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Research, Development, and Demonstration Permits for Municipal Solid Waste Landfills
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 10, 2002 (Volume 67, Number 111)]
[Proposed Rules]
[Page 39662-39668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn02-24]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[F-2001-RDMP-FFFFF; FRL-7228-3]
RIN 2050-AE92
Research, Development, and Demonstration Permits for Municipal
Solid Waste Landfills
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to add
a new section to the Criteria for Municipal Solid Waste Landfills
(MSWLF) to allow states to issue research, development, and
demonstration (RD&D) permits for landfill operations at variance
with some parts of the MSWLF criteria, provided landfill operators
demonstrate that these operations will not result in an increased risk
to human health and the environment. EPA is proposing this alternative
to promote innovative technologies for the landfilling of municipal
solid waste. Variance from the following MSWLF criteria would not be
allowed: location restrictions, ground water monitoring, corrective
action requirements, the financial assurance criteria, procedures for
excluding hazardous waste, and explosive gases control requirements.
DATES: EPA must receive your comments or your comments must be
postmarked by August 9, 2002.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-2002-RDMP-FFFFF
to: (1) if using regular US Postal Service mail: RCRA Docket
Information Center, Office of Solid Waste (5305G), U.S. Environmental
Protection Agency Headquarters (EPA, HQ), Ariel Rios Building, 1200
Pennsylvania Avenue, NW, Washington, DC 20460-0002, or (2) if
using special delivery, such as overnight express service: RCRA Docket
Information Center (RIC), Crystal Gateway One, 1235 Jefferson Davis
Highway, First Floor, Arlington, VA 22202. Commenters are encouraged to
submit their comments electronically through the Internet to: rcra-
docket@epa.gov. Comments in electronic format should also be
identified by the docket number F-2002-RDMP-FFFFF.
You must provide your electronic submittals as ASCII files and avoid
the use of special characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200
Pennsylvania Avenue, NW, Washington, DC 20460-0002.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC), located at Crystal Gateway I,
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal
holidays. To review docket materials, it is recommended that the public
make an appointment by calling 703 603-9230. The public may copy
a maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost $0.15/page. The index and some supporting
materials are available electronically. See the "Supplementary
Information" section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call 703
412-9810 or TDD 703 412-3323.
For information on specific aspects of this document: contact
Dwight Hlustick, Municipal and Industrial Solid Waste Division of the
Office of Solid Waste
[[Page 39663]]
(mail code 5306W), U.S. Environmental Protection Agency Headquarters
(EPA, HQ), Ariel Rios Building, 1200 Pennsylvania Ave., NW.,
Washington, D.C. 20460; 703/308-8647,
hlustick.dwight@epa.gov.
SUPPLEMENTARY INFORMATION: Supporting Materials, and Official Record
The index and the following supporting materials are available on
the Internet: "Finding a Better Cover," Stephen F. Dwyer,
Civil Engineering, January 2001, pages 58-63; "USEPA
Workshop for Bioreactor Landfills, September 6-7, 2000,"
U.S. EPA, September 2001; "Prediction and Measurement of Leachate
Head on Landfill Liners," Debra R. Reinhart, Florida Center for
Solid and Hazardous Waste Management, Report #98-3, July
1998; "Technical Resource Document: Assessment and
Recommendations for Improving the Performance of Waste Containment
Systems," EPA, Office of Research and Development, Grant #
CR-821448-01-0, February 2002, (R. Bonaparte, D.
Daniel, and R. M. Koerner). You can find these materials at: http://
www.epa.gov/epaoswer/non-hw/muncpl/mswlficr/index.htm.
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the address in ADDRESSES at the
beginning of this document.
EPA responses to comments, whether the comments are written or
electronic, will be in a notice in the Federal Register or in a
response to comments document placed in the official record for this
rulemaking. EPA will not immediately reply to commenters electronically
other than to seek clarification of electronic comments that may be
garbled in transmission or during conversion to paper form, as
discussed above.
Affected Entities.
