[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Notices]
[Pages 60000-60005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29928]



[[Page 59999]]

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Part III





Environmental Protection Agency





_______________________________________________________________________



Alaska: Partial Program Adequacy Tentative Determination of State 
Municipal Solid Waste Landfill Permit Program; Notice

  Federal Register / Vol. 61, No. 228 / Monday, November 25, 1996 / 
Notices  

[[Page 60000]]



ENVIRONMENTAL PROTECTION AGENCY

[FRL-5654-6]


Alaska: Partial Program Adequacy Tentative Determination of State 
Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of tentative determination on the Alaska Department of 
Environmental Conservation Application for a Partial Program Adequacy 
Determination, Public Hearing and public comment period.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and 
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, requires States to develop and implement 
permit programs to ensure that municipal solid waste landfills (MSWLFs) 
which may receive hazardous household waste or small quantity generator 
waste will comply with the revised Federal MSWLF Criteria (40 CFR Part 
258). RCRA Section 4005(c)(1)(C) requires the Environmental Protection 
Agency (EPA) to determine whether States have adequate ``permit'' 
programs for MSWLFs, but does not mandate issuance of a rule for such 
determinations. On January 26, 1996, EPA published in the Federal 
Register at 61 FR 2584 a proposed State/Tribal Implementation Rule 
(STIR) that provides procedures by which EPA will approve, or partially 
approve, State/Tribal landfill permit programs. The EPA has approved 
and will continue to approve adequate State/Tribal MSWLF permit 
programs as applications are submitted. Thus, these approvals are not 
dependent on final promulgation of the STIR. Prior to the final 
promulgation of STIR, adequacy determinations will be made based on the 
statutory authorities and requirements. In addition, States/Tribes may 
use the proposed STIR as an aid in interpreting these requirements. The 
EPA believes that early approvals have an important benefit. Approved 
State/Tribal permit programs provide interaction between the State/
Tribe and the owner/operator regarding site-specific permit conditions. 
Only those owners/operators located in States/Tribes with approved 
permit programs can use the site-specific flexibility provided by Part 
258 to the extent the State/Tribal permit program allows such 
flexibility. EPA notes that regardless of the approval status of a 
State/Tribe and the permit status of any facility, the federal landfill 
criteria will apply to all permitted and unpermitted MSWLF facilities.
    The Alaska Department of Environmental Conservation (ADEC), 
Division of Environmental Health (DEH) applied on February 12, 1996 for 
a partial determination of adequacy under section 4005 of RCRA. EPA 
reviewed Alaska's application and made a tentative determination of 
adequacy for those portions of ADEC's MSWLF permit program that are 
adequate to assure compliance with the federal MSWLF Criteria. The 
portions of the Alaska program in today's tentative approval are 
described later in this notice. ADEC plans to revise the remainder of 
its permit program all at one time. This will be done once EPA has 
finalized its proposed rule on financial assurance mechanisms for local 
government landfills, to assure complete compliance with the revised 
federal MSWLF Criteria and gain full program approval. Alaska's 
application for partial program adequacy determination is available for 
public review and comment.
    All municipal solid waste in Alaska must be disposed in a landfill 
which meets these criteria. This includes ash from municipal solid 
waste incinerators that is determined to be non-hazardous.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF program, EPA Region 10 
is offering the opportunity for a public hearing on this determination 
on the date given below in the DATES section.

DATES: All comments on Alaska's application for a partial determination 
of adequacy must be received by EPA Region 10 by the close of business 
on January 23, 1997. If, and only if, sufficient interest in having a 
public hearing is requested by Tuesday, December 31, 1996, a public 
hearing to receive oral and written testimony on EPA's tentative 
determination will be held on Thursday, January 23, 1997 from 7:00 p.m. 
until 9:00 p.m. The hearing, if held, will be at the Federal Building, 
222 West 7th Avenue, Anchorage, Alaska, 99513, in Room 143. Members of 
ADEC will attend EPA's public hearing.
    Requests for a public hearing must in writing and must be received 
by the EPA contact listed below before the close of business on 
Tuesday, December 31, 1996, and should include a statement on the 
writer's reason for wanting a public hearing. EPA will determine on 
Monday, January 6, 1997, if a public hearing is warranted. After that 
date, anyone may contact the EPA person listed in the CONTACTS section 
to find out whether a public hearing will be held.

