[Federal Register Volume 65, Number 3 (Wednesday, January 5, 2000)]
[Notices]
[Pages 453-459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-186]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-6518-1]
Alaska: Tentative Determination and Final Determination of Full
Program Adequacy of the State of Alaska's Municipal Solid Waste
Landfill Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Resource Conservation and Recovery Act (RCRA), as amended
by the Hazardous and Solid Waste Amendments of 1984, requires States to
develop and implement permit programs to ensure that municipal solid
waste landfills which may receive hazardous household waste or small
quantity generator hazardous waste will comply with the revised Federal
landfill criteria. RCRA also requires the Environmental Protection
Agency (EPA) to determine whether States have adequate ``permit''
programs for municipal landfills.
EPA's notice of Final Partial approval of Alaska's Class I and
Class II municipal landfill permit landfill program, and Tentative
Partial approval of the State's Class III landfill program was
published in the Federal Register on October 19, 1998. The public
comment period on the Class III component ended on January 26, 1999.
There was no request for a public hearing. One letter of comment was
received. Today's document contains EPA's Tentative Full and Final Full
Determination of Adequacy (approval) of Alaska's municipal solid waste
landfill permit program.
Alaska's most recent solid waste management regulatory changes
(proposed on August 1, 1997) were finalized by the state in its October
29, 1998, rule revision of 18 AAC 60. The changes that relate to the
municipal landfill program were: addition of financial assurance
requirements for Class I and II landfills which adopt EPA's 40 CFR part
258, subpart G municipal landfill criteria by reference; addition of
the notification requirement for an owner or operator who learns that a
municipal landfill has polluted, or may have polluted an aquifer; and
removal of the 2010 sunset date (upgrade deadline) for Class III
landfills. The removal of the sunset date was implemented under the
exemption authority granted to Alaska by the federal Land Disposal
Program Flexibility Act of 1996. Alaska's announced intent to remove
the sunset date was discussed in EPA's tentative partial Class III
approval in the Federal Register notice of 10/19/98. The Governor's
certification of August 6, 1999, cites that the State has exempted
Class III municipal landfills from those requirements of 40 CFR part
258 that are more stringent than the requirements imposed on Class III
landfills under 18 AAC 60, as may be amended. The 10/29/98 regulatory
revision by Alaska of its solid waste regulations, and the Governor's
certification, establishes full adequacy with respect to EPA's part 258
municipal landfill criteria.
On August 30, 1999, EPA received Alaska's request for full program
approval. EPA believes there will be no significant adverse comments on
today's notice. Nevertheless, a sixty day public comment period is
included in today's Tentative full approval by EPA of the state
municipal landfill program. If no significant adverse comments are
received, the Final full approval will become effective on the tenth
day after the end of the comment period. (If there are significant
adverse comments, EPA will need to respond to them and possibly publish
a withdrawal of full approval.) Today's notice contains both the
Tentative and Final actions to streamline the approval process and as a
convenience to the public.
With respect to Alaska's Audit Privilege and Immunity Law, today's
approval does not reflect a position by EPA regarding the state's
authority to administer any other federally authorized, delegated, or
approved environmental program. Alaska's program that is in today's
Full determination of adequacy is described in the Decision section of
this document.
Alaska's application is available for public review at EPA's office
in Seattle, and at the EPA operations offices in Juneau and Anchorage.
If desired, EPA will deliver a copy immediately (for public viewing) to
the Solid Waste office of the Alaska Department of Environmental
Conservation in Fairbanks--upon telephone, fax, or written request to
the Contact person listed below.
EFFECTIVE DATE AND COMMENT PERIOD: All comments on today's tentative
determination of full program adequacy, must be received in writing by
the office of the EPA person named in the CONTACTS section of this
notice on or before 5:00 PM, Pacific Time, on March 6, 2000. Copies may
be sent by fax to Steven B. Sharp, (206) 553-8509, on or before this
date provided the original document is also sent by regular mail. EPA
is not required to hold a public hearing and is not offering one in
today's notice. (In the unlikely event that a need for a public hearing
arises, EPA will make an announcement of same in a future Federal
Register.)
