[Federal Register: December 29, 2003 (Volume 68, Number 248)]
[Rules and Regulations]
[Page 74868-74871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de03-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[PA 124-4222; FRL-7603-4]
Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants, Commonwealth of 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 the Commonwealth of Pennsylvania (the
Commonwealth) municipal solid waste landfill plan (the plan) for
implementing emission guideline (EG) requirements promulgated under the
Clean Air Act (the Act). The plan establishes enforceable nonmethane
organic compounds (NMOC) emissions limits for existing landfills within
the Commonwealth, excluding the geographic areas under the authority of
Allegheny County and the City of Philadelphia.
EFFECTIVE DATE: This final rule is effective January 28, 2004.
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 the
Pennsylvania Department of Environmental Protection, Bureau of Air
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania
17105.
FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at topsale.jim@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On June 24, 2003, EPA published a direct final rule (68 FR 37421)
approving the Pennsylvania section 111(d) landfill plan (the plan).
Also, on that date, EPA published a proposed rule (68 FR 37449) to
allow interested parties to submit comments. During the public comment
period, EPA received numerous adverse comments and questions from The
Alliance for A Clean Environment (ACE). As a result, on August 19,
2003, EPA withdrew the direct final rule granting approval of the
Pennsylvania plan (68 FR 49706).
II. Response(s) to Public Comments
Many of the comments and questions EPA received from ACE ( the
``commenter'') are not relevant or germane to the Pennsylvania plan
approval process in the context of section 111(d) Clean Air Act
requirements, and the related regulatory provisions of 40 CFR part 60,
subparts B, Cc, and http://WWW. In this section of the Federal Register
notice, EPA is responding primarily to those adverse comments and
questions that possibly could be considered relevant or germane to the
plan approval process in the context of section 111(d) requirements
only. The many ACE comments and questions, which are not relevant to
the plan approval, address the following generic and source specific
issues:
(a) Ambient air quality and emission standards for criteria
pollutants, and related health impacts, as regulated under section 110
of the Act;
(b) Toxic air pollutants, and related health impacts, as regulated
under section 112 of the Act;
(c) Radioactive landfill gas emissions, and related health impacts;
(d) Suggested revisions or amendments to EPA's promulgated landfill
rules--EG and new source performance standards ( NSPS ); and
(e) Clean Air Act violations at a specific landfill facility and
EPA's enforcement response.
All of the above listed issues are beyond the scope of EPA's
section 111(d) plan requirements and approval authority. Any ACE issue,
which is not listed generically above is also considered irrelevant to
this plan approval action. EPA's responses to possible relevant issues
and questions are given below.
A Summary of Comments and Questions--EPA Responses
1. How were Pennsylvania communities notified that they had an
opportunity to comment on the plan? Response--Three separate PADEP
public hearings were held on the plan in June 1997. Prior to each
hearing, a thirty (30) day notice was published in one or more
newspapers that serve the public hearing site area. These notices were
published in six (6) prominent Pennsylvania newspapers and the
Pennsylvania bulletin. The PADEP has met EPA's public notification and
public participation requirements of 40 CFR 60.23. This is discussed in
EPA's June 24, 2003 Federal Register notice (68 FR 37421), paragraph
II. J, A Record of the Public Hearing on the State Plan.
2. On what basis does EPA view the plan approval as a non-
controversial action? Response--EPA's action is based on section 111(d)
requirements of the Act, not sections 110 and 112, relating to state
plans and requirements for criteria (e.g., ozone) and hazardous (e.g.,
dioxins/furans, mercury compounds, and radionuclides) air pollutants,
respectively. The Pennsylvania landfill plan contains requirements that
are no less stringent than those required by section 111(d) of the Act
and the related provisions of 40 CFR part 60, subparts B and Cc. Also,
the plan contains
[[Page 74869]]
facility specific compliance schedules that are expeditious, as
required by subpart B, and require final compliance by a date earlier
than that of the generic compliance schedule under the Federal Plan, 40
CFR part 62, subpart GGG, promulgated on November 8, 1999. The Federal
plan is applicable to all affected landfills located in those states
without an approved plan, such as Pennsylvania, until the state plan is
approved by EPA. The Pennsylvania plan meets all applicable federal
requirements, as discussed in EPA's June 24, 2003 Federal Register
notice and the related technical support document (TSD).
