[Federal Register Volume 82, Number 105 (Friday, June 2, 2017)]
[Rules and Regulations]
[Pages 25532-25535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11227]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R08-RCRA-2016-0505; FRL-9962-18-Region 8]


Approval of Alternative Final Cover Request for Phase 2 of the 
City of Wolf Point, Montana, Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking 
direct final action to approve an alternative final cover for Phase 2 
of the City of Wolf Point landfill, a municipal solid waste landfill 
(MSWLF) owned and

[[Page 25533]]

operated by the City of Wolf Point, Montana, on the Assiniboine and 
Sioux Tribes' Fort Peck Reservation in Montana.

DATES: This rule is effective on August 1, 2017 without further notice, 
unless the EPA receives relevant adverse comment by July 3, 2017. If 
the EPA receives relevant adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2016-0505, by one of the following methods:
     Online: http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov.
     Email: [email protected].
     Mail: Michael Roach, Environmental Protection Agency 
Region 8, Mail Code 8P-R, 1595 Wynkoop Street, Denver, Colorado 80202.
     Hand delivery: Environmental Protection Agency Region 8, 
1595 Wynkoop Street, Denver, Colorado 80202. Such deliveries are only 
accepted during normal hours of operation, which are Monday through 
Friday from 8:00 a.m. until 4:30 p.m.
    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-
2016-0505. The EPA may publish any comment received to its public 
docket, without change and may be 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. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or by 
email. The http://regulations.gov Web site is an ``anonymous'' 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 rather than going through http://www.regulations.gov, your email address will be captured automatically 
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. 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: Michael Roach, Resource Conservation 
and Recovery Program, Environmental Protection Agency Region 8, Mail 
Code: 8P-R, 1595 Wynkoop Street, Denver, Colorado 80202; telephone 
number: (303) 312-6369; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposal because we 
view this as a noncontroversial action and anticipate no relevant 
adverse comment. However, in the ``Proposed Rules'' section of the 
Federal Register, we are publishing a separate document that will serve 
as the proposed rule to approve the alternative final cover request for 
Phase 2 of the City of Wolf Point, Montana, landfill if relevant 
adverse comments are received on this direct final rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If the EPA receives relevant adverse comments, we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. We would address all 
public comments in any subsequent final rule based on the proposed 
rule.

II. What did EPA approve?

    After completing a review of the City of Wolf Point's final site-
specific flexibility request, dated May 1, 2011, and the amendments to 
that request, dated February 23, 2015, and February 9, 2016, the EPA 
approves Wolf Point's site-specific flexibility request to install an 
alternative final cover that varies from the final closure requirements 
of 40 Code of Federal Regulations (CFR) 258.60(a), but meets the 
criteria at 40 CFR 258.60(b). This approval applies to the 3.5 acres of 
the landfill that have not been previously closed.

III. What is a site-specific flexibility request?

    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), the EPA 
established 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(c), states are required to develop permit programs for 
facilities that may receive household hazardous waste or waste from 
conditionally exempt small quantity generators, and the EPA determines 
whether the program is adequate to ensure that facilities will comply 
with the revised criteria.
    The MSWLF criteria are at 40 CFR part 258. These regulations are 
self-implementing and apply directly to owners and operators of MSWLFs. 
For many of these criteria, 40 CFR part 258 includes a flexible 
performance standard as an alternative to the self-implementing 
regulation. The flexible standard is not self-implementing, and use of 
the alternative standard requires approval by the Program Director of a 
state with an EPA-approved program.
    Because the EPA's approval of a state program does not extend to 
Indian country, as that term is defined at 18 United States Code 
(U.S.C.) 1151, owners and operators of MSWLF units located in Indian 
country cannot take advantage of the flexibilities available to those 
facilities subject to an approved state program. However, the EPA has 
the authority under Sections 2002, 4004, and 4010 of RCRA to promulgate 
site-specific rules that may provide for use of alternative standards 
in Indian country. 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).
    The regulation at 40 CFR 258.60(a) establishes closure criteria for 
MSWLF units that are designed to minimize infiltration and erosion. The 
regulation requires final cover systems to be designed and constructed 
to:
    (1) Have a permeability of less than or equal to the permeability 
of any bottom

