Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; Allegheny County, Pennsylvania; Control of Landfill Gas Emissions from Existing Municipal Solid Waste Landfills

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[PA-107-4066c; FRL-6311-3]

Approval and Promulgation of State Air Quality Plans for

Designated Facilities and Pollutants; Allegheny County, Pennsylvania;

Control of Landfill Gas Emissions from Existing Municipal Solid Waste

Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a municipal solid waste landfill (MSW) 111(d)

plan submitted by the Commonwealth of Pennsylvania Department of

Environmental Protection (PADEP) on behalf of the Allegheny County

Health Department (ACHD) for the purpose of controlling MSW landfill

gas emissions from existing facilities. The plan was submitted to

fulfill requirements of the Clean Air Act (CAA). The Allegheny County

plan establishes landfill gas emissions limits for existing MSW

landfills, and provides for the implementation and enforcement of those

limits.

EFFECTIVE DATE: This final rule is effective on April 16, 1999.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street, Philadelphia, Pennsylvania 19103; and Allegheny

County Health Department, Bureau of Environmental Quality, Division of

Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-

2190, or by e-mail at [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

On April 10, 1998 (63 FR 17683), EPA published a direct final rule

for approval of the MSW landfill 111(d) plan submitted by the PADEP on

behalf of ACHD. EPA concurrently published a proposed rule on April 10,

1998 (63 FR 17793) to allow interested parties to submit comments.

During the public comment period, EPA received one adverse comment from

Browning-Ferrris Industries, Inc. As a result, EPA withdrew the direct

final rule granting approval of the MSW landfill 111(d) plan for

Allegheny County on June 18, 1998 (63 FR 33250).

On June 16, 1998, EPA published in the Federal Register (63 FR

32743) a direct final action which amends, corrects errors, and

clarifies the regulatory text of the ``Standards of Performance for New

Stationary Sources and Guidelines for Control of Existing Sources:

Municipal Solid Waste Landfills,'' which was promulgated on March 12,

1996. The Background section of the amended rule (63 FR 32744) states,

``These changes do not significantly modify the requirements of the

regulation.'' No adverse comments were received on the amended landfill

rule, and as a result, it became effective on August 17, 1998.

II. Response to Public Comments

During the public comment period offered on the approval of the

Allegheny County MSW landfill 111(d) plan, EPA received an adverse

comment from Browing-Ferris Industries, Inc. opposing approval of the

Allegheny County portion of the Commonwealth of Pennsylvania's plan.

The following paragraphs present the commenter's remarks and EPA's

responses.

Comment: On May 12, 1998, the commenter noted that the effective

date specified in ``Section G. Compliance Schedule'' of the direct

final rule can be no sooner than the date of Federal Register

publication, April 10, 1998. The direct final rule states: ``The final

compliance date and enforceable increments of progress under the 111(d)

plans are tied to the effective date of the County's MSW landfill

regulation (Article XXI, section 2105.73).'' The table ``Reporting and

Required Increments of Progress,'' which appears in Section G,

indicates that the first compliance/reporting deadline pursuant to the

emission guidelines (EG) is ``Within 90 days of the effective date of

Article XXI Regulation*.'' The footnote (*) states that ``The

regulation became effective on August 15, 1997.'' According to the

commenter, use of the state/county effective date to trigger subsequent

requirements is inconsistent with previous EPA approvals under 40 CFR

Part 60, Subpart Cc, and with proposed revisions to the landfill new

source performance standards/emission guidelines (NSPS/EG). Also, the

Pennsylvania Air Pollution Control Act

[[Page 13076]]

(Section 4004.2(b)) prohibits the state from establishing more

stringent requirements than the federal government. The commenter

identified four EPA 111(d) plan approvals, excluding Allegheny County,

to support his argument that the EG ``effective date'' is not

established by the effective date of the state/local regulation.

Furthermore, the commenter noted that a Title V application should not

be due until one year plus 90 days from April 10, 1998, and that

installation/operation of an EG compliant gas collection/control system

should not be required until three years plus ninety days from April

10, 1998. To support his position, the commenter referenced the pending

amended EG provision, 40 CFR 60.32c(c), relating to Title V permits,

that was negotiated under the lawsuit settlement over the MSW Landfill

NSPS/EG [National Solid Waste Management Association v. Browner No. 96-

1152 (D.C. Cir)].

EPA's Response: It appears the commenter has misinterpreted the

requirements of the EG, as amended, and EPA's approval with respect to

compliance schedule requirements for Allegheny County's 111(d) plan

landfills. Any ambiguity in the text of the direct final rule published

on April 10, 1998 that may have caused confusion should now be

clarified with the discussion below.

