[Federal Register Volume 62, Number 145 (Tuesday, July 29, 1997)]
[Proposed Rules]
[Pages 40714-40716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19941]



  Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / 
Proposed Rules  

[[Page 40714]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[F-97-FLXP-FFFFF-5865-4]
RIN 2050-AE24


Revisions to Criteria for Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Land Disposal Program Flexibility Act of 1996 (LDPFA) 
directed the Administrator of the U.S. Environmental Protection Agency 
(EPA) to provide additional flexibility to the Director of Approved 
States for the owners and operators of landfills that receive 20 tons 
or less of municipal solid waste per day. The additional flexibility 
pertains to alternative frequencies of daily cover, frequencies of 
methane monitoring, infiltration layers for final cover, and means for 
demonstrating financial assurance. The additional flexibility will 
allow the owners and operators of small municipal solid waste landfills 
(MSWLFs) the opportunity to reduce the cost of MSWLF operation while 
still protecting human health and the environment. This proposal 
recognizes, as did Congress in enacting LDPFA, that these decisions are 
best made at the State and local level and, therefore, offers this 
flexibility to approved States.
    In the final rules Section of today's Federal Register, EPA is 
promulgating this amendment as a final rule without prior proposal 
because EPA views this as a noncontroversial action that in effect, 
codifies a legislative directive. Thus, we anticipate no adverse 
comments. A detailed rationale for the amendment is set forth in the 
preamble to the direct final rule. If no adverse comments are received 
in response to this proposal, no further activity is contemplated 
regarding this proposed rule. If EPA receives adverse comments, EPA 
will withdraw the final rule and all public comments received will be 
addressed in a subsequent final rule based on the proposed rule. EPA 
will not institute a second comment period on this action.

DATES: Comments on this proposed rule must be received on or before 
August 28, 1997. An adverse comment will be considered to be any 
comment substantively criticizing the proposal on a basis not already 
provided to EPA in comment.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number F-97-FLXP-FFFFF to: RCRA Docket 
Information Center, Office of Solid Waste (5305G), U.S. Environmental 
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW, Washington, 
DC 20460. Hand deliveries of comments should be made to the Arlington, 
VA, address below. Comments may also be submitted electronically 
through the Internet to: [email protected]. Comments in 
electronic format should also be identified by the docket number F-97-
FLXP-FFFFF. All electronic comments must be submitted as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Commenters should not submit electronically any confidential business 
information (CBI). An original and two copies of CBI must be submitted 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460.
    Public comments and supporting materials are available for viewing 
in the RCRA Information Center (RIC), located at Crystal Gateway I, 
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is 
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling 703 603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. The index and some supporting 
materials are available electronically. See the Supplementary 
Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703 
412-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Mr. Allen J. Geswein, U. S. Environmental 
Protection Agency, Office of Solid Waste (5306W), 401 M Street, SW, 
Washington, DC 20460, 703 308-7261, [GESWEIN.ALLEN @EPAMAIL.EPA.GOV].

SUPPLEMENTARY INFORMATION: The index and the following supporting 
materials are available on the Internet:

Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Daily Cover Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Landfill Gas Monitoring Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Infiltration Layer Requirements for MSWLFs
Memorandum to: RCRA Docket
From: Allen J. Geswein, Environmental Engineer
Subject: Financial Assurance Requirements for MSWLFs

    Follow these instructions to access the information electronically:

WWW: http://www.epa.gov/epaoswer/nonhazardous waste
FTP: ftp.epa.gov
Login: anonymous
Password: your Internet address

    Files are located in /pub/gopher/OSWRCRA.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
rulemaking. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form, as 
discussed above.

Regulated Entities

    Entities potentially regulated by this action are public or private 
owners or operators of municipal solid waste landfills (MSWLFs) that 
dispose of 20 tons or less of municipal solid waste per day, based on 
an annual average. Regulated categories and entities include:

[[Page 40715]]



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                  Category                                      Examples of regulated entities                  
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Industry....................................  Owners or operators of small MSWLFs                               
Municipal Governments.......................  Owners or operators of small MSWLFs                               
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities the EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility would be regulated by this action, you should carefully 
examine the applicability criteria in the proposal. If you have 
questions regarding the applicability of this action to a particular 
facility, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

Preamble Outline

I. Authority
II. Background
III. Additional Information
IV. Consideration of Issues Related to Environmental Justice
V. Impact Analysis
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Executive Order 12875
    E. Unfunded Mandates

I. Authority

    The Agency is proposing these regulations under the authority of 
sections 1008(a)(3), 2002(a), 4004(a), and 4010(c) of the Resource 
Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6907(a)(3), 
6912(a), 6944(a), and 6949a(c).

II. Background

    As set out in detail in the related direct final rule, EPA is 
proposing to issue rules that grant the Director of an Approved State 
the flexibility to establish alternative requirements for certain 
criteria for small MSWLFs. EPA is promulgating revisions to existing 
criteria which would allow a Director of an Approved State, after 
public review and comment, to establish for small MSWLFs, alternative 
frequencies of daily cover application, frequencies of methane gas 
monitoring, and infiltration layers for final cover. Alternative means 
for demonstrating financial assurance for small MSWLFs are also 
discussed in the related direct final rule. When establishing these 
alternative requirements, the Director of an Approved State must, after 
public review and comment, consider the unique characteristics of small 
communities, take into account climatic and hydrogeologic conditions, 
and ensure that any alternative standard is protective of human health 
and the environment.

