[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Rules and Regulations]
[Pages 18185-18188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06901]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-RCRA-2021-0127; FRL-10021-26-Region 9]


Research, Development and Demonstration (RD&D) Rule for the Salt 
River Pima-Maricopa Indian Community Landfill RD&D Project

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection (EPA) is taking direct final 
action to approve revisions to the site-specific Research, Development 
and Demonstration rule for the Salt River Pima-Maricopa Indian 
Community (SRPMIC), Salt River Landfill Research, Development, and 
Demonstration Project in order to increase the maximum term for the 
site-specific rule from 12 to 21 years. EPA is also revising the site-
specific rule to reflect a change in the division title for U.S. EPA 
Region 9, from the Waste Management Division to the Land, Chemicals and 
Redevelopment Division.

DATES: This rule is effective on June 7, 2021 without further notice, 
unless EPA receives adverse comment by May 10, 2021. If EPA receives 
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-R9-
2021-0127 at http://www.regulations.gov, or via email to 
[email protected]. Due to COVID-19, we are not providing facsimile 
or regular mail options, which are not viable at this time. For 
comments submitted at Regulations.gov, follow the online instructions 
for submitting comments. Once submitted, comments cannot be removed or 
edited from Regulations.gov. For either manner of submission, the EPA 
may publish any comment received to its public docket. Do not submit 
electronically any information considered confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. 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, please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section. For EPA's full public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Steve Wall, EPA Region IX, (415) 972-
3381, [email protected].

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

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment because the revisions to the site-specific rule merely conform 
the rule to the national rule regarding the total length of time that 
Research, Development and Demonstration (RD&D) projects may be 
permitted. Moreover, the 2016 RD&D rule was subjected to public notice 
and comment prior to promulgation. Also, the existing 12-year maximum 
term for the Salt River Landfill's operation as a bioreactor ends in 
March 2021, and further delay in extending the total term of the RD&D 
project would potentially result in economic and environmental harm, 
contrary to the mission of the

[[Page 18186]]

Agency. Thus, EPA has determined that there is good cause for issuing 
this direct rule final. However, in the ``Proposed Rules'' section of 
this issue of the Federal Register, we are publishing a separate 
document that will serve as the proposed rule to increase the maximum 
term for the site-specific rule from 12 to 21 years and to reflect a 
change in the division title for U.S. EPA Region 9, from the Waste 
Management Division to the Land, Chemicals and Redevelopment Division 
if 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 EPA receives adverse comment, 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. 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), EPA established 
revised minimum Federal criteria for Municipal Solid Waste Landfills 
(MSWLFs). 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, and EPA 
determines whether the program is adequate to ensure that facilities 
will comply with the revised criteria.
    The MSWLF criteria are in the Code of Federal Regulations 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; its use requires approval by the Director 
of an EPA-approved state.
    Since EPA's approval of a state program does not extend to Indian 
country, owners and operators of MSWLF units located in Indian country 
cannot take advantage of the flexibilities available to those 
facilities outside Indian country. 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. 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 has developed 
draft guidance on preparing a site-specific request to provide 
flexibility to owners or operators of MSWLFs in Indian country (Site-
Specific Flexibility Requests for Municipal Solid Waste Landfills in 
Indian Country Draft Guidance, EPA530-R-97-016, August 1997).
    In 2004, EPA issued a final rule at 40 CFR 258.4 amending the MSWLF 
criteria to allow for RD&D permits. 69 FR 13242, March 22, 2004. That 
rule allows for variances from specified criteria for a limited time. 
Specifically, the rule allows for the Director of an approved state to 
issue a time-limited RD&D permit for a new MSWLF unit, existing MSWLF 
unit, or lateral expansion, for which the owner or operator proposes to 
use innovative and new methods which vary from either or both of the 
following: (1) The run-on control systems at 40 CFR 258.26(a)(1); and/
or (2) the liquids restrictions at 40 CFR 258.28(a), provided that the 
MSWLF unit has a leachate collection system designed and constructed to 
maintain less than a 30-centimeter depth of leachate on the liner. The 
rule also allows for the issuance of a time-limited RD&D permit for 
which innovative and new methods that vary from the final cover 
criteria at 40 CFR 258.60(a)(1) and (2) and (b)(1) are proposed for 
use, provided a demonstration is made that the infiltration of liquid 
through the alternative cover system will not cause contamination to 
groundwater or surface water, or cause leachate depth on the liner to 
exceed 30 centimeters. RD&D permits must include such terms and 
conditions at least as protective as the criteria for MSWLFs to assure 
protection of human health and the environment. EPA's RD&D rule stated 
that RD&D facilities in Indian country could be approved in a site-
specific rule.
    The 2004 RD&D rule included time limits whereby an RD&D permit 
cannot exceed three years and a renewal of an RD&D permit cannot exceed 
three years. Although multiple renewals of an RD&D permit can be 
issued, the 2004 RD&D rule included a total term for an RD&D permit, 
including renewals, of up to twelve years. In 2016, EPA revised the 
maximum permit term for MSWLF units operating under the RD&D permit 
program to allow the Director of an approved State to increase the 
number of permit renewals to six, for a total permit term of up to 21 
years. 81 FR 28720, May 10, 2016.
    In 2009, EPA approved an RD&D project at the Salt River Landfill, 
promulgating a site-specific rule at 40 CFR 258.42(a). 74 FR 11677, 
March 19, 2009. Periodic three-year extensions have allowed the 
continued operation of the Salt River Landfill as a bioreactor to the 
present. However, the 12-year term in the current rule, issued March 
19, 2009, expires on March 19, 2021.
    In addition, since the promulgation of the 2009 site-specific rule 
for the Salt River Landfill, the division title for U.S. EPA Region 9, 
Waste Management Division has been changed to the Land, Chemicals and 
Redevelopment Division.

