Approval and Promulgation of State Plans for Designated Facilities and Pollutants; Illinois; Control of Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

I. Background

Under section 111(d) of the Clean Air Act (CAA), USEPA 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 CAA) or hazardous air pollutants (HAPs) regulated under section 112 of the CAA. As required by section 111(d) of the CAA, USEPA established a process, at 40 CFR part 60, subpart B (similar to the process required by section 110 of the CAA regarding State Implementation Plan (SIP) approval) which States must follow in adopting and submitting a section 111(d) plan. Whenever USEPA promulgates a new source performance standard (NSPS) that controls a designated pollutant, USEPA establishes emissions guidelines in accordance with title 40 of the Code of Federal Regulations, part 60.22 (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's section 111(d) plan applying to the type of designated facility must comply with the emission guideline for that source category as well as 40 CFR part 60, subpart B. On March 12, 1996, USEPA published emissions guidelines for existing MSW landfills (EG) 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 9905-9929.). The NSPS and EG regulate MSW landfill emissions, which contain a mixture of volatile organic compounds (VOCs), other organic compounds, methane, and HAPs. To determine if emissions 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 60.31c) for which construction, reconstruction or modification was commenced before May 30, 1991. Pursuant to 40 CFR 60.23(a), States were required to submit a plan for the control of the designated pollutant to which the EG applies within nine months after publication of the EG (i.e. by December 12, 1996). If there were no designated facilities in the State, then the State was required to submit a negative declaration by December 12, 1996. On July 21, 1998, the State of Illinois submitted its ``Section 111(d) Plan for MSW Landfills'' for implementing USEPA's MSW Landfill EG. The following provides a brief discussion of the requirements for an approvable State plan for existing MSW landfills and USEPA's review of Illinois' submittal with respect to those requirements. More detailed information on the requirements for an approvable plan and Illinois' submittal can be found in the Technical Support Document (TSD) accompanying this action, which is available from USEPA upon request.

II. Review of Illinois' MSW Landfill Plan

USEPA has reviewed Illinois' section 111(d) plan for existing MSW landfills against the requirements of 40 CFR part 60, subpart B and subpart Cc, as follows:

A. Identification of Enforceable State Mechanism for Implementing the EG

The regulation at 40 CFR 60.24(a) requires that the section 111(d) plan include emissions standards, defined in 40 CFR 60.21(f) as ``a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.'' The State of Illinois, through the Illinois Pollution Control Board (IPCB), has adopted State rules to control air emissions from existing landfills in the State. The Illinois rules for Municipal Solid Waste Landfills are primarily found in Title 35: Environmental Protection; Subtitle B: Air Pollution; Chapter I: Pollution Control Board; Subchapter C: Emission Standards and Limitations for Stationary Sources; Part 220: Nonmethane Organic Compounds of the Illinois Administrative Code (35 IAC). Part 220 was adopted by the IPCB on June 17, 1998 and filed in the principal office on that day. Part 220 was published in the Illinois Register on July 10, 1998 at 22 Ill. Reg. 11790 and became effective on July 31, 1998. As part of the same rulemaking action, the IPCB amended 35 IAC Part 201: Permits and General Provisions; Subpart A: Definitions; Section 201.103 a) by adding the following abbreviations: Mg = megagrams, M(3) = cubic meters, NMOC = nonmethane organic compounds, and yr = year. In Section 201.103 b) the conversion factor for 1000 gal was changed from 3.785 cubic meters to 3.785 M(3). In Subpart C: Prohibitions, Section 201.146 was amended by adding paragraph ggg) which states that municipal solid waste landfills with a maximum total design capacity of less than 2.5 million Mg or 2.5 million M(3) are not required to install a gas collection and control system pursuant to 35 Ill. Adm. Code 220 or 800 through 849 or Section 9.1 of the [Illinois Environmental Protection] Act. These amendments were published in the Illinois Register on July 10, 1998 at 22 Ill. Reg. 11824 and became effective on July 31, 1998. Thus, Illinois has met the requirement of 40 CFR 60.24(a) to have legally enforceable emission standards.

B. Demonstration of the State's Legal Authority to Carry Out the Section 111(d) State Plan as Submitted

40 CFR 60.26 requires the section 111(d) plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. The State has demonstrated that the IPCB has sufficient authority to adopt rules governing MSW landfills and that the Illinois Environmental Protection Agency (IEPA) has sufficient legal authority to enforce these rules and to develop and administer this MSW landfill plan. The State statutes providing such authority are sections 4, 9.1, and 10 of the Environmental Protection Act.

