[Federal Register Volume 62, Number 145 (Tuesday, July 29, 1997)]
[Rules and Regulations]
[Pages 40708-40713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19942]



[[Page 40707]]

_______________________________________________________________________

Part VII





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 258



Revisions to Criteria for Municipal Solid Waste Landfills; Final Rule 
and Proposed Rule

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

[[Page 40708]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[F-97-FLXF-FFFFF; FRL-5865-3]
RIN 2050-AE24


Revisions to Criteria for Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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

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 Approved States for any 
landfill that receives 20 tons or less of municipal solid waste per 
day. The additional flexibility applies 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 
their costs of MSWLF operation while still protecting human health and 
the environment. This direct final rule recognizes, as did Congress in 
enacting the LDPFA, that these decisions are best made at the State and 
local level and, therefore, offers this flexibility to approved States.
    In the proposed rules Section of today's Federal Register, EPA is 
concurrently proposing and soliciting comment on this rule. If adverse 
comments are received, EPA will withdraw this direct final rule and 
address the comments in a subsequent final rule. EPA will not provide 
additional opportunity for comment.

DATES: This final action will become effective on October 27, 1997 
unless EPA receives adverse comment by August 28, 1997. If such adverse 
comment is received, EPA will withdraw this direct final rule by 
publishing timely notice in the Federal Register.

ADDRESSES: 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 Docket Identification 
Number is F-97-FLXF-FFFFF. 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, 
D.C. 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.

Regulated Entities

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

------------------------------------------------------------------------
                Category                  Examples of regulated entities
------------------------------------------------------------------------
Industry...............................  Owners or operators of small   
                                          MSWLFs.                       
Municipal Governments..................  Owners or operators of small   
                                          MSWLFs.                       
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities EPA is now aware could 
potentially be impacted by today's action. It is possible that other 
types of entities not listed in the table could also be affected. To 
determine whether your facility would be impacted 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. Summary of the Direct Final Rule
IV. Description of Direct Final Rule
    A. Daily Cover
    B. Methane Gas Monitoring
    C. Final Cover and Discussion of Performance Standard in 
Sec. 258.60(a)(1)
    1. Additional Flexibility
    2. Applicability to ``Qualifying Small MSWLFs'' that Close
    D. Financial Assurance
V. Consideration of Issues Related to Environmental Justice
VI. Impact Analysis
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Executive Order 12875
    E. Unfunded Mandates
    F. Small Business Regulatory Enforcement Act of 1996

I. Authority

    The Agency is promulgating these regulations under the authority of 
sections 1008(a)(3), 2002(a), 4004(a), and 4010(c) of the Resource

[[Page 40709]]

Conservation and Recovery Act (RCRA), as amended, 42 USC 6907(a)(3), 
6912(a), 6944(a), and 6949a(c).

