[Federal Register Volume 65, Number 3 (Wednesday, January 5, 2000)]
[Notices]
[Pages 453-459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-186]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6518-1]


Alaska: Tentative Determination and Final Determination of Full 
Program Adequacy of the State of Alaska's 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 hazardous 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.
    EPA's notice of Final Partial approval of Alaska's Class I and 
Class II municipal landfill permit landfill program, and Tentative 
Partial approval of the State's Class III landfill program was 
published in the Federal Register on October 19, 1998. The public 
comment period on the Class III component ended on January 26, 1999. 
There was no request for a public hearing. One letter of comment was 
received. Today's document contains EPA's Tentative Full and Final Full 
Determination of Adequacy (approval) of Alaska's municipal solid waste 
landfill permit program.
    Alaska's most recent solid waste management regulatory changes 
(proposed on August 1, 1997) were finalized by the state in its October 
29, 1998, rule revision of 18 AAC 60. The changes that relate to the 
municipal landfill program were: addition of financial assurance 
requirements for Class I and II landfills which adopt EPA's 40 CFR part 
258, subpart G municipal landfill criteria by reference; addition of 
the notification requirement for an owner or operator who learns that a 
municipal landfill has polluted, or may have polluted an aquifer; and 
removal of the 2010 sunset date (upgrade deadline) for Class III 
landfills. The removal of the sunset date was implemented under the 
exemption authority granted to Alaska by the federal Land Disposal 
Program Flexibility Act of 1996. Alaska's announced intent to remove 
the sunset date was discussed in EPA's tentative partial Class III 
approval in the Federal Register notice of 10/19/98. The Governor's 
certification of August 6, 1999, cites that the State has exempted 
Class III municipal landfills from those requirements of 40 CFR part 
258 that are more stringent than the requirements imposed on Class III 
landfills under 18 AAC 60, as may be amended. The 10/29/98 regulatory 
revision by Alaska of its solid waste regulations, and the Governor's 
certification, establishes full adequacy with respect to EPA's part 258 
municipal landfill criteria.
    On August 30, 1999, EPA received Alaska's request for full program 
approval. EPA believes there will be no significant adverse comments on 
today's notice. Nevertheless, a sixty day public comment period is 
included in today's Tentative full approval by EPA of the state 
municipal landfill program. If no significant adverse comments are 
received, the Final full approval will become effective on the tenth 
day after the end of the comment period. (If there are significant 
adverse comments, EPA will need to respond to them and possibly publish 
a withdrawal of full approval.) Today's notice contains both the 
Tentative and Final actions to streamline the approval process and as a 
convenience to the public.
    With respect to Alaska's Audit Privilege and Immunity Law, today's 
approval does not reflect a position by EPA regarding the state's 
authority to administer any other federally authorized, delegated, or 
approved environmental program. Alaska's program that is in today's 
Full determination of adequacy is described in the Decision section of 
this document.
    Alaska's application is available for public review at EPA's office 
in Seattle, and at the EPA operations offices in Juneau and Anchorage. 
If desired, EPA will deliver a copy immediately (for public viewing) to 
the Solid Waste office of the Alaska Department of Environmental 
Conservation in Fairbanks--upon telephone, fax, or written request to 
the Contact person listed below.

EFFECTIVE DATE AND COMMENT PERIOD: All comments on today's tentative 
determination of full program adequacy, must be received in writing by 
the office of the EPA person named in the CONTACTS section of this 
notice on or before 5:00 PM, Pacific Time, on March 6, 2000. Copies may 
be sent by fax to Steven B. Sharp, (206) 553-8509, on or before this 
date provided the original document is also sent by regular mail. EPA 
is not required to hold a public hearing and is not offering one in 
today's notice. (In the unlikely event that a need for a public hearing 
arises, EPA will make an announcement of same in a future Federal 
Register.)
    The final determination of full program adequacy of Alaska's 
municipal solid waste landfill permit program shall become effective on 
March 15, 2000, if there are not significant adverse written comments 
on today's document. Alternatively, if EPA receives sufficient adverse 
comments, a subsequent notice will be published in the Federal Register 
that either withdraws today's final full approval or affirms today's 
final full program approval. If published, it will discuss the comments 
received and include

[[Page 454]]

EPA's basis for its withdrawal or affirmation.

