[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Rules and Regulations]
[Pages 5751-5753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1786]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 239 and 258

[EPA-R07-RCRA-2006-0878; FRL-8523-2]


Adequacy of Nebraska Municipal Solid Waste Landfill Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action approves Nebraska's Research, Development and 
Demonstration (RD&D) permit program and updates to the approved 
Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 
2004, the EPA issued final regulations allowing RD&D permits to be 
issued to certain municipal solid waste landfills by approved States. 
On September 27, 2006, Nebraska submitted an application to the EPA 
seeking Federal approval of its RD&D requirements and to update Federal 
approval of its MSWLP Program. On November 16, 2006, the EPA published 
direct final and proposed rules to approve the application on January 
16, 2007, if adverse comment was not received. EPA received adverse 
comment and withdrew the direct final rule on January 16, 2007. This 
action addresses the comment and approves the Nebraska application.

DATES: This final determination is effective January 31, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-RCRA-2006-0878. All documents in the docket are listed on 
the http://www.regulations.gov web site. Although listed in the index, 
some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North 
5th Street, Kansas City, Kansas 66101. The Regional Office's official 
hours of business are Monday through Friday, 8:00 to 4:30 excluding 
Federal holidays. The interested persons wanting to examine these 
documents should make an appointment with the office at least 24 hours 
in advance.

FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin, EPA Region 7, 
Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas 
City, Kansas 66101, telephone (913) 551-7666, or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    On March 22, 2004, the EPA issued final regulations allowing RD&D 
permits to be issued at certain municipal solid waste landfills (69 FR 
13242). This new provision may only be implemented by an approved 
State. While States are not required to seek approval for this new 
provision, those States that are interested in providing RD&D permits 
to municipal solid waste landfills must seek approval from EPA before 
issuing such permits. The current request is for approval to issue RD&D 
permits. Nebraska received partial approval for 40 CFR part 258 
provisions on October 5, 1993 (58 FR 51819). The provision that it 
received partial approval for did not include requirements for 
groundwater monitoring at small, arid landfills as required by an 
opinion by the United States Court of Appeals on February 12, 1992, 
which instructed

[[Page 5752]]

EPA to require groundwater monitoring at all landfills. The updated 
State rules impose groundwater monitoring at small, arid landfills. The 
current request also incorporates the August 7, 1995, rule (60 FR 
40105) which modifies the financial assurance criteria; September 25, 
1996, rule (61 FR 50413) which relates to groundwater exemptions of 
small, arid, remote landfills; November 27, 1996, rule (61 FR 60328 at 
60337) which adds financial mechanisms for local governments; and April 
10, 1998, rule (63 FR 17706 at 17729) which adds a financial test and 
corporate guarantee to financial assurance mechanisms. Approval 
procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR 
239.12.
    On September 27, 2006, Nebraska submitted an application to the EPA 
seeking Federal approval of its RD&D requirements and to update Federal 
approval of its MSWLP Program. On November 16, 2006, the EPA published 
direct final and proposed rules (71 FR 66686 and 71 FR 66722, 
respectively) to approve the application on January 16, 2007, if 
adverse comment was not received. EPA received adverse comment and 
withdrew the direct final rule on January 16, 2007 (72 FR 1670).

B. Response to Comment

    The comment was from the GrassRoots Recycling Network (GRRN). The 
GRRN objected to Nebraska's effort to implement an RD&D permit program 
alleging that the underlying RD&D violates the Resource Conservation 
and Recovery Act (RCRA) and the National Environmental Policy Act 
(NEPA). The commenter objected to what it claims are inadequacies in 
the underlying RD&D rule, namely, an allegedly unlimited number of 
permits and an allegedly unlimited program duration.
    EPA is proceeding with its approval of the Nebraska program. First, 
it should be noted that the timeframe within which challenges to the 
Federal underlying RD&D rule may be filed has expired. (See 42 U.S.C. 
6976, petitions challenging a RCRA regulation must be filed within 90 
days of promulgation.) The GRRN has challenged the rule before the U.S. 
Court of Appeals for the D.C. Circuit, which found that GRRN did not 
have standing to challenge the rule (GrassRoots Recycling Network v. 
EPA, No. 04-1196 (D.C. Cir.)).
    Moreover, EPA does not intend to reopen the underlying RD&D rule in 
its approval of state programs. The issue before the Agency in this 
action is whether Nebraska's submitted RD&D program is adequate under 
RCRA and EPA's Subtitle D regulations, but the comment is addressed to 
the underlying Federal program. Thus, the comment does not change EPA's 
decision to approve Nebraska's submitted RD&D program.

