[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Notices]
[Pages 60000-60005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29928]
[[Page 59999]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
Alaska: Partial Program Adequacy Tentative Determination of State
Municipal Solid Waste Landfill Permit Program; Notice
Federal Register / Vol. 61, No. 228 / Monday, November 25, 1996 /
Notices
[[Page 60000]]
ENVIRONMENTAL PROTECTION AGENCY
[FRL-5654-6]
Alaska: Partial Program Adequacy Tentative Determination of State
Municipal Solid Waste Landfill Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of tentative determination on the Alaska Department of
Environmental Conservation Application for a Partial Program Adequacy
Determination, Public Hearing and public comment period.
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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments (HSWA) of 1984, requires States to develop and implement
permit programs to ensure that municipal solid waste landfills (MSWLFs)
which may receive hazardous household waste or small quantity generator
waste will comply with the revised Federal MSWLF Criteria (40 CFR Part
258). RCRA Section 4005(c)(1)(C) requires the Environmental Protection
Agency (EPA) to determine whether States have adequate ``permit''
programs for MSWLFs, but does not mandate issuance of a rule for such
determinations. On January 26, 1996, EPA published in the Federal
Register at 61 FR 2584 a proposed State/Tribal Implementation Rule
(STIR) that provides procedures by which EPA will approve, or partially
approve, State/Tribal landfill permit programs. The EPA has approved
and will continue to approve adequate State/Tribal MSWLF permit
programs as applications are submitted. Thus, these approvals are not
dependent on final promulgation of the STIR. Prior to the final
promulgation of STIR, adequacy determinations will be made based on the
statutory authorities and requirements. In addition, States/Tribes may
use the proposed STIR as an aid in interpreting these requirements. The
EPA believes that early approvals have an important benefit. Approved
State/Tribal permit programs provide interaction between the State/
Tribe and the owner/operator regarding site-specific permit conditions.
Only those owners/operators located in States/Tribes with approved
permit programs can use the site-specific flexibility provided by Part
258 to the extent the State/Tribal permit program allows such
flexibility. EPA notes that regardless of the approval status of a
State/Tribe and the permit status of any facility, the federal landfill
criteria will apply to all permitted and unpermitted MSWLF facilities.
The Alaska Department of Environmental Conservation (ADEC),
Division of Environmental Health (DEH) applied on February 12, 1996 for
a partial determination of adequacy under section 4005 of RCRA. EPA
reviewed Alaska's application and made a tentative determination of
adequacy for those portions of ADEC's MSWLF permit program that are
adequate to assure compliance with the federal MSWLF Criteria. The
portions of the Alaska program in today's tentative approval are
described later in this notice. ADEC plans to revise the remainder of
its permit program all at one time. This will be done once EPA has
finalized its proposed rule on financial assurance mechanisms for local
government landfills, to assure complete compliance with the revised
federal MSWLF Criteria and gain full program approval. Alaska's
application for partial program adequacy determination is available for
public review and comment.
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.
Although RCRA does not require EPA to hold a public hearing on a
determination to approve any State/Tribe's MSWLF program, EPA Region 10
is offering the opportunity for a public hearing on this determination
on the date given below in the DATES section.
DATES: All comments on Alaska's application for a partial determination
of adequacy must be received by EPA Region 10 by the close of business
on January 23, 1997. If, and only if, sufficient interest in having a
public hearing is requested by Tuesday, December 31, 1996, a public
hearing to receive oral and written testimony on EPA's tentative
determination will be held on Thursday, January 23, 1997 from 7:00 p.m.
until 9:00 p.m. The hearing, if held, will be at the Federal Building,
222 West 7th Avenue, Anchorage, Alaska, 99513, in Room 143. Members of
ADEC will attend EPA's public hearing.
