[Federal Register Volume 80, Number 219 (Friday, November 13, 2015)]
[Proposed Rules]
[Pages 70180-70183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28666]



40 CFR Part 258

[EPA-HQ-RCRA-2015-0126; FRL-9936-10-OSWER]

Revision to the Research, Development and Demonstration Permits 
Rule for Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise the maximum permit term for Municipal Solid Waste Landfill 
(MSWLF) units operating under Research, Development and Demonstration 
(RD&D) permits. The RD&D permit program, which began in 2004, allows 
landfill facilities to utilize innovative and new methods that vary 
from the prescribed run-on control systems, liquids restrictions, and 
final cover criteria if these systems are determined by the Director of 
states with EPA-approved RD&D programs, as defined in 40 CFR 258.2, to 
meet the criteria in 40 CFR 258.4. The current rule limits permits for 
these units to 3 years each, renewable 3 times for a total permit term 
of 12 years. If finalized, this rule will allow the Director of an 
approved State to increase the number of permit renewals to 6, for a 
total permit term of up to 21 years. The EPA is not proposing any other 
changes to the existing MSWLF RD&D permit program at this time.

DATES: Comments on this proposed rule must be received on or before 
December 14, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2015-0126 to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comment received to its public docket. Do not 
submit electronically any information you consider to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e. on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Craig Dufficy, Materials Recovery and 
Waste Management Division of the Office of Resource Conservation and 
Recovery (mail code 5304P), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW., Washington, DC 20460; telephone: 703-308-9037; 
email: Dufficy.craig@epa.gov.


I. General Information

A. Does this action apply to me?

    Entities potentially affected by this proposal are public or 
private owners or operators of MSWLFs. These entities include:

                Category                   Example of affected entities
State Governments......................  Regulatory agencies and
                                          agencies operating landfills.
Industry...............................  Owners or operators of
                                          municipal solid waste
Municipalities, including Tribal         Owners or operators of
 Governments.                             municipal solid waste

    The affected entities may also fall under the North American 
Industry Classification System (NAICS) code 924110, Sanitation 
engineering agencies, government; or 562212, Solid Waste Landfill. This 
list of sectors is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that the EPA believes 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
the applicability criteria found in 40 CFR part 258 and

[[Page 70181]]

the Research, Development, and Demonstration Permits for Municipal 
Solid Waste Landfills final rule published in the Federal Register at 
69 FR 13242, March 22, 2004, (``2004 RD&D rule''). If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

B. What action is the agency taking?

    The EPA is proposing to revise the maximum permit term for MSWLF 
units operating under RD&D permits. In effect, this proposed rule, if 
finalized, would allow the Directors of a states with EPA-approved RD&D 
programs to increase the number of 3-year permit renewals from 3 to 6, 
for a total permit term of 21 years.
    The basis for the proposed extension of the permit period to up to 
21 years is to provide more time to support research into the 
performance of bioreactors, alternative covers and run-on systems. The 
EPA believes the period of 21 years strikes a balance between providing 
more time for projects to continue operations as research facilities, 
while providing enough time for the EPA to consider making permanent 
changes to the Part 258 MSWLF regulations.

C. What is the agency's authority for taking this action?

    The authority for this proposal is sections 1008, 2002(a), 4004, 
4005(c), 4010 and 8001(a) of the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended, 42 U.S.C. 6907, 6912(a), 6944, 6945(c), 
6949a, 6981(a).

