[Federal Register Volume 62, Number 145 (Tuesday, July 29, 1997)]
[Rules and Regulations]
[Pages 40708-40713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19942]
[[Page 40707]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 258
Revisions to Criteria for Municipal Solid Waste Landfills; Final Rule
and Proposed Rule
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules
and Regulations
[[Page 40708]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[F-97-FLXF-FFFFF; FRL-5865-3]
RIN 2050-AE24
Revisions to Criteria for Municipal Solid Waste Landfills
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Land Disposal Program Flexibility Act of 1996 (LDPFA)
directed the Administrator of the U.S. Environmental Protection Agency
(EPA) to provide additional flexibility to Approved States for any
landfill that receives 20 tons or less of municipal solid waste per
day. The additional flexibility applies to alternative frequencies of
daily cover, frequencies of methane monitoring, infiltration layers for
final cover, and means for demonstrating financial assurance. The
additional flexibility will allow the owners and operators of small
municipal solid waste landfills (MSWLFs) the opportunity to reduce
their costs of MSWLF operation while still protecting human health and
the environment. This direct final rule recognizes, as did Congress in
enacting the LDPFA, that these decisions are best made at the State and
local level and, therefore, offers this flexibility to approved States.
In the proposed rules Section of today's Federal Register, EPA is
concurrently proposing and soliciting comment on this rule. If adverse
comments are received, EPA will withdraw this direct final rule and
address the comments in a subsequent final rule. EPA will not provide
additional opportunity for comment.
DATES: This final action will become effective on October 27, 1997
unless EPA receives adverse comment by August 28, 1997. If such adverse
comment is received, EPA will withdraw this direct final rule by
publishing timely notice in the Federal Register.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification
Number is F-97-FLXF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding federal holidays. To review docket
materials, it is recommended that the public make an appointment by
calling 703 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies cost $0.15/page.
The index and some supporting materials are available electronically.
See the ``Supplementary Information'' section for information on
accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703
412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Mr. Allen J. Geswein, U.S. Environmental Protection
Agency, Office of Solid Waste (5306W), 401 M Street, SW, Washington,
D.C. 20460, 703 308-7261,
[[email protected] EPA.GOV].
SUPPLEMENTARY INFORMATION: The index and the following supporting
materials are available on the Internet:
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Daily Cover Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Landfill Gas Monitoring Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Infiltration Layer Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Financial Assurance Requirements for MSWLFs
Follow these instructions to access the information electronically:
WWW: http://www.epa.gov/epaoswer/nonhazardous waste
FTP: ftp.epa/gov
Login: anonymous
Password: your Internet address
Files are located in /pub/gopher/OSWRCRA.
Regulated Entities
Entities potentially regulated by this action are public or private
owners or operators of municipal solid waste landfills (MSWLFs) that
dispose 20 tons or less of municipal solid waste daily, based on an
annual average. Regulated categories and entities include the
following.
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Category Examples of regulated entities
------------------------------------------------------------------------
Industry............................... Owners or operators of small
MSWLFs.
Municipal Governments.................. Owners or operators of small
MSWLFs.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities EPA is now aware could
potentially be impacted by today's action. It is possible that other
types of entities not listed in the table could also be affected. To
determine whether your facility would be impacted by this action, you
should carefully examine the applicability criteria in the proposal. If
you have questions regarding the applicability of this action to a
particular facility, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Preamble Outline
I. Authority
II. Background
III. Summary of the Direct Final Rule
IV. Description of Direct Final Rule
A. Daily Cover
B. Methane Gas Monitoring
C. Final Cover and Discussion of Performance Standard in
Sec. 258.60(a)(1)
1. Additional Flexibility
2. Applicability to ``Qualifying Small MSWLFs'' that Close
D. Financial Assurance
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
F. Small Business Regulatory Enforcement Act of 1996
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
[[Page 40709]]
Conservation and Recovery Act (RCRA), as amended, 42 USC 6907(a)(3),
6912(a), 6944(a), and 6949a(c).