II. Background

    When EPA promulgated the Revised Criteria for Municipal Solid Waste 
Landfills on October 9, 1991 (56 FR 50978), the Agency included an 
exemption for owners and operators of certain small municipal solid 
waste landfills (MSWLF) units from the Design Criteria (Subpart D) and 
Ground-Water Monitoring and Corrective Action (Subpart E) requirements 
of the criteria. To qualify for the exemption, the small landfill could 
only accept twenty tons or less of municipal solid waste per day (based 
on an annual average), have no evidence of existing ground-water 
contamination, and either: (1) Serve a community that experiences an 
annual interruption of at least three consecutive months of surface 
transportation that prevents access to a regional waste management 
facility, or (2) be located in an area that annually receives less than 
or equal to 25 inches of precipitation and serves a community that has 
no practicable waste management alternative. In adopting this limited 
exemption, the Agency believed it had complied with the statutory 
requirement to protect human health and the environment, taking into 
account the practicable capabilities of small landfill owners and 
operators.
    In January 1992, the Sierra Club and the Natural Resources Defense 
Council (NRDC) filed a petition with the U.S. Court of Appeals, 
District of Columbia Circuit, for review of the Subtitle D Criteria. On 
May 7, 1993, the Court of Appeals determined in Sierra Club v. United 
States Environmental Protection Agency, 992 F.2d 337 (D.C. Cir. 1993) 
that under RCRA section 4010(c), the only factor EPA could consider in 
determining whether facilities must monitor groundwater was whether 
such monitoring was ``necessary to detect contamination,'' not whether 
such monitoring is ``practicable.'' Thus, the Court vacated the small 
landfill exemption as it pertained to ground-water monitoring, and 
remanded that portion of the final rule to the Agency for further 
consideration.
    Consequently, as part of the Agency's October 1, 1993 final rule 
(58 FR 51536; October 1, 1993), EPA rescinded the exemption from 
ground-water monitoring for qualifying small MSWLFs. Also at that time, 
EPA delayed the effective date of the MSWLF criteria for qualifying 
small MSWLFs for two years (until October 9, 1995) to allow owners and 
operators of such small MSWLFs adequate time to decide whether to 
continue to operate in light of the Court's ruling, and to prepare 
financially for the added costs if they decided to continue to operate.
    On October 6, 1995, EPA issued a final rule extending the general 
compliance date of the MSWLF criteria for two years, from October 9, 
1995 to October 9, 1997, for qualifying small MSWLFs. The purpose of 
the extension was to allow Approved States time to determine 
alternative ground-water monitoring requirements for qualifying small 
MSWLFs. This means that qualifying small MSWLFs are not subject to the 
requirements of 40 CFR part 258 until October 9, 1997, so long as the 
MSWLF continues to qualify for the small landfill exemption in 40 CFR 
258.1(f)(1). Should a MSWLF no longer meet the conditions of 
Sec. 258.1(f)(1), that landfill must comply with all of the 
requirements of 40 CFR part 258, including the design and ground-water 
monitoring requirements. Until October 9, 1997, owners and operators of 
qualifying small MSWLFs are subject to the requirements of 40 CFR part 
257, Subpart A. Because owners and operators of qualifying small MSWLFs 
may be subject to more stringent State requirements, these owners and 
operators are encouraged to work with their respective State programs 
to understand the regulatory requirements for their facilities.
    On March 26, 1996, the President signed the ``Land Disposal Program 
Flexibility Act'' (LDPFA), Public Law 104-119, which among other 
things, reinstated the exemption from ground-water monitoring for 
qualifying small MSWLFs. EPA has issued a final rule reinstating the 
exemption (61 FR 50410; September 25, 1996).
    The law also directed the Agency to issue rules that grant the 
Director of an Approved State the flexibility to establish alternative 
requirements for all MSWLFs that receive 20 tons or less of municipal 
solid waste per day, based on an annual average. The additional 
flexibility is not limited to small MSWLFs in dry or remote locations; 
rather, the alternative requirements may be applied to any MSWLF 
receiving 20 tons or less of municipal solid waste as determined by the 
Director of an Approved State. Specifically, the LDPFA directed EPA to 
promulgate revisions to existing criteria which would allow an approved 
State to establish for small MSWLFs alternative frequencies of daily 
cover application, frequencies of methane gas monitoring, infiltration 
layers for final cover, and means for demonstrating financial 
assurance. These alternative requirements are to take into account 
climatic and hydrogeologic conditions and are to be protective of human 
health and the environment. There is no provision in the LDPFA that 
directed the Agency to extend the exemption from ground-water 
monitoring to other than qualifying small MSWLFs; therefore, the 
exemption from ground-water monitoring will continue to apply only to 
small MSWLFs in either dry or remote areas. For the reasons set forth 
in a prior notice, EPA has no plans to extend this exemption to all 
small MSWLFs (56 FR 50989, October 9, 1991).

