[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6597-6600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2794]
[[Page 6597]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[EPA-R08-RCRA-2009-0621; FRL-9110-4]
Determination to Approve Alternative Final Cover Request for the
Lake County, MT Landfill; Opportunity for Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency, Region VIII, is making a
determination to approve an alternative final cover for the Lake County
landfill, a municipal solid waste landfill (MSWLF) owned and operated
by Lake County, Montana on the Confederated Salish and Kootenai Tribes'
Flathead Reservation in Montana. EPA is seeking public comment on EPA's
determination to approve Lake County's alternative final cover
proposal.
DATES: Comments must be received on or before March 12, 2010. If
sufficient public interest is expressed, EPA will schedule and hold a
public meeting. If a public meeting is scheduled, the date, time and
location will be announced in the Missoulian and the Char-Koosta News.
(If you are interested in attending a public meeting, contact Stephanie
Wallace at (406) 457-5018).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2009-0621 by one of the following methods:
Online: http://www.regulations.gov: Follow the online
instructions for submitting comments.
E-mail: [email protected].
Fax: (406) 457-5055.
Mail: Stephanie Wallace, Environmental Protection Agency,
Region VIII, Montana Office, 10 West 15th Street, Suite 3200, Helena,
MT 59626.
Hand delivery: Environmental Protection Agency, Region
VIII, Montana Office, 10 West 15th Street, Suite 3200, Helena, MT
59626. Such deliveries are only accepted during normal hours of
operation, which are Monday through Friday from 8 a.m. until 4:30 p.m.
Instructions: Direct your comments to Docket ID No. EP-R08-RCRA-
2009-0621. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or by e-mail. The http://www.regulations.gov Web
site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an e-mail comment directly to EPA rather
than going through http://www.regulations.gov, your e-mail address will
be captured automatically and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any detects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
Environmental Protection Agency Region VIII, Montana Office, 10 W. 15th
Street, Suite 3200, Helena, Montana. A complete public portion of the
administrative record for this rulemaking is also available for review
at this location and at the Polson City Library. The Environmental
Protection Agency Region VIII, Montana Office is open from 8 a.m. to
4:30 p.m. Monday through Friday, excluding legal holidays, and is
located in a secure building. To review docket materials, it is
recommended that the public make an appointment by calling the EPA
Montana Office at (406) 457-5000 during normal business hours. The
Polson City Library, located at 2 First Avenue, Polson, MT (telephone
(406) 883-8225) is open from 11 a.m. to 6 p.m., Monday through Friday
and 11 a.m. to 4 p.m. Saturday.
FOR FURTHER INFORMATION CONTACT: Stephanie Wallace, EPA Region VIII
Montana Office, 10 W. 15th Street, Suite 3200, Helena, MT 59626;
telephone number: (406) 457-5018; fax number (406) 457-5055; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION:
Submitting Comments to EPA
1. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
2. Submitting Confidential Business Information (CBI). Do not
submit this information to EPA through http://www.regulations.gov or e-
mail. Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA,
mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so-marked will not be
disclosed, except in accordance with procedures set forth in 40 CFR
part 2.
3. Docket Copying Costs: Copying arrangements will be made through
the EPA Montana Office and billed directly
[[Page 6598]]
to the recipient. Copying costs may be waived, depending on the total
number of pages copied.
If sufficient public interest is expressed, EPA will hold a public
meeting. The location, date and time of a meeting will be announced in
the Missoulian and the Char-Koosta News.
I. General Information
A. Background
Under sections 1008, 2002, 4004, and 4010 of the Resource
Conservation and Recovery Act of 1976 (RCRA), as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA), EPA established
revised minimum Federal operating criteria for MSWLFs, including
landfill location restrictions, operating standards, design standards
and requirements for ground water monitoring, corrective action,
closure and post-closure care, and financial assurance. Under RCRA
section 4005(c), States are required to develop permit programs for
facilities that may receive household hazardous waste or waste from
conditionally exempt small quantity generators, and EPA determines
whether the program is adequate to ensure that facilities will comply
with the revised criteria.
