[Federal Register Volume 63, Number 201 (Monday, October 19, 1998)]
[Notices]
[Pages 55863-55872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27970]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6177-6]
Alaska: Partial Program Adequacy Final Determination of State
Class I and II Municipal Solid Waste Landfill Permit Program--and
Partial Program Adequacy Tentative Determination of State Class III
Municipal Solid Waste Landfill Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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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 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.
The Alaska Department of Environmental Conservation (ADEC) and its
Division of Environmental Health (DEH) applied on February 12, 1996 for
a partial determination of adequacy under RCRA. EPA reviewed Alaska's
application and subsequent supplemental information provided during
March through October 1996. In the Federal Register on November 25,
1996, EPA published its tentative determination of adequacy for those
portions of ADEC's Municipal Solid Waste landfill (MSWLF) permit
program that were adequate to assure compliance with the federal MSWLF
criteria. Alaska's application for partial program adequacy
determination was made available for public review during EPA's public
comment period which ended on January 23, 1997.
During the period that EPA was evaluating the public comments,
proposals were initiated by the Alaska Legislature that included
eliminating the solid waste program or reducing ADEC's Solid Waste
staff to less than half. The final budget reductions established in
late May 1997, for the 1998 fiscal year (FY-98), were significant but
not as severe as originally proposed. (Alaska's Fiscal years begin on
July 1.) In its letter of May 30, 1997, ADEC states that the final
dollar budget for FY-98 was set at 13% lower than for the FY-97 solid
waste program. In particular, the State's program for its Class III
municipal landfills has been significantly changed. Details on the
budget reductions are discussed in Section B (State of Alaska) of this
document. EPA believes that an additional EPA public comment period on
the Class III program should be provided. Consequently, the agency is
not including in today's final-partial approval the elements of its
tentative determination of November 25, 1996, that applied to the
State's Class III landfill program.
On August 9, 1997, the State of Alaska enacted its Environmental
Audit Privilege and Immunity Law. 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 partially approved RCRA subtitle D permit program for
municipal solid waste landfills. Today's partial 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.
[[Page 55864]]
Today's document promulgates EPA's Final Partial approval of
Alaska's program for the State's Class I and Class II municipal
landfills--plus Alaska's criteria for disposal of hazardous wastes from
Conditionally Exempt Small Quantity Generators (CESQG) at these two
categories of municipal landfills exclusively. Second, this document
withdraws the portions of the Tentative Partial approval published in
Federal Register of November 25, 1996, that addressed the Class III
elements of Alaska's program. Third, today's document introduces a new
Tentative Partial approval of Alaska's Class III landfill program. It
is based on Alaska's retaining the existing 2010 ``sunset'' date for
upgrading Class III landfills to Class II status, and on Alaska's
revised solid waste budgets and program revisions. This third component
also acknowledges Alaska's announced intention to eliminate the 2010
deadline, provided this is done in accordance with the procedures and
exemption authority established by the federal Land Disposal Program
Flexibility Act of 1996. EPA's written comment on the procedural
aspects of implementing Class III exemptions under ADEC's proposed
changes (of August 1, 1997) to its municipal landfill regulation is
discussed in Section B.
On and after the effective date of today's Final-Partial approval,
the State Director will be able to allow Class I and Class II landfills
to benefit from the site-specific flexibility elements that are
contained in the 40 CFR Part 258 municipal landfill criteria. Alaska's
sub-categories of permafrost landfills and MSW-ash monofills are being
included in today's approval. EPA is also approving the State's
regulatory requirement that Conditionally Exempt Small Quantity
Generator (CESQG) hazardous-waste disposal must be placed solely in a
Class I or Class II municipal landfill. Alaska's 18 AAC 60 rule is in
accordance with EPA's recent regulatory changes that apply to CESQG
wastes.
Financial assurance requirements, and one or more narrow
inconsistencies versus Part 258 as listed in the Decision Section of
this document, are not included in today's partial approval. Alaska has
included the addition of financial assurance in its August 1997
proposed regulatory changes. (EPA finalized its own financial assurance
for local governments on November 27, 1996.) ADEC plans to revise the
remainder of its permit program and apply to EPA for full program
approval.
The portions of the Alaska program in today's Final Partial
approval for Class I and Class II municipal landfills, and the portions
in today's Tentative Partial approval for Class III municipal
landfills, are described in Section D (Decision) of this document.
DATES: The determination of partial adequacy for Alaska's Class I and
Class II landfill program shall be effective October 19, 1998.
All Comments on today's new tentative partial determination of
adequacy, of Alaska's application for a partial approval with respect
to the State's Class III municipal landfill program, must be received
by EPA Region 10 by the close of business on January 26, 1999, Tuesday.
(There is no comment period on the Class I and Class II landfill
portions of today's actions. That period was provided under EPA's
Tentative Determination of November 25, 1996.)
If, and only if, sufficient interest in having a public hearing is
requested on or before December 4, 1998, Friday, a public hearing to
receive oral and written testimony on EPA's tentative determination
will be held on January 26, 1999, Tuesday, from 1:30 p.m. until 3:30
p.m. If more time for receiving testimony is needed, EPA may extend the
closing time up to 5:00 p.m. on this date. The hearing, if held, will
be at the Federal Building, 222 West 7th Avenue, Anchorage, Alaska,
99513. Members of ADEC will attend EPA's public hearing.
Requests for a public hearing must be in writing and must be
received by the EPA contact shown in this document before the close of
business on December 4, 1998, Friday, and should include a statement on
the writer's reason for wanting a public hearing. EPA will determine,
within twelve calendar days of the date by which requests must be
received, whether a public hearing is warranted. After the twelve days,
anyone may contact the EPA person listed in the CONTACTS section to
find out if a public hearing will be held.
