[Federal Register Volume 60, Number 194 (Friday, October 6, 1995)]
[Rules and Regulations]
[Pages 52337-52342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24871]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[FRL-5312-9; F-95-AGDP-FFFFF]
RIN 2050-AE24
Delay of General Compliance Date for Small Municipal Solid Waste
Landfills Located in Either Dry or Remote Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On August 10, 1995, the U.S. Environmental Protection Agency
(EPA) published a proposed rule to provide to approved States and
Tribes the flexibility to determine alternative ground-water monitoring
requirements, on a site-specific basis, for small municipal solid waste
landfills (MSWLFs) that are located in either dry or remote areas
(hereafter referred to as ``qualifying small MSWLFs''). The proposed
rule also solicited comments on a two-year delay, until October 9,
1997, of the general compliance date of the MSWLF criteria for
qualifying small MSWLFs to allow EPA time to finalize the proposed
alternatives. Today's rule finalizes only the delay of the compliance
date.
EFFECTIVE DATE: The amendments in this final rule are effective October
2, 1995.
ADDRESSES: The public record for this rulemaking may be found in public
docket number F-95-AGDP-FFFFF. All dockets are available for viewing in
the RCRA Information Center (RIC), located in Room M2616, U.S. EPA, 401
M Street SW., Washington, DC 20460. The RIC is open from 9 a.m. to 4
p.m., Monday through Friday, except for Federal holidays. The public
must make an appointment to view docket materials. Call 202-260-9327
for an appointment. Copies cost $0.15 per page for materials exceeding
100 pages.
FOR FURTHER INFORMATION CONTACT: For general questions on this rule,
contact the RCRA/Superfund Hotline at 1-800-424-9346, TDD 1-800-553-
7672 (hearing impaired); in the Washington, DC metropolitan area the
number is 703-412-9810, TDD 703-412-3323. For technical questions,
contact Mr. Andrew Teplitzky (703-308-7275) or Mr. Allen Geswein (Phone
703-308-7261): Office of Solid Waste, U.S. Environmental Protection
Agency, Mail Code 5306W, 401 M St. SW., Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. 40 CFR Part 258 and Small Landfill Exemption
B. Summary of Proposed Rule on Alternative Ground-Water
Monitoring and Delay of General Compliance Date
C. Details of Proposal to Delay the General Compliance Date
III. Response to Comments and Analysis of Issues Related to the
Extension of the General Compliance Date for Qualifying Small MSWLFs
A. Comments Regarding the Two-Year General Compliance Date
Extension
B. Comments Regarding the Two-Year Limited Extension
IV. Summary of This Rule
V. Consideration of Issues Related to Environmental Justice
VI. Impact Analysis
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Executive Order 12875
E. Unfunded Mandates
I. Authority
The Agency is promulgating these regulations under the authority of
Sections 1008(a)(3), 2002(a), 4004(a), and 4010(c) of the Resource
Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6907(a)(3),
6912(a), 6944(a), and 6949a(c).
II. Background
A. 40 CFR Part 258 and Small Landfill Exemption
When the Agency promulgated the solid waste disposal facility
criteria final rule on October 9, 1991 (56 FR 50978), it included an
exemption for owners and operators of certain small MSWLF units from
the design and ground-water monitoring requirements of the criteria. To
qualify for the exemption, the small landfill could only accept less
than twenty tons of municipal solid waste per day (based on an annual
average), have no evidence of existing ground-water contamination, and
either: (1) serve a community that experiences an annual interruption
of at least three consecutive months of surface transportation that
prevents access to a regional waste management facility, or (2) be
located in an area that annually receives less than or equal to 25
inches of precipitation and serve a community that has no practicable
waste management alternative. In adopting this limited exemption, the
Agency believed it had complied with the statutory requirement to
protect human health and the environment, taking into account the
practicable capabilities of small landfill owners and operators.
In January, 1992, the Sierra Club and the Natural Resources Defense
Council (NRDC) filed a petition with the U.S. Court of Appeals,
District of Columbia Circuit, for review of the Subtitle D criteria. On
May 7, 1993, the Court of Appeals determined in Sierra Club v. United
States Environmental Protection
[[Page 52338]]
Agency 992 F.2d 337 (D.C.Cir. 1993) that under RCRA section 4010(c),
the only factor EPA could consider in determining whether facilities
must monitor ground-water was whether such monitoring was ``necessary
to detect contamination,'' not whether such monitoring is
``practicable.'' Thus, the Court vacated the small landfill exemption
as it pertained to ground-water monitoring, and remanded that portion
of the final rule to the Agency for further consideration.
