[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Rules and Regulations]
[Pages 85438-85440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26754]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 239 and 258

[EPA-R10-RCRA-2016-0629; FRL 9928-27-Region 10]


Determination of Full Program Adequacy of Washington's Municipal 
Solid Waste Landfill Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Under the Resource Conservation and Recovery Act, as amended 
by the Hazardous and Solid Waste Amendments, States must develop and 
implement permit programs for Municipal Solid Waste Landfills (MSWLFs) 
and seek an adequacy determination by the Environmental Protection 
Agency (EPA). This rule documents EPA's determination that Washington's 
MSWLF permit program is adequate to ensure compliance with Federal 
MSWLF requirements.

DATES: This direct final rule will become effective February 27, 2017 
without further notice, unless EPA receives adverse comments on or 
before January 27, 2017. If written adverse comments are received, the 
EPA will publish a timely withdrawal of the rule in the Federal 
Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2016-0629 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: (206) 553-6640, to the attention of Domenic Calabro.
     Mail: Send written comments to Domenic Calabro, U.S. EPA, 
Region 10, 1200 Sixth Avenue, Suite 900, Mailstop: AW-150, Seattle, WA 
98101.
     Hand Delivery or Courier: Deliver your comments to: 
Domenic Calabro, Office of Air and Waste, U.S. EPA, Region 10, 1200 
Sixth Avenue, Suite 900, Mailstop: AW-150, 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-2016-0629. 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-2016-0629. 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: U.S. EPA Region 10, 1200 Sixth Avenue, 
Suite 900, Mailcode: AW-150, Seattle, Washington, 98101 Attn: Mr. 
Domenic Calabro. Telephone: (206) 553-6640.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 9, 1991, the Environmental Protection Agency (EPA) 
promulgated the ``Solid Waste Disposal Facility Criteria: Final Rule'' 
(56 FR 50978). That rule established part 258 of Title 40 of the Code 
of Federal Regulations (CFR). The criteria set out in 40 CFR part 258 
include location restrictions and standards for design, operation, 
groundwater monitoring, corrective action, financial assurance, and 
closure and post-closure care for MSWLFs. The 40 CFR part 258 criteria 
establish minimum Federal standards that take into account the 
practical capability of owners and operators of MSWLFs while ensuring 
that these facilities are designed and managed in a manner that is 
protective of human health and the environment. Section 4005(c)(1)(B) 
of subtitle D of the Resource Conservation and Recovery Act (RCRA), as 
amended by the Hazardous and Solid Waste Amendments of 1984, requires 
States to develop and implement permit programs to ensure that MSWLFs 
comply with the 40 CFR part 258 criteria. RCRA section 4005(c)(1)(C) 
requires EPA to determine whether the permit programs that States 
develop and implement for these facilities are adequate.
    To fulfill this requirement to determine whether State permit 
programs that implement the 40 CFR part 258 criteria are adequate, EPA 
promulgated the State Implementation Rule (SIR) (63 FR 57025, Oct. 23, 
1998). The SIR, which established part 239 of Title 40 of the CFR, has 
the following four purposes: (1) Lay out the requirements that State 
programs must satisfy to be determined adequate; (2) confirm the 
process for EPA approval or partial approval of State MSWLF permit 
programs; (3) provide the procedures for withdrawal of such approvals; 
and (4) establish a flexible framework for modifications of approved 
programs.
    Only those owners and operators located in States with approved 
permit programs for MSWLFs can use the site-specific flexibility 
provided by 40 CFR part 258, to the extent the State permit program 
allows such flexibility. Every standard in the 40 CFR part 258 criteria 
is designed to be implemented by the owner or operator with or without 
oversight or participation by EPA or the State regulatory agency. 
States with approved programs may choose to require facilities to 
comply with the 40 CFR part 258 criteria exactly, or they may choose to 
allow owners and operators to use site-specific alternative approaches 
to meet the Federal criteria. The flexibility that an owner or operator 
may be allowed under an approved State program can provide a 
significant reduction in the burden associated with complying with the 
40 CFR part 258