ADDRESSES: Copies of Alaska's application for partial adequacy
determination are available during normal working days at the following
addresses for inspection and copying: three offices of the Alaska
Department of Environmental Conservation from 8:00 a.m. to 4:30 p.m. at
410 Willoughby Avenue, Juneau, AK 99801, Attn: Ms. Susan Super, (907)-
465-5350; at 555 Cordova Street, Anchorage, AK 99501, Attn: Ms. Laura
Ogar (907)-269-7653; and at 610 University Avenue, Fairbanks, AK 99709,
Attn: Ms. Kris McCumby, (907)-451-2108; and at the office of the
Environmental Protection Agency from 9 a.m. to 4 p.m. at: U.S. EPA,
Region 10 Library, 1200 Sixth Avenue, Seattle, WA 98101; library
telephone 206-553-1259. All written comments on this tentative
determination must be sent to U.S. EPA Region 10, 1200 Sixth Avenue,
mail code (WCM-128), Seattle, WA 98101, Attn: Mr. Steven B. Sharp.
FOR FURTHER INFORMATION AND TO REQUEST A PUBLIC HEARING, 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.
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 MSWLFs 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)--
but does not mandate issuance of a rule for such determinations. EPA is
currently developing an approval rule and published a proposed version
in the
1/26/96 Federal Register. The relationship to Tribal programs is
discussed later in this section.
Although not mandated by RCRA, EPA proposed in the Federal Register
(61 FR 2584) on January 26, 1996, a rule that specifies the
requirements which State (and Tribal) programs must satisfy to be
determined adequate. The name of this rule was the State/Tribal
Implementation Rule (STIR). The basis for EPA's inclusion of Tribal
approvals in the STIR was discussed in the preamble to the proposal.
Subsequent to EPA's publishing the proposed STIR rule, the United
States Court of Appeals for the District of Columbia Circuit issued its
opinion on a petition from plaintiffs concerning EPA's approval of the
solid waste program of the Campo Band of Mission Indians. In its
opinion filed on October 29, 1996, the Court determined that EPA lacks
authority under RCRA to approve the solid waste management plan
[program] of an Indian Tribe. Consequently, EPA is currently limiting
its solid waste program approvals to State programs. EPA expects to
finalize the STIR rule in the near future with removal of the elements
relating to
[[Page 55865]]
approval of Tribal programs. In the interim, EPA is now using the name
``State Implementation Rule'' (SIR) for reference to the proposed STIR
rule of January 26, 1996, (Federal Register, 61 FR 2584) and for
reference to the existing STIR guidance of 1993 that EPA has used in
connection with State approvals. The Federal Court observed, in the
Campo Band decision, that the 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. EPA has developed a
petition-procedure guidance for handling Tribal flexibility requests.
Since RCRA does not mandate that a rule must be in place, EPA has
approved and will continue to approve adequate State MSWLF permit
programs as applications are submitted. These approvals are not
dependent on final promulgation of the SIR. Prior to the final
promulgation of SIR, adequacy determinations will be made based on the
statutory authorities and requirements. In addition, States may use the
proposed rule of January 26, 1996, as an aid in interpreting these
requirements. EPA believes that early approvals have an important
benefit. Approved State permit programs 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 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
exemption authority in the Land Disposal Program Flexibility Act of
1996, that pertains only to certain-village landfills in Alaska, is
discussed in Section B (State of Alaska) of this document.
EPA has allowed, and has also proposed in the SIR to allow, partial
approvals if: (1) The Regional Administrator determines that the State
permit program largely meets the requirements for ensuring compliance
with Part 258; (2) changes to a limited part(s) of the State permit
program are needed to meet these requirements; and, (3) provisions not
included in the partially approved portions of the State permit program
are a clearly identifiable and separable subset of Part 258. These
requirements will address the potential problems posed by the dual
State and Federal regulatory controls following the October 9, 1993,
effective date, and amended dates thereof, of the Federal regulations.
On each effective date, Federal rules covering any portion of a State's
program that has not received EPA approval continues to be enforceable
through the citizen suit provisions of RCRA 7002. Owners and operators
of MSWLFs subject to such dual programs must understand the applicable
requirements and comply with them. In addition, those portions of the
Federal program that are in effect must mesh well enough with the
approved portions of the State program to leave no significant gaps in
regulatory control of MSWLF's. Partial approval would allow the EPA to
approve those provisions of the State permit program that meet the
requirements and provide the State time to make necessary changes to
the remaining portions of its program. As a result, owners/operators
will be able to work with the State permitting agency to take advantage
of the Criteria's flexibility for those portions of the program which
have been approved.
