[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Rules and Regulations]
[Pages 13242-13256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6310]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[F-2001-RDMP-0044; FRL-7637-9]
RIN 2050-AE92
Research, Development, and Demonstration Permits for Municipal
Solid Waste Landfills
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is revising the
Criteria for Municipal Solid Waste Landfills (MSWLF) to allow states to
issue research, development, and demonstration (RD&D) permits for new
and existing MSWLF units and lateral expansions. Today's rule will
allow Directors of approved state programs to provide a variance from
certain MSWLF criteria, provided that MSWLF owners/operators
demonstrate that compliance with the RD&D permit will not increase risk
to human health and the environment over compliance with a standard
MSWLF permit. EPA is finalizing this alternative permit authority to
promote innovative technologies associated with landfilling of
municipal solid waste. RD&D permits may provide a variance from
existing requirements for run-on control systems, liquids restrictions,
and the final cover requirements. No variance from any other
requirements of MSWLF criteria, unless already provided for in the
existing regulations, are allowed under today's rule.
DATES: This rule is effective on April 21, 2004.
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 (hearing impaired).
For information on specific aspects of this rule, contact Mr. Paul
Cassidy, Municipal and Industrial Solid Waste Division of the Office of
Solid Waste (mail code 5306W), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 1200 Pennsylvania Avenue, NW., Washington, DC
20460; telephone: 703
[[Page 13243]]
308-7281; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies Of This Final Rule and Related Information?
1. Docket. All the information including this rule and the response
to comment document is available from the EPA docket. EPA has
established an official public docket for this action under Docket ID
No. RCRA-2001-0044 (numbered as F-2002-RDMP-FFFF in the proposed rule).
The official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is available for public viewing
at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the RCRA
Docket is (202) 566-0270. The public may copy a maximum of 100 pages
from any regulatory docket at no charge. Additional copies are $0.15
per page.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/. An electronic version of the
public docket is available through EPA's electronic public docket and
comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing
of the contents of the official public docket, and to access those
documents in the public docket that are available electronically.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in Unit I.A. Once in the system, select
``search,'' then key in the appropriate docket identification number.
B. 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.
State Governments......................... Regulatory agencies and
agencies operating
landfills.
Industry.................................. Owners or operators of
municipal solid waste
landfills.
Municipalities, including Tribal Owners or operators of
Governments. municipal solid waste
landfills.
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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
EPA is now 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. Paul Cassidy, U.S. Environmental
Protection Agency, Office of Solid Waste (5306W), 1200 Pennsylvania
Ave., SW., Washington, DC 20460, 703-308-7281, [[email protected]].
Outline
I. General Information
II. Legal Authority for this Rule
III. Background
A. What EPA Proposed
B. What Comments Were Received on the Proposed Rule
IV. Provisions of the Final Rule
A. Summary of the Final Rule
B. Operating Criteria for Which Variance is Allowed
C. Design Criteria
D. Variance from Final Cover Criteria
V. Major Issues Raised in Comments and Responses
A. Legal Basis for the Rule
B. Variance from Design Criteria
C. Methods for Fostering Innovation
D. Duration of RD&D Permits
E. Bioreactor Landfills
F. Variances for Groundwater Monitoring
G. Termination of a Project for Cause
H. Burden of Proof for Variance Determination for RD&D Permits
I. Implementation of Today's Rule.
J. The Addition of Water to Arid Landfills.
K. Potential Increased Emissions of Landfill Gas.
L. Rule Authorizing Future Projects Based on the Success of a
Technology.
VI. State and Tribal Implementation of Today's Rule
VII. How does this rule comply with applicable statues and executive
orders?
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform 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. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act of 1995
J. Congressional Review Act
II. Legal Authority for this Rule
The authority for today's rule is sections 1008, 2002(a), 4004,
4005(c), 4010 and 8001(a) of the Resource Conservation and Recovery Act
of 1976 (RCRA), as amended, 42 U.S.C. 6907, 6912(a), 6944, 6945(c),
6949a, 6981(a).
III. Background
A. What EPA Proposed
On June 10, 2002, EPA proposed a rule that would allow the Director
of an approved State program to issue research, development, and
demonstration (RD&D) permits to owners and operators of municipal solid
waste landfill (MSWLF) units. RD&D permits would not be available in
States without an approved MSWLF permit program, 67 FR 39662. EPA
proposed this provision in an effort to stimulate the development of
new technologies and alternative operational processes for the disposal
of municipal solid waste in MSWLF units. The proposed rule would allow
the State director to permit variances to 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 final cover
requirements in the closure and post-closure care criteria in subpart
F. In order to issue an RD&D permit, the owner/operator of the MSWLF
would have to demonstrate to the State Director's satisfaction that a
landfill operating under an RD&D permit would pose no more risk to
human health and the environment than it would operating under a permit
in accordance with all existing MSWLF criteria.
The proposed rule would not allow State directors to deviate from
certain criteria, based on a determination that compliance with the
established criteria is necessary to protect human health and the
environment. As proposed, the following criteria would not be subject
to variance in an RD&D permit: (1) Location restrictions in subpart B;
(2) ground-water monitoring and corrective action in subpart E; (3)
financial
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assurance in subpart G; (4) explosive gas control in 40 CFR 258.23 of
subpart C; and (5) hazardous waste control in 40 CFR 258.20 of subpart
C.
Under the proposed rule, the duration of the initial RD&D permits
would be limited to three years. However, the permit could be renewed
for another three years up to a maximum of three times. Therefore, the
proposed rule would allow for a maximum permit period of 12 years.
EPA considered, but did not propose, placing a size or quantity
limitation on the RD&D projects to be permitted and requested public
comment on whether the final rule should be limited to MSWLF units that
do not exceed a certain size and/or quantity of waste placed in the
landfill. EPA did not propose any such limitations based on the view
that due to the potential variations in types of projects, any landfill
size or waste quantity limitations should be determined by the State
Director on a site-specific basis.
To ensure that projects operating under an RD&D permit meet the
expectations of the research, development or demonstration project, EPA
also proposed 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 State Director to determine the progress of the project,
insure proper operation of the landfill, and assure protection of human
health and the environment. EPA did not propose specific testing or
recordkeeping requirements, nor did it specify monitoring frequency.
The Agency believed that each project should be evaluated individually
to determine the appropriate frequency of monitoring, type of testing,
and what records should be kept. Therefore, under the proposed rule,
the State Director would make this assessment and include specific
monitoring, testing, and recordkeeping requirements in each permit.
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, and the geotechnical stability of the landfill.
These goals should be clearly stated in the permit in objective,
measurable terms where possible.
B. What Comments Were Received on the Proposed Rule
EPA received 12 comments on the proposed rule during the comment
period. However, after the close of the comment period, EPA received,
and continues to receive, electronic form letters expressing opposition
to the proposed rule, which now number over 200 letters. Of the12
comments submitted during the comment period, eight came from states
(environmental agencies or waste management departments) and an
organization representing state waste management agencies; two were
from waste management professionals; one was from a waste management
trade organization; and one came from a coalition of environmental
organizations. The e-form letters, which are identical, are from
private individuals, and though submitted after the close of the
comment period, have been considered by EPA in this rulemaking.\1\
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\1\ In expressing opposition to the proposed rule, these
commenters argued that the proposal ``would effectively deregulate
most national standards for municipal landfills under the false
guise of encouraging innovation.'' Rather, the commenters noted that
the existing rules are ``perfectly adequate to handle applications
for variances for testing bona fide innovations.'' As discussed
throughout the preamble, the Agency has narrowed the final rule to
allow variances only for run-on control systems, liquids
restrictions, and the final cover requirements. That is, no variance
from any other requirements of the MSWLF criteria are allowed,
unless already provided for in the existing regulations. However, we
disagree with the commenters that the existing regulations are
adequate to handle applications for variances for testing of
innovative solutions regarding run-on control systems, the addition
of liquids in landfills, and the final cover requirements. We
specifically discuss our basis for these later in the preamble.
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The state agencies and state agency organization, as well as the
industry commenters generally expressed support for the proposed rule,
although some particular issues were raised with respect to the scope
of the rule. The environmental group coalition and individual
commenters opposed the proposed rule. For EPA's complete responses to
the comments, please see the Response to Comments document in the
docket. The major issues and a summary of EPA's responses is set forth
below in Section V.