II. Background
When EPA promulgated the Revised Criteria for Municipal Solid Waste
Landfills on October 9, 1991 (56 FR 50978), the Agency included an
exemption for owners and operators of certain small municipal solid
waste landfills (MSWLF) units from the Design Criteria (Subpart D) and
Ground-Water Monitoring and Corrective Action (Subpart E) requirements
of the criteria. To qualify for the exemption, the small landfill could
only accept twenty tons or less 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 serves 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 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 groundwater 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
(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.
On October 6, 1995, EPA issued a final rule extending the general
compliance date of the MSWLF criteria for two years, from October 9,
1995 to October 9, 1997, for qualifying small MSWLFs. The purpose of
the extension was to allow Approved States time to determine
alternative ground-water monitoring requirements 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
258.1(f)(1). Should a MSWLF no longer meet the conditions of
Sec. 258.1(f)(1), that landfill must comply with all of the
requirements of 40 CFR part 258, including the design and ground-water
monitoring requirements. Until October 9, 1997, owners and operators of
qualifying small MSWLFs are subject to the requirements of 40 CFR part
257, Subpart A. Because owners and operators of qualifying small MSWLFs
may be subject to more stringent State requirements, these owners and
operators are encouraged to work with their respective State programs
to understand the regulatory requirements for their facilities.
On March 26, 1996, the President signed the ``Land Disposal Program
Flexibility Act'' (LDPFA), Public Law 104-119, which among other
things, reinstated the exemption from ground-water monitoring for
qualifying small MSWLFs. EPA has issued a final rule reinstating the
exemption (61 FR 50410; September 25, 1996).
The law also directed the Agency to issue rules that grant the
Director of an Approved State the flexibility to establish alternative
requirements for all MSWLFs that receive 20 tons or less of municipal
solid waste per day, based on an annual average. The additional
flexibility is not limited to small MSWLFs in dry or remote locations;
rather, the alternative requirements may be applied to any MSWLF
receiving 20 tons or less of municipal solid waste as determined by the
Director of an Approved State. Specifically, the LDPFA directed EPA to
promulgate revisions to existing criteria which would allow an approved
State to establish for small MSWLFs alternative frequencies of daily
cover application, frequencies of methane gas monitoring, infiltration
layers for final cover, and means for demonstrating financial
assurance. These alternative requirements are to take into account
climatic and hydrogeologic conditions and are to be protective of human
health and the environment. There is no provision in the LDPFA that
directed the Agency to extend the exemption from ground-water
monitoring to other than qualifying small MSWLFs; therefore, the
exemption from ground-water monitoring will continue to apply only to
small MSWLFs in either dry or remote areas. For the reasons set forth
in a prior notice, EPA has no plans to extend this exemption to all
small MSWLFs (56 FR 50989, October 9, 1991).
III. Summary of the Direct Final Rule
This direct final rule amends the Revised Criteria for Municipal
Solid Waste Landfills to allow the Director of an Approved State the
ability to grant additional flexibility to small MSWLFs for alternative
frequencies of daily cover, alternative frequencies of methane
monitoring, and alternative infiltration layers for final cover. When
providing this flexibility, the State Director must consider, after
public review and comment, the unique characteristics of small
communities and take into account climatic and hydrogeologic conditions
while ensuring that any alternative requirements are protective of
human health and the environment.
The amendments contained in today's direct final rule may be
applied by the Director of Approved States to all MSWLFs receiving 20
tons or less of municipal solid waste per day, based on an annual
average, as appropriate.
In the proposed rules Section of today's Federal Register, EPA is
proposing this identical rule and soliciting public comment. If adverse
comments are received, EPA will withdraw this direct final rule and
address the comments in a subsequent final rule. EPA will not provide
additional opportunity for comment.
