[Federal Register Volume 85, Number 121 (Tuesday, June 23, 2020)]
[Rules and Regulations]
[Pages 37568-37571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12001]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2019-0537; FRL-10004-07-Region 3]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Virginia; Emission Standards for Existing 
Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a Clean 
Air Act (CAA) section 111(d) plan submitted by the Virginia Department 
of Environmental Quality (VADEQ). This plan was submitted to fulfill 
the requirements of the CAA and in response to EPA's promulgation of 
Emissions Guidelines and Compliance Times for municipal solid waste 
(MSW) landfills. The Virginia plan establishes emission limits for 
existing MSW landfills and provides for the implementation and 
enforcement of those limits.

DATES: This final rule is effective on July 23, 2020. The incorporation 
by reference of certain material listed in the rule is approved by the 
Director of the Federal Register as of July 23, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-EPA-R03-OAR-2019-0537. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, 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 through https://www.regulations.gov, or please 
contact

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the person identified in the FOR FURTHER INFORMATION CONTACT section 
for additional availability information.

FOR FURTHER INFORMATION CONTACT: Cynthia Stahl, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2180. Ms. Stahl can also be reached via electronic 
mail at stahl.cynthia@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 29, 2019 (84 FR 57838), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the 
NPRM, EPA proposed approval of a CAA section 111(d) plan submitted by 
the VADEQ. The formal State Plan was submitted by Virginia on August 
29, 2019.

II. Summary of State Plan and EPA Analysis

    EPA has reviewed the Virginia section 111(d) plan submittal in the 
context of the requirements of 40 CFR part 60, subparts B and Cf, and 
part 62, subpart A. In this action, EPA is determining that the 
submitted section 111(d) plan meets the above-cited requirements. 
Included within the section 111(d) plan are regulations under the 
Virginia state rule 9VAC5 Chapter 40 Article 43.1, entitled ``Emission 
Standards for Municipal Solid Waste Landfills for which Construction, 
Reconstruction, or Modification was Commenced on or before July 17, 
2014,'' published on January 9, 2017 and effective on February 22, 
2017. A detailed explanation of the rationale behind this proposed 
approval is available in the Technical Support Document (TSD).
    Other specific requirements of Virginia's State Plan for MSW 
landfills and the rationale for EPA's proposed action are explained in 
the NPRM and will not be restated here. Public comments in support of 
EPA's proposed action were received on the NPRM.

III. Final Action

    EPA is approving the Virginia section 111(d) plan for MSW landfills 
submitted pursuant to 40 CFR part 60, subpart Cf. Therefore, EPA is 
amending 40 CFR part 62, subpart VV to reflect this action. The scope 
of the approval of the section 111(d) plan is limited to the provisions 
of 40 CFR parts 60 and 62 for existing MSW landfills, as referenced in 
the emission guidelines, subpart Cf. The EPA Administrator continues to 
retain authority for approval of alternative methods to determine the 
nonmethane organic compound concentration or a site-specific methane 
generation rate constant (k), as stipulated in 40 CFR 60.30f(c), as 
well as part 1, ``Discretionary Authority,'' of Virginia's 111(d) plan 
submittal.

IV. General Information Pertaining to 111(d) Plan Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

V. Incorporation by Reference

    In accordance with the requirements of 1 CFR 51.5, EPA is 
finalizing regulatory text that includes the incorporation by reference 
of Virginia state rules, specifically, 9VAC5-20-21, published on 
January 9, 2017 entitled ``Documents incorporated by reference'' and 
specifically identified provisions of 9VAC5 Chapter 40 Article 43, 
entitled ``Emission Standards for Municipal Solid Waste Landfills, and 
Article 43.1, entitled ``Emission Standards for Municipal Solid Waste 
Landfills for which Construction, Reconstruction, or Modification was 
Commenced on or before July 17, 2014,'' (both published on January 9, 
2017) which are part of the CAA section 111(d) plan applicable to 
existing MSW landfills in Virginia as discussed in section II of this 
preamble. 9VAC5-20-21 sets out the constraints of