Consequently, as part of the Agency's October 1, 1993 final rule
delaying the effective date of the MSWLF criteria (58 FR 51536; October
1, 1993), EPA rescinded the exemption from ground-water monitoring for
qualifying small MSWLFs. Also at that time, EPA delayed the effective
date of the MSWLF criteria for qualifying small MSWLFs for two years
(until October 9, 1995) to allow owners and operators of such small
MSWLFs adequate time to decide whether to continue to operate in light
of the Court's ruling, and to prepare financially for the added costs
if they decided to continue to operate. This additional two-year period
also was intended to provide time for EPA to determine if there are
practical and affordable alternative ground-water monitoring systems or
approaches that are adequate to detect contamination.
B. Summary of Proposed Rule on Alternative Ground-Water Monitoring and
Delay of General Compliance Date
Since October 1993, the Agency has been collecting information and
soliciting comment on cost-effective ground-water monitoring
alternatives for small MSWLFs located in dry or remote locations. On
August 10, 1995, EPA published a proposed rule (60 FR 40799) to provide
to approved States and Tribes the flexibility to determine alternative
ground-water monitoring requirements, on a site-specific basis, for
qualifying small MSWLFs. Under this proposal, approved States and
Tribes may consider site-specific alternatives to conventional ground-
water monitoring that are relatively low in cost and will ensure
ground-water contamination is detected in a timely manner. The August
10, 1995 proposed rule also requested comment on an extension of the
general compliance date for qualifying small MSWLFs to allow time for
the Agency to act on the proposed alternative standards.
The Agency established separate dockets and comment periods for the
two aspects of this proposed rule. The docket number for the
alternative ground-water monitoring requirements is F-95-AGAP-FFFFF and
the comment period for this aspect of the August 10 proposal ends on
November 8, 1995. The docket number for the extension is F-95-AGDP-
FFFFF and the comment period for this aspect of the proposal ended on
September 8, 1995. As noted in the August 10, 1995 proposed rule, the
Agency established a shorter comment period for the extension to
facilitate finalization of an extension by the time the current
compliance date expires on October 9, 1995. Therefore, today's final
rule pertains only to the extension of the compliance date; the Agency
plans to publish a separate final rule pertaining to ground-water
monitoring alternatives by October 1996.
C. Details of Proposal To Delay the General Compliance Date
In the August 10, 1995 proposed rule, the Agency requested comment
on two approaches for extending the compliance date of the Part 258
criteria for qualifying small MSWLFs. The following discussion provides
an overview of these two approaches.
1. Two-year Extension of the General Compliance Date
The first approach would provide a two-year extension of the
general compliance date for qualifying small MSWLFs, from October 9,
1995 to October 9, 1997. Thus, qualifying small MSWLF units would not
become subject to compliance with any of the Part 258 requirements
until October 9, 1997 (one year after the alternative ground-water
monitoring standards are expected to be finalized). At that time, these
MSWLF units would be required to be in compliance with all applicable
requirements of Part 258, including the ground-water monitoring (or
alternative ground-water monitoring) requirements and financial
assurance requirements. Should a qualifying small MSWLF unit cease
receipt of waste prior to October 9, 1997, the owner/operator of that
unit need only comply with the final cover requirements as specified in
Sec. 258.60(a). The final cover would have to be installed by October
9, 1998.
2. Limited Extension for Only Ground-water Monitoring and Financial
Assurance
The second approach proposed in the August 10 proposed rule would
maintain a general compliance date for qualifying small landfills of
October 9, 1995, but would extend the effective date of ground-water
monitoring and financial assurance until October 9, 1997. Under this
alternative approach, an owner/operator that accepted waste after
October 9, 1995 would have to comply with the location restrictions and
operating requirements. Should that owner/operator cease receipt of
waste by October 9, 1997 and place final cover on the landfill by
October 9, 1998, that facility would be exempt from the ground-water
monitoring requirements during the post-closure care period and from
the financial assurance requirements for closure and post-closure care.