FOR FURTHER INFORMATION 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. All public comments must in 
writing and sent to Mr. Sharp at this address by the date specified 
above.

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 municipal solid waste landfills 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).
    EPA has approved portions of about forty State MSWLF permit 
programs based on its March 3, 1993 Draft Guidance specifying the 
requirements a State must meet to qualify for approval. (EPA allows 
partial approvals if the state program largely meets EPA's 
requirements, and the provisions not included are clearly 
identifiable.) About six additional state programs have been approved 
after EPA's proposed State Implementation Rule (SIR) was published in 
the January 26, 1996, Federal Register (61 FR 2584). EPA promulgated 
the final version of the SIR rule on October 23, 1998, (63 FR 57206). 
It contains no element which requires revision of, or another public 
comment period on, any of the tentative and final approvals of state 
programs that EPA published prior to finalization of the SIR rule.
    With respect to Tribes, EPA has been and is currently limiting its 
solid waste program approvals to State programs. In the opinion filed 
on October 29, 1996, (on the Campo Band of Mission Indians case) the 
U.S. Court of Appeals for the District of Columbia Circuit determined 
that EPA lacks authority under RCRA to approve the solid waste 
management plan [program] of an Indian Tribe. The Federal Court 
observed that the Campo 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. This opinion was discussed in 
EPA's notice (about Alaska's solid waste program) in the 10/19/98 
Federal Register and in the Federal Register (63 FR 57206) of 10/23/98 
which promulgated EPA's final SIR rule. EPA has published a guidance 
document (Site-Specific Flexibility Requests, EPA530-R-97-016) that 
discusses the petition-procedure for Tribes.
    Approved State permit programs [partial or full determinations] 
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 40 CFR 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 applicability as to Alaska's Class 
III landfill category and the exemption authority in the Land Disposal 
Program Flexibility (LDPF) Act of 1996 is discussed in Section B of 
this document.
    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 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. 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, except as to 
small landfill criteria exempted by the State (Alaska only) under the 
LDPF Act.
    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.

B. State of Alaska

    Today's document promulgates Tentative Full approval and Final Full 
approval by EPA for all three classes of Alaska's municipal solid waste 
landfill permit program. Over the recent several years and earlier, 
Alaska has developed an extensive and practicable approach to 
management and disposal of many types of non-hazardous solid waste 
including municipal waste, and to increased protection of human health 
and the environment. The Alaska Department of Environmental 
Conservation (ADEC) completed a major revision to its solid waste 
management rule on January 28, 1996. (It was amended on June 28, 1996, 
primarily for addition of a new fee structure.) The next revisions (of 
which only a limited number pertained to municipal landfills) were 
proposed on August 1, 1997. They were finalized by Alaska on October 
29, 1998. This revision included the changes that EPA identified in its 
notice (of October 19, 1998) as being necessary for the state to obtain 
full approval. The elements that relate to today's approvals of 
Alaska's municipal solid waste program are discussed below.
    Region 10 received Alaska's application for a partial program 
adequacy determination on February 12, 1996. The MSWLF program is a 
component of the Solid Waste Management Program of ADEC that covers a 
wide range of wastes. EPA published on November 25, 1996, in the 
Federal Register (61 FR 60000) its first 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 public comment ended on January 
26, 1997. In early 1997, during the period that EPA was reviewing and 
evaluating the public comments, proposals were initiated by the Alaska 
Legislature for reductions and changes to ADEC's Solid Waste program. 
The outcome resulted in significant differences from the Class III 
program described in the application of February 1996. In addition, 
ADEC proposed during this period a removal of the 2010 sunset date 
(upgrade deadline) via the new authority granted to Alaska by the LDPF 
Act. Also, the State passed its Environmental Audit Privilege and 
Immunity act in August 1997. Alaska provided clarifying written