EPA has approved portions of over 46 State MSWLF permit programs
prior to the promulgation of the final SIR. 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 in Alaska 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. As provided
in the October 9, 1991, municipal landfill rule, EPA's Subtitle D
standards were set to take effect nationwide in October 1993. The
effective dates for certain portions of the criteria were subsequently
postponed, with most all of the EPA standards becoming effective as of,
or before, October 9, 1997. On April 7, 1995, EPA issued a Federal
Register Rule extending the effective date of the 40 CFR Part 258,
Subpart G requirements relating to Financial Assurance until April 9,
1997, and for small MSWLFs that meet the conditions of Sec. 258.1(f)(1)
until October 9, 1997. Consequently, 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.
On November 27, 1996, EPA promulgated its rule for Financial
Assurance Mechanisms for Local Government Owners and Operators of
MSWLFs. This rule adds paragraph (c), as an amendment to Sec. 258.70 of
Subpart G. It allowed the director of an approved State to waive the
financial assurance requirements of Subpart G up to April 9, 1998, for
good cause if an owner or operator makes a satisfactory demonstration,
per new paragraph (c), to the State Director.
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. EPA
also is requesting States seeking partial program approval to provide a
schedule for the submittal of all remaining portions of their MSWLF
permit programs. EPA cites in the proposed SIR rule that submission of
a schedule is mandatory.
B. State of Alaska
Over the past several years and earlier, Alaska has developed an
extensive and practicable approach to management of many types of non-
hazardous solid waste including municipal waste--and to increased
protection of human health and the environment. During 1993 through
1995 the state revised a broad range of its disposal regulations.
Concurrently, ADEC reorganized in a manner that by the summer of 1996
had already begun showing results in terms of greater communication
with small landfills. The Alaska Department of Environmental
Conservation (ADEC) has assigned solid waste management to its Division
of Environmental Health (DEH), which oversees the entire program. Solid
Waste receives assistance from other programs within DEH, and to a
small extent from other Divisions of ADEC, for improving waste
management in small and remote communities. An element of the
regulatory upgrades was extensive revision of the criteria for
municipal solid waste disposal facilities. Alaska went public with its
proposed regulations in September 1993 and, after
[[Page 55866]]
the public comment period, issued a revised proposal in September 1994
with a second comment period. ADEC's new rule became effective on
January 28, 1996. It was revised, primarily for addition of a new fee
structure, on June 28, 1996. In autumn 1997, DEH filled the two
vacancies that had been open for over a year, thus bringing its solid
waste staff up to the level budgeted by the legislature in 1997 and
1998 and further assuring effective implementation of its program.
Alaska's 18 AAC 60 also includes a requirement that all conditionally
exempt small quantity generator (CESQG) waste must be disposed of in a
Class I or Class II municipal landfill. In this respect (which is
discussed in more detail below), Alaska is one of about twenty States
that already have achieved this level of regulatory protection. Today's
action on the portions being approved is an endorsement by EPA of the
proficiency of Alaska's program for Class I and Class II municipal
landfills in particular. It is also confirmation that EPA believes that
the State, with its existing program for Class III landfills, is in the
best position to administer solid waste disposal oversight and
assistance for very small landfills in Alaska.
On February 12, 1996, Region 10 received Alaska's application for a
partial program adequacy determination. EPA responded within the
required 30 days that Alaska's application for approval of its
municipal solid waste landfill permit program was administratively
complete. Alaska provided clarifying written information, as additions
to its application, during the period that EPA conducted its review.
The agency published on November 25, 1996, in the Federal Register (61
FR 60000) its 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 MSWLF program is a component of the Solid Waste
Management Program of ADEC that covers a wide range of non-hazardous
solid wastes. Portions of the Alaska MSWLF program that do not
currently meet the Federal requirements and can only be revised through
their regulation revision process, which may require action by the
State legislature, are not being requested by Alaska for EPA approval
at this time.
In the Notice of tentative determination, EPA announced the
availability of the application for public comment. Although not
required by RCRA, EPA offered to hold a public hearing on January 23,
1997. EPA determined on January 6, 1997, that there was not sufficient
interest to hold a public meeting. The public comment period ended on
the January 23, 1997.
During the period that EPA was reviewing and evaluating the public
comments, proposals were initiated by the Alaska Legislature in early
1997 either to eliminate the Solid Waste program or to reduce ADEC's
Solid Waste staff to less than half. Region 10 of EPA officially
suspended its review on March 14 pending the outcome of the
deliberations. The final action, near the end of May, was not as
severe. (EPA's review was recommenced on June 10.) However, the
Legislature significantly reduced the budgeted dollar amounts and
number of personnel for the 1998 Fiscal year (FY-98) that began on July
1, 1997. As a result, new planning was initiated by ADEC in May and
changes were made to its solid waste program activities--some of which
are significantly different from the program described in the
application of 1996. In particular, the State's program for its Class
III landfills has been changed, as described in the following
paragraph. Consequently, EPA is withdrawing the elements of its
tentative approval of November 25, 1996, that applied to the Class III
landfill component of the application--and today is introducing a new
tentative partial approval for the Class III program.
