[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Rules and Regulations]
[Pages 13242-13256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6310]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[F-2001-RDMP-0044; FRL-7637-9]
RIN 2050-AE92


Research, Development, and Demonstration Permits for Municipal 
Solid Waste Landfills

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is revising the 
Criteria for Municipal Solid Waste Landfills (MSWLF) to allow states to 
issue research, development, and demonstration (RD&D) permits for new 
and existing MSWLF units and lateral expansions. Today's rule will 
allow Directors of approved state programs to provide a variance from 
certain MSWLF criteria, provided that MSWLF owners/operators 
demonstrate that compliance with the RD&D permit will not increase risk 
to human health and the environment over compliance with a standard 
MSWLF permit. EPA is finalizing this alternative permit authority to 
promote innovative technologies associated with landfilling of 
municipal solid waste. RD&D permits may provide a variance from 
existing requirements for run-on control systems, liquids restrictions, 
and the final cover requirements. No variance from any other 
requirements of MSWLF criteria, unless already provided for in the 
existing regulations, are allowed under today's rule.

DATES: This rule is effective on April 21, 2004.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703-412-9810 or TDD 703-
412-3323 (hearing impaired).
    For information on specific aspects of this rule, contact Mr. Paul 
Cassidy, Municipal and Industrial Solid Waste Division of the Office of 
Solid Waste (mail code 5306W), U.S. Environmental Protection Agency 
Headquarters (EPA, HQ), 1200 Pennsylvania Avenue, NW., Washington, DC 
20460; telephone: 703

[[Page 13243]]

308-7281; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies Of This Final Rule and Related Information?

    1. Docket. All the information including this rule and the response 
to comment document is available from the EPA docket. EPA has 
established an official public docket for this action under Docket ID 
No. RCRA-2001-0044 (numbered as F-2002-RDMP-FFFF in the proposed rule). 
The official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public docket is available for public viewing 
at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is (202) 566-0270. The public may copy a maximum of 100 pages 
from any regulatory docket at no charge. Additional copies are $0.15 
per page.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. An electronic version of the 
public docket is available through EPA's electronic public docket and 
comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing 
of the contents of the official public docket, and to access those 
documents in the public docket that are available electronically. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.A. Once in the system, select 
``search,'' then key in the appropriate docket identification number.

B. Affected Entities

    Entities potentially affected by this action are public or private 
owners or operators of landfills. Affected categories and entities 
include the following:

------------------------------------------------------------------------
                                                Examples of affected
                 Category                             entities
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Federal Government........................  Agencies procuring waste
                                             services.
State Governments.........................  Regulatory agencies and
                                             agencies operating
                                             landfills.
Industry..................................  Owners or operators of
                                             municipal solid waste
                                             landfills.
Municipalities, including Tribal            Owners or operators of
 Governments.                                municipal solid waste
                                             landfills.
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    This table is a guide for readers that describes which entities are 
likely to be affected by this action. It lists the types of entities 
EPA is now aware could potentially be impacted by today's action. It is 
possible that other types of entities not listed in the table could 
also be affected. To determine whether you would be impacted by this 
action, you should carefully examine the applicability criteria. If you 
have questions about whether this action applies to a particular 
facility, please consult Mr. Paul Cassidy, U.S. Environmental 
Protection Agency, Office of Solid Waste (5306W), 1200 Pennsylvania 
Ave., SW., Washington, DC 20460, 703-308-7281, [[email protected]].

Outline

I. General Information
II. Legal Authority for this Rule
III. Background
    A. What EPA Proposed
    B. What Comments Were Received on the Proposed Rule
IV. Provisions of the Final Rule
    A. Summary of the Final Rule
    B. Operating Criteria for Which Variance is Allowed
    C. Design Criteria
    D. Variance from Final Cover Criteria
V. Major Issues Raised in Comments and Responses
    A. Legal Basis for the Rule
    B. Variance from Design Criteria
    C. Methods for Fostering Innovation
    D. Duration of RD&D Permits
    E. Bioreactor Landfills
    F. Variances for Groundwater Monitoring
    G. Termination of a Project for Cause
    H. Burden of Proof for Variance Determination for RD&D Permits
    I. Implementation of Today's Rule.
    J. The Addition of Water to Arid Landfills.
    K. Potential Increased Emissions of Landfill Gas.
    L. Rule Authorizing Future Projects Based on the Success of a 
Technology.
VI. State and Tribal Implementation of Today's Rule
VII. How does this rule comply with applicable statues and executive 
orders?
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act of 1995
    J. Congressional Review Act

II. Legal Authority for this Rule

    The authority for today's rule is sections 1008, 2002(a), 4004, 
4005(c), 4010 and 8001(a) of the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended, 42 U.S.C. 6907, 6912(a), 6944, 6945(c), 
6949a, 6981(a).

III. Background

A. What EPA Proposed

    On June 10, 2002, EPA proposed a rule that would allow the Director 
of an approved State program to issue research, development, and 
demonstration (RD&D) permits to owners and operators of municipal solid 
waste landfill (MSWLF) units. RD&D permits would not be available in 
States without an approved MSWLF permit program, 67 FR 39662. EPA 
proposed this provision in an effort to stimulate the development of 
new technologies and alternative operational processes for the disposal 
of municipal solid waste in MSWLF units. The proposed rule would allow 
the State director to permit variances to specific provisions of the 
MSWLF criteria, including the (1) Operating criteria, except procedures 
for excluding hazardous waste and explosive gas control in subpart C; 
(2) the design criteria in subpart D; and (3) the final cover 
requirements in the closure and post-closure care criteria in subpart 
F. In order to issue an RD&D permit, the owner/operator of the MSWLF 
would have to demonstrate to the State Director's satisfaction that a 
landfill operating under an RD&D permit would pose no more risk to 
human health and the environment than it would operating under a permit 
in accordance with all existing MSWLF criteria.
    The proposed rule would not allow State directors to deviate from 
certain criteria, based on a determination that compliance with the 
established criteria is necessary to protect human health and the 
environment. As proposed, the following criteria would not be subject 
to variance in an RD&D permit: (1) Location restrictions in subpart B; 
(2) ground-water monitoring and corrective action in subpart E; (3) 
financial

[[Page 13244]]

assurance in subpart G; (4) explosive gas control in 40 CFR 258.23 of 
subpart C; and (5) hazardous waste control in 40 CFR 258.20 of subpart 
C.
    Under the proposed rule, the duration of the initial RD&D permits 
would be limited to three years. However, the permit could be renewed 
for another three years up to a maximum of three times. Therefore, the 
proposed rule would allow for a maximum permit period of 12 years.
    EPA considered, but did not propose, placing a size or quantity 
limitation on the RD&D projects to be permitted and requested public 
comment on whether the final rule should be limited to MSWLF units that 
do not exceed a certain size and/or quantity of waste placed in the 
landfill. EPA did not propose any such limitations based on the view 
that due to the potential variations in types of projects, any landfill 
size or waste quantity limitations should be determined by the State 
Director on a site-specific basis.
    To ensure that projects operating under an RD&D permit meet the 
expectations of the research, development or demonstration project, EPA 
also proposed to require that the permittee test, monitor, and submit 
information to the State Director as specified in the RD&D permit in 
order for the State Director to determine the progress of the project, 
insure proper operation of the landfill, and assure protection of human 
health and the environment. EPA did not propose specific testing or 
recordkeeping requirements, nor did it specify monitoring frequency. 
The Agency believed that each project should be evaluated individually 
to determine the appropriate frequency of monitoring, type of testing, 
and what records should be kept. Therefore, under the proposed rule, 
the State Director would make this assessment and include specific 
monitoring, testing, and recordkeeping requirements in each permit.
    As a separate requirement, the proposed rule would require the 
landfill owner/operator to submit an annual report to the State 
Director summarizing progress on how well the project is attaining its 
goals. Examples of goals include environmental protection, cost 
benefits, community benefits, compost recovery, improved ground water 
protection, more rapid and/or complete decomposition of waste, improved 
landfill gas recovery, and the geotechnical stability of the landfill. 
These goals should be clearly stated in the permit in objective, 
measurable terms where possible.

B. What Comments Were Received on the Proposed Rule

    EPA received 12 comments on the proposed rule during the comment 
period. However, after the close of the comment period, EPA received, 
and continues to receive, electronic form letters expressing opposition 
to the proposed rule, which now number over 200 letters. Of the12 
comments submitted during the comment period, eight came from states 
(environmental agencies or waste management departments) and an 
organization representing state waste management agencies; two were 
from waste management professionals; one was from a waste management 
trade organization; and one came from a coalition of environmental 
organizations. The e-form letters, which are identical, are from 
private individuals, and though submitted after the close of the 
comment period, have been considered by EPA in this rulemaking.\1\
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    \1\ In expressing opposition to the proposed rule, these 
commenters argued that the proposal ``would effectively deregulate 
most national standards for municipal landfills under the false 
guise of encouraging innovation.'' Rather, the commenters noted that 
the existing rules are ``perfectly adequate to handle applications 
for variances for testing bona fide innovations.'' As discussed 
throughout the preamble, the Agency has narrowed the final rule to 
allow variances only for run-on control systems, liquids 
restrictions, and the final cover requirements. That is, no variance 
from any other requirements of the MSWLF criteria are allowed, 
unless already provided for in the existing regulations. However, we 
disagree with the commenters that the existing regulations are 
adequate to handle applications for variances for testing of 
innovative solutions regarding run-on control systems, the addition 
of liquids in landfills, and the final cover requirements. We 
specifically discuss our basis for these later in the preamble.
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    The state agencies and state agency organization, as well as the 
industry commenters generally expressed support for the proposed rule, 
although some particular issues were raised with respect to the scope 
of the rule. The environmental group coalition and individual 
commenters opposed the proposed rule. For EPA's complete responses to 
the comments, please see the Response to Comments document in the 
docket. The major issues and a summary of EPA's responses is set forth 
below in Section V.

