[Federal Register Volume 61, Number 187 (Wednesday, September 25, 1996)]
[Rules and Regulations]
[Pages 50410-50413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24591]



[[Page 50409]]


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Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 258



Re-Establishment of Ground-Water Monitoring Exemption for Small 
Municipal Solid Waste Landfills Located in Either Dry or Remote Areas; 
Final Rule

  Federal Register / Vol. 61, No. 187 / Wednesday, September 25, 1996 / 
Rules and Regulations  

[[Page 50410]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[FRL-5615-8]
RIN 2050-AE24


Solid Waste Disposal Facility Criteria; Re-Establishment of 
Ground-Water Monitoring Exemption for Small Municipal Solid Waste 
Landfills Located in Either Dry or Remote Areas

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: Today, the Environmental Protection Agency (EPA) is revising 
the criteria for municipal solid waste landfills (MSWLFs)by re-
establishing an exemption from ground-water monitoring for owners or 
operators of certain small landfills. In order to qualify for the 
exemption, the landfill must accept less than 20 tons of municipal 
solid waste per day (based on an annual average), have no evidence of 
ground-water contamination, and be located in either a dry or remote 
location. This action codifies Sec. 3 of the Land Disposal Program 
Flexibility Act of 1996 (LDPFA, P.L. 104-119, March 26, 1996), which 
provides explicit authority for this ground-water monitoring exemption. 
This action will ease burdens on certain small landfill owners and 
local governments, without compromising groundwater quality.

EFFECTIVE DATE: This rule is effective on September 25, 1996.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located in Crystal Gateway I, 1235 Jefferson 
Davis Highway, First Floor, Arlington, Virginia. The Docket 
Identification Number is F-96-SDRF-FFFFF. The RIC is open from 9:00 am 
to 4:00 pm, 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 per page.

FOR FURTHER INFORMATION CONTACT: For general questions on this rule, 
contact the RCRA Hotline at 800 424-9346, TDD 800 553-7672 (hearing 
impaired), or 703 412-9810 (Washington, DC metropolitan area).
    For technical questions, contact Ms. Dana Arnold of the Office of 
Solid Waste at 703 308-7279, or at U.S. Environmental Protection Agency 
(5306W), 401 M Street, S.W., Washington, DC 24060.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Regulated Entities
III. Summary of Today's Action
IV. Background
    A. Prior EPA Ground-Water Monitoring Requirements for Small 
MSWLFs
    B. The Land Disposal Program Flexibility Act of 1996
V. Good Cause Exemption from Notice-and-Comment Rulemaking 
Procedures
VI. Withdrawal of Proposed Rule on Alternative Ground-Water 
Monitoring
VII. Impact Analysis
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    C. Paperwork Reduction Act
    D. Executive Order 12875 and Unfunded Mandates Reform Act
    E. Considerations of Issues Related to Environmental Justice
VIII. Submission to Congress and the General Accounting Office

I. Authority

    This regulation is promulgated under the authority of sections 
1008(a)(3), 2002(a), 4004(a), and 4010(c) of the Solid Waste Disposal 
Act, as amended by the Resource Conservation and Recovery Act of 1976 
(RCRA), as amended, 42 U.S.C. 6907(a)(3), 6912(a), 6944(a), and 
6949a(c).

II. Regulated Entities

    Entities potentially regulated by this action are public or private 
owners or operators of municipal solid waste landfills (MSWLFs) that 
accept less than 20 tons of municipal solid waste and are located in 
dry or remote areas. Regulated categories and entities include:

------------------------------------------------------------------------
              Category                  Examples of regulated  entities 
------------------------------------------------------------------------
Industry............................  Owners or operators of small      
                                       MSWLFs in dry or remote          
                                       locations.                       
Municipal Government................  Owners or operators of small      
                                       MSWLFs in dry or remote          
                                       locations.                       
------------------------------------------------------------------------

III. Summary of Today's Action

    Today, EPA is revising the 40 CFR Part 258 criteria for MSWLFs by 
re-establishing an exemption from ground-water monitoring for owners or 
operators of small landfills that have no known ground-water 
contamination and that are located in dry or remote areas. This rule 
codifies Sec. 3 of the Land Disposal Program Flexibility Act of 1996 
(P.L. 104-119, March 26, 1996), which amended section 4010(c) of RCRA 
to exempt certain small MSWLFs from ground-water monitoring 
requirements. This rule applies to owners or operators of new MSWLF 
units, existing MSWLF units, and lateral expansions of existing MSWLF 
units.

