    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53176-53179]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-16586]

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    ENVIRONMENTAL PROTECTION AGENCY

    40 CFR Part 258

    [EPA-R09-RCRA-2018-0568; FRL-10011-63-Region 9]

    Final Determination To Approve Site Specific Flexibility for the
    Cocopah Landfill

    AGENCY: Environmental Protection Agency (EPA).

    ACTION: Final rule.

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    SUMMARY: The Environmental Protection Agency (EPA) is making a final
    determination to approve two Site Specific Flexibility Requests (SSFRs)
    from Cocopah Landfill, Inc. (CLI), a subsidiary of Republic Services,
    Inc. (Republic), to close and monitor the Cocopah Landfill. The Cocopah
    Landfill is located within Indian Country on the Cocopah Indian
    Reservation near Somerton, Arizona and was operated by Republic and its
    predecessors from the 1960's to the present. EPA is promulgating a
    site-specific rule proposed on May 6, 2020, that approves an
    alternative final cover and an alternative location for the storage of
    facility records.

    DATES: This final rule is effective on August 28, 2020.

    ADDRESSES: EPA has established a docket for this action under Docket ID
    No. EPA-R09-RCRA-2018-0568 at http://www.regulations.gov. Publicly

    [[Page 53177]]

    available docket materials are available electronically in http://www.regulations.gov, or via email to R9LandSubmit@epa.gov.

    FOR FURTHER INFORMATION CONTACT: Steve Wall, EPA Region IX, (415) 972-
    3381, wall.steve@epa.gov.

    SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
    ``our'' refer to the EPA.

    Table of Contents

    I. Legal Authority for This Action
    II. Background
    III. Basis for Final Determination
        A. Alternative Final Cover SSFR: Alternative Final Cover System
        B. Records Storage SSFR: Alternative Location for the Storage of
    Facility Records
    IV. Summary of Public Comments Received and Response to Comments
    V. Additional Findings

    I. 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 Municipal Solid Waste Landfills (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 criteria.
        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 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 Cocopah Landfill is located on the Cocopah Indian Reservation
    on property owned by the Cocopah Indian Tribe (Tribe) and is located
    near Somerton, Arizona. The Cocopah Landfill is a commercial MSWLF
    operated by Republic and its predecessors from the 1960's to the
    present. Waste was last received at the site on June 30, 2000 and
    interim closure construction was completed in 2003 with an interim 3-
    foot-thick monolithic soil cover. The Cocopah Landfill property
    encompasses an area of 192 acres of which approximately 138 acres were
    used for placement of waste materials. Disposal operations were
    restricted to two separate units of 105 acres and 33 acres each,
    designated as the North Fill Area and the South Fill Area,
    respectively. A combined total of approximately 2.5 million tons of
    waste are known to have been deposited in the two disposal units.
        Between 2010 and 2016, EPA worked with the Tribe and Republic to
    develop and reach agreement on an overall landfill closure plan. During
    this time, EPA also reviewed the SSFRs to determine whether they met
    technical and regulatory requirements. On September 5, 2017, the Tribe
    submitted Republic's ``Final Closure and Post-Closure Maintenance Plan
    and Site-Specific Flexibility Requests for the Cocopah Landfill''
    (Final Closure Plan) to EPA, requesting that EPA take appropriate
    action to ensure that the Final Closure Plan and accompanying SSFRs
    satisfy EPA's requirements. EPA provided final comments on the Plan on
    April 26, 2019, which Republic addressed in an updated Final Closure
    Plan dated November 2019. The Final Closure Plan submitted to EPA
    includes two SSFRs. The requests seek EPA approval to use an
    alternative final cover meeting the performance requirements of 40 CFR
    258.60(a), and approval to use an alternative location for the storage
    of facility records pursuant to 40 CFR 258.29(a).

    III. Basis for Final Determination

        EPA is basing its final determination to approve the SSFRs on the
    Tribe's concurrence, dated September 5, 2017, on the SSFRs as included
    in the Closure Plan, as well as EPA's determination that the SSFRs meet
    the requirements in 40 CFR part 258, and on EPA's independent review of
    the Final Closure Plan.

    A. Alternative Final Cover SSFR: Alternative Final Cover System

        The regulations require the installation of a final cover system as
    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. Republic sought approval for an alternative
    final cover designed to satisfy the performance criteria specified in
    40 CFR 258.60(b); Republic proposed an alternative cover, called an
    evapotranspiration 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 final determination on a number of factors,
    including: (1) Research showing that the 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) Republic's analysis demonstrating, 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 Appendices A, B, C and M of the
    Final Closure Plan for the Cocopah Landfill dated November 2019.

