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

[Federal Register Volume 64, Number 106 (Thursday, June 3, 1999)]
[Rules and Regulations]
[Pages 29796-29799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13797]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[SD-001-0003a and SD-001-0004a; FRL-6351-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the South Dakota plan and regulations for 
controlling landfill gas emissions from existing municipal solid waste 
(MSW) landfills. South Dakota's regulations require existing MSW 
landfills to install a landfill gas collection and control system, if 
the MSW landfill's design capacity and non-methane organic compound 
(NMOC) emissions are above certain thresholds. South Dakota submitted 
its original plan to EPA on May 2, 1997 and then submitted revisions to 
the plan on May 6, 1999.

[[Page 29797]]

South Dakota submitted this plan to meet section 111(d) of the Clean 
Air Act (Act) and EPA's Emission Guidelines for existing MSW landfills 
at 40 CFR part 60, subpart Cc. We approve South Dakota's plan because 
the State has met these requirements.

DATES: This rule is effective on August 2, 1999 without further notice, 
unless we receive adverse comment by July 6, 1999. If we receive 
adverse comments, we will publish a timely withdrawal of the direct 
final rule in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: You should mail your written comments to Richard R. Long, 
Director, Air and Radiation Program, Mailcode 8P-AR, Environmental 
Protection Agency (EPA), Region VIII, 999 18th Street, Suite 500, 
Denver, Colorado 80202. Copies of the documents relative to this action 
are available for inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 500, Denver, Colorado 80202-2466. Copies of the 
State documents relevant to this action are available for public 
inspection at the Department of Environmental and Natural Resources, 
Joe Foss Building, 523 East Capitol, Pierre, South Dakota 57501-3181.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303) 
312-6445.

SUPPLEMENTARY INFORMATION:

I. EPA Action

A. What Action Is EPA Taking Today?

    We approve the South Dakota plan and regulations for controlling 
landfill gas emissions from existing municipal solid waste (MSW) 
landfills, except for those landfills located in Indian Country 
1. South Dakota submitted its original plan to us on May 2, 
1997 and then submitted revisions to the plan on May 6, 1999. South 
Dakota's Plan includes the ``Section 111(d) State Plan for Municipal 
Solid Waste Landfills'' and the State's regulations in Sections 
74:36:07:34 through 74:36:07:42 of the Administrative Rules of South 
Dakota (ARSD).
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    \1\ See further discussion in Section I.D. of this preamble.
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    We are publishing this rule without prior proposal because we view 
this as a noncontroversial action and anticipate no adverse comments. 
However, in the ``Proposed Rules'' section of today's Federal Register 
publication, we are publishing a separate document that will serve as 
the proposal to approve the SIP revision if adverse comments are filed. 
This rule will be effective August 2, 1999 without further notice 
unless we receive adverse comments by July 6, 1999. If we receive 
adverse comments, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect. We 
will address all public comments in a subsequent final rule based on 
the proposed rule. We will not institute a second comment period on 
this action. Any parties interested in commenting must do so at this 
time.

B. Why Is EPA Approving South Dakota's Plan for MSW Landfills?

    We reviewed South Dakota's plan, as revised by the State, and found 
that it meets the general requirements for section 111(d) plans in 40 
CFR part 60, subpart B, and the specific requirements for existing MSW 
landfills in 40 CFR part 60, subpart Cc (as revised on June 16, 1998, 
63 FR 32743-53).

C. What Does the South Dakota Plan Contain?

    South Dakota's plan includes:
    1. A demonstration that South Dakota has adequate legal authority 
to adopt and implement the plan;
    2. Sections 74:36:07:34 through 74:36:07:42 of the ARSD as the 
enforceable mechanism for implementing the Emission Guidelines;
    3. An inventory of all existing MSW landfills subject to the State 
Plan, including an estimation of NMOC emissions and design capacity of 
each landfill;
    4. Emission limits that are no less stringent than the Emission 
Guidelines;
    5. A process for the State's review and approval of the design plan 
for a landfill's gas collection and control system;
    6. A final compliance date of thirty months from the date of the 
first NMOC emission rate report showing emissions equal to or greater 
than 50 megagrams per year (Mg/yr);
    7. ``Increments of progress'' deadlines to ensure the landfills are 
on track to meet the final compliance date;
    8. Testing, monitoring, recordkeeping and reporting requirements 
for existing MSW landfills that are no less stringent than the Emission 
Guidelines;
    9. A commitment to submit annual progress reports to EPA on 
implementation of the State Plan; and
    10. Documentation that the State met all public participation 
requirements for its two rulemaking hearings. Further details of the 
State's Plan can be found in the Technical Support Document for this 
action, which you can obtain by contacting the Regional Office contact 
listed above. The specific requirements of the State's Plan as it 
applies to MSW landfills are described below.