[[Page 25534]]

liner system or natural sub-soils present, or a permeability no greater 
than 1 x 10-5 cm/sec, whichever is less, and
    (2) Minimize infiltration through the closed MSWLF by the use of an 
infiltration layer that contains a minimum of 18 inches of earthen 
material, and
    (3) Minimize erosion of the final cover by the use of an erosion 
layer that contains a minimum of 6 inches of earthen material that is 
capable of sustaining native plant growth.
    The regulation at 40 CFR 258.60(b) allows for variances from these 
specified MSWLF closure criteria. Specifically, the rule allows for the 
Program Director of an approved state to approve an alternative final 
cover design that includes:
    (1) An infiltration layer that achieves an equivalent reduction in 
infiltration as the infiltration layer specified in paragraphs (a)(1) 
and (a)(2) of 40 CFR 258.60, and
    (2) An erosion layer that provides equivalent protection from wind 
and water erosion as the erosion layer specified in paragraph (a)(3) of 
40 CFR 258.60.

IV. Overview of the City of Wolf Point's Site-Specific Flexibility 
Request and EPA's Action

    The City of Wolf Point landfill is a MSWLF owned and operated by 
the City of Wolf Point on the Assiniboine and Sioux Tribes' Fort Peck 
Reservation in Montana. The landfill site is approximately 25 acres in 
size and served approximately 10,000 people in Roosevelt County, 
including the City of Wolf Point and the City of Poplar. The landfill 
lies within the boundaries of the Fort Peck Reservation. The landfill 
itself consists of two phases, or units, used as the area's municipal 
landfill. Phase 1, constructed in 1960, was closed and covered in 1999. 
Phase 2 was constructed in 2000 and stopped receiving waste in August 
2008.
    On May 1, 2011, the City of Wolf Point submitted a site-specific 
flexibility request to the EPA Region 8 and the Assiniboine and Sioux 
Tribes for Phase 2 of the Wolf Point landfill. The request sought EPA 
approval for the use of an alternative final cover that differs from 
the final closure requirements of 40 CFR 258.60. This request applies 
only to Phase 2, the 3.5 acres of the landfill not previously closed.
    Between May 1, 2011, and February 9, 2016, the City of Wolf Point 
made revisions to its request in response to concerns raised by the EPA 
Region 8 and the Assiniboine and Sioux Tribes. Today, the EPA is 
approving Wolf Point's site-specific flexibility request to install an 
alternative final landfill cover that meets the requirements of 40 CFR 
258.60(b).
    The EPA is basing its approval on a number of factors, including 
final cover design, numerical soil modeling and site-specific climatic 
and soils data. The numerical soil modeling consisted of a sensitivity 
analysis of the proposed evapotranspiration alternative final cover 
system under a range of climate and vegetative growth conditions, 
compared to the performance of the standard final cover prescribed in 
40 CFR 258.60. The EPA has determined that the evapotranspiration cover 
will perform equivalently to the standard prescriptive cover in 40 CFR 
258.60(a) in preventing the movement of leachate through the system and 
erosion caused by wind and water.
    As part of this approval, the EPA is requiring that upon 
finalization, the City of Wolf Point submit a complete set of final 
cover plans and specifications, including a construction quality 
assurance/quality control plan and closure/post-closure plan to the 
EPA. The EPA further requires the City of Wolf Point achieve 
revegetation rates of greater than 75 percent on Phase 2 of the closed 
landfill by the end of the third year after revegetation. Finally, the 
EPA requires that the City of Wolf Point maintain all documentation 
demonstrating compliance with plans and specifications, and 40 CFR 
258.60(a)(1), (2), and (3) in the landfill operating record.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not a ``significant regulatory 
action'' 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 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 is also 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 the EPA's conservative analysis 
of the potential risks posed by the City of Wolf Point'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 3 of Executive Order 12988, ``Civil Justice 
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, the 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 the 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.'' The EPA has concluded that 
this action may have Tribal implications because it is directly 
applicable to a facility operating on the Assiniboine and Sioux Tribes' 
Fort Peck Reservation. However, this determination will neither impose 
substantial direct compliance costs on Tribal governments nor preempt 
Tribal law. This determination to approve the City of Wolf Point's 
application will affect only the operation of the Wolf Point landfill.
    The EPA consulted with the Assiniboine and Sioux Tribes early in 
the process of making this determination to approve Wolf Point's 
alternative final cover request so that the Tribes had the opportunity 
to