IV. Provisions of the Final Rule

A. Summary of the Final Rule

    Today's rule grants authority to directors of approved state 
programs to issue RD&D permits to provide variances from certain 
criteria in 40 CFR part 258 for new and existing MSWLF units and 
lateral expansions. However, as a result of comments on the proposal, 
and in an effort to clarify the Agency's intent, the final rule is 
narrower in scope than the proposed rule. One comment in particular 
questioned the broad scope of the proposed rule and the basis for EPA's 
authority to allow the degree of deviation from the criteria in part 
258 that the commenter understood the proposal to allow. This comment 
was based on an interpretation of the proposal that EPA did not intend, 
indicating that the language of the proposal was potentially ambiguous. 
Therefore, in an effort to remove any potential ambiguity, the final 
rule focuses only on the particular areas of new variance authority. 
The final rule therefore differs from the proposal in approach, but not 
substantially in effect.
    Specifically, the proposal identified a number of provisions in the 
part 258 criteria for which the Director of an approved State could 
allow for a variance in an RD&D permit. As explained in more detail 
below, many of these existing criteria already have their own variance 
provisions, whereby the Director of an approved State program is 
already authorized to include alternative means of meeting the criteria 
in an operating permit for a MSWLF unit. Thus, the inclusion of these 
provisions in the proposed RD&D rule created confusion and potential 
ambiguity, because it was not clear whether EPA intended simply to 
repeat the already-available flexibility or whether some additional 
variance authority was contemplated.
    Moreover, based on the commenters' broad interpretation of the 
proposed RD&D rule, the commenter also more generally questioned EPA's 
authority to provide the degree of variance from the criteria as the 
proposed rule appeared to have allowed. EPA does not agree that, as a 
statutory matter, it could not have finalized the rule as proposed. 
However, in light of this comment and specific issues raised in 
connection with this point, (see section V.A. of the preamble for a 
detailed discussion), EPA also reconsidered whether it is prudent to 
allow each of the criteria included for variance authority in the 
proposal to be available for RD&D permit authority. As a result, EPA 
decided that several other criteria, which do not contain their own 
specific variance authority, should also not be included in the final 
rule, such as the air criteria and surface water requirements.
    Therefore, today's rule provides approved States with the authority 
to issue RD&D permits to provide variances from the operating criteria 
in subpart C only with respect to run-on control systems in Sec.  
258.26(a)(1) and the liquids restrictions in Sec.  258.28(a). In

[[Page 13245]]

addition, the final rule allows an additional variance for the final 
cover set forth in the closure/post closure criteria in subpart F. 
Unlike the proposal, EPA is not including authority for further 
variance from the design criteria in subpart D.
    Although the final rule allows variances for only three of the 
criteria in part 258, there is in fact little difference in the degree 
of flexibility that approved states can exercise in issuing permits for 
MSWLF units. In particular, several of the criteria that were proposed 
for RD&D permits may already be met through alternative means under the 
existing criteria. Therefore, EPA determined that RD&D permit authority 
is not needed to allow variances from those criteria. Indeed, unlike 
RD&D authority, there is no federal limitation on permit duration or 
renewals, as is contained into today's rule. Also, the existing 
authority in part 258 for alternatives to meeting the criteria remain 
available for RD&D projects. The purpose of today's rule is to expand 
the variance authority for innovative or new technologies or methods 
beyond the authority that already exists in the MSWLF criteria. This 
modification of the proposal also responds to a comment asserting that 
the RD&D permit proposal would unlawfully delegate standard-setting 
authority to approved states. By narrowing the RD&D permit to specific 
criteria which do not already include variance authority, EPA further 
clarifies that it did not intend that the variance, or ``waiver,'' 
authority as proposed would allow that the requirements themselves 
could have been waived altogether. The particular criteria that can be 
subject to RD&D permit variance are discussed in more specificity 
below.
    The final rule is different in another respect from the proposal 
regarding the scope of coverage. In general, the final rule provides 
that RD&D permits may be approved for new and existing MSWLF units and 
lateral expansions. However, in response to a comment, the final rule 
states that small landfills which operate under Sec.  258.1(f)(1) 
cannot receive a variance from the liquids restrictions, including the 
recirculation of leachate, and the addition of any run-on water on to 
the active portion of the landfill. The reason that the Agency is not 
applying the final rule to these landfills is that Sec.  258.1(f)(1) is 
itself a variance from both the design requirements (Subpart D) and 
groundwater monitoring and corrective action requirements (Subpart E) 
for small landfills. EPA has concluded that a variance to add liquids 
to such small landfills which do not have liners meeting the design 
requirements in Sec.  258.40 and/or are exempt from groundwater 
monitoring requirements would ``present a reasonable probability of 
adverse affects on human health or the environment'' and therefore 
would not meet the statutory standard for ``sanitary landfills'' under 
section 4004(a) of RCRA. In addition, because Sec.  258.60(b)(3) 
already allows for owners/operators of small MSWLF units to receive a 
variance from final cover requirements with respect to the infiltration 
layer, today's RD&D authority for an alternative to the infiltration 
requirements in the final cover criteria do not apply to small MSWLF 
units.
    Also in response to a comment, EPA has changed the language of 
Sec.  258.4(a) to clarify that RD&D permits may be issued for 
``existing MSWLF units, new MSWLF units, and lateral expansions,'' as 
those terms are defined in section Sec.  258.2. Although this was the 
intent of the proposed rule, the terminology used in the proposal was 
not identical to the defined terms in part 258.
    In response to comments regarding permit termination prior to 
expiration, EPA has decided to modify the language as proposed to allow 
the State Director to order alternative corrective action procedures to 
protect human and health and the environment as an option to 
termination of operations. In addition, the state permitting authority 
may include the criteria and process for project termination in the 
permit. Several commenters requested this change to allow the State 
Director more flexibility for correcting situations where there may be 
risks due to improper operations or unforseen problems at a site 
operating under today's rule. This modification is in keeping with 
Congress' intent that ``disposal of solid wastes should continue to be 
primarily the function of State, regional, and local agencies * * *'' 
RCRA section 1002(1)(4).
    The rule finalizes unchanged from the proposal those requirements 
regarding type of waste received and other requirements necessary to 
protect human health and the environment, as well as the annual report 
requirement. Today's rule also finalizes the proposed rule with respect 
to the permit duration and renewal provisions. The final rule provides 
that RD&D permits may be approved for a period up to three years and 
may be renewed, with a maximum of three renewals allowed, for a total 
potential duration of 12 years. Also, today's action finalizes the 
proposal with respect to exclusion of criteria for groundwater 
monitoring in subpart E (Sec. Sec.  258.50 through 258.59), closure and 
post closure requirements in subpart F (Sec. Sec.  258.60 and 258.61) 
except alternative cover provisions in Sec.  258.60, and financial 
assurance requirements subpart G (Sec. Sec.  258.70 through 258.75). As 
in the proposal, there is no authority for a variance from these 
provisions in today's rule.

B. Operating Criteria for Which Variance Is Allowed

    Today's final rule differs from the proposed rule with respect to 
those operating criteria in subpart C for which a variance through an 
RD&D permit is allowed. After further review and in response to 
comments, EPA is narrowing the specific sections of part 258, subpart C 
for which a variance in an RD&D permit may be approved. Specifically, 
the following operating conditions in subpart C are not included in 
today's final rule: daily cover material requirements described in 
Sec.  258.21, disease vector control as described in Sec.  258.22, air 
criteria described in Sec.  258.24, access requirements as described in 
Sec.  258.25, surface water requirements described in Sec.  258.27, and 
recordkeeping requirements described in Sec.  258.29. This is in 
addition to the exclusions in the proposed rule with respect to the 
procedures for excluding the receipt of hazardous waste and explosive 
gas controls described in Sec. Sec.  258.20 and 258.23 respectively, 
which are also excluded from today's rule.
    One comment in particular indicated that the proposed rule could be 
broadly interpreted to remove ``critical components'' of the criteria 
altogether from a permit. EPA does not agree that the proposed rule 
would have eliminated the criteria, however in order to address this 
concern, the final rule is omitting those criteria for which the 
existing rules already provide an alternate means/variance authority 
for approved state programs. This clarification also addresses another 
commenter's request that the final rule explicitly include the existing 
flexibility in part 258 into RD&D permits. EPA sees no reason to 
include those provisions in the RD&D permits, since approved states are 
already allowed to provide variances from these criteria in standard 
MSWLF permits. Therefore, EPA is not including variance authority for 
criteria where part 258 already includes authority for an approved 
State to allow an alternative means to meeting the criteria. However, 
EPA clarifies that the existing variance authority continues to be 
available for MSWLF units that may also receive RD&D permits under 
today's rule.

