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

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving the Indiana State Plan submittal for implementing the Municipal Solid Waste (MSW) Landfill Emission Guidelines. The State submitted this plan on September 30, 1999 in accordance with requirements found in the Clean Air Act (CAA) and in the Code of Federal Regulations for adoption and submittal of State plans for designated facilities. The plan establishes performance standards for existing MSW landfills and provides for the implementation and enforcement of those standards. The EPA finds that Indiana's plan for existing MSW landfills adequately addresses all of the Federal requirements applicable to such plans. EPA's approval of the State's MSW Landfill Plan also includes rules submitted to EPA on November 21, 1995, and February 14, 1996, as volatile organic compound control measures. EPA approved the rules as part of the Indiana SIP on January 17, 1997. In this action, EPA is incorporating the rule revisions into the Indiana MSW Landfill Plan.

DATES:

The “direct final” rule is effective on May 30, 2000, unless EPA receives adverse written comments by April 27, 2000. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be sent to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Copies of the requested SIP revision are available for inspection at the U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone Randolph O. Cano at (312) 886-6036 before visiting the Region 5 Office.)

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FOR FURTHER INFORMATION CONTACT:

Randolph O. Cano, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6036.

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SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used we mean EPA.

Background

I. Why Was This Plan Prepared and Submitted?

II. What Elements Are Included in the EPA Review of Indiana's MSW Landfill Plan?

A. Identification of Enforceable State Mechanism for Implementing the Emission Guidelines (EG)

B. Demonstration of the State's Legal Authority to Carry Out the Section 111(d) State Plan as Submitted

C. Inventory of Existing MSW Landfills in the State Affected by the State Plan

D. Inventory of Emissions From Existing MSW Landfills in the State

E. Emission Limitations for MSW Landfills

F. A Process for State Review and Approval of Site-Specific Gas Collection and Control System Design Plans

G. Compliance Schedules

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

I. A Record of Public Hearings on the State Plan

J. Submittal of Annual State Progress Reports to EPA

III. EPA Final Action

IV. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility Act

F. Unfunded Mandates

G. Submission to Congress and the Comptroller General

H. National Technology Transfer and Advancement Act

I. Petitions for Judicial Review

Background

I. Why Was This Plan Prepared and Submitted?

Under section 111(d) of the Act and 40 CFR part 60, subpart B, EPA has established procedures for States to submit plans to control certain existing sources of “designated pollutants.” Designated pollutants are defined as pollutants for which a standard of performance for new sources applies under section 111, but which are not Start Printed Page 16324“criteria pollutants” (i.e., pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS) under sections 108 and 109 of the Act) or hazardous air pollutants (HAPs) regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, similar to the process required by section 110 of the Act (regarding State Implementation Plan (SIP) approval) which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates a new source performance standard (NSPS) that controls a designated pollutant, it simultaneously establishes emissions guidelines in accordance with 40 CFR 60.22. This provision contains information on the control of the designated pollutant from that NSPS source category (i.e., the “designated facility” as defined at 40 CFR 60.21(b)). Thus, a State's section 111(d) plan for a designated facility must comply with the emission guideline for that source category, as well as with 40 CFR part 60, subpart B.

On March 12, 1996, EPA published EG for existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c through 60.36c), and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW (40 CFR 60.750 through 60.759) (See 61 FR 9905-9929.). The pollutant regulated by the NSPS and EG is “MSW landfill gas emissions”, which contain a mixture of methane and non-methane organic compounds. Non-methane organic compounds (NMOC) consist of volatile organic compounds (VOC), hazardous air pollutants (HAPs), and odorous compounds. VOC emissions can contribute to ozone formation which can result in adverse effects to human health and vegetation. The health effects of HAPs include cancer, respiratory irritation, and damage to the nervous system. Methane emissions contribute to global climate change and can result in fires or explosions when they accumulate in structures on or off the landfill site. To determine if control is required, NMOCs are measured as a surrogate for MSW landfill gas emissions. Thus, NMOC is considered the designated pollutant. The designated facility which is subject to the EG is each existing MSW landfill (as defined in 40 CFR 60.31c) for which construction, reconstruction or modification was commenced before May 30, 1991.