IV. Provisions of the Final Rule
A. Summary of the Final Rule
Today's rule grants authority to directors of approved state
programs to issue RD&D permits to provide variances from certain
criteria in 40 CFR part 258 for new and existing MSWLF units and
lateral expansions. However, as a result of comments on the proposal,
and in an effort to clarify the Agency's intent, the final rule is
narrower in scope than the proposed rule. One comment in particular
questioned the broad scope of the proposed rule and the basis for EPA's
authority to allow the degree of deviation from the criteria in part
258 that the commenter understood the proposal to allow. This comment
was based on an interpretation of the proposal that EPA did not intend,
indicating that the language of the proposal was potentially ambiguous.
Therefore, in an effort to remove any potential ambiguity, the final
rule focuses only on the particular areas of new variance authority.
The final rule therefore differs from the proposal in approach, but not
substantially in effect.
Specifically, the proposal identified a number of provisions in the
part 258 criteria for which the Director of an approved State could
allow for a variance in an RD&D permit. As explained in more detail
below, many of these existing criteria already have their own variance
provisions, whereby the Director of an approved State program is
already authorized to include alternative means of meeting the criteria
in an operating permit for a MSWLF unit. Thus, the inclusion of these
provisions in the proposed RD&D rule created confusion and potential
ambiguity, because it was not clear whether EPA intended simply to
repeat the already-available flexibility or whether some additional
variance authority was contemplated.
Moreover, based on the commenters' broad interpretation of the
proposed RD&D rule, the commenter also more generally questioned EPA's
authority to provide the degree of variance from the criteria as the
proposed rule appeared to have allowed. EPA does not agree that, as a
statutory matter, it could not have finalized the rule as proposed.
However, in light of this comment and specific issues raised in
connection with this point, (see section V.A. of the preamble for a
detailed discussion), EPA also reconsidered whether it is prudent to
allow each of the criteria included for variance authority in the
proposal to be available for RD&D permit authority. As a result, EPA
decided that several other criteria, which do not contain their own
specific variance authority, should also not be included in the final
rule, such as the air criteria and surface water requirements.
Therefore, today's rule provides approved States with the authority
to issue RD&D permits to provide variances from the operating criteria
in subpart C only with respect to run-on control systems in Sec.
258.26(a)(1) and the liquids restrictions in Sec. 258.28(a). In
[[Page 13245]]
addition, the final rule allows an additional variance for the final
cover set forth in the closure/post closure criteria in subpart F.
Unlike the proposal, EPA is not including authority for further
variance from the design criteria in subpart D.
Although the final rule allows variances for only three of the
criteria in part 258, there is in fact little difference in the degree
of flexibility that approved states can exercise in issuing permits for
MSWLF units. In particular, several of the criteria that were proposed
for RD&D permits may already be met through alternative means under the
existing criteria. Therefore, EPA determined that RD&D permit authority
is not needed to allow variances from those criteria. Indeed, unlike
RD&D authority, there is no federal limitation on permit duration or
renewals, as is contained into today's rule. Also, the existing
authority in part 258 for alternatives to meeting the criteria remain
available for RD&D projects. The purpose of today's rule is to expand
the variance authority for innovative or new technologies or methods
beyond the authority that already exists in the MSWLF criteria. This
modification of the proposal also responds to a comment asserting that
the RD&D permit proposal would unlawfully delegate standard-setting
authority to approved states. By narrowing the RD&D permit to specific
criteria which do not already include variance authority, EPA further
clarifies that it did not intend that the variance, or ``waiver,''
authority as proposed would allow that the requirements themselves
could have been waived altogether. The particular criteria that can be
subject to RD&D permit variance are discussed in more specificity
below.
The final rule is different in another respect from the proposal
regarding the scope of coverage. In general, the final rule provides
that RD&D permits may be approved for new and existing MSWLF units and
lateral expansions. However, in response to a comment, the final rule
states that small landfills which operate under Sec. 258.1(f)(1)
cannot receive a variance from the liquids restrictions, including the
recirculation of leachate, and the addition of any run-on water on to
the active portion of the landfill. The reason that the Agency is not
applying the final rule to these landfills is that Sec. 258.1(f)(1) is
itself a variance from both the design requirements (Subpart D) and
groundwater monitoring and corrective action requirements (Subpart E)
for small landfills. EPA has concluded that a variance to add liquids
to such small landfills which do not have liners meeting the design
requirements in Sec. 258.40 and/or are exempt from groundwater
monitoring requirements would ``present a reasonable probability of
adverse affects on human health or the environment'' and therefore
would not meet the statutory standard for ``sanitary landfills'' under
section 4004(a) of RCRA. In addition, because Sec. 258.60(b)(3)
already allows for owners/operators of small MSWLF units to receive a
variance from final cover requirements with respect to the infiltration
layer, today's RD&D authority for an alternative to the infiltration
requirements in the final cover criteria do not apply to small MSWLF
units.
Also in response to a comment, EPA has changed the language of
Sec. 258.4(a) to clarify that RD&D permits may be issued for
``existing MSWLF units, new MSWLF units, and lateral expansions,'' as
those terms are defined in section Sec. 258.2. Although this was the
intent of the proposed rule, the terminology used in the proposal was
not identical to the defined terms in part 258.
In response to comments regarding permit termination prior to
expiration, EPA has decided to modify the language as proposed to allow
the State Director to order alternative corrective action procedures to
protect human and health and the environment as an option to
termination of operations. In addition, the state permitting authority
may include the criteria and process for project termination in the
permit. Several commenters requested this change to allow the State
Director more flexibility for correcting situations where there may be
risks due to improper operations or unforseen problems at a site
operating under today's rule. This modification is in keeping with
Congress' intent that ``disposal of solid wastes should continue to be
primarily the function of State, regional, and local agencies * * *''
RCRA section 1002(1)(4).
The rule finalizes unchanged from the proposal those requirements
regarding type of waste received and other requirements necessary to
protect human health and the environment, as well as the annual report
requirement. Today's rule also finalizes the proposed rule with respect
to the permit duration and renewal provisions. The final rule provides
that RD&D permits may be approved for a period up to three years and
may be renewed, with a maximum of three renewals allowed, for a total
potential duration of 12 years. Also, today's action finalizes the
proposal with respect to exclusion of criteria for groundwater
monitoring in subpart E (Sec. Sec. 258.50 through 258.59), closure and
post closure requirements in subpart F (Sec. Sec. 258.60 and 258.61)
except alternative cover provisions in Sec. 258.60, and financial
assurance requirements subpart G (Sec. Sec. 258.70 through 258.75). As
in the proposal, there is no authority for a variance from these
provisions in today's rule.
B. Operating Criteria for Which Variance Is Allowed
Today's final rule differs from the proposed rule with respect to
those operating criteria in subpart C for which a variance through an
RD&D permit is allowed. After further review and in response to
comments, EPA is narrowing the specific sections of part 258, subpart C
for which a variance in an RD&D permit may be approved. Specifically,
the following operating conditions in subpart C are not included in
today's final rule: daily cover material requirements described in
Sec. 258.21, disease vector control as described in Sec. 258.22, air
criteria described in Sec. 258.24, access requirements as described in
Sec. 258.25, surface water requirements described in Sec. 258.27, and
recordkeeping requirements described in Sec. 258.29. This is in
addition to the exclusions in the proposed rule with respect to the
procedures for excluding the receipt of hazardous waste and explosive
gas controls described in Sec. Sec. 258.20 and 258.23 respectively,
which are also excluded from today's rule.
One comment in particular indicated that the proposed rule could be
broadly interpreted to remove ``critical components'' of the criteria
altogether from a permit. EPA does not agree that the proposed rule
would have eliminated the criteria, however in order to address this
concern, the final rule is omitting those criteria for which the
existing rules already provide an alternate means/variance authority
for approved state programs. This clarification also addresses another
commenter's request that the final rule explicitly include the existing
flexibility in part 258 into RD&D permits. EPA sees no reason to
include those provisions in the RD&D permits, since approved states are
already allowed to provide variances from these criteria in standard
MSWLF permits. Therefore, EPA is not including variance authority for
criteria where part 258 already includes authority for an approved
State to allow an alternative means to meeting the criteria. However,
EPA clarifies that the existing variance authority continues to be
available for MSWLF units that may also receive RD&D permits under
today's rule.