Entities potentially affected by this action are public or private
owners or operators of landfills. Affected categories and entities
include the following:
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Examples of affected
Category entities
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Federal Government........................ Agencies procuring waste
services
Industry.................................. Owners or operators of
municipal solid waste
landfills
Municipalities, including Tribal Owners or operators of
Governments. municipal solid waste
landfills
------------------------------------------------------------------------
This table is a guide for readers that describes which entities are
likely to be affected by this action. It lists the types of entities
that EPA is aware could potentially be impacted by today's action. It
is possible that other types of entities not listed in the table could
also be affected. To determine whether you would be impacted by this
action, you should carefully examine the applicability criteria. If you
have questions about whether this action applies to a particular
facility, please consult Mr. Dwight Hlustick, U. S. Environmental
Protection Agency, Office of Solid Waste (5306W), 1200 Pennsylvania
Ave., SW., Washington, DC 20460, 703 308-8647,
hlustick.dwight@epamail.epa.gov.
Outline
I. Authority for this Proposed Rule
II. EPA's Role in Developing Municipal Solid Waste Landfill Criteria
III. Proposed Research, Development, and Demonstration Permits
A. Duration of RD&D Permit
B. Size Limitations
C. Testing, Monitoring, and Reporting Requirements
IV. State and Tribal Implementation
V. Applicable statutes and executive orders
A. Executive Order 12866 (Regulatory Planning and Review)
B. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC
601 et. seq.
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act of 1995
I. Executive Order 12898: Environmental Justice
J. Executive Order 13211: Energy Effects
I. Legal Authority for This Proposed Rule
The authority for this proposed revision to the Criteria for
Municipal Solid Waste Landfills (40 CFR part 258) is sections 1008,
2002(a), 4004, 4005(c) and 4010 of the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6907, 6912(a), 6944,
6945(c), 6949a.
II. EPA's Role in Developing Municipal Solid Waste Landfill Criteria
Subtitle D of the Resource Conservation and Recovery Act (RCRA)
provides that states will have the primary authority for regulating
municipal solid waste. The role of the federal government is to
establish an overall regulatory direction through the development of
minimum national standards for nonhazardous solid waste disposal
facilities, which include municipal solid waste landfills (MSWLFs). On
October 9, 1991, EPA issued revised Criteria for Municipal Solid Waste
Landfills (56 FR 50978). These criteria, codified in 40 CFR part 258,
establish minimum national standards to ensure that "no
reasonable probability of adverse effects on health or the
environment" will result from solid waste disposal facilities
receiving hazardous household waste and small quantity generator
hazardous wastes (56 FR 50979). Today, EPA is proposing an amendment to
the MSWLF criteria to allow for the issuance of limited permits for
research, development, and demonstration projects. States with permit
programs determinated to be adequate pursuant to RCRA section 4005(c)
and 40 CFR part 239 ("approved States") would decide
whether or not to adopt this provision in their approved programs.
III. Research, Development, and Demonstration Permits
Today's proposed rule would allow the Director of an approved State
to issue research, development, and demonstration (RD&D) permits to
owners and operators of municipal solid waste landfills. The Director
of a non-approved State would not have the option of issuing RD&D
permits. EPA is proposing this provision to stimulate the development
of new technologies and alternative operational processes for the
landfilling of municipal solid waste. This proposed rule would allow
the State director to waive specific provisions of the MSWLF criteria,
including the (1) operating criteria, except procedures for excluding
hazardous waste and explosive gas control in subpart C; (2) the design
criteria in subpart D; and (3) the closure and post-closure care
criteria in subpart F. In order to issue an RD&D permit waiving any
of these criteria, the State Director must be satisfied that a landfill
operating under an RD&D permit will pose no additional risk to
human health and the environment beyond that which would result from a
landfill operating under the current MSWLF criteria. Today's proposed
rule is modeled on
[[Page 39664]]
the research, development, and demonstration permit provisions in 40
CFR 270.65. That provision allows states with approved hazardous waste
management programs to issue RD&D permits for innovative and
experimental treatment technologies or processes at hazardous waste
treatment facilities.