IV. Description of Direct Final Rule
The purpose of this direct final rule is to allow the Director of
an Approved State to establish alternative requirements to certain
provisions of the Revised Criteria for Municipal Solid Waste Landfills
for small MSWLFs, provided the Director determines that the alternative
requirements are protective of human health and the environment.
A. Daily Cover
Section 258.21 currently requires owners or operators to cover
disposed solid waste at the end of each operating day, or more
frequently if necessary, with six inches of earthen material.
[[Page 40710]]
Alternative materials of an alternative thickness may be used when
approved by the Director of an Approved State if the owner or operator
demonstrates that the alternative material and thickness control
disease vectors, fires, odors, blowing litter, scavenging without
presenting a threat to human health and the environment. The use of
daily cover to control disease vectors, fires, odors, blowing litter,
and scavenging has been a requirement of Federal regulations applicable
to MSWLFs for nearly twenty years (40 CFR 257.3-6(a) and (c)(4)). At
least 45 States have had this requirement for ten or more years.
While the owner or operator is required to place cover on waste at
the end of each operating day, the owner or operator can reduce the
cost of daily cover by limiting the number of days per week that waste
is accepted. If the facility accepts waste for disposal two days per
week, then daily cover is required on those two operating days and not
on the other days of the week. While Sec. 258.21(c) allows a temporary
waiver of daily cover during extreme seasonal climatic conditions, the
current rules do not allow the State to substantially alter the
requirement that cover be applied on a daily basis.
Consistent with the LDPFA, to provide additional flexibility to
Approved States, this rule contains a provision that allows the
Director of an Approved State, after public review and comment, to
establish alternative frequencies for daily cover for small MSWLFs
provided that the Director takes into account climatic and
hydrogeologic conditions and determines that the alternative
requirements are protective of human health and the environment.
B. Methane Gas Monitoring
The decomposition of municipal solid waste produces methane, an
explosive gas. Section 258.23 requires quarterly monitoring for methane
gas to control the possibility of an explosion and does not afford the
opportunity for the Director of an Approved State to allow monitoring
on a less frequent basis. The current rule further requires that if the
methane levels exceed the allowable levels, a danger of an explosion
may exist, and the Subtitle D Criteria establish the actions that must
be taken to control the explosion potential. These allowable levels are
based on safety considerations and are derived from allowable
concentrations of methane contained in mining regulations. EPA
estimates that monitoring can cost less than $100 per quarter.
However, consistent with the LDPFA, this rule contains a provision
that allows the Director of an Approved State to establish alternative
frequencies of methane monitoring for any small MSWLFs provided that
the Director, after public review and comment, takes into account
climatic and hydrogeologic conditions and determines that the
alternative requirements are protective of human health and the
environment.
C. Final Cover and Discussion of Performance Standard in
Sec. 258.60(a)(1)
1. Additional Flexibility
Section 258.60(a) establishes a two-part performance standard for
final cover of MSWLFs. The final cover must keep the closed facility as
dry as possible by reducing infiltration and performs the added
function of minimizing maintenance by reducing erosion. Sections
258.60(a) (1) through (3) indicate the types of layers that are known
to provide appropriate control. Section 258.60(b) allows the Director
of an Approved State to approve alternative designs that provide an
equivalent reduction in infiltration and an equivalent protection from
wind and water erosion.
The purpose of the performance standard is to reduce the
possibility of the ``bathtub effect'' which can lead to ground-water
contamination. The ``bathtub effect'' occurs when more liquid enters
the MSWLF than escapes causing the MSWLF to fill with liquid. As the
unit fills with liquid, more leachate is formed, the hydraulic head in
the MSWLF increases, causing the leachate to migrate to groundwater.
