[Federal Register Volume 75, Number 159 (Wednesday, August 18, 2010)]
[Rules and Regulations]
[Pages 50930-50932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20184]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R08-RCRA-2009-0621; FRL-9149-7]


Final Determination To Approve Alternative Final Cover Request 
for the Lake County, Montana Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency Region VIII is making a 
final 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 promulgating a 
site-specific rule proposed on February 10, 2010, that approves an 
alternative final cover for the Lake County, Montana landfill.

DATES: This final rule is effective on August 18, 2010. The 
incorporation by reference of certain publications listed in this rule 
has been approved by the Director of the Federal Register on August 18, 
2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-RCRA-2009-0621. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information may not be publicly available, e.g., Confidential 
Business Information (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 form. Publicly 
available docket materials are available either electronically at 
http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency Region VIII, Montana Office, 10 West 15th Street, 
Suite 3200, Helena, Montana. 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 at this location, it is recommended that the 
public make an appointment by calling (406) 457-5000 during normal 
business hours.

FOR FURTHER INFORMATION CONTACT: Susanna Trujillo, Solid and Hazardous 
Waste Program, 8P-HW, Environmental Protection Agency, 1595 Wynkoop 
St., Denver, CO 80202; telephone number: (303) 312-7008; fax number: 
(303) 312-6341; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What did EPA propose?

    After completing a review of Lake County's final site-specific 
flexibility application request, dated July 11, 2007, and March 17, 
2008, and the amendments to that application, dated January 22, 2009, 
EPA proposed to approve in the Federal Register on February 10, 2010, 
(75 FR 6597) Lake County's site-specific flexibility request to install 
an alternative final cover that varies from the final closure 
requirements of 40 Code of Federal Regulations (CFR) 258.60(a), but 
meets the criteria at 40 CFR 258.60(b). This approval would apply to 
the 15.4 acres of the landfill that have not been previously closed.

B. What is a site-specific flexibility request?

    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 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 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

[[Page 50931]]

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 of less than or equal to the permeability 
of any bottom liner system or natural sub-soils present, or a 
permeability no greater than 1 x 10\-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.

C. Overview of Lake County's Site-Specific Flexibility Request and 
EPA's Action

    Today, EPA is making a final determination to approve Lake County's 
site-specific flexibility request to install an alternative final 
landfill cover that meets the requirements of 40 CFR 258.60(b). The 
County's request is discussed in further detail in the February 10, 
2010 proposal.
    EPA is basing its final 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 
evapotranspiration cover conducted at the site by the County's 
consultants, the Desert Research Institute, and EPA. 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 movement of leachate through the system.
    EPA has determined that Lake County has demonstrated that the 
proposed infiltration layer for the landfill cover 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 and Control 
Plan.''
    As part of this final determination, EPA is requiring that Lake 
County submit to EPA for approval at 50% final design, 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. Lake County must achieve re-vegetation rates of 
greater than 50% on the closed landfill by the end of the first season 
and a complete stand of native grasses by the end of the third season. 
EPA is also requiring the landfill owner and operator to place 
documentation demonstrating compliance with the provisions of the site-
specific rule in the operating record.

D. Summary of Public Comments Received and Response to Comments

    EPA received no comments during the public comment period regarding 
approval of an alternative final cover for the Lake County, Montana 
landfill, as proposed in the Federal Register on February 10, 2010.

II. 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 also is 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 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

[[Page 50932]]

determination will neither impose substantial direct compliance costs 
on Tribal governments, nor preempt Tribal law. This determination to 
approve the Lake County's application will affect only the Lake 
County's 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 2007 and 
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. The Tribes did not offer any additional comments during the 
public comment period announced in the Federal Register on February 10, 
2010.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA) (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 to 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, Incorporation by reference, Municipal 
landfills, Reporting and recordkeeping requirements, Waste treatment 
and disposal.

    Dated: April 22, 2010.
Carol Rushin,
Acting Regional Administrator, Region VIII.

    Editorial Note: This document was received in the Office of the 
Federal Register on August 11, 2010.

0
For the reasons stated in the preamble, 40 CFR part 258 is amended as 
follows:

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

0
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]

0
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, 
Montana, consisting of the ``Lake County Landfill Alternative Cover,'' 
dated May 2007, the ``Construction Quality Assurance & Control Plan for 
the Lake County Class II Landfill Unit Landfill Closure Project'' and 
the ``Lake County Landfill Plans for Final Closure January 2009,'' 
dated January 2009, is hereby incorporated by reference. The Director 
of the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect or 
obtain a copy at the Environmental Protection Agency, Region VIII, 
Montana Office, 10 West 15th St., Suite 3200, Helena, MT or by calling 
406-457-5000. You may also inspect a copy at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. 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'' dated May 2007, and the ``Construction 
Quality Assurance & Control Plan for the Lake County Class II Landfill 
Unit Landfill Closure Project'' dated 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.
    [Reserved]

[FR Doc. 2010-20184 Filed 8-17-10; 8:45 am]
BILLING CODE 6560-50-P