C. Inventory of Existing MSW Landfills in the State Affected by the State Plan

The regulation at 40 CFR 60.25(a) requires the section 111(d) plan to include a complete source inventory of all existing MSW landfills (i.e., those MSW landfills that constructed, reconstructed, or modified prior to May 30, 1991) in the State that are subject to the plan. This includes all existing landfills that have accepted waste since November 8, 1987, or that have additional capacity for future waste deposition. A list of the existing MSW landfills in Illinois and an estimate of NMOC emissions from each landfill have been submitted as part of the State's landfill 111(d) plan.

D. Inventory of Emissions from Existing MSW Landfills in the State

The regulation at 40 CFR 60.25(a) requires that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EG, which in the case of MSW landfills is NMOC. Illinois included as attachment 2 of its section 111(d) plan an estimation of NMOC emissions for all of the landfills in the State using testing performed by the company or Landfill Air Emissions Estimation Model and AP-42 default emission factors.

E. Emission Limitations for MSW Landfills

The regulation at 40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than the EG (except as specified in 40 CFR 60.24(f) which allows for less stringent emission limitations on a case-by-case basis if certain conditions are met). 40 CFR 60.33c contains the emissions standards applicable to existing MSW landfills. The state regulation at 35 IAC 220.220 requires existing MSW landfills to comply with the same equipment design criteria and level of control as prescribed in the NSPS. The controls required by the NSPS are the same as those required by the EG. Thus, the emission limitations/standards are ``no less stringent than'' subpart Cc, which meets the requirements of 40 CFR 60.24(c). The regulation at part 60.24(f) allows States, in certain case-by- case situations, to provide for a less stringent standard. To account for this provision, in order to seek a less stringent standard, or longer compliance schedule, the Illinois Rule requires an owner/ operator to submit a written request to the IPCB. Thus, Illinois' plan meets the emission limitation requirements by requiring emission limitations that are no less stringent than the EG.

F. A Process for State Review and Approval of Site-Specific Gas Collection and Control System Design Plans

The provision of the EG at 40 CFR 60.33c(b) requires State plans to include a process for State review and approval of site-specific design plans for required gas collection and control systems. Illinois rules regulating landfill gas emissions from MSW landfills essentially make the Federal NSPS applicable to existing MSW landfills. The design criteria and the design specifications for active collection systems specified in the NSPS also apply to existing landfills, unless a request pursuant to 40 CFR 60.24(f) has been approved by the State. The process for State review and approval of site specific gas collection and control systems are specified in the State's preconstruction permit review process at 35 IAC 201 and 35 IAC 220.280 entitled Reporting Requirements. Thus, Illinois' section 111(d) plan adequately addresses this requirement.

G. Compliance Schedules

The State's section 111(d) plan must include a compliance schedule that owners and operators of affected MSW landfills must meet in complying with the requirements of the plan. The regulation at 40 CFR 60.36c provides that planning, awarding of contracts, and installation of air emission collection and control equipment capable of meeting the EG must be accomplished within 30 months of the effective date of a State emission standard for MSW landfills. Under 40 CFR 60.24(e)(1) any compliance schedule extending more than 12 months from the date required for plan submittal shall include legally enforceable increments of progress as specified in 40 CFR 60.21(h), including deadlines for submittal of a final control plan, awarding of contracts for emission control systems, initiation of on-site construction or installation of emission control equipment, completion of on-site construction/installation of emission control equipment, and final compliance. Sources are required to submit applications for a construction permit by 35 IAC 220.280. Completion of installation and performance are required within 30 months. Thus, the State's rule satisfies the requirement of 40 CFR 60.36c.

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

The regulation at 40 CFR 60.34c specifies the testing and monitoring provisions that State plans must include (60.34c specifically refers to the requirements found in 40 CFR 60.754 to 60.756), and 40 CFR 60.35c specifies the reporting and recordkeeping requirements (60.35c refers to the requirements found in 40 CFR 60.757 and 60.758). The following sections of the Illinois rule satisfy these requirements: Section 220.280 Reporting Requirements and Section 220.290 Recordkeeping Requirements. Thus, the State's rule satisfies the requirements of 40 CFR 60.34c.

I. A Record of Public Hearings on the State Plan

The regulation at 40 CFR 60.23 contains the requirements for public hearings that must be met by the State in adopting a section 111(d) plan. Additional guidance is found in USEPA's ``Summary of the Requirements for Section 111(d) State Plans for Implementing the Municipal Solid Waste Landfill Emission Guidelines (EPA-456R/96-005, October 1996).'' Illinois included documents in its plan submittal demonstrating that these procedures, as well as the State's administrative procedures, were complied with in adopting the State's plan. Therefore, USEPA finds that Illinois has adequately met this requirement.