III. Summary of the Direct Final Rule

    This direct final rule amends the Revised Criteria for Municipal 
Solid Waste Landfills to allow the Director of an Approved State the 
ability to grant additional flexibility to small MSWLFs for alternative 
frequencies of daily cover, alternative frequencies of methane 
monitoring, and alternative infiltration layers for final cover. When 
providing this flexibility, the State Director must consider, after 
public review and comment, the unique characteristics of small 
communities and take into account climatic and hydrogeologic conditions 
while ensuring that any alternative requirements are protective of 
human health and the environment.
    The amendments contained in today's direct final rule may be 
applied by the Director of Approved States to all MSWLFs receiving 20 
tons or less of municipal solid waste per day, based on an annual 
average, as appropriate.
    In the proposed rules Section of today's Federal Register, EPA is 
proposing this identical rule and soliciting public comment. If adverse 
comments are received, EPA will withdraw this direct final rule and 
address the comments in a subsequent final rule. EPA will not provide 
additional opportunity for comment.

IV. Description of Direct Final Rule

    The purpose of this direct final rule is to allow the Director of 
an Approved State to establish alternative requirements to certain 
provisions of the Revised Criteria for Municipal Solid Waste Landfills 
for small MSWLFs, provided the Director determines that the alternative 
requirements are protective of human health and the environment.

A. Daily Cover

    Section 258.21 currently requires owners or operators to cover 
disposed solid waste at the end of each operating day, or more 
frequently if necessary, with six inches of earthen material.

[[Page 40710]]

Alternative materials of an alternative thickness may be used when 
approved by the Director of an Approved State if the owner or operator 
demonstrates that the alternative material and thickness control 
disease vectors, fires, odors, blowing litter, scavenging without 
presenting a threat to human health and the environment. The use of 
daily cover to control disease vectors, fires, odors, blowing litter, 
and scavenging has been a requirement of Federal regulations applicable 
to MSWLFs for nearly twenty years (40 CFR 257.3-6(a) and (c)(4)). At 
least 45 States have had this requirement for ten or more years.
    While the owner or operator is required to place cover on waste at 
the end of each operating day, the owner or operator can reduce the 
cost of daily cover by limiting the number of days per week that waste 
is accepted. If the facility accepts waste for disposal two days per 
week, then daily cover is required on those two operating days and not 
on the other days of the week. While Sec. 258.21(c) allows a temporary 
waiver of daily cover during extreme seasonal climatic conditions, the 
current rules do not allow the State to substantially alter the 
requirement that cover be applied on a daily basis.
    Consistent with the LDPFA, to provide additional flexibility to 
Approved States, this rule contains a provision that allows the 
Director of an Approved State, after public review and comment, to 
establish alternative frequencies for daily cover for small MSWLFs 
provided that the Director takes into account climatic and 
hydrogeologic conditions and determines that the alternative 
requirements are protective of human health and the environment.

B. Methane Gas Monitoring

    The decomposition of municipal solid waste produces methane, an 
explosive gas. Section 258.23 requires quarterly monitoring for methane 
gas to control the possibility of an explosion and does not afford the 
opportunity for the Director of an Approved State to allow monitoring 
on a less frequent basis. The current rule further requires that if the 
methane levels exceed the allowable levels, a danger of an explosion 
may exist, and the Subtitle D Criteria establish the actions that must 
be taken to control the explosion potential. These allowable levels are 
based on safety considerations and are derived from allowable 
concentrations of methane contained in mining regulations. EPA 
estimates that monitoring can cost less than $100 per quarter.
    However, consistent with the LDPFA, this rule contains a provision 
that allows the Director of an Approved State to establish alternative 
frequencies of methane monitoring for any small MSWLFs provided that 
the Director, after public review and comment, takes into account 
climatic and hydrogeologic conditions and determines that the 
alternative requirements are protective of human health and the 
environment.

