[Federal Register Volume 63, Number 201 (Monday, October 19, 1998)]
[Notices]
[Pages 55863-55872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27970]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6177-6]


Alaska: Partial Program Adequacy Final Determination of State 
Class I and II Municipal Solid Waste Landfill Permit Program--and 
Partial Program Adequacy Tentative Determination of State Class III 
Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Resource Conservation and Recovery Act (RCRA), as amended 
by the Hazardous and Solid Waste Amendments of 1984, requires States to 
develop and implement permit programs to ensure that municipal solid 
waste landfills which may receive hazardous household waste or small 
quantity generator waste will comply with the revised Federal landfill 
criteria. RCRA also requires the Environmental Protection Agency (EPA) 
to determine whether States have adequate ``permit'' programs for 
municipal landfills.
    The Alaska Department of Environmental Conservation (ADEC) and its 
Division of Environmental Health (DEH) applied on February 12, 1996 for 
a partial determination of adequacy under RCRA. EPA reviewed Alaska's 
application and subsequent supplemental information provided during 
March through October 1996. In the Federal Register on November 25, 
1996, EPA published its tentative determination of adequacy for those 
portions of ADEC's Municipal Solid Waste landfill (MSWLF) permit 
program that were adequate to assure compliance with the federal MSWLF 
criteria. Alaska's application for partial program adequacy 
determination was made available for public review during EPA's public 
comment period which ended on January 23, 1997.
    During the period that EPA was evaluating the public comments, 
proposals were initiated by the Alaska Legislature that included 
eliminating the solid waste program or reducing ADEC's Solid Waste 
staff to less than half. The final budget reductions established in 
late May 1997, for the 1998 fiscal year (FY-98), were significant but 
not as severe as originally proposed. (Alaska's Fiscal years begin on 
July 1.) In its letter of May 30, 1997, ADEC states that the final 
dollar budget for FY-98 was set at 13% lower than for the FY-97 solid 
waste program. In particular, the State's program for its Class III 
municipal landfills has been significantly changed. Details on the 
budget reductions are discussed in Section B (State of Alaska) of this 
document. EPA believes that an additional EPA public comment period on 
the Class III program should be provided. Consequently, the agency is 
not including in today's final-partial approval the elements of its 
tentative determination of November 25, 1996, that applied to the 
State's Class III landfill program.
    On August 9, 1997, the State of Alaska enacted its Environmental 
Audit Privilege and Immunity Law. Based on the information provided by 
the State on this law, and the State's application for program 
approval, EPA believes that Alaska has the authority necessary to 
administer a partially approved RCRA subtitle D permit program for 
municipal solid waste landfills. Today's partial approval does not 
reflect a position by the agency regarding the state's authority to 
administer any other federally authorized, delegated, or approved 
environmental program.

[[Page 55864]]

    Today's document promulgates EPA's Final Partial approval of 
Alaska's program for the State's Class I and Class II municipal 
landfills--plus Alaska's criteria for disposal of hazardous wastes from 
Conditionally Exempt Small Quantity Generators (CESQG) at these two 
categories of municipal landfills exclusively. Second, this document 
withdraws the portions of the Tentative Partial approval published in 
Federal Register of November 25, 1996, that addressed the Class III 
elements of Alaska's program. Third, today's document introduces a new 
Tentative Partial approval of Alaska's Class III landfill program. It 
is based on Alaska's retaining the existing 2010 ``sunset'' date for 
upgrading Class III landfills to Class II status, and on Alaska's 
revised solid waste budgets and program revisions. This third component 
also acknowledges Alaska's announced intention to eliminate the 2010 
deadline, provided this is done in accordance with the procedures and 
exemption authority established by the federal Land Disposal Program 
Flexibility Act of 1996. EPA's written comment on the procedural 
aspects of implementing Class III exemptions under ADEC's proposed 
changes (of August 1, 1997) to its municipal landfill regulation is 
discussed in Section B.
    On and after the effective date of today's Final-Partial approval, 
the State Director will be able to allow Class I and Class II landfills 
to benefit from the site-specific flexibility elements that are 
contained in the 40 CFR Part 258 municipal landfill criteria. Alaska's 
sub-categories of permafrost landfills and MSW-ash monofills are being 
included in today's approval. EPA is also approving the State's 
regulatory requirement that Conditionally Exempt Small Quantity 
Generator (CESQG) hazardous-waste disposal must be placed solely in a 
Class I or Class II municipal landfill. Alaska's 18 AAC 60 rule is in 
accordance with EPA's recent regulatory changes that apply to CESQG 
wastes.
    Financial assurance requirements, and one or more narrow 
inconsistencies versus Part 258 as listed in the Decision Section of 
this document, are not included in today's partial approval. Alaska has 
included the addition of financial assurance in its August 1997 
proposed regulatory changes. (EPA finalized its own financial assurance 
for local governments on November 27, 1996.) ADEC plans to revise the 
remainder of its permit program and apply to EPA for full program 
approval.
    The portions of the Alaska program in today's Final Partial 
approval for Class I and Class II municipal landfills, and the portions 
in today's Tentative Partial approval for Class III municipal 
landfills, are described in Section D (Decision) of this document.