ADDRESSES: Copies of Alaska's application for partial adequacy 
determination are available during normal working days at the following 
addresses for inspection and copying: three offices of the Alaska 
Department of Environmental Conservation from 8:00 a.m. to 4:30 p.m. at 
410 Willoughby Avenue, Juneau, AK 99801, Attn: Ms. Susan Super, (907)-
465-5350; at 555 Cordova Street, Anchorage, AK 99501, Attn: Ms. Laura 
Ogar (907)-269-7500; and at 610 University Avenue, Fairbanks, AK 99709, 
Attn: Ms. Kris McCumby, (907)-451-2360; and at the office of the 
Environmental Protection Agency from 9 a.m. to 4 p.m. at: U.S. EPA, 
Region 10 Library, 1200 Sixth Avenue, Seattle, WA 98101; library 
telephone 206-553-1259. All written comments on this tentative 
determination must be sent to U.S. EPA Region 10, 1200 Sixth Avenue, 
mail code (WCM-128), Seattle, WA 98101, Attn: Mr. Steven B. Sharp.

FOR FURTHER INFORMATION AND TO REQUEST A PUBLIC HEARING, CONTACT: U.S. 
EPA Region 10, 1200 Sixth Avenue, Seattle, WA, 98101, Attn: Mr. Steven 
B. Sharp, mail code (WCM-128), fax (206)-553-8509, telephone (206)-553-
6517.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR Part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that MSWLFs comply with the Federal 
Criteria under Part 258. Subtitle D also requires in section 4005 that 
EPA determine the adequacy of State municipal solid waste landfill 
permit programs to ensure that facilities comply with the revised 
Federal Criteria. To fulfill this requirement, the EPA has proposed in 
the Federal Register on January 26, 1996, the State/Tribal 
Implementation Rule (STIR). The rule specifies the requirements which 
State/Tribal programs must satisfy to be determined adequate.
    EPA proposed in the STIR to allow partial approvals if: (1) The 
Regional Administrator determines that the State/Tribal permit program 
largely meets the requirements for ensuring compliance with Part 258; 
(2) changes to a limited part(s) of the State/Tribal permit program are 
needed to meet these requirements; and, (3) provisions not

[[Page 60001]]

included in the partially approved portions of the State/Tribal permit 
program are a clearly identifiable and separable subset of Part 258. 
These requirements, as in the proposed STIR, will address the potential 
problems posed by the dual State/Tribal and Federal regulatory controls 
following the October 9, 1993 effective date of the Federal 
regulations. On that date, Federal rules covering any portion of a 
State/Tribe's program that had not received EPA approval became 
enforceable through the citizen suit provisions of RCRA 7002. Owners 
and operators of MSWLFs subject to such dual programs must understand 
the applicable requirements and comply with them. In addition, those 
portions of the Federal program that are in effect must mesh well 
enough with the approved portions of the State/Tribal program to leave 
no significant gaps in regulatory control of MSWLF's. Partial approval 
would allow the EPA to approve those provisions of the State/Tribal 
permit program that meet the requirements and provide the State/Tribe 
time to make necessary changes to the remaining portions of its 
program. As a result, owners/operators will be able to work with the 
State/Tribal permitting agency to take advantage of the Criteria's 
flexibility for those portions of the program which have been approved.
    As provided in the October 9, 1991 municipal landfill rule, EPA's 
Subtitle D standards took effect nationwide in October 1993. Extensions 
to certain portions were subsequently postponed, with most all of the 
EPA standards becoming effective during or before 1997. Consequently, 
any portions of the Federal Criteria which are not included in an 
approved State/Tribal program by October 1993, or applicable later 
dates, would apply directly to the owner/operator without any approved 
State/Tribal flexibility. On April 7, 1995, EPA issued a Federal 
Register Notice extending the effective date of the 40 CFR Part 258 
Subpart G requirements relating to Financial Assurance until April 9, 
1997.
    EPA intends to approve portions of State/Tribal MSWLF permit 
programs prior to the promulgation of the final STIR. EPA interprets 
the requirements for States or Tribes to develop ``adequate'' programs 
for permits or other forms of prior approval to impose several minimum 
requirements. First, each State/Tribe must have enforceable standards 
for new and existing MSWLFs that are technically comparable to EPA's 
revised MSWLF criteria. Next, the State/Tribe must have the authority 
to issue a permit or other notice of prior approval to all new and 
existing MSWLFs in its jurisdiction. The State/Tribe also must provide 
for public participation in permit issuance and enforcement as required 
in section 7004(b) of RCRA. Finally, EPA believes that the State/Tribe 
must show that it has sufficient compliance monitoring and enforcement 
authorities to take specific action against any owner or operator that 
fails to comply with an approved MSWLF program.
    EPA Regions will determine whether a State/Tribe has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
expects States/Tribes to meet all of these requirements for all 
elements of a MSWLF program before it gives full approval to a MSWLF 
program.
    EPA also is requesting States/Tribes seeking partial program 
approval to provide a schedule for the submittal of all remaining 
portions of their MSWLF permit programs. EPA cites in the proposed STIR 
rule that submission of a schedule is mandatory.