[[Page 13246]]
EPA is excluding two other criteria contained in part 258, subpart
C from RD&D permit authority because the existing criteria implement
requirements necessary for meeting statutory requirements. In
considering the comment mentioned above regarding removal of critical
components of the criteria, EPA decided that inclusion of these
criteria, Sec. Sec. 258.24 (air criteria) and 258.27 (surface water
requirements) in today's rule would be confusing and misleading, and
therefore they have been excluded from today's final rule. In addition,
the run-off control variance for Sec. Sec. 258.26(a)(2) and (b) were
also deleted from the final rule. The purpose of the run-off controls
is to prevent contamination of surface waters by the waste. Therefore,
the inclusion of a variance of the run-off control variance as part of
the run-on control variance in the proposed rule was inadvertent and is
not included in today's final rule.
For the criteria included in today's RD&D permit rule, EPA intends
that where the existing criterion prescribes the means of accomplishing
the purpose of the criterion, an approved state would have authority to
allow a different means to be used. For example, EPA proposed allowing
a variance from the liquids restrictions in Sec. 258.28 based on the
understanding that the underlying purpose of the liquid restrictions--
protection of ground water--would continue to be fulfilled. Because the
only bulk liquid that is allowed to be added pursuant to Sec. 258.28
is recirculated leachate/gas condensate, and this is only allowed in
MWSLF units constructed with a composite liner and leachate collection
system prescribed by Sec. 258.40(a)(2), the existing criteria in Sec.
258.28 provide no authority for approved states to allow the addition
of bulk liquids other than recirculated leachate to MSWLF units
constructed with the prescribed design. Nor is there any authority to
allow leachate recirculation (or addition of other bulk liquids) to
MSWLF units constructed with an alternative design approved under Sec.
258.40(a)(1). The proposed rule was intended to provide this authority
for approved states to allow these activities, but only where the MSWLF
owner/operator adequately demonstrates that the alternative design
under conditions of added liquids provides ground water protection--and
in general is as protective of health and the environment--that is at
least as protective as a MSWLF unit designed and operating as currently
prescribed. As in the proposal, today's final rule in Sec. 258.4(b)
includes the provision that any RD&D permit ``must include such terms
and conditions at least as protective as the criteria in this part
(part 258) to assure protection of human health and the environment.''
Both the variances for Sec. Sec. 258.28(a) and 258.26(a)(1) will allow
the addition of water to a landfill. In the case of Sec. 258.26(a)(1),
the addition consists of rainwater running on to the landfill. However,
the operator would still have to prevent rainwater from running off of
the landfill. Therefore, the variance only applies to run-on of
rainwater to the landfill.
The effect of today's rule, therefore, is to provide specific
authority for states with approved programs to issue variances from
part 258, subpart C requirements with respect to those operating
criteria for which variance authority is appropriate, but not already
included in the existing rule. These operating criteria are those for
run-on control systems in Sec. 258.26(a)(1) and the liquids
restrictions in Sec. 258.28(a).
To obtain a variance from either or both of these provisions, the
owner/operator must demonstrate that there is no increased risk to
human health and the environment. As stated in the proposal, the owner/
operator would have to demonstrate ``groundwater protection, landfill
stability, as well as landfill gas collection and control sooner than
is currently required under EPA air regulations,'' 67 FR 39664. Since
today's rule was proposed, EPA published on January 16, 2003 in the
Federal Register, 68 FR 2227, the National Emission Standards for
Hazardous Air Pollutants (NESHAPs) for municipal solid waste landfills.
This rule applies to both major and area sources as explained in the
notice. The rule has separate requirements for bioreactor landfills as
set forth in subpart AAAA of part 63. The NESHAPs rule defines a
bioreactor as: ``Bioreactor means a MSW landfill or portion of a MSW
landfill where any liquid other than leachate (leachate includes
landfill gas condensate) is added in a controlled fashion into the
waste mass (often in combination with recirculating leachate) to reach
a minimum average moisture content of at least 40 percent by weight to
accelerate or enhance the anaerobic (without oxygen) biodegradation of
the waste.'' Any landfill that meets the definition of a bioreactor and
the size requirements as set forth in part 63, subpart AAAA would have
to meet the bioreactor standards at minimum. In addition, a state could
have more stringent requirements with respect to defining or operating
``bioreactors.'' For example a state may designate a maximum moisture
content level that is lower than the 40% by weight level specified in
the definition of ``bioreactor'' in part 63, subpart AAAA.
In response to comments expressing concern with the liquids
addition authority afforded by today's rule, EPA is modifying the
variance authority as proposed with respect to these provisions by
specifying that a variance may be allowed only for MSWLF units designed
and constructed with a leachate collection system that maintains no
more than a 30 centimeter depth of leachate on the liner. EPA has
determined that the requisite demonstration of no increased risk to
human health and the environment cannot be made unless the MSWLF unit
to which the RD&D permit applies is constructed with a leachate
collection system designed to maintain no more than a 30 centimeter
depth of leachate on the liner. The major concern addressed by
Sec. Sec. 258.26 and 258.28(a) is contamination of surface and ground
waters. Therefore, EPA is adding this condition to the variance
authority because the alternative design standard presently in 40 CFR
258.40(a)(1) does not require a leachate collection system. Because
Sec. 258.28(a) does not allow leachate recirculation (or any bulk
liquid addition) in MSWLF units constructed with an alternative liner,
a leachate collection system is not a prerequisite to alternative
design approval. However, since today's rule allows a variance to allow
leachate recirculation and liquids addition to existing MSWLF units
constructed with an alternative liner, EPA is including the requirement
for a leachate collection system in this variance authority.
Under the rule as proposed, leachate and other liquids could
theoretically have been allowed to be added to a MSWLF unit without a
leachate collection system. It is unlikely that any RD&D permit
allowing leachate recirculation or addition of other bulk liquids could
have been issued to a MSWLF unit without a leachate collection system,
because demonstrating the requisite level of protection would require
that a leachate collection system be part of any design that would
qualify for an RD&D permit. In the preamble to the proposed rule, EPA
stated, ``Today's proposed rule would grant State Directors in approved
States the authority to issue permits allowing 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,
[[Page 13247]]
landfill stability, * * *'' 67 FR 39664. Therefore, EPA is clarifying
that an adequately designed leachate collection system is a
prerequisite to an RD&D permit involving the addition of liquids,
including the recirculation of leachate. This issue is also discussed
in the final notice of the MSWLF criteria, 56 FR 50978, 51054-56
(October 9, 1991).
As previously stated, a variance can only be granted where the
MSWLF unit owner/operator demonstrates to the State Director that the
risk of contamination to ground and surface waters will not be greater
than the risk without a variance. Based on groundwater models such as
the HELP model as well as the EPA report, ``Assessment and
Recommendations for Improving the Performance of Waste Containment
Systems,'' EPA/600/R-02/099, December 2002, EPA expects any alternative
design that is demonstrated to qualify for a variance would necessarily
include a leachate collection system that performs at least as well as
the leachate collection system presently required under Sec. 258.28.
Therefore, today's rule requires that any alternative liner permitted
under today's rule must have a leachate collection system where
leachate recirculation and/or the addition of bulk liquid wastes
(including storm water presently controlled by Sec. 258.26(a)(1)),
will be allowed. An adequate leachate collection system is one that is
designed to maintain no more than a 30 centimeter head (pressure) on
the liner. Liquid addition and/or leachate recirculation on an
alternative liner without a leachate collection system above the liner
and/or excessive head on the liner should be considered an unacceptable
risk to groundwater and potentially to surface water. Standards for
ground water protection are set forth in Sec. 258.40. In addition,
risk analysis methods are available for municipal landfills using EPA's
MULTIMED and the HELP models. Additional information is available from
the technical manual: ``Solid Waste Disposal Facility Criteria'' and
technical resource document: ``Assessment and Recommendations for
Improving the Performance of Waste Containment Systems.'' Another
useful resource is the ASCE Seminar: ``Design of Waste Containment
Systems.'' More information on the later item is available at: http://www.asce.org/conted/seminars/geotechnical.cfm.