[[Page 37570]]

incorporation by reference into VA State regulations and contains the 
documents that have been IBRed. The regulatory provisions of 9VAC5 
Chapter 40 establish emission standards and compliance times for the 
control of methane and other organic compounds from certain existing 
MSW landfills located in Virginia that commenced construction, 
modification, or reconstruction on or before July 17, 2014. These 
provisions set forth requirements meeting criteria promulgated by EPA 
at 40 CFR part 60, subpart Cf. EPA has made, and will continue to make, 
all of the provisions that will be incorporated by reference as well as 
the rest of the Virginia plan, generally available through 
www.regulations.gov, Docket No. EPA-R03-OAR-2019-0537, and at the EPA 
Region III Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information). This incorporation by reference has been approved by the 
Office of the Federal Register and the Plans are Federally enforceable 
under the CAA as of the effective date of this final rulemaking.

VI. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve 
section 111(d) state plan submissions that comply with the provisions 
of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 40 
CFR part 60, subparts B and Cf; and 40 CFR part 62, subpart A. Thus, in 
reviewing CAA section 111(d) state plan submissions, the EPA's role is 
to approve state choices, provided that they meet the criteria of the 
Act and implementing regulations. Accordingly, this action merely 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because this action is not significant under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the State Plan is not approved to apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. 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 August 24, 2020. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action approving Virginia's State Plan for existing MSW 
landfills may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Landfills, 
Incorporation by reference, Intergovernmental relations, Methane, 
Ozone, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 27, 2020.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. Amend Subpart VV by adding after Sec.  62.11652 an undesignated 
center heading and Sec. Sec.  62.11660, 62.11661, and 62.11662 to read 
as follows:

Emissions From Existing Municipal Solid Waste Landfills--Section 111(d) 
Plan


Sec.  62.11660   Identification of plan.

    (a)(1) Control of landfill gas emissions from existing municipal 
solid waste landfills, submitted by the Virginia Department of 
Environmental Quality on August 29, 2019, to implement 40 CFR part 60, 
subpart Cf. The Plan includes regulatory provisions cited in paragraph 
(a)(2) of this section, which the EPA incorporates by reference.
    (2) After July 23, 2020, the substantive requirements of the 
municipal solid waste landfills state plan are contained in paragraph 
(b) of this section and owners and operators of municipal solid waste 
landfills in Virginia must comply

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with the requirements in paragraph (b) of this section.
    (b) Incorporation by reference:
    (1) The material incorporated by reference in this section was 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. A copy of the material is available at 
the EPA Region III office, 1650 Arch Street, Philadelphia, PA 19103, 
215-814-5000. Copies may be inspected at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, email fedreg.legal@nara.gov or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (2) Virginia Code Commission, Commonwealth of Virginia, Virginia 
Register of Regulations, https://register.dls.viriginia.gov.
    (i) 9VAC5-20. General Provisions; 9VAC5-20-21. Documents 
incorporated by reference, published January 9, 2017.
    (ii) 9VAC5-40. Existing Stationary Sources, published January 9, 
2017:
    (A) Article 43 Emission Standards for Municipal Solid Waste 
Landfills (Rule 4-43), published January 9, 2017, excluding 9 VAC5-40-
5800F;
    (B) Article 43.1 Emission Standards for Municipal Solid Waste 
Landfills for which Construction, Reconstruction, or Modification was 
Commenced on or before July 17, 2014 (Rule 4-43.1), published January 
9, 2017, excluding 9VAC5-40-5940, 9VAC5-40-5945, 9VAC5-40-5960 A, 
9VAC5-40-5965 A, 9VAC5-40-5970 A, and 9VAC5-40-5980 A.


Sec.  62.11661  Identification of sources.

    The plan in Sec.  62.11640(b) applies to all existing municipal 
solid waste landfills under the jurisdiction of the Virginia Department 
of Environmental Quality for which construction, reconstruction, or 
modification was commenced on or before July 17, 2014.


Sec.  62.11662  Effective date.

    The effective date of the plan submitted on August 29, 2019 by the 
Virginia Department of Environmental Quality for municipal solid waste 
landfills is July 23, 2020.

[FR Doc. 2020-12001 Filed 6-22-20; 8:45 am]
BILLING CODE 6560-50-P