The final determination of full program adequacy of Alaska's
municipal solid waste landfill permit program shall become effective on
March 15, 2000, if there are not significant adverse written comments
on today's document. Alternatively, if EPA receives sufficient adverse
comments, a subsequent notice will be published in the Federal Register
that either withdraws today's final full approval or affirms today's
final full program approval. If published, it will discuss the comments
received and include
[[Page 454]]
EPA's basis for its withdrawal or affirmation.
FOR FURTHER INFORMATION CONTACT: Mr. Steven B. Sharp, mail code (WCM-
128), U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101; fax
(206) 553-8509, telephone (206) 553-6517. All public comments must in
writing and sent to Mr. Sharp at this address by the date specified
above.
SUPPLEMENTARY INFORMATION:
A. Background
On October 9, 1991, EPA promulgated revised Criteria (40 CFR part
258) for municipal solid waste landfills (MSWLFs). Section
4005(c)(1)(B) of Subtitle D of the Resource Conservation and Recovery
Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of
1984 (HSWA), requires States to develop and implement permit programs
to ensure that municipal solid waste landfills comply with the Federal
Criteria under part 258. Section 4005(c)(1)(C) requires that EPA
determine the adequacy of State municipal solid waste landfill permit
programs to ensure that facilities comply with the revised Federal
Criteria (40 CFR part 258).
EPA has approved portions of about forty State MSWLF permit
programs based on its March 3, 1993 Draft Guidance specifying the
requirements a State must meet to qualify for approval. (EPA allows
partial approvals if the state program largely meets EPA's
requirements, and the provisions not included are clearly
identifiable.) About six additional state programs have been approved
after EPA's proposed State Implementation Rule (SIR) was published in
the January 26, 1996, Federal Register (61 FR 2584). EPA promulgated
the final version of the SIR rule on October 23, 1998, (63 FR 57206).
It contains no element which requires revision of, or another public
comment period on, any of the tentative and final approvals of state
programs that EPA published prior to finalization of the SIR rule.
With respect to Tribes, EPA has been and is currently limiting its
solid waste program approvals to State programs. In the opinion filed
on October 29, 1996, (on the Campo Band of Mission Indians case) the
U.S. Court of Appeals for the District of Columbia Circuit determined
that EPA lacks authority under RCRA to approve the solid waste
management plan [program] of an Indian Tribe. The Federal Court
observed that the Campo Band could seek EPA approval/ruling for a site-
specific regulation as a way of obtaining access to the flexibility
that is available to approved States. This opinion was discussed in
EPA's notice (about Alaska's solid waste program) in the 10/19/98
Federal Register and in the Federal Register (63 FR 57206) of 10/23/98
which promulgated EPA's final SIR rule. EPA has published a guidance
document (Site-Specific Flexibility Requests, EPA530-R-97-016) that
discusses the petition-procedure for Tribes.
Approved State permit programs [partial or full determinations]
provide interaction between the State and the owner/operator regarding
site-specific permit conditions. Only those owners/operators located in
States with approved permit programs can use the site-specific
flexibility provided by 40 CFR part 258 to the extent the State permit
program allows such flexibility. EPA notes that regardless of the
approval status of a state program and the permit status of any
facility, the federal landfill criteria will apply to all permitted and
unpermitted MSWLF facilities. The applicability as to Alaska's Class
III landfill category and the exemption authority in the Land Disposal
Program Flexibility (LDPF) Act of 1996 is discussed in Section B of
this document.
EPA interprets the requirements for States to develop ``adequate''
programs for permits or other forms of prior approval to impose several
minimum requirements. First, each State must have enforceable standards
for new and existing MSWLFs that are technically comparable to EPA's
revised MSWLF criteria. Next, the State must have the authority to
issue a permit or other notice of prior approval to all new and
existing MSWLFs in its jurisdiction. The State also must provide for
public participation in permit issuance and enforcement as required in
Section 7004(b) of RCRA. Finally, EPA believes that the State must show
that it has sufficient compliance monitoring and enforcement
authorities to take specific action against any owner or operator that
fails to comply with an approved MSWLF program.
All municipal solid waste must be disposed in a landfill which
meets these criteria. This includes ash from municipal solid waste
incinerators that is determined to be non-hazardous. Any portions of
the Federal Criteria which are not included in an approved State
program by the applicable effective dates would apply directly to the
owner/operator without any approved State flexibility, except as to
small landfill criteria exempted by the State (Alaska only) under the
LDPF Act.