The permit variance proposed today is similar to that already
allowed by some States which have more restrictive or stringent
standards than those established in the 1991 MSWLF criteria. However,
under the present federal standards set forth in the criteria, these
state research permits are very limited in their scope, i.e., state
rules cannot be less stringent than the MSWLF criteria. Today's
proposed rule would allow more latitude in these existing state
programs as well as allowing the development of new programs in other
States.
EPA is proposing to allow permits for alternative design and
operating requirements because EPA has become aware of new or improved
technologies for landfill operations and design since the promulgation
of the MSWLF criteria in 1991. These include: (1) Improvements in liner
system design and materials; (2) improvements in the design of, and
materials used in leachate drainage and recirculation systems; (3) new
processes for more rapid degradation of waste which require the
addition of water or steam; (4) new liquid distribution techniques (see
EPA Docket Number F-2000-ALPA-FFFFF for FR Notice:
Alternative Liner Performance, Leachate Recirculation, and Bioreactor
Landfills: Request for Information and Data, April 6, 2000, FR18014);
and (5) improvements in various monitoring devices (i.e.,
"Prediction and Measurement of Leachate Head on Landfill
Liners," Debra R. Reinhart, Florida Center for Solid and
Hazardous Waste Management, Report #98-3, July 1998). As a
result, the approved States would have flexibility in allowing the
operation of new and innovative technologies in permitting the
landfilling of municipal solid waste. The State and the owner/operator
must assure there is no increased risk to human health and the
environment when instituting any of the new techniques or processes
which would be allowed by today's proposed rule changes.
EPA has determined that in order to ensure that human health and
the environment are protected, specific criteria developed for
municipal solid waste landfills should not be able to be waived.
Therefore, today's proposed rule would not allow State directors to
deviate from the requirements addressing: (1) Location restrictions in
subpart B; (2) ground-water monitoring and corrective action in subpart
E; (3) financial assurance in subpart G; (4) explosive gases control in
40 CFR 258.23 of subpart C; and (5) hazardous waste control in 40 CFR
258.20 of subpart C. EPA believes that these provisions are necessary
to assure a national minimum level of protection by requiring (1)
landfills to be properly located safe distances from airports, outside
of wetlands, and floodplains; (2) ground-water to be adequately
monitored and corrective action measures to be implemented, if needed;
(3) adequate financial safeguards to be in place for closure and post-
closure action; (4) explosive gases to be monitored and controlled; and
(5) procedures to be in place to prevent the dumping of regulated
quantities of hazardous waste in MSW landfills.
An example of a modification to the operation of an MSWLF that
would be allowed to be issued under an RD&D permit would be the
addition of non-hazardous liquids to accelerate decomposition in a
MSWLF unit constructed with an alternative liner (i.e., a liner that
complies with the performance design criteria in 40 CFR 258.40(a)(1)
rather than a liner that complies with the design specifications in 40
CFR 258.40(a)(2)). This practice is not allowed under the existing
municipal landfill criteria. Today's proposed rule would grant State
Directors in approved States the authority to issue permits allowing
for the addition of these liquids, provided the owner/operator
demonstrates that there will be no increased risk to human health and
the environment. The MSWLF owner/operator would therefore be required
to demonstrate groundwater protection, landfill stability, as well as
earlier landfill gas collection and control sooner than is currently
required under EPA air regulations (40 CFR part 60, subparts CC and
WWW). The plan for landfill gas control would need to be included as a
requirement in the RD&D permit.
Another example of a variance for which an RD&D permit could be
issued is use of an alternate landfill cover rather than that which is
specified in the MSWLF criteria. Although the current regulations
provide approved States with flexibility regarding covers for
landfills, this proposed rule would allow State directors in approved
States additional flexibility, while maintaining the assurance that
human health and the environment are protected. EPA believes that
flexibility is warranted due to varying climates, topography, and waste
handling techniques in approved States. However with additional
flexibility, there is the need to more closely monitor the operations
of those landfills that have been issued RD&D permits.
EPA has also considered the applicability of this proposed rule to
owners/operators of small landfills that are exempt from part 258
subparts D and E as specified in 40 CFR 258.1(f). EPA concluded that
these small landfills should also be allowed to apply and receive
RD&D permits under today's rule for the following reason: EPA is
proposing to allow this because permits will be issued on a site-
specific basis and the State Director has the authority to modify or
eliminate the above exemptions as is needed to protect human health and
the environment. Therefore, the exemptions for these facilities would
remain applicable if the owner/operator applies for a permit under
today's proposal, unless the State Director determines otherwise.
