations if a technical or economic justification supports

it. Based on Sec. 60.24(f), the TNRCC adjusted its definition to

reflect actual conditions in Texas. The definition of MSW landfills in

Texas then includes facilities that have accepted waste since November

8, 1987, and either closed after October 8, 1993, or are currently

still accepting waste. We agree with the justification for excluding

this group of MSW landfills from the State Plan, and accept the State's

use of Sec. 60.24(f) to change its definition of MSW landfills in

Texas.

Second, the Texas State Plan does not include specific increments

of progress towards the final 30 month compliance date, as discussed in

40 CFR 60.24(e)(1). However, the State can develop separate increments

of progress for each designated facility and submit these as revisions

to the State Plan within a year of the Federal approval of the Texas

State Plan (40 CFR 60.24(e)(2)). For this reason we can approve the

State Plan in its current form. We fully expect the TNRCC to submit

increments of progress within a year of our approval of this State

Plan. Please request a copy of our official file to review our detailed

discussion of the requirements of the NSPS and EG, along with our

evaluation of the Texas State Plan.

VI. How Can I Determine Whether My Landfill Is Subject to These

Regulations?

Any MSW landfill which began construction, reconstruction or

modification before May 30, 1991, and has accepted waste at any time

since October 9, 1993, is affected by the EG and the Texas State Plan.

If your facility meets these two criteria, your landfill is subject to

these regulations.

VII. What Steps Do I Need To Take?

You must report your landfill's design capacity to the

TNRCC within 90 days of the effective date of our approval of the Texas

State Plan (See Section 113.2069).

If your landfill has a design capacity above 2.5 million

Mg, you must also estimate and report your annual NMOC emission rate to

the TNRCC within the same 90-day timeframe (See Section 113.2069).

If your landfill has a design capacity below 2.5 million

Mg, you have met all the requirements of the Texas State Plan. However,

if you modify your landfill and increase the design capacity above the

2.5 million Mg threshold, you must submit an amended design capacity

report to the TNRCC within 90 days of the modification. You must also

estimate and submit your annual NMOC emission rate to the TNRCC within

90 days of the modification (Section 113.2061). Your landfill will then

be considered an NSPS source and subject to the requirements listed

under 40 CFR part 60, subpart WWW.

You must have a gas collection system installed and

operating within 30 months of the date you project to be at or above

the 50 Mg threshold (Section 113.2061).

You must record and keep accurate records regarding site

information and

[[Page 32429]]

gas collection system operational data (Section 113.2061).

VIII. Administrative Requirements

A. Executive Order (E.O.) 12866

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

regulatory action from E.O. 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, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB 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, 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 rules on any of

these entities. This action does not create any new requirements but

simply approves requirements that the State is already imposing.

Accordingly, the requirements of section 1(a) of E.O. 12875 do not

apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``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.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because it approves a State program.

D. Executive Order 13084

Under E.O. 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, E.O. 13084 requires EPA to

provide to the OMB, 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, E.O. 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. This action does not involve

or impose any requirements that affect Indian tribes. 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, 5 U.S.C. 600 et seq., 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 approvals

under section 111 of the Federal Clear Air Act (the 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

Act, preparation of a flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Act

forbids EPA to base its actions concerning SIPs on such grounds. See

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,

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.

The 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. The 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. A major rule can

not take

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effect until 60 days after it is published in the Federal Register.

This action is not a ``major'' rule as defined by 5 U.S.C. 804(2). This

rule will be effective August 16, 1999.

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by August 16, 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: June 7, 1999.

Gregg A. Cooke,

Regional Administrator, Region 6.

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. 7401-7671q.

Subpart SS--Texas

2. Section 62.10850 is amended by adding paragraph (b)(3) to read

as follows:

Sec. 62.10850 Identification of plan.

* * * * *

(b) * * *

(3) Control of landfill gas emissions from existing municipal solid

waste landfills, submitted by the Governor on November 3, 1998.

* * * * *

3. Subpart SS is amended by adding a Sec. 62.10880 and a new

undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills

Sec. 62.10880 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 October 8,

1993, or that have additional capacity available for future waste

deposition, as described in 40 CFR part 60, subpart Cc.

[FR Doc. 99-15265 Filed 6-16-99; 8:45 am]

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