DATES: The determination of partial adequacy for Alaska's Class I and 
Class II landfill program shall be effective October 19, 1998.
    All Comments on today's new tentative partial determination of 
adequacy, of Alaska's application for a partial approval with respect 
to the State's Class III municipal landfill program, must be received 
by EPA Region 10 by the close of business on January 26, 1999, Tuesday. 
(There is no comment period on the Class I and Class II landfill 
portions of today's actions. That period was provided under EPA's 
Tentative Determination of November 25, 1996.)
    If, and only if, sufficient interest in having a public hearing is 
requested on or before December 4, 1998, Friday, a public hearing to 
receive oral and written testimony on EPA's tentative determination 
will be held on January 26, 1999, Tuesday, from 1:30 p.m. until 3:30 
p.m. If more time for receiving testimony is needed, EPA may extend the 
closing time up to 5:00 p.m. on this date. The hearing, if held, will 
be at the Federal Building, 222 West 7th Avenue, Anchorage, Alaska, 
99513. Members of ADEC will attend EPA's public hearing.
    Requests for a public hearing must be in writing and must be 
received by the EPA contact shown in this document before the close of 
business on December 4, 1998, Friday, and should include a statement on 
the writer's reason for wanting a public hearing. EPA will determine, 
within twelve calendar days of the date by which requests must be 
received, whether a public hearing is warranted. After the twelve days, 
anyone may contact the EPA person listed in the CONTACTS section to 
find out if 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)-269-7653; and at 610 University Avenue, Fairbanks, AK 99709, 
Attn: Ms. Kris McCumby, (907)-451-2108; 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: Mr. 
Steven B. Sharp, mail code (WCM-128), U.S. EPA Region 10, 1200 Sixth 
Avenue, Seattle, WA, 98101; fax (206)-553-8509, telephone (206)-553-
6517.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria (40 CFR Part 
258) for municipal solid waste landfills (MSWLFs). Section 
4005(c)(1)(B) of Subtitle D of the Resource Conservation and Recovery 
Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 
1984 (HSWA), requires States to develop and implement permit programs 
to ensure that MSWLFs comply with the Federal Criteria under Part 258. 
Section 4005(c)(1)(C) requires that EPA determine the adequacy of State 
municipal solid waste landfill permit programs to ensure that 
facilities comply with the revised Federal Criteria (40 CFR Part 258)--
but does not mandate issuance of a rule for such determinations. EPA is 
currently developing an approval rule and published a proposed version 
in the
1/26/96 Federal Register. The relationship to Tribal programs is 
discussed later in this section.
    Although not mandated by RCRA, EPA proposed in the Federal Register 
(61 FR 2584) on January 26, 1996, a rule that specifies the 
requirements which State (and Tribal) programs must satisfy to be 
determined adequate. The name of this rule was the State/Tribal 
Implementation Rule (STIR). The basis for EPA's inclusion of Tribal 
approvals in the STIR was discussed in the preamble to the proposal.
    Subsequent to EPA's publishing the proposed STIR rule, the United 
States Court of Appeals for the District of Columbia Circuit issued its 
opinion on a petition from plaintiffs concerning EPA's approval of the 
solid waste program of the Campo Band of Mission Indians. In its 
opinion filed on October 29, 1996, the Court determined that EPA lacks 
authority under RCRA to approve the solid waste management plan 
[program] of an Indian Tribe. Consequently, EPA is currently limiting 
its solid waste program approvals to State programs. EPA expects to 
finalize the STIR rule in the near future with removal of the elements 
relating to

[[Page 55865]]

