[Federal Register Volume 75, Number 159 (Wednesday, August 18, 2010)]
[Rules and Regulations]
[Pages 50930-50932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20184]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[EPA-R08-RCRA-2009-0621; FRL-9149-7]
Final Determination To Approve Alternative Final Cover Request
for the Lake County, Montana Landfill
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency Region VIII is making a
final determination to approve an alternative final cover for the Lake
County landfill, a municipal solid waste landfill (MSWLF) owned and
operated by Lake County, Montana on the Confederated Salish and
Kootenai Tribes' Flathead Reservation in Montana. EPA is promulgating a
site-specific rule proposed on February 10, 2010, that approves an
alternative final cover for the Lake County, Montana landfill.
DATES: This final rule is effective on August 18, 2010. The
incorporation by reference of certain publications listed in this rule
has been approved by the Director of the Federal Register on August 18,
2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-RCRA-2009-0621. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information may not be publicly available, e.g., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically at
http://www.regulations.gov or in hard copy at the Environmental
Protection Agency Region VIII, Montana Office, 10 West 15th Street,
Suite 3200, Helena, Montana. The Environmental Protection Agency Region
VIII Montana Office is open from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays, and is located in a secure building.
To review docket materials at this location, it is recommended that the
public make an appointment by calling (406) 457-5000 during normal
business hours.
FOR FURTHER INFORMATION CONTACT: Susanna Trujillo, Solid and Hazardous
Waste Program, 8P-HW, Environmental Protection Agency, 1595 Wynkoop
St., Denver, CO 80202; telephone number: (303) 312-7008; fax number:
(303) 312-6341; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. What did EPA propose?
After completing a review of Lake County's final site-specific
flexibility application request, dated July 11, 2007, and March 17,
2008, and the amendments to that application, dated January 22, 2009,
EPA proposed to approve in the Federal Register on February 10, 2010,
(75 FR 6597) Lake County's site-specific flexibility request to install
an alternative final cover that varies from the final closure
requirements of 40 Code of Federal Regulations (CFR) 258.60(a), but
meets the criteria at 40 CFR 258.60(b). This approval would apply to
the 15.4 acres of the landfill that have not been previously closed.
B. What is a site-specific flexibility request?
Under Sections 1008, 2002, 4004, and 4010 of the Resource
Conservation and Recovery Act of 1976 (RCRA) as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA), EPA established
revised minimum Federal criteria for MSWLFs, including landfill
location restrictions, operating standards, design standards and
requirements for ground water monitoring, corrective action, closure
and post-closure care, and financial assurance. Under RCRA Section
4005(c), States are required to develop permit programs for facilities
that may receive household hazardous waste or waste from conditionally
exempt small quantity generators, and EPA determines whether the
program is adequate to ensure that facilities will comply with the
revised criteria.
The MSWLF criteria are at 40 CFR part 258. These regulations are
self-implementing and apply directly to owners and operators of MSWLFs.
For many of these criteria, 40 CFR part 258 includes a flexible
performance standard as an alternative to the self-implementing
regulation. The flexible standard is not self-implementing, and use of
the alternative standard requires approval by the Director of a State
with an EPA-approved program.
Because EPA's approval of a State program does not extend to Indian
country, owners and operators of MSWLF units located in Indian country
cannot take advantage of the flexibilities available to those
facilities subject to an approved State program. However, the EPA has
the authority under Sections 2002, 4004, and 4010 of RCRA to promulgate
site-specific rules that may provide for use of alternative standards
in Indian country. See Yankton Sioux
[[Page 50931]]
Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996); Backcountry Against
Dumps v. EPA, 100 F.3d. 147 (DC Cir. 1996). EPA has developed draft
guidance on preparing a site-specific request to provide flexibility to
owners or operators of MSWLFs in Indian country (Site-Specific
Flexibility Requests for Municipal Solid Waste Landfills in Indian
Country Draft Guidance, EPA530-R-97-016, August 1997).