A major concern with respect to the addition of water to a landfill
is the geotechnical stability of the waste. The addition of liquid can
change both the strength and behavior of the waste. Therefore, an
owner/operator seeking an RD&D permit would be expected to complete a
stability analysis demonstrating the physical stability of the landfill
prior to the issuance of a permit. The owner/operator should be ever
vigilant about any movement of the waste and should include in the
demonstration a description of the methods for determining whether
there is any actual or potential movement of the waste or liquid
seepage from the landfill. The methods for determining geotechnical
stability, as well as the results of monitoring, should be submitted to
the permitting authority at least on annual basis as stated in III, A
above.
C. Design Criteria
EPA is not finalizing the proposed inclusion of RD&D permit
authority to vary from the design criteria in subpart D. EPA received a
lengthy comment opposing additional authority to vary from the design
criteria in Sec. 258.40 (see section V.B. below). After reviewing the
comment and the authority existing in Sec. 258.40, EPA has determined
that the existing design criteria already provide adequate authority
for the director of an approved state to allow an alternative design.
The existing alternative design provision in Sec. 258.40(a)(1)
establishes the minimum criteria for protection of human health and the
environment, specifically Table 1 and paragraph (d) of Sec. 258.40.
Because an RD&D permit is not authorized if the risk to human health
and the environment would be greater than it would be without a
variance, EPA believes that the better course is to maintain the
minimum alternative design requirements in Sec. 258.40(a)(1). The
existing alternative design provision does not prescribe how these
minimum performance criteria are to be met, thus the State Director
already has the authority to approve alternative materials and
structural components as long as they achieve the requisite level of
performance.
EPA recognizes that a primary reason for interest in RD&D permit
authority to vary from the design criteria is to enable MSWLF units
constructed with an alternative liner design to be operated as a
bioreactor. The obstacle in the part 258 criteria to operation of such
a MSWLF unit as a bioreactor is not contained in the design criteria,
Sec. 258.40, however. Rather, it is the liquids restrictions in Sec.
258.28(a) that prohibit the addition of bulk liquids, including
leachate recirculation, in such landfills. EPA has therefore concluded
that the authority for a variance from Sec. 258.28(a) in an RD&D
permit contained in today's rule is the only additional variance
authority needed to allow for this type of innovation and
experimentation. Any other experimentation with liner design,
materials, structure, or other design aspects is already allowed
pursuant to Sec. 258.40(a)(1). Therefore, inclusion of authority to
vary from the design criteria in Sec. 258.40 is not needed.
D. Variance From Final Cover Criteria
EPA proposed a variance from the final cover requirements with
respect to the infiltration and permeability layer, in 40 CFR
258.60(a)(1), (2) and (b)(1). One example of an alternative cover is a
``phytocover.'' Rather than serving as a complete physical barrier,
phytocovers provide a totally different approach to controlling water
infiltration to a landfill by using plants to remove moisture from the
soil cover of the landfill and to control chemical or nutrient seepage
on the surface of the landfill. In some cases, this type of cover may
be used to remove moisture from the landfill if the plant uptake of
moisture exceeds the input of water from precipitation.
Although Sec. 258.60(b) provides authority for an alternative
final cover, EPA has determined that the existing variance authority
may not be sufficient to allow for experimentation with different
approaches to final cover engineering, such as phytocovers. As EPA
indicated in the preamble to the proposed rule, due to varying
climates, topography, and waste handling techniques, there may be other
means of keeping moisture from accumulating in a closed MSWLF unit than
currently allowed (67 FR 39664). Section 258.60(b)(1) allows a variance
from the permeability and infiltration layer specifications in Sec.
258.60(a)(1) and (2), and Sec. 258.60(b)(2) allows a variance from the
erosion layer specifications in Sec. 258.60(a)(3). However, the
existing variance in Sec. 258.60(b)(1) requires an infiltration layer
that will achieve an equivalent reduction in infiltration as that
achieved by the prescribed specifications for both permeability and
infiltration in Sec. 258.60(a)(1) and (2). This may be insufficient
for alternative covers which may allow some moisture through the cap,
but use some other mechanism to remove moisture from the waste.
Therefore, EPA is including variance authority for 40 CFR 258.60(a)(1)
and (2) in addition to that which is afforded in Sec. 258.60(b)(1) in
today's final rule. To demonstrate that a proposed experimental final
cover will be as protective as a final cover meeting the requirements
of Sec. 258.60(a)(1) and (2), the owner/operator of the landfill must
demonstrate that no moisture will
[[Page 13248]]
escape from the landfill to the surrounding surface and groundwater.
The performance of the final cover on a MSWLF unit has long been a
fundamental element of sound solid waste management. EPA addressed its
concerns regarding final cover requirements when first promulgating the
MSWLF criteria in 1991. 56 FR 51094-51106. A major concern regarding
final cover performance is prevention of the ``bathtub effect,'' which
is caused by water passing through the cover and filling up the liner
Therefore, the criteria for final cover design prescribe a minimum
permeability applicable to all MSWLF units, and where the MSWLF unit
has a liner, the criteria require the final cover to be at least no
more permeable than the bottom liner.
The bathtub effect is still the major concern with respect to final
covers. A demonstration for an RD&D permit for a variance from the
final cover criteria must demonstrate that there will not be abuildup
of excess liquid in the waste and on the landfill liner. A landfill
constructed with a leachate collection system provides the best
opportunity for determining the amount of water in the landfill system
and if there is a buildup of excess liquid on the liner. In addition,
the physical stability of the landfill is a concern for an alternative
final cover that can have significant permeability and allows the waste
to pick up some water, even though there is little or no significant
liquid on the liner. This is especially true for landfills that are not
operated as bioreactors. The owner/operator and the State program
Director should consider this possibility when developing an
alternative cover under today's rule. The Director should be confident
water contacting the waste will not compromise the physical stability
of the landfill.
Although there is no measurement specified in today's rule, there
is a requirement for a sufficient reduction in infiltration so that
there will be no leakage of leachate from the landfill. In many cases,
infiltration can be measured, in particular if the landfill has a
leachate collection system. For landfills without a leachate collection
system, or if measurement is otherwise not an option, alternative means
of making a determination must be used. This does not necessarily
require modeling, although modeling may be an appropriate means of
demonstrating equivalence. Where models do not adequately account for
the properties of a proposed alternative cover, the demonstration may
be based on reasonable scientific facts and principles. In the case of
phytocovers, for example, the demonstration could include the
evapotranspiration rate of the cover, i.e., the extent to which the
cover would be capable of preventing water from reaching the waste or
landfill liner. Therefore, the permitting authority could consider the
infiltration rate of water to and through the waste over time as
opposed to the degree of permeability of the cap alone. EPA intends
that today's rule will provide adequate authority for the Director of
an approved State program to approve the means for showing an
appropriate reduction in the infiltration of water as part of the RD&D
permit approval process.
Today's rule does not include a variance for the erosion layer
requirements in Sec. 250.60(a)(3) and (b)(2). Because Sec.
258.60(b)(2) already provides authority for an alternative cover design
that ``provides equivalent protection from wind and water erosion as
the erosion layer specified in paragraph (a)(3),'' there is no need for
any additional variance authority with respect to erosion control.
When allowing use of an alternative final cover, the State Director
should consider if some type of financial assurance may be needed to
replace an alternative cover with another cover as presently specified
in Sec. 258.60(a) and (b) in the event the alternative cover allowed
by today's rule should fail. The State Director could include this
financial assurance with respect to a replacement of the final cover as
part of thesubpart G requirements for the Financial Assurance Criteria.
Some commenters urged EPA to expand the variance authority in the
RD&D permit rule to allow variance from post-closure care requirements,
as well as from the final cover requirements. EPA does not agree that
additional flexibility is needed for the post closure care requirements
in 40 CFR 258.61. There are already opportunities in Sec. 258.61 for
the Director of an approved State program to modify post-closure
requirements on a case-by-case basis. Therefore, today's rule only
allows a variance for Sec. 258.60(a) and (b), because our review shows
that the existing alternative final cover provision in Sec. 258.60(b)
is not sufficiently flexible to allow for a foreseeable range of
alternative final cover developments.