The Agency is aware that there may have been misunderstandings
regarding the performance standard in Sec. 258.60(a)(1) which addresses
the permeability of the final cover system. The most common
misconception is that this provision dictates that in all cases the
infiltration barrier must include a flexible membrane if the landfill
contains a flexible membrane liner (FML) or if the permeability of the
soil underlying the landfill is comparable to the permeability of an
FML. This may not necessarily be true. The Agency believes that in
certain site-specific situations it may be possible to construct an
infiltration layer that achieves an equivalent reduction in
infiltration without matching the permeability in the liner material.
In selecting the alternative infiltration barrier that achieves an
equivalent reduction in infiltration, the Director of an Approved State
may base the decision on mathematical models (e.g., EPA's Hydrologic
Evaluation of Landfill Performance (HELP)) or can utilize mass water
balance calculations. The design of a final cover system that minimizes
run-on and maximizes factors such as run-off, lateral drainage within
the cover system, water storage capacity in the cover, and the ability
of the vegetative layer to utilize water may meet the performance
standard (``have a permeability less than or equal to the permeability
of any bottom liner system'') without the need for a flexible membrane.
In making this decision, it may be feasible that the Director of the
Approved State could establish an alternative infiltration layer
requirement that would be applicable Statewide for MSWLFs or could make
the decision on a site-specific basis for individual MSWLFs.
The LDPFA requires that EPA provide additional flexibilities to the
Director of Approved States regarding final cover design than that
afforded by the current regulations at Sec. 258.60(a)(1). Thus,
consistent with the LDPFA, in order to provide this additional
flexibility to Approved States, today's rule contains a provision that
allows the Director of an Approved State to establish alternative
infiltration barriers in the final cover for any small MSWLFs provided
that the Director, after public review and comment, takes into account
climatic and hydrogeologic conditions and determines that the
alternative requirements are protective of human health and the
environment.
2. Applicability to ``Qualifying Small MSWLFs'' That Close
In extending the effective date for qualifying small MSWLFs in dry
or remote locations, EPA amended section 258.1(d) to exempt such small
MSWLFs which stop receiving waste before October 9, 1997 from having to
comply with Part 258 requirements except for the final cover
requirements in Sec. 258.60(a) [60 FR 52337; October 6, 1995]. Such a
qualifying MSWLF would have to complete the final cover requirements
within one year (60 FR 52337; October 6, 1995). During the course of
developing this direct final rule, a question arose as to whether such
a qualifying small MSWLF in a dry or remote location which stops
receiving waste prior to the effective date of October 9, 1997 may
utilize an alternative final cover design authorized by the Director of
an Approved State, including an alternative final cover design for the
infiltration layer being addressed in today's rule. This question arose
because the language in Sec. 258.1(d)(1) requiring qualifying small
MSWLFs to comply with final cover requirements only refers to the
requirements under Sec. 258.60(a) which sets forth a federal cover
design.
[[Page 40711]]
Despite referring only to the federal final cover design standard,
EPA intended to provide maximum flexibility in complying with the
revised criteria to owners or operators of MSWLFs located in States
with approved programs (56 FR 50992; Oct. 9, 1991). This intent
extended to allowing MSWLFs located in Approved States to utilize a
final cover design which the Director has determined meets the
performance standard in Sec. 258.60(b) [56 FR 51040; Oct. 9, 1991]. The
final cover requirement for MSWLFs which stop receiving waste prior to
the effective date is consistent with many State programs, thus, EPA
believes that qualifying small landfills which stop receiving waste
prior to October 9, 1997 may utilize any of the final cover designs,
including an Approved State alternative for the infiltration layer as
specified in today's rule, which meet the performance standards in
Sec. 258.60(b).
D. Financial Assurance
Subpart G of Part 258 contains the Financial Assurance requirements
applicable to MSWLFs. As noted in the preamble to the Revised Criteria
for Municipal Solid Waste Landfills (56 FR 51104; October 9, 1991), EPA
has determined that financial responsibility is a necessary component
of the regulatory program and is essential to protecting human health
and the environment. Further, EPA considered its requirements as the
minimum that it considered necessary. ``The financial assurance
requirements in today's rule have been structured such that the
assurance is required only for costs of activities that are certain to
be needed, and the amount of financial assurance is based on site-
specific estimates of the costs of closure, post-closure care, and
corrective action. Less stringent financial assurance requirements
would not ensure that adequate funds will be available when needed to
cover these costs.'' (56 FR 51105; October 9, 1991). Having adequate
funds available is necessary since, ``Technical requirements are
effective in protecting human health and the environment only if funds
are available in a timely manner to conduct these activities'' (ibid).