[[Page 13246]]

    EPA is excluding two other criteria contained in part 258, subpart 
C from RD&D permit authority because the existing criteria implement 
requirements necessary for meeting statutory requirements. In 
considering the comment mentioned above regarding removal of critical 
components of the criteria, EPA decided that inclusion of these 
criteria, Sec. Sec.  258.24 (air criteria) and 258.27 (surface water 
requirements) in today's rule would be confusing and misleading, and 
therefore they have been excluded from today's final rule. In addition, 
the run-off control variance for Sec. Sec.  258.26(a)(2) and (b) were 
also deleted from the final rule. The purpose of the run-off controls 
is to prevent contamination of surface waters by the waste. Therefore, 
the inclusion of a variance of the run-off control variance as part of 
the run-on control variance in the proposed rule was inadvertent and is 
not included in today's final rule.
    For the criteria included in today's RD&D permit rule, EPA intends 
that where the existing criterion prescribes the means of accomplishing 
the purpose of the criterion, an approved state would have authority to 
allow a different means to be used. For example, EPA proposed allowing 
a variance from the liquids restrictions in Sec.  258.28 based on the 
understanding that the underlying purpose of the liquid restrictions--
protection of ground water--would continue to be fulfilled. Because the 
only bulk liquid that is allowed to be added pursuant to Sec.  258.28 
is recirculated leachate/gas condensate, and this is only allowed in 
MWSLF units constructed with a composite liner and leachate collection 
system prescribed by Sec.  258.40(a)(2), the existing criteria in Sec.  
258.28 provide no authority for approved states to allow the addition 
of bulk liquids other than recirculated leachate to MSWLF units 
constructed with the prescribed design. Nor is there any authority to 
allow leachate recirculation (or addition of other bulk liquids) to 
MSWLF units constructed with an alternative design approved under Sec.  
258.40(a)(1). The proposed rule was intended to provide this authority 
for approved states to allow these activities, but only where the MSWLF 
owner/operator adequately demonstrates that the alternative design 
under conditions of added liquids provides ground water protection--and 
in general is as protective of health and the environment--that is at 
least as protective as a MSWLF unit designed and operating as currently 
prescribed. As in the proposal, today's final rule in Sec.  258.4(b) 
includes the provision that any RD&D permit ``must include such terms 
and conditions at least as protective as the criteria in this part 
(part 258) to assure protection of human health and the environment.'' 
Both the variances for Sec. Sec.  258.28(a) and 258.26(a)(1) will allow 
the addition of water to a landfill. In the case of Sec.  258.26(a)(1), 
the addition consists of rainwater running on to the landfill. However, 
the operator would still have to prevent rainwater from running off of 
the landfill. Therefore, the variance only applies to run-on of 
rainwater to the landfill.
    The effect of today's rule, therefore, is to provide specific 
authority for states with approved programs to issue variances from 
part 258, subpart C requirements with respect to those operating 
criteria for which variance authority is appropriate, but not already 
included in the existing rule. These operating criteria are those for 
run-on control systems in Sec.  258.26(a)(1) and the liquids 
restrictions in Sec.  258.28(a).
    To obtain a variance from either or both of these provisions, the 
owner/operator must demonstrate that there is no increased risk to 
human health and the environment. As stated in the proposal, the owner/
operator would have to demonstrate ``groundwater protection, landfill 
stability, as well as landfill gas collection and control sooner than 
is currently required under EPA air regulations,'' 67 FR 39664. Since 
today's rule was proposed, EPA published on January 16, 2003 in the 
Federal Register, 68 FR 2227, the National Emission Standards for 
Hazardous Air Pollutants (NESHAPs) for municipal solid waste landfills. 
This rule applies to both major and area sources as explained in the 
notice. The rule has separate requirements for bioreactor landfills as 
set forth in subpart AAAA of part 63. The NESHAPs rule defines a 
bioreactor as: ``Bioreactor means a MSW landfill or portion of a MSW 
landfill where any liquid other than leachate (leachate includes 
landfill gas condensate) is added in a controlled fashion into the 
waste mass (often in combination with recirculating leachate) to reach 
a minimum average moisture content of at least 40 percent by weight to 
accelerate or enhance the anaerobic (without oxygen) biodegradation of 
the waste.'' Any landfill that meets the definition of a bioreactor and 
the size requirements as set forth in part 63, subpart AAAA would have 
to meet the bioreactor standards at minimum. In addition, a state could 
have more stringent requirements with respect to defining or operating 
``bioreactors.'' For example a state may designate a maximum moisture 
content level that is lower than the 40% by weight level specified in 
the definition of ``bioreactor'' in part 63, subpart AAAA.
    In response to comments expressing concern with the liquids 
addition authority afforded by today's rule, EPA is modifying the 
variance authority as proposed with respect to these provisions by 
specifying that a variance may be allowed only for MSWLF units designed 
and constructed with a leachate collection system that maintains no 
more than a 30 centimeter depth of leachate on the liner. EPA has 
determined that the requisite demonstration of no increased risk to 
human health and the environment cannot be made unless the MSWLF unit 
to which the RD&D permit applies is constructed with a leachate 
collection system designed to maintain no more than a 30 centimeter 
depth of leachate on the liner. The major concern addressed by 
Sec. Sec.  258.26 and 258.28(a) is contamination of surface and ground 
waters. Therefore, EPA is adding this condition to the variance 
authority because the alternative design standard presently in 40 CFR 
258.40(a)(1) does not require a leachate collection system. Because 
Sec.  258.28(a) does not allow leachate recirculation (or any bulk 
liquid addition) in MSWLF units constructed with an alternative liner, 
a leachate collection system is not a prerequisite to alternative 
design approval. However, since today's rule allows a variance to allow 
leachate recirculation and liquids addition to existing MSWLF units 
constructed with an alternative liner, EPA is including the requirement 
for a leachate collection system in this variance authority.
    Under the rule as proposed, leachate and other liquids could 
theoretically have been allowed to be added to a MSWLF unit without a 
leachate collection system. It is unlikely that any RD&D permit 
allowing leachate recirculation or addition of other bulk liquids could 
have been issued to a MSWLF unit without a leachate collection system, 
because demonstrating the requisite level of protection would require 
that a leachate collection system be part of any design that would 
qualify for an RD&D permit. In the preamble to the proposed rule, EPA 
stated, ``Today's proposed rule would grant State Directors in approved 
States the authority to issue permits allowing the addition of these 
liquids, provided the owner/operator demonstrates that there will be no 
increased risk to human health and the environment. The MSWLF owner/
operator would therefore be required to demonstrate groundwater 
protection,

[[Page 13247]]

landfill stability, * * *'' 67 FR 39664. Therefore, EPA is clarifying 
that an adequately designed leachate collection system is a 
prerequisite to an RD&D permit involving the addition of liquids, 
including the recirculation of leachate. This issue is also discussed 
in the final notice of the MSWLF criteria, 56 FR 50978, 51054-56 
(October 9, 1991).
    As previously stated, a variance can only be granted where the 
MSWLF unit owner/operator demonstrates to the State Director that the 
risk of contamination to ground and surface waters will not be greater 
than the risk without a variance. Based on groundwater models such as 
the HELP model as well as the EPA report, ``Assessment and 
Recommendations for Improving the Performance of Waste Containment 
Systems,'' EPA/600/R-02/099, December 2002, EPA expects any alternative 
design that is demonstrated to qualify for a variance would necessarily 
include a leachate collection system that performs at least as well as 
the leachate collection system presently required under Sec.  258.28. 
Therefore, today's rule requires that any alternative liner permitted 
under today's rule must have a leachate collection system where 
leachate recirculation and/or the addition of bulk liquid wastes 
(including storm water presently controlled by Sec.  258.26(a)(1)), 
will be allowed. An adequate leachate collection system is one that is 
designed to maintain no more than a 30 centimeter head (pressure) on 
the liner. Liquid addition and/or leachate recirculation on an 
alternative liner without a leachate collection system above the liner 
and/or excessive head on the liner should be considered an unacceptable 
risk to groundwater and potentially to surface water. Standards for 
ground water protection are set forth in Sec.  258.40. In addition, 
risk analysis methods are available for municipal landfills using EPA's 
MULTIMED and the HELP models. Additional information is available from 
the technical manual: ``Solid Waste Disposal Facility Criteria'' and 
technical resource document: ``Assessment and Recommendations for 
Improving the Performance of Waste Containment Systems.'' Another 
useful resource is the ASCE Seminar: ``Design of Waste Containment 
Systems.'' More information on the later item is available at: http://www.asce.org/conted/seminars/geotechnical.cfm.
    A major concern with respect to the addition of water to a landfill 
is the geotechnical stability of the waste. The addition of liquid can 
change both the strength and behavior of the waste. Therefore, an 
owner/operator seeking an RD&D permit would be expected to complete a 
stability analysis demonstrating the physical stability of the landfill 
prior to the issuance of a permit. The owner/operator should be ever 
vigilant about any movement of the waste and should include in the 
demonstration a description of the methods for determining whether 
there is any actual or potential movement of the waste or liquid 
seepage from the landfill. The methods for determining geotechnical 
stability, as well as the results of monitoring, should be submitted to 
the permitting authority at least on annual basis as stated in III, A 
above.

