Rule2022-02654
National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills Residual Risk and Technology Review; Correction
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 14, 2022
Effective
February 14, 2022
Issuing agencies
Environmental Protection Agency
Abstract
In this action, the U.S. Environmental Protection Agency (EPA) is finalizing technical revisions and clarifications for the national emission standards for hazardous air pollutants (NESHAP) for MSW Landfills established in the March 26, 2020, final rule. This final rule also amends the MSW Landfills NSPS at 40 CFR part 60, subpart XXX, to clarify and align the timing of compliance for certain requirements involving installation of a gas collection and control system (GCCS) under related MSW landfill rules. Additionally, the EPA is revising the definition of Administrator in the MSW Landfills Federal Plan that was promulgated on May 21, 2021 to clarify who has the authority to implement and enforce the applicable requirements. The EPA is also making some minor typographical corrections.
Full Text
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<title>Federal Register, Volume 87 Issue 30 (Monday, February 14, 2022)</title>
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[Federal Register Volume 87, Number 30 (Monday, February 14, 2022)]
[Rules and Regulations]
[Pages 8197-8205]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02654]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60, 62, and 63
[EPA-HQ-OAR-2002-0047; FRL-6838.1-03-OAR]
RIN 2060-AV01
National Emission Standards for Hazardous Air Pollutants:
Municipal Solid Waste Landfills Residual Risk and Technology Review;
Correction
AGENCY: Environmental Protection Agency (EPA)
ACTION: Final rule.
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SUMMARY: In this action, the U.S. Environmental Protection Agency (EPA)
is finalizing technical revisions and clarifications for the national
emission standards for hazardous air pollutants (NESHAP) for MSW
Landfills established in the March 26, 2020, final rule. This final
rule also amends the MSW Landfills NSPS at 40 CFR part 60, subpart XXX,
to clarify and align the timing of compliance for certain requirements
involving installation of a gas collection and control system (GCCS)
under related MSW landfill rules. Additionally, the EPA is revising the
definition of Administrator in the MSW Landfills Federal Plan that was
promulgated on May 21, 2021 to clarify who has the authority to
implement and enforce the applicable requirements. The EPA is also
making some minor typographical corrections.
DATES: The final rule is effective February 14, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2002-0047. All documents in the docket are
listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. Although listed,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> or in hard copy at
the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC. The EPA has temporarily suspended its Docket
Center and Reading Room for public visitors to reduce the risk of
transmitting COVID-19. Our Docket Center staff will continue to provide
remote customer service via email, phone, and webform. The EPA
continues to carefully and continuously monitor information from the
Centers for Disease Control (CDC), local area health departments, and
our Federal partners so that the EPA can respond rapidly as conditions
change regarding COVID-19. For further information on EPA Docket Center
services and the current status, please visit the docket online at
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: For questions about this final action,
contact Andy Sheppard, Sector Policies and Programs Division (E143-03),
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711;
telephone number: (919) 541-4161; fax number: (919) 541-0516; and email
address: <a href="/cdn-cgi/l/email-protection#087b606d7878697a6c2669666c71486d7869266f677e"><span class="__cf_email__" data-cfemail="2b58434e5b5b4a594f054a454f526b4e5b4a054c445d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. The EPA uses multiple acronyms
and terms in this preamble. While this list may not be exhaustive, to
ease the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
COVID-19 coronavirus disease of 2019
EPA Environmental Protection Agency
GCCS gas collection and control system
HAP hazardous air pollutants
m3 cubic meter
Mg megagram
MSW municipal solid waste
NMOC nonmethane organic compounds
NSPS new source performance standards
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RTR risk and technology review
SSM startup, shutdown, and malfunction
[[Page 8198]]
RIN Regulatory Information Number
UMRA Unfunded Mandate Reform Act
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Does this final action apply to me?
B. Where can I get a copy of this document and other related
information?
C. What is the statutory authority for this action?
D. Judicial Review
II. Background
A. What is the regulatory development background for this final
action?
B. What is the purpose of this action?
III. Summary of Changes Since Proposal and Response to Comments
A. Wellhead Monitoring
B. Compliance Timing
C. Technical and Typographical Corrections
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA) and
1 CFR Part 51
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Table 1 of this preamble lists the associated regulated industrial
source categories that are the subject of this final rule. Table 1 is
not intended to be exhaustive, but rather provides a guide for readers
regarding the entities that this action is likely to affect. The
standards, once promulgated, will be directly applicable to the
affected sources. Federal, state, local, and tribal government entities
could be affected by this action because these entities are often the
owners or operators of MSW landfills. As defined in the Initial List of
Categories of Sources Under Section 112(c)(1) of the Clean Air Act
Amendments of 1990 (57 FR 31576, July 16, 1992) and Documentation for
Developing the Initial Source Category List, Final Report (see EPA-450/
3-91-030; July 1992), the MSW Landfills source category is any facility
that is an entire disposal facility in a contiguous geographical space
where household waste is placed in or on land. An MSW landfill may also
receive commercial waste, sludges, and industrial waste. An MSW
landfill may also receive other types of Resource Conservation and
Recovery Act (RCRA) Subtitle D wastes (see 40 CFR 257.2) such as
commercial solid waste, nonhazardous sludge, conditionally exempt small
quantity generator waste, and industrial solid waste. Portions of an
MSW landfill may be separated by access roads. An MSW landfill may be
publicly or privately owned.