EPA was and remains concerned that a general relaxation of the
standards beyond the considerable flexibility EPA is already providing
might not be protective.
However, EPA's rules allow States to adopt a range of approaches
that would also be protective and promote compliance by all owners and
operators. In establishing its financial assurance regulations for
MSWLFs, EPA provided several federally specified mechanisms, and the
option for States to determine mechanisms that would meet a highly
flexible performance standard. This performance standard allows the
Director of an Approved State to approve any financial mechanism that
(a) ensures sufficient coverage, (b) ensures funds are available in a
timely fashion when needed, (c) is obtained by the deadline, and (d) is
legally valid, binding, and enforceable. EPA encouraged State Directors
to consider adopting a broad range of financial approaches to promote
compliance by all owners and operators.
Generally, these requirements became effective for MSWLFs on April
9, 1997, although there is a provision that delays the effective date
for qualifying small MSWLFs until October 9, 1997. Additionally, EPA
recently published an amendment (61 FR 60327; November 27, 1996) to the
Criteria that allows the Director of an Approved State to delay the
effective date of the Financial Assurance requirements for an
additional 12 months beyond the April 9, 1997 effective date, if the
owner or operator demonstrates to the Director of an Approved State
that the applicable effective date does not provide sufficient time to
comply with these requirements and that such a waiver will not
adversely affect human health and the environment.
The November 27, 1996, amendment also established a financial test
for local governments, including local governments that own or operate
small MSWLFs. This test allows a local government to use its financial
strength to avoid incurring the expenses associated with the use of a
third-party financial instrument (61 FR 60327).
Additionally, this summer EPA intends to promulgate a regulation
providing a financial test and corporate guarantee as a mechanism
private owners and operators of MSWLFs may use to demonstrate financial
assurance. This test will extend to private owners and operators the
regulatory flexibility already provided to municipal owners or
operators of MSWLFs. These regulations would allow a firm to
demonstrate financial assurance by passing a financial test. For firms
that qualify for the financial test, this mechanism will be less costly
than the use of a third party financial instrument such as a trust fund
or a surety bond.
EPA believes that considerable additional flexibility has been or
soon will be afforded to the Director of Approved States. These changes
include the following;
a. the additional flexibility to extend the effective date for
financial assurance, as described above,
b. the local government test, and
c. the corporate financial test.
These flexibilities coupled with the flexibility available to
Directors of Approved States in the Criteria for MSWLFs promulgated on
October 9, 1991, also described above, provide the flexibility
contemplated by the LDPFA. Thus, today's rule does not include any
additional changes to the Financial Assurance requirements. As
described above, EPA will establish an additional area of flexibility
when the corporate financial test is promulgated later this fiscal
year.
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 does not currently have data on the demographics of
populations surrounding the small MSWLFs affected by today's rule. The
Agency does not believe, however, that today's rule granting additional
flexibility to owners and operators of small MSWLFs will 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. In addition, any minority group or low-income group affected
by alternative requirements will have an opportunity to review and
comment on the alternative requirement proposed by the Director of the
Approved State prior to its implementation. The Agency believes that
this rulemaking will enable some minority and/or low-income communities
to continue to be served by a local landfill 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
[[Page 40712]]
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 direct final rule does not meet the
definition of a major regulation because it does not have an annual
effect on the economy of $100 million or more; nor does the rule fall
within the other definitional criteria for a significant regulatory
action described above. The rule is deregulatory and will result in
requirements applicable to specific MSWLFs that are protective of human
health and the environment at a lower cost than would be the case
without the additional flexibility afforded by these amendments. For
this reason, the Agency is not conducting a Regulatory Impact Analysis.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 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 a significant adverse impact
on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
Implementation of the various requirements imposes increased costs
on small MSWLFs and the small communities, including small Indian
Tribes, that they serve. MSWLFs that dispose of 20 TPD of waste
generally serve populations of 10,000 persons or less (based on a waste
generation rate of 4 pounds per person per day). Because these owners/
operators may lack practicable solid waste management alternatives,
such as the option of joining regional waste management systems, these
communities may have been required to absorb higher than necessary
costs of compliance in the absence of the additional flexibility
afforded by today's rule.