Requests for a public hearing must in writing and must be received
by the EPA contact listed below before the close of business on
Tuesday, December 31, 1996, and should include a statement on the
writer's reason for wanting a public hearing. EPA will determine on
Monday, January 6, 1997, if a public hearing is warranted. After that
date, anyone may contact the EPA person listed in the CONTACTS section
to find out whether 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)-269-7500; and at 610 University Avenue, Fairbanks, AK 99709,
Attn: Ms. Kris McCumby, (907)-451-2360; 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: U.S.
EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101, Attn: Mr. Steven
B. Sharp, mail code (WCM-128), fax (206)-553-8509, telephone (206)-553-
6517.
SUPPLEMENTARY INFORMATION:
A. Background
On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40
CFR Part 258). Subtitle D of RCRA, as amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA), requires States to develop
permitting programs to ensure that MSWLFs comply with the Federal
Criteria under Part 258. Subtitle D also requires in section 4005 that
EPA determine the adequacy of State municipal solid waste landfill
permit programs to ensure that facilities comply with the revised
Federal Criteria. To fulfill this requirement, the EPA has proposed in
the Federal Register on January 26, 1996, the State/Tribal
Implementation Rule (STIR). The rule specifies the requirements which
State/Tribal programs must satisfy to be determined adequate.
EPA proposed in the STIR to allow partial approvals if: (1) The
Regional Administrator determines that the State/Tribal permit program
largely meets the requirements for ensuring compliance with Part 258;
(2) changes to a limited part(s) of the State/Tribal permit program are
needed to meet these requirements; and, (3) provisions not
[[Page 60001]]
included in the partially approved portions of the State/Tribal permit
program are a clearly identifiable and separable subset of Part 258.
These requirements, as in the proposed STIR, will address the potential
problems posed by the dual State/Tribal and Federal regulatory controls
following the October 9, 1993 effective date of the Federal
regulations. On that date, Federal rules covering any portion of a
State/Tribe's program that had not received EPA approval became
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/Tribal 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/Tribal
permit program that meet the requirements and provide the State/Tribe
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/Tribal permitting agency to take advantage of the Criteria's
flexibility for those portions of the program which have been approved.
As provided in the October 9, 1991 municipal landfill rule, EPA's
Subtitle D standards took effect nationwide in October 1993. Extensions
to certain portions were subsequently postponed, with most all of the
EPA standards becoming effective during or before 1997. Consequently,
any portions of the Federal Criteria which are not included in an
approved State/Tribal program by October 1993, or applicable later
dates, would apply directly to the owner/operator without any approved
State/Tribal flexibility. On April 7, 1995, EPA issued a Federal
Register Notice extending the effective date of the 40 CFR Part 258
Subpart G requirements relating to Financial Assurance until April 9,
1997.
EPA intends to approve portions of State/Tribal MSWLF permit
programs prior to the promulgation of the final STIR. EPA interprets
the requirements for States or Tribes to develop ``adequate'' programs
for permits or other forms of prior approval to impose several minimum
requirements. First, each State/Tribe must have enforceable standards
for new and existing MSWLFs that are technically comparable to EPA's
revised MSWLF criteria. Next, the State/Tribe 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/Tribe 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/Tribe
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.
EPA Regions will determine whether a State/Tribe has submitted an
``adequate'' program based on the interpretation outlined above. EPA
expects States/Tribes 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/Tribes 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 STIR
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 broadly revised its regulations. Concurrently, ADEC
reorganized in a manner that is already showing results in terms of
greater communication with small landfills. The Division of
Environmental Health of ADEC has the lead role in solid waste
management and oversees the entire program. It also receives assistance
from the statewide Public Service Office 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 and also addition of
requirements that apply to conditionally exempt small quantity
generator (CESQG) hazardous waste disposal. Alaska went public with its
proposed regulations in September 1993 and, after 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.
Today's tentative approval is an endorsement by EPA of the proficiency
of Alaska's program.
On February 12, 1996, Region X 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. EPA subsequently began its in-depth review and has
tentatively determined that most portions, as noted in the discussions
which follow, of the State's municipal solid waste landfill (MSWLF)
program will 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 for EPA approval at this time.