III. Additional Information

    For additional information, see the corresponding direct final rule 
published in the final rules section of this Federal Register. All 
persons who may wish to comment should review the preamble discussion 
in the direct final rule Federal Register notice.

IV. Consideration of Issues Related to Environmental Justice

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities.
    The Agency does not currently have data on the demographics of 
populations surrounding the small MSWLFs affected by today's rule. The 
Agency does not believe, however, that today's rule granting additional 
flexibility to owners and operators of small MSWLFs will have a 
disproportionately high and adverse environmental or economic impact on 
any minority or low-income group, or on any other type of affected 
community. In addition, any minority group or low-income group affected 
by alternative requirements will have an opportunity to review and 
comment on the alternative requirement proposed by the Director of the 
Approved State prior to its implementation. The Agency believes that 
this rulemaking will enable some minority and/or low-income communities 
to continue to be served by a local landfill at the lowest possible 
cost to residents, including minority and low income residents.

V. Impact Analysis

A. Executive Order 12866

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and therefore subject to OMB review 
and the other provisions of the Executive Order. A significant 
regulatory action is defined by Executive Order 12866 as one that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or rights and obligations or 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

    The Agency believes that this proposed rule does not meet the 
definition of a major regulation because it does not have an annual 
effect on the economy of $100 million or more; nor does the rule fall 
within the other definitional criteria for a significant regulation 
described above. The proposed rule is deregulatory and will result in 
requirements applicable to specific MSWLFs that are protective of human 
health and the environment at a lower cost than would be the case 
without the additional flexibility afforded by these amendments. For 
this reason, the Agency is not conducting a Regulatory Impact Analysis.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally requires an agency to prepare, and make available 
for public comment, a regulatory flexibility analysis that describes 
the impact of a proposed or final rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant adverse impact 
on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small

[[Page 40716]]

entities. The following discussion explains EPA's determination.
    Implementation of the various requirements imposes increased costs 
on small MSWLFs and the small communities, including Tribes, that they 
serve. MSWLFs that dispose of 20 TPD of waste generally serve 
populations of 10,000 persons or less (based on a waste generation rate 
of 4 pounds per person per day). Because these owners/operators may 
lack practicable solid waste management alternatives, such as the 
option of joining regional waste management systems, these communities 
may have been required to absorb higher than necessary costs of 
compliance in the absence of the additional flexibility afforded by 
today's proposed rule.
    The effect of this proposed rule is to provide small entities with 
additional flexibility to meet the requirements of Part 258. The 
proposal would not impose any new burdens on small entities. Therefore, 
pursuant to 5 U.S.C. 605(b), I certify that this proposed rule would 
not have a significant adverse impact on a substantial number of small 
entities. This proposed rule, therefore, does not require a regulatory 
flexibility analysis.

C. Paperwork Reduction Act

    The Agency has determined that there are no new reporting, 
notification, or recordkeeping provisions associated with today's 
proposed rule.

D. Executive Order 12875

    Under Executive Order 12875, Federal agencies are charged with 
enhancing intergovernmental partnerships by allowing State and local 
governments the flexibility to design solutions to problems the 
citizenry is facing. Executive Order 12875 calls on Federal agencies to 
either pay the direct costs of complying with Federal mandates or to 
consult with representatives of State, local, or tribal governments 
prior to formal promulgation of the requirement. The Executive Order 
also relates to increasing flexibility for State, Tribal, and local 
governments through waivers. Today's proposed rule grants additional 
flexibility in complying with the MSWLF criteria, does not impose 
unfunded federal mandates on State, Tribal, and local governments, and 
is being undertaken to ensure that EPA is providing maximum flexibility 
to States, Tribes, and local governments. Additionally, the Agency has 
maintained dialog with States, Tribes, and local governments regarding 
ways of ensuring appropriate flexibility while maintaining protection 
of human health and the environment for small MSWLFs. Therefore, the 
Agency believes that this consultation with States, Tribes, and local 
governments, in addition to the public comment period provided in the 
proposed rules Section of today's Federal Register, satisfies the 
requirement of this Executive Order.

E. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of regulatory actions on State, local, and Tribal governments, 
and the private sector. Under section 202 of the UMRA, EPA generally 
must prepare a written statement, including a cost-benefit analysis, 
for proposed and final rules with ``Federal mandates'' that may result 
in expenditures to State, local, and tribal governments, in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of alternatives and adopt the least 
costly, most cost effective or least burdensome alternative that 
achieves the objective of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. In fact, today's proposed rule provides States 
with additional flexibility that would lower the cost of compliance 
with the Criteria for Municipal Solid Waste Landfills. In accordance 
with section 203, EPA has shared this proposal with State governments 
and asked for comment.

List of Subjects in 40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal.

    Dated: July 23, 1997.
Carol M. Browner,
Administrator.
[FR Doc. 97-19941 Filed 7-28-97; 8:45 am]
BILLING CODE 6560-50-U