[Federal Register Volume 81, Number 194 (Thursday, October 6, 2016)]
[Rules and Regulations]
[Pages 69407-69409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23839]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R09-RCRA-2015-0445; FRL-9953-45-Region 9]


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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

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SUMMARY:  The Environmental Protection Agency, Region IX, is making a 
final 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 
California.
    EPA is promulgating a site-specific rule proposed on April 7, 2016, 
that approves an alternative final cover and a modification to the 
prescribed list of groundwater detection-monitoring parameters for 
ongoing monitoring for the Picacho Landfill.

DATES:  This final rule is effective on October 6, 2016.

ADDRESSES:  EPA has established a docket for this action under Docket 
ID No. EPA-R09-RCRA-2015-0445. All documents in the docket are listed 
in the http://www.regulations.gov index. 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 copied.

FOR FURTHER INFORMATION CONTACT:  Steve Wall, Land Division, Mail Code 
LND 2-3 U.S. Environmental Protection Agency, 75 Hawthorne Street, San 
Francisco, CA 94105-3901; telephone number: (415) 972-3381; fax number: 
(415) 947-3564; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. What did EPA propose?

    After completing a review of Imperial County's Picacho Landfill 
Final Closure/Post-Closure Maintenance Plan and the associated SSFRs, 
EPA proposed this rulemaking in the Federal Register. The proposed 
determination was published at 81 FR 20274, April 7, 2016. EPA proposed 
to approve an alternative final cover that varies from the final 
closure requirements of 40 CFR 258.60(a) but meets the criteria at 40 
CFR 258.60(b), and alternative groundwater detection monitoring 
parameters for post-closure monitoring in accordance with 40 CFR 
258.54(a).

II. Legal Authority for This Action

    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 such facilities will comply with the revised 
federal criteria.
    The MSWLF criteria are set forth 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.'' 
EPA has developed 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).

III. 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 the 
closure plan. 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/Post-Closure 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 sought 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 groundwater detection-monitoring 
parameters provided in 40 CFR 258.54(a)(1) and (2) for ongoing 
monitoring.

[[Page 69408]]

IV. Basis for Final Determination

    EPA is basing its final determination to approve the site-specific 
flexibility requests on the Tribe's approval, dated April 30, 2012, 
EPA's independent review of the Picacho Landfill Final Closure/Post-
Closure 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 minimum 
six inches of topsoil. Imperial County sought approval for an 
alternative final cover designed to satisfy the performance criteria 
specified in 40 CFR 258.60(b); Imperial County proposed to replace this 
with an alternative cover consisting 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 final 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/Post-Closure Maintenance Plan dated 
October 27, 2010 and amended by EPA's comments dated February 20, 2011.

B. Groundwater Monitoring SSFR: Alternative Detection Monitoring 
Parameters

    The regulations require post-closure monitoring of 15 heavy metals, 
listed in 40 CFR part 258, Appendix I. Imperial County proposed 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 final 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.

V. Summary of Public Comments Received and Response to Comments

    EPA received one anonymous public comment during the public comment 
period stating support for EPA's Tentative Determination to Approve 
Site-Specific Flexibility for Closure and Monitoring of the Picacho 
Landfill, as proposed in the Federal Register on April 7, 2016.

VI. 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 of 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 
actions.
    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 U.S. Fish and Wildlife 
Service 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 
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 posed by this action present a risk to children. The basis for 
this belief is EPA's analysis of the potential risks posed by Imperial 
County's alternative final cover and alternative groundwater detection-
monitoring parameters proposals and the standards set forth in this 
rulemaking.
    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.

[[Page 69409]]

    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 Quechan 
Tribe throughout Imperial County's development of its closure and 
monitoring plans for the Picacho Landfill.

List of Subjects in 40 CFR Part 258

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

    Dated: September 22, 2016.
Alexis Strauss,
Acting Regional Administrator, Region IX.

    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--Closure and Post-Closure Care

0
2. Section 258.62 is amended by removing ``[Reserved]'' at the end of 
the section and adding paragraph (b) to read as follows:


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

* * * * *
    (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 Sec.  258.54(a), the owner and operator may 
modify the list of heavy metal detection monitoring parameters 
specified in appendix I of this part, as required during Post-Closure 
Care by Sec.  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 Sec.  258.60(b), the owner and operator may 
replace the prescriptive final cover set forth in Sec.  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-foot-
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 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, 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 
smaller 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 this part remain in effect.
    (B) [Reserved]

[FR Doc. 2016-23839 Filed 10-5-16; 8:45 am]
 BILLING CODE 6560-50-P