III. Response to Comments and Analysis of Issues Related to the
Extension of the General Compliance Date for Qualifying Small MSWLFs
By the close of the public comment period, the Agency received 77
comments addressing the August 10 proposed extension of the compliance
date. All of the comments received in response to this proposed rule
were supportive of some type of an extension; i.e., either in favor of
the general compliance date extension or the limited extension. None of
the commenters suggested that qualifying small MSWLFs become subject to
all of the requirements of 40 CFR Part 258 on October 9, 1995. Overall,
72 of the 77 comments were supportive of the two-year general
compliance date extension, four commenters were supportive of the two-
year limited extension, and one commenter did not take a position. The
Agency also received and considered a number of comments after the
close of the comment period; all of these comments were supportive of
the two-year general compliance date delay. The following section
summarizes and addresses the major public comments. A discussion of,
and response to, the comments can be found in the docket for this
rulemaking (95-AGDP-FFFFF).
A. Comments Regarding the Two-Year General Compliance Date Extension
Commenters expressing support for the general compliance date
extension cited a number of reasons for their position. Many of the
commenters in favor of the two-year general compliance date extension
believed a full extension was necessary so that owners/operators of
qualifying small MSWLFs could make economically and environmentally
sound decisions regarding closure versus continued operation of their
landfill after EPA has issued its final requirements for ground-water
monitoring.
These commenters reaffirm, in part, the Agency's reasoning for an
extension of the compliance date. As stated in the August 10 proposed
rule, the Agency believes that qualifying small MSWLFs should be able
to consider all site-specific flexibilities allowed under a
[[Page 52339]]
final rule on alternatives to ground-water monitoring in determining
whether to remain in operation past the general compliance date of the
regulation.
The majority of commenters also supported the two-year general
compliance date extension because it would allow them to concentrate
their efforts on a number of related activities: exploring alternative
waste management options, completing arrangements for regional
agreements, determining the feasibility of employing alternative
ground-water monitoring technologies at their sites, and investigating
the possibility of a successful no-migration demonstration under
Sec. 258.50(b) to become exempt from ground-water monitoring
requirements. The Agency is aware, based on public comment, that many
of these qualifying small MSWLF owners/operators simply do not have
access to the resources and expertise to begin implementing the
landfill criteria while also carrying out these other activities.
Based on the comments received, the Agency is encouraged by the
commitment of qualifying small MSWLF owners/operators to either come
into compliance with Part 258 or find alternative means of waste
management. During this next two-year period, the Agency intends to
issue final regulations governing alternative ground-water monitoring
so that qualifying small MSWLF owners/operators may proceed with
certainty. At the same time, during this extension period, the Agency
strongly encourages qualifying small MSWLFs to complete their plans for
safe management of their municipal solid waste.
A number of commenters from the State of Alaska, including the
State Department of Environmental Conservation (DEC), submitted
comments in favor of the two-year general compliance date extension.
Alaska is important because the Agency estimates that nearly forty
percent of all the qualifying small MSWLFs in the U.S., and virtually
all of the MSWLFs considered ``remote,'' are located in the State of
Alaska. These commenters provided a number of reasons why the extension
is so important to qualifying small MSWLFs in Alaska.
First, Alaska is still in the process of acquiring MSWLF permit
program approval. Until the State is approved, owners/operators of
MSWLFs in Alaska are not able to take advantage of the flexibility
available only to owners/operators in approved States and Tribes. For
example, owners/operators may not use an alternative daily cover
material unless that alternative is approved by the Director of an
approved State/Tribe. If the operating requirements in the Part 258
criteria became effective (as in the case of the proposed limited
extension), owners/operators in Alaska could not avail themselves of
that flexibility. The State DEC contends that the two-year extension
will allow the State time to complete the program approval process,
thereby allowing communities, which generally have no other option but
to operate their own landfills, to take advantage of the flexibility
possible in approved States.
