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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[KY111-9914a; FRL-6326-1]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Kentucky

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the

Section 111(d) Plan submitted by the Kentucky Division for Air Quality

(DAQ) for the Commonwealth of Kentucky on December 3, 1998, for

implementing and enforcing the Emissions Guidelines (EG) applicable to

existing Municipal Solid Waste (MSW) Landfills.

DATES: This direct final rule is effective on June 21, 1999 without

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

comment by May 20, 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: Written comments should be addressed to: Karla McCorkle, 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 Kentucky Division for Air Quality, Department for Environmental

Protection, Natural Resources and Environmental Protection Cabinet, 803

Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Karla McCorkle at (404) 562-9043 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 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

Kentucky DAQ for the Commonwealth of Kentucky to implement and enforce

Subpart Cc.

II. Discussion

The Kentucky DAQ submitted to EPA on December 3, 1998, the

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

the emission guidelines for existing MSW landfills in the Commonwealth

of Kentucky: 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

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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 Commonwealth of Kentucky statutes and

Kentucky DAQ rules.

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

(1) the Kentucky DAQ provided adequate public notice of public hearings

for the proposed rulemaking and State Plan which allows the Kentucky

DAQ to implement and enforce the EG for MSW landfills; and (2) the

Kentucky DAQ 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, the Kentucky DAQ cites the following references for

the legal authority: Kentucky Revised Statute (KRS) 224.10-100; KRS

224.20-100; KRS 224.20-110; and KRS 224.20-120. On the basis of these

statutes of the Commonwealth of Kentucky, the State Plan is approved as

being at least as protective as the Federal requirements for existing

MSW landfills.

In the Plan, the Kentucky DAQ cites the enforceable mechanism for

implementing the EG for existing MSW landfills. The enforceable

mechanisms are the Commonwealth regulations adopted by the Commonwealth

of Kentucky in 401 Kentucky Administrative Regulation (KAR) 61:036

``Emission Guidelines and Compliance Times for Municipal Solid Waste

Landfills'' and 401 KAR 60:750 ``Standards of Performance for Municipal

Solid Waste Landfills.'' 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, the Kentucky DAQ cites all emission limitations for

the major pollutant categories related to the designated sites and

facilities. These limitations in 401 KAR 61:036 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 Kentucky DAQ 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 Kentucky DAQ cites the compliance schedules

adopted in 401 KAR 61:036 for each existing MSW landfill to be in

compliance within 30 months of the effective date of their 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.

In Table 1 and Appendix A of the Plan, the Kentucky DAQ submitted a

source and emission inventory of all designated pollutants for each MSW

landfill in the Commonwealth of Kentucky. This portion of the Plan has

been reviewed and approved as meeting the Federal requirements for

existing MSW landfills.

The 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 Kentucky DAQ 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. 401 KAR 61:036 and 401 KAR 60:750 support the requirements of

monitoring, recordkeeping, reporting, and compliance assurance. These

Kentucky regulations have been reviewed and approved as being at least

as protective as Federal requirements for existing MSW landfills.

The Plan outlines how the Kentucky DAQ 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 Kentucky State Plan meets all of

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

and Cc. The Kentucky DAQ 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

Commonwealth of Kentucky section 111(d) Plan, as submitted on December

3, 1998, for the control of landfill gas from existing MSW landfills.

As provided by 40 CFR 60.28(c), any revisions to the Kentucky State

Plan or associated regulations will not be considered part of the

applicable plan until submitted by the Kentucky DAQ 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 June 21, 1999 unless by May 20, 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 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 June 21, 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,

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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

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 Kentucky's audit

privilege and penalty immunity law, Kentucky KRS 224.01-040 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

Kentucky'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.

H. 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.

I. 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

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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).

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 June 21, 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, Municipal waste

combustors, Reporting and recordkeeping requirements.

Dated: March 24, 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. 7401-7671q.

Subpart S--Kentucky

2. Section 62.4350 is amended by adding paragraphs (b)(2) and

(c)(4) to read as follows:

Sec. 62.4350 Identification of plan.

* * * * *

(b) * * *

(2) Commonwealth of Kentucky's Section 111(d) Plan For Existing

Municipal Solid Waste Landfills, submitted on December 3, 1998, by the

Kentucky Division for Air Quality.

(c) * * *

(4) Existing municipal solid waste landfills.

3. Subpart S is amended by adding a new Sec. 62.4355 and a new

undesignated center heading to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste

Landfills

Sec. 62.4355 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. 99-9595 Filed 4-19-99; 8:45 am]

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