Questions regarding the applicability of this final action to a
particular entity should be directed to the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Table 1--Industrial Source Categories Affected by This Action
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Source category NAICS code \1\
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Industry: Air and water resource and solid waste 924110
management..........................................
Industry: Refuse systems--solid waste landfills...... 562212
State, local, and tribal government agencies......... 562212, 924110
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\1\ North American Industry Classification System.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this action is available on the internet. Following signature by the
EPA Administrator, the EPA will post a copy of this final action at
<a href="https://www.epa.gov/stationary-sources-air-pollution/municipal-solid-waste-landfills-national-emission-standards">https://www.epa.gov/stationary-sources-air-pollution/municipal-solid-waste-landfills-national-emission-standards</a>. Following publication in
the Federal Register, the EPA will post the Federal Register version of
this final action at this same website.
C. What is the statutory authority for this action?
The statutory authority for revisions to the MSW Landfills NESHAP
(40 CFR part 63, subpart AAAA) is provided by sections 112 and 301 of
the Clean Air Act (CAA), as amended (42 U.S.C. 7412 and 7401). The
statutory authority for revisions to the MSW Landfills New Source
Performance Standards (40 CFR part 60, subpart XXX) and the Federal
Plan (40 CFR part 62, subpart OOO) is provided by sections 111 and 301
of the CAA (42 U.S.C. 7411 and 7401).
The EPA finds that it has good cause to make these revisions
immediately effective upon publication under section 553(d) of the
Administrative Procedure Act, 5 U.S.C. 553(d). Section 553(d) provides
that final rules shall not become effective until 30 days after
publication in the Federal Register ``except . . . as otherwise
provided by the agency for good cause.'' The purpose of this provision
is to ``give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed.
Commc'n Comm'n, 78 F.3d 620, 630 (DC Cir. 1996); see also United States
v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative
history). Thus, in determining whether good cause exists to waive the
30-day delay, an agency should, ``balance the necessity for immediate
implementation against principles of fundamental fairness which require
that all affected persons be afforded a reasonable amount of time to
prepare for the effective date of its ruling.'' Gavrilovic, 551 F.2d at
1105. The EPA has determined that there is good cause under section
553(d) for making this final rule effective immediately because this
action clarifies the regulatory provisions that already apply to
regulatory sources as well as the compliance deadline for controlled
landfills that become subject to the 2016 MSW Landfills NSPS through
modification is September 27, 2021. Making this rule effective
immediately upon publication will minimize confusion and increase
compliance certainty.
D. Judicial Review
Under CAA section 307(b)(1), judicial review of this final rule is
available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit by April 15, 2022.
Moreover, under section 307(b)(2) of the CAA, the requirements
established by
[[Page 8199]]
this final rule may not be challenged separately in any civil or
criminal proceedings brought by the EPA to enforce these requirements.
Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for the EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to the EPA that it was impracticable to raise such objection within
[the period for public comment] or if the grounds for such objection
arose after the period for public comment, (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule.'' Any person seeking to make such
a demonstration should submit a Petition for Reconsideration to the
Office of the Administrator, U.S. EPA, Room 3000, WJC South Building,
1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both
the person listed in the preceding FOR FURTHER INFORMATION CONTACT
section, and the Associate General Counsel for the Air and Radiation
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200
Pennsylvania Ave. NW, Washington, DC 20460.
II. Background
A. What is the regulatory development background and legal authority
for this action?
The NESHAP regulates HAP emissions from MSW landfills that are
either major or area sources, and applies to MSW landfills that have
accepted waste since November 8, 1987, or have additional capacity for
waste deposition and are major sources, are collocated with major
sources, or are area source landfills with a design capacity equal to
or greater than 2.5 million megagrams (Mg) and 2.5 million cubic meters
(m\3\) and have estimated uncontrolled emissions equal to or greater
than 50 megagrams per year (Mg/yr) of non-methane organic compounds
(NMOC). The NESHAP also applies to MSW landfills that have accepted
waste since November 8, 1987, or have additional capacity for waste
deposition and include a bioreactor and are major sources, are
collocated with major sources, or are area source landfills with a
design capacity equal to or greater than 2.5 million Mg and 2.5 million
m\3\ that were not permanently closed as of January 16, 2003.
The EPA completed the residual risk and technology review (RTR) for
the Municipal Solid Waste (MSW) Landfills source category as regulated
under the MSW Landfills NESHAP and promulgated amendments to 40 CFR
part 63, subpart AAAA on March 26, 2020. (85 FR 17244). The rule
finalized the EPA's determination that risks from this source category
are acceptable and that the standards provide an ample margin of safety
to protect public health and prevent an adverse environmental effect.