C. Design Criteria

    EPA is not finalizing the proposed inclusion of RD&D permit 
authority to vary from the design criteria in subpart D. EPA received a 
lengthy comment opposing additional authority to vary from the design 
criteria in Sec.  258.40 (see section V.B. below). After reviewing the 
comment and the authority existing in Sec.  258.40, EPA has determined 
that the existing design criteria already provide adequate authority 
for the director of an approved state to allow an alternative design. 
The existing alternative design provision in Sec.  258.40(a)(1) 
establishes the minimum criteria for protection of human health and the 
environment, specifically Table 1 and paragraph (d) of Sec.  258.40. 
Because an RD&D permit is not authorized if the risk to human health 
and the environment would be greater than it would be without a 
variance, EPA believes that the better course is to maintain the 
minimum alternative design requirements in Sec.  258.40(a)(1). The 
existing alternative design provision does not prescribe how these 
minimum performance criteria are to be met, thus the State Director 
already has the authority to approve alternative materials and 
structural components as long as they achieve the requisite level of 
performance.
    EPA recognizes that a primary reason for interest in RD&D permit 
authority to vary from the design criteria is to enable MSWLF units 
constructed with an alternative liner design to be operated as a 
bioreactor. The obstacle in the part 258 criteria to operation of such 
a MSWLF unit as a bioreactor is not contained in the design criteria, 
Sec.  258.40, however. Rather, it is the liquids restrictions in Sec.  
258.28(a) that prohibit the addition of bulk liquids, including 
leachate recirculation, in such landfills. EPA has therefore concluded 
that the authority for a variance from Sec.  258.28(a) in an RD&D 
permit contained in today's rule is the only additional variance 
authority needed to allow for this type of innovation and 
experimentation. Any other experimentation with liner design, 
materials, structure, or other design aspects is already allowed 
pursuant to Sec.  258.40(a)(1). Therefore, inclusion of authority to 
vary from the design criteria in Sec.  258.40 is not needed.

D. Variance From Final Cover Criteria

    EPA proposed a variance from the final cover requirements with 
respect to the infiltration and permeability layer, in 40 CFR 
258.60(a)(1), (2) and (b)(1). One example of an alternative cover is a 
``phytocover.'' Rather than serving as a complete physical barrier, 
phytocovers provide a totally different approach to controlling water 
infiltration to a landfill by using plants to remove moisture from the 
soil cover of the landfill and to control chemical or nutrient seepage 
on the surface of the landfill. In some cases, this type of cover may 
be used to remove moisture from the landfill if the plant uptake of 
moisture exceeds the input of water from precipitation.
    Although Sec.  258.60(b) provides authority for an alternative 
final cover, EPA has determined that the existing variance authority 
may not be sufficient to allow for experimentation with different 
approaches to final cover engineering, such as phytocovers. As EPA 
indicated in the preamble to the proposed rule, due to varying 
climates, topography, and waste handling techniques, there may be other 
means of keeping moisture from accumulating in a closed MSWLF unit than 
currently allowed (67 FR 39664). Section 258.60(b)(1) allows a variance 
from the permeability and infiltration layer specifications in Sec.  
258.60(a)(1) and (2), and Sec.  258.60(b)(2) allows a variance from the 
erosion layer specifications in Sec.  258.60(a)(3). However, the 
existing variance in Sec.  258.60(b)(1) requires an infiltration layer 
that will achieve an equivalent reduction in infiltration as that 
achieved by the prescribed specifications for both permeability and 
infiltration in Sec.  258.60(a)(1) and (2). This may be insufficient 
for alternative covers which may allow some moisture through the cap, 
but use some other mechanism to remove moisture from the waste. 
Therefore, EPA is including variance authority for 40 CFR 258.60(a)(1) 
and (2) in addition to that which is afforded in Sec.  258.60(b)(1) in 
today's final rule. To demonstrate that a proposed experimental final 
cover will be as protective as a final cover meeting the requirements 
of Sec.  258.60(a)(1) and (2), the owner/operator of the landfill must 
demonstrate that no moisture will

[[Page 13248]]

escape from the landfill to the surrounding surface and groundwater.
    The performance of the final cover on a MSWLF unit has long been a 
fundamental element of sound solid waste management. EPA addressed its 
concerns regarding final cover requirements when first promulgating the 
MSWLF criteria in 1991. 56 FR 51094-51106. A major concern regarding 
final cover performance is prevention of the ``bathtub effect,'' which 
is caused by water passing through the cover and filling up the liner 
Therefore, the criteria for final cover design prescribe a minimum 
permeability applicable to all MSWLF units, and where the MSWLF unit 
has a liner, the criteria require the final cover to be at least no 
more permeable than the bottom liner.
    The bathtub effect is still the major concern with respect to final 
covers. A demonstration for an RD&D permit for a variance from the 
final cover criteria must demonstrate that there will not be abuildup 
of excess liquid in the waste and on the landfill liner. A landfill 
constructed with a leachate collection system provides the best 
opportunity for determining the amount of water in the landfill system 
and if there is a buildup of excess liquid on the liner. In addition, 
the physical stability of the landfill is a concern for an alternative 
final cover that can have significant permeability and allows the waste 
to pick up some water, even though there is little or no significant 
liquid on the liner. This is especially true for landfills that are not 
operated as bioreactors. The owner/operator and the State program 
Director should consider this possibility when developing an 
alternative cover under today's rule. The Director should be confident 
water contacting the waste will not compromise the physical stability 
of the landfill.
    Although there is no measurement specified in today's rule, there 
is a requirement for a sufficient reduction in infiltration so that 
there will be no leakage of leachate from the landfill. In many cases, 
infiltration can be measured, in particular if the landfill has a 
leachate collection system. For landfills without a leachate collection 
system, or if measurement is otherwise not an option, alternative means 
of making a determination must be used. This does not necessarily 
require modeling, although modeling may be an appropriate means of 
demonstrating equivalence. Where models do not adequately account for 
the properties of a proposed alternative cover, the demonstration may 
be based on reasonable scientific facts and principles. In the case of 
phytocovers, for example, the demonstration could include the 
evapotranspiration rate of the cover, i.e., the extent to which the 
cover would be capable of preventing water from reaching the waste or 
landfill liner. Therefore, the permitting authority could consider the 
infiltration rate of water to and through the waste over time as 
opposed to the degree of permeability of the cap alone. EPA intends 
that today's rule will provide adequate authority for the Director of 
an approved State program to approve the means for showing an 
appropriate reduction in the infiltration of water as part of the RD&D 
permit approval process.
    Today's rule does not include a variance for the erosion layer 
requirements in Sec.  250.60(a)(3) and (b)(2). Because Sec.  
258.60(b)(2) already provides authority for an alternative cover design 
that ``provides equivalent protection from wind and water erosion as 
the erosion layer specified in paragraph (a)(3),'' there is no need for 
any additional variance authority with respect to erosion control.
    When allowing use of an alternative final cover, the State Director 
should consider if some type of financial assurance may be needed to 
replace an alternative cover with another cover as presently specified 
in Sec.  258.60(a) and (b) in the event the alternative cover allowed 
by today's rule should fail. The State Director could include this 
financial assurance with respect to a replacement of the final cover as 
part of thesubpart G requirements for the Financial Assurance Criteria.
    Some commenters urged EPA to expand the variance authority in the 
RD&D permit rule to allow variance from post-closure care requirements, 
as well as from the final cover requirements. EPA does not agree that 
additional flexibility is needed for the post closure care requirements 
in 40 CFR 258.61. There are already opportunities in Sec.  258.61 for 
the Director of an approved State program to modify post-closure 
requirements on a case-by-case basis. Therefore, today's rule only 
allows a variance for Sec.  258.60(a) and (b), because our review shows 
that the existing alternative final cover provision in Sec.  258.60(b) 
is not sufficiently flexible to allow for a foreseeable range of 
alternative final cover developments.

V. Major Issues Raised in Comments and Responses

A. Legal Basis for the Rule

    The coalition of environmental groups claims that EPA does not have 
authority to allow a State with an approved program to issue RD&D 
permits because this constitutes an unlawful delegation of authority to 
set standards. They interpret the authority to grant variances from 
certain criteria through the RD&D permit process as the authority to 
set standards. The commenter bases this interpretation on four factors: 
(1) No EPA oversight to ensure that only truly innovative technologies 
are permitted; (2) no definition of ``innovative'' in the rule; (3) no 
means of determining whether the technology for which a variance is 
sought provides at least ``equivalent'' environmental and human health 
protection; and (4) the possibility of the RD&D permit lasting up to 12 
years. Finally, they argue that the RD&D permit authority violates RCRA 
and the National Environmental Policy Act.
    EPA disagrees with the premise of the comment that the rule 
effectively delegates authority to set national standards for municipal 
solid waste landfills to those states with approved programs. Section 
4004(a) of RCRA directs EPA to ``promulgate regulations containing 
criteria for determining which facilities shall be classified as 
sanitary landfills and which shall be classified as open dumps. . . . 
At a minimum, such criteria shall provide that a facility may be 
classified as a sanitary landfill and not an open dump only if there is 
no reasonable probability of adverse effects on health or the 
environment from disposal of solid waste at such facility.'' Today's 
rule, in Sec.  258.4(b) explicitly requires that any RD& D permit 
``include such terms and conditions at least as protective as the 
criteria for municipal solid waste landfills to assure protection of 
human health and the environment.'' EPA clarifies that this requirement 
that RD&D permit terms and conditions be at least as protective as the 
existing part 258 criteria is a requirement that any variance under 
today's rule be equivalent to the existing criteria in protecting human 
health and the environment.
    EPA agrees with the commenters, however, that the proposed rule was 
drafted more broadly than necessary to provide the flexibility 
intended. Therefore, to clarify the scope of the rule, EPA has omitted 
those parts of the part 258 criteria that already allow for different 
means to achieve the existing standards, and has added specific 
requirements for making the requisite demonstration that the permitted 
variance be as protective as the existing requirements in part 258.
    As the comment notes, the variances allowed in an RD&D permit will 
allow more moisture to enter a landfill, through run-on of storm water 
and

