[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25787]
[[Page Unknown]]
[Federal Register: October 18, 1994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[FRL-5092-8]
Financial Assurance Effective Date for Owners and Operators of
Municipal Solid Waste Landfill Facilities
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) proposes to amend
the Federal criteria for Municipal Solid Waste Landfills (MSWLFs) under
subtitle D of the Resource Conservation and Recovery Act (RCRA) by
delaying the effective date of subpart G, Financial Assurance, until
April 9, 1996 for all MSWLFs.
DATES: Comments on this proposed rule must be received on or postmarked
on or before December 19, 1994.
ADDRESSES: Written comments on this proposal should be addressed to the
docket clerk at the following address: U.S. Environmental Protection
Agency, RCRA Docket (5305), 401 M Street SW., Washington, DC 20460.
Commenters should send one original and two copies and place the docket
number (F-94-FADP-FFFFF]) in the comments. The docket is open from 9
a.m. to 4 p.m., Monday through Friday, except for Federal holidays.
Docket materials may be reviewed by appointment by calling (202) 260-
9327. Copies of docket material may be made at no cost, with a maximum
of 100 pages of material from any one regulatory docket. Additional
copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT: RCRA Hotline at 1-800-424-9346 (in
Washington, D.C., call (703) 920-9810), or Dale Ruhter at (703) 308-
8192, Office of Solid Waste, U.S. Environmental Protection Agency, 401
M Street SW, Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
III. Today's Action
IV. Economic and Regulatory Impacts
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Authority
These amendments to part 258 are proposed under the authority of
sections 1008, 2002, 4004, and 4010 of the Resource Conservation and
Recovery Act (RCRA), as amended, 42 U.S.C. 6907(a)(3), 6912(a),
6944(a), and 6949a(c).
Please note that EPA has identified a typographical error in its
recent final rule delaying the effective dater for certain subtitle D
requirements, issued October 3, 1993 (58 FR 51546). That rule, which
amended the authority citation to Part 258, incorrectly cited 42 U.S.C.
6949(c) in the list of authorities for part 258. The correct citation
is 42 U.S.C. 6949a(c). The Agency intends to issue a separate technical
correction notice to correct this misprint.
II. Background
On October 9, 1991, the Agency promulgated revised criteria for
municipal solid waste landfills (MSWLFs), which established minimum
Federal standards to assure that MSWLFs are designed and managed in a
manner that is protective of human health and the environment,
considering the practical capability of the MSWLFs (see 56 FR 50978).
The minimum Federal standards include location restrictions, facility
design and operating criteria, groundwater monitoring, corrective
action, closure and post-closure care, and financial assurance
requirements.
The Agency proposed the MSWLF criteria, including financial
assurance requirements, on August 30, 1988 (see 53 FR 33314). The
purpose of the financial assurance requirements is to assure that
adequate funds will be readily available to cover the costs of closure,
post-closure care, and corrective action associated with MSWLFs. The
Agency believes that these financial assurance requirements are an
important part of the MSWLF criteria for two reasons. First, when an
owner or operator does not have funds readily available to address the
environmental needs at a facility, delays in addressing those needs can
result. Second, if the owner or operator does not have funds to address
environmental needs at its facilities, those needs would have to be
addressed under federal or state programs, rather than by the party
responsible for the facility. Such programs typically have limited
funds available to address MSWLF environmental needs.
In the August 30, 1988 proposal, rather than proposing specific
financial assurance mechanisms, the Agency proposed a financial
assurance performance standard. The Agency solicited public comment on
this performance standard approach and, at the same time, requested
comment on whether the Agency should develop financial test mechanisms
for use by local governments and corporations.
Commenters on the proposed rule argued that the proposed
performance standard lacked sufficient detail to guide States in the
development and implementation of requirements with any consistency
among States, and that the Agency should develop specific mechanisms
that could be used to demonstrate financial assurance. Commenters also
supported the development of a local government financial test and a
corporate financial test.
In response to comment, the Agency promulgated several specific
financial mechanisms in the October 9, 1991, final rule. Those
mechanisms include trust funds, surety bonds, letters of credit,
insurance, and State assumptions of responsibility (section 258.74). In
addition, to retain States' flexibility in implementing the Subtitle D
program, the Agency promulgated the financial assurance performance
standard of section 258.74, which allows approved States to use any
State-approved mechanism that meets that performance standard.