The Alaska State DEC described how location restrictions and land
ownership problems in Alaska are complicating implementation of the
MSWLF criteria for a number of communities who intend to upgrade their
facilities. The State DEC contends that it is difficult to find land
that is not in a flood plain, wetland, or adjacent to an airport, and,
once a possible landfill location has been identified, land ownership
becomes a problem. Because over 90 percent of the land in Alaska is
owned by State or federal governments, with less than one-half of one
percent in private ownership, and property transfer from public to
private use is a long and cumbersome process, Alaska DEC contends that
more time is needed for these communities to secure an alternative
site. The DEC contends that requiring compliance at this time will
force closure of many qualifying small MSWLFs, creating a significant
environmental crisis in the State.
The Agency agrees with the Alaska commenters. Given this high
concentration of qualifying small MSWLFs in the State, and considering
the complicating factors unique to the State, the Agency believes these
comments, as well as similar ones from the majority of other
commenters, fully support and justify an extension of all of the Part
258 requirements. The Agency continues to be encouraged with the
progress that the State is making towards completion of the permit
program approval process and by the commitment on the part of the
Alaskan villages in working towards safe solid waste disposal.
The Agency received several comments from Tribes in support of the
two-year general compliance date extension. These commenters expressed
many of the same concerns and views expressed by other commenters who
are in favor of the two-year general compliance extension. In addition
to these concerns, the Agency understands that many of the Tribes in
the U.S. are located in the sparsely populated arid west in areas that
are not conducive to regionalization and that many of these Tribes have
not yet sought approval for a Tribal MSWLF permit program and therefore
will not be able to take advantage of the flexibility in the Part 258
criteria that is available only to approved States and Tribes.
Therefore, the Agency believes that many of these Tribes could use the
additional time to consider applying for permit program approval or
secure alternative waste management opportunities.
Finally, several commenters indicated that the two-year general
compliance date extension would simply be easier for qualifying small
MSWLF owners/operators to understand and implement than the alternative
extension (i.e., an extension for ground-water monitoring and financial
assurance only) discussed in the August 10, 1995 proposed rule. The
Agency agrees with these commenters. In fact, while reviewing the
public comments received in response to the proposed rule, the Agency
found that a number of the commenters expressed some confusion with the
two proposed extension options. The Agency does not believe that a
simplified approach to an extension should stand alone as the sole
reason for choosing the two-year general compliance date extension.
However, in light of the potential confusion associated with the
implementation of the alterative approach, together with all the other
reasons cited in favor of the general extension, the Agency has decided
to finalize the two-year extension of all provisions of Part 258 for
qualifying small MSWLFs.
Four commenters expressed opposition to the two-year general
compliance date extension. One commenter, a State environmental agency,
expressed concern that a two-year general compliance date extension
would encourage some of the communities that closed their landfills to
join a regional facility to reopen their landfills and cancel their
disposal contracts. The commenter indicated that this would disrupt the
regional planning and capacity-building efforts already accomplished
and could impair the ability of regional facilities to survive.
EPA is sympathetic to these concerns and recognizes that some
qualifying small MSWLFs may opt to withdraw, perhaps temporarily, from
a regional facility given today's two-year compliance date extension.
However, the Agency did receive comments from two other State
environmental agencies indicating that the reopening of landfills and
subsequent withdrawal from regional contracts may not be a wide-spread
phenomenon. One State environmental agency indicated that the regional
commitments made by small
[[Page 52340]]
communities would not necessarily dissolve as a result of a two-year
general compliance date extension. This State agency suggested that
while the two-year general compliance date extension may delay certain
regional projects, the extension would not eliminate the long-term
finalization of such plans, if regionalization is in fact the
appropriate choice in a certain area. This State agency, as well as a
number of other commenters, added that the extra time will allow
owners/operators to study their alternatives more fully and make better
decisions.
A second State environmental agency commented that for landfills
already closed, substantial effort would be required to reopen these
facilities. This State also commented that communities that had
previously been served by these closed landfills have already developed
practical methods to dispose of their waste, therefore making it
difficult for the MSWLF owner/operator to argue that the community has
no practicable alternative to manage solid waste. The Agency agrees
with this reasoning. To qualify for the small landfill exemption, the
community must demonstrate that it has no practicable alternative to
operating their own landfill. Many of the closed landfills have likely
closed because they found it more practicable to join a regional
facility than operate their own.