EPA is not proposing a process or methodology for obtaining an
RD&D permit, but is leaving permit application and issuance
procedures up to the States wishing to issue these permits. EPA will
work with interested States in developing these procedures and will
issue guidance if we determine that there is sufficient interest and
need for such guidance.
A. Duration of RD D Permits
Today's proposed rule would limit the duration of initial RD&D
permits to three years. EPA believes that three years is an appropriate
length of time to initially test and assess the performance of an
innovative technology or process in an MSWLF. Similar to the RD&D
permit provision for hazardous waste treatment facilities, this rule
would allow the permit to be renewed for three years up to three times.
Therefore, this proposal would allow for a maximum permit period of 12
years. While this is a relatively short time in the life of a landfill
and a longer time may be needed for some projects, EPA believes that
this is sufficient time to determine whether a project will be
successful in meeting its stated goals. If a project proves successful
and the owner/operator and State agree that it should continue longer
than 12 years, EPA may develop a site-specific rule or other
appropriate regulatory modification to the MSWLF criteria. EPA requests
comment on whether three years is an appropriate permit duration and
whether three permit renewals for a total project duration of 12 years
is also appropriate.
[[Page 39665]]
B. Size Limitations
EPA considered placing a size limitation on the RD&D projects
to be permitted. This included the area of the landfill, as well as the
quantity of waste placed in the landfill. EPA determined that due to
the variation in types of projects, limitations based on size of
landfill, quantity of waste, or other limitations should be determined
by the State Director on a site-specific basis. Therefore, EPA is not
proposing to establish any limitations based on size or waste quantity,
but rather, recommends that the Directors of approved States consider
whether size or capacity limitations are warranted, based on the
project goals, in order to protect the environment and human health and
stay within the maximum duration of the RD&D permit. However, EPA
requests comment on whether there should be any limitations on the size
of the landfill or quantity of waste placed in the landfill.
C. Testing, Monitoring, and Reporting Requirements
To ensure that projects operating under an RD&D permit meet the
expectations of the research, development, or demonstration project,
EPA is also proposing to require that the permittee test, monitor, and
submit information to the State Director as specified in the RD&D
permit in order for the Director to determine the progress of the
project, insure proper operation of the landfill, and assure protection
of human health and the environment. EPA is not proposing particular
monitoring testing, or recordkeeping requirements, nor does the
proposal specify monitoring frequency. The Agency believes that each
project should be evaluated individually to determine the appropriate
monitoring, testing, and records to be kept, as well as to determine
how often such monitoring or testing should take place. Therefore,
under the proposed rule, the State Director would make this assessment
and include specific monitoring, testing, and recordkeeping
requirements in each permit. Similarly, EPA is proposing that the State
Director specify the reporting requirements in the permit on a site-
specific basis.
As a separate requirement, the proposed rule would require the
landfill owner/operator to submit an annual report to the State
Director summarizing progress on how well the project is attaining its
goals. Examples of goals include environmental protection, cost
benefits, community benefits, compost recovery, improved ground water
protection, more rapid and/or complete decomposition of waste, improved
landfill gas recovery. These goals should be clearly stated in the
permit in objective, measurable terms where possible. EPA specifically
requests comments on whether these monitoring and reporting
requirements are appropriate.
IV. State and Tribal Implementation
The municipal solid waste landfill criteria are implemented in one
of two ways. The first, and preferred alternative, is that each State
implements the criteria after EPA reviews its municipal solid waste
landfill permit program or other system of prior approval and finds it
to be adequate pursuant to 40 CFR part 239. The criteria contain
provisions that allow States to develop and rely on alternative
approaches to address site-specific conditions. Therefore, the actual
planning and direct implementation of solid waste programs is
principally a function of State governments and those owners and
operators, including local governments, of MSWLFs, rather than the
federal government. The criteria can also be "self-
implementing" by landfill owners and operators in those States
that have not received EPA approval of their MSWLF permitting programs.