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criteria. Regardless of the approval status of a State and the permit 
status of any facility, the 40 CFR part 258 criteria shall apply to all 
permitted and unpermitted MSWLFs. As EPA explained in the preamble to 
the revised Federal MSWLF criteria, EPA expects that any owner or 
operator complying with provisions in a State program approved by EPA 
should be considered to be in compliance with the revised Federal MSWLF 
criteria.
    To receive a determination of adequacy for a MSWLF permit program 
under the SIR, a State must have enforceable standards for new and 
existing MSWLFs. These State standards must be technically comparable 
to the 40 CFR part 258 criteria. In addition, the State must have the 
authority to issue a permit or other notice of prior approval and 
conditions to all new and existing MSWLFs in its jurisdiction. The 
State also must provide for public participation in permit issuance and 
enforcement, as required in RCRA section 7004(b). Finally, the State 
must demonstrate that it has sufficient compliance monitoring and 
enforcement authorities to take specific action against any owner or 
operator that fails to comply with an approved permit program. EPA 
expects States to meet all of these requirements for all elements of a 
permit program before it gives full approval to a State's program.
    On April 9, 1993, Washington submitted an application to obtain a 
partial program adequacy determination for the State's MSWLF permit 
program under Section 4005 of RCRA. EPA reviewed Washington's 
application and published a determination of partial program adequacy 
on March 31, 1994 (FR Vol. 59, No. 62) for those portions of the MSWLF 
permit program that were adequate to ensure compliance with the revised 
Federal MSWLF criteria. Washington made amendments to Chapter 173-351 
of the Washington Administrative Code, which became effective in 
November 2012 and November 2015. On June 16, 2016, Washington submitted 
to EPA an amended application which incorporated the amendments, 
seeking a determination of full program adequacy for Washington's MSWLF 
permitting program. The amended application included a detailed 
description of changes made to Washington's MSWLF permitting program 
since the March 31, 1994 EPA determination of partial program adequacy. 
Specifically, Washington addressed the following portions of its MSWLF 
permit program that were not approved in the March 31, 1994 
determination of partial program adequacy:
    (1) Revised the definitions of Existing MSWLF Unit and Lateral 
Expansion, per the federal regulations found in 40 CFR 258.2.
    (2) Eliminated equivalent and arid liner designs in the state rule, 
retained composite liner requirements, and incorporated an option for 
alternate liner design, consistent with federal regulations.
    (3) Revised the rules to require monitoring for total metals in 
groundwater.
    (4) Adopted revisions to Appendix 3 of WAC 173-351-990 to include 
two hazardous organic constituents: 2,3,7,8-Tetrachlorodibenzo- p-
dioxin - [CAS 1746-01-6] and alpha, alpha-Dimethylphenethylamine [CAS 
122-09-8]. This revision affects landfills that are required to perform 
assessment monitoring under the rule, and is necessary to be consistent 
with federal rules in 40 CFR part 258.
    (5) Adopted new post-closure care period criteria, which are based 
on potential risk to human and environmental receptors, per 40 CFR part 
258.61(b).
    (6) Made revisions to allow for issuance of Research, Development, 
and Demonstration (RD&D) landfill permits, pursuant to the 2004 
rulemaking by EPA (69 FR 13242, March 22, 2004).
    Washington Assistant Attorney General, Jonathan C. Thompson, 
certified in a letter dated June 10, 2016 that the regulations cited in 
the Washington Department of Ecology's Amended Application for 
Municipal Solid Waste Facilities Program Determination of Adequacy were 
enacted and full effective at the time of the application and will 
continue to be when the state's permit program is fully approved.

II. Decision

    In addition to those portions of the State's MSWLF permit program 
that were approved on March 31, 1994, EPA has determined that the 
State's revised MSWLF permit program will ensure adequacy with the 
Federal criteria in 40 CFR part 258. In addition, Washington has 
demonstrated that its MSWLF permit program contains specific provisions 
for public participation, compliance monitoring, and enforcement. After 
reviewing Washington's amended application, EPA has concluded that 
Washington's MSWLF permit program meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Washington is 
granted a determination of full program adequacy for its MSWLF 
permitting program.
    By finding that Washington's MSWLF permit program is adequate, EPA 
does not intend to affect the rights of Federally-recognized Indian 
Tribes in Washington, nor does it intend to limit the existing rights 
of the State of Washington. RCRA section 4005(a) provides that citizens 
may use the citizen suit provisions of RCRA section 7002 to enforce the 
40 CFR part 258 criteria independent of any State enforcement program.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

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. The purpose of this action is to approve 
amendments to Washington's MSWLF permitting program which result in it 
meeting all of the statutory and regulatory requirements established by 
RCRA. The OMB has previously approved the information collection 
activities contained in the ICR for 40 CFR part 239, Requirements for 
State Permit Program Determination of Adequacy and part 258, MSWLF 
Criteria. This action does not impose any additional reporting 
requirements.

C. Regulatory Flexibility Act (RFA)

    EPA certifies 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 rule will not create any additional 
burden for small entities. Small entities are not required to take any 
action as a consequence of this rule, and this action will not have a 
significant impact on a substantial number of small entities. We have 
therefore concluded that this

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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 
program.

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.

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 action 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. Thus, Executive 
Order 13175 does not apply to this action.

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

    This action is not subject to Executive Order 13045, because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. Washington has incorporated those requirements from the 
Federal MSWLF landfill criteria (40 CFR part 258) not found in 
Washington's existing program and EPA has determined that Washington's 
program includes terms and conditions that are at least as protective 
as the MSWLF landfill criteria for municipal solid waste landfills, to 
assure protection of human health and the environment.

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 purpose of this action is to approve amendments to Washington's 
MSWLF permitting program which result in it meeting all of the 
statutory and regulatory requirements established by RCRA. The EPA 
believes that the human health and environmental risk addressed by this 
action will not have a new disproportionately high and adverse human 
health or environmental effects on minority, low-income or indigenous 
populations.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 239

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Waste treatment and disposal.

40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and 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).

    Dated: October 20, 2016.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2016-26754 Filed 11-25-16; 8:45 am]
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