[Federal Register Volume 81, Number 67 (Thursday, April 7, 2016)]
[Proposed Rules]
[Pages 20274-20277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07996]



40 CFR Part 258

[FRL-9944-66-Region 9]

Tentative Determination To Approve Site Specific Flexibility for 
Closure and Monitoring of the Picacho Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.


SUMMARY: The Environmental Protection Agency, Region IX, is making a 
tentative determination to approve two Site Specific Flexibility 
Requests (SSFRs) from Imperial County (County or Imperial County) to 
close and monitor the Picacho Solid Waste Landfill (Picacho Landfill or 
Landfill). The Picacho Landfill is a commercial municipal solid waste 
landfill (MSWLF) operated by Imperial County from 1977 to the present 
on the Quechan Indian Tribe of the Fort Yuma Indian Reservation in 
    Imperial County is seeking approval from EPA to use an alternative 
final cover and to modify the prescribed list of detection-monitoring 
parameters for ongoing monitoring. The Quechan Indian Tribe (Tribe) 
reviewed the proposed SSFRs and determined that they met tribal 
requirements. EPA is now seeking public comment on EPA's tentative 
determination to approve the SSFRs.

DATES: Comments must be received on or before May 9, 2016. If 
sufficient public interest is expressed by April 22, 2016, EPA will 
hold a public hearing at the Quechan Community Center, located at 604 
Picacho Rd., in Winterhaven, CA on May 9, 2016 from 6:00 p.m. to 8:00 
p.m. If by April 22, 2016 EPA does not receive information indicating 
sufficient public interest for a public hearing, EPA may cancel the 
public hearing with no further notice. If you are interested in 
attending the public hearing, contact Steve Wall at (415) 972-3381 to 
verify that a hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
RCRA-2015-0445, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: wall.steve@epa.gov.
     Fax: (415) 947-3564.
     Mail: Steve Wall, Environmental Protection Agency Region 
IX, Mail code: LND 2-3, 75 Hawthorne Street, San Francisco, CA 94105-
    Instructions: 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.
    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 email, Web site submittal, 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.
    Do not submit information that you consider to be CBI or otherwise 
protected through http://www.regulations.gov or email. See below for 
instructions regarding submitting CBI.
    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 email comment directly to EPA without going through 
http://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.
    Electronic files should avoid the use of special characters, any 
form of encryption, and be free of any defects or viruses.
Tips for Submitting Comments to EPA

1. Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by Docket ID No. EPA-R09-RCRA-
2015-0445 and other identifying information (subject heading, Federal 
Register date and page number).
     Explain why you agree or disagree, suggest alternatives, 
and provide suggestions for substitute language for your requested 

[[Page 20275]]

     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 
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Make sure to submit your comments by the comment period 
deadline identified.
2. Submitting Confidential Business Information (CBI)
     Do not submit CBI to EPA through http://www.regulations.gov or email.
     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. Information so marked will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2.
     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.
3. Additional Background Information
    All documents in the administrative record docket for this 
determination are listed in the http://www.regulations.gov index. 
Although listed in the index, some information is not 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 electronically in http://www.regulations.gov and in hard copy at the EPA Library, located at the 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, California. The EPA Library is open from 9:00 a.m. to 4:00 
p.m., Monday through Thursday, excluding legal holidays, and is located 
in a secured building. To review docket materials at the EPA Library, 
it is recommended that the public make an appointment by calling (415) 
947-4406 during normal business hours. Copying arrangements will be 
made through the EPA Library and billed directly to the recipient. 
Copying costs may be waived depending on the total number of pages 

Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 
94105-3901; telephone number: (415) 972-3381; fax number: (415) 947-
3564; e-mail address: wall.steve@epa.gov.