In its letters of May 30, 1997, and August 8, 1997, ADEC wrote EPA
that, after reviewing the impact of the budget cuts, it is confident it
can adequately administer the solid waste permit program in Alaska. The
May 30 letter cites that the final budget reduced the solid waste
program by 13% for FY-98, versus FY-97, and that the cuts will
necessitate the loss of two positions. The August 8 letter clarified
that the reduction of the two positions was split between two Divisions
of ADEC--which resulted in the loss of only one position by the Solid
Waste program. The two letters inform EPA that certain program
elements, mostly with regard to very small landfills, will be postponed
or converted to lower-cost methods in FY-98, such as limiting technical
assistance to fact sheets or brochures and reducing its field
activities. The Class III outreach program will now be centered in
Fairbanks instead of Juneau. It will rely on phone calls and fact
sheets to supplement field travel to small communities. The letters
also cite that ADEC is not using the staff of the division of State
Public Service (SPS) exactly the way it foresaw in the Memorandum of
Agreement (MOA) between SPS and the Division of Environmental Health
(DEH). However, ADEC does work with SPS to identify issues of local
concern which can help make the permitting process smoother. ADEC
points out that, in addition to SPS support, it has been successful in
using Environmental Health Officers for doing inspections at Class III
MSW landfills in remote locations. Solid waste also coordinates with
staff of other ADEC programs that travel to remote villages. ADEC
expects to eventually reduce the number of Class III landfills.
The May 30, 1997, letter also states that the total number of known
Class II landfills is thirty two. This is twelve more than shown in the
February 1996 application. However, the letter highlights that the new
FY-98 program now specifically assigns eight full time employees to the
Class I and Class II municipal solid waste component of its program.
The letter also says that the positions to be eliminated are those that
provide mostly technical assistance rather than permitting activities.
The MSW landfill has been made a separate element in ADEC's solid waste
budget, which will be funded by a mix of user fees and state general
funds. In addition, the Legislature directed that the industrial and
commercial solid waste landfill permit program shall be a separate,
self supporting element funded almost entirely by user fees. In its
proposed regulatory changes of August 1, 1997, ADEC included
significant increases in user fees for industrial/commercial waste
landfills.
Based on a compromise by EPA and ADEC in 1993 and 1994, Alaska's
current regulation, 18 AAC 60, requires that all Class III landfills
must, by October 9, 2010, upgrade to meet the requirements for Class II
landfills. (Without this compromise, all active Class III landfills
would have had to upgrade to the 40 CFR Part 258 standards by October
9, 1997, or stop receiving waste by that date.) On August 1, 1997, ADEC
published its proposal to make changes to Alaska's 18 AAC 60 rule,
which include elimination of the 2010 deadline. EPA submitted a letter
of comment on September 30, 1997, which focused on the need to follow
the procedures that the LDPF Act specifies for implementing
exemptions--including, for example, removal of the 2010 sunset date.
This was the only element of the proposed changes that EPA's letter
commented upon. ADEC's other proposed changes that relate to the
municipal solid waste program will maintain an equal or better level of
adequacy, and environmental protection, with respect to review and
approval of the State's solid waste
[[Page 55867]]
program. Elimination of the 2010 deadline, can be done at any time
after the Governor of Alaska has issued certifications and ADEC has
made State-wide exemptions from all 40 CFR Part 258 criteria which are
more stringent than the 18 AAC 60 requirements for Class III village
landfills--and still be in keeping with today's approval. The
certification procedure and exemption authority was established by
Congress as an amendment to the Solid Waste Disposal Act (SWDA),
entitled the Land Disposal Program Flexibility Act of 1996 (LDPF ACT).
The details of the act itself are described in the Small Landfills sub-
section below.
EPA has evaluated the public comments, as discussed in Section C,
on its Tentative Partial determination of November 25, 1996, with
respect to the program for Class I and Class II municipal landfills.
(Comments that were received on the Class III component of that Notice
will be evaluated, where applicable, together with comments that are
received during the new comment period of today's action.) Region 10
has also reviewed ADEC's mid-1997 revisions to its program to
accommodate the reduced budget. EPA believes that environmental
protection in relation to needs and practicable capabilities will be
achieved by promulgating final-partial approval of ADEC's program for
Alaska's Class I and Class II categories of municipal landfills, and
simultaneously proposing a new tentative approval of the Class III
program. On and after the effective date of today's Final-Partial
approval, the State Director will be able to allow Class I and Class II
municipal landfills to benefit from the flexibility elements that are
contained in the Part 258 federal criteria.
As cited in the Notice of Tentative Partial approval, EPA and ADEC
concluded that a small number of additional portions (which are
discussed below) of the ADEC program requirements do not mirror the
federal solid waste program criteria of 40 CFR Part 258 or the guidance
in the SIR manual and proposed rule. However, the state's practices or
policies on these portions adequately meet the goals and standards of
the SIR guidance and Part 258 on a performance basis.
Today's document contains three separate elements in the Decision
section. It promulgates EPA's Final Partial approval of Alaska's
program for the State's Class I and Class II municipal solid waste
landfills--plus Alaska's criteria that all disposal of hazardous wastes
from Conditionally Exempt Small Quantity Generators (CESQG) must go to
these two Classes of municipal landfills exclusively. Second, this
document withdraws the portions of the Tentative Partial approval
published in the Federal Register of November 25, 1996, that addressed
the Class III elements of Alaska's program. Third, today's document
proposes a new Tentative Partial approval of Alaska's Class III
landfill program based on the 1996 application with its subsequent
modifying documents that relate to ADEC's revised budget and program
changes to date. The third component of today's document also
acknowledges Alaska's intention to eliminate the 2010 ``sunset'' date
for Class III landfills, and to grant certain exemptions for Class II
landfills, provided these changes are done in accordance with the
procedures and exemption authority granted to the Governor by the LDPF
Act.
