[Federal Register Volume 86, Number 57 (Friday, March 26, 2021)]
[Proposed Rules]
[Pages 16173-16176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05870]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R08-OAR-2021-0187; FRL-10021-36-Region 8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; North Dakota; Control of Emissions From 
Existing Municipal Solid Waste Landfills; Control of Emissions From 
Existing Commercial and Industrial Solid Waste Incineration Units; 
Negative Declaration of Existing Hospital/Medical/Infectious Waste 
Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the ``Act''), 
the Environmental Protection Agency (EPA or the ``Agency'') is 
proposing approval of a CAA section 111(d) plan submitted by the North 
Dakota Department of Environmental Quality (NDDEQ or the 
``Department'') on July 28, 2020 to regulate landfill gas and its 
components from existing municipal solid waste (MSW) landfills. The EPA 
is also proposing approval of a CAA section 111(d)/129 plan submitted 
by the Department on the same date to regulate air pollutants from 
existing commercial and industrial solid waste incineration (CISWI) 
units and air curtain incinerators (ACI). These plans provide for the 
State's implementation and enforcement of the federal emission 
guidelines (EG) for existing MSW landfills, CISWI units and ACI in 
North Dakota. The EPA with this proposed rule is also notifying the 
public that the Agency has received a request from the State of North 
Dakota, dated May 8, 2019, for withdrawal of a previously approved CAA 
section 111(d)/129 plan for hospital/medical/infectious waste 
incineration (HMIWI) units and for Agency approval of a negative 
declaration of such units within the State. Approval of this negative 
declaration will stand in lieu of a North Dakota CAA section 111(d)/129 
plan for HMIWI units.

DATES: Written comments must be received on or before April 26, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2021-0187, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

[[Page 16174]]

    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically at 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this proposed action we do not plan to offer hard copy review of the 
docket. Please email or call the person listed in the FOR FURTHER 
INFORMATION CONTACT section if you need to make alternative 
arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Gregory Lohrke, Air and Radiation 
Division, EPA, Region 8, Mailcode 8P-ARD, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6396, lohrke.gregory@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us'' and 
``our'' means the EPA.

Table of Contents

I. Background
    A. MSW Landfill 111(d) State Plan
    B. CISWI 111(d)/129 State Plan
    C. HMIWI Negative Declaration of Sources
II. EPA's Submittal Analysis
    A. MSW Landfill State Plan
    B. CISWI State Plan
    C. HMIWI Negative Declaration
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Review