D. What are the anticipated effects and benefits of this action?

    The anticipated effect of this proposed action, when final, is to 
provide the Director of an approved State the ability to issue renewals 
to existing RD&D permits, as well as new RD&D permits, for up to 21 
years instead of 12 years. During this time, the EPA will continue to 
evaluate data from these facilities. The universe of facilities 
presently covered by this action is approximately 30 facilities 
currently operating with RD&D permits, and one on tribal lands. 
Additional facilities may also continue to seek an RD&D permit after 
this action is finalized. The EPA has no information with which to 
estimate whether or not, nor how many, new facilities will seek RD&D 
permits. Owners/operators operating under existing RD&D permits are not 
expected to incur any new costs as a result of this proposed rule. The 
annual costs for ongoing recordkeeping and annual reporting 
requirements are estimated at $2,410 per facility.
    It is important to note that applying for a RD&D permit is 
voluntary. This proposed action would merely allow the Director of an 
approved State to increase the number of extensions of the permit 
period for existing facilities, or offer more extensions of the permit 
term for new facilities, for those owners and operators who choose to 
participate in this research program; it would not impose any new 
regulatory burden. Increasing the possible number of extensions of the 
RD&D permit term may benefit current owners and operators of RD&D units 
by providing additional time to recover their costs, if the Director of 
an approved State chooses to extend existing permits. For example, data 
from one RD&D permitted facility shows a projected increase of 3% in 
the rate of return for 20 years compared to 12 years.\1\

    \1\ See docket # EPA-HQ-RCRA-2015-0126 for supporting 

    Increasing the possible number of extensions of RD&D permit terms 
will provide more time for the EPA to collect additional data on the 
potential benefits of the approaches being taken under these RD&D 
permits. These potential benefits include: Decreased costs for leachate 
treatment due to leachate recirculation in bioreactors; increased 
revenue from the sale of landfill gas for use as a renewable source of 
fuel; decreased risk due to a reduction in the transportation of 
leachate for treatment; accelerated production and capture of landfill 
gas for use as a renewable fuel; and, accelerated stabilization, and 
corresponding decreased post-closure care activities, for facilities as 
a result of the accelerated decomposition of waste.

II. Background

    Under Subchapter IV of RCRA, 42 U.S.C. 6941-6949a, the EPA has 
promulgated minimum national standards for MSWLFs at 40 CFR part 258. 
See 56 FR 50978 (October 9, 1991). RCRA also directs the EPA to 
encourage research and development for, among other things, the 
development and application of new and improved methods of collecting 
and disposing of solid waste. 42 U.S.C. 6981(a).
    The initial MSWLF regulations addressed seven basic areas: Location 
restrictions; operation; design; groundwater monitoring; corrective 
action; closure and post-closure care; and financial assurance. These 
MSWLF landfill regulations focused on dry-tomb landfills to minimize 
the possibility of groundwater contamination from the production and 
subsequent leakage of leachate. After the promulgation of those 
standards, the EPA became aware that landfill technology had advanced 
sufficiently that some alternative designs and operations could benefit 
from further study through research and demonstration projects. For 
example, some of these methods, particularly the addition of liquids 
and leachate recirculation, could accelerate biodegradation and provide 
additional potential benefits. These include:

--Acceleration of landfill gas generation which can be collected as a 
source of renewable fuel.
--Minimization of leachate treatment requirements during the 
operational life of the landfill.
--More rapid reduction in concentration of leachate constituents of 
concern, thereby limiting the corresponding post-closure activities for 
leachate control.
--An increase in the rate of landfill settlement resulting in the more 
efficient use of permitted landfill capacity.

    As a means to advance innovation in landfill design, in 2000 the 
EPA selected four landfills to participate in its Project XL program. 
The landfills are located in Buncombe County, North Carolina; Yolo 
County, California; King George County, Virginia; and the Maplewood 
facility in Amelia Country, Virginia.
    In addition to Project XL, in 2001 the EPA began using Cooperative 
Research and Development Agreements (CRADAs) to promote collaborative 
research between federal and non-federal scientists as an additional 
means to explore the addition of liquids to landfills to promote faster 
biodegradation and stabilization. Bioreactor landfill sites operating 
with CRADAs include the Outer Loop landfill in Louisville, Kentucky; 
and the Polk County landfill in Florida.
    Subsequently, in 2004, the EPA amended 40 CFR part 258 MSWLF 
regulations to create a broader RD&D research program. The 2004 RD&D 
rule, which amended Sec.  258.4 enabled the Director of an approved 
State to allow RD&D projects with variances to specific provisions of 
the MSWLF criteria, including variances from operating criteria in part 
258 subpart C with respect to run-on controls (Sec.  258.26(a)(1)) and 
the liquids restrictions in Sec.  258.28(a). In addition, the rule 
allows an additional variance for the final cover requirements set 
forth in the closure criteria in Sec. Sec.  258.60(a)(1), (a)(2) and 
(b)(1). The 2004 RD&D rule limits the duration of the initial permit to 
3 years. The permit can be renewed for up to three additional 3-year 

