[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Proposed Rules]
[Pages 18237-18240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06902]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R9-RCRA-2021-0127; FRL-10021-27-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: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 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 and also revise 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. In the ``Rules and Regulations'' section of this Federal 
Register, EPA is taking parallel action in a direct final rule without 
a prior proposed rule to revise the site-specific rule to allow 
operation of the Salt River Landfill Research, Development and 
Demonstration Project for a total of 21 years and to revise 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. If we receive no adverse comment, we will take 
no further action on this proposed rule.

DATES: Written comments must be received by May 10, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R9-
RCRA-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, because those 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 you consider to be 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 the full EPA 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 issuing this proposed rule?

    This document proposes to approve of revisions to the Research, 
Development and Demonstration (RD&D) Rule for the Salt River Pima-
Maricopa Indian Community Landfill RD&D Project to extend the total 
project period from 12 years to 21 years. We are also proposing to 
revise the site-specific rule for this Project 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. We have 
also published a parallel direct final rule without a prior proposed 
rule to revise the site-specific rule to allow operation of the Salt 
River Landfill for a total of 21 years so as to conform the site-
specific flexibility rule for this Indian country facility to the 2016 
national RD&D rule. The direct final rule will also revise the site-
specific rule to reflect the change in the division title for U.S. EPA 
Region 9, from the Waste Management Division to the Land, Chemicals and 
Redevelopment Division. The direct final rule is being published in the 
``Rules and Regulations'' section of this Federal Register because we 
view this as a noncontroversial action and anticipate no adverse 
comment. We have explained our reasons for this action in the preamble 
to the direct final rule.
    If we receive no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule and it will not take effect. We would address all 
public comments in

[[Page 18238]]

any subsequent final decision based on this proposed rule.
    We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information, please see the information provided in the 
ADDRESSES section of this document.

II. Legal Authority for This Proposal

    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).
    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 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. 
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 
municipal solid waste landfill criteria to allow for RD&D permits. 69 
FR 13242, March 22, 2004. The 2004 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 the 
owner or operator proposes to use innovative and new methods that vary 
from the final cover criteria at 40 CFR 258.60(a)(1) and (2), and 
(b)(1), provided that the owner or operator demonstrates 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. In 
adopting the RD&D rule, EPA stated that RD&D facilities in Indian 
country could be approved in a site-specific rule.
    The 2004 RD&D Rule included time limits such that 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 promulgated a 
final rule to revise the maximum permit term for MSWLF units operating 
under the RD&D permit program (at 40 CFR 258.4(e)) 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. See also 80 FR 70180, November 13, 2015.

III. Background

    In 2009, EPA made a final determination to approve 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 total term in the 
current rule, issued March 19, 2009, expires on March 19, 2021.

IV. What action is the Agency proposing today?

    EPA is proposing to revise 40 CFR 258.42(a) to allow operation of 
the Salt River Landfill RD&D unit, consistent with the RD&D rule at 40 
CFR 258.4(e), for a total of up to 21 years. However, upon the 
effective date of these proposed revisions, a renewal of this authority 
must continue to be sought every three years. Each renewal request 
would also be subject to public notice and comment. No renewal could be 
granted for a period greater than three years and the overall period of 
operation would not exceed twenty-one years. EPA is also proposing 
technical corrections to 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.
    This action proposes a revision of the overall term of the site-
specific rule pertaining to SRPMIC's site-specific flexibility request 
to: (1) To operate Phase VI as an anaerobic bioreactor by recirculating 
leachate and landfill gas condensate, and adding storm water and 
groundwater to the below grade portions of Phase VI; and (2) 
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.
    The 2016 revision to the national 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, if finalized, would 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 would continue to evaluate data from this facility. 
In addition, the SRPMIC would not be expected to incur significant new 
costs as a result of these proposed revisions. Based on the 2016 
rulemaking, the annual costs for ongoing recordkeeping and reporting 
requirements are estimated at $2,410 per facility and seeking periodic 
extensions of the authority to operate an RD&D unit remains voluntary. 
This proposed action would not impose any new regulatory burden. This 
proposed rule would allow 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

[[Page 18239]]

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 proposed 
rule would be expected to have the following potential benefits set 
forth in the 2016 rule's preamble: 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.

V. 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 proposal 
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, if 
finalized, will have ``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 the 
project area are anticipated.
    Under Executive Order 12866, ``Regulatory Planning and Review,'' 
(58 FR 51735, October 4, 1993), this proposed 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 proposed rule would 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 would apply to a particular facility 
only.
    Because this proposed 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 proposed rule 
would affect only a particular facility, it would not significantly or 
uniquely affect small governments, as specified in section 203 of UMRA.
    Because this proposed rule will affect only a particular facility, 
it does not have federalism implications. Nor will this proposed rule 
have any 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 
proposed rule.
    This proposed 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 proposed 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 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 proposed 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 proposed 
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 
proposed action may have tribal implications because it is directly 
applicable to the owner and/or operator of the landfill, which is 
currently the SRPMIC. However, this proposed rule will neither impose 
substantial direct compliance costs on tribal governments, nor preempt 
Tribal law. This proposed 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 proposed 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 proposed 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 
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

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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 proposed 
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, the EPA proposes to 
amend 40 CFR part 258 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 paragraphs (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 paragraphs (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. 2021-06902 Filed 4-7-21; 8:45 am]
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