Based on many of the public comments received, the Agency generally
is impressed by the progress that owners/operators of many qualifying
small MSWLFs have made in their efforts to regionalize their waste
management practices. The Agency encourages these facilities to
continue honoring their regional commitments wherever practicable and
does not believe that the two-year general compliance date extension
will have a significant impact on efforts to develop regional
arrangements. The Agency also wishes to remind owners/operators that
have closed their MSWLFs and now wish to reopen to take advantage of
today's two-year extension of the general compliance date must continue
to demonstrate, pursuant to Sec. 251.1(f)(2), that their landfill meets
the criteria for the small landfill exemption described in
Sec. 258.1(f)(1).
Two commenters (one private MSWLF owner/operator and one State
environmental agency) explained that a two-year general compliance date
extension would be unfair to those landfills that have decided to
remain open and expend the resources to comply with the MSWLF criteria.
The Agency understands the position of these commenters. Furthermore,
the Agency is encouraged by the private MSWLF owner's commitment to
regulatory compliance. The Agency wishes to stress that today's
extension does not imply that the Agency will eventually exempt
qualifying small MSWLFs from the requirements of Part 258; it is simply
a delay of the compliance date. At the time the new compliance date of
October 9, 1997, becomes effective, all qualifying small MSWLFs will be
required to comply with all applicable requirements of Part 258.
Two commenters discussed the environmental consequences of a
general compliance date extension. One of the commenters argued that
qualifying small MSWLFs should comply with a baseline level of
environmental protection and proper operating practices that would be
required under the limited extension. The other commenter, a State
environmental agency, raised concerns that a two-year general extension
could wipe out many years of progress made towards cleaning up small
landfills that, in the past, have performed open burning and illegally
disposed of ``dead animals, septage, liquids, and other `unacceptable
wastes.' ''
The Agency appreciates the concerns expressed by these two
commenters. However, the Agency wishes to clarify that qualifying small
MSWLFs that remain open during the two-year delay period should be in
compliance with a number of location and operating requirements that
have been federal standards since 1979 when the Criteria for
Classification of Solid Waste Disposal Facilities and Practices were
promulgated under 40 CFR Part 257. Such requirements include location
restrictions related to floodplains and airports, as well as
operational requirements regarding surface water discharges, disease
vector control, daily cover, methane gas generation, access control,
and open burning. Qualifying MSWLF owners/operators should continue to
employ these proper operating practices at their facilities during the
two-year general compliance date extension. Additionally, States and
Tribes may choose to impose additional requirements as warranted and
necessary to protect human health and the environment.
The Agency is concerned about the receipt of ``unacceptable''
wastes at qualifying small MSWLFs. The Agency notes that the acceptance
of bulk, noncontainerized waste is restricted under the Part 258
regulations and owners/operators of qualifying small MSWLFs are
encouraged to abide by this restriction during the two-year delay
period. As discussed in the Agency's MSWLF criteria final rule preamble
(56 FR 50978, October 9, 1991), restriction of noncontainerized bulk
liquids should minimize the amount of leachate generation in the
landfill. Additionally, qualifying small MSWLFs that accept regulated
quantities of hazardous waste could become subject to the requirements
of the hazardous waste regulations under Subtitle C of RCRA.
Finally, a State environmental agency commented that a two-year
delay of the general compliance date will provide small communities
with a false sense that the extension of the federal deadline provides
an automatic extension to State deadlines where a State wishes to
require earlier compliance dates. The Agency understands the concerns
expressed by this commenter; however, the Agency wishes to clarify that
today's rule is not intended to prevent States and Tribes from being
more stringent than the federal regulations, including the
establishment of earlier compliance dates.
B. Comments Regarding the Two-Year Limited Extension
The Agency received four comments in support of the alternative
two-year limited extension for ground-water monitoring and financial
assurance. These commenters generally declared their support for the
two-year limited delay by expressing their concerns with the two-year
general compliance date delay. These concerns have been noted and
addressed in section III.A of today's preamble. Beyond their concerns
with the two-year general delay, the four commenters did not provide
major compelling arguments based solely on the merits of a two-year
limited extension. A discussion of, and response to, these four
comments can be found in the docket for this rulemaking (95-AGDP-
FFFFF).