40 CFR 60.23(a) requires States to submit a plan for the control of the designated pollutant to which the EG applies within nine months after publication of the EG (i.e., by December 12, 1996). If there were no designated facilities in the State, then the State was required to submit a negative declaration by December 12, 1996.

II. What Elements Are Included in the EPA Review Indiana's MSW Landfill Plan?

The EPA has reviewed Indiana's section 111(d) plan for existing MSW landfills against the requirements of 40 CFR part 60, subpart B and subpart Cc, as follows:

A. Identification of Enforceable State Mechanism for Implementing the Emission Guidelines (EG)

The Indiana Air Pollution Control Board adopted amendments to 326 IAC 8-8-2, 8-8-3, 8-8-4 and new rule 8-8.1 on April 10, 1997. Indiana filed these rules with the Secretary of State on September 8, 1997. These rules became effective on October 8, 1997. Indiana published a notice of the adoption of these rules in the Indiana Register (21 IR 30) on October 1, 1997. Indiana also submitted a November 1, 1996 Findings and Determination by the Commissioner of the Indiana Department of Environmental Management (IDEM) related to the adoption of this rule, copies of public hearing notices and hearing transcripts as part of the 111(d) plan.

It should be noted that on November 21, 1995, and February 14, 1996, Indiana submitted 326 IAC 8-8 Municipal Solid Waste Landfills Located in Clark, Floyd, Lake and Porter Counties, sections 1 through 4, as a requested revision to the Indiana SIP. The Indiana Air Pollution Control Board adopted these rules on July 12, 1995, and filed them with the Secretary of State on December 19, 1995. The rules became effective on January 18, 1996. Indiana published these rules on February 1, 1996 at Indiana Register, Volume 19, Number 5, page 1050. On January 17, 1997 (62 FR 2591), EPA approved these rules into the Indiana SIP at 40 CFR 52.770(c)(110). By this action, EPA is also incorporating them into the Indiana Municipal Solid Waste Landfill Plan for Clark, Floyd, Lake, and Porter Counties.

Thus, the State has met the requirement of 40 CFR 60.24(a) to have legally enforceable emission standards.

B. Demonstration of the State's Legal Authority to Carry Out the Section 111(d) State Plan as Submitted

40 CFR 60.26 requires the section 111(d) plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules.

The Indiana Code (IC) divides legal authority for environmental rule adoption and rule development and implementation between the Indiana Air Pollution Control Board (IAPCB) and IDEM. The IAPCB has the legal authority to adopt rules governing landfill gas emissions from existing MSW landfills. The IDEM has authority for rule development and implementation. These responsibilities are spelled out in Titles 4 and 13 of the IC. Under the IC, the APCB and IDEM have sufficient legal authority to carry out the plan.

C. Inventory of Existing MSW Landfills in the State Affected by the State Plan

40 CFR 60.25(a) requires the section 111(d) plan to include a complete source inventory of all existing MSW landfills (i.e., those MSW landfills that were constructed, reconstructed, or modified prior to May 30, 1991) in the State that are subject to the plan. This includes all existing landfills that have accepted waste since November 8, 1987 or that have additional capacity for future waste deposition.

Indiana submitted a list of the existing MSW landfills in Indiana and an estimate of NMOC emissions from each landfill as part of its landfill plan.

D. Inventory of Emissions From Existing MSW Landfills in the State

40 CFR 60.25(a) requires that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EG, which, in the case of MSW landfills, is NMOC. Indiana included an estimation of NMOC emissions for all of the landfills in the State using the Landfill Air Emissions Estimation Model and AP-42 default emission factors in Appendices B and D to its section 111(d) plan.

E. Emission Limitations for MSW Landfills

40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than those specified in 40 CFR 60.33c for existing MSW landfills. However, 40 CFR 60.24(f) allows for States to implement less stringent emission limits on a case-by-case basis if certain conditions are met.