The portions of the Alaska program that are included in today's
final partial approval, and those portions not being approved, for
Class I and Class II municipal landfills are listed in the Decision
Section of this document. With respect to today's new tentative partial
approval for Class III landfills, Alaska's application of February 1996
as updated through early November 1996, together with the 1997 changes
and letters from ADEC to EPA, is available for public review and
comment during the period announced in today's document. The locations
where the State's application may be reviewed are listed above in the
Addresses section.
Alaska's schedule is to achieve final-full approval of its solid
waste program within two years of EPA's promulgation of final-partial
approval. In the cover letter of its application, ADEC cited that it
will revise its regulations soon after EPA has promulgated the final
version of its Local Government Financial Assurance rule and will then
apply for full approval. EPA's final version of this rule was
promulgated in the Federal Register on November 27, 1996. Therefore,
Alaska expects it will finalize changes to its 18 AAC 60 criteria, that
will include financial assurance mechanisms as a requirement for MSW
landfills, in time to meet this schedule. In addition, the planned
minor regulatory changes that are discussed in this document should
also have been completed by ADEC before the state applies for full
approval. EPA believes that the state's schedule is reasonable.
Sewage and Biosolids
In today's final partial 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 sewer 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 solid waste management rule (18 AAC 60) of June
28, 1996. 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 partial
approval of the State of Alaska's solid waste 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 currently unknown and in
litigation, the exact boundaries of Indian Country have not been
established. Lands acknowledged to be Indian Country include the
Annette Island Reserve, and trust lands identified as Indian Country by
the United States in Klawock, Kake, and Angoon. 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.
Small Landfills
Alaska defines Class II municipal landfills as those that receive
twenty tons per day or less on an annual average and meet
specifications that include the federal Sec. 258.1(f)(1) arid or remote
small-landfill qualifying criteria. Alaska defines its Class III
landfills as those that receive five tons per day or less and meet the
specifications in Alaska's 18 AAC 60.300(c)(3), which do not include
all of the Sec. 258.1(f)(1) qualifying criteria for small landfills.
Alaska's 18 AAC 60 contains flexibility for Class III landfills that
includes less stringent requirements than the Part 258 allows for small
MSWLFs.
Over the recent past, two methods of addressing small landfills in
Alaska have been developed. The first was a compromise between Region
10 and ADEC in 1993 and 1994, that agreed upon regulatory language in
18 AAC 60 that now says: ``After October 9, 2010,
[[Page 55868]]
all MSWLFs must meet the standards applicable to either a Class I or
Class II MSWLF or close in accordance with this chapter.'' The delay to
2010 for Class III landfills, versus the effective dates in 40 CFR Part
258, was based on the practicable capabilities of the small communities
affected and on conditions that are unique in Alaska versus the rest of
the nation. The State of Alaska, and also EPA via limited support
directly to certain communities, has been working toward successive
improvements at Class III landfills to the extent such compliance is
economically and practicably achievable.
The second method was established when Congress passed a new
statute after Alaska had finalized its solid waste rule and had
submitted its application for program approval to EPA Region 10.
Several elements of the new act address small landfills in Alaska. This
federal statute, Public Law 104-119, entitled the ``Land Disposal
Program Flexibility Act of 1996'' (LDPF Act), became effective on March
26, 1996, as an amendment to the Solid Waste Disposal Act (SWDA).
Note: 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.
Subsection (5) of Section 3(a) of the LDPF Act 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 of SWDA. The
exemption authority in subsection (5) of the LDPF Act is granted to
Alaska only.
Therefore, Class II and Class III landfills for which such
certification is made by the Governor of Alaska and which are exempted
by the State, under authority of this new amendment, 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. Under
this new Act, certain small village landfills could be exempted from
the need to upgrade to the federal Part 258 standards until a time as
established by the State of Alaska.
ADEC cited in the narrative summary of its application for program
approval, and made reference in its letter of May 30, 1997, that the
State's intention is to remove the 2010 deadline from its existing
regulation. The May 30 letter pointed out that ADEC plans, with action
by the Governor's office, to waive some requirements on a statewide
basis--but only as needed to implement those provisions already
included in the State's regulations. Any additional exemptions would be
on a case-by-case basis and closely reviewed for appropriate
justification. In follow-up to this plan, ADEC's newly proposed change
to its solid-waste regulations, published on August 1, 1997, is
deleting the existing 2010 sunset date requirement from the 18 AAC 60
rule of 1996.
At the time when all Class III landfills have either upgraded to
Class II standards, or have been permanently exempted by the State
under the LDPF Act from the elements of 40 CFR Part 258 that are more
stringent than the Class III criteria in 18 AAC 60, the 2010 sunset
date in Alaska's rule would become redundant and could be removed
unilaterally by ADEC without affecting today's approval. Alaska's
existing Class II landfill regulations meet, or exceed, the federal
criteria in Part 258.
The exemption authority in subsection (5) of the LDPF Act is
granted to the State of Alaska only. The State may be considering a
broad short-term exemption to provide a bridge until a final plan is
developed for ensuring environmental protection that is consistent with
community resources and capabilities. EPA supports the State's approach
to achieve continued improvement at village landfills that require more
time. Standard factors such as climate, hydrogeological conditions, and
risk are important considerations in determining improvement plans.