There were no revisions to the NESHAP based on our analyses conducted
under CAA section 112(f). However, the final rule clarified regulatory
provisions related to emissions during periods of startup, shutdown,
and malfunction (SSM); revised wellhead operational standards and
corrective action to improve effectiveness and provide compliance
flexibility; incorporated provisions from the MSW Landfills NSPS; and
added requirements for electronic reporting of performance test
results. The EPA subsequently corrected inadvertent errors in the
cross-referencing and formatting of the final rule and made minor
clarifications to the operational and reporting requirements. (85 FR
64398, October 13, 2020).
In August 2016, the EPA finalized changes to the NSPS for MSW
landfills resulting from the EPA's under Clean Air Act (CAA) section
111. In order to avoid possible confusion regarding which MSW landfills
would actually be subject to these changes, the EPA established a new
subpart XXX (40 CFR part 60, subpart XXX) rather than merely updating
the existing subpart WWW (40 CFR part 60, subpart WWW). One of the key
changes in the new subpart XXX was the lowering of the emissions
threshold for installing controls from 50 megagrams per year (Mg/yr) to
34 Mg/yr. (81 FR 59332, August 29, 2016).
At the same time, the EPA reviewed the existing emission guideline
(EG) (subpart Cc) and determined it was appropriate to revise it
consistent with the promulgation of the new NSPS subpart XXX. Rather
than merely updating subpart Cc, the EPA determined that the most
appropriate way to proceed was to establish a new subpart Cf. (81 FR
59276, August 29, 2016).
The promulgation of the MSW landfills EG (subpart Cf) triggered
states' obligation to submit state plans applying the updated EG to
existing sources located in their states. The EPA found a number of
states failed to submit state plans for the 2016 MSW Landfills EG. (85
FR 14474, March 12, 2020). In May of 2021, the EPA promulgated a
Federal plan to implement the 2016 MSW Landfills EG for existing MSW
landfills located in jurisdications where the EPA had not approved a
state or tribal plan. (86 FR 27756, May 21, 2021).
B. What is the purpose of this action?
On April 13, 2021, the EPA proposed technical revisions and
clarifications for the NESHAP for MSW Landfills and the EPA proposed
clarifying amendments to the MSW Landfills NSPS. See 86 FR 19176. In
this action, the EPA finalizes technical revisions and clarifications
for the NESHAP for MSW Landfills established in the March 26, 2020,
final rule. These technical revisions correct inadvertent errors in the
NESHAP for MSW Landfills. This action clarifies the following: Wellhead
monitoring requirements for the purpose of identifying excess air
infiltration; delegation of authority to state, local, or tribal
agencies for ``emission standards;'' applicability of the General
Provisions to affected MSW landfills; and handling of monitoring data
for combustion devices during periods of monitoring system breakdowns,
repairs, calibration checks, and adjustments. This action also amends
the MSW Landfills NSPS at 40 CFR part 60, subpart XXX, to clarify the
timing of compliance for certain requirements of the MSW Landfills NSPS
for existing MSW landfills that have been modified but previously
triggered the requirement to install a GCCS under related MSW landfill
rules. Additionally, the EPA is revising the definition of
Administrator in the MSW Landfills Federal Plan that was promulgated on
May 21, 2021, to clarify who is the administrator for the Federal plan
and the administrator for a state plan. The EPA is also making some
minor typographical corrections to NESHAP and the Federal Plan.
III. Summary of Changes Since Proposal and Response to Comments
The EPA received two comment letters on the proposed revisions to
the MSW Landfills NESHAP and NSPS (EPA-HQ-OAR-2002-0047-0111, EPA-HQ-
OAR-2002-0047-0112). This section summarizes the EPA's response to
those comments and indicates where the EPA has made additional changes
to the proposed revisions to the MSW Landfills NESHAP and NSPS, in
part, in response to those public comments. The changes include
clarifications to the wellhead monitoring requirements [including test
methods], and clarifications to the compliance times for various
landfills, especially those modifying and becoming subject to 40
[[Page 8200]]
CFR part 60, subpart XXX. For more information, see the response to
comments document, titled, Summary of Public Comments and EPA's
Responses for the Proposed Corrections to National Emission Standards
for Hazardous Air Pollutants: Municipal Solid Waste Landfills Residual
Risk and Technology Review; Correction, which is available in the
docket for this action.
A. Wellhead Monitoring
Comment: Commenter (0111) suggested that the EPA add language to 40
CFR 63.1981(k) to clarify whether or not a 24-hour high temperature
report is required for wells with landfill gas temperatures greater
than 170 degrees Fahrenheit but less than an approved higher operating
value (HOV).
Response: The EPA is amending 40 CFR 63.1981(j)(2) to clarify that
the corrective action and corresponding timelines are not required if
the landfill has an approved HOV. We added the following phrase to the
end of 40 CFR 63.1981 (j)(2): ``unless a higher operating temperature
value has been approved by the Administrator for the well under this
subpart or under 40 CFR part 60, subpart WWW; 40 CFR part 60, subpart
XXX; or a Federal plan or EPA approved and effective state plan or
tribal plan that implements either 40 CFR part 60, subpart Cc or 40 CFR
part 60, subpart Cf.''