B. State of Alaska

    Over the past several years and earlier, Alaska has developed an 
extensive and practicable approach to management of many types of non-
hazardous solid waste including municipal waste--and to increased 
protection of human health and the environment. During 1993 through 
1995 the state broadly revised its regulations. Concurrently, ADEC 
reorganized in a manner that is already showing results in terms of 
greater communication with small landfills. The Division of 
Environmental Health of ADEC has the lead role in solid waste 
management and oversees the entire program. It also receives assistance 
from the statewide Public Service Office of ADEC for improving waste 
management in small and remote communities. An element of the 
regulatory upgrades was extensive revision of the criteria for 
municipal solid waste disposal facilities and also addition of 
requirements that apply to conditionally exempt small quantity 
generator (CESQG) hazardous waste disposal. Alaska went public with its 
proposed regulations in September 1993 and, after the public comment 
period, issued a revised proposal in September 1994 with a second 
comment period. ADEC's new rule became effective on January 28, 1996. 
Today's tentative approval is an endorsement by EPA of the proficiency 
of Alaska's program.
    On February 12, 1996, Region X received Alaska's application for a 
partial program adequacy determination. EPA responded within the 
required 30 days that Alaska's application for approval of its 
municipal solid waste landfill permit program was administratively 
complete. EPA subsequently began its in-depth review and has 
tentatively determined that most portions, as noted in the discussions 
which follow, of the State's municipal solid waste landfill (MSWLF) 
program will ensure compliance with the revised Federal Criteria. The 
MSWLF program is a component of the Solid Waste Management Program of 
ADEC that covers a wide range of non-hazardous solid wastes. Portions 
of the Alaska MSWLF program that do not currently meet the Federal 
requirements and can only be revised through their regulation revision 
process, which may require action by the State legislature, are not 
being requested for EPA approval at this time.
    Alaska's Department of Environmental Conservation (ADEC) informed 
EPA in the cover letter of its application that its solid waste 
regulations presently do not include the financial assurance provisions 
of 40 CFR Part 258, Subpart G, for municipal solid waste landfills 
(MSWLFs) because EPA has not yet finalized its proposed financial 
assurance alternatives that will allow local government financial 
tests. Therefore, Alaska has requested partial approval (instead of 
full approval) of its solid waste program at this time so that it may 
benefit from the flexibility in the federal criteria that Part 258 
allows only to approved States/Tribes.
    In addition, during the review process, EPA and ADEC have concluded 
that a small number of portions of the ADEC program requirements do not 
mirror the federal solid waste program criteria of 40 CFR 258 or the 
STIR manual and rule. These portions are discussed in following 
paragraphs of this notice. The state's practices or policies on these 
portions meet the goals and standards of the STIR guidance and Part 258 
on a performance basis. Therefore, they are not being excluded from 
today's tentative approval.
    Federal law requires that all municipal solid waste (MSW), 
including non-hazardous MSW incinerator ash, must be disposed in a 
landfill which meets the 40 CFR Part 258 criteria. The portions of the 
Alaska Program in today's tentative approval are described later in 
this notice. Alaska's application for partial program adequacy 
determination is available for public review and comment.
    Alaska's schedule is to achieve final full approval of its solid 
waste program within two years of EPA's promulgation of a final partial 
approval. In the covering letter of its application, ADEC cites that it 
will revise its regulations

[[Page 60002]]

and apply for full approval soon after EPA has promulgated the final 
version of its Local Government Financial Assurance rule. EPA expects 
to finalize this rule by the end of 1996, which Alaska believes would 
allow time for ADEC to change its 18 AAC 60 criteria to include 
financial assurance mechanisms as a requirement for MSW landfills--and 
meet this schedule. In addition, the planned minor regulatory changes 
that are discussed in this notice should also have been completed by 
ADEC before the state applies for full approval. EPA believes that the 
state's schedule is reasonable.