EPA Regions will determine whether a State has submitted an
``adequate'' program based on the interpretation outlined above. EPA
expects States to meet all of these requirements for all elements of a
MSWLF program before it gives full approval to a MSWLF program.
B. State of Alaska
Today's document promulgates Tentative Full approval and Final Full
approval by EPA for all three classes of Alaska's municipal solid waste
landfill permit program. Over the recent several years and earlier,
Alaska has developed an extensive and practicable approach to
management and disposal of many types of non-hazardous solid waste
including municipal waste, and to increased protection of human health
and the environment. The Alaska Department of Environmental
Conservation (ADEC) completed a major revision to its solid waste
management rule on January 28, 1996. (It was amended on June 28, 1996,
primarily for addition of a new fee structure.) The next revisions (of
which only a limited number pertained to municipal landfills) were
proposed on August 1, 1997. They were finalized by Alaska on October
29, 1998. This revision included the changes that EPA identified in its
notice (of October 19, 1998) as being necessary for the state to obtain
full approval. The elements that relate to today's approvals of
Alaska's municipal solid waste program are discussed below.
Region 10 received Alaska's application for a partial program
adequacy determination on February 12, 1996. The MSWLF program is a
component of the Solid Waste Management Program of ADEC that covers a
wide range of wastes. EPA published on November 25, 1996, in the
Federal Register (61 FR 60000) its first tentative determination that
most portions (as noted in the discussions therein) of the State's
municipal solid waste landfill (MSWLF) program would ensure compliance
with the revised Federal Criteria. The public comment ended on January
26, 1997. In early 1997, during the period that EPA was reviewing and
evaluating the public comments, proposals were initiated by the Alaska
Legislature for reductions and changes to ADEC's Solid Waste program.
The outcome resulted in significant differences from the Class III
program described in the application of February 1996. In addition,
ADEC proposed during this period a removal of the 2010 sunset date
(upgrade deadline) via the new authority granted to Alaska by the LDPF
Act. Also, the State passed its Environmental Audit Privilege and
Immunity act in August 1997. Alaska provided clarifying written
[[Page 455]]
information on the above events, as amendments to its application.
These changes and EPA's review of them were described in EPA's next
Federal Register notice, of October 19, 1998, That notice contained the
Agency's final partial approval of Alaska's Class I and Class II
municipal landfill program; withdrew the elements of EPA's prior
tentative approval of 11/25/96 that applied to the Class III landfill
component of Alaska's program; and contained EPA's new tentative
partial approval of the State's Class III municipal landfill program. A
new comment period was included in EPA's 10/19/98 notice on the
tentative Class III approval, which ended on January 26, 1999. The
optional public hearing was not held because EPA received no requests
for it. One letter of comment was received, which is discussed in
Section C of this document.
On August 25, 1999, the Department of Environmental Conservation
submitted its request for a full-program approval by EPA as an
amendment to its application, which included two certifications. The
Governor's Certification, dated August 6, 1999, certifies (with respect
to the LDPF Act exemption authority ) that full application of the
requirements of 40 CFR part 258 to Class III MSWLFs would be
infeasible, or would not be cost effective, or is otherwise
inappropriate because of remote locations of the units. The Attorney
General's letter of August 25, 1999, certifies that the regulations
cited in the State of Alaska's request to EPA for final full approval
of its solid waste program have been adopted, and are fully effective,
and are in the published version of the Alaska Administrative Code.
Class I and Class II Landfills
Today's notice includes final full determination of adequacy
(approval) of the State's Class I and Class II municipal solid waste
permit program. Alaska defines Class II municipal landfills as those
that receive less than twenty tons per day on an annual average and
meet specifications that include the federal section 258.1(f)(1) arid
or remote small-landfill qualifying criteria. (Approval of the Class
III program is discussed separately, below.) EPA published its Final
Partial approval of Alaska's Class I and Class II municipal landfill
program on October 19, 1998, (63 FR 55863). That notice listed the two
additional regulatory criteria needed for the State to obtain full EPA
approval.