In addition, subsection (6) of the LDPF Act mandate that the EPA
shall, within two years, promulgate revisions to Part 258 to provide
additional flexibility to approved States with respect to qualifying
landfills that receive an average of 20 tons per day or less. The areas
of increased flexibility are limited to alternative frequencies of
daily cover application, frequencies of methane gas monitoring,
infiltration layers for final cover, and means for demonstrating
financial assurance. This subsection includes a provision that such
alternative requirements must take into account climatic and
hydrogeologic conditions and be protective of human health and the
environment. The Act intends that the additional flexibility mandated
by this subsection (6) will become available in all approved States.
EPA promulgated its rule that implements this mandate in the Federal
Register of October 2, 1997, with an effective date of October 27,
1997.
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 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 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-toxic
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.
With respect to the disposal of hazardous wastes from conditionally
exempt small quantity generators (CESQG), EPA promulgated its final
rule on disposal criteria for this category of solid waste after Alaska
had submitted its application to EPA Region 10 for approval of its
solid waste program. The final CESQG rule was published in the Federal
Register on July 1, 1996. The rule modifies 40 CFR Part 261 of the
hazardous waste regulations, and Part
[[Page 55869]]
257 of the solid waste regulations, to establish an additional category
of landfills--by adding Sections 257.5 through 257.30 that allows
certain non-municipal, non-hazardous waste landfills to receive CESQG
wastes. In addition Section 261.5 is amended, per the same Federal
Register of July 1996, such that CESQG wastes may be disposed of in a
facility that is: permitted, licensed, or registered by a State to
manage municipal solid waste and, if managed in a municipal solid waste
landfill is subject to Part 258 of Title 40. In anticipation of EPA's
final CESQG rule, Alaska's 18 AAC 60 already requires that all CESQG
wastes must go to Class I or Class II municipal landfills exclusively.
Alaska's existing 18 AAC 60 Article 3 requires, with respect to CESQG
wastes, that: A conditionally exempt hazardous waste from a small
quantity hazardous waste generator 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 meet or exceed the
Part 258 municipal landfill criteria, Alaska is already meeting EPA's
new CESQG disposal standards. Therefore, EPA is including Alaska's 18
AAC 60 criteria for disposal of CESQG solid wastes in today's final
approval of Alaska's program.
An important corollary of the requirements of this amendment to 40
CFR 261, is that landfills which the State Governor 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 1996 Federal Register is that the
landfill must be subject to the entire Part 258.
In the wetlands section of Alaska's landfill rule, Alaska has a
stability requirement that applies 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 has assured EPA Region 10 that it will remove
the word ``undisturbed'' from its section 18 AAC 60.315(3) during its
next revision of the rule, even though this may not be finalized before
a final-partial approval is promulgated by EPA. (This change has been
included in the proposed regulatory revisions of August 1, 1997.)
During the interim, ADEC expects to achieve equivalent stringency via
its permitting activities and authority.
Administrative Elements and Criteria
Part 258 requires notification of the State Director under numerous
specified circumstances, including under Sec. 258.1(f)(3) with respect
to small landfills. This subsection requires that if the owner/operator
of a small, arid or remote, landfill has knowledge of ground-water
contamination resulting from the unit, the owner/operator must notify
the State Director. Alaska's regulation does not include the exact
wording of this sub-section. However, ADEC believes that via ADEC's
existing permitting and compliance-monitoring practices, and via the
activities of other support agencies, ADEC will become aware of any
ground-water contamination from a Class II landfill as rapidly as ADEC
would by relying on the owner/operator to fulfill the notification
requirement. In addition, Alaska's regulation requires that Class II
landfills must perform groundwater monitoring unless a landfill
demonstrates to the State Director that there is no practical potential
for migration to an aquifer of resource value. However, even with these
practices in effect, EPA concurs with the public comment (discussed in
the next section) on the need for this ground-water notification
requirement. (Therefore, the notification requirement either needs to
be finalized in Alaska's rule before EPA implements a final-full
approval, or it can be waived if an appropriate exemption is done under
LDPF Act.) ADEC has added in its proposed changes of August 1, 1997,
the requirement that a Class II or Class III must make the notification
upon knowledge of groundwater contamination. Alaska's rule, like Part
258, does require compliance with Part 258's Subpart E ground-water
monitoring and corrective action if contamination from the landfill
becomes known.
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 for 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 has been placed in Alaska's application,
and this policy is included in today's final partial approval, and also
as a component of today's tentative partial approval.
Alaska has adequately described its staffing and implementation
capabilities in its application to Region 10 for approval including the
modifications of mid 1996--and the letters of May 30 and August 8,
1997. ADEC reorganized during 1995, established new fee structures in
1996, and after the budget cuts of May 1997 made additional changes to
improve the administration of its solid waste program.
With respect to effective dates, a gap of one-quarter year existed
between the dates contained in the regulations of Alaska versus EPA's
Part 258 criteria with respect to closure of those existing landfills
that do not meet the location restrictions regarding airports,
floodplains, and unstable areas. This discrepancy was described in
detail in the November 25, 1995, Federal Register. Today's final-
partial approval is becoming effective after January 1998, by which
time the gaps will already have occurred and ended.