approval of Tribal programs. In the interim, EPA is now using the name 
``State Implementation Rule'' (SIR) for reference to the proposed STIR 
rule of January 26, 1996, (Federal Register, 61 FR 2584) and for 
reference to the existing STIR guidance of 1993 that EPA has used in 
connection with State approvals. The Federal Court observed, in the 
Campo Band decision, that the Band could seek EPA approval/ruling for a 
site-specific regulation as a way of obtaining access to the 
flexibility that is available to approved States. EPA has developed a 
petition-procedure guidance for handling Tribal flexibility requests.
    Since RCRA does not mandate that a rule must be in place, EPA has 
approved and will continue to approve adequate State MSWLF permit 
programs as applications are submitted. These approvals are not 
dependent on final promulgation of the SIR. Prior to the final 
promulgation of SIR, adequacy determinations will be made based on the 
statutory authorities and requirements. In addition, States may use the 
proposed rule of January 26, 1996, as an aid in interpreting these 
requirements. EPA believes that early approvals have an important 
benefit. Approved State permit programs provide interaction between the 
State and the owner/operator regarding site-specific permit conditions. 
Only those owners/operators located in States with approved permit 
programs can use the site-specific flexibility provided by Part 258 to 
the extent the State permit program allows such flexibility.
    EPA notes that regardless of the approval status of a state program 
and the permit status of any facility, the federal landfill criteria 
will apply to all permitted and unpermitted MSWLF facilities. The 
exemption authority in the Land Disposal Program Flexibility Act of 
1996, that pertains only to certain-village landfills in Alaska, is 
discussed in Section B (State of Alaska) of this document.
    EPA has allowed, and has also proposed in the SIR to allow, partial 
approvals if: (1) The Regional Administrator determines that the State 
permit program largely meets the requirements for ensuring compliance 
with Part 258; (2) changes to a limited part(s) of the State permit 
program are needed to meet these requirements; and, (3) provisions not 
included in the partially approved portions of the State permit program 
are a clearly identifiable and separable subset of Part 258. These 
requirements will address the potential problems posed by the dual 
State and Federal regulatory controls following the October 9, 1993, 
effective date, and amended dates thereof, of the Federal regulations. 
On each effective date, Federal rules covering any portion of a State's 
program that has not received EPA approval continues to be 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 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 permit program that meet the 
requirements and provide the State 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 permitting agency to take advantage 
of the Criteria's flexibility for those portions of the program which 
have been approved.
    EPA has approved portions of over 46 State MSWLF permit programs 
prior to the promulgation of the final SIR. EPA interprets the 
requirements for States to develop ``adequate'' programs for permits or 
other forms of prior approval to impose several minimum requirements. 
First, each State must have enforceable standards for new and existing 
MSWLFs that are technically comparable to EPA's revised MSWLF criteria. 
Next, the State 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 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 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.
    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. As provided 
in the October 9, 1991, municipal landfill rule, EPA's Subtitle D 
standards were set to take effect nationwide in October 1993. The 
effective dates for certain portions of the criteria were subsequently 
postponed, with most all of the EPA standards becoming effective as of, 
or before, October 9, 1997. On April 7, 1995, EPA issued a Federal 
Register Rule extending the effective date of the 40 CFR Part 258, 
Subpart G requirements relating to Financial Assurance until April 9, 
1997, and for small MSWLFs that meet the conditions of Sec. 258.1(f)(1) 
until October 9, 1997. Consequently, any portions of the Federal 
Criteria which are not included in an approved State program, by the 
applicable effective dates, would apply directly to the owner/operator 
without any approved State flexibility.
    On November 27, 1996, EPA promulgated its rule for Financial 
Assurance Mechanisms for Local Government Owners and Operators of 
MSWLFs. This rule adds paragraph (c), as an amendment to Sec. 258.70 of 
Subpart G. It allowed the director of an approved State to waive the 
financial assurance requirements of Subpart G up to April 9, 1998, for 
good cause if an owner or operator makes a satisfactory demonstration, 
per new paragraph (c), to the State Director.
    EPA Regions will determine whether a State has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
expects States 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 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 SIR 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 revised a broad range of its disposal regulations. 
Concurrently, ADEC reorganized in a manner that by the summer of 1996 
had already begun showing results in terms of greater communication 
with small landfills. The Alaska Department of Environmental 
Conservation (ADEC) has assigned solid waste management to its Division 
of Environmental Health (DEH), which oversees the entire program. Solid 
Waste receives assistance from other programs within DEH, and to a 
small extent from other Divisions 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. Alaska went public with its 
proposed regulations in September 1993 and, after

[[Page 55866]]