[[Page 70182]]

for a total of 12 years. More information on the RD&D rule can be found 
in the final rule preamble. See 69 FR 13242, March 22, 2004.
    As of March 2014, there were 30 active RD&D projects in 11 approved 
states and one project on tribal lands.\2\ The maximum permit period 
for the first of these bioreactors is coming to an end, and the EPA 
proposes to allow the Director of an approved State to continue to 
extend the permit period for up to a total of 21 years to allow for 
continued research.

    \2\ Permitting of Landfill Bioreactor Operations: Ten years 
After the RD&D Rule, EPA document number EPA/600/R-14/335.

A. What the EPA Is Proposing

    The EPA is proposing to allow Directors of states with EPA-approved 
RD&D programs to increase the maximum term for RD&D permits from 12 to 
21 years at 40 CFR 258.4(e)(1), to provide more time to support 
research into the performance of bioreactors, alternative covers and 
run-on systems. In effect, this proposed rule, if finalized, would 
allow the Director of an approved State to increase the number of 
permit renewals from three to six. The EPA is not proposing any other 
changes to the RD&D permit program at this time. The EPA is not 
reopening, nor will it respond to comments on, any other provision of 
the existing RD&D rule or MSWLF criteria in 40 CFR part 258.
    Separately from this proposal, the EPA expects to publish an 
Advanced Notice of Proposed Rulemaking (ANPRM) seeking comment on 
revising other sections of the MSWLF (40 CFR part 258) criteria to 
authorize bioreactor operation (and other changes to the national 
criteria) on a permanent basis. Interested parties will have an 
opportunity to comment on broader issues relating to bioreactor 
operation during the public comment period on that ANPRM.

B. Basis for This Proposal

    In the 2004 RD&D final rule, the EPA made clear its intention that 
MSWLF RD&D permits be of limited duration, yet also provide data to 
support future rulemaking. This proposal is intended to further these 
dual goals. Although the EPA does not expect that all RD&D permits will 
necessarily extend to the full permit term, the EPA has since learned 
that the 12-year time limit may not be sufficient to realize potential 
benefits in all cases. Thus, extending the permit period for up to 21 
years will provide more time to collect data on potential benefits and 
any problems without making the permit period so long as to be open-
    Extending the maximum permit term will help continuing efforts to 
collect data at existing RD&D units. If the EPA does not take this 
action, owners and operators using existing RD&D permits would need to 
make significant modifications to their disposal units or cease 
operation altogether, before reaching the end of their normal 
operations or closure. Because of the potential environmental benefits 
that may be derived from bioreactors, alternative cover designs, and 
run-on systems, the EPA believes that it is important to extend the 
maximum permit period to 21 years to provide more time to characterize 
the performance of RD&D projects without making the permit period so 
long as to be open-ended.
    The EPA also wishes to enhance the economic feasibility to build 
and operate bioreactors or final cover variances in the future, and to 
thereby provide additional sources of data. In addition, the EPA has 
heard from stakeholders that the current 12-year maximum permit period 
is an insufficient length of time for potential owners and operators of 
bioreactors to recoup their initial investment. These stakeholders have 
indicated limiting the permit period to 12 years has the unintended 
consequence of discouraging the development of bioreactors.