[[Page 455]]

information on the above events, as amendments to its application. 
These changes and EPA's review of them were described in EPA's next 
Federal Register notice, of October 19, 1998, That notice contained the 
Agency's final partial approval of Alaska's Class I and Class II 
municipal landfill program; withdrew the elements of EPA's prior 
tentative approval of 11/25/96 that applied to the Class III landfill 
component of Alaska's program; and contained EPA's new tentative 
partial approval of the State's Class III municipal landfill program. A 
new comment period was included in EPA's 10/19/98 notice on the 
tentative Class III approval, which ended on January 26, 1999. The 
optional public hearing was not held because EPA received no requests 
for it. One letter of comment was received, which is discussed in 
Section C of this document.
    On August 25, 1999, the Department of Environmental Conservation 
submitted its request for a full-program approval by EPA as an 
amendment to its application, which included two certifications. The 
Governor's Certification, dated August 6, 1999, certifies (with respect 
to the LDPF Act exemption authority ) that full application of the 
requirements of 40 CFR part 258 to Class III MSWLFs would be 
infeasible, or would not be cost effective, or is otherwise 
inappropriate because of remote locations of the units. The Attorney 
General's letter of August 25, 1999, certifies that the regulations 
cited in the State of Alaska's request to EPA for final full approval 
of its solid waste program have been adopted, and are fully effective, 
and are in the published version of the Alaska Administrative Code.

Class I and Class II Landfills

    Today's notice includes final full determination of adequacy 
(approval) of the State's Class I and Class II municipal solid waste 
permit program. Alaska defines Class II municipal landfills as those 
that receive less than twenty tons per day on an annual average and 
meet specifications that include the federal section 258.1(f)(1) arid 
or remote small-landfill qualifying criteria. (Approval of the Class 
III program is discussed separately, below.) EPA published its Final 
Partial approval of Alaska's Class I and Class II municipal landfill 
program on October 19, 1998, (63 FR 55863). That notice listed the two 
additional regulatory criteria needed for the State to obtain full EPA 
approval.
    One criterion was to add financial assurance requirements for Class 
I and Class II landfills which meet one or more of the mechanisms in 
subpart G of 40 CFR part 258. The State met this requirement by 
addition of sub-Section 18 AAC 60.398 which states: ``The owner or 
operator of a Class I or Class II MSWLF shall meet the financial 
assurance requirements of 40 CFR part 258, subpart G, revised as of 
July 1,1998, adopted by reference'' in ADEC's amended regulation of 
October 29, 1998, which became effective on that date. This sub-section 
meets (and mirrors) the corresponding criteria in subpart G of part 
258.
    The second criterion was to add a requirement that the owner/
operator of a small landfill must notify the State Director upon 
knowledge of groundwater contamination resulting from the unit. The 
State met this requirement by addition of Sub-section 18 AAC 60.305(f) 
which states: ``the owner or operator must provide written notification 
to the department within seven days after the owner or operator learns 
that a MSWLF has polluted, or may have polluted, an aquifer'' in its 
amended regulation of October 29, 1998. Alaska's new Sub-section (f) 
applies to all three of the State's classes of municipal landfills.
    The federal Administrative Procedure Act generally requires 
agencies to provide prior notice and opportunity for public comment. 5 
U.S.C. 553(b). The Act allows exemption from this requirement if the 
issuing agency finds good cause that notice and comment are 
unnecessary. 5 U.S.C. 553(b)(3)(B). The State included a public comment 
period as part of its process in making the two regulatory amendments 
described above--as well as on all of ADEC's changes to 18 AAC 60 to 
present. All of EPA's notices prior to today, on Alaska's solid waste 
program, also have provided for a public comment period, with provision 
for optional public hearings if there was sufficient need. The two new 
portions for the Class I and Class II program in today's determination, 
which have not yet been subject to a federal comment period, mirror the 
federal criteria. Therefore, EPA believes that providing prior notice 
and opportunity for comment on the promulgation of today's final full 
approval is unnecessary. However, to ensure opportunity for public 
input, the Agency is providing in today's notice a period for written 
public comments. EPA is combining its tentative and final full approval 
actions into one (today's) notice with the final approval becoming 
effective on the tenth day after the end of the comment period if there 
are no significant adverse comments.