3. What does ``controlled'' mean to EPA? Response--Section 111 of
the Act requires EPA to promulgate EG and NSPS based on the application
of what is referred to as best demonstrated technology (BDT),
considering costs and any nonair quality health and environmental
impacts and energy requirements, at the time the EG and NSPS are
promulgated. The EG and NSPS establish a nationwide minimum level of
control, for specific stationary source categories, based on the use of
BDT. BDT for landfills, emitting 50 megagrams per year of NMOC or more,
requires the reduction of MSW landfill gas emissions with: (a) A well
designed and operated gas collection system and (b) a control device
capable of reducing NMOC in the collected gas by 98 weight percent.
Both EPA landfill rules (the EG and NSPS) recognize that various
combustion devices, including flares, can be an effective means of
reducing, by 98% or better, the NMOC emissions collected from a
landfill. The BDT requirements for landfills are stipulated in the
promulgated March 12, 1996 MSW landfill EG and the related NSPS,
subparts Cc and WWW, sections 60.33c(c); and 60.752(b)(2)(ii) and
(iii), respectively. More details about landfill gas control
technologies and their performance are discussed in the preamble to the
proposed EPA landfill rules (56 FR 24476, May 30, 1991). Also,
additional information is given in EPA's proposed landfill rule
amendments, as published in the May 23, 2002 Federal Register (67 FR
36477).
4. EPA admits to the public health dangers of landfill gas (i.e.,
NMOC) emissions, so why wouldn't EPA require the safest technology?
Response--Consistent with the requirements of section 111 of the Act,
EPA's landfill rules set a nationwide minimum level of control based on
the use of BDT. EPA believes BDT control alternatives are safe for the
operators and impacted community, providing the control equipment is
properly designed, constructed, and operated. Because NMOC are health-
related, states plans must ordinarily be at ``least as stringent'' as
the EG. However, nothing under EPA's section 111 plan regulations, 40
CFR part 60, subpart B, prohibits the PADEP from adopting and enforcing
more stringent emission standards. Nevertheless, the submitted
Pennsylvania plan control requirements are no less stringent than BDT,
as stipulated and required in subpart B and the EG, subpart Cc.
5. Does Pennsylvania have the legal authority to do anything about
Clean Air Act [MSW landfill rule] violations in the past? Response--A
state can only enforce section 111(d) plan requirements if (a) it has
received EPA approval of the state plan, or (b) it has requested and
received delegation of the Federal plan, 40 CFR part 62, subpart GGG.
Neither is the case with the PADEP. At this time, the PADEP can enforce
state only requirements. When EPA approves the Pennsylvania plan, PADEP
will then have the authority under federal law to enforce the state
plan , including possible ``past'' violations. PADEP has satisfactorily
demonstrated its authority to implement the state plan, as stated in
EPA's approval notice (68 FR 37422) of June 24, 2003.\1\
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\1\ With respect to the enforcement of NSPS requirements, on May
8, 1985, PADEP received automatic delegation of all NSPS from EPA.
See the August 23, 1985 Federal Register. Accordingly, the PADEP has
had the authority to enforce subpart WWW requirements since March
12, 1996, the date of rule promulgation
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6. Why hasn't the Pottstown Landfill been included in this source
inventory? Response--Any landfill that was modified or reconstructed
after May 30, 1991 is subject to subpart WWW, and not the requirements
of section 111(d) of the Act. A modification occurs if there is a
physical change at the landfill that increases the capacity of the
landfill beyond its permitted capacity. Based on documents from the
PADEP and the Pottstown's landfill engineer, the landfill is a modified
source, and thus subject to the NSPS, subpart WWW, and not section
111(d) requirements of either the Pennsylvania or Federal plan.
Although the landfill EG and NSPS both require use of the same BDT,
both stipulate different initial reporting and final compliance date
requirements. However, if we assume that the Pottstown Landfill is a
designated facility, subject to section 111(d) requirements, and was
somehow overlooked in the Pennsylvania plan inventory, EPA's earlier
plan approval notice (68 FR 37424) states, `` * * * if an unknown
designated landfill is not covered by the scope of this plan and is
discovered after EPA plan approval, that landfill will be subject to
the promulgated Federal plan requirements until the PADEP amends its
plan to include the previously unknown designated landfill.'' In other
words, under EPA's approval action, the Pottstown landfill would be
covered by the promulgated Federal plan, even if at a later date it is
determined that the facility is in fact subject to section 111(d)
requirements.
