Approval and Promulgation of State Plans for Designated Facilities and Pollutants: South Carolina

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[SC-36-1-9932a ; FRL-6426-8]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: South Carolina

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 South Carolina

Department of Health and Environmental Control (DHEC) for the State of

South Carolina on April 12, 1999, 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 October 25, 1999 unless

significant, material, and adverse comments are received by September

23, 1999. If adverse comments are received, timely notice of withdrawal

will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Gregory Crawford,

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; and

at the South Carolina Department of Health and Environmental Control,

Bureau of Air Quality Control, 2600 Bull Street, Columbia, South

Carolina 29201.

FOR FURTHER INFORMATION CONTACT: Gregory Crawford at (404) 562-9046 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 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 was involved in litigation over the requirements of the MSW

landfill EG and NSPS beginning in 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 settlement did not vacate or void the

existing MSW landfill EG or NSPS. Pursuant to the settlement agreement,

EPA published a direct final rulemaking on June 16, 1998, in which EPA

amended 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 South Carolina has amended

their rules for MSW landfills in Regulation 61-62.60 (effective dates

of February 26, 1999), 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 South

Carolina DHEC for the State of South Carolina to implement and enforce

Subpart Cc.

II. Discussion

The South Carolina DHEC submitted to EPA on April 12, 1999, and in

supplemental information submitted on July 14, 1999, the following in

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

guidelines for existing MSW landfills in the State of South Carolina:

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

South Carolina statutes and rules of the South Carolina DHEC.

The approval of the South Carolina State Plan is based on finding

that: (1) the South Carolina DHEC provided adequate public notice of

public hearings for the proposed rulemaking which allows the South

Carolina DHEC to implement and enforce the EG for MSW landfills; and

(2) the South Carolina DHEC 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

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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 the Plan submittal, the South Carolina DHEC cites the following

references for the legal authority: State of South Carolina's Attorney

General's Opinion Regarding State Authority to Operate the Title V

Operating Permit Program; the South Carolina Pollution Control Act

(South Carolina Code Sections 48-1-10 through 48-1-350); and Regulation

61-62.60 of the South Carolina DHEC Air Pollution Control Regulations

and Standards. On the basis of the Attorney General's Opinion, the

statutes, and rules of the State of South Carolina, the State Plan is

approved as being at least as protective as the Federal requirements

for existing MSW landfills.

In the Plan submittal, the South Carolina DHEC cites the

enforceable mechanisms for implementing the EG for existing MSW

landfills. The enforceable mechanisms are the state regulations adopted

by the State of South Carolina in Regulation 61-62.60, ``South Carolina

Designated Facility Plan and New Source Performance Standards.'' The

State'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 the Plan submittal, the South Carolina DHEC cites all emission

limitations for the major pollutant categories related to the

designated sites and facilities. These limitations in Reguation 61-

62.60 are approved as being at least as protective as the Federal

requirements contained in subpart Cc for existing MSW landfills.

In the Plan submittal and the supplemental information, the South

Carolina DHEC submitted a source and emission inventory of all

designated pollutants for each MSW landfill in the State of South

Carolina. This portion of the Plan has been reviewed and approved as

meeting the Federal requirements for existing MSW landfills.

The Plan submittal and the supplemental information describes the

process the South Carolina DHEC 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 the Plan submittal and the supplemental information, the South

Carolina DHEC cites the compliance schedules and increments of progress

adopted in Regulation 61-62.60 for each existing MSW landfill to be in

compliance within 30 months of the approval date of the State Plan.

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.

The South Carolina State Plan submittal 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

South Carolina DHEC 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. The South Carolina DHEC

submitted regulations to support the requirements of monitoring,

recordkeeping, reporting, and compliance assurance in the Plan

submittal. These South Carolina rules have been reviewed and approved

as being at least as protective as Federal requirements for existing

MSW landfills.

The Plan submittal and the supplemental information outlines how

the South Carolina DHEC will provide progress 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 South Carolina State Plan meets

all of the requirements applicable to such plans in 40 CFR part 60,

subparts B and Cc. The South Carolina DHEC 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 South Carolina section 111(d) Plan, as submitted on April 12, 1999,

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 South Carolina State Plan or

associated regulations will not be considered part of the applicable

plan until submitted by the South Carolina DHEC 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 October 25, 1999 unless by September 23, 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 notice 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. 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 October 25, 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.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under Executive Order (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. If EPA complies by consulting, E.O. 12875 requires EPA to

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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 does not involve

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 EPA complies by

consulting, E.O. 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 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

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. Disclaimer Language Approving SIP Revisions in Audit Law States

Nothing in this action should be construed as making any

determination or expressing any position regarding South Carolina's

audit privilege and penalty immunity law or its impact upon any

approved provision in the SIP, including the revision at issue here.

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 South Carolina'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.

G. 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 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.

H. 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

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``major rule'' as defined by 5 U.S.C. 804(2).

J. 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 October 25, 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: August 6, 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 PP--South Carolina

2. Part 62.10100 is amended by adding paragraphs (b)(4) and (c)(4)

to read as follows:

Sec. 62.10100 Identification of plan.

* * * * *

(b) * * *

(4) South Carolina Implementation Plan for Existing Municipal Solid

Waste Landfills, submitted on April 12, 1999, by the South Carolina

Department of Health and Environmental Control.

(c) * * *

(4) Existing municipal solid waste landfills.

Subpart PP--[Amended]

3. Subpart PP is amended by adding a new Sec. 62.10160 and a new

undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills

Sec. 62.10160 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. 99-21823 Filed 8-23-99; 8:45 am]

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