One criterion was to add financial assurance requirements for Class
I and Class II landfills which meet one or more of the mechanisms in
subpart G of 40 CFR part 258. The State met this requirement by
addition of sub-Section 18 AAC 60.398 which states: ``The owner or
operator of a Class I or Class II MSWLF shall meet the financial
assurance requirements of 40 CFR part 258, subpart G, revised as of
July 1,1998, adopted by reference'' in ADEC's amended regulation of
October 29, 1998, which became effective on that date. This sub-section
meets (and mirrors) the corresponding criteria in subpart G of part
258.
The second criterion was to add a requirement that the owner/
operator of a small landfill must notify the State Director upon
knowledge of groundwater contamination resulting from the unit. The
State met this requirement by addition of Sub-section 18 AAC 60.305(f)
which states: ``the owner or operator must provide written notification
to the department within seven days after the owner or operator learns
that a MSWLF has polluted, or may have polluted, an aquifer'' in its
amended regulation of October 29, 1998. Alaska's new Sub-section (f)
applies to all three of the State's classes of municipal landfills.
The federal Administrative Procedure Act generally requires
agencies to provide prior notice and opportunity for public comment. 5
U.S.C. 553(b). The Act allows exemption from this requirement if the
issuing agency finds good cause that notice and comment are
unnecessary. 5 U.S.C. 553(b)(3)(B). The State included a public comment
period as part of its process in making the two regulatory amendments
described above--as well as on all of ADEC's changes to 18 AAC 60 to
present. All of EPA's notices prior to today, on Alaska's solid waste
program, also have provided for a public comment period, with provision
for optional public hearings if there was sufficient need. The two new
portions for the Class I and Class II program in today's determination,
which have not yet been subject to a federal comment period, mirror the
federal criteria. Therefore, EPA believes that providing prior notice
and opportunity for comment on the promulgation of today's final full
approval is unnecessary. However, to ensure opportunity for public
input, the Agency is providing in today's notice a period for written
public comments. EPA is combining its tentative and final full approval
actions into one (today's) notice with the final approval becoming
effective on the tenth day after the end of the comment period if there
are no significant adverse comments.
Conditionally Exempt Hazardous Waste
In the Decision section of EPA's Federal Register notice (63 FR
55870) of October 19, 1998, the Agency promulgated its determination of
adequacy of Alaska's program for hazardous waste disposal from
Conditionally Exempt Small Quantity Generators (CESQG) under 40 CFR
261.5 (as in the July 1, 1998 Code of Federal Regulations). Alaska's
criteria requires (per 18 AAC Section 60.020) that CESQG wastes may be
disposed of only at a facility that meets the requirements for a Class
I or a Class II municipal solid waste landfill. Since both classes
currently meet or exceed the Part 258 municipal landfill criteria,
Alaska is meeting EPA's CESQG disposal standards under subpart B of
part 257, the non-hazardous industrial and commercial wastes landfill
rule, and Part 258. Alaska was the first state to receive program
approval as to these new EPA criteria for landfilling of CESQG wastes.
Class III Landfills
Today's notice also includes final full determination of adequacy
(approval) of the State's Class III municipal solid waste permit
program. Alaska's definition in 18 AAC 60.300 for its Class III
landfills includes a limitation on the maximum amount waste received to
less than five tons per day, or under one ton per day of MSW ash, and
also includes other limiting criteria. Based on a compromise by EPA and
ADEC in 1993 and 1994, Alaska's regulations (of January 28, 1996, and
June 28, 1996) required in 18 AAC Section 60.300(c) that all Class III
landfills must, by October 9, 2010, upgrade to meet the standards
applicable to either a Class I or Class II MSWLF, or close accordingly
by that date. Alaska's October 29, 1998, revision of its regulation
removed this 2010 sunset (upgrade) date, which in effect placed its own
criteria for Class III landfills in a permanent status. The Governor's
certification of August 6, 1999, cites that the State has exempted
Class III municipal landfills from those requirements of 40 CFR part
258 that are more stringent than the requirements imposed on Class III
landfills under 18 AAC 60, as may be amended. The certification
procedure and exemption authority (for the state of Alaska only) in the
LDPF Act of 1996 was established by Congress as an amendment to the
Solid Waste Disposal Act (SWDA). Therefore, the 10/29/98 revision by
Alaska of its solid waste regulations and the Governor's certification
establishes full adequacy with respect to EPA's Part 258 municipal
landfill criteria.