The regulation at 40 CFR 258.60(a) establishes closure criteria for
MSWLF units that are designed to minimize infiltration and erosion. The
regulation requires final cover systems to be designed and constructed
to:
(1) Have a permeability of less than or equal to the permeability
of any bottom liner system or natural sub-soils present, or a
permeability no greater than 1 x 10\-5\ cm/sec, whichever is less, and
(2) Minimize infiltration through the closed MSWLF by the use of an
infiltration layer that contains a minimum of 18 inches of earthen
material, and
(3) Minimize erosion of the final cover by the use of an erosion
layer that contains a minimum of 6 inches of earthen material that is
capable of sustaining native plant growth.
The regulation at 40 CFR 258.60(b) allows for variances from these
specified MSWLF closure criteria. Specifically, the rule allows for the
Director of an approved state to approve an alternative final cover
design that includes:
(1) An infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs (a)(1)
and (a)(2) of 40 CFR 258.60, and
(2) An erosion layer that provides equivalent protection from wind
and water erosion as the erosion layer specified in paragraph (a)(3) of
40 CFR 258.60.
C. Overview of Lake County's Site-Specific Flexibility Request and
EPA's Action
Today, EPA is making a final determination to approve Lake County's
site-specific flexibility request to install an alternative final
landfill cover that meets the requirements of 40 CFR 258.60(b). The
County's request is discussed in further detail in the February 10,
2010 proposal.
EPA is basing its final determination on a number of factors,
including unsaturated soil modeling, site-specific climatic and soils
data, and the results of a pilot test of the viability of an
evapotranspiration cover conducted at the site by the County's
consultants, the Desert Research Institute, and EPA. The results of the
pilot test indicated that the evapotranspiration cover will perform
better than the standard prescriptive cover in 40 CFR 258.60(a) in
preventing movement of leachate through the system.
EPA has determined that Lake County has demonstrated that the
proposed infiltration layer for the landfill cover achieves an
equivalent reduction in infiltration as the infiltration layer
specified in paragraphs (a)(1) and (a)(2) of 40 CFR 258.60, and the
erosion layer provides equivalent protection from wind and water
erosion as the erosion layer specified in paragraph (a)(3) of 40 CFR
258.60. On January 22, 2009, Lake County submitted a ``Construction
Quality Assurance & Control Plan'' for the closure project that
specifies that testing will be performed on each component as it is
installed. Testing frequencies and standards during construction are
described in detail in the ``Construction Quality Assurance and Control
Plan.''
As part of this final determination, EPA is requiring that Lake
County submit to EPA for approval at 50% final design, an Operations
and Maintenance Plan that includes an inspection schedule (at least
quarterly) and remediation plan to address any potential rodent damage
to the final cover. Lake County must achieve re-vegetation rates of
greater than 50% on the closed landfill by the end of the first season
and a complete stand of native grasses by the end of the third season.
EPA is also requiring the landfill owner and operator to place
documentation demonstrating compliance with the provisions of the site-
specific rule in the operating record.
D. Summary of Public Comments Received and Response to Comments
EPA received no comments during the public comment period regarding
approval of an alternative final cover for the Lake County, Montana
landfill, as proposed in the Federal Register on February 10, 2010.
II. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and, therefore, is not a regulatory action subject to review by the
Office of Management and Budget (OMB).
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.) because it applies to a particular facility only.
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a
particular facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA.
Because this rule will affect only a particular facility, this
proposed rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, ``Federalism,'' (64 FR 43255,
August 10, 1999). Thus, Executive Order 13132 does not apply to this
rule.
This rule also is not subject to Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The basis for this belief is EPA's analysis of the potential
risks posed by Lake County's proposal and the controls and standards
set forth in the application.
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments,'' (65 FR 67249, November 9, 2000),
calls for EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have tribal implications.'' EPA has concluded that this
action may have Tribal implications because it is directly applicable
to a facility operating on the Confederated Salish and Kootenai Tribes'
Flathead Reservation. However, this
[[Page 50932]]
determination will neither impose substantial direct compliance costs
on Tribal governments, nor preempt Tribal law. This determination to
approve the Lake County's application will affect only the Lake
County's operation of the County's landfill.