Comment: Commenter (0112) requested that EPA re-evaluate its
proposal to require five 1-minute averages to be limited to 7 parts per
million (ppm) variance. The commenter (0112) contends that the proposed
requirement is unnecessarily prescriptive and says that although this
low level of variability may be appropriate for some stationary sources
of air emissions, such as controlled manufacturing processes, landfills
may experience more variability than this limitation would allow.
Commenter (0112) asserted that EPA has neither provided an explanation
for why this requirement is necessary, nor shown that it can be
achieved by landfills. Moreover, this requirement does not appear to be
a necessary clarification or correction but rather an entirely new and
unjustified compliance obligation. Therefore, unless and until EPA
demonstrates a need for this requirement and that it is achievable by
landfills, EPA should not finalize it in this corrections rule.
Response: The EPA believes that a limited variability provision
would increase the data quality when collecting samples pursuant to 40
CFR 1961(a)(5)(vi)(D). However, the EPA agrees with the commenter that
the CO concentrations can, under certain conditions (e.g., underground
fires), exhibit short term CO variability higher than 7 ppm. Therefore,
the EPA has removed the 7 ppm variability requirement and may revisit
this when more data is available.
Comment: Commenter (0112) requested that the EPA clarify language
in 40 CFR 63.1961(a)(5)(vii) directing that enhanced monitoring ``must
begin 7 days after the first measurement'' to provide that monitoring
``must begin within 7 days to account for landfill operating hours,
including weekends and holidays.''
Response: The EPA has revised 40 CFR 63.1961(a)(5)(vii) to clarify
that the requirement is to begin enhanced monitoring 7 calendar days
after the first measurement of landfill gas temperature greater than
62.8 degrees Celsius (145 degrees Fahrenheit). Decomposition of waste
and monitoring a landfill are 24-hour per day/365 day per year
operation where conditions change constantly. The EPA determined that
it is reasonable and necessary to begin enhanced monitoring within 7
calendar days to keep a check on high temperature conditions in the
landfill and minimize the potential for a landfill fire.
B. Compliance Timing
In the proposed rule, the EPA requested comment on whether the
proposed modifications to the 2016 MSW Landfills NSPS regulations
adequately clarify the expected compliance deadlines for controlled
landfills that become subject to the 2016 MSW Landfills NSPS through
modification and/or whether other approaches are needed to align the
timing provisions of the 2016 MSW Landfills NSPS with the timing
provisions of the MSW Landfills NESHAP. (86 FR 19176, 19182, April 13,
2021)
Comment: Commenter (0111) requested that the EPA should specify
compliance deadlines for three categories of landfills:
(1) Landfills with an NMOC emission rate less than 34 megagrams per
year that become subject to subpart XXX through modification;
(2) uncontrolled landfills with an NMOC emission rate between 34
and 50 megagrams per year that become subject to subpart XXX through
modification; and
(3) controlled landfills that become subject to subpart XXX through
modification.
Response: The EPA recognizes that from July 17, 2014 (the
applicability date of the NSPS) to June 21, 2021 (the effective date of
the Federal plan at 40 CFR part 62 subpart OOO), landfills that modify
could become subject to 40 CFR part 60, subpart XXX after having
previously been subject to 40 CFR part 62, subpart GGG; 40 CFR part 60,
subpart WWW; or a state plan implementing 40 CFR part 60, subpart Cf or
subpart Cc. By virtue of this final action, the EPA is clarifying that
landfills that meet the definition of a ``controlled landfill'' would
not receive an additional 30 months to comply when they transition to
subpart XXX.
The EPA notes that after June 21, 2021, all three groups of
landfills that modify as identified in this comment will have been
previously subject only to either a state plan implementing 40 CFR part
62, subpart Cf, or 40 CFR part 62, subpart OOO to 40 CFR part 60,
subpart XXX. The EPA is clarifying in this rule that compliance timing
for landfills that become subject to subpart XXX after previously being
subject to the Federal plan subpart OOO depends on whether the facility
is a legacy controlled landfill, a controlled landfill or an
uncontrolled landfill, and the results and timing of the landfill's
NMOC emission rate report.
Landfills with an NMOC emission rate less than 34 megagrams per
year that later become subject to subpart XXX through modification and
have not installed controls should follow the requirements in subpart
XXX, including the 30-month window to install and operate a GCCS. The
landfill will submit their first NMOC report within 90 days of the date
of construction or modification. The landfill could submit a revised
NMOC report based on Tier 2 within 180 days of that first report, if
desired.
For uncontrolled landfills with an NMOC emission rate equal to or
greater than 34 but less than 50 megagrams per year that later become
subject to subpart XXX through modification, we are clarifying that the
30-month clock for previously uncontrolled landfills will begin at the
first report containing NMOC emissions greater than or equal to 34 Mg/
yr NMOC that was submitted under any of the following subparts: 40 CFR
part 60, subpart XXX or a state plan implementing subpart Cf; or 40 CFR
part 62, subpart OOO. We are starting the 30-month clock at the NMOC
report submitted under that subpart for these landfills with an NMOC
emission rate equal to or greater than 34 but less than 50 megagrams
per year because the landfill was not otherwise subject to any
requirement to install and operate GCCS until they became subject to
these subparts.
