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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Rules and Regulations
SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section
is
arranged as follows:
I. What action is the EPA taking today?
II. What are the details of the EPAs action?
III. What comments were received in response to the EPAs proposed action?
IV. What action is the EPA taking?
V. Incorporation by Reference VI. Statutory and Executive Order Reviews
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I. What action is the EPA taking today?
The EPA is approving the State of New Yorks revised section 111d state plan for MSW landfills, for the purpose of incorporating the adoption of Title 6
of the New York Codes, Rules, and Regulations NYCRR Part 208. In a letter dated December 11, 2019, the New York State Department of Environmental Conservation NYSDEC, on behalf of the State of New York, submitted to the EPA a state plan entitled, Landfill Gas Collection and Control Systems for Certain Municipal Solid Waste Landfills, which contains a New York State-approved regulation for the purpose of lowering the emissions threshold within MSW
landfills through the installation of Gas Collection and Control Systems GCCS.
The State Plan incorporates by reference the revised Emission Guidelines EG
codified at 40 CFR part 60 subpart Cf, which applies to MSW landfills that have accepted waste at any time since November 8, 1987, and commenced construction, reconstruction, or modification on or before July 17, 2014.
In accordance with the CAA, New York previously submitted a state plan on October 8, 1998, which was approved by the EPA on July 19, 1999.
See 64 FR 38582 Jul. 19, 1999. New York submitted a revised State Plan dated December 11, 2019 to fulfill the requirements of section 111d of the Act. The EPA is approving New Yorks State Plan revision since it applies to major sources of NMOC and methane emissions. This approval, once finalized and effective, will render New Yorks revised MSW rule federally enforceable.
II. What are the details of the EPAs action?
On March 12, 1996, the EPA
promulgated federal Emission Guidelines 1996 EG, codified at 40
CFR part 60 subpart Cc, Standards of Performance for New Stationary Sources and Guidelines for Control of Existing Sources: Municipal Solid Waste Landfills. See 61 FR 9905 Mar. 12, 1996. Under the 1996 EG, a state plan must include the installation of a gas collection and control system at each MSW landfill that accepted waste after November 8, 1987, has a design capacity
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greater than or equal to 2.5 million Megagrams Mg and 2.5 million cubic meters, and that emits NMOC at a rate of 50 Mg per year or more. See 40 CFR
60.33cb. In accordance with section 111 of the CAA, on September 24, 2001, the NYSDEC promulgated 6 NYCRR Part 208, Landfill Gas Collection and Control Systems for Certain Municipal Solid Waste Landfills, in compliance with the EPAs federal EG for MSW
landfills, codified at 40 CFR part 60
subpart Cc.
Due to significant changes within the landfill industry, such as increased scientific understanding of landfill gas emissions, changes in operation practices, and an increase in the average size and age of landfills, the EPA
determined that it was appropriate to update the 1996 EG. As a result, on August 29, 2016, the EPA promulgated a revised EG, codified at 40 CFR part 60
subpart Cf, entitled, Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills. See 81 FR 59275 Aug. 29, 2016. The revised EG updated the control requirements, monitoring, reporting, and recordkeeping provisions for existing MSW landfill sources. The revised EG is designed to significantly reduce emissions of landfill gas containing NMOC and methane by further reducing the emissions threshold at which a landfill must install and operate a GCCS. In contrast to the 1996 EG, the revised EG reduces the threshold for installing a GCCS to 34
Mg/year of NMOC for active MSW
landfills. Meanwhile, closed MSW
landfills will retain the threshold of 50
Mg/year of NMOC for installing a GCCS.
In order to continue complying with the Act and the newly adopted EG, on August 5, 2019, New York adopted its revised 6 NYCRR Part 208, Landfill Gas Collection and Control Systems for Certain Municipal Solid Waste Landfills, and amended Part 200, General Provisions, with an effective date of September 4, 2019. The purpose of the revisions was to incorporate by reference the revised EG for MSW
landfills promulgated at 40 CFR part 60
subpart Cf.
In its proposal see 86 FR 11485 Feb.
25, 2021, the EPA evaluated New Yorks State Plan for compliance with regulations at 40 CFR part 60 subpart Ba governing the timing and completeness requirements for the submission of state plans. See 40 CFR 60.23a and 60.27a.
On August 26, 2019, the EPA finalized a rule referred to as the Ba Rule that amended the EG codified at 40 CFR part 60 subpart Cf to incorporate these subpart Ba timing and completeness requirements. See 84 FR 44547 Aug. 26,
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2019; 40 CFR 60.30f. However, on January 19, 2021, the D.C. Circuit issued a decision vacating these requirements of subpart Ba, see Am. Lung Assn v.
EPA, 985 F.3d 914, 99195, and the court subsequently also vacated the Ba Rule in an April 5, 2021 order, see Environmental Defense Fund v. EPA, No. 191222, Dkt. 1893133.
Accordingly, the review of New Yorks State Plan is no longer subject to the timing and completeness requirements of the Ba Rule, and the requirements of 40 CFR part 60 subpart B sections 60.23
and 60.27 now apply instead.
The courts vacatur of the Ba Rule does not affect the approvability of New Yorks State Plan. First, the completeness requirements of subpart Ba evaluated at proposal no longer apply, and New Yorks State Plan meets the applicable requirements of 40 CFR
60.23 and 60.27. Further, the vacatur did not affect the substantive requirements of the EG at 40 CFR part 60 subpart Cf.
III. What comments were received in response to the EPAs proposed action?
The EPA received four comments during the 30-day public comment period in response to its February 25, 2021 proposed approval of New Yorks State Plan revision. The specific comments may be viewed under Docket ID Number EPAR02OAR20200431
on the http www.regulations.gov website. Two public comments, posted on March 2, 2021 and March 26, 2021, support the EPAs proposed rulemaking to approve New Yorks revised State Plan.
Two public comments, received on March 28, 2021 and March 29, 2021, were submitted by the New York Chapter of the Solid Waste Association of North America SWANANY and the National Waste & Recycling Association NWRA. Both comments are substantially similar and acknowledge that New Yorks State Plan was submitted to the EPA on December 11, 2019. However, on March 26, 2020, the EPA promulgated the National Emission Standards for Hazardous Air Pollutants:
Municipal Solid Waste Landfills Residual Risk and Technology Review NESHAP MSW RTTR 85 FR 17244.
This final rule revised the most recent MSW Landfill New Source Performance Standards NSPS see 40 CFR part 60
subpart XXX and EG subpart Cf in order to allow affected MSW landfills to demonstrate compliance with the major compliance provisions of the NESHAP 40 CFR part 63 subpart AAAA in lieu of complying with analogous provisions in the NSPS and EG. This revision permits affected MSW

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