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. It was revised, primarily for addition of a new fee 
structure, on June 28, 1996. In autumn 1997, DEH filled the two 
vacancies that had been open for over a year, thus bringing its solid 
waste staff up to the level budgeted by the legislature in 1997 and 
1998 and further assuring effective implementation of its program. 
Alaska's 18 AAC 60 also includes a requirement that all conditionally 
exempt small quantity generator (CESQG) waste must be disposed of in a 
Class I or Class II municipal landfill. In this respect (which is 
discussed in more detail below), Alaska is one of about twenty States 
that already have achieved this level of regulatory protection. Today's 
action on the portions being approved is an endorsement by EPA of the 
proficiency of Alaska's program for Class I and Class II municipal 
landfills in particular. It is also confirmation that EPA believes that 
the State, with its existing program for Class III landfills, is in the 
best position to administer solid waste disposal oversight and 
assistance for very small landfills in Alaska.
    On February 12, 1996, Region 10 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. Alaska provided clarifying written information, as additions 
to its application, during the period that EPA conducted its review. 
The agency published on November 25, 1996, in the Federal Register (61 
FR 60000) its tentative determination that most portions (as noted in 
the discussions therein) of the State's municipal solid waste landfill 
(MSWLF) program would 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 by Alaska for EPA approval 
at this time.
    In the Notice of tentative determination, EPA announced the 
availability of the application for public comment. Although not 
required by RCRA, EPA offered to hold a public hearing on January 23, 
1997. EPA determined on January 6, 1997, that there was not sufficient 
interest to hold a public meeting. The public comment period ended on 
the January 23, 1997.
    During the period that EPA was reviewing and evaluating the public 
comments, proposals were initiated by the Alaska Legislature in early 
1997 either to eliminate the Solid Waste program or to reduce ADEC's 
Solid Waste staff to less than half. Region 10 of EPA officially 
suspended its review on March 14 pending the outcome of the 
deliberations. The final action, near the end of May, was not as 
severe. (EPA's review was recommenced on June 10.) However, the 
Legislature significantly reduced the budgeted dollar amounts and 
number of personnel for the 1998 Fiscal year (FY-98) that began on July 
1, 1997. As a result, new planning was initiated by ADEC in May and 
changes were made to its solid waste program activities--some of which 
are significantly different from the program described in the 
application of 1996. In particular, the State's program for its Class 
III landfills has been changed, as described in the following 
paragraph. Consequently, EPA is withdrawing the elements of its 
tentative approval of November 25, 1996, that applied to the Class III 
landfill component of the application--and today is introducing a new 
tentative partial approval for the Class III program.
    In its letters of May 30, 1997, and August 8, 1997, ADEC wrote EPA 
that, after reviewing the impact of the budget cuts, it is confident it 
can adequately administer the solid waste permit program in Alaska. The 
May 30 letter cites that the final budget reduced the solid waste 
program by 13% for FY-98, versus FY-97, and that the cuts will 
necessitate the loss of two positions. The August 8 letter clarified 
that the reduction of the two positions was split between two Divisions 
of ADEC--which resulted in the loss of only one position by the Solid 
Waste program. The two letters inform EPA that certain program 
elements, mostly with regard to very small landfills, will be postponed 
or converted to lower-cost methods in FY-98, such as limiting technical 
assistance to fact sheets or brochures and reducing its field 
activities. The Class III outreach program will now be centered in 
Fairbanks instead of Juneau. It will rely on phone calls and fact 
sheets to supplement field travel to small communities. The letters 
also cite that ADEC is not using the staff of the division of State 
Public Service (SPS) exactly the way it foresaw in the Memorandum of 
Agreement (MOA) between SPS and the Division of Environmental Health 
(DEH). However, ADEC does work with SPS to identify issues of local 
concern which can help make the permitting process smoother. ADEC 
points out that, in addition to SPS support, it has been successful in 
using Environmental Health Officers for doing inspections at Class III 
MSW landfills in remote locations. Solid waste also coordinates with 
staff of other ADEC programs that travel to remote villages. ADEC 
expects to eventually reduce the number of Class III landfills.
    The May 30, 1997, letter also states that the total number of known 
Class II landfills is thirty two. This is twelve more than shown in the 
February 1996 application. However, the letter highlights that the new 
FY-98 program now specifically assigns eight full time employees to the 
Class I and Class II municipal solid waste component of its program. 
The letter also says that the positions to be eliminated are those that 
provide mostly technical assistance rather than permitting activities. 
The MSW landfill has been made a separate element in ADEC's solid waste 
budget, which will be funded by a mix of user fees and state general 
funds. In addition, the Legislature directed that the industrial and 
commercial solid waste landfill permit program shall be a separate, 
self supporting element funded almost entirely by user fees. In its 
proposed regulatory changes of August 1, 1997, ADEC included 
significant increases in user fees for industrial/commercial waste 
landfills.
    Based on a compromise by EPA and ADEC in 1993 and 1994, Alaska's 
current regulation, 18 AAC 60, requires that all Class III landfills 
must, by October 9, 2010, upgrade to meet the requirements for Class II 
landfills. (Without this compromise, all active Class III landfills 
would have had to upgrade to the 40 CFR Part 258 standards by October 
9, 1997, or stop receiving waste by that date.) On August 1, 1997, ADEC 
published its proposal to make changes to Alaska's 18 AAC 60 rule, 
which include elimination of the 2010 deadline. EPA submitted a letter 
of comment on September 30, 1997, which focused on the need to follow 
the procedures that the LDPF Act specifies for implementing 
exemptions--including, for example, removal of the 2010 sunset date. 
This was the only element of the proposed changes that EPA's letter 
commented upon. ADEC's other proposed changes that relate to the 
municipal solid waste program will maintain an equal or better level of 
adequacy, and environmental protection, with respect to review and 
approval of the State's solid waste

[[Page 55867]]