I. Legal Authority for This Proposal

    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), 42 U.S.C. 6901 et 
seq., Congress required EPA to establish 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, states are to develop 
permit programs for facilities that may receive household hazardous 
waste or waste from conditionally exempt small quantity generators of 
hazardous waste, and EPA is to determine whether the state's program is 
adequate to ensure that facilities will comply with the revised federal 
    The MSWLF criteria are in the Code of Federal Regulations at 40 CFR 
part 258. These regulations are prescriptive, self-implementing and 
apply directly to owners and operators of MSWLFs. Many of these 
criteria include a flexible performance standard as an alternative to 
the prescriptive, self-implementing regulation. The flexible standard 
is not self-implementing, and requires approval by the Director of an 
EPA-approved state MSWLF permitting program. However, EPA's approval of 
a state program generally does not extend to Indian Country because 
states generally do not have authority over Indian Country. For this 
reason, owners and operators of MSWLF units located in Indian Country 
cannot take advantage of the flexibilities available to those 
facilities that are within the jurisdiction of an EPA-approved state 
program. However, the EPA has the authority under sections 2002, 4004, 
and 4010 of RCRA to promulgate site-specific rules to enable such 
owners and operators to use the flexible standards. See Yankton Sioux 
Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996); Backcountry Against 
Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996). EPA refers to such rules 
as ``Site Specific Flexibility Determinations'' and has developed draft 
guidance for owners and operators on preparing a request for such a 
site-specific rule, entitled ``Site-Specific Flexibility Requests for 
Municipal Solid Waste Landfills in Indian Country Draft Guidance,'' 
EPA530-R-97-016, August 1997) (Draft Guidance).

II. Background

    The Picacho Landfill is located on Quechan tribal lands on the Fort 
Yuma Indian Reservation approximately four miles north-northeast of the 
community of Winterhaven, in Imperial County, California. The Picacho 
Landfill is a commercial MSWLF operated by Imperial County from 1977 to 
the present. The landfill site is approximately 12.5 acres.
    In January 2006, the Tribe requested that EPA provide comments on 
the County's closure plan. Between 2006 and 2011, EPA worked with the 
Tribe, the Bureau of Indian Affairs (BIA) and the County to develop and 
reach agreement on the closure plan and SSFRs. During this time, EPA 
also reviewed the SSFRs to determine whether they met technical and 
regulatory requirements. On October 27, 2010, Imperial County submitted 
its Picacho Final Closure/Post[hyphen]Closure Maintenance Plan. EPA 
provided a final round of comments on February 10, 2011, which Imperial 
County incorporated as an addendum. On April 30, 2012, the Tribe 
approved the Picacho Landfill Final Closure/Postclosure Maintenance 
Plan as amended, and, pursuant to EPA's Draft Guidance, the Tribe 
forwarded to EPA two SSFRs that had been submitted by Imperial County 
to close and monitor the Picacho Landfill. The requests seek EPA 
approval to use an alternative final cover meeting the performance 
requirements of 40 CFR 258.60(a), and to modify the prescribed list of 
detection-monitoring parameters provided in 40 CFR 258.54(a)(1) and (2) 
for ongoing monitoring.

III. Basis for Proposal

    EPA is basing its tentative determination to approve the site-
specific flexibility request on the Tribe's approval, dated April 30, 
2012, EPA's independent review of the Picacho Landfill Final Closure/
Postclosure Maintenance Plan as amended, and the associated SSFRs.

A. Alternative Final Cover SSFR: Alternative Final Cover System

    The regulations require the installation of a final cover system 
specified in 40 CFR 258.60(a), which consists of an infiltration layer 
with a minimum of 18 inches of compacted clay with a permeability of 1 
x 10-\5\ cm/sec, covered by an erosion layer with a