7. With a health threat of NMOC emissions, why would a landfill get
2\1/2\ years to comply? Response--Considering the size and NMOC
applicability thresholds of affected landfills, EPA believes 2\1/2\
years is generally expeditious. This timeframe is reflected in the
promulgated EG, NSPS, and the Federal plan. As noted above, the
Pennsylvania plan requires final compliance earlier than what is
stipulated in the Federal plan.
8. How is the applicability threshold (50 megagrams per year)
determined and by whom? Response--The measurement methods, applicable
to both existing and new landfills, are specified in the landfill NSPS
at section 60.754, Test Methods and procedures. Although the landfill
owner/operator conducts the tests, both PADEP and EPA have oversight
authority and can require a source retest with regulatory personnel on
site during the test.
9. Were violations reported to EPA by PADEP under the plan
provision that requires state submittal of annual reports on plan
enforcement? Response--Under the plan, the noted reports are not due
until one year after EPA approval of the plan. See the EPA Federal
Register notice of June 24, 2003 (68 FR 37423), section II. K,
Provision for Annual State Progress Reports to EPA. Within one year of
EPA's approval of the plan, EPA expects the PADEP will begin submittal
of annual compliance reports.
10. How were the people notified about changes to the original
plan? Response--Other than changes in order to meet EPA promulgated
revisions to the EG, we know of no plan changes, subsequent to its
original submittal, that relaxes plan applicability, emission
standards, operating requirements, recordkeeping and reporting, and
compliance dates.
11. The commenter objects to PADEP's retention of source ``trade
secret'' information, and its unavailability to the public, and
questions what method or process trade secret information can be
expected from operating a landfill. Response--It appears that PADEP's
willingness to
[[Page 74870]]
release all source compliance and emissions data, except for that
relating to ``trade secrets,'' is consistent with EPA's subpart B
requirements, 40 CFR 60.25(c). 40 CFR 60.25(c) only requires public
access to compliance and emissions data that is correlated with
applicable emissions standards (e.g., NMOC).
12. The commenter questions the Pennsylvania plan requirements
regarding the frequency of emissions monitoring and the reliability of
collected data. Response--The frequency of monitoring and the
collection of reliable data are consistent with applicable EG
requirements, 40 CFR 60.34c and 60.35c, as noted in EPA's June 24, 2003
Federal Register notice (68 FR 37423), and the related technical
support document (TSD).
III. Final Action
EPA is approving the Pennsylvania plan. This determination is based
upon the rationale discussed in the proposed and related direct final
rulemakings (68 FR 37449 and 37421, June 24, 2003) and EPA's evaluation
of submitted public comments and questions, as dicussed above. Any
revisions to the plan or associated landfill air quality operating
permits will not be considered part of the applicable plan until
submitted by the PADEP in accordance with the provisions of 40 CFR
60.28.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing 111(d) plan submissions, EPA's role is to approve
state choices, provided that they meet the criteria of the Clean Air
Act. In this context, in the absence of a prior existing requirement
for the State to use voluntary consensus standards (VCS), EPA has no
authority to disapprove a 111(d) plan submission for failure to use
VCS. It would thus be inconsistent with applicable law for EPA, when it
reviews a 111(d) plan submission, to use VCS in place of a 111(d) plan
submission that otherwise satisfies the provisions of the Clean Air
Act. Thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
B. 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. Section 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of particular applicability establishing source-
specific requirements for sixteen (16) specific sources.
C. 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 February 27, 2004. 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, approving the Pennsylvania section 111(d)
MSW landfill plan, 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, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 15, 2003.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
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40 CFR part 62, subpart NN, is amended as follows:
PART 62--[AMENDED]
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1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
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2. Sections 62.9635, 62.9636, and 62.9637 are added to subpart NN,
``Landfill Gas Emissions From Existing Municipal Solid Waste
Landfills'' to read as follows:
Sec. 62.9635 Identification of plan.
Section 111(d) plan for municipal solid waste landfills, as
submitted on July 1, 1997, and as amended through April 9, 2003 by the
Pennsylvania Department of Environmental Protection. The plan excludes
the
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geographical areas under the authority of Allegheny County and the City
of Philadelphia.
Sec. 62.9636 Identification of sources.
The plan applies to existing Pennsylvania 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.
Sec. 62.9637 Effective date.
The effective date of the plan for municipal solid waste landfills
is January 28, 2004.
[FR Doc. 03-31866 Filed 12-24-03; 8:45 am]
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