V. Major Issues Raised in Comments and Responses
A. Legal Basis for the Rule
The coalition of environmental groups claims that EPA does not have
authority to allow a State with an approved program to issue RD&D
permits because this constitutes an unlawful delegation of authority to
set standards. They interpret the authority to grant variances from
certain criteria through the RD&D permit process as the authority to
set standards. The commenter bases this interpretation on four factors:
(1) No EPA oversight to ensure that only truly innovative technologies
are permitted; (2) no definition of ``innovative'' in the rule; (3) no
means of determining whether the technology for which a variance is
sought provides at least ``equivalent'' environmental and human health
protection; and (4) the possibility of the RD&D permit lasting up to 12
years. Finally, they argue that the RD&D permit authority violates RCRA
and the National Environmental Policy Act.
EPA disagrees with the premise of the comment that the rule
effectively delegates authority to set national standards for municipal
solid waste landfills to those states with approved programs. Section
4004(a) of RCRA directs EPA to ``promulgate regulations containing
criteria for determining which facilities shall be classified as
sanitary landfills and which shall be classified as open dumps. . . .
At a minimum, such criteria shall provide that a facility may be
classified as a sanitary landfill and not an open dump only if there is
no reasonable probability of adverse effects on health or the
environment from disposal of solid waste at such facility.'' Today's
rule, in Sec. 258.4(b) explicitly requires that any RD& D permit
``include such terms and conditions at least as protective as the
criteria for municipal solid waste landfills to assure protection of
human health and the environment.'' EPA clarifies that this requirement
that RD&D permit terms and conditions be at least as protective as the
existing part 258 criteria is a requirement that any variance under
today's rule be equivalent to the existing criteria in protecting human
health and the environment.
EPA agrees with the commenters, however, that the proposed rule was
drafted more broadly than necessary to provide the flexibility
intended. Therefore, to clarify the scope of the rule, EPA has omitted
those parts of the part 258 criteria that already allow for different
means to achieve the existing standards, and has added specific
requirements for making the requisite demonstration that the permitted
variance be as protective as the existing requirements in part 258.
As the comment notes, the variances allowed in an RD&D permit will
allow more moisture to enter a landfill, through run-on of storm water
and
[[Page 13249]]
addition of other liquids. Under today's rule, any MSWLF unit must be
designed to meet the ground water protection criteria in Sec. 258.40,
and must be constructed with a leachate collection system meeting the
same performance standard contained in the design criteria (Sec.
258.40(a)(2)). Moreover, all ground water monitoring and corrective
action requirements continue to apply. Therefore, EPA has not changed
the ultimate regulatory standard, or allowed states to change the
ultimate regulatory standard, that applies to MSWLF units. See Section
V.H. below for further discussion of ``equivalence.''
EPA does not agree that federal oversight of RD&D permits is
required or authorized by RCRA. Unlike Subtitle C of RCRA, Subtitle D
does not provide authority for a federal permitting program. On the
contrary, section 4005(c) requires each State to adopt and implement a
permit program to ensure that MSWLF units comply with the federal
criteria. Oversight of MSWLF operations is within state, not federal,
purview. Today's rule is consistent with existing criteria in part 258
which provides directors of approved state programs to allow
alternative means of meeting the criteria to be included in a MSWLF
permit (e.g., 40 CFR 258.21(b), 258.40(a)(1)).
Nor does EPA believe that it is necessary to define ``innovative.''
As more fully discussed in the Response to Comments Document, today's
rule is modeled on 40 CFR 270.65, a research, development and
demonstration permit rule for innovative and experimental hazardous
waste treatment authorized by RCRA section 3005(g). Congress did not
define ``innovative and experimental'' in the statute, nor did EPA
define those terms in Sec. 270.65. However, in the preamble to that
rule, EPA explained that ``innovative and experimental'' covers a broad
range from technologies or processes that have only been tested in a
laboratory setting to those that have already had some commercial
application. 50 FR 27802, 27828 (July 15, 1985). For purposes of
today's rule, EPA also intends ``innovative and new'' to be read
broadly, to cover technologies and operational methods that are not
currently permitted under 40 CFR part 258, ranging from those ``on
paper'' or tested only in the laboratory to those which may have
already had some limited application, e.g. through Project XL.
EPA also does not agree that the 12 year maximum duration of
operation under an RD&D permit indicates that the intent of the rule is
allow circumvention of the criteria or delegation of standard setting
authority. See Section V.D. below and the Response to Comments
Document.
EPA also notes that, in addition to section 4004(a) of RCRA,
today's rule is supported by RCRA section 8001(a). This provision
authorizes EPA to encourage state and local public authorities and
agencies, as well as private agencies and individuals, to conduct
research, investigations, experiments, training, demonstrations, and
studies relating to the development and application of new and improved
methods for collecting and disposing of solid waste, as well as
improvements with respect to landfills. Today's rule enables States
with approved MSWLF permit programs to expand their programs to include
permits for particular research, demonstrations, and development of new
methods to managing solid waste disposal in MSWLF units, including
``means for reducing harmful environmental effects of earlier and
existing landfills,'' and ``means for rendering landfill safe for
purposes of construction and other uses, and techniques for recovering
materials and energy from landfills. RCRA section 8001(a)(10).
Finally, the comment raises the National Environmental Policy Act
(NEPA), claiming that today's rule is an ``end run'' around NEPA
because the rule constitutes a repeal of ``its current bioreactor
prohibition'' and requires EPA to consider ``less environmentally risky
alternatives to bioreactors.'' Again, EPA does not accept the premise
that today's rule is a rule to authorize bioreactor operation on a
national level. The final rule does not change the criteria on a
national level; rather today's rule allows approved states to have
greater flexibility in implementing specified criteria for research,
demonstration and development purposes. Alternatives to today's rule
would be alternative means of allowing research, development and
demonstration of MSWLF operation and final cover. As the commenter has
pointed out, there are already alternative means for conducting
research: Project XL and CRADAs. Today's rule provides one additional
means of demonstrating new techniques and materials. The means adopted
in this rule, a limited purpose and limited duration permit, provides
for public participation in each permit determination, and requires the
Director of the approved state program to make a determination that the
RD&D permit will not increase the probability of adverse effects to
health or the environment over the existing criteria. See the Response
to Comment document for further discussion of rulemaking under RCRA and
NEPA requirements.
B. Variance From Design Criteria
One commenter stated that Sec. 258.40(e) already provides
authority for an alternative design, while ensuring EPA oversight of
alternative design approval by the State. As described above, EPA
agrees that additional authority for a variance from the design
criteria in Sec. 258.40 is not needed, and the final rule does not
include such authority. However, Sec. 258.40(e) does not provide the
basis for this conclusion.
Section 258.40(e) was specifically promulgated to allow alternative
liners in states prior to promulgation of rules for approving state
solid waste landfill permit programs. In contrast, Sec. 258.40(a)(1)
allows the State Director in a state with an approved program to
authorize an alternative liner that meets the minimum ground water
protection standards referenced in Sec. 258.40(a)(1), but does not
give the same authority to states without an approved program. The
process set forth in Sec. 258.40(e) allowed MSWLF owners/operators to
construct alternative liners during the period when no EPA regulations
for state program approval were in place. EPA promulgated state program
approval regulations on October 23, 1998, now codified at 40 CFR part
239, implementing RCRA section 4005(c)(1)(B). Section 258.40(e)
provided for EPA oversight because without state program approval,
states could not approve a design as meeting the federal performance
criteria. Once part 239 was promulgated, approved states were able to
issue permits for landfills with alternative liners without the use of
Sec. 258.40(e), and EPA oversight or approval was no longer necessary.
Thus MSWLF owners/operators in approved states seeking construction of
an alternative liner no longer need the procedures set forth in Sec.
258.40(e).
Since the authority in today's rule only applies in approved
states, and approved states already have authority in Sec.
258.40(a)(1) to allow alternative designs, there is no need to include
authority for a variance from the design criteria in today's rule. As
noted above, EPA does not exercise or claim oversight authority with
respect to state approvals of alternative designs under 40 CFR
258.40(a)(1).
C. Methods for Fostering Innovation
One commenter claims that EPA has sufficient processes for
fostering innovation without providing additional variance authority
through RD&D
[[Page 13250]]
permits and referenced two other modes for fostering innovation. The
first was the Cooperative Research and Development Agreements (CRADAs)
and the second is Project XL.