[[Page 13249]]

addition of other liquids. Under today's rule, any MSWLF unit must be 
designed to meet the ground water protection criteria in Sec.  258.40, 
and must be constructed with a leachate collection system meeting the 
same performance standard contained in the design criteria (Sec.  
258.40(a)(2)). Moreover, all ground water monitoring and corrective 
action requirements continue to apply. Therefore, EPA has not changed 
the ultimate regulatory standard, or allowed states to change the 
ultimate regulatory standard, that applies to MSWLF units. See Section 
V.H. below for further discussion of ``equivalence.''
    EPA does not agree that federal oversight of RD&D permits is 
required or authorized by RCRA. Unlike Subtitle C of RCRA, Subtitle D 
does not provide authority for a federal permitting program. On the 
contrary, section 4005(c) requires each State to adopt and implement a 
permit program to ensure that MSWLF units comply with the federal 
criteria. Oversight of MSWLF operations is within state, not federal, 
purview. Today's rule is consistent with existing criteria in part 258 
which provides directors of approved state programs to allow 
alternative means of meeting the criteria to be included in a MSWLF 
permit (e.g., 40 CFR 258.21(b), 258.40(a)(1)).
    Nor does EPA believe that it is necessary to define ``innovative.'' 
As more fully discussed in the Response to Comments Document, today's 
rule is modeled on 40 CFR 270.65, a research, development and 
demonstration permit rule for innovative and experimental hazardous 
waste treatment authorized by RCRA section 3005(g). Congress did not 
define ``innovative and experimental'' in the statute, nor did EPA 
define those terms in Sec.  270.65. However, in the preamble to that 
rule, EPA explained that ``innovative and experimental'' covers a broad 
range from technologies or processes that have only been tested in a 
laboratory setting to those that have already had some commercial 
application. 50 FR 27802, 27828 (July 15, 1985). For purposes of 
today's rule, EPA also intends ``innovative and new'' to be read 
broadly, to cover technologies and operational methods that are not 
currently permitted under 40 CFR part 258, ranging from those ``on 
paper'' or tested only in the laboratory to those which may have 
already had some limited application, e.g. through Project XL.
    EPA also does not agree that the 12 year maximum duration of 
operation under an RD&D permit indicates that the intent of the rule is 
allow circumvention of the criteria or delegation of standard setting 
authority. See Section V.D. below and the Response to Comments 
Document.
    EPA also notes that, in addition to section 4004(a) of RCRA, 
today's rule is supported by RCRA section 8001(a). This provision 
authorizes EPA to encourage state and local public authorities and 
agencies, as well as private agencies and individuals, to conduct 
research, investigations, experiments, training, demonstrations, and 
studies relating to the development and application of new and improved 
methods for collecting and disposing of solid waste, as well as 
improvements with respect to landfills. Today's rule enables States 
with approved MSWLF permit programs to expand their programs to include 
permits for particular research, demonstrations, and development of new 
methods to managing solid waste disposal in MSWLF units, including 
``means for reducing harmful environmental effects of earlier and 
existing landfills,'' and ``means for rendering landfill safe for 
purposes of construction and other uses, and techniques for recovering 
materials and energy from landfills. RCRA section 8001(a)(10).
    Finally, the comment raises the National Environmental Policy Act 
(NEPA), claiming that today's rule is an ``end run'' around NEPA 
because the rule constitutes a repeal of ``its current bioreactor 
prohibition'' and requires EPA to consider ``less environmentally risky 
alternatives to bioreactors.'' Again, EPA does not accept the premise 
that today's rule is a rule to authorize bioreactor operation on a 
national level. The final rule does not change the criteria on a 
national level; rather today's rule allows approved states to have 
greater flexibility in implementing specified criteria for research, 
demonstration and development purposes. Alternatives to today's rule 
would be alternative means of allowing research, development and 
demonstration of MSWLF operation and final cover. As the commenter has 
pointed out, there are already alternative means for conducting 
research: Project XL and CRADAs. Today's rule provides one additional 
means of demonstrating new techniques and materials. The means adopted 
in this rule, a limited purpose and limited duration permit, provides 
for public participation in each permit determination, and requires the 
Director of the approved state program to make a determination that the 
RD&D permit will not increase the probability of adverse effects to 
health or the environment over the existing criteria. See the Response 
to Comment document for further discussion of rulemaking under RCRA and 
NEPA requirements.

B. Variance From Design Criteria

    One commenter stated that Sec.  258.40(e) already provides 
authority for an alternative design, while ensuring EPA oversight of 
alternative design approval by the State. As described above, EPA 
agrees that additional authority for a variance from the design 
criteria in Sec.  258.40 is not needed, and the final rule does not 
include such authority. However, Sec.  258.40(e) does not provide the 
basis for this conclusion.
    Section 258.40(e) was specifically promulgated to allow alternative 
liners in states prior to promulgation of rules for approving state 
solid waste landfill permit programs. In contrast, Sec.  258.40(a)(1) 
allows the State Director in a state with an approved program to 
authorize an alternative liner that meets the minimum ground water 
protection standards referenced in Sec.  258.40(a)(1), but does not 
give the same authority to states without an approved program. The 
process set forth in Sec.  258.40(e) allowed MSWLF owners/operators to 
construct alternative liners during the period when no EPA regulations 
for state program approval were in place. EPA promulgated state program 
approval regulations on October 23, 1998, now codified at 40 CFR part 
239, implementing RCRA section 4005(c)(1)(B). Section 258.40(e) 
provided for EPA oversight because without state program approval, 
states could not approve a design as meeting the federal performance 
criteria. Once part 239 was promulgated, approved states were able to 
issue permits for landfills with alternative liners without the use of 
Sec.  258.40(e), and EPA oversight or approval was no longer necessary. 
Thus MSWLF owners/operators in approved states seeking construction of 
an alternative liner no longer need the procedures set forth in Sec.  
258.40(e).
    Since the authority in today's rule only applies in approved 
states, and approved states already have authority in Sec.  
258.40(a)(1) to allow alternative designs, there is no need to include 
authority for a variance from the design criteria in today's rule. As 
noted above, EPA does not exercise or claim oversight authority with 
respect to state approvals of alternative designs under 40 CFR 
258.40(a)(1).

C. Methods for Fostering Innovation

    One commenter claims that EPA has sufficient processes for 
fostering innovation without providing additional variance authority 
through RD&D

[[Page 13250]]

permits and referenced two other modes for fostering innovation. The 
first was the Cooperative Research and Development Agreements (CRADAs) 
and the second is Project XL.
    EPA agrees that research by entering into CRADAs can provide useful 
and high quality information. EPA is currently working with Waste 
Management, Inc. under a CRADA on a five-year project concerning 
bioreactor operation at the Outer Loop Facility in Louisville, KY.\2\ 
The major purpose of this CRADA is to receive technical EPA assistance 
in project development and monitoring techniques for the site. However, 
CRADA authority does not allow any variance from the existing landfill 
regulations. These limitations in scope, size, and project cost are 
reasons for the limited number of CRADAs. Therefore, the existing 
experiment is limited in the parameters that can be explored under 
existing criteria. Indeed, the existing CRADA at the Outer Loop 
facility illustrates why CRADAs do not provide the same opportunities 
for innovation. Today's rule will not effect the Outer Loop research 
under the CRADA. However, even without a CRADA for research at the 
Outer Loop facility, the State of Kentucky will be authorized to issue 
a state permit in the future to allow Waste Management to expand its 
research at this facility within the parameters of the RD&D permit 
authority.
---------------------------------------------------------------------------

    \2\ The CRADA and the Quality Assurance Project Plan (QAPP) for 
the site are available on request from the Office of Research and 
Development.
---------------------------------------------------------------------------

    The other avenue for innovation mentioned by the commenter was 
Project XL. EPA has processed four projects under Project XL involving 
MSWLFs, all of which involve some use of bioreactor technology or 
leachate recirculation. Each of these projects required a site-specific 
rule making at the federal level, as well as permit modifications on 
the state level. With today's rule, the federal site-specific 
rulemaking will not be needed to allow such projects to be permitted. 
However, similar demonstrations of expected performance and results 
will be needed in the permitting process, and public participation will 
take place in the permitting process as well. Therefore, while Project 
XL has proven useful for these and other innovative projects, EPA does 
not believe that the types of variances allowed under today's rule are 
such that a federal rulemaking should be required for each such 
project. EPA believes that the permit process provides the necessary 
scrutiny and public participation for variances included in RD&D 
permits. EPA Regional and Headquarters expertise is available to assist 
states in developing permits for the appropriate facilities.
    Both CRADA authority and Project XL remain available for research 
and innovation. Because today's rule allows for particular variances, 
innovation with other aspects of MSWLF construction or operation may 
continue to be available only through a site-specific rulemaking for 
example, under Project XL. Today's rule provides an additional avenue 
for particular variances from prescribed means of meeting federal 
criteria for MSWLF units.

