[Federal Register Volume 78, Number 64 (Wednesday, April 3, 2013)]
[Rules and Regulations]
[Pages 20035-20037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07782]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 239 and 258

[EPA-R10-RCRA-2013-0105; FRL-9796-6]


Adequacy of Oregon Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a modification to the State of Oregon's 
approved Municipal Solid Waste Landfill (MSWLF) permit program. The 
approved modification allows the State to issue Research, Development, 
and Demonstration (RD&D) Permits to owners and operators of MSWLF units 
in accordance with its State law. 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 June 14, 2012, 
Oregon submitted an application to EPA Region 10 seeking Federal 
approval of its RD&D Permit requirements. After thorough review, EPA 
Region 10 is determining that Oregon's RD&D Permit requirements are 
adequate through this direct final action.

DATES: This direct final rule will become effective June 3, 2013 
without further notice unless the EPA receives written adverse comments 
on or before May 3, 2013. If written adverse comments are received, the 
EPA will review the comments and publish another Federal Register 
document responding to the comments and either affirming or revising 
the initial decision.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2013-0105, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Fax: (206) 553-8509, to the attention of Domenic Calabro.
     Mail: Domenic Calabro, Office of Air, Waste and Toxics, 
U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AWT-122, 
Seattle, WA 98101.
     Hand Delivery or Courier: Deliver your comments to Domenic 
Calabro, Office of Air, Waste and Toxics, U.S. EPA, Region 10, 1200 
Sixth Avenue, Suite 900, Mailstop: AWT-122, Seattle, WA 98101. Such 
deliveries are only accepted during the Office's normal hours of 
operation.
    Instructions: Identify your comments as relating to Docket ID No. 
EPA-R10-RCRA-2013-0105. The EPA's policy is that all comments received 
will be included in the public docket without change and may be made 
available online at www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or claimed to be other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov, your email address will be 
automatically captured 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, the 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 the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
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 defects or viruses. For additional information about the 
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/dockets/.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-R10-RCRA-2013-0105. All documents in the docket are listed 
on the www.regulations.gov Web site. Although it may be listed in the 
index, some information might not be publicly available, e.g., CBI or 
other information the disclosure of which 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 www.regulations.gov or in hard copy at the U.S. Region 10 
Library, 1200 Sixth Avenue, Seattle, Washington by appointment only; 
please telephone (206) 553-1289 to make an appointment.

FOR FURTHER INFORMATION CONTACT: Domenic Calabro, Office of Air, Waste 
and Toxics, U.S. EPA, Region 10, 1200 Sixth Avenue, Suite 900, 
Mailstop: AWT-122, Seattle, WA 98101, (206) 553-6640, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 22, 2004, the EPA issued a final rule amending the 
Municipal Solid Waste Landfill (MSWLF) criteria in 40 CFR part 258 to 
allow Research, Development, and Demonstration (RD&D) permits (69 FR 
13242). This rule allows for variances from specified criteria for a 
limited period of time, to be implemented through state-issued RD&D 
permits. RD&D permits are available only in states with approved MSWLF 
permit programs that have been modified to incorporate RD&D permit 
authority. The purpose of the rule is to stimulate the development of 
new technologies and alternative operational processes for the 
landfilling of municipal solid waste.
    RD&D permits may provide variances from existing requirements for 
run-on control systems, liquid restrictions, and final cover 
requirements. There is no authority for variance of criteria for 
groundwater monitoring, closure and post-closure requirements (except 
alternative cover provisions), or financial assurance requirements. To 
issue an RD&D permit allowing variances from any of these criteria, the 
director of an approved state must be satisfied that a landfill 
operating under an RD&D permit will pose no additional risk to human 
health and the environment beyond that which would result from a 
landfill operating under the full MSWLF criteria.
    While states are not required to seek approval to allow permits 
under this new provision, those states interested in providing RD&D 
permits to owners and operators of MSWLFs must seek approval from the 
EPA before issuing such permits. Approval procedures for the new 
provisions of 40 CFR part 258 are outlined in 40 CFR Sec.  239.12.
    On October 7, 1993, EPA published a final rule (58 FR 193) 
approving the State of Oregon's MSWLF permit program. On June 14, 2012, 
Oregon Department of Environmental Quality (ODEQ) applied for approval 
of its RD&D permit provisions, codified at ORS 459.245(4). In addition, 
Oregon has a state flexibility rule (OAR 340-094-0020) which allows the 
Director of the ODEQ or a designee to approve an alternative schedule, 
procedure, or design as long as that alternative is at least as 
protective of the environment as the provisions in 40 CFR part 258 and