EPA agrees that research by entering into CRADAs can provide useful
and high quality information. EPA is currently working with Waste
Management, Inc. under a CRADA on a five-year project concerning
bioreactor operation at the Outer Loop Facility in Louisville, KY.\2\
The major purpose of this CRADA is to receive technical EPA assistance
in project development and monitoring techniques for the site. However,
CRADA authority does not allow any variance from the existing landfill
regulations. These limitations in scope, size, and project cost are
reasons for the limited number of CRADAs. Therefore, the existing
experiment is limited in the parameters that can be explored under
existing criteria. Indeed, the existing CRADA at the Outer Loop
facility illustrates why CRADAs do not provide the same opportunities
for innovation. Today's rule will not effect the Outer Loop research
under the CRADA. However, even without a CRADA for research at the
Outer Loop facility, the State of Kentucky will be authorized to issue
a state permit in the future to allow Waste Management to expand its
research at this facility within the parameters of the RD&D permit
authority.
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\2\ The CRADA and the Quality Assurance Project Plan (QAPP) for
the site are available on request from the Office of Research and
Development.
---------------------------------------------------------------------------
The other avenue for innovation mentioned by the commenter was
Project XL. EPA has processed four projects under Project XL involving
MSWLFs, all of which involve some use of bioreactor technology or
leachate recirculation. Each of these projects required a site-specific
rule making at the federal level, as well as permit modifications on
the state level. With today's rule, the federal site-specific
rulemaking will not be needed to allow such projects to be permitted.
However, similar demonstrations of expected performance and results
will be needed in the permitting process, and public participation will
take place in the permitting process as well. Therefore, while Project
XL has proven useful for these and other innovative projects, EPA does
not believe that the types of variances allowed under today's rule are
such that a federal rulemaking should be required for each such
project. EPA believes that the permit process provides the necessary
scrutiny and public participation for variances included in RD&D
permits. EPA Regional and Headquarters expertise is available to assist
states in developing permits for the appropriate facilities.
Both CRADA authority and Project XL remain available for research
and innovation. Because today's rule allows for particular variances,
innovation with other aspects of MSWLF construction or operation may
continue to be available only through a site-specific rulemaking for
example, under Project XL. Today's rule provides an additional avenue
for particular variances from prescribed means of meeting federal
criteria for MSWLF units.
D. Duration of RD&D Permits
Several commenters argue that the proposed duration of up to 12
years, including permit renewals is too long and provides much more
time than is necessary for testing innovative materials or practices.
On the other hand, others believe that the maximum permit duration is
too short, some of whom think there should be no maximum time limit on
the permit, arguing that the State Director should make the final
determination with respect to permit duration.
EPA does not agree with the view that a 12 year maximum duration is
too long. Because there is a need to renew the permit every three
years, EPA does not expect every RD&D permit to extend for the maximum
number of years. However, some RD&D projects may be active for longer
periods of time. While MSWLF units typically receive waste over
relatively short time frames such as 5 to 7 years, the reaction or
stabilization process may continue over a longer period of time. It may
be reasonable, or even necessary, for an RD&D permit to encompass
active operation, closure and post-closure in order for the permittee
to assess a cover material, equipment performance, leachate quantity
and quality, or other parameters for which a variance under today's
rule has been granted in the permit. Extending the permit over a longer
period also allows for collection of data that is required under an
RD&D permit, but not required under the federal criteria for a standard
MSWLF permit.
EPA also does not agree that the 12 year maximum is too short or
that there should be no maximum period at all. EPA always intended
these permits to be temporary, discrete permits from which data could
be used for future rulemaking(s). Therefore, the purpose of RD&D permit
authority is to allow innovation and experimentation under close state
oversight for a limited period. It is not intended to allow permanent
operation of a MSWLF using means outside the scope of the existing
criteria.
If an experiment is successful and the state or EPA wishes a
project to continue operation under the terms of the RD&D permit beyond
the 12-year time frame, an amendment to 40 CFR part 258 would be
needed. EPA anticipates that during the period of the final 3 year
permit term, either the facility would seek a site-specific rule or EPA
would consider a general rulemaking to incorporate the experimental
aspects of the project into the part 258 criteria. At that time, the
project would be evaluated by EPA, and if EPA agreed, the appropriate
regulatory change, either on a site-specific or general basis, would be
proposed. The subsequent EPA evaluation and rulemaking process, which
will be similar to the Project XL rulemaking process, is expected to
take another one to two years. EPA believes it has struck a balance
here between the need to support and encourage innovation and the
prescriptiveness of the federal criteria. Therefore, we believe that
the total 12 year permitted time frame is reasonable and appropriate.
E. Bioreactor Landfills
One commenter opposes the rule ``as a matter of policy'' because
the means chosen--permit variances--are contrary to the goal of
developing data that may be used to revise the existing federal MSWLF
criteria, which should involve standardized research protocols. The
example cited by the commenter is that EPA stated in the proposal that
it expects the rule to foster experimentation with bioreactor
technology and operation. The commenter believes that there are too
many engineering problems with bioreactor landfills for state
permitting authorities to be able to adequately address them in their
permits.
EPA does not agree that the data generated from RD&D projects will
be unusable because the research will not be carried out using
standardized protocols. Today's rule, like many of the requirements in
the existing MSWLF criteria, is based on unit-specific and site-
specific flexibility for meeting the underlying standards established
in the part 258 criteria. The existing MSWLF criteria and today's rule
recognize that differences in climate, terrain, and a range of other
factors are appropriate factors to address in the terms and conditions
of individual permits.
Moreover, the information gathered as a result of RD&D permits is
expected to be useful in a similar manner as information gathered from
the Project
[[Page 13251]]
XL bioreactor projects. Such information includes the quality and
quantity of leachate, quality of waste, quality and quantity of gas
generation, measurement of subsidence by using standard engineering/
scientific approaches or approved EPA methods. When reviewing any data
for use in future rulemaking efforts, whether from Project XL, RD&D
permits, or other sources, standard Agency QA/QC protocols will be used
and all information will be subject to public comment and review.
As noted above, the commenter expressed greatest concern with the
application of today's rule to expand construction and/or operation of
MSWLF units as ``bioreactors,'' i.e., landfills where controlled
addition of non-hazardous liquid wastes or water\3\ accelerate the
decomposition of waste and landfill gas generation. The deposition of
liquid non-hazardous waste should be compatible and suitable with the
operation of the landfill, i.e, the waste will not inhibit the
biodegradation process or cause operational problems for the landfill,
including risks to human health or the environment. EPA recognizes that
RD&D permit authority will likely be used to allow leachate
recirculation in existing MSWLF units constructed with alternative
liners approved pursuant to Sec. 258.40(a)(1). In fact, EPA believes
this is an important area for research and views this as one of the
principal benefits of this rule. Under the existing criteria in Sec.
258.28, leachate recirculation is allowed only in MSWLF units
constructed with a composite liner and leachate collection system in
accordance with the design criteria in Sec. 258.40(a)(2) and (b).
Similarly, EPA recognizes that liquid wastes in addition to
recirculated leachate may be allowed under an RD&D permit. As EPA noted
in the proposal, new technologies for landfill operations and design
have emerged since the MSWLF criteria were promulgated in 1991, which
can enable safe bioreactor operation (i.e., the four bioreactor
landfills allowed by Project XL). EPA agrees with the commenter that
there are major engineering challenges presented by substantially
increasing the liquid component of the waste. However, as the commenter
points out, recent research, lessons learned from failures, and
experimentation through Project XL and the Outer Loop CRADA have
provided valuable information and models for appropriate design,
operation, and monitoring.
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\3\ In many or most cases, water is used in lieu of any liquid
wastes. In most cases, the water is groundwater or river water and
may even be tap water.
---------------------------------------------------------------------------
Each of the MSWLF leachate recirculation or bioreactor operations
studied so far have been required to have leachate collection systems
that maintain no more than 30 centimeters (cm) depth of leachate on the
liner per section 258.40(a)(2). In light of the commenter's concerns
about bioreactor operations in particular, EPA has determined that no
variance from the requirement that a leachate collection system
maintaining no more than 30 cm depth of leachate on the liner should be
allowed. Where leachate is being recirculated and/or bulk liquids are
added to the landfill to promote decomposition, EPA has required (in
the existing criteria, Sec. 258.28 and Sec. 258.40) and is requiring
in today's rule that the system maintain a maximum leachate head of 30
cm in order to assure that there is no excessive pressure on the
landfill liner in order to prevent leakage of leachate into the
groundwater. The 30 cm. head on the liner standard was originally
proposed in the Federal Register for the MSWLF criteria on August 30,
1988 and is the same standard as used for leachate collection systems
at subtitle C hazardous waste landfills (53 FR 33341 and 33396).