[[Page 8201]]
For controlled landfills that become subject to subpart XXX through
modification, we do not intend to restart the 30-month clock for
landfills reporting NMOC emissions greater than or equal to 50 Mg/yr
NMOC under 40 CFR part 60, subpart WWW or Cc; or 40 CFR part 62,
subpart GGG, and that submitted a design plan before the effective date
of these 2021 subpart XXX amendments. These landfills already started
the ``control'' process under the previous subparts and must stay on
that previously triggered 30-month timeframe to install a GCCS in a
timely manner.
Comment: Commenter (0112) disagreed with the EPA's proposal not to
allow 30 months to install and operate a GCCS as the landfill
transitions to a new subpart. However, the commenter (0112) recognized
that landfills with emissions 50 Mg/yr NMOC or greater will be required
to begin complying with the same requirements to install and operate
GCCS pursuant to NESHAP AAAA as of September 28, 2021.
Response: For controlled landfills that become subject to subpart
XXX through modification, the EPA does not agree that it would be
appropriate to restart the 30-month clock for landfills reporting NMOC
emissions greater than or equal to 50 Mg/yr NMOC under 40 CFR part 60,
subpart WWW or Cc; or 40 CFR part 62, subpart GGG and that submitted a
design plan before the effective date of these 2021 subpart XXX
amendments. These landfills already started the ``control'' process
under the previous subparts and it is reasonable to require these
landfills to stay on that 30-month timeframe to install a GCCS in a
timely manner. The commenter has not provided any information that
would justify any further delay in the implementation of GCCS.
Comment: Commenter (0112) disagreed with using any subpart WWW
reports between 34 and 50 Mg/yr NMOC as the trigger for the 30-month
timeframe for installation of GCCS since this would not allow the
landfill sufficient time to prepare a design plan and install the GCCS.
The commenter (0112) suggested alternative regulatory text.
Response: The EPA recognizes that previous regulatory requirements
are based on an emission rate threshold of 50 Mg/yr NMOC and that newer
regulatory requirements are based on an emission rate threshold of 34
Mg/yr NMOC. With these technical revisions, we intend to clarify the
application of the 30-month clock for previously uncontrolled landfills
reporting NMOC emissions greater than or equal to 34 Mg/yr NMOC and
less than 50 Mg/yr NMOC under 40 CFR part 60, subpart XXX or Cf; or 40
CFR part 62, subpart OOO. We are starting the 30-month clock at the
NMOC report submitted under those subparts for those landfills that
exceeded 34 Mg/yr NMOC because the 34-50 Mg/yr NMOC threshold did not
apply until they became subject to these subparts.
However, we do not intend to restart the 30-month clock for
landfills reporting NMOC emissions greater than or equal to 50 Mg/yr
NMOC under 40 CFR part 60, subpart WWW or Cc; or 40 CFR part 62,
subpart GGG and that submitted a design plan before the effective date
of these 2021 subpart XXX amendments. These landfills already started
the ``control'' process under the previous subparts and it is
reasonable to require these landfills to stay on that 30-month
timeframe to install a GCCS in a timely manner.
The EPA is revising 40 CFR 60.762(b)(2)(ii)(A) to read as follows:
(A) The first annual report submitted under this subpart or part
62 of this subchapter in which the NMOC emission rate equals or
exceeds 34 megagrams per year, unless Tier 2 or Tier 3 sampling
demonstrates that the NMOC emission rate is less than 34 megagrams
per year, as specified in Sec. 60.767(c)(4); or
This approach points to 40 CFR part 60, subpart XXX or 40 CFR part
62 (the Federal plan subpart OOO or state plans implementing subpart
Cf). When these subpart XXX amendments are finalized, all ``existing''
landfills will be subject to the state and/or Federal plan implementing
subpart Cf because the Federal plan became effective on June 21, 2021.
Subpart OOO handles the legacy controllers separately and gives a full
30 months for landfills with NMOC emissions greater than 34 Mg/yr and
less than 50 Mg/yr.
C. Technical and Typographical Corrections
In this final action, the EPA is revising the definition of
Administrator at 40 CFR 62.16730 in the MSW Landfills Federal Plan that
was promulgated on May 21, 2021 (86 FR 27756). The revision makes the
definition consistent with other Federal plans such as the Federal Plan
Requirements for Sewage Sludge Incineration Units (40 CFR part 62,
subpart LLL), which distinguishes between the administrator of the
Federal plan and the administrator of a state plan. In developing the
MSW Landfills Federal Plan, the EPA inadvertently retained the
definition of Administrator from the Emission Guidelines (40 CFR part
60, subpart Cf), which was written in the context of states preparing a
state plan. As currently written, the definition could be interpreted
to allow non-delegated authority to implement and enforce the Federal
plan. In the context of the Federal plan, the revised definition of
Administrator clarifies that the EPA Administrator or his/her
authorized representative have the authority to implement and enforce
the Federal plan. To add clarity in the context of developing State
plans, the EPA has further revised the definition of Administrator to
clearly identify the director of the state air pollution control agency
or his/her authorized representative, which will better allow states to
incorporate by reference the Federal plan as their state rule applying
to landfills in the state.