[[Page 456]]
EPA's notice of 10/19/98 withdrew the elements of EPA's prior
tentative approval of November 25, 1996, that applied to the Class III
landfill component of Alaska's application. (Alaska's removal of the
2010 requirement was not finalized by the State until after EPA's 10/
19/98 notice.) A new comment period was included in EPA's 10/19/98
notice on tentative Class III approval, which ended on January 26,
1999. The optional public hearing was not held because EPA received no
requests for it. One letter of comment was received, which is discussed
in C of this document.
Sewage and Biosolids
In today's final full approval of Alaska's Solid Waste Program, EPA
is not proposing approval under the Clean Water Act with respect to the
treatment, storage, landspreading, or disposal of sewage solids,
biosolids, sludge, and other wastes that are addressed in EPA's
regulations under 40 CFR part 503 and related parts. The SIR process
for State approvals focuses on the municipal solid waste permit
program, without expressing any opinion on the other programs that are
addressed in Alaska's 18 AAC 60 solid waste management rule. With
respect to sewage and biosolids wastes, the only criteria in Alaska's
rule that are being approved today are those that correspond to EPA's
40 CFR part 258 municipal landfill criteria.
Indian Country
In preparing and reviewing the Alaska application, ADEC and Region
10 have taken into consideration the needs and status of recognized
Indian Tribes and Alaska Native Villages. Today's final full approval
of the State of Alaska's solid waste permit program does not extend to
``Indian Country'' located in Alaska, as defined in 18 U.S.C. 1151.
Because the extent of Indian Country is not certain, the exact
boundaries of Indian Country have not been defined. Lands acknowledged
by the United States to be Indian Country include the Annette Island
Reserve, and trust lands in Klawock, Kake, and Angoon and Alaska Native
allotments still in restricted status. By approving Alaska's solid
waste program, EPA does not intend to affect the rights of Federally
recognized Indian Tribes in Alaska, nor does it intend to limit the
existing rights of the State of Alaska, nor does it intend to modify
the State's new exemption authority with respect to certain small
villages in Alaska.
Land Disposal Program Flexibility Act of 1996
Sub-section (5) of 3(a) of the Land Disposal Program Flexibility
Act of 1996 reads, verbatim, as follows: ``ALASKA NATIVE VILLAGES--Upon
certification by the Governor of the State of Alaska that application
of the requirements described in paragraph (1) to a solid waste
landfill unit of a Native village (as defined in Section 3 of the
Alaska Native Claims Settlement Act (16 U.S.C. 1602)) or unit that is
located in or near a small, remote Alaska village would be infeasible,
or would not be cost-effective, or is otherwise inappropriate because
of the remote location of the unit, the State may exempt the unit from
some or all of those requirements. This paragraph shall apply only to
solid waste landfill units that dispose of less than 20 tons of
municipal solid waste daily on an annual average.''
Note: The reference to ``paragraph (1)'' in the above text is to
paragraph (1) of section 4010(c) of SWDA. The exemption authority in
3(a)(5) of the LDPF Act is granted to Alaska only. This act is
different than the ``Regulatory Flexibility Act of 1996'' that
addresses economic impacts of a wide range of federal programs, and
which is referred to near the end of this document.
Small landfills which are exempted by the State of Alaska, under
authority of the LDPF Act, from some or all portions of the part 258
criteria will not be subject to the citizens suit provision of section
7002 of RCRA as to those exemptions. An important corollary of the
requirements of EPA's amendment to 40 CFR 261.5 is that landfills which
the State has exempted from some or all of the part 258 MSWLF criteria
would not be eligible to accept CESQG wastes--based on Region 10's
interpretation that the meaning of the text in the July 1, 1996,
Federal Register is that the landfill must be subject to the entire
part 258.
On a nationwide basis, another section of the LDPF Act reinstates
the exemption on ground-water monitoring for all facilities that
receive an average of 20 tons per day or less and meet the qualifying
criteria in the LDPF Act for small arid or remote municipal solid waste
landfills. The act does not modify the existing Part 258 exemption on
liner requirements for qualifying small MSWLFs. The liner exemption,
promulgated in October 1991, is still in effect.