IV. Background

A. Prior EPA Ground-Water Monitoring Requirements for Small MSWLFs

    On August 30, 1988, EPA proposed municipal solid waste landfill 
criteria under Subtitle D of RCRA (53 FR 33314), which included minimum 
federal criteria for location restrictions, facility design and 
operation, ground-water monitoring, corrective action, financial 
assurance, and closure and post-closure care requirements.
    In the final MSWLF criteria (56 FR 50978, October 9, 1991), EPA 
included an exemption for owners and operators of certain small MSWLF 
units located in dry or remote areas (hereafter referred to as 
``qualifying small MSWLFs'') from the design and ground-water 
monitoring requirements. To qualify for the exemption, the landfill 
must have met the following criteria: accepted less than 20 tons of 
municipal solid waste per day (based on an annual average), had no 
evidence of ground-water contamination, and either: (1) served 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) been located in an area that 
annually receives 25 inches or less of precipitation and serve a 
community that has no practicable waste management alternative. In 
adopting this limited exemption, the Agency believed that it had 
complied with the statutory requirement to protect human health and the 
environment, taking into account the practicable capabilities of 
landfill owners and operators, in this case owners or operators of 
small MSWLFs.
    This exemption was successfully challenged by the Sierra Club and 
the Natural Resources Defense Council (NRDC). In Sierra Club v. United 
States Environmental Protection Agency, 992 F.2d 337 (D.C. Cir. 1993), 
the U.S. Court of Appeals held 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 exemption for qualifying small MSWLFs as it 
pertains to ground-water monitoring, and remanded that portion of the 
final rule to the Agency for

[[Page 50411]]

further consideration. The Court did not require EPA to remove the 
exemption from the design requirements.
    On October 1, 1993, EPA rescinded the exemption from ground-water 
monitoring for qualifying small MSWLFs (58 FR 51536). The Agency also 
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.
    The U.S. Court of Appeals decision did not preclude EPA from 
issuing separate ground-water monitoring standards for these landfills, 
taking into account size, location, and climate, as long as these 
separate standards ensured that any ground-water contamination would be 
detected. Therefore, EPA intended to use the additional two-year period 
to determine if there were practical and affordable alternative 
monitoring systems or approaches that would be adequate to detect 
contamination. The Agency determined that there are alternative methods 
and proposed alternative ground-water monitoring regulations in 1995 
(60 FR 40799, August 10, 1995). The Agency subsequently extended the 
effective date for qualifying small MSWLFs until October 9, 1997 to 
provide EPA with time to finalize the alternative monitoring 
requirements (60 FR 52337, October 6, 1995).

B. The Land Disposal Program Flexibility Act of 1996

    On March 26, 1996, President Clinton signed into law the Land 
Disposal Program Flexibility Act of 1996 (LDPFA), P.L. 104-119, which, 
among other things, amended RCRA section 4010(c) to exempt certain 
small MSWLFs located in either dry or remote areas from the ground-
water monitoring requirements. The LDPFA specifies that the ground-
water monitoring requirements do not apply to the owner or operator of 
a new MSWLF unit, an existing MSWLF unit, or a lateral expansion of a 
MSWLF unit, that disposes of less than 20 tons of MSW daily, based on 
an annual average, if there is no evidence of ground-water 
contamination from the unit or expansion and the unit or expansion 
serves either a remote community (i.e., one that experiences an annual 
interruption of at least 3 consecutive months of surface transportation 
that prevents access to a regional MSW facility) or a dry community 
(i.e., one that receives 25 inches or less of precipitation annually) 
that has no practicable waste management alternative.
    Today, EPA is implementing this amendment to RCRA section 4010(c) 
by re-establishing in the Part 258 MSWLF criteria the exemption from 
the ground-water monitoring requirements for owners or operators of 
qualifying small MSWLFs. To do so, EPA is revising the introductory 
text to Sec. 258.1(f)(1), which currently provides that qualifying 
small MSWLFs are also exempt from the design requirements found in 
subpart D of Part 258. The revision provides that the qualifying small 
MSWLFs are exempt from the ground-water monitoring requirements of 
subpart E. The rest of the exemption (i.e., Sec. 258.1(f)(1) (i) and 
(ii)) is unchanged. EPA also is revising Sec. 258.1(f)(3) to specify 
that, if the owner or operator of a qualifying small MSWLF has 
knowledge of ground-water contamination, then the owner or operator 
must notify the state Director and comply with the subpart E ground-
water monitoring and correction criteria, as well as the subpart D 
design criteria.
    The LDPFA also authorizes States to require MSWLF owners or 
operators of qualifying small MSWLFs to conduct ground-water monitoring 
in the specified instances described below. Under the LDPFA, a State 
may require the owner or operator of a small MSWLF located in a dry or 
remote area to conduct ground-water monitoring if necessary to protect 
ground-water resources and ensure compliance with a State ground-water 
protection plan. If the State finds a release from a solid waste 
landfill unit, the State must require corrective action as appropriate. 
The LDPFA also authorizes States to allow owners or operators of 
qualifying small MSWLFs to use alternatives to ground-water monitoring 
wells to detect releases.
    In addition, the LDPFA authorizes a State to suspend the ground-
water monitoring requirements for any MSWLF, if the landfill operator 
demonstrates that there is no potential for migration of hazardous 
constituents from the unit to the uppermost aquifer during the active 
life of the unit and the post-closure care period. The opportunity to 
demonstrate that there is no migration applies to the operators of all 
MSWLFs, not just to the operators of qualifying small MSWLFs. The MSWLF 
rule already contains this ``no migration'' exemption provision. See 40 
CFR 258.50(b). As required by the LDPFA, EPA intends to issue guidance 
to facilitate small community use of this no migration exemption.