The effect of this rule is to provide small entities with
additional flexibility to meet the requirements of Part 258. The rule
does not impose new burdens on small entities. Therefore, pursuant to 5
U.S.C. 605b, I hereby certify that this rule will not have a
significant adverse impact on a substantial number of small entities.
This rule, therefore, does not require a regulatory flexibility
analysis.
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 notice grants additional
flexibility in complying with 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 a 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.
Therefore, the Agency believes that this consultation with States,
Tribes, and local governments, in addition to the public comment period
provided in the proposed rules section of today's Federal Register,
satisfies the requirement of this Executive Order.
E. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal 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. In fact, today's rule provides States with additional
flexibility that will lower the cost of compliance with the Criteria
for Municipal Solid Waste Landfills. In accordance with section 203,
EPA has worked closely with the States in the development of this rule.
F. Small Business Regulatory Enforcement Act of 1996 (SBREFA)
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Act of 1996, before this
[[Page 40713]]
rule takes effect, EPA has submitted a report containing this rule and
other required information to the U.S. Senate, U.S. House of
Representatives, and the Comptroller General of the General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal.
Dated: July 23, 1997.
Carol M. Browner,
Administrator.
For reasons set out in the preamble, Title 40 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 258.21 is amended by adding a new paragraph (d) to read
as follows:
Sec. 258.21 Cover material requirements.
* * * * *
(d) The Director of an Approved State may establish alternative
frequencies for cover requirements in paragraphs (a) and (b) of this
section, after public review and comment, for any owners or operators
of MSWLFs that dispose of 20 tons of municipal solid waste per day or
less, based on an annual average. Any alternative requirements
established under this paragraph must:
(1) Consider the unique characteristics of small communities;
(2) Take into account climatic and hydrogeologic conditions; and
(3) Be protective of human health and the environment.
3. Section 258.23 is amended by adding a new paragraph (e) to read
as follows:
Sec. 258.23 Explosive gases control.
* * * * *
(e) The Director of an Approved State may establish alternative
frequencies for the monitoring requirement of paragraph (b)(2) of this
section, after public review and comment, for any owners or operators
of MSWLFs that dispose of 20 tons of municipal solid waste per day or
less, based on an annual average. Any alternative monitoring
frequencies established under this paragraph must:
(1) Consider the unique characteristics of small communities;
(2) Take into account climatic and hydrogeologic conditions; and
(3) Be protective of human health and the environment.
4. Section 258.60 is amended by adding a new paragraph (b) (3) to
read as follows:
Sec. 258.60 Closure criteria.
* * * * *
(b) * * *
(3) The Director of an Approved State may establish alternative
requirements for the infiltration barrier in a paragraph (b)(1) of this
section, after public review and comment, for any owners or operators
of MSWLFs that dispose of 20 tons of municipal solid waste per day or
less, based on an annual average. Any alternative requirements
established under this paragraph must:
(i) Consider the unique characteristics of small communities:
(ii) Take into account climatic and hydrogeologic conditions; and
(iii) Be protective of human health and the environment.
* * * * *
[FR Doc. 97-19942 Filed 7-28-97; 8:45 am]
BILLING CODE 6560-50-U