Commenters on the August 30, 1988, proposal also supported the
development of financial tests for local governments and for
corporations. The financial tests would allow owners and operators to
demonstrate that they can satisfy the goals of financial assurance on
their own, and that they do not need to produce a third-party
instrument to assure that the obligations associated with their
landfill will be met. Because an owner or operator using a financial
test would not have to secure a third-party instrument, the cost of
financial assurance to the regulated community would decrease. The
Agency agreed with commenters but, at the time the final MSWLF criteria
were promulgated, the Agency had not completed the analyses necessary
to propose those financial tests. Thus, in the October 9, 1991,
preamble, the Agency announced its intention to develop both a local
government and corporate financial test in advance of the effective
date of the financial assurance provisions.
In the final MSWLF criteria rule, the Agency promulgated an
effective date of October 9, 1993 for most of the provisions of the
rule. The Agency delayed the effective date of the financial
responsibility provisions until April 9, 1994, in order to provide
adequate time to promulgate a financial test for local governments and
another for corporations before the effective date of the financial
assurance provisions. The delayed effective date also was intended to
provide owners and operators sufficient time to determine whether they
satisfy the applicable financial test criteria for all of the
obligations associated with their facilities, and obtain a guarantor or
an alternate instrument, if necessary. The Agency also recognized that
local governments, in particular, require notice of the requirements in
order to plan their budgets for the upcoming year.
The Agency then proceeded to conduct the necessary analysis, and
develop a local government and corporate financial test for MSWLF
owners and operators. However, the analysis needed to develop those
financial tests took longer than anticipated. As a result, for most
MSWLFs, the Agency extended the effective date of the financial
assurance provisions to April 9, 1995 (see 58 FR 51536) to allow
additional time to develop the financial tests.
The financial tests will allow MSWLF owners and operators to
demonstrate financial assurance for their closure, post-closure, and
corrective action obligations. Owners and operators who meet the
requirements of the financial tests will not be required to obtain a
third-party financial assurance instrument1 for these obligations.
A financial test for local governments was proposed on December 27,
1993 (see 58 FR 68353). At the time of today's proposal the Agency is
conducting analysis of comments submitted on the proposed local
government test. The corporate test was proposed on October 12, 1994
(see 59 FR 51523). The comment period for the corporate test expires on
December 12, 1994. EPA will not be able to finalize these rules until
some time after April 9, 1995.
---------------------------------------------------------------------------
\1\For a description of the third-party instruments available to
MSWLF owners and operators see 56 FR 50978.
---------------------------------------------------------------------------
III. Today's Action
Although the Agency had anticipated that an extension to April 9,
1995 would provide sufficient time to develop the financial tests,
further delays have necessitated an additional extension. Therefore,
this proposed rule would delay the current April 9, 1995 effective date
for subtitle D financial assurance requirements by one year. EPA is not
proposing any changes to the substantive requirements of the current
subtitle D financial assurance provisions. The new effective date for
the financial assurance requirements would be April, 9 1996.
The Agency is proposing this extension for several reasons. First,
the large volume of comments received on the December 27, 1993 proposed
local government financial test proposal has required significant time
to review and analyze. Therefore, the test will not be promulgated
before the April 9, 1995 effective date. The corporate financial test
was proposed on October 12, 1994 at 59 FR 51523. Promulgation of the
corporate financial test will require at least one year.
Second, commenters2 on the local government proposal expressed
concern that there would not be adequate time between the promulgation
dates of the financial tests and the April 9, 1995 effective date of
the subtitle D financial assurance provisions. Commenters were
concerned that the short period of time between the expected
promulgation of the financial tests and the effective date would not be
adequate for local governments to plan and budget for use of the
financial test. Third, commenters are concerned that states would not
have adequate time to adopt the financial tests into their state
programs and, therefore, the financial test would not be available to
qualified local governments.