Unique Landfills and Special Criteria
Two special categories of landfills are included in ADEC's
regulations: ash monofills that accept municipal solid waste (MSW) ash
and permafrost MSW landfills. EPA finds that Alaska's regulatory
flexibility with respect to methane monitoring and daily cover at MSW
ash monofills is in keeping with the new flexibility that EPA
promulgated (62 FR 51606) on October 2, 1997. Alaska's MSW ash
monofills are handled under 18 AAC 60 Article 3 that sets ADEC's
standards for landfill disposal of municipal solid wastes. EPA believes
that Alaska's program meets EPA standards for monofills that receive
only MSW-ash provided that the ash is non-hazardous based on RCRA
requirements.
The Alaska solid waste regulations also include flexibility
provisions for permafrost landfills that is different and less
stringent than the federal part 258 requirements. Almost all permafrost
landfills in Alaska are small and receive less than an average of 20
tons per day of municipal solid waste. EPA believes use of flexibility
that is specific to permafrost landfills exclusively is in keeping with
practicable capability considerations of RCRA.
Alaska's definition of surface transportation in its October 29,
1998, rule revision remains the same as in the January 1996 and June
1996 editions. It continues to include the same status for barges as
before, namely that they are not surface transportation. The definition
says (verbatim) that surface transportation means ``pioneer roads and
community roads as described in 17 AAC 05.030, or a rail system that
routinely handles freight; surface transportation does not include
barges or any other form of water craft.'' A comment on EPA's earlier
(November 25, 1996) tentative approval challenged the defining of
barges and water craft as not being forms surface transportation. As
cited in the earlier Federal Registers, EPA believes the definition is
a State decision, not one that should be made by EPA.
In the wetlands section of the 1996 versions of Alaska's landfill
rule, Alaska had a stability requirement that applied only for
``undisturbed'' native wetland soils and deposits used to support the
MSW landfill. Part 258 applies this stability requirement to all types,
not only undisturbed, wetlands support. ADEC was achieving equivalent
stringency with part 258 via its permitting activities and authority.
Regardless, this difference (versus part 258) was eliminated in ADEC's
10/29/98 rule revision.
Administrative Elements and Criteria
Part 258.1(f)(3) requires that if the owner/operator of a small,
arid or remote, landfill has knowledge of ground-water contamination
resulting
[[Page 457]]
from the unit, the owner/operator must notify the State Director.
Alaska's 1996 versions of its regulation did not include the equivalent
wording as to this sub-section. However, ADEC informed EPA that it
believed it was achieving the equivalent via its permitting and
compliance monitoring practices, and with support from other agencies.
This was discussed in the Agency's tentative determinations.
Implementation by Alaska of its regulatory change to 18 AAC 60.300(f)
that added an equivalent requirement was made on October 29, 1998. Thus
the State regulation now fully meets the Part 258.(1)(f)(3)
notification criteria.
With respect to public participation, Alaska cites in the narrative
summary of its application that it has been and is ADEC's policy to
provide additional public participation opportunities after a permit is
issued, including at the time of permit renewals and major
modifications or variances, particularly if public interest was
expressed at the time of the original permit or if there is any
controversy surrounding the permit. The summary states that Alaska's
current version of its 18 AAC 15.100(d) regulation does not require
public notice or a public hearing on applications for renewal of a
permit or amendment. As a means of formalizing ADEC's existing and on-
going practices in this area, the Commissioner of ADEC issued a policy
paper on October 9, 1996, entitled ``Policy Regarding Public Notice
Requirements for Solid Waste Renewals and Modifications.'' A copy was
placed in Alaska's application, and this policy serves as a basis of
today's final full program determination of adequacy.
Environmental Audit Privilege and Immunity Law
On August 9, 1997, the State of Alaska enacted its Environmental
Audit Privilege and Immunity Law. EPA and ADEC worked together on
analyzing this law, solely with respect to the solid waste program, and
to the Agency's nationwide policies. Based on the information provided
by the State on this law, and the State's application for program
approval, EPA believes that Alaska has the authority necessary to
administer a fully approved RCRA subtitle D permit program for
municipal solid waste landfills. Today's full approval does not reflect
a position by the Agency regarding the state's authority to administer
any other federally authorized, delegated, or approved environmental
program. The impact of the state's audit law on the requirements of
other federal environmental programs (many of which have more
comprehensive requirements than Subtitle D of RCRA) will require a
separate review and analysis by EPA.