program. Elimination of the 2010 deadline, can be done at any time 
after the Governor of Alaska has issued certifications and ADEC has 
made State-wide exemptions from all 40 CFR Part 258 criteria which are 
more stringent than the 18 AAC 60 requirements for Class III village 
landfills--and still be in keeping with today's approval. The 
certification procedure and exemption authority was established by 
Congress as an amendment to the Solid Waste Disposal Act (SWDA), 
entitled the Land Disposal Program Flexibility Act of 1996 (LDPF ACT). 
The details of the act itself are described in the Small Landfills sub-
section below.
    EPA has evaluated the public comments, as discussed in Section C, 
on its Tentative Partial determination of November 25, 1996, with 
respect to the program for Class I and Class II municipal landfills. 
(Comments that were received on the Class III component of that Notice 
will be evaluated, where applicable, together with comments that are 
received during the new comment period of today's action.) Region 10 
has also reviewed ADEC's mid-1997 revisions to its program to 
accommodate the reduced budget. EPA believes that environmental 
protection in relation to needs and practicable capabilities will be 
achieved by promulgating final-partial approval of ADEC's program for 
Alaska's Class I and Class II categories of municipal landfills, and 
simultaneously proposing a new tentative approval of the Class III 
program. On and after the effective date of today's Final-Partial 
approval, the State Director will be able to allow Class I and Class II 
municipal landfills to benefit from the flexibility elements that are 
contained in the Part 258 federal criteria.
    As cited in the Notice of Tentative Partial approval, EPA and ADEC 
concluded that a small number of additional portions (which are 
discussed below) of the ADEC program requirements do not mirror the 
federal solid waste program criteria of 40 CFR Part 258 or the guidance 
in the SIR manual and proposed rule. However, the state's practices or 
policies on these portions adequately meet the goals and standards of 
the SIR guidance and Part 258 on a performance basis.
    Today's document contains three separate elements in the Decision 
section. It promulgates EPA's Final Partial approval of Alaska's 
program for the State's Class I and Class II municipal solid waste 
landfills--plus Alaska's criteria that all disposal of hazardous wastes 
from Conditionally Exempt Small Quantity Generators (CESQG) must go to 
these two Classes of municipal landfills exclusively. Second, this 
document withdraws the portions of the Tentative Partial approval 
published in the Federal Register of November 25, 1996, that addressed 
the Class III elements of Alaska's program. Third, today's document 
proposes a new Tentative Partial approval of Alaska's Class III 
landfill program based on the 1996 application with its subsequent 
modifying documents that relate to ADEC's revised budget and program 
changes to date. The third component of today's document also 
acknowledges Alaska's intention to eliminate the 2010 ``sunset'' date 
for Class III landfills, and to grant certain exemptions for Class II 
landfills, provided these changes are done in accordance with the 
procedures and exemption authority granted to the Governor by the LDPF 
Act.
    The portions of the Alaska program that are included in today's 
final partial approval, and those portions not being approved, for 
Class I and Class II municipal landfills are listed in the Decision 
Section of this document. With respect to today's new tentative partial 
approval for Class III landfills, Alaska's application of February 1996 
as updated through early November 1996, together with the 1997 changes 
and letters from ADEC to EPA, is available for public review and 
comment during the period announced in today's document. The locations 
where the State's application may be reviewed are listed above in the 
Addresses section.
    Alaska's schedule is to achieve final-full approval of its solid 
waste program within two years of EPA's promulgation of final-partial 
approval. In the cover letter of its application, ADEC cited that it 
will revise its regulations soon after EPA has promulgated the final 
version of its Local Government Financial Assurance rule and will then 
apply for full approval. EPA's final version of this rule was 
promulgated in the Federal Register on November 27, 1996. Therefore, 
Alaska expects it will finalize changes to its 18 AAC 60 criteria, that 
will include financial assurance mechanisms as a requirement for MSW 
landfills, in time to meet this schedule. In addition, the planned 
minor regulatory changes that are discussed in this document 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 final 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 40 CFR Part 503 and related parts. The SIR process 
for State approvals focuses on the municipal solid waste permit 
program--without expressing any opinion on the other programs that are 
addressed in Alaska's solid waste management rule (18 AAC 60) of June 
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 final 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. Lands acknowledged to be Indian Country include the 
Annette Island Reserve, and trust lands identified as Indian Country by 
the United States in Klawock, Kake, and Angoon. By 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, nor does it intend to 
modify the State's new exemption authority with respect to certain 
small villages in 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 do not include 
all of the Sec. 258.1(f)(1) qualifying criteria for small landfills. 
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,

[[Page 55868]]

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 dates 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 State of Alaska, and also EPA via limited support 
directly to certain communities, has been working toward successive 
improvements at Class III landfills to the extent such compliance is 
economically and practicably achievable.
    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 
federal statute, Public Law 104-119, entitled the ``Land Disposal 
Program Flexibility Act of 1996'' (LDPF Act), became effective on March 
26, 1996, as an amendment to the Solid Waste Disposal Act (SWDA).

    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 
document.

    Subsection (5) of Section 3(a) of the LDPF 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 of SWDA. The 
exemption authority in subsection (5) of the LDPF Act is granted to 
Alaska only.

    Therefore, Class II and Class III landfills for which such 
certification is made by the Governor of Alaska and which are exempted 
by the State, under authority of this new amendment, from some or all 
portions of the Part 258 criteria will not be subject to the citizens 
suit provision of Section 7002 of RCRA as to those exemptions. Under 
this new Act, certain small village landfills could be exempted from 
the need to upgrade to the federal Part 258 standards until a time as 
established by the State of Alaska.
    ADEC cited in the narrative summary of its application for program 
approval, and made reference in its letter of May 30, 1997, that the 
State's intention is to remove the 2010 deadline from its existing 
regulation. The May 30 letter pointed out that ADEC plans, with action 
by the Governor's office, to waive some requirements on a statewide 
basis--but only as needed to implement those provisions already 
included in the State's regulations. Any additional exemptions would be 
on a case-by-case basis and closely reviewed for appropriate 
justification. In follow-up to this plan, ADEC's newly proposed change 
to its solid-waste regulations, published on August 1, 1997, is 
deleting the existing 2010 sunset date requirement from the 18 AAC 60 
rule of 1996.
    At the time when all Class III landfills have either upgraded to 
Class II standards, or have been permanently exempted by the State 
under the LDPF Act from the elements of 40 CFR Part 258 that are more 
stringent than the Class III criteria in 18 AAC 60, the 2010 sunset 
date in Alaska's rule would become redundant and could be removed 
unilaterally by ADEC without affecting today's approval. Alaska's 
existing Class II landfill regulations meet, or exceed, the federal 
criteria in Part 258.
    The exemption authority in subsection (5) of the LDPF Act is 
granted to the State of Alaska only. The State may be 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 State's approach 
to achieve continued improvement at village landfills that require more 
time. Standard factors such as climate, hydrogeological conditions, and 
risk are important considerations in determining improvement plans.
    In addition, subsection (6) of the LDPF Act mandate 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. 
EPA promulgated its rule that implements this mandate in the Federal 
Register of October 2, 1997, with an effective date of October 27, 
1997.
    On a nationwide basis, another section of the LDPF 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 LDPF Act for small arid or remote municipal solid waste 
landfills. The act does not modify the existing Part 258 exemption on 
liner requirements for qualifying small 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 ash and permafrost MSW 
landfills. EPA finds that Alaska's regulatory flexibility with respect 
to methane monitoring and daily cover at MSW ash monofills is in 
keeping with the new flexibility that EPA promulgated on October 2, 
1997. 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 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.
    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 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 Part 261 of the 
hazardous waste regulations, and Part