The EPA is also correcting typographical errors in the MSW
Landfills NESHAP that were published in the Federal Register on March
26, 2020 (85 FR 17244) and the MSW Landfills Federal Plan that was
published in the Federal Register on May 21, 2021 (86 FR 27756). In the
MSW Landfills NESHAP, the EPA is correcting 40 CFR 63.1981(n) to change
September 2, 2021 to September 27, 2021. In the MSW Landfills Federal
Plan, the EPA is correcting a cross reference error in 40 CFR
62.16712(b) and (c). Both paragraphs incorrectly refer to 40 CFR
62.16712(c)(3), which does not exist. The correct reference is to 40
CFR 62.16712(d). Finally, the EPA is correcting the omission of the
word ``is'' in 40 CFR 62.16714(a)(4), so that the correct reading is:
The landfill is in the closed landfill subcategory and has an NMOC
emission rate greater than or equal to 50 megagrams per year.
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. The EPA has determined
that there is good cause for making these technical and typographical
changes without prior proposal and opportunity for comment because, as
explained here above, the technical correction to the definition of
Administrator and the typographical changes are noncontroversial in
nature and do not substantively change the requirements of the MSW
Landfills regulations. Thus, notice and opportunity for public comment
are unnecessary for these changes. The EPA finds that this constitutes
good cause under 5 U.S.C. 553(b)(B).
[[Page 8202]]
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0505 for the NESHAP and OMB control number 2060-
0697 for the NSPS. The revisions include technical corrections to the
NESHAP and NSPS and do not pose any changes to the information
collection burden for either.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the agency is certifying that this rule will not have a
significant economic impact on a substantial number of small entities
if the rule has no net burden on the small entities subject to the
rule. This action includes only technical corrections to provisions
from the March 26, 2020, final RTR rulemaking and clarifying amendments
to 2016 MSW Landfills NSPS and does not implement new requirements. We
have therefore concluded that this action will have no net regulatory
burden for all directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. Although state,
local, or tribal governments own and operate landfills subject to these
final amendments, this action includes only technical corrections to
provisions from the March 26, 2020, final RTR rulemaking and clarifying
amendments to the 2016 MSW Landfills NSPS and there are no impacts
resulting from this regulatory action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications as specified in Executive Order
13175. However, it will neither impose substantial direct compliance
costs on federally recognized tribal governments nor preempt tribal
law. As explained in the March 26, 2020, final rule, the EPA previously
identified one tribe that owns three landfills that are potentially
subject to the MSW Landfills NESHAP. However, this action includes only
technical corrections to provisions from the March 26, 2020, final RTR
rulemaking and clarifying amendments to the subpart XXX NSPS and does
not impose any new requirements on tribes.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629; February 16, 1994) because it does not establish an
environmental health or safety standard. This regulatory action is a
technical correction to a previously promulgated regulatory action and
does not have any impact on human health or the environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 60
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 62
Environmental protection, Administrative practice and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, the EPA amends 40 CFR
parts 60, 62, and 63 as follows:
PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES
0
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XXX--Standards of Performance for Municipal Solid Waste
Landfills That Commenced Construction, Reconstruction, or
Modification After July 17, 2014
0
2. Amend Sec. 60.761 by revising the definition of ``Controlled
landfill'' to read as follows:
Sec. 60.761 Definitions.
* * * * *
Controlled landfill means any landfill at which collection and
control systems
[[Page 8203]]
are required under this subpart as a result of the nonmethane organic
compounds emission rate. The landfill is considered controlled at the
time a collection and control system design plan is submitted in
compliance with either Sec. 60.762(b)(2)(i), 40 CFR part 60, subpart
WWW, or a Federal plan or EPA approved and effective state plan or
tribal plan that implements either 40 CFR part 60, subparts Cc or Cf,
whichever regulation first required submission of a collection and
control system design plan for the landfill.
* * * * *
0
3. Amend Sec. 60.762 by revising paragraphs (b)(2)(i) and
(b)(2)(ii)(A) to read as follows:
Sec. 60.762 Standards for air emissions from municipal solid waste
landfills.
* * * * *
(b) * * *
(2) * * *
(i) Calculated NMOC Emission Rate. Submit an initial or revised
collection and control system design plan prepared by a professional
engineer to the Administrator as specified in Sec. 60.767(c) or (d);
calculate NMOC emissions using the next higher tier in Sec. 60.764; or
conduct a surface emission monitoring demonstration using the
procedures specified in Sec. 60.764(a)(6). The collection and control
system must meet the requirements in paragraphs (b)(2)(ii) and (iii) of
this section.