A. What action is the Agency taking?

    EPA is taking direct final action to revise 40 CFR 258.42(a) to 
allow operation of the Salt River Landfill consistent with the RD&D 
rule for a total of 21 years. However, a renewal of this authority must 
continue to be sought every three years. Each renewal request is 
subject to public notice and comment. No renewal may be for greater 
than three years and the overall period of operation may not exceed 21 
years.
    This action revises the overall term of the rule pertaining to 
SRPMIC's site-specific flexibility request to recirculate leachate and 
landfill gas condensate and add storm water and groundwater to the 
below grade portions of areas of the landfill known as Phases IIIB and 
IVA to increase the moisture content of the waste mass in these phases.
    EPA is also revising its site-specific rule to reflect a change in 
the division title for U.S. EPA Region 9, from the Waste Management 
Division to the Land, Chemicals and Redevelopment Division.

B. What are the anticipated effects and benefits of this action?

    The 2016 revision to the RD&D rule at 40 CFR 258.4(e)(1) 
articulated the anticipated effect of extending the overall period of 
operations of these units from 12 to 21 years. 81 FR at 28721. Based on 
that rulemaking, EPA has determined that the extension of the site-
specific rule's total term will provide EPA the ability to issue 
renewals to the existing authority to operate this RD&D unit pursuant 
to this program for up to 21 years instead of 12 years. During this 
time, the EPA will continue to evaluate data from this facility. The 
SRPMIC is not expected to incur any significant costs due to this 
direct final rule. Based on the 2016 rulemaking, the annual costs for 
ongoing recordkeeping and reporting requirements are estimated at 
$2,410 per facility and seeking periodic three-year extensions to 
operate an RD&D unit

[[Page 18187]]

remains voluntary. This action does not impose any new regulatory 
burden. This action allows EPA to increase the number of extensions of 
the operational period for the Salt River Landfill's RD&D unit if the 
tribal owner/operator continues to choose to participate in this 
research program. Increasing the possible number of extensions of the 
RD&D unit's operational term may benefit the tribal owner/operator of 
RD&D units, assuming a projected increase in the rate of return for 21 
years compared to 12 years, based on the findings in EPA's 2016 
rulemaking. 81 FR at 28721.
    The 2016 final rule also indicated that increasing the possible 
number of extensions of RD&D permit terms was expected to provide more 
time for the EPA to collect additional data on the approaches being 
taken under these RD&D permits. Id. With respect to the continued 
operation of the Salt River Landfill, the following potential benefits 
set forth in the 2016 rule's preamble are expected: Increased potential 
for revenue from the sale of landfill gas for use as a renewable source 
of fuel, accelerated production and capture of landfill gas for 
potential use as a renewable fuel, and accelerated stabilization and 
corresponding decreased post-closure care activities for facilities due 
to the accelerated decomposition of waste.