C. Decision

    After a thorough review, EPA Region 7 determined that Nebraska's 
RD&D provisions and the updated rules for its Municipal Solid Waste 
Landfill Permit Program (the August 7, 1995, rule (60 FR 40105) which 
modifies the financial assurance criteria; September 25, 1996, rule (61 
FR 50413) which relates to groundwater exemptions of small, arid, 
remote landfills; November 27, 1996, rule (61 FR 60328, at 60337) which 
adds financial mechanisms for local governments; and April 10, 1998, 
rule (63 FR 17706, at 17729) which adds a financial test and corporate 
guarantee to financial assurance mechanisms) as defined under Nebraska 
Title 132--Integrated Solid Waste effective March 7, 2006, are adequate 
to ensure compliance with the Federal criteria as defined at 40 CFR 
258.1, 258.4, 258.70, 258.74, and 258.75.

D. Statutory and Executive Order Reviews

    This action approves State solid waste requirements pursuant to 
Resource Conservation and Recovery Act (RCRA) Section 4005 and imposes 
no Federal requirements. Therefore, this rule complies with applicable 
executive orders and statutory provisions as follows:
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this action from its review under 
Executive Order (EO) 12866;
    2. Paperwork Reduction Act--This action does not impose an 
information collection burden under the Paperwork Reduction Act;
    3. Regulatory Flexibility Act--After considering the economic 
impacts of today's action on small entities under the Regulatory 
Flexibility Act, I certify that this action will not have a significant 
economic impact on a substantial number of small entities;
    4. Unfunded Mandates Reform Act--Because this action approves pre-
existing requirements under State law and does not impose any 
additional enforceable duty beyond that required by State law, this 
action does not contain any unfunded mandate, or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Act;
    5. Executive Order 13132: Federalism--EO 13132 does not apply to 
this action because this action will not have federalism implications 
(i.e., there are no substantial direct effects on States, on the 
relationship between the national government and States, or on the 
distribution of power and responsibilities between Federal and State 
governments);
    6. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments--EO 13175 does not apply to this action because it 
will not have tribal implications (i.e., there are no substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes);
    7. Executive Order 13045: Protection of Children from Environmental 
Health and Safety Risks--This action is not subject to EO 13045 because 
it is not economically significant and is not based on health or safety 
risks;
    8. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use--This action is not subject to EO 13211 
because it is not a significant regulatory action as defined in EO 
12866;
    9. National Technology Transfer Advancement Act--EPA approves State 
programs so long as the State programs meet the criteria delineated in 
RCRA. It would be inconsistent with applicable law for EPA, in its 
review of a State program, to require the use of any particular 
voluntary consensus standard in place of another standard that meets 
RCRA requirements. Thus, section 12(d) of the National Technology 
Transfer and Advancement Act does not apply to this action;
    10. Congressional Review Act--EPA will submit a report containing 
this action and other information required by the Congressional Review 
Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register.

List of Subjects

40 CFR Part 239

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Waste treatment and disposal.

40 CFR Part 258

    Reporting and recordkeeping requirements, Waste treatment disposal, 
Water pollution control.

    Authority: This action is issued under the authority of section 
2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 
42 U.S.C. 6912, 6945 and 6949(a).


[[Page 5753]]


    Dated: January 18, 2008.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E8-1786 Filed 1-30-08; 8:45 am]
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