    [[Page 53178]]

    B. Records Storage SSFR: Alternative Location for the Storage of
    Facility Records

        The regulations at 40 CFR 258.29(a) require that the owner or
    operator of a MSWLF unit must record and retain operating records at or
    near the facility or at an approved alternative location. Republic does
    not have administrative facilities at the Cocopah Landfill where
    records can be maintained. As a result, Republic requested approval to
    store all required documentation relating to the operating record of
    the Cocopah Landfill at the Copper Mountain Landfill (CML), which is
    Republic's closest operating facility to the Cocopah Landfill. The
    address of Copper Mountain Landfill is 34853 East County 12th Street,
    Wellton, Arizona 85356, which is 36 miles from the Cocopah Landfill.
        EPA is basing its final determination on factors including: (1) The
    Cocopah Landfill is no longer operational, and Republic does not have
    administrative facilities there; and (2) Republic's proposed
    alternative records storage location, the Copper Mountain Landfill, is
    only 36 miles away.

    IV. Summary of Public Comments Received and Response to Comments

        EPA received no comments on the tentative determination.

    V. Additional Findings

        In order to comply with the National Historic Preservation Act, 54
    U.S.C. 100101 et seq., Republic will coordinate with the Tribe to
    arrange for a qualified Native American monitor to be present during
    any work. If buried or previously unidentified cultural resources are
    encountered 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 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, a preconstruction survey will be conducted prior to
    cover installation to ensure no threatened or endangered species are
    present. Following closure and vegetation restoration activities, the
    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 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 Republic'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 Republic's development of its Final Closure Plan for the
    Cocopah Landfill.

    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.

        Dated: July 27, 2020.
    Jeffrey Scott,
    Director, Land, Chemicals and Redevelopment Division, 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 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 adding paragraph (d) to read as
    follows:

    Sec.  258.62  Approval of Site-specific Flexibility Requests in Indian
    Country.

    * * * * *
        (d) Cocopah Municipal Solid Waste Landfill--Alternative final cover
    and alternative location for the storage of facility records. This
    paragraph (d) applies to the Cocopah Landfill, a Municipal Solid Waste
    landfill operated by Republic on the Cocopah Indian Reservation near
    Somerton, Arizona.
        (1) In accordance with Sec.  258.60(b), the owner or operator may
    replace the prescriptive final cover set forth in Sec.  258.60(a), with
    an alternative final cover as follows:
        (i) The owner or operator may install an evapotranspiration cover
    system as an alternative final cover for the 135-acre site.
        (ii) The alternative final cover system shall be constructed to
    achieve an equivalent reduction in infiltration as

    [[Page 53179]]

    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). Top-deck cover slopes
    shall have a minimum slope of 2%. All side slopes in the South Fill
    Area shall be regraded to a maximum 3 horizontal to 1 vertical (3H:1V).
    The existing side slope of 2.5H:1V in the North Fill Area will remain;
    however, drainage benches shall be installed on portions of the slope
    where the vertical height exceeds 50 feet.
        (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 from on-site sources, 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 12 percent for the average of ten consecutive tests;
    and
        (iii) Have a grain size distribution with a minimum of six percent
    finer than five microns for the average of ten consecutive tests; and
        (B) A surface erosion layer comprised of a rock/soil admixture for
    top deck slopes and rock armoring for side slopes. The surface erosion
    layer requirements for top-deck slopes and side slopes are detailed
    below:
        (1) Top deck slope surface erosion layer requirements: The top deck
    slope surface erosion layer shall be a minimum six-inch surface erosion
    layer comprised of a rock/soil admixture. The top deck surface erosion
    layer shall achieve the following gradation specification:
        (i) Exclude particles in excess of three inches in diameter;
        (ii) 40% to 75% passing No. 4 sieve
        (iii) 10% to 50% passing No. 40 sieve
        (iv) Less than or equal to 15% passing No. 200 sieve
        (2) Side slope surface erosion layer: The side slope surfaces
    erosion layer shall consist of a 4-inch thick rock armor underlain by
    an 8 ounce per square yard (oz/sy) non-woven geotextile filter fabric.
    The side slope surface erosion rock armor layer shall achieve the
    following gradation specification:
        (i) Exclude particles in excess of three inches in diameter;
        (ii) 10% to 40% passing No. 4 sieve
        (iii) 0% to 10% passing No. 40 sieve
        (2) In accordance with 40 CFR 258.29(a), the owner operator may
    retain all required documentation relating to the operating record of
    the Cocopah Landfill at the administrative offices of Copper Mountain
    Landfill. The address of Copper Mountain Landfill is 34853 East County
    12th Street, Wellton, Arizona 85356.
        (3) The owner or operator shall place documentation demonstrating
    compliance with the provisions of this Section in the operating record.
        (4) All other applicable provisions of 40 CFR part 258 remain in
    effect.

    [FR Doc. 2020-16586 Filed 8-27-20; 8:45 am]
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