C. Implementation of This Proposal

    This proposal does not require states with EPA-approved RD&D 
programs to modify their solid waste permit programs. Since this 
proposed change to the RD&D rule provides more flexibility than 
existing federal criteria, states are not required to amend existing 
solid waste permit programs that have been determined by the EPA to be 
adequate under 40 CFR part 239. States will have the option to amend 
their programs once this proposal is finalized. At the same time, the 
RD&D rule (including this proposed revision of the maximum permit term) 
is not self-implementing and states are required to adopt the RD&D rule 
and obtain EPA approval for their RD&D program in order to issue a RD&D 
permit. States previously approved to issue RD&D permits that wish to 
increase the total length of time for which RD&D permits can be issued 
will need to notify the EPA in accordance with 40 CFR part 239. States 
with EPA-approved solid waste permit programs that have not previously 
sought approval for an RD&D program and now wish to do so will need to 
apply to EPA for approval of an RD&D program, including approval of the 
longer time period allowed by this proposal. Any state without an EPA-
approved solid waste permit program may submit an application to the 
EPA for a determination of adequacy under 40 CFR part 239 and may 
include a request for approval of the RD&D permit provisions reflecting 
the longer time period allowed by this proposal. For municipal solid 
waste landfill units located in Indian Country, the EPA intends to 
consider the longer maximum permit term in this proposal when issuing 
or modifying any site-specific RD&D rule. The EPA has previously issued 
draft guidance on the site-specific flexibility request process in 
Indian Country. See Site-specific Flexibility Requests for Municipal 
Solid Waste Landfills in Indian Country, EPA 530-R-97-016, August 1997.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new Information Collection Request 
(ICR) burden under the PRA. OMB has previously approved the information 
collection activities contained in the existing regulations and has 
assigned OMB control numbers 2050-0152 and 2050-0122. The purpose of 
this action is to extend the maximum allowable permit period for this 
program and this change to the RD&D program itself does not impose any 
additional reporting requirements. The OMB has previously approved the 
information collection activities contained in the existing regulations 
in two different, applicable ICRs. The ICRs affected by this proposal 
are for 40 CFR part 239, Requirements for State Permit Program 
Determination of Adequacy and part 258, MSWLF Criteria. The OMB has 
reviewed the ICR for part 239 (ICR# 1608.07, OMB# 2050-0152.) The EPA 
will request comments under the ICR review process from states that 
plan to make these revisions so that the EPA can better understand the 
expected burden that would be incurred by states who wish to make these 
changes. In addition, the EPA will also be requesting information from 
MSWLF owners/operators on the reporting burden that they would incur 
under an extended permit term

[[Page 70183]]

provided in accordance with this proposal under the part 258, MSWLF 
criteria ICR (ICR# 1381.09, OMB# 2050-0122) when that review process 
begins. This process is scheduled to be completed in June 2016.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This proposed rule will not create any 
additional burden for small entities. Small entities are not required 
to take any action as a consequence of this proposed rule, and this 
action will not have a significant impact on a substantial number of 
small entities. We have therefore concluded that this action will have 
no net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector. The costs involved 
in this action are imposed only by voluntary participation in a federal 

E. Executive Order 13132: Federalism

    This action 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. Although 
Executive Order 13132 does not apply to this proposal, the EPA has 
consulted with states through the Association of State and Territorial 
Solid Waste Management Officials during the development of this 

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

    This action does not have tribal implications as specified in 
Executive Order 13175. The EPA has concluded that this proposal will 
have no new tribal implications, nor would it present any additional 
burden on the tribes. It will neither impose substantial direct 
compliance costs on tribal governments, nor preempt tribal law. 
Accordingly, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations.
    The underlying RD&D rule requires any RD&D permit to include such 
terms and conditions at least as protective as the criteria for 
municipal solid waste landfills to assure protection of human health 
and the environment, and this proposal does not reopen or otherwise 
change that requirement. Therefore, the EPA finds that the human health 
or environmental risk addressed by this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations.

List of Subjects in 40 CFR Part 258

    Environmental protection, Municipal landfills, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Dated: October 30, 2015.
Gina McCarthy,
    For the reasons set forth in the preamble, the EPA proposes to 
amend 40 CFR part 258 as follows:


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 A--General

2. Revise Sec.  258.4(e)(1) to read as follows:

Sec.  258.4  Research, development, and demonstration permits.

* * * * *
    (e) * * *
    (1) The total term for a permit for a project including renewals 
may not exceed twenty-one (21) years; and
* * * * *
[FR Doc. 2015-28666 Filed 11-12-15; 8:45 am]