The MSWLF criteria are at 40 Code of Federal Regulations (CFR) part
258. These regulations are self-implementing and apply directly to
owners and operators of MSWLFs. For many of these criteria, 40 CFR part
258 includes a flexible performance standard as an alternative to the
self-implementing regulation. The flexible standard is not self-
implementing, and use of the alternative standard requires approval by
the Director of a State with an EPA-approved program.
Because EPA's approval of a State program does not extend to Indian
country, owners and operators of MSWLF units located in Indian country
cannot take advantage of the flexibilities available to those
facilities subject to an approved State program. However, the EPA has
the authority under sections 2002, 4004, and 4010 of RCRA to promulgate
site-specific rules that may provide for use of alternative standards
in Indian country. See Yankton Sioux Tribe v. EPA, 950 F. Supp. 1471
(D.S.D. 1996); Backcountry Against Dumps v. EPA, 100 F.3d. 147 (DC Cir.
1996). EPA has developed draft guidance on preparing a site-specific
request to provide flexibility to owners or operators of MSWLFs in
Indian country (Site-Specific Flexibility Requests for Municipal Solid
Waste Landfills in Indian country Draft Guidance, EPA530-R-97-016,
August 1997).
The regulation at 40 CFR 258.60(a) establishes closure criteria for
MSWLF units that are designed to minimize infiltration and erosion. The
regulation requires final cover systems to be designed and constructed
to:
(1) Have a permeability less than or equal to the permeability of
any bottom liner system or natural sub-soils present, or a permeability
no greater than 1x10 -5 cm/sec, whichever is less, and
(2) Minimize infiltration through the closed MSWLF by the use of an
infiltration layer that contains a minimum of 18 inches of earthen
material, and
(3) Minimize erosion of the final cover by the use of an erosion
layer that contains a minimum of 6 inches of earthen material that is
capable of sustaining native plant growth.
The regulation at 40 CFR 258.60(b) allows for variances from these
specified MSWLF closure criteria. Specifically, the rule allows for the
Director of an approved State to approve an alternative final cover
design that includes:
(1) An infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs (a)(1)
and (a)(2) of 40 CFR 258.60, and
(2) An erosion layer that provides equivalent protection from wind
and water erosion as the erosion layer specified in paragraph (a)(3) of
40 CFR 258.60.
B. Lake County's Site-Specific Flexibility Request
The Lake County landfill is a municipal solid waste landfill owned
and operated by Lake County on the Confederated Salish and Kootenai
Tribes' Flathead Reservation in Montana. The landfill site is
approximately 50 acres in size and serves approximately 28,000 people
in Lake County. Most of the county, including the landfill, lies within
the boundaries of the Flathead Reservation. The landfill itself
consists of a 30-acre unlined waste footprint that was used as the
county's municipal landfill beginning in the 1960s. In the early 2000s
the County built a transfer station and converted the landfill to
accept inert and construction and demolition waste only. Of the
existing 30-acre waste footprint, 14.6 acres were previously closed and
covered.
On July 11, 2007, Lake County submitted a site-specific flexibility
application request to EPA and the Confederated Salish and Kootenai
Tribes for the Lake County landfill. The request seeks EPA approval for
the use of an alternative final cover that varies from the final
closure requirements of 40 CFR 258.60. This request would apply to the
15.4 acres of the landfill that have not been previously closed.
Between July 11, 2007, and January 22, 2009, Lake County made
revisions to its application request in response to concerns raised by
EPA and the Confederated Salish and Kootenai Tribes. EPA is basing its
determination and this proposed rule on the application, dated July 11,
2007 and March 17, 2008, and the January 22, 2009 amendments to that
application. The specific request for EPA approval of Lake County's
application is discussed below. As set forth in more detail below, EPA
is proposing to approve the request and allow Lake County to install an
alternative final cover that meets the criteria at 40 CFR 258.60(b).