I. Background

A. MSW Landfill 111(d) State Plan

    CAA section 111(d) requires the EPA Administrator to establish a 
procedure under which each state shall submit to the Agency a plan that 
establishes standards of performance for any `existing' source for any 
air pollutant for which air quality criteria have not been issued or 
which is not included on a list published under CAA section 108 or 
emitted from a source category regulated under section 112 of the Act, 
but to which a standard of performance under section 111 would apply if 
such existing source were considered a `new' source. The EPA 
established such a procedure by promulgating general guidelines for the 
adoption and submittal of state plans for existing affected facilities 
in 40 CFR part 60, subpart B. The EPA publishes specific state plan 
requirements for designated source categories in 40 CFR part 60. State 
plan requirements for such source categories are known as emission 
guidelines and compliance times for designated facilities (EG or the 
``emission guidelines''). These EGs are promulgated following, or 
concurrent with, the publication of new source performance standards 
(NSPS) for the affected source category. Each EG requires each state 
with designated facilities in its jurisdiction to develop and submit to 
the EPA an approvable state plan that implements and enforces the 
performance standards and compliance times found within the particular 
EG.
    On August 29, 2016, the EPA finalized revised NSPS for new MSW 
landfills and revised EG for existing MSW landfills in 40 CFR part 60, 
subparts XXX and Cf, respectively. See 81 FR 59332 (Aug. 29, 2016) and 
81 FR 59313 (Aug. 29, 2016). In this set of actions an MSW landfill for 
which construction, reconstruction or modification was commenced on or 
before July 17, 2014 is considered an existing facility and subject to 
either a future 111(d) state plan adhering to the requirements of 40 
CFR part 60, subpart Cf or a future federal plan for designated MSW 
landfills promulgated in 40 CFR part 62. The 2016 MSW landfills EG 
updates the control requirements and monitoring, reporting and 
recordkeeping provisions for existing MSW landfill sources. MSW 
landfills which commenced construction, reconstruction or modification 
after July 17, 2014 are considered new affected facilities subject to 
the NSPS in 40 CFR part 60, subpart XXX.
    North Dakota submitted a 111(d) State plan for existing MSW 
landfills (the ``MSW landfill plan'') on July 28, 2020. The MSW 
landfill plan was submitted to fulfill requirements of 40 CFR part 60, 
subparts B and Cf. The EPA must now propose approval or disapproval of 
the State's submittal with reference to the general provisions for plan 
approval in 40 CFR part 60, subpart B and the requirements specific to 
plans for existing MSW landfills found in 40 CFR part 60, subpart Cf.
    Approval of North Dakota's MSW landfill plan submitted in 2020 
would replace the currently approved plan for landfill gas emissions 
from existing MSW landfills, found at 40 CFR 62.8600-8602. That State 
plan was submitted to EPA in 1997 to comply with the old State plan 
requirements of the EG for existing MSW landfills in 40 CFR part 60, 
subpart Cc, finalized by EPA on March 12, 1996 (61 FR 9919). All 
existing North Dakota MSW landfills subject to the old EG are now 
designated facilities as defined by 40 CFR part 60, subpart Cf and will 
be subject to the new MSW landfill plan if approved.

B. CISWI 111(d)/129 State Plan

    CAA section 129 requires the EPA Administrator to establish 
performance standards and other requirements pursuant to section 111 of 
the Act for each source category of solid waste incineration units 
enumerated under that section of the Act. CAA section 111(a)(1)(D) 
establishes CISWI units as a source category subject to NSPS and EG 
development requirements, as outlined in the CAA section 111(d) 
description in section I.A of this document.
    On March 21, 2011, the EPA finalized regular review and revisions 
to the NSPS and EG for new and existing CISWI units in 40 CFR part 60, 
subparts CCCC and DDDD, respectively (76 FR 15704). The most recent 
amendments of these subparts were finalized on April 16, 2019 (84 FR 
15846). The EG at 40 CFR part 60, subpart DDDD required submittal of a 
CAA section 111(d)/129 state plan by August 7, 2013 from any state with 
operational existing CISWI or ACI units as they are defined by the 
subpart.
    North Dakota's most recent approved CAA section 111(d)/129 State 
plan for CISWI and ACI units was approved on April 25, 2018 (83 FR 
17923). North Dakota completed a transfer of implementing and 
enforcement authorities to a new State department of environmental 
quality since that approval. Revisions to State administrative code, 
creation of the NDDEQ and transfer of implementing and enforcing 
authorities to the Department necessitated a new approval of the 
State's CISWI plan. North Dakota submitted a new 111(d)/129 plan for 
existing CISWI units (the ``CISWI plan'') on July 28, 2020. The EPA 
must now propose approval or disapproval of the State's submittal with 
reference to the general provisions for plan approval in 40 CFR part 
60, subpart B and the requirements specific to plans for existing CISWI 
units found in 40 CFR part 60, subpart DDDD.