In this case, the regulations provide less flexibility for owners and
operators. As of January 1, 2002, 49 States and territories had
received approval of their programs and are implementing these
regulations.
As discussed in a prior Federal Register notice (63 FR 57027,
October 23, 1998), Tribes are not included in the definition of State
under RCRA, and therefore EPA does not have authority under RCRA to
approve tribal MSWLF permitting programs. However, tribes can seek the
same flexibility as afforded owners and operators located in approved
States through a site-specific rulemaking as discussed in the EPA draft
guidance entitled, "Site Specific Flexibility Requests for
Municipal Solid Waste Landfills in Indian Country,"
EPA530-97-016, August 1997.
Today's proposed rule to allow RD&D permits would not be self
implementing. MSWLF owners/operators would only be able to obtain an
RD&D permit in approved States that adopt authority to issue such
permits. Because today's proposed rule provides more flexibility than
existing federal criteria, States would not be required to amend their
permit programs which have been determined to be adequate under 40 CFR
part 239. States would have the option to amend statutory or regulatory
definitions pursuant to today's proposed rule. If a State chooses to
amend its statutory or regulatory authority, and if doing so modifies
the State's solid waste permit program, the State would be required to
notify the EPA Regional Administrator of the modification as provided
by 40 CFR 239.12. Whether a State chooses to incorporate today's
proposed rule into its solid waste program would have no effect on its
existing status with respect to EPA approval, i.e., State revisions to
issue RD&D permits will not open previously approved solid waste
programs for Federal review.
Tribes may also receive RD&D permits allowed by today's
proposed rule similar to owners and operators located in approved
States through a site-specific rulemaking outlined in the previously
referenced draft guidance document, "Site Specific Flexibility
Requests for Municipal Solid Waste Landfills in Indian Country."
V. How Does This Proposed Rule Comply With Applicable Statues and
Executive Orders?
A. Executive Order 12866 (Regulatory Planning and Review)
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the
Agency must determine whether a regulatory action is significant and
therefore subject to OMB review and the requirements of the Executive
Order. A significant regulatory action is defined by Executive Order
12866 as one that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or rights and obligations or recipients thereof;
or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Today's proposed rule would allow, but would not
require, States to provide RD&D permits to individual MSWLFs. The
proposed rule would not require any MSWLF to apply for such a permit,
but would provide an opportunity to those MSWLFs seeking to try
innovative or new technology or processes with respect to landfilling
municipal solid waste.
[[Page 39666]]
It has been determined that today's proposed rule is not a
significant regulatory action under Executive Order 12866 and is
therefore not subject to OMB review. Today's proposed rule would impose
no new requirements and is intended to give more flexibility to the
regulated community with significant potential net cost savings.
Although net cost savings are expected, EPA is unable to estimate the
magnitude of the savings because it is yet to be seen how many RD&D
permits will be authorized or what kinds of permit changes or
innovations might be undertaken.
B. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) a small business that
is primarily engaged in the collection and disposal of refuse in a
landfill operation as defined by NAICS codes 562212 and 924110 (also
defined by SIC codes 4953 and 9511) with annual receipts less than 10
million dollars, as defined in accordance with the Small Business
Administration (SBA) size standards established for industries listed
in the North American Industry Classification System (see http://
www.sba.gov/size/NAICS-cover-page.html); 
(2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
SBREFA amended the Regulatory Flexibility Act to require Federal
Agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities (SISNOSE). The following
discussion explains EPA's determination.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities (SISNOSE),
since the rule has direct effects only on state agencies. The purpose
of this rule is to add flexibility to the MSWLF criteria. This rule
would add no new requirements to the MSWLF criteria for either existing
or new facilities, nor will it increase costs for new or existing
MSWLFs regardless of size. In conclusion, EPA has determined that this
rule would not impose significant new burdens on small entities.