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 partially approved RCRA subtitle D permit program for
municipal solid waste landfills. Today's partial 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
The EPA received comments from two parties on EPA's tentative
determination of partial adequacy for Alaska's MSWLF permit program,
that was published in the November 25, 1996, Federal Register. Both
were in writing.
[[Page 55870]]
One commentor, a Borough with a population of over forty thousand
and having several landfills, sent a letter that supports and endorses
EPA's Tentative Partial determination of adequacy of Alaska's program
as published. The Borough's letter states that Approval of Alaska's
permit program will provide regulatory flexibility needed for rural
landfills with limited development options and [approval] will
eliminate some conflicts between the State and Federal programs.
The other commentor, an individual, had several comments which are
summarized herein--together with EPA's conclusions on each element in
the commentor's letter. One comment was that the Solid Waste Program of
ADEC does not have full regulatory control over municipal waste
management. This statement in itself is correct in that the Solid Waste
program in DEH does rely on other offices within ADEC to provide
services that are important for adequate solid waste management
statewide. However, in its application for approval of adequacy, Alaska
cited that it is the Department of Environmental Conservation (ADEC),
i.e. its Commissioner, not the Solid Waste Program, that has the lead
role in solid waste management. Alaska's regulation requires that
requests for permission to utilize one or more elements of flexibility,
of the types allowed in 40 CFR Part 258, must be approved by the
Department. DEH, and its solid waste section that implements this
program, now plans to rely primarily upon support from other programs
within DEH. DEH is on the same level as the other ADEC Divisions upon
which it may receive limited amounts of supplemental assistance.
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 DEH 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. As a corollary, the commentor states that the Memorandum of
Agreement between DEH and the Statewide Public Services office has not
yet been fully implemented; while, the commentor expects that whatever
deficiencies existed in early 1997 can be corrected. While progress was
made in 1996 with some support from Statewide Public Service, ADEC has
now shifted to the use of Environmental Health Officers to achieve
greater field assistance.
One comment questioned whether EPA has the legal authority to
approve Class III landfills. EPA believes it does have the authority to
establish a deadline for all small landfills to upgrade to Alaska's
Class II standards by the year 2010--per the discussion in the Alaska
section of this document.
One comment questioned whether EPA's approval would result in
allowing practices with respect to sewage sludge that are not in
compliance with the 40 CFR Part 503 promulgated under the Clean Water
ACT (CWA). In today's action, EPA is only approving practices with
respect to sewage and biosolids that are regulated specifically by 40
CFR Part 258. The Part 503 regulation and EPA's subsequent interpretive
documents establish and discuss the dividing lines between when a
sewage sludge falls under CWA and Part 503 versus under RCRA and Part
257 or Part 258. For example, at present, if commercial or industrial
septage sludge is mixed with domestic septage sludge, the combined
sludges fall under RCRA and 40 CFR Part 257, or Part 258, instead of
under CWA and 40 CFR Part 503.
One comment recommended that the Alaska regulation should be
changed to require that if an owner/operator of a small MSW landfill
unit has knowledge of ground-water contamination resulting from the
unit, the owner/operator must notify the State Director of such
contamination. EPA also had concerns about the omission of this
requirement. Protection of groundwater is a major component of RCRA.
EPA agrees with the commentor. Today's document is not approving the
less-stringent criteria that is now in 18 AAC 60 on this subject.
Therefore small landfills will need to comply with the notification
requirement that is in Part Sec. 258.1(f)(3).
One comment challenges the inclusion of barges and any other form
of water craft in ADEC's definition of surface transportation. EPA
believes the definition is a State decision, not one that should be
made by EPA. The commentor addressed the gap of one-quarter year and an
element on public participation. Region 10 believes no EPA action is
currently warranted, with respect to these two comments, for the
following reasons. The gap of one quarter year in certain effective
dates of the Alaska rule versus the federal rule, that was described in
the November 25, 1997 Federal Register, has already taken place--before
publication of today's document. On permit renewals and modifications,
EPA believes that ADEC's written policy for public notice and public
participation is already in practice and adequately meets the intent of
the federal requirements. In addition, Alaska's application cites that
the State is currently in the process of adding the policy to its
Administrative Code.
D. Decision
This section of today's document contains three separate actions,
which are (1) an EPA final partial approval, (2) withdrawal of an EPA
tentative partial approval, and (3) publication of a new tentative
partial approval. Today's final partial approval includes the State's
sub-categories of MSW-ash monofills, permafrost landfills, and its
criteria for disposal of CESQG wastes. A public comment period is
provided with respect to the new tentative partial approval of the
State's Class III program.
Class I and II and CESQG Final Partial
After reviewing the public comments, I conclude that the State's
Class I and Class II municipal solid waste (MSW) landfill portions of
Alaska's application for partial program adequacy determination, and
Alaska's criteria for disposal of solid wastes from Conditionally
Exempt Small Quantity Generators (CESQG), meet all of the statutory and
regulatory requirements established by RCRA. Accordingly, Alaska is
granted a partial program determination of adequacy for the Class I and
Class II MSW landfill portions, including ash mono-fills and permafrost
landfills in these two classes, of its municipal solid waste landfill
permit program that are listed below. Alaska is also granted a
determination of adequacy, under 40 CFR 261.5 as amended per the
Federal Register of July 1, 1996, of Alaska's program for hazardous
wastes from Conditionally Exempt Small Quantity Generators that
requires these wastes to be disposed of either in Class I municipal
landfills--or Class II municipal landfills that are subject to (and not
exempted by the State from any portion of) the entire 40 CFR Part 258.