In addition, EPA believes that the owner/operator should be ever
vigilant about any movement of the waste and he/she should include the
methods of determining whether there is any or potential movement of
the waste or liquid seepage from the landfill. The methods for
determining geotechnical stability, as well as the results of
monitoring should be submitted to the permitting authority at least on
an annual basis as stated in III, A above.
F. Variances for Groundwater Monitoring
Most commenters on this issue agreed that groundwater monitoring
requirements should not be allowed to be varied under today's rule.
However, two commenters recommend allowing variances from groundwater
monitoring requirements. One commenter stated that the basic need to
conduct groundwater monitoring should be maintained, but that it should
not be ``EPA's intent to forestall RD&D on new techniques for
groundwater monitoring.''
EPA does not agree that variance from the groundwater monitoring
criteria is needed to allow for research, development and demonstration
of new techniques for groundwater monitoring. The existing criteria
already provide for site-specific factors to be taken into account and
provide a number of opportunities for approved states to make
alternative determinations (e.g., Sec. Sec. 258.51(a)(2), (b);
258.54(a)(1), (2)). Moreover, the existing criteria (Sec. Sec. 258.52,
258.53) allow the owner/operator of an MSWLF unit flexibility in
establishing a sufficient and appropriate groundwater monitoring system
and a groundwater sampling and analysis program. Neither commenter
identified any RD&D type activities that would be hampered by the
existing groundwater monitoring criteria. Therefore, no variance from
groundwater monitoring requirements is allowed under today's rule.
G. Termination of a Project for Cause
One commenter stated that the proposed language of Sec. 258.4 (c)
regarding project termination at ``all operations at the facility'' is
excessive and may even be unnecessary. The commenter expects that a
State Director's authority to terminate operations at a facility would
already be established under State law, and would not depend on this
provision. In this provision, EPA should concern itself only with those
operations that are subject to the RD&D permit. If any projects were
ever terminated for cause, it is inappropriate for EPA to suggest that
it is necessary for the entire facility to cease operations. Instead,
EPA should simply state that any RD&D permit issued pursuant to this
authority shall contain the criteria and process for project
termination.
EPA understands the commenter's concern with this requirement. EPA
agrees that the State Director needs reasonable latitude for assuring
protection of human health and environment. Therefore, EPA has decided
to modify the language of this requirement to allow the State Director
to order alternative corrective action procedures to protect human
health and the environment as an option to termination of operations
allowed under today's rule. In addition, today's rule does not apply to
other operations on the site that may be operating under separate
permits. The state permitting authority may include the criteria and
process for project termination in the permit.
H. Burden of Proof for Variance Determinations for RD&D Permits
One commenter was concerned that the need to demonstrate that RD&D
proposals are ``at least as protective'' as existing requirements is
too high a burden for the owner/operator to meet. The commenter was
concerned that states may establish prohibitively high standards for
demonstrating
[[Page 13252]]
technologies for those applying for an RD&D permit.
EPA believes at an ``equivalent or better'' standard is the correct
standard. EPA has promulgated objective criteria under the statute,
many of which include authority for approved states to allow
``alternative'' means of meeting the criteria which are ``equivalent.''
EPA expects today's rule to be implemented in a comparable way to
the existing authority for variances in part 258, and therefore does
not expect the equivalence determination to be burdensome. Similarly,
this type of determination has been made by states and EPA for the
Project XL MSWLF projects for which site-specific rules already have
been promulgated by the EPA. The XL projects can serve as examples for
states with approved programs evaluating whether a proposal for an RD&D
permit will be equivalent to the existing criteria with respect to
environmental protection. In addition, in today's rule, EPA has limited
the criteria for which variances are allowed as well as provided more
specific information on making an equivalency determination. EPA will
be available to work with states in resolving any issues in this area.
I. Implementation of Today's Rule
One commenter was concerned that the proposed rule change would not
be self-implementing. Therefore, states could only issue RD&D permits
only after EPA approval of new state rules. The commenter was concerned
that states would take up to five years to adopt today's final rule
since some states took this long for the original approval of the MSWLF
criteria.
As explained in the proposal, today's rule is not self-
implementing, that is, a MSWLF owner/operator will only have the
opportunity to apply for an RD&D permit in a state with an approved
state program containing RD&D permit provisions. Today's rule allows
states with approved programs to adopt RD&D permit provisions, and any
state without an approved program would be able to include RD&D permit
provisions in a program it submits to EPA for a determination of
adequacy under 40 CFR part 239.
EPA does not expect state program modifications that would
incorporate RD&D permit provisions to be nearly as extensive as the
original process for approval of the state's solid waste permit
program. The initial submissions were complicated by the fact that EPA
did not have rules for state permit program adequacy determinations in
1991, when the MSWLF criteria went into effect. Those rules, 40 CFR
part 239, were promulgated by EPA in 1998.
EPA is aware that some state permitting authorities are interested
in implementing the new rules as soon as possible. EPA is now working
with some of these states in order to assure their submissions for
approval are complete in order to minimize the time it will take for
these state program modifications to be approved. EPA believes that a
state submittal and EPA review could take as little as six months for
approval. However, EPA acknowledges that the process could take
significantly longer, if for example, a State delays making an adequate
submission.
J. The Addition of Water to Arid Landfills
One commenter stated that bioreactor-type operations should not be
allowed at small landfills for which design requirements, ground water
monitoring, and corrective action are not required pursuant to Sec.
258.1(f)(1), since adding liquid would violate the model on which the
exemption is based.
EPA agrees that, because these landfills either have no liner or an
inadequate liner to prevent the migration of any excess water in the
landfill, no variance from operating procedures designed to control
liquids should be allowed for those MSWLF units. Therefore, a paragraph
has been incorporated into the final rule excluding any MSWLF unit that
is exempt from subparts D and E of part 258. These MSWLF units will not
be eligible for RD&D permits for variances from the run-on criteria in
Sec. 258.26(a)(1) or the liquids restrictions in Sec. 258.28(a) This
includes small and remote landfills operating under Sec. 258.1(f)(1)
of the criteria.
EPA also notes that small landfills, including those that qualify
for the exemptions under Sec. 258.1(f), already have the opportunity
for alternative final cover requirements with respect to the
infiltration layer requirements in Sec. 258.60(b)(1). Under Sec.
258.60(b)(3), the Director of any approved State may allow for
alternative infiltration layer requirements for small MSWLF units,
after public review and comment. Since small MSWLF units already have
the flexibility afforded by today's rule with respect to final cover,
EPA has determined that today's variance authority with respect to
final cover requirements will not apply to small MSWLF units.
K. Potential Increased Emissions of Landfill Gas
One commenter was concerned that larger quantities of landfill gas
will be generated from MSWLF units that are operated as bioreactors.
The commenter stated that additional gas collection and monitoring
requirements should be required by rule.
With the exception of explosive gas control requirements, landfill
gas controls are not regulated pursuant to Subtitle D of RCRA: rather
landfill gas emissions are regulated under the Clean Air Act (CAA). The
air criteria in 40 CFR 258.24 refer to CAA requirements by requiring
compliance with the applicable State Implementation Plan provisions
under section 110 of the CAA. Specific requirements pertaining to
landfill gas emissions from MSWLF units are addressed in 40 CFR part
60, subparts Cc and WWW. Recently,EPA promulgated National Emission
Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills
(68 FR 2227, Jan. 16, 2003). This rule includes requirements for
initiating landfill gas collection and control in bioreactor landfills.
See 40 CFR part 63, subpart AAAA. State air permitting authorities
should assure that air emissions from MSWLF units operating under a
RD&D permit meet Federal Clean Air Act Regulations as specified in the
state air permit or FESOP (Federally Enforceable State Operating
Permit). Since these provisions apply to all MSWLF units, including
those operating under RD&D permits, and consistent with section 1006(b)
of RCRA, EPA sees no need for additional requirements under RCRA to
address air emissions in today's rule.