IV. Summary of This Rule
Today's final rule extends the general compliance date of the MSWLF
criteria for two years, from October 9, 1995 to October 9, 1997, for
qualifying small MSWLFs. This means that qualifying small MSWLFs are
not subject to the requirements of 40 CFR Part 258 until October 9,
1997, so long as the MSWLF continues to qualify for the small landfill
exemption in 40 CFR Sec. 258.1(f)(1). Should a MSWLF no longer meet the
conditions of Sec. 258.1(f)(1), that landfill would become subject to
all of the requirements of 40 CFR Part 258, including the design and
ground-water monitoring requirements.
[[Page 52341]]
The Agency wishes to remind owners/operators of qualifying small MSWLFs
that, until October 9, 1997, their MSWLFs are subject to the
requirements of 40 CFR Part 257. Additionally, owners/operators of
qualifying small MSWLFs may be subject to more stringent State/Tribal
requirements; therefore, these owners/operators are encouraged to work
with their respective State/Tribal programs to understand the
requirements for their facilities.
As a result of today's final rule extending the general compliance
date for two years for qualifying small MSWLFs, the Agency is making
final conforming changes to appropriate portions of the regulatory
language in 40 CFR Part 258. First, Sec. 258.1(d)(3) and (e)(4) are
revised to reflect the new compliance date of October 9, 1997. Second,
the definition of ``New MSWLF unit'' under Sec. 258.2 is modified to
account for the new general compliance date of October 9, 1997. Third,
the applicability section under Section 258.50(e) is revised by
removing paragraphs (1) and (2), which allowed for two different
effective dates for the ground-water monitoring requirements based on
the distance of the MSWLF unit to a drinking water intake. Today's
final rule creates one effective date (i.e., October 9, 1997) for
ground-water monitoring for all qualifying small MSWLFs, regardless of
their distance to a drinking water intake.
Finally, the Agency, wishes to clarify that with respect to
qualifying small MSWLFs, today's final rule overrides a recent Agency
final rule that extended the effective date of the financial assurance
requirements, until April 9, 1997, for all MSWLFs subject to regulation
under 40 CFR Part 258 (60 FR 17649, April 7, 1995). Today's rule delays
the compliance date of the financial assurance requirements for
qualifying small MSWLFs until October 9, 1997; the compliance date of
the financial assurance requirements for all other MSWLFs continues to
be April 9, 1997. Today's final rule amends the financial assurance
regulatory language in Sec. 258.70(b) and Sec. 258.74(a)(5), (b)(1),
(c)(1), and (d)(1) to clarify that the compliance date of the financial
assurance requirements for qualifying small MSWLFs is October 9, 1997.
V. Consideration of Issues Related to Environmental Justice
EPA is committed to addressing environmental justice concerns and
is assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities.
The Agency believes that today's rule extending the general
compliance date for qualifying small MSWLFs will not have a
disproportionately high and adverse environmental or economic impact on
any minority or low-income group, or on any other type of affected
community. The Agency believes that this rulemaking will enable some
minority and/or low-income communities to continue to be served by a
local landfill while they study their waste management alternatives in
order to make an informed decision on how to provide safe management of
municipal solid waste at the lowest possible cost to residents,
including minority and low income residents.
VI. Impact Analysis
A. Executive Order 12866
Under Executive Order 12866, EPA must determine whether a
regulatory action is significant and therefore subject to OMB review
and the other provisions of the Executive Order. A significant
regulatory action is defined by Executive Order 12866 as one 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 entitlements, grants,
user fees, or loan programs or rights and obligations or 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
Executive Order 12866.
The Agency believes that this final rule does not meet the
definition of a major regulation. Thus, the Agency is not conducting a
Regulatory Impact Analysis, and today's final rule is not subject to
review by the Office of Management and Budget (OMB) based upon
Executive Order 12886.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally
requires an agency to prepare, and make available for public comment, a
regulatory flexibility analysis that describes the impact of a proposed
or final rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have significant economic impact on a
substantial number of small entities.
The effect of this final rule is to provide small entities with
additional time to meet the requirements of Part 258. Therefore,
pursuant to 5 U.S.C. 605b, the Agency believes that this final rule
will not have a significant adverse 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 final
rule.