D. Duration of RD&D Permits

    Several commenters argue that the proposed duration of up to 12 
years, including permit renewals is too long and provides much more 
time than is necessary for testing innovative materials or practices. 
On the other hand, others believe that the maximum permit duration is 
too short, some of whom think there should be no maximum time limit on 
the permit, arguing that the State Director should make the final 
determination with respect to permit duration.
    EPA does not agree with the view that a 12 year maximum duration is 
too long. Because there is a need to renew the permit every three 
years, EPA does not expect every RD&D permit to extend for the maximum 
number of years. However, some RD&D projects may be active for longer 
periods of time. While MSWLF units typically receive waste over 
relatively short time frames such as 5 to 7 years, the reaction or 
stabilization process may continue over a longer period of time. It may 
be reasonable, or even necessary, for an RD&D permit to encompass 
active operation, closure and post-closure in order for the permittee 
to assess a cover material, equipment performance, leachate quantity 
and quality, or other parameters for which a variance under today's 
rule has been granted in the permit. Extending the permit over a longer 
period also allows for collection of data that is required under an 
RD&D permit, but not required under the federal criteria for a standard 
MSWLF permit.
    EPA also does not agree that the 12 year maximum is too short or 
that there should be no maximum period at all. EPA always intended 
these permits to be temporary, discrete permits from which data could 
be used for future rulemaking(s). Therefore, the purpose of RD&D permit 
authority is to allow innovation and experimentation under close state 
oversight for a limited period. It is not intended to allow permanent 
operation of a MSWLF using means outside the scope of the existing 
criteria.
    If an experiment is successful and the state or EPA wishes a 
project to continue operation under the terms of the RD&D permit beyond 
the 12-year time frame, an amendment to 40 CFR part 258 would be 
needed. EPA anticipates that during the period of the final 3 year 
permit term, either the facility would seek a site-specific rule or EPA 
would consider a general rulemaking to incorporate the experimental 
aspects of the project into the part 258 criteria. At that time, the 
project would be evaluated by EPA, and if EPA agreed, the appropriate 
regulatory change, either on a site-specific or general basis, would be 
proposed. The subsequent EPA evaluation and rulemaking process, which 
will be similar to the Project XL rulemaking process, is expected to 
take another one to two years. EPA believes it has struck a balance 
here between the need to support and encourage innovation and the 
prescriptiveness of the federal criteria. Therefore, we believe that 
the total 12 year permitted time frame is reasonable and appropriate.

E. Bioreactor Landfills

    One commenter opposes the rule ``as a matter of policy'' because 
the means chosen--permit variances--are contrary to the goal of 
developing data that may be used to revise the existing federal MSWLF 
criteria, which should involve standardized research protocols. The 
example cited by the commenter is that EPA stated in the proposal that 
it expects the rule to foster experimentation with bioreactor 
technology and operation. The commenter believes that there are too 
many engineering problems with bioreactor landfills for state 
permitting authorities to be able to adequately address them in their 
permits.
    EPA does not agree that the data generated from RD&D projects will 
be unusable because the research will not be carried out using 
standardized protocols. Today's rule, like many of the requirements in 
the existing MSWLF criteria, is based on unit-specific and site-
specific flexibility for meeting the underlying standards established 
in the part 258 criteria. The existing MSWLF criteria and today's rule 
recognize that differences in climate, terrain, and a range of other 
factors are appropriate factors to address in the terms and conditions 
of individual permits.
    Moreover, the information gathered as a result of RD&D permits is 
expected to be useful in a similar manner as information gathered from 
the Project

[[Page 13251]]

XL bioreactor projects. Such information includes the quality and 
quantity of leachate, quality of waste, quality and quantity of gas 
generation, measurement of subsidence by using standard engineering/
scientific approaches or approved EPA methods. When reviewing any data 
for use in future rulemaking efforts, whether from Project XL, RD&D 
permits, or other sources, standard Agency QA/QC protocols will be used 
and all information will be subject to public comment and review.
    As noted above, the commenter expressed greatest concern with the 
application of today's rule to expand construction and/or operation of 
MSWLF units as ``bioreactors,'' i.e., landfills where controlled 
addition of non-hazardous liquid wastes or water\3\ accelerate the 
decomposition of waste and landfill gas generation. The deposition of 
liquid non-hazardous waste should be compatible and suitable with the 
operation of the landfill, i.e, the waste will not inhibit the 
biodegradation process or cause operational problems for the landfill, 
including risks to human health or the environment. EPA recognizes that 
RD&D permit authority will likely be used to allow leachate 
recirculation in existing MSWLF units constructed with alternative 
liners approved pursuant to Sec.  258.40(a)(1). In fact, EPA believes 
this is an important area for research and views this as one of the 
principal benefits of this rule. Under the existing criteria in Sec.  
258.28, leachate recirculation is allowed only in MSWLF units 
constructed with a composite liner and leachate collection system in 
accordance with the design criteria in Sec.  258.40(a)(2) and (b). 
Similarly, EPA recognizes that liquid wastes in addition to 
recirculated leachate may be allowed under an RD&D permit. As EPA noted 
in the proposal, new technologies for landfill operations and design 
have emerged since the MSWLF criteria were promulgated in 1991, which 
can enable safe bioreactor operation (i.e., the four bioreactor 
landfills allowed by Project XL). EPA agrees with the commenter that 
there are major engineering challenges presented by substantially 
increasing the liquid component of the waste. However, as the commenter 
points out, recent research, lessons learned from failures, and 
experimentation through Project XL and the Outer Loop CRADA have 
provided valuable information and models for appropriate design, 
operation, and monitoring.
---------------------------------------------------------------------------

    \3\ In many or most cases, water is used in lieu of any liquid 
wastes. In most cases, the water is groundwater or river water and 
may even be tap water.
---------------------------------------------------------------------------

    Each of the MSWLF leachate recirculation or bioreactor operations 
studied so far have been required to have leachate collection systems 
that maintain no more than 30 centimeters (cm) depth of leachate on the 
liner per section 258.40(a)(2). In light of the commenter's concerns 
about bioreactor operations in particular, EPA has determined that no 
variance from the requirement that a leachate collection system 
maintaining no more than 30 cm depth of leachate on the liner should be 
allowed. Where leachate is being recirculated and/or bulk liquids are 
added to the landfill to promote decomposition, EPA has required (in 
the existing criteria, Sec.  258.28 and Sec.  258.40) and is requiring 
in today's rule that the system maintain a maximum leachate head of 30 
cm in order to assure that there is no excessive pressure on the 
landfill liner in order to prevent leakage of leachate into the 
groundwater. The 30 cm. head on the liner standard was originally 
proposed in the Federal Register for the MSWLF criteria on August 30, 
1988 and is the same standard as used for leachate collection systems 
at subtitle C hazardous waste landfills (53 FR 33341 and 33396).
    In addition, EPA believes that the owner/operator should be ever 
vigilant about any movement of the waste and he/she should include the 
methods of determining whether there is any or potential movement of 
the waste or liquid seepage from the landfill. The methods for 
determining geotechnical stability, as well as the results of 
monitoring should be submitted to the permitting authority at least on 
an annual basis as stated in III, A above.

F. Variances for Groundwater Monitoring

    Most commenters on this issue agreed that groundwater monitoring 
requirements should not be allowed to be varied under today's rule. 
However, two commenters recommend allowing variances from groundwater 
monitoring requirements. One commenter stated that the basic need to 
conduct groundwater monitoring should be maintained, but that it should 
not be ``EPA's intent to forestall RD&D on new techniques for 
groundwater monitoring.''
    EPA does not agree that variance from the groundwater monitoring 
criteria is needed to allow for research, development and demonstration 
of new techniques for groundwater monitoring. The existing criteria 
already provide for site-specific factors to be taken into account and 
provide a number of opportunities for approved states to make 
alternative determinations (e.g., Sec. Sec.  258.51(a)(2), (b); 
258.54(a)(1), (2)). Moreover, the existing criteria (Sec. Sec.  258.52, 
258.53) allow the owner/operator of an MSWLF unit flexibility in 
establishing a sufficient and appropriate groundwater monitoring system 
and a groundwater sampling and analysis program. Neither commenter 
identified any RD&D type activities that would be hampered by the 
existing groundwater monitoring criteria. Therefore, no variance from 
groundwater monitoring requirements is allowed under today's rule.

G. Termination of a Project for Cause

    One commenter stated that the proposed language of Sec.  258.4 (c) 
regarding project termination at ``all operations at the facility'' is 
excessive and may even be unnecessary. The commenter expects that a 
State Director's authority to terminate operations at a facility would 
already be established under State law, and would not depend on this 
provision. In this provision, EPA should concern itself only with those 
operations that are subject to the RD&D permit. If any projects were 
ever terminated for cause, it is inappropriate for EPA to suggest that 
it is necessary for the entire facility to cease operations. Instead, 
EPA should simply state that any RD&D permit issued pursuant to this 
authority shall contain the criteria and process for project 
termination.
    EPA understands the commenter's concern with this requirement. EPA 
agrees that the State Director needs reasonable latitude for assuring 
protection of human health and environment. Therefore, EPA has decided 
to modify the language of this requirement to allow the State Director 
to order alternative corrective action procedures to protect human 
health and the environment as an option to termination of operations 
allowed under today's rule. In addition, today's rule does not apply to 
other operations on the site that may be operating under separate 
permits. The state permitting authority may include the criteria and 
process for project termination in the permit.

