[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]



-----------------------------------------------------------------------


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.

-----------------------------------------------------------------------

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