Lake County is seeking EPA approval to use an alternative final
cover system for 15.4 acres of its existing waste footprint. Lake
County proposes to install a 5.5-feet-thick multi-layer cover system
comprised of the following from bottom to top: An 18-inch intermediate
and gas vent layer, a 24-inch native sand layer, an 18-inch imported
silt evapotranspiration layer, and a 6-inch topsoil layer. Lake County
has demonstrated that the infiltration layer achieves an equivalent
reduction in infiltration as the infiltration layer specified in
paragraphs (a)(1) and (a)(2) of 40 CFR 258.60, and the erosion layer
provides equivalent protection from wind and water erosion as the
erosion layer specified in paragraph (a)(3) of 40 CFR 258.60. On
January 22, 2009, Lake County submitted a ``Construction Quality
Assurance & Control Plan'' for the closure project that specifies that
testing will be performed on each component as it is installed. Testing
frequencies and standards during construction are described in detail
in the ``Construction Quality Assurance & Control Plan.''
II. EPA's Action
A. Determination To Approve Lake County's Site-Specific Flexibility
Request
After completing a review of Lake County's final site-specific
flexibility application request, dated July 11, 2007, and the
amendments to that application dated March 17, 2008, and January 22,
2009, EPA is proposing to approve Lake County's site-specific
flexibility request to install an alternative final cover.
EPA is basing its determination on a number of factors, including
unsaturated soil modeling, site-specific climatic and soils data, and
the results of a pilot test of the viability of an
[[Page 6599]]
evapotranspiration cover conducted at the site by the County's
consultants, the Desert Research Institute, and EPA. The pilot test
consisted of the construction of two landfill cover test plots at the
Lake County landfill facility. One plot used a landfill cover design
with a flexible membrane liner, and the other plot used an
evapotranspiration cover design. The results of the pilot test
indicated that the evapotranspiration cover will perform better than
the standard prescriptive cover in 40 CFR 258.60(a) in preventing the
movement of leachate through the system.
EPA considered certain issues pertaining to the proposed
alternative final cover, including the need for stringent quality
assurance/quality control during construction, such as oversight
throughout construction to ensure soils for each layer of the cover
have the necessary physical properties and are installed so as to
perform as designed.
In accordance with its application and the ``Construction Quality
Assurance & Control Plan,'' Lake County has pledged to provide the
oversight required. EPA is also requiring as part of its approval of
the final cover design, that Lake County:
Submit an Operations and Maintenance Plan at 50% final
design that includes an inspection schedule (at least quarterly) and
remediation plan to address any potential rodent damage,
Achieve re-vegetation rates of greater than 50% by the end
of the first season and a complete stand of native grasses by the end
of the third season, and
Place documentation demonstrating compliance with the
``Construction Quality Assurance and Control Plan,'' 40 CFR
258.60(a)(1), (2), and (3), and the above requirements in the landfill
operating record.
III. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB).
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.) because it applies to a particular facility only.
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a
particular facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA.
Because this rule will affect only a particular facility, this
proposed rule does not have federalism implications. It will 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, ``Federalism,'' (64 FR 43255,
August 10, 1999). Thus, Executive Order 13132 does not apply to this
rule.
This rule is also not subject to Executive Order 13045,
``Protection of Children From Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The basis for this belief is EPA's conservative analysis of
the potential risks posed by Lake County's proposal and the controls
and standards set forth in the application.
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments,'' (65 FR 67249, November 9, 2000),
calls for 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.'' EPA has concluded that this
action may have Tribal implications because it is directly applicable
to a facility operating on the Confederated Salish and Kootenai Tribes'
Flathead Reservation. However, this determination will neither impose
substantial direct compliance costs on Tribal governments, nor preempt
Tribal law. This determination to approve Lake County's application
will affect only the operation of the County's landfill.