A state's 111(d) plan must include a compliance schedule that

landfill owners/operators must meet. Most states have proposed that the

initial design capacity and NMOC emissions rate report must be

submitted 90 days after EPA approval of their 111(d) plans. The

promulgated landfill EG require the same reporting and record keeping

as the related NSPS. However, the EG do not stipulate when the initial

NMOC emissions and design capacity reports are due for existing

landfills. Even if a date were clearly specified in the EG, states can

exercise their own judgement as to when the initial reporting

requirement must be met, providing the requirement is no less stringent

than that in the EG. EPA has no documentation that the Allegheny County

landfill regulation violates any of the requirements of the

Pennsylvania Air Pollution Control Act (Section 4004.2(b)). Based on

our review of the public participation documents submitted with

Allegheny County's 111(d) plan, the issues now raised by the commenter

in his May 12, 1998 comments to EPA were not raised by that commenter,

or anyone else, during the 111(d) plan public comment period.

Furthermore, none of these comments or concerns were identified in the

PADEP submittal of the Allegheny County MSW landfill 111(d) plan to

EPA.

Although the 111(d) plan increments of progress are tied to the

effective date of the County's MSW landfill regulation, the controlling

date that triggers and defines the required increments of progress

dates, from the time of submittal of the design plan to final source

compliance, is the date when the NMOC emissions rate is first

calculated to exceed 50 Mg/yr. This is clearly noted in ``Section G.

Compliance Schedule'' of the direct final rule. Nevertheless, the

design capacity and initial NMOC emission rate reports were due within

90 days of the effective date (i.e., August 15, 1997) of the Article

XXI Regulation.

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 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 did not vacate or void

the March 12, 1996 MSW landfill EG or NSPS. Pursuant to the proposed

settlement agreement, EPA published a direct final rulemaking on June

16, 1998, in which EPA amends 40 CFR Part 60, Subparts Cc and WWW, to

add clarifying language, make editorial amendments, and to correct

typographical errors. One particular clarification addresses the

commenters concern regarding the date when Title V applications are

due. Specifically, 60.32c(c), as amended, makes it clear that EG

sources will not become subject to the requirement to apply for a Title

V permit until 90 days after the effective date of EPA's approval of a

state's 111(d) plan. (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 in the EG. In addition, as

stated in the June 16, 1998 rule's 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

state 111(d) plan submittals.

III. Final Action

Based upon the rationale discussed in the proposed and related

direct final rulemaking (63 FR 17793 and 17683, April 10, 1998), EPA is

approving the Allegheny County portion of the Pennsylvania MSW landfill

111(d) plan. As provided by 40 CFR 60.28(c), any revisions to the

Allegheny County portion of the plan or associated regulations will not

be considered part of the applicable plan until submitted by PADEP in

accordance with 40 CFR 60.28(a) or (b), as applicable, and until

approved by EPA .

IV. Administrative Requirements

A. Executive Orders 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

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

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If

[[Page 13077]]

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 final rule is not subject to E.O. 13045 because it

is not an economically significant regulatory action as defined by E.O.

12866, and it does not address an environmental health or safety risk

that would have a disproportionate effect on children.

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, E.O. 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 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. Pursuant to section 605 (b) of the RFA I certify that

this rule will not have a significant economic impact on a substantial

number of small entities. This Federal action approves pre-existing

requirements under Federal, State, or Local law and imposes no new

requirements on any entity affected by this rule, including small

entities. Therefore, these amendments will not have a significant

impact on a substantial number of small entities.

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 a 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 to approve the Allegheny County portion

of the Pennsylvania MSW landfill 111(d) plan must be filed in the

United States Court of Appeals for the appropriate circuit by May 17,

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, Non-methane organic

compounds, Methane, Municipal solid waste landfills, Hydrocarbons,

Reporting and record keeping requirement.

Dated: March 9, 1999.

Thomas Voltaggio,

Acting, Regional Administratopr, Region III.

40 CFR Part 62, Subpart NN, 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 NN--Pennsylvania

2. Subpart NN is amended by adding a new center heading and

Secs. 62.9630, 62.9631, and 62.9632 to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills (Section 111(d) Plan)

Sec. 62.9630 Identification of plan.

Section 111(d) plan for municipal solid waste landfills and the

associated Allegheny County Health Department Regulation in Article

XXI, Sec. 2105.73, as submitted on October 23, 1997, by the

Commonwealth of Pennsylvania.

Sec. 62.9631 Identification of sources.

The plan applies to all Allegheny County, Pennsylvania, existing

municipal solid waste landfills for which construction, reconstruction,

or modification was commenced before May 30, 1991 and that has accepted

waste at any time since November 8, 1987 or that has additional

capacity available for future waste deposition, as described in 40 CFR

part 60, subpart Cc.

[[Page 13078]]

Sec. 62.9632 Effective date.

The effective date of the plan for municipal solid waste landfills

is April 16, 1999.

[FR Doc. 99-6500 Filed 3-16-99; 8:45 am]

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