Alaska's Department of Environmental Conservation (ADEC) informed
EPA in the cover letter of its application that its solid waste
regulations presently do not include the financial assurance provisions
of 40 CFR Part 258, Subpart G, for municipal solid waste landfills
(MSWLFs) because EPA has not yet finalized its proposed financial
assurance alternatives that will allow local government financial
tests. Therefore, Alaska has requested partial approval (instead of
full approval) of its solid waste program at this time so that it may
benefit from the flexibility in the federal criteria that Part 258
allows only to approved States/Tribes.
In addition, during the review process, EPA and ADEC have concluded
that a small number of portions of the ADEC program requirements do not
mirror the federal solid waste program criteria of 40 CFR 258 or the
STIR manual and rule. These portions are discussed in following
paragraphs of this notice. The state's practices or policies on these
portions meet the goals and standards of the STIR guidance and Part 258
on a performance basis. Therefore, they are not being excluded from
today's tentative approval.
Federal law requires that all municipal solid waste (MSW),
including non-hazardous MSW incinerator ash, must be disposed in a
landfill which meets the 40 CFR Part 258 criteria. The portions of the
Alaska Program in today's tentative approval are described later in
this notice. Alaska's application for partial program adequacy
determination is available for public review and comment.
Alaska's schedule is to achieve final full approval of its solid
waste program within two years of EPA's promulgation of a final partial
approval. In the covering letter of its application, ADEC cites that it
will revise its regulations
[[Page 60002]]
and apply for full approval soon after EPA has promulgated the final
version of its Local Government Financial Assurance rule. EPA expects
to finalize this rule by the end of 1996, which Alaska believes would
allow time for ADEC to change its 18 AAC 60 criteria to include
financial assurance mechanisms as a requirement for MSW landfills--and
meet this schedule. In addition, the planned minor regulatory changes
that are discussed in this notice 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 tentative 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 Part 503 and related parts, if any, of Title 40 of
the Code of Regulations. The STIR process for State approval focuses on
the municipal solid waste program of Alaska that are subject to
Subtitle D of the Resource Conservation and Recovery Act (RCRA) without
expressing any opinion on the other programs that are addressed in
Alaska's waste management rule (18 AAC 60) that went into effect on
January 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 tentative 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. At present, the lands acknowledged to be Indian Country
are the Annette Island Reserve, and trust lands identified as Indian
Country by the United States in Klawock, Kake, and Angoon. By
tentatively 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.
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 does not include
all of the Sec. 258.1(f)(1) qualifying criteria for small landfills. In
addition, 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, 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 date 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 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
statute, Public Law 104-119, entitled the ``Land Disposal Program
Flexibility Act of 1996'' (LDP Flexibility Act), became effective on
March 26, 1996, as an amendment to the Solid Waste Disposal Act.
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
notice.
Subsection (5) of Section 3(a) of the LDP Flexibility 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(c) of SWDA.
Therefore, Class II and Class III landfills that receive an
exemption by the Governor from some or all of the Part 258 criteria
will not be subject to the citizens suit provision of Section 7002 of
RCRA as to the Governor's exemptions.
Under this new Act, certain small landfills can be exempted from
the need to upgrade to the federal Part 258 standards until an
indefinite time in the future. ADEC cites in the narrative summary of
its application for program approval, and has further clarified in
subsequent conferences with Region 10, that the State's intention is to
remove the 2010 deadline from its existing regulation if Alaska's
Governor exempts Class III landfills from requirements that distinguish
Class II facilities from Class III facilities. EPA expects that at the
time when all Class III landfills have either upgraded to Class II
standards, or have been exempted by Alaska's Governor from the elements
of 40 CFR Part 258 that are more stringent for Class III landfills than
the Alaska's 18 AAC 60, the 2010 deadline in Alaska's rule would become
redundant and could be removed unilaterally by ADEC without affecting
today's approval. The State of Alaska and EPA intend to continue to
work cooperatively toward successive improvements at Class III
landfills and to bringing them into compliance with the Part 258
criteria to the extent such compliance is economically and practicably
achievable.