Instead, this rule is expected to provide net annual benefits (in the
form of regulatory relief; potential research, development, and
innovation advancements; and long-term benefits) from the voluntary
participation by facilities in the private sector.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
Tribal governments, and the private sector. Under section 202 of the
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with "Federal
mandates" that may result in expenditures to State, local, and
tribal governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of
alternatives and adopt the least costly, most cost effective or least
burdensome alternative that achieves the objective of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
EPA's analysis of compliance with the Unfunded Mandates Reform Act
of 1995 found that this proposed rule imposes no additional enforceable
burden on any State, local or tribal governments or the private sector.
Thus, today's proposed rule is not subject to the requirements of
sections 202, 203, and 205 of UMRA.
D. Paperwork Reduction Act
The information collection requirements in this proposed rule will
be submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document will be prepared by EPA
and a copy, when completed, may be obtained from Susan Auby by mail at
Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by email at
auby.susan@epamail.epa.gov, or by calling (202) 260-2740.
A copy can also be downloaded off the internet at &fnl;http://
www.epa.gov/icr when it is available.
The ICRs affected by this rule are for 40 CFR parts 239,
Requirements for State Permit Program Determination of Adequacy and
part 258, MSWLF Criteria. EPA has submitted the ICR for part 239
(ICR# 1608.03, OMB# 2050-152) to OMB for review. EPA
included estimates of the cost for approved States to revise their
existing program for today's rule. The estimated cost was $5,680 per
respondent. EPA is requesting comments from States which plan to make
these revisions so that EPA can better understand the expected burden
that would be incurred by states who wish to make these changes. EPA is
estimating that approximately five states will revise their rules to
take advantage of today's proposal. In addition, EPA is also requesting
information from MSWLF owners/operators on the reporting burden that
they would incur due to this rule under the part 258, MSWLF criteria
ICR (ICR# 1381.06, OMB# 2050-0122). Information which
States are expected to require include the annual report specified in
the rule as well as additional monitoring and testing requirements
which may be specified by a State authority. Additional monitoring
requirements could include the measurement of leachate head on the
liner; landfill temperature at various locations; type, application
rate and application method of various wastes including liquid wastes
and water that maybe placed in the landfill; additional hydraulic
studies; landfill settlement
[[Page 39667]]
rate determinations, etc. At present EPA estimates that only two to
three landfills a year will be permitted under this proposed rule over
the next few years. Reporting requirements are estimated to cost
between $15,000 and $25,000 per year per landfill. So total reporting
costs are estimated at $30,000 to $75,000 per year for the first year
and increasing at a rate of $50,000 per year for the next three years
thereafter. Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2823); 1200 Pennsylvania Avenue, N.W., Washington, DC
20460-0001; and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., N.W.,
Washington, DC 20503, marked "Attention: Desk Officer for
EPA." Include the ICR number in any correspondence. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after June 10, 2002, a comment to OMB is best assured of having its
full effect if OMB receives it by July 10, 2002. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled "Federalism" (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process
to ensure "meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications." "Policies that have federalism
implications" are defined in the Executive Order to include
regulations that 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."
This proposed rule does not have federalism implications. It would
not have substantial direct effects on the States, on the relationship
between the national government and the States, 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. Implementation of this proposed
rule by a State would be at the State's discretion and would not be
required. Nevertheless, although section 6 of Executive Order 13132
does not apply to this rule, EPA has consulted with States through the
Association of State and Territorial Solid Waste Management Officials
during the development of this proposal. Thus, Executive Order 13132
does not apply to this proposed rule change.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled "Consultation and
Coordination with Indian Tribal Governments" (65 FR 67249,
November 6, 2000), requires 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." "Policies that have tribal
implications" are defined in the Executive Order to include
regulations that have "substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes."
Under section 5(b) of Executive Order 13175, EPA may not issue a
regulation that has tribal implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by tribal governments, or EPA consults with
tribal officials early in the process of developing the proposed
regulation. Under section 5(c) of Executive Order 13175, EPA may not
issue a regulation that has tribal implications and that preempts
tribal law, unless the Agency consults with tribal officials early in
the process of developing the proposed regulation.