Indiana's rules require existing MSW landfills to comply with the same level of control as prescribed in the NSPS. The controls and control system design criteria required by the NSPS are the same as those required by the EG. Thus, the emission standards implemented by Indiana are “no less stringent than” subpart Cc, which meets the requirements of 40 CFR 60.24(c). Start Printed Page 16325

Section 60.24(f) allows States, in certain case-by-case situations, to provide for a less stringent emission standard. Indiana's rules, 326 IAC 8-8.1-5 allow an owner/operator of a landfill that has been issued a closure certification, has an approved post-closure plan, and can demonstrate unreasonable cost, physical impossibilities, or other significant obstacles in complying with the standard emission limits, to apply for a less stringent standard. An owner/operator of a landfill seeking an alternative emission limit must submit a written request to IDEM and receive approval from IDEM and EPA pursuant to 40 CFR 60.24(f). The criteria in 325 IAC 8-8.1-5 parallel those contained in 40 CFR 60.24(f).

Thus, IDEM's plan meets the emission limitation requirements by requiring emission limitations that are no less stringent than the EG.

F. A Process for State Review and Approval of Site-Specific Gas Collection and Control System Design Plans

40 CFR 60.33c(b) in the EG requires State plans to include a process for State review and approval of site-specific design plans for required gas collection and control systems.

The IAPCB's rules regulating landfill gas emissions from MSW landfills essentially make the federal NSPS applicable to existing MSW landfills. The design criteria and the design specifications for active collection systems specified in the NSPS also apply to existing landfills, unless a request pursuant to 40 CFR 60.24(f) has been approved by the IDEM and by EPA. Once IDEM receives a design plan, it will record the date the plan is received. IDEM will then review the submittal for completeness and request additional information if necessary. Indiana will complete its review of the design plan within 180 days of its receipt.

Thus, Indiana section 111(d) plan adequately addresses this requirement.

G. Compliance Schedules

The State's section 111(d) plan must include a compliance schedule that owners and operators of affected MSW landfills must meet in complying with the requirements of the plan. 40 CFR 60.36c provides that planning, awarding of contracts, and installation of air emission collection and control equipment capable of meeting the EG must be accomplished within 30 months of the effective date of a State emission standard for MSW landfills. 40 CFR 60.24(e)(1) provides that any compliance schedule extending more than 12 months from the date required for plan submittal shall include legally enforceable increments of progress as specified in 40 CFR 60.21(h), including deadlines for submittal of a final control plan, awarding of contracts for emission control systems, initiation of on-site construction or installation of emission control equipment, completion of on-site construction/installation of emission control equipment, and final compliance.

IAPCB has adopted enforceable compliance schedules in 326 IAC 8-8.1-4. The State's rules require landfills that must install collection and control systems to be in final compliance with the requirements of the State plan no later than 30 months from the effective date of State adoption of the State rule or, for those MSW landfills which are not currently subject to the collection and control system requirements, within 30 months of first becoming subject to such requirements (i.e., within 30 months of reporting a NMOC emission rate of 50 Mg/yr or greater). Section 8-8-4 which regulates sources located in Clark, Floyd, Lake and Porter Counties requires affected sources to comply with the requirement of the Indiana MSW Landfill rule no later than May 1, 1996. Thus, the State's rule satisfies the requirement of 40 CFR 60.36c.

H. Testing, Monitoring, Recordkeeping and Reporting Requirements

40 CFR 60.34c specifies the testing and monitoring provisions that State plans must include (60.34c actually refers to the NSPS requirements found in 40 CFR 60.754 to 60.756), and 40 CFR 60.35c specifies the reporting and recordkeeping requirements (§ 60.35c refers to the NSPS requirements found in 40 CFR 60.757 and 60.758). The IAPCB has adopted rules incorporating these pertinent Federal requirements. Consequently, EPA finds that the State's section 111(d) plan for MSW landfills adequately addresses the testing, monitoring, reporting, and recordkeeping requirements of the EG.