C. Public Comments
EPA received one letter of public comment, from an individual, on
EPA's tentative determination of partial adequacy for Alaska's Class
III MSWLF permit program, that was published in the October 19, 1998,
Federal Register. The commentor questioned the legality of Class III as
to RCRA. Alaska informed EPA in mid 1997 of its intent to establish
permanently, or until an indefinite time in the future, its Class III
landfill category that contains criteria which are less stringent than
the federal part 258 municipal landfill criteria. In addition, this was
set forth in Alaska's August 1, 1997, proposed 18 AAC 60 rule revision,
to remove the 2010 sunset (upgrade) date. In the past, as discussed in
the 11/25/96 and 10/19/98 Federal Registers, EPA clearly wanted this
``sunset date'' to be in the State's regulation. The State's summary
document for the public, that accompanied the August 1997 proposed
regulatory changes, specifically highlighted that the State intended to
make Class III a permanent category.
The SIR rule, in 40 CFR 239.4 says (verbatim) that ``the state will
ensure that existing and new facilities are permitted or otherwise
approved and in compliance with the relevant Subtitle D federal revised
criteria.'' The exemption authority in section 3(a)(5) of the LDPF act
(as to 40 CFR part 258 criteria) is granted by Congress to the State of
Alaska only. The choice on what exemptions are established is assigned
to Alaska and not to EPA. The combination of the certification made by
the Governor and the removal by the State of the 2010 sunset date
requirement from Alaska's regulation is in compliance with the LDPF Act
and therefore adequate under RCRA. Consequently, EPA is today approving
in full the State's Class III municipal landfill permit program.
Environmental Justice: As the commentor points out, EPA places high
importance on achieving environmental justice, and on implementing the
related provisions of Executive Order 12898. However, the LDPF act does
not authorize EPA to become a direct participant in the decisions, or
actions, that the State of Alaska implements when making exemptions
from part 258 under the LDPF act. With respect to small landfills in
general throughout the United States, EPA described in the Federal
Register (62 FR 40714 of July 29, 1997) its commitment to addressing
environmental justice concerns for all residents of the nation. This
description was published in conjunction with EPA's regulatory revision
(finalized 10/2/97 per 62 FR 51606) to allow the Director of an
Approved State the flexibility to establish certain additional
alternative criteria for small MSWLFs throughout the United States. EPA
cites therein that the Agency's goals are to ensure that no segment of
the population bears disproportionately high and adverse human health
and environmental effects as a result of EPA's policies, programs, and
activities.
Information that also relates to this comment is that ADEC has
pointed out that it encourages, in numerous instances, certain
activities and field improvements at small landfills ``as an immediate
step in the right direction'' even though the state regulations make it
necessary for ADEC to deny, or not issue, a full permit. This practice
enables incremental upgrading of village landfills while taking into
consideration the practicable capabilities that exist in each community
or area.
D. Decision
After reviewing the public comments, I conclude that the State's
solid waste program for all three of the State's classes of municipal
landfills meets all of the statutory and regulatory requirements
established by RCRA, and SWDA, including the amendments of the Land
Disposal Flexibility (LDPF) Act of 1996. Accordingly, Alaska is granted
a full program determination of adequacy, including MSW ash mono-fills
and permafrost landfills, for its municipal solid waste landfill permit
program that are listed below. The Subparts of 40 CFR part 258 that are
included in today's determination are:
Part 258 Subpart A--General, including the establishment of a
permanent status for the State's Class III category of municipal
landfills, which has been implemented by Alaska under the exemption
authority granted by the federal Land Disposal Program Flexibility Act
of 1996.
Part 258 Subpart B--Location Restrictions;
Part 258 Subpart C--Operating Criteria;
Part 258 Subpart D--Design Criteria;
Part 258 Subpart E--Ground-Water Monitoring and Corrective Action;
Part 258 Subpart F--Closure and Post-Closure Care; and
Part 258 Subpart G--Financial Assurance Criteria.