Sewage and Biosolids

    In today's tentative partial approval of Alaska's Solid Waste 
Program, EPA is not proposing approval under the Clean Water Act, with 
respect to the treatment, storage, landspreading, or disposal of sewer 
solids, biosolids, sludge, and other wastes that are addressed in EPA's 
regulations under Part 503 and related parts, if any, of Title 40 of 
the Code of Regulations. The STIR process for State approval focuses on 
the municipal solid waste program of Alaska that are subject to 
Subtitle D of the Resource Conservation and Recovery Act (RCRA) without 
expressing any opinion on the other programs that are addressed in 
Alaska's waste management rule (18 AAC 60) that went into effect on 
January 28, 1996. With respect to sewage and biosolids wastes, the only 
criteria in Alaska's rule that are being approved today are those that 
correspond to EPA's 40 CFR Part 258 municipal landfill criteria.

Indian Country

    In preparing and reviewing the Alaska application, ADEC and Region 
10 have taken into consideration the needs and status of recognized 
Indian Tribes and Alaska Native Villages. Today's tentative partial 
approval of the State of Alaska's solid waste program does not extend 
to ``Indian Country'' located in Alaska, as defined in 18 U.S.C. 1151. 
Because the extent of Indian Country is currently unknown and in 
litigation, the exact boundaries of Indian Country have not been 
established. At present, the lands acknowledged to be Indian Country 
are the Annette Island Reserve, and trust lands identified as Indian 
Country by the United States in Klawock, Kake, and Angoon. By 
tentatively approving Alaska's solid waste program, EPA does not intend 
to affect the rights of Federally recognized Indian Tribes in Alaska, 
nor does it intend to limit the existing rights of the State of Alaska.

Small Landfills

    Alaska defines Class II municipal landfills as those that receive 
twenty tons per day or less on an annual average and meet 
specifications that include the federal Sec. 258.1(f)(1) arid or remote 
small-landfill qualifying criteria. Alaska defines its Class III 
landfills as those that receive five tons per day or less and meet the 
specifications in Alaska's 18 AAC 60.300(c)(3), which does not include 
all of the Sec. 258.1(f)(1) qualifying criteria for small landfills. In 
addition, Alaska's 18 AAC 60 contains flexibility for Class III 
landfills that includes less stringent requirements than the Part 258 
allows for small MSWLFs.
    Over the recent past, two methods of addressing small landfills in 
Alaska have been developed. The first was a compromise between Region 
10 and ADEC in 1993 and 1994, that agreed upon regulatory language in 
18 AAC 60 that now says: ``After October 9, 2010, all MSWLFs must meet 
the standards applicable to either a Class I or Class II MSWLF or close 
in accordance with this chapter.'' The delay to 2010 for Class III 
landfills, versus the effective date in 40 CFR Part 258, was based on 
the practicable capabilities of the small communities affected and on 
conditions that are unique in Alaska versus the rest of the nation.
    The second method was established when Congress passed a new 
statute after Alaska had finalized its solid waste rule and had 
submitted its application for program approval to EPA Region 10. 
Several elements of the new act address small landfills in Alaska. This 
statute, Public Law 104-119, entitled the ``Land Disposal Program 
Flexibility Act of 1996'' (LDP Flexibility Act), became effective on 
March 26, 1996, as an amendment to the Solid Waste Disposal Act.

    Note: This act is different than the ``Regulatory Flexibility 
Act of 1996'' that addresses economic impacts of a wide range of 
federal programs, and which is referred to near the end of this 
notice.

    Subsection (5) of Section 3(a) of the LDP Flexibility Act reads, 
verbatim, as follows: ``ALASKA NATIVE VILLAGES--Upon certification by 
the Governor of the State of Alaska that application of the 
requirements described in paragraph (1) to a solid waste landfill unit 
of a Native village (as defined in section 3 of the Alaska Native 
Claims Settlement Act (16 U.S.C. 1602)) or unit that is located in or 
near a small, remote Alaska village would be infeasible, or would not 
be cost-effective, or is otherwise inappropriate because of the remote 
location of the unit, the State may exempt the unit from some or all of 
those requirements. This paragraph shall apply only to solid waste 
landfill units that dispose of less than 20 tons of municipal solid 
waste daily on an annual average.''