V. Good Cause Exemption From Notice-and-Comment Rulemaking 
Procedures

    The Administrative Procedure Act generally requires agencies to 
provide prior notice and opportunity for public comment before issuing 
a final rule. 5 U.S.C. Sec. 553(b). Rules are exempt from this 
requirement if the issuing agency finds good cause that notice and 
comment are unnecessary. 5 U.S.C. Sec. 553(b)(3)(B).
    EPA has determined that providing prior notice and opportunity for 
comment on the promulgation of this rule is unnecessary. As discussed 
in Part IV of this preamble, the LDPFA amended RCRA section 4010(c) to 
reinstate the small community landfill exemption and to authorize 
states to require ground-water monitoring and corrective action at 
small MSWLFs that otherwise would qualify for the exemption. The 
statutory exemption and other provisions took effect when the President 
signed the LDPFA on March 26, 1996. Promulgation of today's rule simply 
implements the Congressional intent of section 3(b) of LDPFA to 
``immediately reinstate'' the small community MSWLF exemption that was 
once codified in 40 CFR Sec. 258.1(f). Because EPA is making no changes 
to the exemption specifically provided by the LDPFA, it is unnecessary 
to again provide notice and accept public comment.
    For the same reasons, EPA believes there is good cause for making 
the reinstatement of the small community MSWLF exemption in Part 258 
immediately effective. See 5 U.S.C. Sec. 553(d).

VI. Withdrawal of Proposed Rule on Alternative Ground-Water 
Monitoring

    On August 10, 1995 (60 FR 40799), EPA proposed requirements for 
alternative ground-water monitoring systems or approaches to provide 
owners and operators of qualifying small MSWLFs with flexibility in 
meeting the ground-water monitoring requirements of RCRA section 
4010(c) and EPA's implementing regulations. As a result of today's re-
establishment of the ground-water monitoring exemption into the Part 
258 MSWLF criteria, many small landfills will no longer need this 
flexibility because they will not be subject to the ground-water 
monitoring requirements. Even if ground-water monitoring is necessary 
at a qualifying small MSWLF, under the LDPFA, it is the State (or 
Tribe), rather than EPA, that can allow the landfill operator to use 
alternative ground-water monitoring techniques. Thus, it is not 
necessary for EPA to promulgate alternative ground-

[[Page 50412]]

water monitoring requirements, and the Agency is withdrawing the 
proposed alternative ground-water monitoring regulations published on 
August 10, 1995.

VII. Impact Analysis

    Under the LDPFA, the ground-water monitoring exemption for 
qualified small MSWLFs are in effect regardless of EPA action. In 
today's final rule, EPA is simply codifying this LDPFA provision in 
order to enable affected entities to find all relevant requirements in 
the Part 258 MSWLF criteria in the Code of Federal Regulations. 
Therefore, any potential regulatory impacts have already been created 
by Congressional action in enacting the LDPFA. Because the ground-water 
monitoring exemption for qualified small MSWLFs is deregulatory in 
nature, however, it provides regulatory relief to small entities.