The exemption authority in subsection (5) of the LDP Flexibility
Act is granted to the Governor of Alaska only. ADEC has initiated
development of an approach for addressing small landfills with respect
to exemptions under this new Act. This approach includes identification
of important needs and goals, mapping landfills, consulting with
Village Safe Water personnel and Public Service staff, providing
technical assistance and educational materials, and establishing
procedures to grant exemptions on a category basis. Furthermore the
State is 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
[[Page 60003]]
State's approach to use the exemption authority strategically to
achieve continued improvement at landfills that require more time.
Standard factors such as climate, hydrogeological conditions, and risk
are important considerations in determining where and for how long
exemptions are appropriate.
In addition, subsection (6) of the LDP Flexibility Act mandates
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/
Tribes.
On a nationwide basis, another section of the Flexibility 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 LDP Flexibility Act for small dry or remote
municipal solid waste landfills. The act does not modify the existing
Part 258 exemption on liner requirements for qualifying small or remote
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 and permafrost MSW
landfills. EPA finds that Alaska's regulatory flexibility with respect
to methane monitoring and daily cover at MSWLF ash monofills is in
keeping with either present Part 258 flexibility or the future
flexibility that the LDP Flexibility Act requires EPA to develop.
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 include flexibility 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. EPA invites comments on the permafrost provisions in Alaska's
municipal solid waste rule with respect to adequacy and tentative
partial approval of Alaska's program.
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 in February 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 261 of the
hazardous waste regulations to establish an additional category of
landfills under 40 CFR Sections 257.5 through 257.30 that allows
certain nonmunicipal, nonhazardous 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. (Text within the
quotation marks is verbatim copy of the Federal Register text.) 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 18 AAC 60 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 Class II MSWLF
set out in 18 AAC 60.300 through 60.397 of Alaska's municipal landfill
rule. 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 tentative approval of Alaska's program.
A 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 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. 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, but ADEC believes that it is meeting the
requirement in practice. ADEC and EPA believe 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.
Note: Alaska's rule, like Part 258, requires 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
[[Page 60004]]
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 tentative approval.
Alaska, in its application to Region 10 for approval, has
adequately described its staffing and implementation capabilities. ADEC
was reorganized during 1995 to further improve the administration of
its solid waste program. A memorandum of agreement (MOA) establishes
the relationship and duties of the two key divisions of ADEC that will
implement and enforce the solid waste program. The MOA for solid waste
services is between the Division of Environmental Health and the
Division of Public Service; both are divisions of ADEC. It outlines the
types of services that will be provided to DEH. A copy of the MOA that
was signed by the Directors in late February is included in Alaska's
application.
With respect to effective dates, a gap of one-quarter year exists
between the dates contained in the regulations of Alaska versus EPA
with respect to closure of those existing landfills that do not meet
the location restrictions regarding airports, floodplains, and unstable
areas. The Alaska MSWLF criteria require that the landfill must close
within one year after January 28, 1996, if it does not meet these
location restrictions. This results in Alaska's rule having effective
dates that are one-quarter year later than Part 258. Likewise, the
Alaska criteria allow the State Director to extend the deadline for up
to two years if the landfill owner/operator makes the required
demonstration, which represents an extension to January 28, 1999. The
EPA criteria specify that such landfills must close by October 9, 1996,
and that extensions of the deadline shall require closure on or before
October 9, 1998. A factor related to these deadlines is that in late
1995 EPA extended the effective date for which small arid or remote
qualifying landfills must meet Part 258 to October 9, 1997. EPA
believes that to partial out the two quarter-year gaps, from today's
partial approval, is not practicable in comparison to the relatively
short time delay that each of these gaps represent. EPA will request
that the State eliminate this gap either by adopting a guidance that
achieves closure in all cases by October 9, 1998, or by changing the
Alaska rule itself. An optional avenue for an owner/operator of a
qualifying small landfill who has concerns about operating during this
gap, is to request via the Governor of Alaska, under the provisions of
the LDP Flexibility Act, for a quarter-year ``bridge'' exemption for
the three-month time period. EPA invites comments on this issue as to
whether the three-month effective-date gaps will result in a
significant difference on protection of human health and the
environment.