    Note: The reference to ``paragraph (1)'' in the above text is to 
paragraph (1) of section 4010(c) of SWDA.

    Therefore, Class II and Class III landfills that receive an 
exemption by the Governor from some or all of the Part 258 criteria 
will not be subject to the citizens suit provision of Section 7002 of 
RCRA as to the Governor's exemptions.
    Under this new Act, certain small landfills can be exempted from 
the need to upgrade to the federal Part 258 standards until an 
indefinite time in the future. ADEC cites in the narrative summary of 
its application for program approval, and has further clarified in 
subsequent conferences with Region 10, that the State's intention is to 
remove the 2010 deadline from its existing regulation if Alaska's 
Governor exempts Class III landfills from requirements that distinguish 
Class II facilities from Class III facilities. EPA expects that at the 
time when all Class III landfills have either upgraded to Class II 
standards, or have been exempted by Alaska's Governor from the elements 
of 40 CFR Part 258 that are more stringent for Class III landfills than 
the Alaska's 18 AAC 60, the 2010 deadline in Alaska's rule would become 
redundant and could be removed unilaterally by ADEC without affecting 
today's approval. The State of Alaska and EPA intend to continue to 
work cooperatively toward successive improvements at Class III 
landfills and to bringing them into compliance with the Part 258 
criteria to the extent such compliance is economically and practicably 
achievable.
    The exemption authority in subsection (5) of the LDP Flexibility 
Act is granted to the Governor of Alaska only. ADEC has initiated 
development of an approach for addressing small landfills with respect 
to exemptions under this new Act. This approach includes identification 
of important needs and goals, mapping landfills, consulting with 
Village Safe Water personnel and Public Service staff, providing 
technical assistance and educational materials, and establishing 
procedures to grant exemptions on a category basis. Furthermore the 
State is considering a broad short-term exemption to provide a bridge 
until a final plan is developed for ensuring environmental protection 
that is consistent with community resources and capabilities. EPA 
supports the

[[Page 60003]]

State's approach to use the exemption authority strategically to 
achieve continued improvement at landfills that require more time. 
Standard factors such as climate, hydrogeological conditions, and risk 
are important considerations in determining where and for how long 
exemptions are appropriate.
    In addition, subsection (6) of the LDP Flexibility Act mandates 
that the EPA shall, within two years, promulgate revisions to Part 258 
to provide additional flexibility to approved States with respect to 
qualifying landfills that receive an average of 20 tons per day or 
less. The areas of increased flexibility are limited to alternative 
frequencies of daily cover application, frequencies of methane gas 
monitoring, infiltration layers for final cover, and means for 
demonstrating financial assurance. This subsection includes a provision 
that such alternative requirements must take into account climatic and 
hydrogeologic conditions and be protective of human health and the 
environment. The Act intends that the additional flexibility mandated 
by this subsection (6) will become available in all approved States/
Tribes.
    On a nationwide basis, another section of the Flexibility Act 
reinstates the exemption on ground-water monitoring for all facilities 
that receive an average of 20 tons per day or less and meet the 
qualifying criteria in the LDP Flexibility Act for small dry or remote 
municipal solid waste landfills. The act does not modify the existing 
Part 258 exemption on liner requirements for qualifying small or remote 
MSWLFs. The liner exemption, promulgated in October 1991, is still in 
effect.

