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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[TN 222-1-9928a; FRL-6448-3]

Approval and Promulgation of State Plans For Designated

Facilities and Pollutants: Tennessee

AGENCY: Environmental Protection Agency (EPA).

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 Tennessee Department

of Environment and Conservation (DEC) for the State of Tennessee on

January 8, 1999, for implementing and enforcing the Emissions

Guidelines (EG) applicable to existing Municipal Solid Waste (MSW)

Landfills.

DATES: This direct final rule is effective on November 29, 1999 without

further notice, unless EPA receives significant, material, and adverse

comment by November 1, 1999. If EPA receives adverse comment, 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 Steven M.

Scofield at the EPA, Region 4 Air Planning Branch, 61 Forsyth Street,

SW, Atlanta, Georgia 30303.

Copies of documents related to this action are available for the

public to review during normal business hours at the locations below.

If you would like to review these documents, please make an appointment

with the appropriate office at least 24 hours before the visiting day.

Reference file TN 222-1-9928a. The Region 4 office may have additional

documents not available at the other locations.

Environmental Protection Agency, Region 4 Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303. Steven M. Scofield, 404/

562-9034.

Tennessee Department of Environment and Conservation, Division of Air

Pollution Control, 9th Floor L & C Annex, 401 Church Street, Nashville,

Tennessee 37243-1531, 615/532-0554.

FOR FURTHER INFORMATION CONTACT: Scott Davis at 404/562-9127 or Steven

M. Scofield at 404/562-9034.

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

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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 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. 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

Tennessee DEC for the State of Tennessee to implement and enforce

subpart Cc.

II. Discussion

The Tennessee DEC submitted to EPA on January 8, 1999, in addition

to a prior portion of the plan submitted on November 16, 1998, the

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

the emission guidelines for existing MSW landfills in the State of

Tennessee: Statutory and Legal Authority; Enforceable Mechanisms; MSW

Landfill Source and Emissions Inventory; Emission Limitations; Process

for Review and Approval of Collection and Control System Design Plans;

Testing, Monitoring, Recordkeeping, and Reporting; Compliance Schedule;

Demonstration That the Public Had Adequate Notice and Public Hearing

Record; Submittal of Progress Reports to EPA; Quality Assurance; and

applicable State of Tennessee codes and Tennessee DEC Air Pollution

Control regulations.

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

(1) The Tennessee DEQ provided adequate public notice of public

hearings for the proposed rulemaking and State Plan which allows the

Tennessee DEC to implement and enforce the EG for MSW landfills; and

(2) The Tennessee DEC 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 the plan and appendix A, the Tennessee DEC cites the following

reference demonstrating their legal authority: Tennessee Code Annotated

68-201-105. On the basis of these codes of the State of Tennessee, the

State Plan is approved as being at least as protective as the Federal

requirements for existing MSW landfills.

In the plan and appendix B, the Tennessee DEC cites the enforceable

mechanism for implementing the EG for existing MSW landfills. The

enforceable mechanisms are the state regulations adopted by the State

of Tennessee in Tennessee Air Pollution Control Regulations, Paragraphs

1200-3-7-.07(7), (8), and (9). 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 and appendix B, the Tennessee DEC cites all emission

limitations for the major pollutant categories related to the

designated sites and facilities. These limitations in Paragraph 1200-3-

7-.07(7) are approved as being at least as protective as the Federal

requirements contained in subpart Cc for existing MSW landfills.

The plan describes the process the Tennessee DEC 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, the Tennessee DEC cites the compliance schedules

adopted in Paragraph 1200-3-7-.07(7)(c) for each existing MSW landfill

to be in compliance within 30 months of the effective date of their

State regulation (effective on December 28, 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 E of the plan, the Tennessee DEC submitted a source and

emission inventory of all designated pollutants for each MSW landfill

in the State of Tennessee. This portion of the plan has been reviewed

and approved as meeting the Federal requirements for existing MSW

landfills.

The plan includes Tennessee's 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 Tennessee DEC 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. Tennessee Code 68-201-105, Paragraph 1200-3-7-.07(7), and

Paragraph 1200-3-9-.02(11) support the requirements of monitoring,

recordkeeping, reporting, and compliance assurance. These Tennessee

regulations (appendices A, B, and C) have been reviewed and approved as

being at least as protective as Federal

[[Page 52662]]

requirements for existing MSW landfills.

The Plan outlines how the Tennessee DEC 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 Tennessee State Plan meets all of

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

and C. The Tennessee DEC 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

EPA is approving the State of Tennessee section 111(d) Plan, as

submitted on January 8, 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

Tennessee State Plan or associated regulations will not be considered

part of the applicable plan until submitted by the Tennessee DEC 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 SIP revision should

relevant adverse comments be filed. This rule will be effective

November 29, 1999 without further notice unless the Agency receives

relevant adverse comments by November 1, 1999.

If the EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period. Only parties interested in

commenting should do so at this time. If no such comments are received,

the public is advised that this rule will be effective on November 29,

1999 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.) 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

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 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.

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 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

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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 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 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 November 29, 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: July 28, 1999.

A. Stanley Meiburg,

Acting Regional Administrator,

Region 4.

Part 62 of chapter I, title 40, 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. 7401-76719.

Subpart RR--Tennessee

2. Sec. 62.10626 is amended by adding paragraph (b)(3) to read as

follows:

Sec. 62.10626 Identification of plan.

* * * * *

(b) * * *

(3) State of Tennessee Plan for Implementing the Municipal Solid

Waste Landfill Emission Guideline Requirements of 40 CFR part 60,

subpart Cc, submitted on January 8, 1999, by the Tennessee Department

of Environment and Conservation.

[FR Doc. 99-25431 Filed 9-29-99; 8:45 am]

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