EPA has concluded that this proposed rule would have no new tribal
implications. It would not present any additional burden on the tribes,
but would allow more flexibility for compliance with the MSWLF
criteria. It would neither impose substantial direct compliance costs
on tribal governments, nor preempt State law. Thus, the requirements of
sections 5(b) and 5(c) of the Executive Order do not apply to this
rule.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045, "Protection of Children from
Environmental Health Risks and Safety Risks" applies to any rule
that: (1) Is determined to be "economically significant" as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not an economically significant rule as defined by Executive
Order 12866, and because it would not affect decisions involving the
environmental health or safety risks to children.
H. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Public Law No. 104-113, 12(d)
(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,
[[Page 39668]]
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide explanations to Congress, through OMB, when the Agency
decides not to use available and applicable voluntary consensus
standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
I. Executive Order 12898: Environmental Justice.
Under Executive Order 12898, "Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations," as well as through EPA's April 1995,
"Environmental Justice Strategy, OSWER Environmental Justice Task
Force Action Agenda Report," and National Environmental Justice
Advisory Council, EPA has undertaken to incorporate environmental
justice into its policies and programs. EPA is committed to addressing
environmental justice concerns, and is assuming a leadership role in
environmental justice initiatives to enhance environmental quality for
all residents of the United States. The Agency's goals are to ensure
that no segment of the population, regardless of race, color, national
origin, or income, bears disproportionately high and adverse human
health and environmental effects as a result of EPA's policies,
programs, and activities, and all people live in clean and sustainable
communities.
The Agency believes that today's proposed rule which would provide
for research, development, and demonstration permits for municipal
solid waste landfills would not have an adverse environmental or
economic impact on any minority or low-income group, or on any other
type of affected community since these standards would not
significantly affect the location of any solid waste collection
facility.
J. Executive Order 13211: Energy Effects
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.
List of Subjects in 40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Municipal Landfills, Waste treatment and disposal.
Dated: May 31, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, EPA is proposing to
amend 40 CFR part 258 as follows:
PART 258 [AMENDED]
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).
2. New Sec. 258.4 is added to part 258 to read as follows
Sec. 258.4 Research, development, and demonstration permits.
(a) The Director of an approved State may issue a research,
development, and demonstration permit for a new or existing municipal
solid waste landfill for which the owner or operator proposes to
utilize innovative and new methods for operation, design, or landfill
cover which vary from any of the following criteria:
(1) The operating criteria in subpart C of this part except the
procedures for excluding the receipt of hazardous waste in
Sec. 258.20 and the explosive gases control requirements in
Sec. 258.23;
(2) The design criteria in subpart D of this part; and
(3) The final cover criteria in Sec. 258.60(a) and (b).
(b) Any permit issued under this section must include such terms
and conditions as least as protective as the criteria in the part to
assure protection of human health and the environment. Such permits
shall:
(1) Provide for the construction and operation of such facilities
as necessary, for not longer than three years unless renewed as
provided in paragraph (c) of this section;
(2) Provide for the receipt by the landfill of only those types and
quantities of municipal solid waste and non-hazardous wastes which the
State Director deems appropriate for the purposes of determining the
efficacy and performance capabilities of the technology or process;
(3) Include such requirements as necessary to protect human health
and the environment (including but not limited to, requirements
regarding monitoring, design, operation, financial responsibility,
closure and post-closure, and remedial action), including such
requirements as necessary regarding testing and providing information
to the State Director with respect to the operation of the facility;
(4) Require the owner or operator of a landfill permitted under
this section to submit an annual report to the State Director showing
whether and to what extent the site is progressing in attaining project
goals. The report will also include a summary of all monitoring and
testing requirements as well as any other operating information
specified by the State Director in the permit; and
(5) Require compliance with the criteria in subpart B (location
restrictions), subpart E (ground water monitoring and corrective
action), and subpart G (financial assurance) of this part.
(c) The Director of an approved State may order an immediate
termination of all operations at the facility at any time he determines
that the overall goals of the projects are not being attained,
including protection of human health or the environment.
(d) Any permit issued under this section may not be renewed more
than three times by the Director of an approved State. Each such
renewal shall be for a period of not more than three years.
[FR Doc. 02-14489 Filed 6-7-02; 8:45 am]
BILLING CODE 6560-50-P