[[Page 55869]]

257 of the solid waste regulations, to establish an additional category 
of landfills--by adding Sections 257.5 through 257.30 that allows 
certain non-municipal, non-hazardous 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. 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 existing 18 AAC 60 Article 3 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 a Class II 
municipal solid waste landfill. 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 final 
approval of Alaska's program.
    An important 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 MSWLF 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. (This change has been 
included in the proposed regulatory revisions of August 1, 1997.) 
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. However, ADEC believes 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. However, even with these 
practices in effect, EPA concurs with the public comment (discussed in 
the next section) on the need for this ground-water notification 
requirement. (Therefore, the notification requirement either needs to 
be finalized in Alaska's rule before EPA implements a final-full 
approval, or it can be waived if an appropriate exemption is done under 
LDPF Act.) ADEC has added in its proposed changes of August 1, 1997, 
the requirement that a Class II or Class III must make the notification 
upon knowledge of groundwater contamination. Alaska's rule, like Part 
258, does require 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 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 final partial approval, and also 
as a component of today's tentative partial approval.
    Alaska has adequately described its staffing and implementation 
capabilities in its application to Region 10 for approval including the 
modifications of mid 1996--and the letters of May 30 and August 8, 
1997. ADEC reorganized during 1995, established new fee structures in 
1996, and after the budget cuts of May 1997 made additional changes to 
improve the administration of its solid waste program.
    With respect to effective dates, a gap of one-quarter year existed 
between the dates contained in the regulations of Alaska versus EPA's 
Part 258 criteria with respect to closure of those existing landfills 
that do not meet the location restrictions regarding airports, 
floodplains, and unstable areas. This discrepancy was described in 
detail in the November 25, 1995, Federal Register. Today's final-
partial approval is becoming effective after January 1998, by which 
time the gaps will already have occurred and ended.

Environmental Audit Privilege and Immunity Law

    On August 9, 1997, the State of Alaska enacted its Environmental 
Audit Privilege and Immunity Law. EPA and ADEC worked together on 
analyzing this law, solely with respect to the solid waste program, and 
to the Agency's nationwide policies. Based on the information provided 
by the State on this law, and the State's application for program 
approval, EPA believes that Alaska has the authority necessary to 
administer a partially approved RCRA subtitle D permit program for 
municipal solid waste landfills. Today's partial approval does not 
reflect a position by the agency regarding the state's authority to 
administer any other federally authorized, delegated, or approved 
environmental program. The impact of the state's audit law on the 
requirements of other federal environmental programs (many of which 
have more comprehensive requirements than Subtitle D of RCRA) will 
require a separate review and analysis by EPA.

C. Public Comments

    The EPA received comments from two parties on EPA's tentative 
determination of partial adequacy for Alaska's MSWLF permit program, 
that was published in the November 25, 1996, Federal Register. Both 
were in writing.

[[Page 55870]]