J. Submittal of Annual State Progress Reports to USEPA

The regulation at 40 CFR 60.25(e) and (f) requires States to submit to USEPA annual reports on the progress of plan enforcement. Illinois committed in its section 111(d) plan to submit annual progress reports to USEPA. The first progress report will be submitted by the State one year after USEPA approval of the State plan. Therefore, USEPA finds that Illinois has adequately met this requirement.

III. Final Action

Based on the rationale set forth above, and discussed in further detail in the associated TSD, USEPA is approving Illinois' July 21, 1998 section 111(d) plan for the control of landfill gas from existing MSW landfills. As provided by 40 CFR 60.28c, any revisions to Illinois' section 111(d) plan or associated regulations will not be considered part of the applicable plan until properly submitted by the State in accordance with 40 CFR 60.28(a) or (b), and approved by USEPA in accordance with 40 CFR part 60, subpart B. USEPA is publishing this action without prior proposal because USEPA views this as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this Federal Register publication, USEPA is proposing to approve the State Plan should adverse written comments be filed. This action will be effective without further notice unless USEPA receives relevant adverse written comment by December 23, 1998. Should USEPA receive such comments, it will publish a final rule informing the public that this action will not take effect. 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 on January 22, 1999.

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: Enhancing Intergovernmental Partnerships

Under E.O. 12875, USEPA 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 the mandate is unfunded, USEPA must provide to the OMB a description of the extent of USEPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 12875 requires USEPA to develop an effective process permitting elective 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: Consultation and Coordination With Indian Tribal Governments

Under E.O. 13084, USEPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on these communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, USEPA must provide to the OMB in a separately identified section of the preamble to the rule, a description of the extent of USEPA'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 USEPA 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. 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 USEPA 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 is does not involve decisions intended to mitigate environmental health or safety risks.

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 direct final rule will not have a significant impact on a substantial number of small entities because plan approvals under section 111(d) do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal 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 CAA preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of a State action. The CAA forbids USEPA to base its actions 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, USEPA 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 private sector, of $100 million or more. Under section 205, USEPA 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 USEPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. The USEPA 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. The USEPA 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 the publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 22, 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: October 28, 1998. David A. Ullrich, Acting Regional Administrator, Region 5.

40 CFR part 62 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 et seq.

Subpart O--Illinois

2. A new center heading and sections 62.3330, 62.3331, and 62.3332 are added to read as follows:

Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

Sec. 62.3330 Identification of plan.

The Illinois Plan for implementing the Federal Municipal Solid Waste Landfill Emission Guidelines to control air emissions from existing landfills in the State was submitted on July 21, 1998. The Illinois rules for Municipal Solid Waste Landfills are primarily found in Title 35: Environmental Protection; Subtitle B: Air Pollution; Chapter I: Pollution Control Board; Subchapter C: Emission Standards and Limitations for Stationary Sources; Part 220: Nonmethane Organic Compounds of the Illinois Administrative Code (35 IAC). Part 220 was adopted by the IPCB on June 17, 1998 and filed in the principal office on that day. Part 220 was published in the Illinois Register on July 10, 1998 at 22 Ill. Reg. 11790 and became effective on July 31, 1998. As part of the same rulemaking action, the IPCB amended 35 IAC Part 201: Permits and General Provisions; Subpart A: Definitions; Section 201.103 (a) by adding the following abbreviations: Mg = megagrams, M(3) = cubic meters, NMOC = nonmethane organic compounds, and yr = year. In Section 201.103 (b) the conversion factor for 1000 gal was changed from 3.785 cubic meters to 3.785 M(3). In Subpart C: Prohibitions, Section 201.146 was amended by adding paragraph (ggg) which states that municipal solid waste landfills with a maximum total design capacity of less than 2.5 million Mg or 2.5 million M(3) are not required to install a gas collection and control system pursuant to 35 Ill. Adm. Code 220 or 800 through 849 or Section 9.1 of the [Illinois Environmental Protection] Act. These amendments were published in the Illinois Register on July 10, 1998 at 22 Ill. Reg. 11824 and became effective on July 31, 1998.

Sec. 62.3331 Identification of sources.

The plan applies to all 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 consistent with 40 CFR part 60.

Sec. 62.3332 Effective date.

The effective date of the plan for municipal solid waste landfills is January 22, 1999.

[FR Doc. 98-31074 Filed 11-20-98; 8:45 am] BILLING CODE 6560-50-P