Unique Landfills and Special Criteria

    Two special categories of landfills are included in ADEC's 
regulations: Ash monofills that accept MSW and permafrost MSW 
landfills. EPA finds that Alaska's regulatory flexibility with respect 
to methane monitoring and daily cover at MSWLF ash monofills is in 
keeping with either present Part 258 flexibility or the future 
flexibility that the LDP Flexibility Act requires EPA to develop. 
Alaska's MSW ash monofills are handled under 18 AAC 60 Article 3 that 
sets ADEC's standards for landfill disposal of municipal solid wastes. 
EPA believes that Alaska's program meets EPA standards for monofills 
that receive only MSW-ash provided that the ash is ``non-toxic'' based 
on RCRA requirements.
    The Alaska solid waste regulations also include flexibility 
provisions for permafrost landfills that include flexibility that is 
different and less stringent than the federal Part 258 requirements. 
Almost all permafrost landfills in Alaska are small and receive less 
than an average of 20 tons per day of municipal solid waste. EPA 
believes use of flexibility that is specific to permafrost landfills 
exclusively is in keeping with practicable capability considerations of 
RCRA. EPA invites comments on the permafrost provisions in Alaska's 
municipal solid waste rule with respect to adequacy and tentative 
partial approval of Alaska's program.
    With respect to the disposal of hazardous wastes from conditionally 
exempt small quantity generators (CESQG), EPA promulgated its final 
rule on disposal criteria for this category of solid waste after Alaska 
had submitted its application in February to EPA Region 10 for approval 
of its solid waste program. The final CESQG rule was published in the 
Federal Register on July 1, 1996. The rule modifies 40 CFR 261 of the 
hazardous waste regulations to establish an additional category of 
landfills under 40 CFR Sections 257.5 through 257.30 that allows 
certain nonmunicipal, nonhazardous waste landfills to receive CESQG 
wastes. In addition Section 261.5 is amended, per the same Federal 
Register of July 1996, such that CESQG wastes may be disposed of in a 
facility that is: ``permitted, licensed, or registered by a State to 
manage municipal solid waste and, if managed in a municipal solid waste 
landfill is subject to part 258'' of Title 40. (Text within the 
quotation marks is verbatim copy of the Federal Register text.) In 
anticipation of EPA's final CESQG rule, Alaska's 18 AAC 60 already 
requires that all CESQG wastes must go to Class I or Class II municipal 
landfills exclusively. Alaska's 18 AAC 60 requires, with respect to 
CESQG wastes, that: a conditionally exempt hazardous waste from a small 
quantity hazardous waste generator may be disposed of only at a 
facility that meets the requirements for a Class I or Class II MSWLF 
set out in 18 AAC 60.300 through 60.397 of Alaska's municipal landfill 
rule. Since both classes meet or exceed the Part 258 municipal landfill 
criteria, Alaska is already meeting EPA's new CESQG disposal standards. 
Therefore, EPA is including Alaska's 18 AAC 60 criteria for disposal of 
CESQG solid wastes in today's tentative approval of Alaska's program.
    A corollary of the requirements of this amendment to 40 CFR 261, is 
that landfills which the State Governor has exempted from some or all 
of the Part 258 criteria would not be eligible to accept CESQG wastes--
based on Region 10's interpretation that the meaning of the text in the 
July 1996 Federal Register is that the landfill must be subject to the 
entire Part 258.
    In the wetlands section of Alaska's landfill rule, Alaska has a 
stability requirement that applies only for ``undisturbed'' native 
wetland soils and deposits used to support the MSW landfill. Part 258 
applies this stability requirement to all types, not only undisturbed, 
wetlands support. ADEC has assured EPA Region 10 that it will remove 
the word ``undisturbed'' from its section 18 AAC 60.315(3) during its 
next revision of the rule, even though this may not be finalized before 
a final-partial approval is promulgated by EPA. During the interim, 
ADEC expects to achieve equivalent stringency via its permitting 
activities and authority.

Administrative Elements and Criteria

    Part 258 requires notification of the State Director under numerous 
specified circumstances, including under Sec. 258.1(f)(3) with respect 
to small landfills. This subsection requires that if the owner/operator 
of a small, arid or remote, landfill has knowledge of ground-water 
contamination resulting from the unit, the owner/operator must notify 
the State Director. Alaska's regulation does not include the exact 
wording of this sub-section, but ADEC believes that it is meeting the 
requirement in practice. ADEC and EPA believe that via ADEC's existing 
permitting and compliance-monitoring practices, and via the activities 
of other support agencies, ADEC will become aware of any ground-water 
contamination from a Class II landfill as rapidly as ADEC would by 
relying on the owner/operator to fulfill the notification requirement. 
In addition, Alaska's regulation requires that Class II landfills must 
perform groundwater monitoring unless a landfill demonstrates to the 
State Director that there is no practical potential for migration to an 
aquifer of resource value.

    Note: Alaska's rule, like Part 258, requires compliance with 
Part 258's Subpart E ground-water monitoring and corrective action 
if contamination from the landfill becomes known.