III. Statutory and Executive Order Reviews

    Section 106 of the National Historic Preservation Act of 1966 
(NHPA) requires Federal agencies to take into account the effects of 
their undertakings on historic properties and to afford the Advisory 
Council on Historic Preservation a reasonable opportunity to comment. 
36 CFR part 800. While EPA consulted with the SRPMIC, as well as the 
Ak-Chin Indian Community, the Fort McDowell Yavapai Nation, the Gila 
River Indian Community, the Hopi Tribe, the Pascua Yaqui Tribe, the 
Tohono O'odham Nation, the Yavapai-Apache Nation, and the Yavapai-
Prescott Indian Tribe on the original site-specific flexibility 
rulemaking in 2009 (see 74 FR at 11679), EPA finds that this direct 
final action to extend the existing 12-year term of the authority to 
operate a bioreactor in accordance with EPA's RD&D Program to a 21-year 
term has ``no potential to cause effects'' on historic properties 
within the meaning of Section 106 of the NHPA.
    In compliance with the Endangered Species Act, 16 U.S.C. 1536 et 
seq., EPA performed a biological assessment for the project site. No 
known threatened, endangered or candidate species or their habitat 
exist on the site. Additionally, there are no ground disturbing surface 
activities associated with EPA's approval of an increase to the maximum 
period the Salt River Landfill RD&D project can operate units as 
bioreactor units. No impacts to listed species that may occur in in 
project area are anticipated.
    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 
direct final 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 SRPMIC's RD&D Program proposal and the 
controls and standards set forth in the application and incorporated by 
reference into the original site-specific rule at 40 CFR 258.42(a).
    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, 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.'' EPA has concluded that this 
action may have tribal implications because it is directly applicable 
to the owner and operator of the landfill, which is currently the 
SRPMIC. However, this direct final rule will neither impose substantial 
direct compliance costs on tribal governments, nor preempt Tribal law. 
This direct final rule to revise the maximum total term from up to 12 
years to up to 21 years will affect only the SRPMIC's operation of 
their landfill on their own land.
    On March 10, 2021, EPA offered consultation to the SRPMIC so as to 
give the Tribe a meaningful and timely opportunity to provide input 
into the extension of the total term of the rule from 12 years to 21 
years. To the extent that SRPMIC accepts EPA's offer to consult on this 
action, the Agency will endeavor to undertake such consultation during 
the 30-day public comment period for this direct final rule.
    With respect to the type of flexibility being afforded to SRPMIC 
under this direct final rule, E.O. 13175 does provide for agencies to 
review applications for flexibility ``with a general view toward 
increasing opportunities for utilizing flexible policy approaches at 
the Indian tribal level in cases in which the proposed waiver is 
consistent with the applicable Federal policy objectives and is 
otherwise appropriate.'' In formulating this direct final rule, the 
Region has been guided by the fundamental principles set forth in E.O. 
13175 and has granted the SRPMIC the ``maximum administrative 
discretion possible'' within the standards set forth under the RD&D 
rule in accordance with E.O. 13175.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) directs EPA to use voluntary consensus

[[Page 18188]]

standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards, (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The technical standards included in the original 
site-specific flexibility request were proposed by SRPMIC. Given EPA's 
obligations under E.O. 13175 (see above), the Agency applied the 
standards established by the Tribe. In addition, the Agency considered 
the Interstate Technology and Regulatory Council's February 2006 
technical and regulatory guideline ``Characterization, Design, 
Construction, and Monitoring of Bioreactor Landfills.'' Nothing about 
this analysis has changed since the 2009 site-specific rule was 
promulgated nor does the extension of the total possible term of the 
RD&D unit's operations in accordance with the site-specific rule from 
12 years to 21 years affect this analysis.
    Congressional Review Act (CRA). This action is not subject to the 
CRA because the term ``rule'' as it is used in the CRA does not include 
``any rule of particular applicability,'' such as a site-specific rule. 
See, 5 U.S.C. Section 804(3)(A).
    Environmental Justice--Executive Order 12898, Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations, and the accompanying presidential memorandum advising 
Federal agencies to identify and address, whenever feasible, 
disproportionately high and adverse human health or environmental 
effects on minority communities or low-income communities. The action 
will not adversely impact minorities or low-income communities.