[[Page 20276]]

minimum six inches of topsoil. Imperial County seeks approval for an 
alternative final cover designed to satisfy the performance criteria 
specified in 40 CFR 258.60(b); Imperial County proposes to replace this 
with an alternative cover which would consist of two and a half feet of 
native soil to control infiltration covered by six inches of a soil 
gravel mixture to control erosion.
    EPA is basing its tentative determination on a number of factors, 
including: (1) Research showing that prescriptive, self-implementing 
requirements for final covers, comprised of low permeability compacted 
clay, do not perform well in the arid west. The clay dries out and 
cracks, which allows increased infiltration along the cracks; (2) 
Research showing that in arid environments thick soil covers comprised 
of native soil can perform as well or better than the prescriptive 
cover; and (3) Imperial County's analysis demonstrates, based on site-
specific climatic conditions and soil properties, that the proposed 
alternative soil final cover will achieve equivalent reduction in 
infiltration as the prescriptive cover design and that the proposed 
erosion layer provides equivalent protection from wind and water 
erosion. This analysis is provided in Appendix D and Appendix D-1 of 
the Picacho Landfill Final Closure/Postclosure Maintenance Plan dated 
October 27, 2010 and amended on February 20, 2011.

B. Groundwater Monitoring SSFR: Alternative Detection Monitoring 

    The regulations require post-closure monitoring of 15 heavy metals, 
listed in 40 CFR part 258, Appendix I. Imperial County, proposes to 
replace these, with the exception of arsenic, with the alternative 
inorganic indicator parameters chloride, nitrate as nitrogen, sulfate, 
and total dissolved solids.
    EPA's tentative determination is based on the fact that the County 
has performed over 15 years of semi-annual groundwater monitoring at 
the site, and during that time arsenic was the only heavy metal 
detected at a value that slightly exceeded the federal maximum 
contaminant level (MCL), a standard used for drinking water.

IV. Additional Findings

    In order to comply with the National Historic Preservation Act, 54 
U.S.C. 100101 et seq., Imperial County Department of Public Works will 
coordinate with the Tribe to arrange for a qualified Native American 
monitor to be present during any work. If buried or previously 
unidentified resources are located during project activities, all work 
within the vicinity of the find will cease, and the provisions pursuant 
to 36 CFR 800.13(b) will be implemented. If, during the course of the 
Landfill closure activities, previously undocumented archaeological 
material or human remains are encountered, all work shall cease in the 
immediate area and a qualified archaeologist shall be retained to 
evaluate the significance of the find and recommend further management 
    Though no known threatened or endangered species or their habitat 
exist on the site, in order to ensure compliance with the Endangered 
Species Act, 16 U.S.C. 1536 et seq., a preconstruction survey will be 
conducted prior to cover installation to ensure no threatened or 
endangered species are present. In particular, the survey will look for 
the presence of desert tortoises, which may occur in Imperial County. 
Should desert tortoises or other threatened or endangered species be 
encountered in the survey, or at any time during the closure of the 
Picacho Landfill, the County shall contact the USFWS to develop 
avoidance measures to ensure that impacts to the species are minimized. 
Following closure and vegetation restoration activities, the project 
site may become suitable for threatened and endangered species. This 
would be a beneficial effect.
    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 
    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 conservative analysis of 
the potential risks posed by SRPMIC'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 three 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.'' See also ``EPA Policy for the 
Administration of Environmental Programs on Indian Reservations,'' 
(November 8, 1984) and ``EPA Policy on Consultation and Coordination 
with Indian Tribes,'' (May 4, 2011). EPA consulted with the Tribe 
throughout Imperial County's development of its closure and monitoring 
plans for the Picacho Landfill.
    EPA specifically solicits any additional comment on this tentative 
determination from tribal officials of the Quechan Indian Tribe.

List of Subjects in 40 CFR Part 258

    Environmental protection, Municipal landfills, Final cover, Post-
closure care groundwater Monitoring, Reporting and recordkeeping 
requirements, Waste treatment and disposal, Water pollution control.