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 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of E.O. 12866 and therefore is not 
subject to OMB review. In the proposed rule to establish alternative 
ground-water monitoring requirements, EPA estimated the national annual 
costs of ground-water monitoring requirements at qualifying small 
MSWLFs to range from $7.2 million to $26.6 million per year (60 FR 
40810, August 10, 1995). Today's action is deregulatory in nature and 
will provide certain small entities with relief from the costs of 
ground-water monitoring without adversely impacting human health or the 
environment.

B. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness 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 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 economic impact on a substantial 
number of small entities.
    Pursuant to 5 U.S.C. 605(b), I hereby certify that today's final 
rule will not have a significant adverse impact on a substantial number 
of small entities. Today's rule is deregulatory in nature and does not 
impose any new burdens on small entities. The effect of today's final 
rule is to provide certain small entities with relief from ground-water 
monitoring requirements and the costs associated with those 
requirements. Therefore, this rule does not require a regulatory 
flexibility analysis.

C. Paperwork Reduction Act

    EPA's 1991 MSWLF regulations provided that owners or operators that 
meet the criteria for exemptions from the ground-water monitoring and 
design criteria must place documentation in the facility operating 
record demonstrating that they qualified for the exemptions. The 
information collection requirements for all of Part 258, including this 
documentation requirement for small, dry or remote landfills, were 
submitted to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The OMB approval number 
for compliance with the Part 258 MSWLF criteria recordkeeping and 
reporting requirements is 2050-0122.

D. Executive Order 12875 and Unfunded Mandates Reform Act

    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. E.O. 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 provides for 
increasing flexibility for State, Tribal, and local governments through 
waivers.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for federal agencies to assess the 
effects of regulatory actions on State, local, and Tribal governments, 
and the private sector. UMRA requires agencies to prepare a written 
statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures by 
State, local, and Tribal governments, in the aggregate, or to the 
private sector, of $100 million or more in any one year.
    EPA has determined that today's final rule does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, Tribal, and local governments in the aggregate, 
or to the private sector. As previously discussed in this preamble, the 
exemption from ground-water monitoring for qualifying small MSWLFs 
reduces a regulatory burden and associated costs that these small 
entities otherwise would be required to incur.
    Prior to passage of the LDPFA, EPA had maintained dialogue 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 dry or 
remote locations. The Agency believes that this consultation with 
States, Tribes, and local governments satisfies the requirement of 
Executive Order 12875.

E. Considerations 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 will not have a 
disproportionately high or 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 that otherwise would

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close because it could not afford the cost of ground-water monitoring. 
The Agency further believes that this rulemaking will not create 
adverse impacts on human health and the environment because the ground-
water monitoring exemption is only available if there is no evidence of 
ground-water contamination from the landfill, and States can require 
both ground-water monitoring and corrective action as necessary to 
protect ground-water resources.

VIII. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added 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).

List of Subjects in 40 CFR Part 258

    Environmental protection, Corrective action, Ground-water 
monitoring, Household hazardous waste, Liner requirements, Liquids in 
landfills, Reporting and recordkeeping requirements, Security measures, 
Small quantity generators, State/Trial permit program approval and 
adequacy, Waste disposal, Water pollution control.

    Dated: September 19, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40 of the Code of 
Federal Regulations, Part 258, 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 the introductory text of 
paragraph (f)(1) and by revising paragraph (f)(3) to read as follows:


Sec. 258.1  Purpose, scope, and applicability.

* * * * *
    (f)(1) Owners or operators of new MSWLF units, existing MSWLF 
units, and lateral expansions that dispose of less than twenty (20) 
tons of municipal solid waste daily, based on an annual average, are 
exempt from subparts D and E of this part, so long as there is no 
evidence of ground-water contamination from the MSWLF unit, and the 
MSWLF unit serves:
* * * * *
    (3) If the owner or operator of a new MSWLF unit, existing MSWLF 
unit, or lateral expansion has knowledge of ground-water contamination 
resulting from the unit that has asserted the exemption in paragraph 
(f)(1)(i) or (f)(1)(ii) of this section, the owner or operator must 
notify the state Director of such contamination and, thereafter, comply 
with subparts D and E of this part.
* * * * *
[FR Doc. 96-24591 Filed 9-24-96; 8:45 am]
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