    One commentor, a Borough with a population of over forty thousand 
and having several landfills, sent a letter that supports and endorses 
EPA's Tentative Partial determination of adequacy of Alaska's program 
as published. The Borough's letter states that Approval of Alaska's 
permit program will provide regulatory flexibility needed for rural 
landfills with limited development options and [approval] will 
eliminate some conflicts between the State and Federal programs.
    The other commentor, an individual, had several comments which are 
summarized herein--together with EPA's conclusions on each element in 
the commentor's letter. One comment was that the Solid Waste Program of 
ADEC does not have full regulatory control over municipal waste 
management. This statement in itself is correct in that the Solid Waste 
program in DEH does rely on other offices within ADEC to provide 
services that are important for adequate solid waste management 
statewide. However, in its application for approval of adequacy, Alaska 
cited that it is the Department of Environmental Conservation (ADEC), 
i.e. its Commissioner, not the Solid Waste Program, that has the lead 
role in solid waste management. Alaska's regulation requires that 
requests for permission to utilize one or more elements of flexibility, 
of the types allowed in 40 CFR Part 258, must be approved by the 
Department. DEH, and its solid waste section that implements this 
program, now plans to rely primarily upon support from other programs 
within DEH. DEH is on the same level as the other ADEC Divisions upon 
which it may receive limited amounts of supplemental assistance.
    Information that also relates to this comment is that ADEC has 
pointed out that it encourages, in numerous instances, certain 
activities and field improvements at small landfills ``as an immediate 
step in the right direction'' even though the state regulations make it 
necessary for DEH to deny, or not issue, a full permit. This practice 
enables incremental upgrading of village landfills while taking into 
consideration the practicable capabilities that exist in each community 
or area. As a corollary, the commentor states that the Memorandum of 
Agreement between DEH and the Statewide Public Services office has not 
yet been fully implemented; while, the commentor expects that whatever 
deficiencies existed in early 1997 can be corrected. While progress was 
made in 1996 with some support from Statewide Public Service, ADEC has 
now shifted to the use of Environmental Health Officers to achieve 
greater field assistance.
    One comment questioned whether EPA has the legal authority to 
approve Class III landfills. EPA believes it does have the authority to 
establish a deadline for all small landfills to upgrade to Alaska's 
Class II standards by the year 2010--per the discussion in the Alaska 
section of this document.
    One comment questioned whether EPA's approval would result in 
allowing practices with respect to sewage sludge that are not in 
compliance with the 40 CFR Part 503 promulgated under the Clean Water 
ACT (CWA). In today's action, EPA is only approving practices with 
respect to sewage and biosolids that are regulated specifically by 40 
CFR Part 258. The Part 503 regulation and EPA's subsequent interpretive 
documents establish and discuss the dividing lines between when a 
sewage sludge falls under CWA and Part 503 versus under RCRA and Part 
257 or Part 258. For example, at present, if commercial or industrial 
septage sludge is mixed with domestic septage sludge, the combined 
sludges fall under RCRA and 40 CFR Part 257, or Part 258, instead of 
under CWA and 40 CFR Part 503.
    One comment recommended that the Alaska regulation should be 
changed to require that if an owner/operator of a small MSW landfill 
unit has knowledge of ground-water contamination resulting from the 
unit, the owner/operator must notify the State Director of such 
contamination. EPA also had concerns about the omission of this 
requirement. Protection of groundwater is a major component of RCRA. 
EPA agrees with the commentor. Today's document is not approving the 
less-stringent criteria that is now in 18 AAC 60 on this subject. 
Therefore small landfills will need to comply with the notification 
requirement that is in Part Sec. 258.1(f)(3).
    One comment challenges the inclusion of barges and any other form 
of water craft in ADEC's definition of surface transportation. EPA 
believes the definition is a State decision, not one that should be 
made by EPA. The commentor addressed the gap of one-quarter year and an 
element on public participation. Region 10 believes no EPA action is 
currently warranted, with respect to these two comments, for the 
following reasons. The gap of one quarter year in certain effective 
dates of the Alaska rule versus the federal rule, that was described in 
the November 25, 1997 Federal Register, has already taken place--before 
publication of today's document. On permit renewals and modifications, 
EPA believes that ADEC's written policy for public notice and public 
participation is already in practice and adequately meets the intent of 
the federal requirements. In addition, Alaska's application cites that 
the State is currently in the process of adding the policy to its 
Administrative Code.

D. Decision

    This section of today's document contains three separate actions, 
which are (1) an EPA final partial approval, (2) withdrawal of an EPA 
tentative partial approval, and (3) publication of a new tentative 
partial approval. Today's final partial approval includes the State's 
sub-categories of MSW-ash monofills, permafrost landfills, and its 
criteria for disposal of CESQG wastes. A public comment period is 
provided with respect to the new tentative partial approval of the 
State's Class III program.

Class I and II and CESQG Final Partial

    After reviewing the public comments, I conclude that the State's 
Class I and Class II municipal solid waste (MSW) landfill portions of 
Alaska's application for partial program adequacy determination, and 
Alaska's criteria for disposal of solid wastes from Conditionally 
Exempt Small Quantity Generators (CESQG), meet all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Alaska is 
granted a partial program determination of adequacy for the Class I and 
Class II MSW landfill portions, including ash mono-fills and permafrost 
landfills in these two classes, of its municipal solid waste landfill 
permit program that are listed below. Alaska is also granted a 
determination of adequacy, under 40 CFR 261.5 as amended per the 
Federal Register of July 1, 1996, of Alaska's program for hazardous 
wastes from Conditionally Exempt Small Quantity Generators that 
requires these wastes to be disposed of either in Class I municipal 
landfills--or Class II municipal landfills that are subject to (and not 
exempted by the State from any portion of) the entire 40 CFR Part 258.
    The portions of 40 CFR Part 258 that are included in today's final 
partial determination of adequacy of the State's Class I and Class II 
municipal landfill program are:

    Subpart A--General, but excluding 40 CFR Part 258.1(f)(3)--which 
contains notification and compliance criteria that apply when the 
owner or operator of a qualifying small landfill has knowledge of 
ground-water contamination resulting from the unit.
    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.