D. Executive Order 12875
Under Executive Order 12875, Federal agencies are charged with
enhancing intergovernmental partnerships by allowing State and local
governments the flexibility to design solutions to problems the
citizenry is facing. Executive Order 12875 calls on Federal agencies to
either pay the direct costs of complying with Federal mandates or to
consult with representatives of State, local, or tribal governments
prior to formal promulgation of the requirement. The Executive Order
also relates to increasing flexibility for State, Tribal, and local
governments through waivers. Today's final rule delaying the general
compliance date of the MSWLF criteria does not impose unfunded federal
mandates on State, Tribal, and local governments and is being
undertaken to ensure that EPA is providing maximum flexibility to
States, Tribes, and local governments. Additionally, the Agency has
maintained dialog with States, Tribes, and local governments regarding
ways of ensuring appropriate flexibility while maintaining protection
of human health and the environment for small MSWLFs, particularly
those in arid or remote locations. Therefore, the Agency believes that
this consultation with States, Tribes, and local governments, in
addition to the 30-day public comment period provided in the proposed
rule, satisfies the requirement of this Executive Order.
E. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L
104-4, establishes requirements for federal
[[Page 52342]]
agencies to assess the effects of regulatory actions on state, local,
and tribal governments, and the private sector. Under Section 202 of
the UMRA, EPA generally must prepare a written statement, including a
cost-benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, Section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of
alternatives and adopt the least costly, most cost effective or least
burdensome alternative that achieves the objective of the rule. The
provisions of Section 205 do not apply when they are inconsistent with
applicable law. Moreover, Section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under Section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector.
List of Subjects in 40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal
Dated: October 2, 1995.
Carol M. Browner,
Administrator.
For reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is 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 6949a(c);
33 U.S.C. 1345 (d) and (e).
2. Section 258.1 is amended by revising paragraphs (d)(3) and
(e)(4) to read as follows:
Sec. 258.1 Purpose, scope, and applicability.
* * * * *
(d) * * *
(3) MSWLF units that meet the conditions of paragraph (f)(1) of
this section and receive waste after October 9, 1991 but stop receiving
waste before October 9, 1997, are exempt from all the requirements of
this part 258, except the final cover requirement specified in
Sec. 258.60(a). The final cover must be installed by October 9, 1998.
Owners or operators of MSWLF units described in this paragraph that
fail to complete cover installation by October 9, 1998 will be subject
to all the requirements of this part 258, unless otherwise specified.
* * * * *
(e) * * *
(4) For a MSWLF unit that meets the conditions for the exemption in
paragraph (f)(1) of this section, the compliance date for all
applicable requirements of part 258, unless otherwise specified, is
October 9, 1997.
* * * * *
3. Section 258.2 is amended by revising the definition of ``new
MSWLF unit'' to read as follows:
Sec. 258.2 Definitions.
* * * * *
New MSWLF unit means any municipal solid waste landfill unit that
has not received waste prior to October 9, 1993, or prior to October 9,
1997 if the MSWLF unit meets the conditions of Sec. 258.1(f)(1).
* * * * *
4. Section 258.50 is amended by revising paragraph (e) to read as
follows:
Sec. 258.50 Applicability.
* * * * *
(e) Owners and operators of all MSWLF units that meet the
conditions of Sec. 258.1(f)(1) must comply with all applicable ground-
water monitoring requirements of this part by October 9, 1997.
* * * * *
5. 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, 1997
except for MSWLF units meeting the conditions of Sec. 258.1(f)(1), in
which case the effective date is October 9, 1997.
6. Section 258.74 is amended by revising paragraph (a)(5), the
third sentence of paragraph (b)(1); the second sentence of paragraph
(c)(1); and the second sentence of paragraph (d)(1) 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, 1997, or October 9, 1997 for
MSWLF units meeting the conditions of Sec. 258.1(f)(1)), 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.
* * * * *
(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, 1997, or October 9, 1997 for MSWLF units meeting the
conditions of Sec. 258.1(f)(1)), 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, 1997, or October 9, 1997 for MSWLF units meeting
the conditions of Sec. 258.1(f)(1)), 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, 1997, or October 9, 1997 for MSWLF units meeting
the conditions of Sec. 258.1(f)(1)), 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. 95-24871 Filed 10-5-95; 8:45 am]
BILLING CODE 6560-50-P