    With respect to public participation, Alaska cites in the narrative 
summary of its application that it has been and is ADEC's policy to 
provide additional public participation opportunities after a permit is 
issued, including for permit renewals and major modifications or 
variances, particularly if public interest was expressed at the time of 
the original permit or if there is any controversy surrounding the 
permit. The summary states that Alaska's current version of its

[[Page 60004]]

18 AAC 15.100(d) regulation does not require public notice or a public 
hearing on applications for renewal of a permit or amendment. As a 
means of formalizing ADEC's existing and on-going practices in this 
area, the Commissioner of ADEC issued a policy paper on October 9, 
1996, entitled ``Policy Regarding Public Notice Requirements for Solid 
Waste Renewals and Modifications''. A copy has been placed in Alaska's 
application, and this policy is included in today's tentative approval.
    Alaska, in its application to Region 10 for approval, has 
adequately described its staffing and implementation capabilities. ADEC 
was reorganized during 1995 to further improve the administration of 
its solid waste program. A memorandum of agreement (MOA) establishes 
the relationship and duties of the two key divisions of ADEC that will 
implement and enforce the solid waste program. The MOA for solid waste 
services is between the Division of Environmental Health and the 
Division of Public Service; both are divisions of ADEC. It outlines the 
types of services that will be provided to DEH. A copy of the MOA that 
was signed by the Directors in late February is included in Alaska's 
application.
    With respect to effective dates, a gap of one-quarter year exists 
between the dates contained in the regulations of Alaska versus EPA 
with respect to closure of those existing landfills that do not meet 
the location restrictions regarding airports, floodplains, and unstable 
areas. The Alaska MSWLF criteria require that the landfill must close 
within one year after January 28, 1996, if it does not meet these 
location restrictions. This results in Alaska's rule having effective 
dates that are one-quarter year later than Part 258. Likewise, the 
Alaska criteria allow the State Director to extend the deadline for up 
to two years if the landfill owner/operator makes the required 
demonstration, which represents an extension to January 28, 1999. The 
EPA criteria specify that such landfills must close by October 9, 1996, 
and that extensions of the deadline shall require closure on or before 
October 9, 1998. A factor related to these deadlines is that in late 
1995 EPA extended the effective date for which small arid or remote 
qualifying landfills must meet Part 258 to October 9, 1997. EPA 
believes that to partial out the two quarter-year gaps, from today's 
partial approval, is not practicable in comparison to the relatively 
short time delay that each of these gaps represent. EPA will request 
that the State eliminate this gap either by adopting a guidance that 
achieves closure in all cases by October 9, 1998, or by changing the 
Alaska rule itself. An optional avenue for an owner/operator of a 
qualifying small landfill who has concerns about operating during this 
gap, is to request via the Governor of Alaska, under the provisions of 
the LDP Flexibility Act, for a quarter-year ``bridge'' exemption for 
the three-month time period. EPA invites comments on this issue as to 
whether the three-month effective-date gaps will result in a 
significant difference on protection of human health and the 
environment.