C. HMIWI Negative Declaration of Sources

    CAA section 129 authorizes the EPA to require states to submit a 
plan for the control of air pollutants from existing solid waste 
incineration units enumerated by that section according to emission 
guidelines and compliance times promulgated in 40 CFR part 60 by the 
EPA under the authority of CAA section 111(d). CAA section 129(a)(1)(C) 
requires the EPA's promulgation of an EG for HMIWI units and a state's 
submittal of a control plan for such units. The EG for existing HMIWI 
units may be found at 40 CFR part 60, subpart

[[Page 16175]]

Ce. However, 40 CFR 60.23(b) says that, ``if no designated facility is 
located within a State, the State shall submit a letter of 
certification to that effect to the Administrator [. . .]. Such 
certification shall exempt the State from the requirements of [the 
general provisions for adoption and submittal of state plans].''
    North Dakota submitted a letter making a negative declaration of 
existing HMIWI units within the State (the ``negative declaration'') on 
May 8, 2019. The letter requests withdrawal of the State's previously 
approved CAA section 111(d)/129 HMIWI plan (40 CFR 62.8610) and 
approval of the negative declaration in lieu of a state plan. The EPA 
must now propose approval or disapproval of the State's negative 
declaration with reference to the general provisions for plan submittal 
in 40 CFR part 60, subpart B and the general provisions for plan 
approval in 40 CFR part 62, subpart A.

II. EPA's Submittal Analysis

A. MSW Landfill State Plan

    The EPA has reviewed the North Dakota 111(d) MSW Landfill State 
plan submittal in the context of the plan completeness and 
approvability requirements found in 40 CFR part 60, subparts B and Cf. 
The EPA is proposing with this action to determine that the submitted 
section 111(d) plan meets the above cited requirements. The North 
Dakota plan submittal package includes all materials necessary to be 
deemed administratively and technically complete according to the 
criteria of the general provisions for adoption and submittal of state 
plans found in 40 CFR part 60, subpart B. North Dakota has chosen to 
author a State plan document and provide all implementation and 
enforcement authority for all State plan requirements through revisions 
to the North Dakota Administrative Code (NDAC) and existing portions of 
the North Dakota Century Code (NDCC). Specifically, the State has 
appropriately incorporated all EG performance standards and other 
source requirements in NDAC section 33.1-15-12-02, subpart Cf. Legal 
authority to implement and enforce the incorporated source requirements 
and State plan document is found in NDCC chapter 23.1-06. The State 
plan document, the relevant NDAC and NDCC sections, and all other 
relevant plan submittal materials may be found in the docket for 
today's action. A complete analysis of the State's legal authority to 
implement and enforce the plan and source requirements, the submittal's 
completeness and the approvability of the State plan document and 
incorporation of source requirements can be found in the technical 
support document (TSD) for this action. The TSD is available for review 
and may be found in the docket associated with this proposed rule. In 
this action, EPA is also proposing to incorporate by reference (IBR) 
Title 33.1, Article 15, Chapter 12, section 2, subparts A and Cf of the 
NDAC, effective as amended on July 1, 2020. This NDAC chapter includes 
the relevant source requirements specific to existing MSW landfills.

B. CISWI State Plan

    The EPA has reviewed the North Dakota 111(d) CISWI State plan 
submittal in the context of the plan completeness and approvability 
requirements found in 40 CFR part 60, subparts B and DDDD. The EPA is 
proposing with this action to determine that the submitted section 
111(d) plan meets the above cited requirements. The North Dakota plan 
submittal package includes all materials necessary to be deemed 
administratively and technically complete according to the criteria of 
the general provisions for adoption and submittal of state plans found 
in 40 CFR part 60, subpart B. North Dakota has chosen to author a State 
plan document and provide all implementation and enforcement authority 
for all State plan requirements through revisions to the NDAC and 
existing portions of the NDCC. Specifically, the State has 
appropriately incorporated all EG performance standards and other 
source requirements in NDAC section 33.1-15-12-02, subpart DDDD. Legal 
authority to implement and enforce the incorporated source requirements 
and State plan document is found in NDCC chapter 23.1-06. The State 
plan document, the relevant NDAC and NDCC sections, and all other 
relevant plan submittal materials may be found in the docket for 
today's action. A complete analysis of the State's legal authority to 
implement and enforce the plan and source requirements, the submittal's 
completeness and the approvability of the State plan document and 
incorporation of source requirements can be found in the TSD for this 
action. The TSD is available for review and may be found in the docket 
associated with this proposed rule. In this action, EPA is also 
proposing to incorporate by reference (IBR) Title 33.1, Article 15, 
Chapter 12, section 2, subparts A and DDDD of the NDAC, effective as 
amended on July 1, 2020. This NDAC chapter includes the relevant source 
requirements specific to existing CISWI.