C. Decision
The portions of Alaska's municipal solid landfill program,
including its provisions for permafrost landfills and municipal-ash
monofills, that are being tentatively approved today are the following
Subparts of 40 CFR part 258. These portions are also being tentatively
approved under 40 CFR 261.5, as amended per the Federal Register of
July, 1, 1996, for disposal of hazardous wastes from Conditionally
Exempt Small Quantity Generators that is disposed of in landfills that
are subject to 40 CFR Part 258. The portions of 40 CFR Part 258 that
are included in today's tentative approval are:
Subpart A--General, including, but not limited to, Section
60.300(c) with respect to the October 9, 2010 date.
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.
The flexibility elements in Part 258 are an important factor that
becomes available to a State/Tribe upon approval by EPA of its solid
waste program. Not all existing State and Tribal permit programs ensure
compliance with all provisions of the revised Federal Criteria. Were
EPA to restrict a State or a Tribe from submitting its application
until it could ensure compliance with the entirety of 40 CFR Part 258,
many States/Tribes 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/Tribal permit program, while the
State/Tribe revises its statutes or regulations, could impose a
substantial burden on owners and operators of landfills because the
State/Tribe would be unable to exercise the flexibility available to
States/Tribes with approved permit programs.
As State/Tribal 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/Tribe 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/Tribal MSWLF permit program affected. It
will also provide for a minimum 30 day 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 notice will be published either affirming or reversing
the initial decision while responding to the public comments.
To ensure compliance with all of the current Federal Criteria and
to obtain full approval of its municipal solid waste landfill permit
program, the Alaska Department of Environmental Conservation must:
1. Add financial assurance requirements which meet one or more of
the criteria in Subpart G of Part 258 that will cover all of the types
of municipal landfills that are permitted by the State.
Comments are solicited on this tentative determination until the
date shown in the DATES section of this notice. Copies of Alaska's
application are available for inspection and copying at the locations
indicated in the ADDRESSES section of this notice.
EPA Region 10 will hold a public hearing if, and only if, requested
(see DATES section of this notice) on this tentative decision, on the
date and in the location shown in the DATES section of this notice.
Comments can be submitted at the hearing, if held, as transcribed from
oral comments presented, or in writing at the time of the hearing.
EPA will consider all written public comments on its tentative
determination received during the public comment period, as well as
those presented at the public hearing. Issues raised by those comments
may be the basis for EPA's reconsideration of this tentative
determination of adequacy for Alaska's program. EPA will make a final
decision on whether or not to approve Alaska's program and will provide
notice in the Federal Register. The notice will include a summary of
the reasons for the final determination and a response to all major
comments.
Section 4005(a) of RCRA provides that citizens may use the citizen
suit provisions of Section 7002 of RCRA to
[[Page 60005]]
enforce the Federal MSWLF criteria in 40 CFR Part 258 independent of
any State/Tribal enforcement program. As EPA explained in the preamble
to the final MSWLF criteria, EPA expects that any owner or operator
complying with provisions in a State/Tribal program approved by EPA
should be considered to be in compliance with the Federal Criteria. See
56 FR 50978, 50995 (October 9, 1991).
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this notice from
the requirements of Section 6 of Executive Order 12866.
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/Tribal 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/Tribal 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 Parts 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. This rule, therefore, does not require a regulatory
flexibility analysis.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 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 this rule 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 the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by 5 U.S.C. 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 exercise (which will reduce, not increase, compliance
costs). Thus, today's notice 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 other than
the applicant, the State of Alaska. 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 notice 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: November 14, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-29928 Filed 11-22-96; 8:45 am]
BILLING CODE 6560-50-P