C. Final Cover and Discussion of Performance Standard in 
Sec. 258.60(a)(1)

1. Additional Flexibility
    Section 258.60(a) establishes a two-part performance standard for 
final cover of MSWLFs. The final cover must keep the closed facility as 
dry as possible by reducing infiltration and performs the added 
function of minimizing maintenance by reducing erosion. Sections 
258.60(a) (1) through (3) indicate the types of layers that are known 
to provide appropriate control. Section 258.60(b) allows the Director 
of an Approved State to approve alternative designs that provide an 
equivalent reduction in infiltration and an equivalent protection from 
wind and water erosion.
    The purpose of the performance standard is to reduce the 
possibility of the ``bathtub effect'' which can lead to ground-water 
contamination. The ``bathtub effect'' occurs when more liquid enters 
the MSWLF than escapes causing the MSWLF to fill with liquid. As the 
unit fills with liquid, more leachate is formed, the hydraulic head in 
the MSWLF increases, causing the leachate to migrate to groundwater.
    The Agency is aware that there may have been misunderstandings 
regarding the performance standard in Sec. 258.60(a)(1) which addresses 
the permeability of the final cover system. The most common 
misconception is that this provision dictates that in all cases the 
infiltration barrier must include a flexible membrane if the landfill 
contains a flexible membrane liner (FML) or if the permeability of the 
soil underlying the landfill is comparable to the permeability of an 
FML. This may not necessarily be true. The Agency believes that in 
certain site-specific situations it may be possible to construct an 
infiltration layer that achieves an equivalent reduction in 
infiltration without matching the permeability in the liner material.
    In selecting the alternative infiltration barrier that achieves an 
equivalent reduction in infiltration, the Director of an Approved State 
may base the decision on mathematical models (e.g., EPA's Hydrologic 
Evaluation of Landfill Performance (HELP)) or can utilize mass water 
balance calculations. The design of a final cover system that minimizes 
run-on and maximizes factors such as run-off, lateral drainage within 
the cover system, water storage capacity in the cover, and the ability 
of the vegetative layer to utilize water may meet the performance 
standard (``have a permeability less than or equal to the permeability 
of any bottom liner system'') without the need for a flexible membrane. 
In making this decision, it may be feasible that the Director of the 
Approved State could establish an alternative infiltration layer 
requirement that would be applicable Statewide for MSWLFs or could make 
the decision on a site-specific basis for individual MSWLFs.
    The LDPFA requires that EPA provide additional flexibilities to the 
Director of Approved States regarding final cover design than that 
afforded by the current regulations at Sec. 258.60(a)(1). Thus, 
consistent with the LDPFA, in order to provide this additional 
flexibility to Approved States, today's rule contains a provision that 
allows the Director of an Approved State to establish alternative 
infiltration barriers in the final cover for any small MSWLFs provided 
that the Director, after public review and comment, takes into account 
climatic and hydrogeologic conditions and determines that the 
alternative requirements are protective of human health and the 
environment.
2. Applicability to ``Qualifying Small MSWLFs'' That Close
    In extending the effective date for qualifying small MSWLFs in dry 
or remote locations, EPA amended section 258.1(d) to exempt such small 
MSWLFs which stop receiving waste before October 9, 1997 from having to 
comply with Part 258 requirements except for the final cover 
requirements in Sec. 258.60(a) [60 FR 52337; October 6, 1995]. Such a 
qualifying MSWLF would have to complete the final cover requirements 
within one year (60 FR 52337; October 6, 1995). During the course of 
developing this direct final rule, a question arose as to whether such 
a qualifying small MSWLF in a dry or remote location which stops 
receiving waste prior to the effective date of October 9, 1997 may 
utilize an alternative final cover design authorized by the Director of 
an Approved State, including an alternative final cover design for the 
infiltration layer being addressed in today's rule. This question arose 
because the language in Sec. 258.1(d)(1) requiring qualifying small 
MSWLFs to comply with final cover requirements only refers to the 
requirements under Sec. 258.60(a) which sets forth a federal cover 
design.

[[Page 40711]]

    Despite referring only to the federal final cover design standard, 
EPA intended to provide maximum flexibility in complying with the 
revised criteria to owners or operators of MSWLFs located in States 
with approved programs (56 FR 50992; Oct. 9, 1991). This intent 
extended to allowing MSWLFs located in Approved States to utilize a 
final cover design which the Director has determined meets the 
performance standard in Sec. 258.60(b) [56 FR 51040; Oct. 9, 1991]. The 
final cover requirement for MSWLFs which stop receiving waste prior to 
the effective date is consistent with many State programs, thus, EPA 
believes that qualifying small landfills which stop receiving waste 
prior to October 9, 1997 may utilize any of the final cover designs, 
including an Approved State alternative for the infiltration layer as 
specified in today's rule, which meet the performance standards in 
Sec. 258.60(b).

