[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]



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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

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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

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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.


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    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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