The portions of 40 CFR Part 258 that are included in today's final
partial determination of adequacy of the State's Class I and Class II
municipal landfill program are:
Subpart A--General, but excluding 40 CFR Part 258.1(f)(3)--which
contains notification and compliance criteria that apply when the
owner or operator of a qualifying small landfill has knowledge of
ground-water contamination resulting from the unit.
Subpart B--Location Restrictions;
Subpart C--Operating Criteria;
Subpart D--Design Criteria;
Subpart E--Ground-Water Monitoring and Corrective Action; and
Subpart F--Closure and Post-Closure Care.
[[Page 55871]]
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. 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). Today's
determination of adequacy action takes effect on October 19, 1998.
Class III, Withdrawal of Tentative Partial Approval
Today's document withdraws the portions of the Tentative Partial
approval published in Federal Register of November 25, 1996, which
addressed the Class III municipal landfill components of Alaska's
program. This is being done because of the major changes that were
made by the State to its Class III MSW landfill program after EPA's
public comment period had ended on January 23, 1997.
Class III, New Tentative Partial Approval
Today's document publishes a new EPA tentative determination of
partial program adequacy for Alaska's Class III municipal solid
waste landfill permit program. Like the prior proposal, today's
tentative partial approval is based on Alaska's retaining the
existing ``sunset'' date of October 9, 2010, for Class III
landfills. A public comment period is being provided. In addition,
today's document acknowledges that Alaska can remove the 2010 Class
III upgrade date requirement, provided the removal is done via
certification and exemption under the authority granted by the Land
Disposal Program Flexibility Act of 1996.
The portions of 40 CFR Part 258 that are included in today's
tentative partial determination of adequacy of the State's Class III
municipal landfill program are:
Subpart A--General, including Alaska's 18 AAC Section 60.300(c)
with respect to the October 9, 2010, criteria for upgrade of Class
III landfills to Class II standards; but excluding 40 CFR Part
258.1(f)(3)--which contains notification and compliance criteria
that apply when the owner or operator of a qualifying small landfill
has knowledge of ground-water contamination resulting from the unit.
Subpart B--Location Restrictions;
Subpart C--Operating Criteria;
Subpart D--Design Criteria;
Subpart E--Ground-Water Monitoring and Corrective Action; and
Subpart F--Closure and Post-Closure Care.
Benefits of Partial Approvals
The flexibility elements in Part 258 are an important factor that
becomes available to a State upon approval by EPA of its solid waste
program. Not all existing State permit programs ensure compliance with
all provisions of the revised Federal Criteria. Were EPA to restrict a
State from submitting its application until it could ensure compliance
with the entirety of 40 CFR Part 258, many States would need to
postpone obtaining approval of their permit programs for a significant
period of time. This delay in determining the adequacy of the State
permit program, while the State revises its statutes or regulations,
could impose a substantial burden on owners and operators of landfills
because the State would be unable to exercise the flexibility available
to States with approved permit programs.
As State regulations and statutes are amended to comply with the
Federal MSWLF landfill regulations, unapproved portions of a partially
approved MSWLF permit program may be approved by the EPA. The State may
submit an amended application to EPA for review, and an adequacy
determination will be made using the same criteria used for the initial
application. This adequacy determination will be published in the
Federal Register which will summarize the Agency's decision and the
portion(s) of the State MSWLF permit program affected. It will also
provide for a public comment period. This future adequacy determination
will become effective 60 days following publication if no significant
adverse comments are received. If EPA receives adverse comments on its
adequacy determination, another Federal Register document will be
published either affirming or reversing the initial decision while
responding to the public comments. EPA plans to keep ADEC posted on the
timing, and progress, on these activities.
Requirements for Final Full Approval
To ensure compliance with all of the current Federal Criteria and
to obtain final full approval of Alaska's entire permit program for the
State's three Classes of municipal solid waste landfills, the Alaska
Department of Environmental Conservation must:
1. Add financial assurance requirements for all types of Class I
and Class II landfills, which meet one or more of the criteria in
Subpart G of Part 258.
2. Add a requirement for Class II and Class III landfills,
equivalent to the federal criteria, that an owner/operator of a
small landfill that qualifies under Sec. 258.1(f)(3) must notify the
State Director upon knowledge of groundwater contamination resulting
from the unit.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted today's action
from the requirements of Section 6 of Executive Order 12866.
Compliance With Executive Order 12875
Under Executive Order 12875, Enhancing Intergovernmental
Partnerships, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments. If
the mandate is unfunded, EPA must provide to the Office of Management
and Budget a description of the extent of EPA's prior consultation with
representatives of the affected State, local and tribal governments,
the nature of their concerns, copies of any written communications from
the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' 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 1(a) of
Executive Order 12875 do not apply to today's action.
Compliance With Executive Order 13045
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
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
[[Page 55872]]
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,
this approval does not impose any additional burdens on these 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 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: October 8, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 98-27970 Filed 10-16-98; 8:45 am]
BILLING CODE 6560-50-U