L. Rule Authorizing Future Projects Based on the Success of a
Technology
Several state commenters suggested that successful waste management
methods and techniques that prove successful in an RD&D project be
allowed to be incorporated into the state's rules without waiting for
EPA to amend the federal criteria. A similar comment was made regarding
allowing such methods and techniques to be incorporated into the rules
of other states based on successful RD&D projects. EPA does not agree
that one successful RD&D project should necessarily be the basis for a
rule change in the state issuing the permit or other states.
Pursuant to section 4005(c) of RCRA, EPA regulations governing
state permit program approval require the state program to have the
authority to impose requirements ``adequate to ensure compliance with
40 CFR part 258.'' 40
[[Page 13253]]
CFR 239.6(e). Part 258 does not allow variances from Sec. Sec.
258.26(a)(1), 258.28(a) and 258.60(a)(1), (2) and (b)(1), except in
accordance with today's rule, and therefore, EPA would not approve a
state program modification incorporating authority to deviate from the
requirements of these criteria in standard MSWLF permits. Unless and
until EPA promulgates a rule incorporating any such changes into the
federal criteria, after seeking comment, states would not be able to
allow a new technology or method to be included in a MSWLF permit
outside of the RD&D rule parameters.
VI. State and Tribal Implementation of Today's Rule
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, 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, 50 States and territories had received approval of
their programs and are implementing the MSWLF criteria.
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 final rule to allow RD&D permits is not self implementing.
MSWLF owners/operators will only be able to obtain an RD&D permit in
approved States that adopt authority to issue such permits. Because
today's rule provides more flexibility than existing federal criteria,
states are not required to amend permit programs which have been
determined to be adequate under 40 CFR part 239. States have the option
to amend statutory or regulatory provisions pursuant to today's 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
is 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 rule into its solid waste program will have no
effect on the status of its existing program with respect to EPA
approval, i.e., a State's submission of revisions to issue RD&D permits
does not open a previously approved solid waste program for Federal
review.
Tribes are also eligible for RD&D permits under today's 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.''
VII. How Does This Rule Comply With Applicable Statutes and Executive
Orders?
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735), the Agency must
determine whether this regulatory action is ``significant'' and
therefore subject to formal review by the Office of Management and
Budget (OMB) and to the requirements of the Executive Order, which
include assessing the costs and benefits anticipated as a result of the
proposed regulatory action. The Order defines ``significant regulatory
action'' as one that is likely to result in a rule 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 the
rights and obligations of 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 the Executive Order.
Today's rule allows, but does not require, States to provide RD&D
permits to individual MSWLFs. This rule will not require any MSWLF to
apply for such a permit, but would provide an opportunity to those
owners/operators of MSWLF units seeking to try innovative or new
technology or processes with respect to landfilling municipal solid
waste.
It has been determined that today's rule is not a significant
regulatory action under Executive Order 12866 and is therefore not
subject to OMB review. Today's 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 not known how many RD&D permits will be authorized nor
what kinds of permit changes or innovations might be undertaken.
B. Paperwork Reduction Act
The information collection requirements in this 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 Sandy Farmer by mail
at Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at
[email protected], or by calling (202) 260-2740. A copy can
also be downloaded off the Internet at
http://www.epa.gov/icr when it is available. The information
requirements are not enforceable until OMB approves them.
The ICRs affected by this rule are for 40 CFR part 239,
Requirements for State Permit Program Determination of Adequacy and
part 258, MSWLF Criteria. OMB has reviewed the ICR for part 239
(ICR 1608.03, OMB 2050-152). 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 will
request comments under the ICR review process 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 rule. In addition, EPA will also be
requesting information from MSWLF owners/operators on the reporting
burden that they would incur due to this rule under the part 258,
[[Page 13254]]
MSWLF criteria ICR (ICR 1381.06, OMB 2050-0122) when
that review process begins. This process is scheduled to be completed
in October 2003. Information which States are expected to require
include a demonstration as part of the permit application, 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 rate determinations;
etc. At present, EPA estimates that only two to three landfills a year
will be permitted under this 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.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et. seq., 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 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.
After considering the economic impacts of today's final rule on
small entities, I hereby certify that this rule will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities'' (5 U.S.C.
Sections 603 and 604). Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on small entities subject to the rule. This
rule will create no additional burden for small entities since small
entities are not required to apply for a permit under today's rule in
order to operate a landfill under part 258, unless they utilize a
different technology then is allowed under existing rules. Therefore,
getting a permit under today's rule is optional on the part of the
landfill owner/operator.
D. 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 rule imposes no additional enforceable burden
on any State, local or tribal governments or the private sector. Thus,
today's rule is not subject to the requirements of sections 202, 203,
and 205 of UMRA.
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 final 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, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Implementation of this rule by a
State is at the State's discretion and is not 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 rule. Thus, Executive Order 13132 does not apply to this 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 requested and received comments on the proposed rule
from State and local
[[Page 13255]]
officials. These comments have been addressed in the preamble and the
Response to Comments document.
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 regulation.
EPA has concluded that this rule will have no new tribal
implications. It would not present any additional burden on the tribes,
but will allow more flexibility for compliance with the MSWLF criteria.
It will neither impose substantial direct compliance costs on tribal
governments, nor preempt tribal 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 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. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This rule reduces
regulatory burden. It thus should not adversely affect energy supply,
distribution or use.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 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, 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 rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 21, 2004.
List of Subjects in 40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Municipal Landfills, Waste treatment and disposal.
Dated: March 15, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set forth in the preamble, EPA is amending 40 CFR part
258 as follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
0
1. The authority citation for part 258 is revised 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 A--[Amended]
0
2. Add Sec. 258.4 to subpart A to read as follows:
Sec. 258.4 Research, development, and demonstration permits.
(a) Except as provided in paragraph (f) of this section, the
Director of an approved State may issue a research, development, and
demonstration permit for a new MSWLF unit, existing MSWLF unit, or
lateral expansion, for which the owner or operator proposes to utilize
innovative and new methods which vary from either or both of the
following criteria provided that the MSWLF unit has a leachate
collection system designed and constructed to maintain less than a 30-
cm depth of leachate on the liner:
(1) The run-on control systems in Sec. 258.26(a)(1); and
(2) The liquids restrictions in Sec. 258.28(a).
(b) The Director of an approved State may issue a research,
development, and demonstration permit for a new MSWLF unit, existing
MSWLF unit, or lateral expansion, for which the owner or operator
proposes to utilize innovative and new methods which vary from the
final cover criteria of Sec. 258.60(a)(1), (a)(2) and (b)(1), provided
the MSWLF unit owner/operator demonstrates that the infiltration of
liquid through the alternative cover system will not cause
contamination of groundwater or
[[Page 13256]]
surface water, or cause leachate depth on the liner to exceed 30-cm.
(c) Any permit issued under this section must include such terms
and conditions at least as protective as the criteria for municipal
solid waste landfills 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 (e) of this section;
(2) Provide that the MSWLF unit must receive 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 such requirements as necessary for
testing and providing information to the State Director with respect to
the operation of the facility;
(4) Require the owner or operator of a MSWLF unit 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 results, as well as any other operating information specified
by the State Director in the permit; and
(5) Require compliance with all criteria in this part, except as
permitted under this section.
(d) The Director of an approved State may order an immediate
termination of all operations at the facility allowed under this
section or other corrective measures at any time the State Director
determines that the overall goals of the project are not being
attained, including protection of human health or the environment.
(e) Any permit issued under this section shall not exceed three
years and each renewal of a permit may not exceed three years.
(1) The total term for a permit for a project including renewals
may not exceed twelve years; and
(2) During permit renewal, the applicant 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 other any other requirements that the Director
determines necessary for permit renewal.
(f) Small MSWLF units. (1) An owner or operator of a MSWLF unit
operating under an exemption set forth in Sec. 258.1(f)(1) is not
eligible for any variance from Sec. Sec. 258.26(a)(1) and 258.28(a) of
the operating criteria in subpart C of this part.
(2) An owner or operator of a MSWLF unit that disposes of 20 tons
of municipal solid waste per day or less, based on an annual average,
is not eligible for a variance from Sec. 258.60 (b)(1),except in
accordance with Sec. 258.60(b)(3).
[FR Doc. 04-6310 Filed 3-19-04; 8:45 am]
BILLING CODE 6560-50-P