[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]]
_______________________________________________________________________
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
[[Page 50413]]
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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