C. Decision

    The portions of Alaska's municipal solid landfill program, 
including its provisions for permafrost landfills and municipal-ash 
monofills, that are being tentatively approved today are the following 
Subparts of 40 CFR part 258. These portions are also being tentatively 
approved under 40 CFR 261.5, as amended per the Federal Register of 
July, 1, 1996, for disposal of hazardous wastes from Conditionally 
Exempt Small Quantity Generators that is disposed of in landfills that 
are subject to 40 CFR Part 258. The portions of 40 CFR Part 258 that 
are included in today's tentative approval are:
    Subpart A--General, including, but not limited to, Section 
60.300(c) with respect to the October 9, 2010 date.
    Subpart B--Location Restrictions;
    Subpart C--Operating Criteria;
    Subpart D--Design Criteria;
    Subpart E--Ground-Water Monitoring and Corrective Action; and
    Subpart F--Closure and Post-Closure Care.
    The flexibility elements in Part 258 are an important factor that 
becomes available to a State/Tribe upon approval by EPA of its solid 
waste program. Not all existing State and Tribal permit programs ensure 
compliance with all provisions of the revised Federal Criteria. Were 
EPA to restrict a State or a Tribe from submitting its application 
until it could ensure compliance with the entirety of 40 CFR Part 258, 
many States/Tribes would need to postpone obtaining approval of their 
permit programs for a significant period of time. This delay in 
determining the adequacy of the State/Tribal permit program, while the 
State/Tribe revises its statutes or regulations, could impose a 
substantial burden on owners and operators of landfills because the 
State/Tribe would be unable to exercise the flexibility available to 
States/Tribes with approved permit programs.
    As State/Tribal regulations and statutes are amended to comply with 
the Federal MSWLF landfill regulations, unapproved portions of a 
partially approved MSWLF permit program may be approved by the EPA. The 
State/Tribe may submit an amended application to EPA for review, and an 
adequacy determination will be made using the same criteria used for 
the initial application. This adequacy determination will be published 
in the Federal Register which will summarize the Agency's decision and 
the portion(s) of the State/Tribal MSWLF permit program affected. It 
will also provide for a minimum 30 day public comment period. This 
future adequacy determination will become effective 60 days following 
publication if no significant adverse comments are received. If EPA 
receives adverse comments on its adequacy determination, another 
Federal Register notice will be published either affirming or reversing 
the initial decision while responding to the public comments.
    To ensure compliance with all of the current Federal Criteria and 
to obtain full approval of its municipal solid waste landfill permit 
program, the Alaska Department of Environmental Conservation must:
    1. Add financial assurance requirements which meet one or more of 
the criteria in Subpart G of Part 258 that will cover all of the types 
of municipal landfills that are permitted by the State.
    Comments are solicited on this tentative determination until the 
date shown in the DATES section of this notice. Copies of Alaska's 
application are available for inspection and copying at the locations 
indicated in the ADDRESSES section of this notice.
    EPA Region 10 will hold a public hearing if, and only if, requested 
(see DATES section of this notice) on this tentative decision, on the 
date and in the location shown in the DATES section of this notice. 
Comments can be submitted at the hearing, if held, as transcribed from 
oral comments presented, or in writing at the time of the hearing.
    EPA will consider all written public comments on its tentative 
determination received during the public comment period, as well as 
those presented at the public hearing. Issues raised by those comments 
may be the basis for EPA's reconsideration of this tentative 
determination of adequacy for Alaska's program. EPA will make a final 
decision on whether or not to approve Alaska's program and will provide 
notice in the Federal Register. The notice will include a summary of 
the reasons for the final determination and a response to all major 
comments.
    Section 4005(a) of RCRA provides that citizens may use the citizen 
suit provisions of Section 7002 of RCRA to

[[Page 60005]]

enforce the Federal MSWLF criteria in 40 CFR Part 258 independent of 
any State/Tribal enforcement program. As EPA explained in the preamble 
to the final MSWLF criteria, EPA expects that any owner or operator 
complying with provisions in a State/Tribal program approved by EPA 
should be considered to be in compliance with the Federal Criteria. See 
56 FR 50978, 50995 (October 9, 1991).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this notice from 
the requirements of Section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    EPA has determined that this authorization will not have a 
significant adverse economic impact on a substantial number of small 
entities. By approving State/Tribal municipal solid waste permitting 
programs, owners and operators of municipal solid waste landfills who 
are also small entities will be eligible to use the site-specific 
flexibility provided by Part 258 to the extent the State/Tribal permit 
program allows such flexibility. However, since such small entities 
which own and/or operate municipal solid waste landfills are already 
subject to the requirements in 40 CFR Parts 258 or are exempted from 
certain of these requirements, such as the groundwater monitoring and 
design provisions, this approval does not impose any additional burdens 
on these small entities.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this approval will not have a significant adverse 
economic impact on a substantial number of small entities. It does not 
impose any new burdens on small entities; rather this approval creates 
flexibility for small entities in complying with the 40 CFR Part 258 
requirements. This rule, therefore, does not require a regulatory 
flexibility analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2) of the 
APA as amended.

Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the Act EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, it must develop under section 203 
of the Act a small government agency plan. The plan must provide for 
notifying potentially affected small governments, giving them 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    The Agency does not believe that approval of the State's program 
would result in estimated costs of $100 million or more to State, 
local, and tribal governments in the aggregate, or to the private 
sector, in any one year. This is due to the additional flexibility that 
the State can exercise (which will reduce, not increase, compliance 
costs). Thus, today's notice is not subject to the written statement 
requirements in sections 202 and 205 of the Act.
    As to section 203 of the Act, the approval of the State program 
will not significantly or uniquely affect small governments other than 
the applicant, the State of Alaska. As to the applicant, the State has 
received notice of the requirements of an approved program, has had 
meaningful and timely input into the development of the program 
requirements, and is fully informed as to compliance with the approved 
program. Thus, any applicable requirements of section 203 of the Act 
have been satisfied.

    Authority: This notice is issued under the authority of sections 
2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended; 
42 U.S.C. 6912, 6945 and 6949(a)(c).

    Dated: November 14, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-29928 Filed 11-22-96; 8:45 am]
BILLING CODE 6560-50-P