[[Page 20277]]

    Dated: March 28, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, 40 CFR part 258, Criteria 
for Municipal Solid Waste Landfills, is proposed to be amended as 


1. The authority citation 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--Closure and Post-Closure Care

2. Section 258.62 is amended by adding paragraph (b) to read as 

Sec.  258.62  Approval of site-specific flexibility requests in Indian 

* * * * *
    (b) Picacho Municipal Solid Waste Landfill--Alternative list of 
detection monitoring parameters and alternative final cover. This 
paragraph (b) applies to the Picacho Landfill, a Municipal Solid Waste 
landfill operated by Imperial County on the Quechan Indian Tribe of the 
Fort Yuma Indian Reservation in California.
    (1) In accordance with 40 CFR 258.54(a), the owner and operator may 
modify the list of heavy metal detection monitoring parameters 
specified in 40 CFR 258, Appendix I, as required during Post-Closure 
Care by 40 CFR 258.61(a)(3), by replacing monitoring of the inorganic 
constituents with the exception of arsenic, with the inorganic 
indicator parameters chloride, nitrate as nitrogen, sulfate, and total 
dissolved solids.
    (2) In accordance with 40 CFR 258.60(b), the owner and operator may 
replace the prescriptive final cover set forth in 40 CFR 258.60(a), 
with an alternative final cover as follows:
    (i) The owner and operator may install an evapotranspiration cover 
system as an alternative final cover for the 12.5 acre site.
    (ii) The alternative 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 (2), and provide an 
equivalent protection from wind and water erosion as the erosion layer 
specified in Sec.  258.60(a)(3).
    (iii) The final cover system shall consist of a minimum three-feet-
thick multi-layer cover system comprised, from bottom to top, of:
    (A) A minimum 30-inch thick infiltration layer consisting of:
    (1) Existing intermediate cover; and
    (2) additional cover soil which, prior to placement, shall be 
wetted to optimal moisture as determined by ASTM D 1557 and thoroughly 
mixed to near uniform condition, and the material shall then be placed 
in lifts with an uncompacted thickness of six to eight inches, spread 
evenly and compacted to 90 percent of the maximum dry density as 
determined by ASMT D 1557, and shall:
    (i) Exhibit a grain size distribution that excludes particles in 
excess of three inches in diameter;
    (ii) have a minimum fines content (percent by weight passing U.S. 
No. 200 Sieve) of seven percent for an individual test and eight 
percent for the average of ten consecutive tests;
    (iii) have a grain size distribution with a minimum of five percent 
finer than five microns for an individual test and six percent for the 
average of ten consecutive tests; and
    (iv) exhibit a maximum saturated hydraulic conductivity on the 
order of 1.0E-03 cm/sec.; and
    (3) a minimum six-inch surface erosion layer comprised of a rock/
soil admixture. The surface erosion layer admixture and gradations for 
3% slopes and 3:1 slopes are detailed below:
    (i) 3% slopes: For the 3% slopes the surface admixture shall be 
composed of pea gravel (\3/8\-inch to \1/2\-inch diameter) mixed with 
cover soil at the ratio of 25% rock to soil by volume with a minimum 
six-inch erosion layer.
    (ii) For the 3:1 side slopes the surface admixture shall be 
composed of either: gravel/rock (\3/4\-inch to one-inch diameter) mixed 
with additional cover soil as described in paragraph (b)(2)(iii)(A)(2) 
of this section at the ratio of 50% rock to soil by volume and result 
in a minimum six-inch erosion layer, or gravel/rock (\3/4\-inch to two-
inch diameter) mixed with additional cover soil as described in 
paragraph (b)(2)(iii)(A)(2) of this section at the ratio of 50% rock to 
soil by volume and result in a minimum 12-inch erosion layer.
    (iii) The owner and operator shall place documentation 
demonstrating compliance with the provisions of this Section in the 
operating record.
    (iv) All other applicable provisions of 40 CFR part 258 remain in 

[FR Doc. 2016-07996 Filed 4-6-16; 8:45 am]