H. Burden of Proof for Variance Determinations for RD&D Permits

    One commenter was concerned that the need to demonstrate that RD&D 
proposals are ``at least as protective'' as existing requirements is 
too high a burden for the owner/operator to meet. The commenter was 
concerned that states may establish prohibitively high standards for 
demonstrating

[[Page 13252]]

technologies for those applying for an RD&D permit.
    EPA believes at an ``equivalent or better'' standard is the correct 
standard. EPA has promulgated objective criteria under the statute, 
many of which include authority for approved states to allow 
``alternative'' means of meeting the criteria which are ``equivalent.''
    EPA expects today's rule to be implemented in a comparable way to 
the existing authority for variances in part 258, and therefore does 
not expect the equivalence determination to be burdensome. Similarly, 
this type of determination has been made by states and EPA for the 
Project XL MSWLF projects for which site-specific rules already have 
been promulgated by the EPA. The XL projects can serve as examples for 
states with approved programs evaluating whether a proposal for an RD&D 
permit will be equivalent to the existing criteria with respect to 
environmental protection. In addition, in today's rule, EPA has limited 
the criteria for which variances are allowed as well as provided more 
specific information on making an equivalency determination. EPA will 
be available to work with states in resolving any issues in this area.

I. Implementation of Today's Rule

    One commenter was concerned that the proposed rule change would not 
be self-implementing. Therefore, states could only issue RD&D permits 
only after EPA approval of new state rules. The commenter was concerned 
that states would take up to five years to adopt today's final rule 
since some states took this long for the original approval of the MSWLF 
criteria.
    As explained in the proposal, today's rule is not self-
implementing, that is, a MSWLF owner/operator will only have the 
opportunity to apply for an RD&D permit in a state with an approved 
state program containing RD&D permit provisions. Today's rule allows 
states with approved programs to adopt RD&D permit provisions, and any 
state without an approved program would be able to include RD&D permit 
provisions in a program it submits to EPA for a determination of 
adequacy under 40 CFR part 239.
    EPA does not expect state program modifications that would 
incorporate RD&D permit provisions to be nearly as extensive as the 
original process for approval of the state's solid waste permit 
program. The initial submissions were complicated by the fact that EPA 
did not have rules for state permit program adequacy determinations in 
1991, when the MSWLF criteria went into effect. Those rules, 40 CFR 
part 239, were promulgated by EPA in 1998.
    EPA is aware that some state permitting authorities are interested 
in implementing the new rules as soon as possible. EPA is now working 
with some of these states in order to assure their submissions for 
approval are complete in order to minimize the time it will take for 
these state program modifications to be approved. EPA believes that a 
state submittal and EPA review could take as little as six months for 
approval. However, EPA acknowledges that the process could take 
significantly longer, if for example, a State delays making an adequate 
submission.

J. The Addition of Water to Arid Landfills

    One commenter stated that bioreactor-type operations should not be 
allowed at small landfills for which design requirements, ground water 
monitoring, and corrective action are not required pursuant to Sec.  
258.1(f)(1), since adding liquid would violate the model on which the 
exemption is based.
    EPA agrees that, because these landfills either have no liner or an 
inadequate liner to prevent the migration of any excess water in the 
landfill, no variance from operating procedures designed to control 
liquids should be allowed for those MSWLF units. Therefore, a paragraph 
has been incorporated into the final rule excluding any MSWLF unit that 
is exempt from subparts D and E of part 258. These MSWLF units will not 
be eligible for RD&D permits for variances from the run-on criteria in 
Sec.  258.26(a)(1) or the liquids restrictions in Sec.  258.28(a) This 
includes small and remote landfills operating under Sec.  258.1(f)(1) 
of the criteria.
    EPA also notes that small landfills, including those that qualify 
for the exemptions under Sec.  258.1(f), already have the opportunity 
for alternative final cover requirements with respect to the 
infiltration layer requirements in Sec.  258.60(b)(1). Under Sec.  
258.60(b)(3), the Director of any approved State may allow for 
alternative infiltration layer requirements for small MSWLF units, 
after public review and comment. Since small MSWLF units already have 
the flexibility afforded by today's rule with respect to final cover, 
EPA has determined that today's variance authority with respect to 
final cover requirements will not apply to small MSWLF units.

K. Potential Increased Emissions of Landfill Gas

    One commenter was concerned that larger quantities of landfill gas 
will be generated from MSWLF units that are operated as bioreactors. 
The commenter stated that additional gas collection and monitoring 
requirements should be required by rule.
    With the exception of explosive gas control requirements, landfill 
gas controls are not regulated pursuant to Subtitle D of RCRA: rather 
landfill gas emissions are regulated under the Clean Air Act (CAA). The 
air criteria in 40 CFR 258.24 refer to CAA requirements by requiring 
compliance with the applicable State Implementation Plan provisions 
under section 110 of the CAA. Specific requirements pertaining to 
landfill gas emissions from MSWLF units are addressed in 40 CFR part 
60, subparts Cc and WWW. Recently,EPA promulgated National Emission 
Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills 
(68 FR 2227, Jan. 16, 2003). This rule includes requirements for 
initiating landfill gas collection and control in bioreactor landfills. 
See 40 CFR part 63, subpart AAAA. State air permitting authorities 
should assure that air emissions from MSWLF units operating under a 
RD&D permit meet Federal Clean Air Act Regulations as specified in the 
state air permit or FESOP (Federally Enforceable State Operating 
Permit). Since these provisions apply to all MSWLF units, including 
those operating under RD&D permits, and consistent with section 1006(b) 
of RCRA, EPA sees no need for additional requirements under RCRA to 
address air emissions in today's rule.

L. Rule Authorizing Future Projects Based on the Success of a 
Technology

    Several state commenters suggested that successful waste management 
methods and techniques that prove successful in an RD&D project be 
allowed to be incorporated into the state's rules without waiting for 
EPA to amend the federal criteria. A similar comment was made regarding 
allowing such methods and techniques to be incorporated into the rules 
of other states based on successful RD&D projects. EPA does not agree 
that one successful RD&D project should necessarily be the basis for a 
rule change in the state issuing the permit or other states.
    Pursuant to section 4005(c) of RCRA, EPA regulations governing 
state permit program approval require the state program to have the 
authority to impose requirements ``adequate to ensure compliance with 
40 CFR part 258.'' 40

[[Page 13253]]

CFR 239.6(e). Part 258 does not allow variances from Sec. Sec.  
258.26(a)(1), 258.28(a) and 258.60(a)(1), (2) and (b)(1), except in 
accordance with today's rule, and therefore, EPA would not approve a 
state program modification incorporating authority to deviate from the 
requirements of these criteria in standard MSWLF permits. Unless and 
until EPA promulgates a rule incorporating any such changes into the 
federal criteria, after seeking comment, states would not be able to 
allow a new technology or method to be included in a MSWLF permit 
outside of the RD&D rule parameters.

VI. State and Tribal Implementation of Today's Rule

    The municipal solid waste landfill criteria are implemented in one 
of two ways. The first, and preferred alternative, is that each State 
implements the criteria after EPA reviews its municipal solid waste 
landfill permit program or other system of prior approval and finds it 
to be adequate pursuant to 40 CFR part 239. The criteria contain 
provisions that allow States to develop and rely on alternative 
approaches to address site-specific conditions. Therefore, the actual 
planning and direct implementation of solid waste programs is 
principally a function of State governments, rather than the federal 
government. The criteria can also be ``self-implementing'' by landfill 
owners and operators in those States that have not received EPA 
approval of their MSWLF permitting programs. In this case, the 
regulations provide less flexibility for owners and operators. As of 
January 1, 2002, 50 States and territories had received approval of 
their programs and are implementing the MSWLF criteria.
    As discussed in a prior Federal Register notice (63 FR 57027, 
October 23, 1998), Tribes are not included in the definition of State 
under RCRA, and therefore EPA does not have authority under RCRA to 
approve tribal MSWLF permitting programs. However, tribes can seek the 
same flexibility as afforded owners and operators located in approved 
States through a site-specific rulemaking as discussed in the EPA draft 
guidance entitled, ``Site Specific Flexibility Requests for Municipal 
Solid Waste Landfills in Indian Country,'' EPA530-97-016, August 1997.
    Today's final rule to allow RD&D permits is not self implementing. 
MSWLF owners/operators will only be able to obtain an RD&D permit in 
approved States that adopt authority to issue such permits. Because 
today's rule provides more flexibility than existing federal criteria, 
states are not required to amend permit programs which have been 
determined to be adequate under 40 CFR part 239. States have the option 
to amend statutory or regulatory provisions pursuant to today's rule. 
If a State chooses to amend its statutory or regulatory authority, and 
if doing so modifies the State's solid waste permit program, the State 
is required to notify the EPA Regional Administrator of the 
modification as provided by 40 CFR 239.12. Whether a State chooses to 
incorporate today's rule into its solid waste program will have no 
effect on the status of its existing program with respect to EPA 
approval, i.e., a State's submission of revisions to issue RD&D permits 
does not open a previously approved solid waste program for Federal 
review.
    Tribes are also eligible for RD&D permits under today's rule, 
similar to owners and operators located in approved States, through a 
site-specific rulemaking outlined in the previously referenced draft 
guidance document, ``Site Specific Flexibility Requests for Municipal 
Solid Waste Landfills in Indian Country.''

