13242 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

Executive Order 13132: Federalism 

This action also does not have 

Federalism implications because it does 

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 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. 

Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

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. 

National Technology Transfer 

Advancement Act 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

Paperwork Reduction Act 

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.). 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 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. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by May 21, 2004. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: February 19, 2004. 

Bharat Mathur, 

Acting Regional Administrator, Region 5.

■ Title 40 of the Code of Federal 

Regulations, chapter I, part 52, is 

amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401-et seq.

■ 2. Section 52.720 is amended by 

adding paragraph (c)(169) to read as 

follows:

§ 52.720 Identification of plan.

* * * * *

(c) * * *

(169) On June 20, 2003, Illinois 

submitted an Adjusted Standard for 

Ford Motor Company’s Chicago 

Assembly Plant. This Adjusted Standard 

from 35 Ill.Adm. Code 218.986 replaces 

those requirements with the control 

requirements in the Illinois Pollution 

Control Board’s November 21, 2002, 

Order. 

(i) Incorporation by reference. 

(A) The Illinois Pollution Control 

Board’s November 21, 2002, Opinion 

and Order which granted the Ford 

Motor Company’s Chicago Assembly 

Plant an adjusted standard (AS 02–3) 

from 35 Ill. ADM. Code 218.986. The 

requirements in 35 Ill. ADM. Code 

218.986 have been replaced by the 

requirements in the Illinois Pollution 

Control Board’s November 21, 2002, 

Order.

[FR Doc. 04–6307 Filed 3–19–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 13243

308–7281; e-mail: 

CASSIDY.PAUL@EPA.GOV.

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:

Category Examples of affected 

entities 

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 Governments.Owners or operators 

of municipal solid 

waste landfills. 

This table is a guide for readers that 

describes which entities are likely to be 

affected by this action. It lists the types 

of entities 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, 

[CASSIDY.PAUL@EPA.GOV]. 

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 

13244 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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.

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

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 § 258.26(a)(1) and the 

liquids restrictions in § 258.28(a). In 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 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 § 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 

§ 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 § 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 

§ 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 § 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 

§ 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 

(§§ 258.50 through 258.59), closure and 

post closure requirements in subpart F 

(§§ 258.60 and 258.61) except 

alternative cover provisions in § 258.60, 

and financial assurance requirements 

subpart G (§§ 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 

§ 258.21, disease vector control as 

described in § 258.22, air criteria 

described in § 258.24, access 

requirements as described in § 258.25, 

surface water requirements described in 

§ 258.27, and recordkeeping 

requirements described in § 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 §§ 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. 

13246 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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, §§ 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 §§ 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 § 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 

§ 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 § 258.40(a)(2), the 

existing criteria in § 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 § 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 

§ 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 §§ 258.28(a) and 

258.26(a)(1) will allow the addition of 

water to a landfill. In the case of 

§ 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 § 258.26(a)(1) and the 

liquids restrictions in § 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 §§ 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 § 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, 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 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 § 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 § 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 § 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 § 258.40 (see 

section V.B. below). After reviewing the 

comment and the authority existing in 

§ 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 § 258.40(a)(1) establishes 

the minimum criteria for protection of 

human health and the environment, 

specifically Table 1 and paragraph (d) of 

§ 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 § 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, 

§ 258.40, however. Rather, it is the 

liquids restrictions in § 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 

§ 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 

§ 258.40(a)(1). Therefore, inclusion of 

authority to vary from the design criteria 

in § 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 § 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 § 258.60(a)(1) and (2), 

and § 258.60(b)(2) allows a variance 

from the erosion layer specifications in 

§ 258.60(a)(3). However, the existing 

variance in § 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 § 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 § 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 § 258.60(a)(1) and 

(2), the owner/operator of the landfill 

must demonstrate that no moisture will 

13248 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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 § 250.60(a)(3) and 

(b)(2). Because § 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 § 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 § 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 

§ 258.60(a) and (b), because our review 

shows that the existing alternative final 

cover provision in § 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 

§ 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 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 13249

addition of other liquids. Under today’s 

rule, any MSWLF unit must be designed 

to meet the ground water protection 

criteria in § 258.40, and must be 

constructed with a leachate collection 

system meeting the same performance 

standard contained in the design criteria 

(§ 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 § 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 § 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 

§ 258.40 is not needed, and the final 

rule does not include such authority. 

However, § 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, 

§ 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 § 258.40(a)(1), 

but does not give the same authority to 

states without an approved program. 

The process set forth in § 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 § 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 

§ 258.40(e). 