[[Page 20036]]

a guidance document titled, ``Guidance for Obtaining a Department RD&D 
Permit.''
    Oregon Assistant Attorney General, Gary L. Vrooman, certified in a 
letter dated August 24, 2012 that the information filed with ODEQ as 
part of an MSWLF permit modification application is effectively an RD&D 
plan and that this plan, when approved by ODEQ, becomes an enforceable 
part of the permit. Assistant Attorney General Vrooman additionally 
certified that the Oregon solid waste rules and guidance were effective 
at the time of the certification.

II. Decision

    After a thorough review the EPA, Region 10, has determined that the 
Oregon RD&D permit provisions as set out in ORS 459.245(4) and OAR 340-
094-0020, combined with the ODEQ guidance document titled ``Guidance 
for Obtaining a Department RD&D Permit'', comply with the Federal 
criteria, as set forth in 40 CFR 258.4.

III. Statutory and Executive Order Reviews

    This action approves State solid waste requirements pursuant to 
Resource Conversation 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: Significant Regulatory Action

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Order 12866.

2. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This direct final rule does not 
establish or modify any information or recordkeeping requirements for 
the regulated community. The EPA has determined that this action is not 
subject to the provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601, et 
seq., generally requires Federal agencies 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 
this direct final rule on small entities, small entity is defined as: 
(1) A small business, as codified in the Small Business Size 
Regulations at 13 CFR part 121; (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. The 
EPA has determined that this direct final action will not have a 
significant impact on small entities because the action will only have 
the effect of modifying pre-existing authorized requirements under 
State law. I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. This action contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Thus, the EPA has determined that the 
requirements of section 203 of the UMRA do not apply to this action.

5. Executive Order 13132: Federalism

    This action addresses a modification to Oregon's approved municipal 
solid waste landfill (MSWLF) permit program, which has been modified by 
State law to incorporate RD&D permitting authority. There are no 
substantial direct effects on the States, on the relationship between 
Federal and State governments, or on the distribution of power between 
or among the various levels of government, as specified in Executive 
Order 13132. Therefore, Executive Order 13132 does not apply to this 
action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175. This action addresses a modification to Oregon's 
approved municipal solid waste landfill (MSWLF) permit program, which 
has been modified by State law to incorporate RD&D permitting 
authority. Thus, the EPA has determined that Executive Order 13175 does 
not apply to this rule.

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

    This action is not subject to Executive Order 13045 because it is 
not economically significant and it 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 Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272) directs the 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 bodies. The NTTAA directs the EPA to 
provide Congress, through the OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. EPA 
has determined that this action does not involve ``technical 
standards'' as defined by the NTTAA. Therefore, the EPA is not 
considering the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their

[[Page 20037]]

mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    The EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action addresses a modification to Oregon's approved 
municipal solid waste landfill (MSWLF) permit program, which has been 
modified by State law to incorporate RD&D permitting authority. EPA has 
determined that the action is not subject to Executive Order 12898.

11. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as amended 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. The EPA will submit a report containing 
this document 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 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 action will be effective June 3, 2013.

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).

Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2013-07782 Filed 4-2-13; 8:45 am]
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