D. Financial Assurance

    Subpart G of Part 258 contains the Financial Assurance requirements 
applicable to MSWLFs. As noted in the preamble to the Revised Criteria 
for Municipal Solid Waste Landfills (56 FR 51104; October 9, 1991), EPA 
has determined that financial responsibility is a necessary component 
of the regulatory program and is essential to protecting human health 
and the environment. Further, EPA considered its requirements as the 
minimum that it considered necessary. ``The financial assurance 
requirements in today's rule have been structured such that the 
assurance is required only for costs of activities that are certain to 
be needed, and the amount of financial assurance is based on site-
specific estimates of the costs of closure, post-closure care, and 
corrective action. Less stringent financial assurance requirements 
would not ensure that adequate funds will be available when needed to 
cover these costs.'' (56 FR 51105; October 9, 1991). Having adequate 
funds available is necessary since, ``Technical requirements are 
effective in protecting human health and the environment only if funds 
are available in a timely manner to conduct these activities'' (ibid). 
EPA was and remains concerned that a general relaxation of the 
standards beyond the considerable flexibility EPA is already providing 
might not be protective.
    However, EPA's rules allow States to adopt a range of approaches 
that would also be protective and promote compliance by all owners and 
operators. In establishing its financial assurance regulations for 
MSWLFs, EPA provided several federally specified mechanisms, and the 
option for States to determine mechanisms that would meet a highly 
flexible performance standard. This performance standard allows the 
Director of an Approved State to approve any financial mechanism that 
(a) ensures sufficient coverage, (b) ensures funds are available in a 
timely fashion when needed, (c) is obtained by the deadline, and (d) is 
legally valid, binding, and enforceable. EPA encouraged State Directors 
to consider adopting a broad range of financial approaches to promote 
compliance by all owners and operators.
    Generally, these requirements became effective for MSWLFs on April 
9, 1997, although there is a provision that delays the effective date 
for qualifying small MSWLFs until October 9, 1997. Additionally, EPA 
recently published an amendment (61 FR 60327; November 27, 1996) to the 
Criteria that allows the Director of an Approved State to delay the 
effective date of the Financial Assurance requirements for an 
additional 12 months beyond the April 9, 1997 effective date, if the 
owner or operator demonstrates to the Director of an Approved State 
that the applicable effective date does not provide sufficient time to 
comply with these requirements and that such a waiver will not 
adversely affect human health and the environment.
    The November 27, 1996, amendment also established a financial test 
for local governments, including local governments that own or operate 
small MSWLFs. This test allows a local government to use its financial 
strength to avoid incurring the expenses associated with the use of a 
third-party financial instrument (61 FR 60327).
    Additionally, this summer EPA intends to promulgate a regulation 
providing a financial test and corporate guarantee as a mechanism 
private owners and operators of MSWLFs may use to demonstrate financial 
assurance. This test will extend to private owners and operators the 
regulatory flexibility already provided to municipal owners or 
operators of MSWLFs. These regulations would allow a firm to 
demonstrate financial assurance by passing a financial test. For firms 
that qualify for the financial test, this mechanism will be less costly 
than the use of a third party financial instrument such as a trust fund 
or a surety bond.
    EPA believes that considerable additional flexibility has been or 
soon will be afforded to the Director of Approved States. These changes 
include the following;
    a. the additional flexibility to extend the effective date for 
financial assurance, as described above,
    b. the local government test, and
    c. the corporate financial test.
    These flexibilities coupled with the flexibility available to 
Directors of Approved States in the Criteria for MSWLFs promulgated on 
October 9, 1991, also described above, provide the flexibility 
contemplated by the LDPFA. Thus, today's rule does not include any 
additional changes to the Financial Assurance requirements. As 
described above, EPA will establish an additional area of flexibility 
when the corporate financial test is promulgated later this fiscal 
year.

V. Consideration of Issues Related to Environmental Justice

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities.
    The Agency 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.