Since the authority in today’s rule 

only applies in approved states, and 

approved states already have authority 

in § 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 

13250 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

2The CRADA and the Quality Assurance Project 

Plan (QAPP) for the site are available on request 

from the Office of Research and Development.

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.

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 sitespecific 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 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 13251

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.

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 water3

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 

§ 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 § 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 

§ 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.

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, § 258.28 and § 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., 

§§ 258.51(a)(2), (b); 258.54(a)(1), (2)). 

Moreover, the existing criteria 

(§§ 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 § 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 

13252 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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 bioreactortype operations should not be allowed 

at small landfills for which design 

requirements, ground water monitoring, 

and corrective action are not required 

pursuant to § 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 § 258.26(a)(1) 

or the liquids restrictions in § 258.28(a) 

This includes small and remote landfills 

operating under § 258.1(f)(1) of the 

criteria.

EPA also notes that small landfills, 

including those that qualify for the 

exemptions under § 258.1(f), already 

have the opportunity for alternative 

final cover requirements with respect to 

the infiltration layer requirements in 

§ 258.60(b)(1). Under § 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 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 13253

CFR 239.6(e). Part 258 does not allow 

variances from §§ 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 sitespecific 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 farmer.sandy@epamail.epa.gov, 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, 

13254 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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-coverpage.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 

Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 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.

■ 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

■ 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]

■ 2. Add § 258.4 to subpart A to read as 

follows:

§ 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 

§ 258.26(a)(1); and 

(2) The liquids restrictions in 

§ 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 § 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 

13256 Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / Rules and Regulations 

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 nonhazardous 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 

§ 258.1(f)(1) is not eligible for any 

variance from §§ 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 § 258.60 

(b)(1),except in accordance with 

§ 258.60(b)(3).

[FR Doc. 04–6310 Filed 3–19–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 34 

Filing Claims Under the Military 

Personnel and Civilian Employees 

Claims Act

AGENCY: Department of Health and 

Human Services.

ACTION: Final rule.

SUMMARY: The Department of Health and 

Human Services (HHS) is establishing a 

new regulation that would prescribe the 

procedures HHS follows when claims 

are filed by employees against HHS for 

personal property damage or loss 

incident to their service with HHS. This 

new regulation is in accordance with, 

and pursuant to, the Military Personnel 

and Civilian Employees Claims (MPCE) 

Act of 1964 (31 U.S.C. 3721), 

authorizing the head of each Federal 

agency to prescribe its own regulations 

for handling such claims.

EFFECTIVE DATE: March 22, 2004.

FOR FURTHER INFORMATION CONTACT:

Katherine M. Drews, Associate General 

Counsel, General Law Division, Office 

of the General Counsel, (202) 619–0150.

SUPPLEMENTARY INFORMATION:

Background 

This final rule implements the MPCE 

Act codified at section 3721 of title 31 

of the United States Code. The MPCE 

Act establishes guidelines Federal 

agencies must follow when an agency 

employee files a claim for personal 

property damage or loss incurred 

incident to his or her Federal service. 

Under the MPCE Act, the Secretary may 

approve claims made against the 

Government by a federal government 

employee for damage or loss of personal 

property that is incident to employment 

if the loss was not due to a negligent or 

wrongful act of the claimant. Therefore, 

HHS adds a new regulation to 

implement to the MPCE Act. Prior 

guidance in the Department’s General 

Administration Manual is hereby 

superseded. 

Executive Order 12866 

This rulemaking is limited to internal 

agency management and policy, and 

therefore is not a regulation or rule as 

defined by Executive Order 12866. It 

has also has also been determined that 

this rulemaking is not a significant 

regulatory action for purposes of 

Executive Order 12866. Accordingly, a 

regulatory impact analysis is not 

required. 

Regulatory Flexibility Act 

This rule relates to internal agency 

management and policy, and therefore, 

it is not subject to Executive Order 

12291. Because no notice of proposed 

rulemaking is required for this final 

rule, it is not subject to the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

Civil Justice Reform 

This rule meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of the Executive Order 12988. 

Unfunded Mandates Reform Act 

This rule will not result in the 

expenditure by state, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement Act, 5 

U.S.C. 804. This rule will not result in 

an annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United Sates-based 

companies to compete with foreignbased companies in domestic or export 

markets. 

Federalism 

This rule will not have a substantial 

direct effect on the states, on the 

relationship between the National 

Government and the states, or on the 

distribution of power and 

responsibilities among various levels of 

government. Therefore, in accordance 

with Executive Order 13132, it is 

determined that this rule does not have