Conditionally Exempt Hazardous Waste

    In the Decision section of EPA's Federal Register notice (63 FR 
55870) of October 19, 1998, the Agency promulgated its determination of 
adequacy of Alaska's program for hazardous waste disposal from 
Conditionally Exempt Small Quantity Generators (CESQG) under 40 CFR 
261.5 (as in the July 1, 1998 Code of Federal Regulations). Alaska's 
criteria requires (per 18 AAC Section 60.020) that CESQG wastes 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 
currently meet or exceed the Part 258 municipal landfill criteria, 
Alaska is meeting EPA's CESQG disposal standards under subpart B of 
part 257, the non-hazardous industrial and commercial wastes landfill 
rule, and Part 258. Alaska was the first state to receive program 
approval as to these new EPA criteria for landfilling of CESQG wastes.

Class III Landfills

    Today's notice also includes final full determination of adequacy 
(approval) of the State's Class III municipal solid waste permit 
program. Alaska's definition in 18 AAC 60.300 for its Class III 
landfills includes a limitation on the maximum amount waste received to 
less than five tons per day, or under one ton per day of MSW ash, and 
also includes other limiting criteria. Based on a compromise by EPA and 
ADEC in 1993 and 1994, Alaska's regulations (of January 28, 1996, and 
June 28, 1996) required in 18 AAC Section 60.300(c) that all Class III 
landfills must, by October 9, 2010, upgrade to meet the standards 
applicable to either a Class I or Class II MSWLF, or close accordingly 
by that date. Alaska's October 29, 1998, revision of its regulation 
removed this 2010 sunset (upgrade) date, which in effect placed its own 
criteria for Class III landfills in a permanent status. The Governor's 
certification of August 6, 1999, cites that the State has exempted 
Class III municipal landfills from those requirements of 40 CFR part 
258 that are more stringent than the requirements imposed on Class III 
landfills under 18 AAC 60, as may be amended. The certification 
procedure and exemption authority (for the state of Alaska only) in the 
LDPF Act of 1996 was established by Congress as an amendment to the 
Solid Waste Disposal Act (SWDA). Therefore, the 10/29/98 revision by 
Alaska of its solid waste regulations and the Governor's certification 
establishes full adequacy with respect to EPA's Part 258 municipal 
landfill criteria.

[[Page 456]]

    EPA's notice of 10/19/98 withdrew the elements of EPA's prior 
tentative approval of November 25, 1996, that applied to the Class III 
landfill component of Alaska's application. (Alaska's removal of the 
2010 requirement was not finalized by the State until after EPA's 10/
19/98 notice.) A new comment period was included in EPA's 10/19/98 
notice on tentative Class III approval, which ended on January 26, 
1999. The optional public hearing was not held because EPA received no 
requests for it. One letter of comment was received, which is discussed 
in C of this document.

Sewage and Biosolids

    In today's final full 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 sewage 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 18 AAC 60 solid waste management rule. 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 full approval 
of the State of Alaska's solid waste permit 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 not certain, the exact 
boundaries of Indian Country have not been defined. Lands acknowledged 
by the United States to be Indian Country include the Annette Island 
Reserve, and trust lands in Klawock, Kake, and Angoon and Alaska Native 
allotments still in restricted status. 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.