VII. How Does This Rule Comply With Applicable Statutes and Executive 
Orders?

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735), the Agency must 
determine whether this regulatory action is ``significant'' and 
therefore subject to formal review by the Office of Management and 
Budget (OMB) and to the requirements of the Executive Order, which 
include assessing the costs and benefits anticipated as a result of the 
proposed regulatory action. The Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    Today's rule allows, but does not require, States to provide RD&D 
permits to individual MSWLFs. This rule will not require any MSWLF to 
apply for such a permit, but would provide an opportunity to those 
owners/operators of MSWLF units seeking to try innovative or new 
technology or processes with respect to landfilling municipal solid 
waste.
    It has been determined that today's rule is not a significant 
regulatory action under Executive Order 12866 and is therefore not 
subject to OMB review. Today's rule would impose no new requirements 
and is intended to give more flexibility to the regulated community 
with significant potential net cost savings. Although net cost savings 
are expected, EPA is unable to estimate the magnitude of the savings 
because it is not known how many RD&D permits will be authorized nor 
what kinds of permit changes or innovations might be undertaken.

B. Paperwork Reduction Act

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document will be prepared by EPA 
and a copy, when completed, may be obtained from Sandy Farmer by mail 
at Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at 
[email protected], or by calling (202) 260-2740. A copy can 
also be downloaded off the Internet at
http://www.epa.gov/icr when it is available. The information 
requirements are not enforceable until OMB approves them.
    The ICRs affected by this rule are for 40 CFR part 239, 
Requirements for State Permit Program Determination of Adequacy and 
part 258, MSWLF Criteria. OMB has reviewed the ICR for part 239 
(ICR 1608.03, OMB 2050-152). EPA included estimates 
of the cost for approved States to revise their existing program for 
today's rule. The estimated cost was $5,680 per respondent. EPA will 
request comments under the ICR review process from States which plan to 
make these revisions so that EPA can better understand the expected 
burden that would be incurred by states who wish to make these changes. 
EPA is estimating that approximately five states will revise their 
rules to take advantage of today's rule. In addition, EPA will also be 
requesting information from MSWLF owners/operators on the reporting 
burden that they would incur due to this rule under the part 258,

[[Page 13254]]

MSWLF criteria ICR (ICR 1381.06, OMB 2050-0122) when 
that review process begins. This process is scheduled to be completed 
in October 2003. Information which States are expected to require 
include a demonstration as part of the permit application, the annual 
report specified in the rule, as well as additional monitoring and 
testing requirements which may be specified by a State authority. 
Additional monitoring requirements could include the measurement of 
leachate head on the liner; landfill temperature at various locations; 
type, application rate and application method of various wastes, 
including liquid wastes and water that maybe placed in the landfill; 
additional hydraulic studies; landfill settlement rate determinations; 
etc. At present, EPA estimates that only two to three landfills a year 
will be permitted under this rule over the next few years. Reporting 
requirements are estimated to cost between $15,000 and $25,000 per year 
per landfill. So total reporting costs are estimated at $30,000 to 
$75,000 per year for the first year and increasing at a rate of $50,000 
per year for the next three years thereafter.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et. seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is 
primarily engaged in the collection and disposal of refuse in a 
landfill operation as defined by NAICS codes 562212 and 924110 (also 
defined by SIC codes 4953 and 9511) with annual receipts less than 10 
million dollars, as defined in accordance with the Small Business 
Administration (SBA) size standards established for industries listed 
in the North American Industry Classification System (see http://www.sba.gov/size/NAICS-cover-page.html); (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I hereby certify that this rule will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities'' (5 U.S.C. 
Sections 603 and 604). Thus, an agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves regulatory burden, or otherwise has a 
positive economic effect on small entities subject to the rule. This 
rule will create no additional burden for small entities since small 
entities are not required to apply for a permit under today's rule in 
order to operate a landfill under part 258, unless they utilize a 
different technology then is allowed under existing rules. Therefore, 
getting a permit under today's rule is optional on the part of the 
landfill owner/operator.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments, and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of alternatives and adopt the least 
costly, most cost effective or least burdensome alternative that 
achieves the objective of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA's analysis of compliance with the Unfunded Mandates Reform Act 
of 1995 found that this rule imposes no additional enforceable burden 
on any State, local or tribal governments or the private sector. Thus, 
today's rule is not subject to the requirements of sections 202, 203, 
and 205 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It would not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Implementation of this rule by a 
State is at the State's discretion and is not required. Nevertheless, 
although section 6 of Executive Order 13132 does not apply to this 
rule, EPA has consulted with States through the Association of State 
and Territorial Solid Waste Management Officials during the development 
of this rule. Thus, Executive Order 13132 does not apply to this rule 
change.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA requested and received comments on the proposed rule 
from State and local

[[Page 13255]]

officials. These comments have been addressed in the preamble and the 
Response to Comments document.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    Under section 5(b) of Executive Order 13175, EPA may not issue a 
regulation that has tribal implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by tribal governments, or EPA consults with 
tribal officials early in the process of developing the proposed 
regulation. Under section 5(c) of Executive Order 13175, EPA may not 
issue a regulation that has tribal implications and that preempts 
tribal law, unless the Agency consults with tribal officials early in 
the process of developing the regulation.
    EPA has concluded that this rule will have no new tribal 
implications. It would not present any additional burden on the tribes, 
but will allow more flexibility for compliance with the MSWLF criteria. 
It will neither impose substantial direct compliance costs on tribal 
governments, nor preempt tribal law. Thus, the requirements of sections 
5(b) and 5(c) of the Executive Order do not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866, 
and because it would not affect decisions involving the environmental 
health or safety risks to children.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule reduces 
regulatory burden. It thus should not adversely affect energy supply, 
distribution or use.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
explanations to Congress, through OMB, when the Agency decides not to 
use available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective April 21, 2004.

List of Subjects in 40 CFR Part 258

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

    Dated: March 15, 2004.
Michael O. Leavitt,
Administrator.

0
For the reasons set forth in the preamble, EPA is amending 40 CFR part 
258 as follows:

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

0
1. The authority citation for part 258 is revised to read as follows:

    Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).

Subpart A--[Amended]

0
2. Add Sec.  258.4 to subpart A to read as follows:


Sec.  258.4  Research, development, and demonstration permits.

    (a) Except as provided in paragraph (f) of this section, the 
Director of an approved State may issue a research, development, and 
demonstration permit for a new MSWLF unit, existing MSWLF unit, or 
lateral expansion, for which the owner or operator proposes to utilize 
innovative and new methods which vary from either or both of the 
following criteria provided that the MSWLF unit has a leachate 
collection system designed and constructed to maintain less than a 30-
cm depth of leachate on the liner:
    (1) The run-on control systems in Sec.  258.26(a)(1); and
    (2) The liquids restrictions in Sec.  258.28(a).
    (b) The Director of an approved State may issue a research, 
development, and demonstration permit for a new MSWLF unit, existing 
MSWLF unit, or lateral expansion, for which the owner or operator 
proposes to utilize innovative and new methods which vary from the 
final cover criteria of Sec.  258.60(a)(1), (a)(2) and (b)(1), provided 
the MSWLF unit owner/operator demonstrates that the infiltration of 
liquid through the alternative cover system will not cause 
contamination of groundwater or

[[Page 13256]]

surface water, or cause leachate depth on the liner to exceed 30-cm.
    (c) Any permit issued under this section must include such terms 
and conditions at least as protective as the criteria for municipal 
solid waste landfills to assure protection of human health and the 
environment. Such permits shall:
    (1) Provide for the construction and operation of such facilities 
as necessary, for not longer than three years, unless renewed as 
provided in paragraph (e) of this section;
    (2) Provide that the MSWLF unit must receive only those types and 
quantities of municipal solid waste and non-hazardous wastes which the 
State Director deems appropriate for the purposes of determining the 
efficacy and performance capabilities of the technology or process;
    (3) Include such requirements as necessary to protect human health 
and the environment, including such requirements as necessary for 
testing and providing information to the State Director with respect to 
the operation of the facility;
    (4) Require the owner or operator of a MSWLF unit permitted under 
this section to submit an annual report to the State Director showing 
whether and to what extent the site is progressing in attaining project 
goals. The report will also include a summary of all monitoring and 
testing results, as well as any other operating information specified 
by the State Director in the permit; and
    (5) Require compliance with all criteria in this part, except as 
permitted under this section.
    (d) The Director of an approved State may order an immediate 
termination of all operations at the facility allowed under this 
section or other corrective measures at any time the State Director 
determines that the overall goals of the project are not being 
attained, including protection of human health or the environment.
    (e) Any permit issued under this section shall not exceed three 
years and each renewal of a permit may not exceed three years.
    (1) The total term for a permit for a project including renewals 
may not exceed twelve years; and
    (2) During permit renewal, the applicant shall provide a detailed 
assessment of the project showing the status with respect to achieving 
project goals, a list of problems and status with respect to problem 
resolutions, and other any other requirements that the Director 
determines necessary for permit renewal.
    (f) Small MSWLF units. (1) An owner or operator of a MSWLF unit 
operating under an exemption set forth in Sec.  258.1(f)(1) is not 
eligible for any variance from Sec. Sec.  258.26(a)(1) and 258.28(a) of 
the operating criteria in subpart C of this part.
    (2) An owner or operator of a MSWLF unit that disposes of 20 tons 
of municipal solid waste per day or less, based on an annual average, 
is not eligible for a variance from Sec.  258.60 (b)(1),except in 
accordance with Sec.  258.60(b)(3).
[FR Doc. 04-6310 Filed 3-19-04; 8:45 am]
BILLING CODE 6560-50-P