(ii) * * *
(A) The first annual report submitted under this subpart or part 62
of this subchapter in which the NMOC emission rate equals or exceeds 34
megagrams per year, unless Tier 2 or Tier 3 sampling demonstrates that
the NMOC emission rate is less than 34 megagrams per year, as specified
in Sec. 60.767(c)(4); or
* * * * *
0
4. Amend Sec. 60.767 by revising paragraph (d) introductory text to
read as follows:
Sec. 60.767 Reporting requirements.
* * * * *
(d) Revised design plan. The owner or operator who has already been
required to submit a design plan under paragraph (c) of this section,
subpart WWW of this part, or a Federal plan or EPA-approved and
effective state plan or tribal plan that implements subparts Cc or Cf
of this part, must submit a revised design plan to the Administrator
for approval as follows:
* * * * *
PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS
0
5. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart OOO--Federal Plan Requirements for Municipal Solid Waste
Landfills That Commenced Construction On or Before July 17, 2014
and Have Not Been Modified or Reconstructed Since July 17, 2014
0
6. Amend Sec. 62.16712 by revising paragraph (b) and paragraph (c)
introductory text to read as follows:
Sec. 62.16712 Compliance schedule and increments of progress.
* * * * *
(b) Compliance date. For each designated facility that has a design
capacity equal to or greater than 2.5 million megagrams and 2.5 million
cubic meters and a NMOC emission rate greater than or equal to 34
megagrams per year (50 megagrams per year for closed landfill
subcategory), planning, awarding of contracts, and installation of
municipal solid waste landfill air emission collection and control
equipment capable of meeting the standards in Sec. 62.16714(b) and (c)
must be accomplished within 30 months after the date the initial
emission rate report (or the annual emission rate report) first shows
that the NMOC emission rate equals or exceeds 34 megagrams per year (50
megagrams per year for closed landfill subcategory), except as provided
in Sec. 62.16712(d).
(c) Compliance schedules. The owner or operator of a designated
facility that has a design capacity equal to or greater than 2.5
million megagrams and 2.5 million cubic meters and a NMOC emission rate
greater than or equal to 34 megagrams per year (50 megagrams per year
for closed landfill subcategory) must achieve the increments of
progress specified in paragraphs (a)(1) through (5) of this section
according to the schedule specified in paragraph (c)(1), (2), or (d) of
this section.
* * * * *
0
7. Amend Sec. 62.16714 by revising paragraph (a)(4) to read as
follows:
Sec. 62.16714 Standards for municipal solid waste landfill emissions.
(a) * * *
(4) Closed subcategory. The landfill is in the closed landfill
subcategory and has an NMOC emission rate greater than or equal to 50
megagrams per year.
* * * * *
0
8. Amend Sec. 62.16730 by revising the definition of ``Administrator''
to read as follows:
Sec. 62.16730 Definitions.
* * * * *
Administrator means:
(1) For municipal solid waste landfills covered by the federal
plan, the Administrator of the EPA or his/her authorized representative
(e.g., delegated authority);
(2) For municipal solid waste landfills covered by an approved
state plan, the director of the state air pollution control agency or
his/her authorized representative.
* * * * *
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
0
9. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart AAAA--National Emission Standards for Hazardous Air
Pollutants: Municipal Solid Waste Landfills
0
10. Amend Sec. 63.1960 by revising paragraph (a)(4)(i) introductory
text to read as follows:
Sec. 63.1960 Compliance provisions.
(a) * * *
(4) * * *
(i) Once an owner or operator subject to the provisions of this
subpart seeks to demonstrate compliance with the operational standard
for temperature in Sec. 63.1958(c)(1), the owner or operator must
monitor each well monthly for temperature for the purpose of
identifying whether excess air infiltration exists. If a well exceeds
the operating parameter for temperature as provided in Sec.
63.1958(c)(1), action must be initiated to correct the exceedance
within 5 days. Any attempted corrective measure must not cause
exceedances of other operational or performance standards.
* * * * *
0
11. Amend Sec. 63.1961 by revising paragraphs (a)(5)((vi) introductory
text and (a)(5)(vi)(A), adding paragraphs (a)(5)(vi)(C) and (D), and
revising paragraph (a)(5)(vii) to read as follows:
Sec. 63.1961 Monitoring of operations.
* * * * *
(a) * * *
(5) * * *
(vi) Monitor and determine carbon monoxide concentrations, as
follows:
[[Page 8204]]
(A) Collect the sample from the wellhead sampling port in a
passivated canister or multi-layer foil gas sampling bag (such as the
Cali-5-Bond Bag) and analyze that sample using EPA Method 10 of
appendix A-4 to part 60 of this chapter, or an equivalent method with a
detection limit of at least 100 ppmv of carbon monoxide in high
concentrations of methane; or
* * * * *
(C) When sampling directly from the wellhead, you must sample for 5
minutes plus twice the response time of the analyzer. These values must
be recorded. The five 1-minute averages are then averaged to give you
the carbon monoxide reading at the wellhead.