VI. Impact Analysis

A. Executive Order 12866

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and therefore subject to OMB review 
and the other

[[Page 40712]]

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 direct final 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 regulatory 
action described above. The 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 entities. The following discussion explains 
EPA's determination.
    Implementation of the various requirements imposes increased costs 
on small MSWLFs and the small communities, including small Indian 
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 rule.
    The effect of this rule is to provide small entities with 
additional flexibility to meet the requirements of Part 258. The rule 
does not impose new burdens on small entities. Therefore, pursuant to 5 
U.S.C. 605b, I hereby certify that this rule will not have a 
significant adverse impact on a substantial number of small entities. 
This 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 final 
rule.

D. Executive Order 12875

    Under Executive Order 12875, Federal agencies are charged with 
enhancing intergovernmental partnerships by allowing State and local 
governments the flexibility to design solutions to problems the 
citizenry is facing. Executive Order 12875 calls on Federal agencies to 
either pay the direct costs of complying with Federal mandates or to 
consult with representatives of State, local, or Tribal governments 
prior to formal promulgation of the requirement. The Executive Order 
also relates to increasing flexibility for State, Tribal, and local 
governments through waivers. Today's notice 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 a 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 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 rule provides States with additional 
flexibility that will lower the cost of compliance with the Criteria 
for Municipal Solid Waste Landfills. In accordance with section 203, 
EPA has worked closely with the States in the development of this rule.

F. Small Business Regulatory Enforcement Act of 1996 (SBREFA)

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Act of 1996, before this

[[Page 40713]]

rule takes effect, EPA has submitted a report containing this rule and 
other required information to the U.S. Senate, U.S. House of 
Representatives, and the Comptroller General of the General of the 
General Accounting Office prior to publication of this 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, Reporting and recordkeeping requirements, 
Waste treatment and disposal.

    Dated: July 23, 1997.
Carol M. Browner,
Administrator.
    For reasons set out in the preamble, Title 40 of the Code of 
Federal Regulations is amended as follows:

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

    1. The authority citation for part 258 continues to read as 
follows:

    Authority: 42 U.S.C. 6907(a)(3), 6912(a), 6944(a) and 6949a(c); 
33 U.S.C. 1345 (d) and (e).

    2. Section 258.21 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 258.21  Cover material requirements.

* * * * *
    (d) The Director of an Approved State may establish alternative 
frequencies for cover requirements in paragraphs (a) and (b) of this 
section, after public review and comment, for any owners or operators 
of MSWLFs that dispose of 20 tons of municipal solid waste per day or 
less, based on an annual average. Any alternative requirements 
established under this paragraph must:
    (1) Consider the unique characteristics of small communities;
    (2) Take into account climatic and hydrogeologic conditions; and
    (3) Be protective of human health and the environment.
    3. Section 258.23 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 258.23  Explosive gases control.

* * * * *
    (e) The Director of an Approved State may establish alternative 
frequencies for the monitoring requirement of paragraph (b)(2) of this 
section, after public review and comment, for any owners or operators 
of MSWLFs that dispose of 20 tons of municipal solid waste per day or 
less, based on an annual average. Any alternative monitoring 
frequencies established under this paragraph must:
    (1) Consider the unique characteristics of small communities;
    (2) Take into account climatic and hydrogeologic conditions; and
    (3) Be protective of human health and the environment.
    4. Section 258.60 is amended by adding a new paragraph (b) (3) to 
read as follows:


Sec. 258.60  Closure criteria.

* * * * *
    (b) * * *
    (3) The Director of an Approved State may establish alternative 
requirements for the infiltration barrier in a paragraph (b)(1) of this 
section, after public review and comment, for any owners or operators 
of MSWLFs that dispose of 20 tons of municipal solid waste per day or 
less, based on an annual average. Any alternative requirements 
established under this paragraph must:
    (i) Consider the unique characteristics of small communities:
    (ii) Take into account climatic and hydrogeologic conditions; and
    (iii) Be protective of human health and the environment.
* * * * *
[FR Doc. 97-19942 Filed 7-28-97; 8:45 am]
BILLING CODE 6560-50-U