Land Disposal Program Flexibility Act of 1996

    Sub-section (5) of 3(a) of the Land Disposal Program Flexibility 
Act of 1996 reads, verbatim, as follows: ``ALASKA NATIVE VILLAGES--Upon 
certification by the Governor of the State of Alaska that application 
of the requirements described in paragraph (1) to a solid waste 
landfill unit of a Native village (as defined in Section 3 of the 
Alaska Native Claims Settlement Act (16 U.S.C. 1602)) or unit that is 
located in or near a small, remote Alaska village would be infeasible, 
or would not be cost-effective, or is otherwise inappropriate because 
of the remote location of the unit, the State may exempt the unit from 
some or all of those requirements. This paragraph shall apply only to 
solid waste landfill units that dispose of less than 20 tons of 
municipal solid waste daily on an annual average.''

    Note: The reference to ``paragraph (1)'' in the above text is to 
paragraph (1) of section 4010(c) of SWDA. The exemption authority in 
3(a)(5) of the LDPF Act is granted to Alaska only. 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.

    Small landfills which are exempted by the State of Alaska, under 
authority of the LDPF Act, 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. An important corollary of the 
requirements of EPA's amendment to 40 CFR 261.5 is that landfills which 
the State 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 1, 1996, 
Federal Register is that the landfill must be subject to the entire 
part 258.
    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 municipal solid waste (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 (62 FR 51606) 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-hazardous 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.
    Alaska's definition of surface transportation in its October 29, 
1998, rule revision remains the same as in the January 1996 and June 
1996 editions. It continues to include the same status for barges as 
before, namely that they are not surface transportation. The definition 
says (verbatim) that surface transportation means ``pioneer roads and 
community roads as described in 17 AAC 05.030, or a rail system that 
routinely handles freight; surface transportation does not include 
barges or any other form of water craft.'' A comment on EPA's earlier 
(November 25, 1996) tentative approval challenged the defining of 
barges and water craft as not being forms surface transportation. As 
cited in the earlier Federal Registers, EPA believes the definition is 
a State decision, not one that should be made by EPA.
    In the wetlands section of the 1996 versions of Alaska's landfill 
rule, Alaska had a stability requirement that applied 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 was achieving equivalent 
stringency with part 258 via its permitting activities and authority. 
Regardless, this difference (versus part 258) was eliminated in ADEC's 
10/29/98 rule revision.

Administrative Elements and Criteria

    Part 258.1(f)(3) requires that if the owner/operator of a small, 
arid or remote, landfill has knowledge of ground-water contamination 
resulting

[[Page 457]]

from the unit, the owner/operator must notify the State Director. 
Alaska's 1996 versions of its regulation did not include the equivalent 
wording as to this sub-section. However, ADEC informed EPA that it 
believed it was achieving the equivalent via its permitting and 
compliance monitoring practices, and with support from other agencies. 
This was discussed in the Agency's tentative determinations. 
Implementation by Alaska of its regulatory change to 18 AAC 60.300(f) 
that added an equivalent requirement was made on October 29, 1998. Thus 
the State regulation now fully meets the Part 258.(1)(f)(3) 
notification criteria.
    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 at the time of 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 was 
placed in Alaska's application, and this policy serves as a basis of 
today's final full program determination of adequacy.

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 fully approved RCRA subtitle D permit program for 
municipal solid waste landfills. Today's full 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