(D) When collecting samples in a passivated canister or multi-layer
foil sampling bag, you must sample for the period of time needed to
assure that enough sample is collected to provide five (5) consecutive,
1-minute samples during the analysis of the canister or bag contents,
but no less than 5 minutes plus twice the response time of the
analyzer. The five (5) consecutive, 1-minute averages are then averaged
together to give you a carbon monoxide value from the wellhead.
(vii) The enhanced monitoring described in this paragraph (a)(5)
must begin 7 calendar days after the first measurement of landfill gas
temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit);
and
* * * * *
0
12. Amend Sec. 63.1975 by revising the introductory text to read as
follows:
Sec. 63.1975 How do I calculate the 3-hour block average used to
demonstrate compliance?
Before September 28, 2021, averages are calculated in the same way
as they are calculated in Sec. 60.758(b)(2)(i) of this subchapter for
average combustion temperature and Sec. 60.758(c) for 3-hour average
combustion temperature for enclosed combustors, except that the data
collected during the events listed in paragraphs (a) through (d) of
this section are not to be included in any average computed under this
subpart. Beginning no later than September 27, 2021, averages are
calculated according to Sec. 63.1983(b)(2)(i) for average combustion
temperature and Sec. 63.1983(c)(1)(i) for 3-hour average combustion
temperature for enclosed combustors, except that the data collected
during the event listed in paragraph (a) of this section are not to be
included in any average computed under this subpart.
* * * * *
0
13. Amend Sec. 63.1981 by revising paragraph (j)(2) and paragraph (n)
introductory text to read as follows:
Sec. 63.1981 What reports must I submit?
* * * * *
(j) * * *
(2) For corrective action that is required according to Sec.
63.1960(a)(3) or (4) and is expected to take longer than 120 days after
the initial exceedance to complete, you must submit the root cause
analysis, corrective action analysis, and corresponding implementation
timeline to the Administrator as soon as practicable but no later than
75 days after the first measurement of positive pressure or temperature
monitoring value of 62.8 degrees Celsius (145 degrees Fahrenheit) or
above unless a higher operating temperature value has been approved by
the Administrator for the well under this subpart or under 40 CFR part
60, subpart WWW; 40 CFR part 60, subpart XXX; or a Federal plan or EPA
approved and effective state plan or tribal plan that implements either
40 CFR part 60, subpart Cc or 40 CFR part 60, subpart Cf. The
Administrator must approve the plan for corrective action and the
corresponding timeline.
* * * * *
(n) Claims of force majeure. Beginning no later than September 27,
2021, if you are required to electronically submit a report through
CEDRI in the EPA's CDX, you may assert a claim of force majeure for
failure to comply timely with the reporting requirement. To assert a
claim of force majeure, you must meet the following requirements:
* * * * *
0
14. Amend Sec. 63.1985 by revising paragraph (c) to read as follows:
Sec. 63.1985 Who enforces this subpart?
* * * * *
(c) The authorities that will not be delegated to state, local, or
tribal agencies are as follows. Approval of alternatives to the
emission standards in Sec. Sec. 63.1955 through 63.1962. Where this
subpart references part 60, subpart WWW of this subchapter, the cited
provisions will be delegated according to the delegation provisions of
part 60, subpart WWW of this subchapter. For this subpart, the EPA also
retains the authority to approve methods for determining the NMOC
concentration in Sec. 63.1959(a)(3) and the method for determining the
site-specific methane generation rate constant k in Sec.
63.1959(a)(4).
0
15. Amend table 1 to subpart AAAA of part 63 by:
0
a. Revising the entry for ``Sec. 63.6(f)(1)'';
0
b. Removing the entries for ``Sec. 63.10(b)(vi)'' and ``Sec.
63.10(b)(vii)-(xiv)'' and adding in their places entries for ``Sec.
63.10(b)(2)(vi)'' and ``Sec. 63.10(b)(2)(vii)-(xiv)'', respectively;
and
0
c. Revising the entry for ``Sec. 63.10(d)(3)''.
The revisions and additions read as follows:
Table 1 to Subpart AAAA of Part 63--Applicability of NESHAP General
Provisions to Subpart AAAA
* * * * *
Table 1 to Subpart AAAA of Part 63--Applicability of NESHAP General Provisions to Subpart AAAA
----------------------------------------------------------------------------------------------------------------
Applicable to
Applicable to subpart AAAA no
Part 63 citation Description subpart AAAA later than Explanation
before September September 27,
28, 2021 2021
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Sec. 63.6(f)(1)............. Exemption of nonopacity No............... No...............
emission standards
during SSM.
* * * * * * *
Sec. 63.10(b)(2)(vi)........ Recordkeeping for CMS No\1\............ Yes..............
malfunctions.
Sec. 63.10(b)(2)(vii)-(xiv). Other Recordkeeping of No\1\............ Yes..............
compliance measurements.
* * * * * * *
Sec. 63.10(d)(3)............ Reporting of visible No \1\........... No...............
emission observations.
[[Page 8205]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Before September 28, 2021, this subpart requires affected facilities to follow part 60, subpart WWW of this
subchapter, which incorporates the General Provisions of part 60 of this subchapter.
[FR Doc. 2022-02654 Filed 2-11-22; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.