---------------------------------------------------------------------------
\2\Please see comments LGFP-00004 and LGFP-00005 on the December
27, 1993 proposed local government financial test (58 FR 68353) and
the August 1, 1994 letter from the Virginia Association of Counties
to Michael Shapiro located in the docket of this rulemaking. As a
general matter, the Agency notes that approved states/Tribes have
the flexibility to develop alternative financial mechanisms that
meet the criteria specified in Sec. 258.74(1) for use by their
owners and operators. However, the Agency believes that it is
important to have these financial tests in place before the
financial responsibility provisions become effective. EPA currently
estimates that the additional year should enable EPA to finish
promulgation of these tests and should ensure that owners and
operators will have the opportunity to evaluate their needs based on
these financial tests.
---------------------------------------------------------------------------
As a general matter, the Agency notes that approved states/Tribes
have the flexibility to develop alternative financial mechanisms that
meet the criteria specified in Sec. 258.74(1) for use by their owners
and operators. However, the Agency believes that it is important to
have these financial tests in place before the financial responsibility
provisions become effective. EPA currently estimates that the
additional year should enable EPA to finish promulgation of these tests
and should ensure that owners and operators will have the opportunity
to evaluate their needs based on these financial tests.
IV. Economic and Regulatory Impacts
A. Executive Order 12866
Under Executive Order 12866, which was published in the Federal
Register on October 4, 1993 (see 58 FR 51735), the Agency must
determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This action will not trigger any of the events described above and,
therefore, the Agency has determined that this is not a significant
action.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. at the
time an Agency publishes a proposed or final rule, it generally must
prepare a Regulatory Flexibility Analysis that describes the impact of
the rule on small entities, unless the Administrator certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. As a result of this action, small entities
will not be required to meet the cost of compliance with subtitle D
financial assurance for an additional year. Therefore, pursuant to 5
U.S.C. 605b, we believe that this regulation will not have a
significant impact on a substantial number of small entities.
C. Paperwork Reduction Act
The Agency has determined that there are no new reporting,
notification, or recordkeeping provisions associated with today's
proposed rule.
List of Subjects in 40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal.
Dated: October 6, 1994.
Carol M. Browner,
Administrator.
40 CFR part 258 is proposed to be amended as follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
1. The authority citation for part 258 continues to read as
follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a), 6944(a), and 6949(c);
33 U.S.C. 1345(d) and 1345(e).
2. Section 258.70 is amended by revising paragraph (b) to read as
follows:
Sec. 258.70 Applicability and effective date.
* * * * *
(b) The requirements of this section are effective April 9, 1996.
3. Section 258.74 is amended by revising paragraph (a)(5) to read
as follows:
Sec. 258.74 Allowable mechanisms.
* * * * *
(a) * * *
(5) The initial payment into the trust fund must be made before the
initial receipt of waste or before the effective date of the
requirements of this section (April 9, 1996), whichever is later, in
the case of closure and post-closure care, or no later than 120 days
after the corrective action remedy has been selected in accordance with
the requirements of Sec. 258.58.
* * * * *
4. Section 258.74 is amended by revising the third sentence of
paragraph (b)(1); by revising the second sentence of paragraph (c)(1);
and by revising the second sentence of paragraph (d)(1) to read as
follows:
Sec. 258.74 Allowable mechanisms.
* * * * *
(b) * * *
(1) * * * The Bond must be effective before the initial receipt of
waste or before the effective date of the requirements of this section
(April 9, 1996), whichever is later, in the case of closure and post-
closure care, or no later than 120 days after the corrective action
remedy has been selected in accordance with the requirements of
Sec. 258.58.* * *
* * * * *
(c) * * *
(1) * * * The letter of credit must be effective before the initial
receipt of waste or before the effective date of the requirements of
this section (April 9, 1996), whichever is later, in the case of
closure and post-closure care, or no later than 120 days after the
corrective action remedy has been selected in accordance with the
requirements of Sec. 258.58.* * *
* * * * *
(d) * * *
(1) * * * The insurance must be effective before the initial
receipt of waste or before the effective date of the requirements of
this section (April 9, 1996), whichever is later, in the case of
closure and post-closure care, or no later than 120 days after the
corrective action remedy has been selected in accordance with the
requirements of Sec. 258.58.* * *
* * * * *
[FR Doc. 94-25787 Filed 10-17-94; 8:45 am]
BILLING CODE 6560-50-P