EPA consulted with the Confederated Salish and Kootenai Tribes
early in the process of making this determination to approve the
County's alternative final cover request so that the Tribes had the
opportunity to provide meaningful and timely input. Between July 11,
2007 and January 22, 2009, technical issues were raised and addressed
by both the Tribes and EPA concerning Lake County's proposal. EPA's
consultation with the Tribes culminated in a letter of July 15, 2009
from the Tribes, in which they stated that they have no further issues
with the Lake County proposal. EPA specifically solicits any additional
comment on this determination from Tribal officials of the Confederated
Salish and Kootenai Tribes.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) directs EPA to use voluntary consensus
standards in its regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards, (e.g., materials
specification, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
The technical standards included in the application were proposed
by Lake County. Given EPA's obligations under Executive Order 13175
(see above), the Agency has, to the extent appropriate, applied the
standards established by the County and accepted by the Tribes. In
addition, the Agency evaluated the proposal's design against the
engineering design and construction criteria contained in the EPA draft
guidance document, ``Water Balance Covers for Waste Containment:
Principles and Practice (2009).''
Authority: Sections 1008, 2002, 4004, and 4010 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. 6907, 6912, 6944, and
6949a. Temporary Delegation of Authority to Promulgate Site-Specific
Rules To Respond to Requests for Flexibility From Owners/Operators
of Municipal Solid Waste Landfill Facilities in Indian Country,
October 14, 2009, Incorporation by Reference.
List of Subjects in 40 CFR Part 258
Environmental protection, Municipal landfills, Reporting and
recordkeeping requirements, Waste treatment and disposal.
[[Page 6600]]
Dated: January 15, 2010.
Carol Rushin,
Acting Regional Administrator, Region VIII.
For the reasons stated in the preamble, 40 CFR part 258 is proposed
to be amended as follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
1. The authority citation for part 258 continues 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 F--[Amended]
2. Add Sec. 258.62 to subpart F to read as follows:
Sec. 258.62 Approval of site-specific flexibility requests in Indian
Country.
(a) Lake County Municipal Landfill final cover requirements.
Paragraph (a) of this section applies to the Lake County Landfill, a
municipal solid waste landfill owned and operated by Lake County on the
Confederated Salish and Kootenai Tribes' Flathead Reservation in
Montana. The alternative final cover request submitted by Lake County
and dated July 11, 2007, and amended March 17, 2008, and January 22,
2009 is hereby incorporated into this provision by this reference. The
facility owner and/or operator may close the facility in accordance
with this application, including the following activities more
generally described as follows:
(1) The owner and operator may install an evapotranspiration system
as an alternative final cover for the 15.4 acre active area.
(2) The final cover system shall consist of a 5.5 feet-thick multi-
layer cover system comprised, from bottom to top, of an 18-inch
intermediate and gas vent layer, a 24-inch native sand layer, an 18-
inch imported silt layer and a 6-inch topsoil layer, as well as seeding
and erosion control.
(3) The final cover system shall be constructed to achieve an
equivalent reduction in infiltration as the infiltration layer
specified in Sec. 258.60(a)(1) and (a)(2), and provide an equivalent
protection from wind and water erosion as the erosion layer specified
in paragraph (a)(3) of this section.
(4) In addition to meeting the specifications of the Lake County
landfill ``Alternative Cover'' application of May 2007, and the
``Construction Quality Assurance & Control Plan for the Lake County
Class II Landfill Unit Landfill Closure Project'' of January 2009, the
owner and operator shall:
(i) At 50% final design, submit to EPA for approval an Operations
and Maintenance Plan that includes an inspection schedule (at least
quarterly) and remediation plan to address any potential rodent damage
to the final cover; and
(ii) Achieve re-vegetation rates greater than 50% by the end of the
first season and a complete stand of native grasses by the end of the
third season.
(5) The owner and operator shall place documentation demonstrating
compliance with the provisions of this Section in the operating record.
(6) All other applicable provisions of 40 CFR part 258 remain in
effect.
(b) [Reserved]
[FR Doc. 2010-2794 Filed 2-9-10; 8:45 am]
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