D. What MSW Landfills Are Subject to South Dakota's Plan?

    If you are the owner or operator of a MSW landfill in South Dakota, 
then you are subject to South Dakota's plan if
    1. The landfill accepted waste since November 8, 1987;
    2. The landfill was constructed, reconstructed, or modified before 
May 30, 1991; and
    3. The landfill's design capacity is greater than or equal to 2.5 
million Mg and 2.5 million m\3\.
    If your landfill was constructed, reconstructed, or modified after 
May 30, 1991, then you are subject to the New Source Performance 
Standard in 40 CFR part 60, subpart WWW (incorporated into the ARSD in 
section 74:36:07:43), rather than South Dakota's plan for ``existing 
landfills.'' If you have questions on how a MSW landfill is defined, 
refer to the definitions in 40 CFR part 60, subparts Cc and WWW.
    If your landfill is located in Indian Country, then you will be 
subject to the Federal Plan which was proposed on December 16, 1998 (63 
FR 69634-69684) and which will be finalized in the near future. We are 
not approving South Dakota's plan for landfills located in Indian 
Country. Note that we are currently discussing with the State and the 
Tribes how to describe Indian Country in South Dakota. A more specific 
description of Indian Country will be published in a future Federal 
Register notice concerning approval of the State's New Source 
Performance Standard for MSW landfills.

E. What Requirements Apply to MSW Landfills in South Dakota That Are 
Subject to the State's Plan?

    If you are the owner or operator of an existing MSW landfill that 
South Dakota determined has a design capacity of 2.5 million Mg or 2.5 
million m\3\, then you must submit an initial report of your landfill's 
NMOC emission rate to the State by November 1, 1999. You must also 
submit updated NMOC emission rate reports annually or every five years 
as required by ARSD 74:36:07:42.01. The landfill's NMOC emission rate 
must be calculated in accordance with 40 CFR 60.754.
    Once the landfill's NMOC emission rate is equal to or greater than 
50 Mg/yr, then you must install a landfill gas collection and control 
system that meets the specifications of ARSD 74:36:07:36-37. You must 
also comply with the operational standards, compliance provisions, 
monitoring provisions, and recordkeeping and reporting

[[Page 29798]]

requirements in sections 74:36:07:39-42 of the ARSD.

F. By What Date Are Existing MSW Landfills Required To Comply With 
South Dakota's Plan?

    If you are required to install a gas collection and control system, 
then you must complete construction of that system within thirty months 
of your first annual NMOC emission rate report showing emissions equal 
to or greater than 50 Mg/yr. You must also meet the interim deadlines 
specified in sections 74:36:07:35 and 38 for submitting your design 
plan, awarding contracts, beginning construction, and demonstrating 
compliance.

G. What Is a Section 111(d) State Plan?

    Whenever we issue a New Source Performance Standard for a source 
category controlling a pollutant which is not a ``criteria pollutant'' 
regulated under section 110 of the Act or a hazardous air pollutant 
(HAP) regulated under section 112 of the Act, EPA must issue guidelines 
for controlling that pollutant at existing sources of the same source 
category. Criteria pollutants are pollutants for which EPA has issued 
national ambient air quality standards (NAAQS) (see 40 CFR part 50).
    A section 111(d) State Plan must meet the Emission Guidelines which 
we issued for that source category, as well as the general requirements 
that apply to all section 111(d) plans in 40 CFR part 60, subpart B. 
States are required to submit plans meeting those requirements within 
nine months after publication of Emission Guidelines.

H. Why Did EPA Regulate Landfill Gas Emissions?

    Landfill gas emissions 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. NMOC emissions are measured as a surrogate for 
MSW landfill emissions. We issued New Source Performance Standards to 
control landfill gas emissions from new, modified, or reconstructed MSW 
landfills on March 12, 1996. (See 40 CFR part 60, subpart WWW.) Since 
NMOCs are not a criteria pollutant or a HAP, we also issued Emission 
Guidelines for existing MSW landfills on March 12, 1996. (See 40 CFR 
part 60, subpart Cc.)
    Note that we revised the Emission Guidelines and New Source 
Performance Standards for MSW landfills on June 16, 1998, in response 
to our proposed settlement in National Solid Wastes Management 
Association v. Browner, et. al., No. 96-1152 (D.C. Cir). (See 63 FR 
32743-32784). In addition, we issued technical amendments to the 
Emission Guidelines and New Source Performance Standard on February 24, 
1999 (64 FR 9258-9262).

IV. What Are the Administrative Requirements Associated With This 
Action?

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

Enhancing the Intergovernmental Partnership
    Under Executive Order 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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 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 any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 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 Executive 
Order 12875 do not apply to this rule.

C. Executive Order 13045

    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 Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 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, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
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 officials 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 
Executive Order 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

[[Page 29799]]

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 State Plan 
approvals under section 111 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 approval of the State Plan 
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. 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 here 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 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 August 2, 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: May 21, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    40 CFR part 62, subpart QQ, of chapter I, title 40 is amended as 
follows:

PART 62--[AMENDED]

    1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401-7642.

    2. Subpart QQ is added to read as follows:

Subpart QQ--South Dakota

Sec.
62.10350  Identification of plan.
62.10351  Identification of sources.
62.10352  Effective date.

Subpart QQ--South Dakota

Landfill Gas Emissions From Existing Municipal Solid Waste 
Landfills


Sec. 62.10350  Identification of plan.

    ``Section 111(d) State Plan for Municipal Solid Waste Landfills'' 
and the State's implementing regulations in Sections 74:36:07:34 
through 74:36:07:42 of the Administrative Rules of South Dakota (ARSD), 
submitted by the State on May 2, 1997 with amendments to the plan 
submitted on May 6, 1999.


Sec. 62.10351  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 described in 40 CFR part 60, subpart Cc.


Sec. 62.10352  Effective date.

    The effective date of the plan for municipal solid waste landfills 
is August 2, 1999.

[FR Doc. 99-13797 Filed 6-2-99; 8:45 am]
BILLING CODE 6560-50-P