[[Page 25535]]

provide meaningful and timely input. Between May 1, 2011, and February 
9, 2016, technical issues were raised and addressed by the EPA 
concerning the City of Wolf Point's proposal. The EPA's consultation 
with the Tribes culminated in a May 19, 2016 letter from the Tribes in 
which they stated that they have no issues with the Wolf Point 
proposal. The EPA specifically solicits any additional comment on this 
determination from Tribal officials of the Assiniboine and Sioux 
Tribes.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) directs the EPA to use voluntary 
consensus standards in its regulatory activities unless doing so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards, (e.g., materials 
specification, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standard bodies. The NTTAA directs the EPA to provide Congress, through 
OMB, explanations when the agency decides not to use available and 
applicable voluntary consensus standards.
    The technical standards included in the application were proposed 
by the City of Wolf Point. Given the EPA's obligations under Executive 
Order 13175 (see above), the agency has, to the extent appropriate, 
applied the standards established by Wolf Point and accepted by the 
Tribes. In addition, the agency evaluated the proposal's design against 
the engineering design and construction criteria contained in the EPA 
draft guidance document, ``Water Balance Covers for Waste Containment: 
Principles and Practice (2009).''

    Authority: Sections 1008, 2002, 4004, and 4010 of the Solid 
Waste Disposal Act, as amended, 42 U.S.C. 6907, 6912, 6944, and 
6949a.

List of Subjects in 40 CFR Part 258

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

    Dated: April 17, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.

    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), 6949a(c) and 6981(a).

Subpart F--Closure and Post-Closure Care

0
2. Section 258.62 is amended by adding paragraph (c) to read as 
follows:
* * * * *


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

    (c) City of Wolf Point Municipal Landfill final cover requirements. 
Paragraph (c) of this section applies to the City of Wolf Point 
Landfill Phase 2, a municipal solid waste landfill owned and operated 
by the City of Wolf Point on the Assiniboine and Sioux Tribes' Fort 
Peck Reservation in Montana. The facility owner and/or operator may 
close the facility in accordance with this application, including the 
following activities more generally described as follows:
    (1) The owner and operator may install an evapotranspiration system 
as an alternative final cover for the 3.5-acre Phase 2 area.
    (2) The final cover system shall consist of a 4-foot-thick multi-
layer cover system comprised of the following from bottom to top: A 12-
inch intermediate layer, a 24-inch native silty-clay till layer, and a 
12-inch native topsoil layer, as well as seeding and erosion control.
    (3) The 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 (a)(2), and provide an equivalent 
protection from wind and water erosion as the erosion layer specified 
in paragraph (a)(3) of this section.
    (4) In addition to meeting the specifications of ``The City of Wolf 
Point Landfill License #3--Phase 2 Alternative Final Cover 
Demonstration (Revised)'' application of February 9, 2016, the owner 
and operator shall:
    (i) At finalization, submit to the EPA for approval final cover 
plans and specifications, including the final Construction Quality 
Assurance/Quality Control Plan and final Closure/Post-Closure Plan; and
    (ii) Achieve re-vegetation rates greater than 75% by the end of the 
third year after revegetation.
    (5) The owner and operator shall place documentation demonstrating 
compliance with the provisions of this section in the operating record.
    (6) All other applicable provisions of 40 CFR part 258 remain in 
effect.

[FR Doc. 2017-11227 Filed 6-1-17; 8:45 am]
BILLING CODE 6560-50-P