    Authority: Sections 1008, 2002, 4004, and 4010 of the Solid 
Waste Disposal Act, as amended, 42 U.S.C. Sections 6907, 6912, 6944, 
and 6949a. Delegation 8-54, Site-Specific Rules for Flexibility from 
Owners/Operators of Municipal Solid Waste Landfills (MSWLFs) in 
Indian Country, November 24, 2010. Regional Delegation R9-8-54, 
October 10, 2014.

List of Subjects in 40 CFR Part 258

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

    Dated: March 26, 2021.
Steven Barhite,
Acting Director, Land, Chemicals and Redevelopment Division, Region IX.

    For the reasons set forth 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 D--Design Criteria

0
2. Revise Sec.  258.42(a)(5) through (10) to read as follows:


Sec.  258.42   Approval of site-specific flexibility requests in Indian 
country.

    (a) * * *
    (5) The owner and/or operator shall submit reports to the Director 
of the Land, Chemicals and Redevelopment Division at EPA Region 9 as 
specified in ``Research, Development, and Demonstration Permit 
Application Salt River Landfill,'' dated September 24, 2007 and amended 
on April 8, 2008, including an annual report showing whether and to 
what extent the site is progressing in attaining project goals. The 
annual report will also include a summary of all monitoring and testing 
results, as specified in the application.
    (6) The owner and/or operator may not operate the facility pursuant 
to the authority granted by this section if there is any deviation from 
the terms, conditions, and requirements of this section unless the 
operation of the facility will continue to conform to the standards set 
forth in Sec.  258.4 and the owner and/or operator has obtained the 
prior written approval of the Director of the Land, Chemicals and 
Redevelopment Division at EPA Region 9 or the Director's designee to 
implement corrective measures or otherwise operate the facility subject 
to such deviation. The Director of the Land, Chemicals and 
Redevelopment Division or designee shall provide an opportunity for the 
public to comment on any significant deviation prior to providing 
written approval of the deviation.
    (7) Paragraphs (a)(2), (3), (5), (6), and (9) of this section will 
terminate on March 19, 2024, unless the Director of the Land, Chemicals 
and Redevelopment Division at EPA Region 9 or the Director's designee 
renews this authority in writing. Any such renewal may extend the 
authority granted under paragraphs (a)(2), (3), (5), (6), and (9) of 
this section for up to an additional three years, and multiple renewals 
(up to a total of 21 years from March 19, 2009) may be provided. The 
Director of the Land, Chemicals and Redevelopment Division or designee 
shall provide an opportunity for the public to comment on any renewal 
request prior to providing written approval or disapproval of such 
request.
    (8) In no event will the provisions of paragraph (a)(2), (3), (5), 
(6), or (9) of this section remain in effect after March 19, 2030, 21 
years after the March 19, 2009 date of publication of the site-specific 
rule in this section. Upon termination of paragraphs (a)(2), (3), (5), 
(6), and (9) of this section, and except with respect to paragraphs 
(a)(1) and (4) of this section, the owner and/or operator shall return 
to compliance with the regulatory requirements which would have been in 
effect absent the flexibility provided through the site-specific rule 
in this section.
    (9) In seeking any renewal of the authority granted under or other 
requirements of paragraphs (a)(2), (3), (5), and (6) of this section, 
the owner and/or operator shall provide a detailed assessment of the 
project showing the status with respect to achieving project goals, a 
list of problems and status with respect to problem resolutions, and 
any other requirements that the Director of the Land, Chemicals and 
Redevelopment Division at EPA Region 9 or the Director's designee has 
determined are necessary for the approval of any renewal and has 
communicated in writing to the owner and operator.
    (10) The owner and/or operator's authority to operate the landfill 
in accordance with paragraphs (a)(2), (3), (5), (6), and (9) of this 
section shall terminate if the Director of the Land, Chemicals and 
Redevelopment Division at EPA Region 9 or the Director's designee 
determines that the overall goals of the project are not being 
attained, including protection of human health or the environment. Any 
such determination shall be communicated in writing to the owner and 
operator.
* * * * *
[FR Doc. 2021-06901 Filed 4-7-21; 8:45 am]
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