    EPA received one letter of public comment, from an individual, on 
EPA's tentative determination of partial adequacy for Alaska's Class 
III MSWLF permit program, that was published in the October 19, 1998, 
Federal Register. The commentor questioned the legality of Class III as 
to RCRA. Alaska informed EPA in mid 1997 of its intent to establish 
permanently, or until an indefinite time in the future, its Class III 
landfill category that contains criteria which are less stringent than 
the federal part 258 municipal landfill criteria. In addition, this was 
set forth in Alaska's August 1, 1997, proposed 18 AAC 60 rule revision, 
to remove the 2010 sunset (upgrade) date. In the past, as discussed in 
the 11/25/96 and 10/19/98 Federal Registers, EPA clearly wanted this 
``sunset date'' to be in the State's regulation. The State's summary 
document for the public, that accompanied the August 1997 proposed 
regulatory changes, specifically highlighted that the State intended to 
make Class III a permanent category.
    The SIR rule, in 40 CFR 239.4 says (verbatim) that ``the state will 
ensure that existing and new facilities are permitted or otherwise 
approved and in compliance with the relevant Subtitle D federal revised 
criteria.'' The exemption authority in section 3(a)(5) of the LDPF act 
(as to 40 CFR part 258 criteria) is granted by Congress to the State of 
Alaska only. The choice on what exemptions are established is assigned 
to Alaska and not to EPA. The combination of the certification made by 
the Governor and the removal by the State of the 2010 sunset date 
requirement from Alaska's regulation is in compliance with the LDPF Act 
and therefore adequate under RCRA. Consequently, EPA is today approving 
in full the State's Class III municipal landfill permit program.
    Environmental Justice: As the commentor points out, EPA places high 
importance on achieving environmental justice, and on implementing the 
related provisions of Executive Order 12898. However, the LDPF act does 
not authorize EPA to become a direct participant in the decisions, or 
actions, that the State of Alaska implements when making exemptions 
from part 258 under the LDPF act. With respect to small landfills in 
general throughout the United States, EPA described in the Federal 
Register (62 FR 40714 of July 29, 1997) its commitment to addressing 
environmental justice concerns for all residents of the nation. This 
description was published in conjunction with EPA's regulatory revision 
(finalized 10/2/97 per 62 FR 51606) to allow the Director of an 
Approved State the flexibility to establish certain additional 
alternative criteria for small MSWLFs throughout the United States. EPA 
cites therein that the Agency's goals are to ensure that no segment of 
the population bears disproportionately high and adverse human health 
and environmental effects as a result of EPA's policies, programs, and 
activities.
    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 ADEC 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.

D. Decision

    After reviewing the public comments, I conclude that the State's 
solid waste program for all three of the State's classes of municipal 
landfills meets all of the statutory and regulatory requirements 
established by RCRA, and SWDA, including the amendments of the Land 
Disposal Flexibility (LDPF) Act of 1996. Accordingly, Alaska is granted 
a full program determination of adequacy, including MSW ash mono-fills 
and permafrost landfills, for its municipal solid waste landfill permit 
program that are listed below. The Subparts of 40 CFR part 258 that are 
included in today's determination are:
    Part 258 Subpart A--General, including the establishment of a 
permanent status for the State's Class III category of municipal 
landfills, which has been implemented by Alaska under the exemption 
authority granted by the federal Land Disposal Program Flexibility Act 
of 1996.
    Part 258 Subpart B--Location Restrictions;
    Part 258 Subpart C--Operating Criteria;
    Part 258 Subpart D--Design Criteria;
    Part 258 Subpart E--Ground-Water Monitoring and Corrective Action;
    Part 258 Subpart F--Closure and Post-Closure Care; and
    Part 258 Subpart G--Financial Assurance Criteria.
    The Agency has already approved (63 FR 55870 of October 19, 1998) 
Alaska's program for landfill disposal of hazardous wastes from 
conditionally

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exempt small quantity generators (CESQG)--under 40 CFR 261.5; part 257 
subpart B; and part 258. Alaska's 18 AAC 60 rule requires that CESQG 
wastes may be disposed of only in a facility that meets the 
requirements for the State's Class I or Class II municipal landfills.
    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. Criteria of 40 CFR part 258 from which a landfill 
has been exempted by the State of Alaska, under authority of the LDPF 
Act, are not useable with respect to the citizens suit provision of 
section 7002. 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).

E. Regulatory Assessments

    The following executive Orders, and assessments required by Federal 
Statutes, were included in the EPA's approval notice of Partial 
Determinations in the Federal Register (63 FR 55863) of October 19, 
1998. No public comments were received on these elements of the notice.

Compliance With Executive Order 12866, Significant Annual Effect on the 
Economy

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

Compliance With Executive Order 13045, Children's Health Protection

    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, Consultation and Coordination 
With Indian Tribal Governments

    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 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. 
Today's approval does not impose any additional burdens on 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

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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: December 21, 1999.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 00-186 Filed 1-4-00; 8:45 am]
BILLING CODE 6560-50-P