EPA consulted with the Confederated Salish and Kootenai Tribes
early in the process of making this determination to approve the
County's alternative final cover request so that the Tribes had the
opportunity to provide meaningful and timely input. Between 2007 and
2009, technical issues were raised and addressed by both the Tribes and
EPA concerning Lake County's proposal. EPA's consultation with the
Tribes culminated in a letter of July 15, 2009, from the Tribes, in
which they stated that they have no further issues with the Lake County
proposal. The Tribes did not offer any additional comments during the
public comment period announced in the Federal Register on February 10,
2010.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA) (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 to Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
The technical standards included in the application were proposed
by Lake County. Given EPA's obligations under Executive Order 13175
(see above), the Agency has, to the extent appropriate, applied the
standards established by the County and accepted by the Tribes. In
addition, the Agency evaluated the proposal's design against the
engineering design and construction criteria contained in the EPA draft
guidance document, ``Water Balance Covers for Waste Containment:
Principles and Practice (2009).''
Authority: Sections 1008, 2002, 4004, and 4010 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. 6907, 6912, 6944, and
6949a. Temporary Delegation of Authority to Promulgate Site-Specific
Rules to Respond to Requests for Flexibility from Owners/Operators
of Municipal Solid Waste Landfill Facilities in Indian Country,
October 14, 2009, Incorporation by Reference.
List of Subjects in 40 CFR Part 258
Environmental protection, Incorporation by reference, Municipal
landfills, Reporting and recordkeeping requirements, Waste treatment
and disposal.
Dated: April 22, 2010.
Carol Rushin,
Acting Regional Administrator, Region VIII.
Editorial Note: This document was received in the Office of the
Federal Register on August 11, 2010.
0
For the reasons stated in the preamble, 40 CFR part 258 is amended as
follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
0
1. The authority citation for part 258 continues to read as follows:
Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907,
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).
Subpart F--[Amended]
0
2. Add Sec. 258.62 to subpart F to read as follows:
Sec. 258.62 Approval of Site-Specific Flexibility Requests in Indian
Country.
(a) Lake County Municipal Landfill final cover requirements.
Paragraph (a) of this section applies to the Lake County Landfill, a
municipal solid waste landfill owned and operated by Lake County on the
Confederated Salish and Kootenai Tribes' Flathead Reservation in
Montana. The alternative final cover request submitted by Lake County,
Montana, consisting of the ``Lake County Landfill Alternative Cover,''
dated May 2007, the ``Construction Quality Assurance & Control Plan for
the Lake County Class II Landfill Unit Landfill Closure Project'' and
the ``Lake County Landfill Plans for Final Closure January 2009,''
dated January 2009, is hereby incorporated by reference. The Director
of the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect or
obtain a copy at the Environmental Protection Agency, Region VIII,
Montana Office, 10 West 15th St., Suite 3200, Helena, MT or by calling
406-457-5000. You may also inspect a copy at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. The facility owner and/or operator may close the
facility in accordance with this application, including the following
activities more generally described as follows:
(1) The owner and operator may install an evapotranspiration system
as an alternative final cover for the 15.4 acre active area.
(2) The final cover system shall consist of a 5.5-feet-thick multi-
layer cover system comprised, from bottom to top, of an 18-inch
intermediate and gas vent layer, a 24-inch native sand layer, an 18-
inch imported silt layer and a 6-inch topsoil layer, as well as seeding
and erosion control.
(3) The final cover system shall be constructed to achieve an
equivalent reduction in infiltration as the infiltration layer
specified in Sec. 258.60(a)(1) and (a)(2), and provide an equivalent
protection from wind and water erosion as the erosion layer specified
in paragraph (a)(3) of this section.
(4) In addition to meeting the specifications of the ``Lake County
Landfill Alternative Cover'' dated May 2007, and the ``Construction
Quality Assurance & Control Plan for the Lake County Class II Landfill
Unit Landfill Closure Project'' dated January 2009, the owner and
operator shall:
(i) At 50% final design, submit to EPA for approval an Operations
and Maintenance Plan that includes an inspection schedule (at least
quarterly) and remediation plan to address any potential rodent damage
to the final cover; and
(ii) Achieve re-vegetation rates greater than 50% by the end of the
first season and a complete stand of native grasses by the end of the
third season.
(5) The owner and operator shall place documentation demonstrating
compliance with the provisions of this Section in the operating record.
(6) All other applicable provisions of 40 CFR part 258 remain in
effect.
[Reserved]
[FR Doc. 2010-20184 Filed 8-17-10; 8:45 am]
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