The Agency has already approved (63 FR 55870 of October 19, 1998)
Alaska's program for landfill disposal of hazardous wastes from
conditionally
[[Page 458]]
exempt small quantity generators (CESQG)--under 40 CFR 261.5; part 257
subpart B; and part 258. Alaska's 18 AAC 60 rule requires that CESQG
wastes may be disposed of only in a facility that meets the
requirements for the State's Class I or Class II municipal landfills.
Section 4005(a) of RCRA provides that citizens may use the citizens
suit provisions of section 7002 of RCRA to enforce the Federal MSWLF
criteria in 40 CFR part 258 independent of any State, or Tribal,
enforcement program. Criteria of 40 CFR part 258 from which a landfill
has been exempted by the State of Alaska, under authority of the LDPF
Act, are not useable with respect to the citizens suit provision of
section 7002. As explained in the preamble to the final MSWLF criteria,
EPA expects that any owner or operator complying with provisions in a
State program approved by EPA should be considered to be in compliance
with the relevant portions of the Federal Criteria. See 56 FR 50978,
50995 (October 9, 1991).
E. Regulatory Assessments
The following executive Orders, and assessments required by Federal
Statutes, were included in the EPA's approval notice of Partial
Determinations in the Federal Register (63 FR 55863) of October 19,
1998. No public comments were received on these elements of the notice.
Compliance With Executive Order 12866, Significant Annual Effect on the
Economy
The Office of Management and Budget (OMB) has exempted today's
action from the requirements of Section 6 of Executive Order 12866.
Compliance With Executive Order 13045, Children's Health Protection
Today's action is not subject to Executive Order 13045 because it
does not involve decisions intended to mitigate environmental health or
safety risks.
Compliance With Executive Order 13084, Consultation and Coordination
With Indian Tribal Governments
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly 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. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to today's action, 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 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 action implements
requirements specifically set forth by the Congress in sections
4005(c)(1)(B) and (c)(1)(C) of Subtitle D of the Resource Conservation
and Recovery Act (RCRA), as amended, without the exercise of any
discretion by EPA. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to today's action.
Certification Under the Regulatory Flexibility Act
EPA has determined that this authorization will not have a
significant adverse economic impact on a substantial number of small
entities. By approving State municipal solid waste permitting programs,
owners and operators of municipal solid waste landfills who are also
small entities will be eligible to use the site-specific flexibility
provided by part 258 to the extent the State permit program allows such
flexibility. However, since such small entities which own and/or
operate municipal solid waste landfills are already subject to the
requirements in 40 CFR part 258 or are exempted from certain of these
requirements, such as the groundwater monitoring and design provisions.
Today's approval does not impose any additional burdens on small
entities. Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act Pursuant to the provision at 5 U.S.C. 605(b).
I hereby certify that this approval will not have a significant adverse
economic impact on a substantial number of small entities. It does not
impose any new burdens on small entities; rather this approval creates
flexibility for small entities in complying with the 40 CFR part 258
requirements. Today's action, therefore, does not require a regulatory
flexibility analysis.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing today's document and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of today's action in the Federal Register.
Today's action is not a ``major rule'' as defined by section 804(2) of
the APA as amended.
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), Public Law 104-4, which was signed into law on March 22, 1995,
EPA generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the Act, EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, it must develop under section 203
of the Act a small government agency plan. The plan must provide for
notifying potentially affected small governments, giving them
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
regulatory requirements.
The Agency does not believe that approval of the State's program
would result in estimated costs of $100 million or more to State,
local, and tribal governments in the aggregate, or to the private
sector, in any one year. This is due to the additional flexibility that
the State can generally exercise (which will reduce, not increase,
compliance costs). Thus, today's document is not subject to the written
statement requirements in sections 202 and 205 of the Act.
As to section 203 of the Act, the approval of the State program
will not significantly or uniquely affect small
[[Page 459]]
governments including Tribal small governments. As to the applicant,
the State has received notice of the requirements of an approved
program, has had meaningful and timely input into the development of
the program requirements, and is fully informed as to compliance with
the approved program. Thus, any applicable requirements of section 203
of the Act have been satisfied.
Authority: This document is issued under the authority of
sections 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as
amended; 42 U.S.C. 6912, 6945 and 6949(a)(c).
Dated: December 21, 1999.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 00-186 Filed 1-4-00; 8:45 am]
BILLING CODE 6560-50-P