C. HMIWI Negative Declaration

    The EPA has reviewed the North Dakota negative declaration of 
existing HMIWI units in the context of general submittal approvability 
provisions found in 40 CFR part 60, subpart B and part 62, subpart A. 
The EPA is proposing with this action to determine that the State's 
negative declaration is approvable as it meets all negative declaration 
requirements as set forth in the previously mentioned general 
provisions. Analysis of the State's declaration can be found in the TSD 
for this action. The TSD is available for review and may be found in 
the docket associated with this proposed rule.

III. Proposed Action

    The EPA is proposing to approve the North Dakota section 111(d) 
State plan for existing MSW landfills pursuant to 40 CFR part 60, 
subparts B and Cf. We are also proposing to approve North Dakota's 
section 111(d)/129 State plan for existing CISWI units pursuant to 40 
CFR part 60, subparts B and DDDD. Finally, the EPA is also proposing to 
approve the State's negative declaration of existing HMIWI units and to 
publish this declaration in lieu of a state plan submitted pursuant to 
40 CFR part 60, subpart Ce. Therefore, the EPA is proposing to amend 40 
CFR part 62, subpart JJ to reflect these approval actions. These 
approvals are based on the rationale provided in section II of this 
preamble and discussed in detail in the TSD associated with this 
rulemaking action. The scope of the proposed approval is limited to the 
provisions of 40 CFR parts 60 and 62. The EPA's proposed approval of 
the North Dakota MSW landfill plan is limited to those landfills that 
meet the criteria established in 40 CFR part 60, subpart Cf. Our 
proposed approval of the North Dakota CISWI plan is limited to those 
incinerator units that meet the criteria established in 40 CFR part 60, 
subpart DDDD.
    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 at 
existing MSW landfills, as stipulated in 40 CFR 60.30f(c). With respect 
to existing CISWI and ACI units, the Administrator also continues to 
retain the several authorities listed under 40 CFR 60.2542.

IV. Incorporation by Reference

    In this document, the EPA is proposing to incorporate by reference 
NDDEQ rules regarding existing MSW landfills and CISWI units discussed 
in

[[Page 16176]]

section II of this preamble (NDAC section 33.1-15-12-02, subparts A, Cf 
and DDDD) in accordance with the requirements of 1 CFR 51.5. The EPA 
has made, and will continue to make, these materials available through 
the docket for this action, EPA-R08-OAR-2021-0187, at https://www.regulations.gov and at the EPA Region VIII Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve section 
111(d) and section 111(d)/129 state plan submittals that comply with 
the provisions of the Act and applicable Federal regulations. 42 U.S.C. 
7411(d); 40 CFR part 60, subparts B, Cf and DDDD; and 40 CFR part 62, 
subpart A. Thus, in reviewing CAA section 111(d) and section 111(d)/129 
state plan submittals, the EPA's role is to approve state choices, 
provided that they meet the approval 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 Order12866;
     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, 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 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, the CAA section 111(d) and section 111(d)/129 plans 
are not approved to apply in Indian country, as defined at 18 U.S.C. 
1151, located in the State. As such, this rule does not have tribal 
implications, as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), and it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Commercial and industrial solid waste 
incineration, Hospital medical and infectious waste incineration, 
Incorporation by reference, Intergovernmental relations, Methane, 
Municipal solid waste landfill, Reporting and recordkeeping 
requirements.

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

    Dated: March 15, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-05870 Filed 3-25-21; 8:45 am]
BILLING CODE 6560-50-P