I. A Record of Public Hearings on the State Plan

40 CFR 60.23 contains the requirements for public hearings that must be met by the State in adopting a section 111(d) plan. EPA's “Summary of the Requirements for Section 111(d) State Plans for Implementing the Municipal Solid Waste Landfill Emission Guidelines (EPA-456R/96-005, October 1996)” contains additional guidance on this requirement. Indiana included documents in its plan submittal demonstrating that it complied with these procedures, as well as the State's administrative procedures, in adopting the State's plan. Therefore, EPA finds that Indiana has adequately met this requirement.

J. Submittal of Annual State Progress Reports to EPA

40 CFR 60.25(e) and (f) require States to submit to EPA annual reports on the progress of plan enforcement. Indiana committed in the submittal for its section 111(d) plan to submit annual progress reports to EPA. The first progress report will be submitted by the State one year after EPA approval of the State plan. This commitment is part of section 15 #98-1 of IDEM's policy and procedures notebook. Section 15 #98-1 which was revised on May 20, 1998 details how Indiana intends to implement its MSW Landfill Plan.

III. EPA Final Action

Based on the rationale discussed above, EPA is approving Indiana's September 30, 1999, submittal of its section 111(d) plan for the control of landfill gas from existing MSW landfills. EPA is also incorporating the rules for controlling VOC emissions from existing MSW landfills located in Clark, Floyd, Lake and Porter Counties into the State's 111(d) plan. Indiana originally submitted these rules, contained in 326 IAC 8-8, to EPA as part of the Indiana Ozone Plan on November 21, 1995 and February 14, 1996. EPA approved these rules as part of the Ozone SIP on January 17, 1997 (62 FR 2593). EPA codified its approval of these State rules at 40 CFR 52.770(c)(110). As provided by 40 CFR 60.28(c), any revisions to Indiana's section 111(d) plan or associated regulations will not be considered part of the applicable plan until submitted by the State in accordance with 40 CFR 60.28(a) or (b), as applicable, and approved by EPA in accordance with 40 CFR part 60, subpart B.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the State Plan should adverse written comments be filed. This action will be effective May 30, 2000, unless, by April 27, 2000, adverse written comments are received.

If EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule Start Printed Page 16326based on this action serving as a proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on May 30, 2000.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule 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, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal Start Printed Page 16327governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. 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). This rule will be effective May 30, 2000, unless EPA receives adverse written comments by April 27, 2000.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 30, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 62

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Dated: March 17, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.

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is amended as follows:

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PART 62—[AMENDED]

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

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

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Subpart P—Indiana

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2. Subpart P is amended by adding a new center heading and sections 62.3630, 62.3631 and 62.3632 to read as follows:

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Landfill Gas Emissions From Existing Municipal Solid Waste Landfills

Identification of plan.

“Section 111(d) Plan for Municipal Solid Waste Landfills” and the associated State regulations found in Title 326: Air Pollution Control Board of the Indiana Administrative Code (IAC), Article 8. Volatile Organic Compound Rules, Rule 8. Municipal Solid Waste Landfills Located in Clark, Floyd, Lake and Porter Counties and Rule 8.1. Municipal Solid Waste Landfills Not Located in Clark, Floyd, Lake and Porter Counties added at 21 Indiana Register 31, filed with the Secretary of State September 8, 1997, effective October 8, 1997, submitted by the State to EPA on September 30, 1999. Also included in this plan are rules submitted to EPA on November 21, 1995 and February 14, 1996: Title 326 IAC Article 8. Volatile Organic Compound Rules, Rule 8. Municipal Solid Waste Landfills adopted at 19 Indiana Register 1050, filed with the Secretary of State December 19, 1995, effective January 18, 1996.

Identification of sources.

The plan applies to all existing municipal solid waste landfills for which construction, reconstruction, or modification was commenced before May 30, 1991 that accepted waste at any time since November 8, 1987 or that have additional capacity available for future waste deposition, as described in 40 CFR part 60, subpart Cc.

Effective date.

The effective date of the plan for municipal solid waste landfills is May 30, 2000.

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[FR Doc. 00-7621 Filed 3-27-00; 8:45 am]

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