[[Page 55871]]

    Section 4005(a) of RCRA provides that citizens may use the 
citizens suit provisions of Section 7002 of RCRA to enforce the 
Federal MSWLF criteria in 40 CFR Part 258 independent of any State, 
or Tribal, enforcement program. As explained in the preamble to the 
final MSWLF criteria, EPA expects that any owner or operator 
complying with provisions in a State program approved by EPA should 
be considered to be in compliance with the relevant portions of the 
Federal Criteria. See 56 FR 50978, 50995 (October 9, 1991). Today's 
determination of adequacy action takes effect on October 19, 1998.

Class III, Withdrawal of Tentative Partial Approval

    Today's document withdraws the portions of the Tentative Partial 
approval published in Federal Register of November 25, 1996, which 
addressed the Class III municipal landfill components of Alaska's 
program. This is being done because of the major changes that were 
made by the State to its Class III MSW landfill program after EPA's 
public comment period had ended on January 23, 1997.

Class III, New Tentative Partial Approval

    Today's document publishes a new EPA tentative determination of 
partial program adequacy for Alaska's Class III municipal solid 
waste landfill permit program. Like the prior proposal, today's 
tentative partial approval is based on Alaska's retaining the 
existing ``sunset'' date of October 9, 2010, for Class III 
landfills. A public comment period is being provided. In addition, 
today's document acknowledges that Alaska can remove the 2010 Class 
III upgrade date requirement, provided the removal is done via 
certification and exemption under the authority granted by the Land 
Disposal Program Flexibility Act of 1996.
    The portions of 40 CFR Part 258 that are included in today's 
tentative partial determination of adequacy of the State's Class III 
municipal landfill program are:
    Subpart A--General, including Alaska's 18 AAC Section 60.300(c) 
with respect to the October 9, 2010, criteria for upgrade of Class 
III landfills to Class II standards; but excluding 40 CFR Part 
258.1(f)(3)--which contains notification and compliance criteria 
that apply when the owner or operator of a qualifying small landfill 
has knowledge of ground-water contamination resulting from the unit.
    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.

Benefits of Partial Approvals

    The flexibility elements in Part 258 are an important factor that 
becomes available to a State upon approval by EPA of its solid waste 
program. Not all existing State permit programs ensure compliance with 
all provisions of the revised Federal Criteria. Were EPA to restrict a 
State from submitting its application until it could ensure compliance 
with the entirety of 40 CFR Part 258, many States 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 
permit program, while the State revises its statutes or regulations, 
could impose a substantial burden on owners and operators of landfills 
because the State would be unable to exercise the flexibility available 
to States with approved permit programs.
    As State 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 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 MSWLF permit program affected. It will also 
provide for a 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 document will be 
published either affirming or reversing the initial decision while 
responding to the public comments. EPA plans to keep ADEC posted on the 
timing, and progress, on these activities.

Requirements for Final Full Approval

    To ensure compliance with all of the current Federal Criteria and 
to obtain final full approval of Alaska's entire permit program for the 
State's three Classes of municipal solid waste landfills, the Alaska 
Department of Environmental Conservation must:

    1. Add financial assurance requirements for all types of Class I 
and Class II landfills, which meet one or more of the criteria in 
Subpart G of Part 258.
    2. Add a requirement for Class II and Class III landfills, 
equivalent to the federal criteria, that an owner/operator of a 
small landfill that qualifies under Sec. 258.1(f)(3) must notify the 
State Director upon knowledge of groundwater contamination resulting 
from the unit.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted today's action 
from the requirements of Section 6 of Executive Order 12866.

Compliance With Executive Order 12875

    Under Executive Order 12875, Enhancing Intergovernmental 
Partnerships, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a State, local or tribal 
government, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by those governments. If 
the mandate is unfunded, EPA must provide to the Office of Management 
and Budget a description of the extent of EPA's prior consultation with 
representatives of the affected State, local and tribal governments, 
the nature of their concerns, copies of any written communications from 
the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's action implements 
requirements specifically set forth by the Congress in Sections 
4005(c)(1)(B) and (c)(1)(C) of Subtitle D of the Resource Conservation 
and Recovery Act (RCRA), as amended, without the exercise of any 
discretion by EPA. Accordingly, the requirements of section 1(a) of 
Executive Order 12875 do not apply to today's action.

Compliance With Executive Order 13045

    Today's action is not subject to Executive Order 13045 because it 
does not involve decisions intended to mitigate environmental health or 
safety risks.

Compliance With Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the

[[Page 55872]]

preamble to today's action, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.'' 
Today's action implements requirements specifically set forth by the 
Congress in Sections 4005(c)(1)(B) and (c)(1)(C) of Subtitle D of the 
Resource Conservation and Recovery Act (RCRA), as amended, without the 
exercise of any discretion by EPA. Accordingly, the requirements of 
section 3(b) of Executive Order 13084 do not apply to today's action.

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 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 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 Part 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. Today's action, therefore, does not require a regulatory 
flexibility analysis.

Submission to Congress and the General Accounting Office

    Under section 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 today's document 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 today's action in the Federal Register. 
Today's action is not a ``major rule'' as defined by section 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 generally exercise (which will reduce, not increase, 
compliance costs). Thus, today's document 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 including 
Tribal small governments. 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 document 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: October 8, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 98-27970 Filed 10-16-98; 8:45 am]
BILLING CODE 6560-50-U