40708 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 258

[F–97–FLXF–FFFFF; FRL–5865–3]

RIN 2050–AE24

Revisions to Criteria for Municipal

Solid Waste Landfills

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: The Land Disposal Program

Flexibility Act of 1996 (LDPFA) directed

the Administrator of the U.S.

Environmental Protection Agency (EPA)

to provide additional flexibility to

Approved States for any landfill that

receives 20 tons or less of municipal

solid waste per day. The additional

flexibility applies to alternative

frequencies of daily cover, frequencies

of methane monitoring, infiltration

layers for final cover, and means for

demonstrating financial assurance. The

additional flexibility will allow the

owners and operators of small

municipal solid waste landfills

(MSWLFs) the opportunity to reduce

their costs of MSWLF operation while

still protecting human health and the

environment. This direct final rule

recognizes, as did Congress in enacting

the LDPFA, that these decisions are best

made at the State and local level and,

therefore, offers this flexibility to

approved States.

In the proposed rules Section of

today’s Federal Register, EPA is

concurrently proposing and soliciting

comment on this rule. If adverse

comments are received, EPA will

withdraw this direct final rule and

address the comments in a subsequent

final rule. EPA will not provide

additional opportunity for comment.

DATES: This final action will become

effective on October 27, 1997 unless

EPA receives adverse comment by

August 28, 1997. If such adverse

comment is received, EPA will

withdraw this direct final rule by

publishing timely notice in the Federal

Register.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

The Docket Identification Number is F–

97–FLXF–FFFFF. The RIC is open from

9 a.m. to 4 p.m., Monday through

Friday, excluding federal holidays. To

review docket materials, it is

recommended that the public make an

appointment by calling 703 603–9230.

The public may copy a maximum of 100

pages from any regulatory docket at no

charge. Additional copies cost $0.15/

page. The index and some supporting

materials are available electronically.

See the ‘‘Supplementary Information’’

section for information on accessing

them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at 800 424–9346 or TDD 800

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

703 412–9810 or TDD 703 412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact Mr. Allen J. Geswein, U.S.

Environmental Protection Agency,

Office of Solid Waste (5306W), 401 M

Street, SW, Washington, D.C. 20460, 703

308–7261,

[GESWEIN.ALLEN@EPAMAIL. EPA.GOV].

SUPPLEMENTARY INFORMATION: The index

and the following supporting materials

are available on the Internet:

Memorandum to: RCRA Docket

From: Allen J. Geswein, Environmental

Engineer

Subject: Daily Cover Requirements for

MSWLFs

Memorandum to: RCRA Docket

From: Allen J. Geswein, Environmental

Engineer

Subject: Landfill Gas Monitoring

Requirements for MSWLFs

Memorandum to: RCRA Docket

From: Allen J. Geswein, Environmental

Engineer

Subject: Infiltration Layer Requirements

for MSWLFs

Memorandum to: RCRA Docket

From: Allen J. Geswein, Environmental

Engineer

Subject: Financial Assurance

Requirements for MSWLFs

Follow these instructions to access

the information electronically:

WWW: http://www.epa.gov/epaoswer/

nonhazardous waste

FTP: ftp.epa/gov

Login: anonymous

Password: your Internet address

Files are located in /pub/gopher/

OSWRCRA.

Regulated Entities

Entities potentially regulated by this

action are public or private owners or

operators of municipal solid waste

landfills (MSWLFs) that dispose 20 tons

or less of municipal solid waste daily,

based on an annual average. Regulated

categories and entities include the

following.

Category Examples of regulated entities

Industry ..................................................................................................... Owners or operators of small MSWLFs.

Municipal Governments ............................................................................ Owners or operators of small MSWLFs.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action. This table 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 your facility would be

impacted by this action, you should

carefully examine the applicability

criteria in the proposal. If you have

questions regarding the applicability of

this action to a particular facility,

consult the person listed in the

preceding FOR FURTHER INFORMATION

CONTACT section.

Preamble Outline

I. Authority

II. Background

III. Summary of the Direct Final Rule

IV. Description of Direct Final Rule

A. Daily Cover

B. Methane Gas Monitoring

C. Final Cover and Discussion of

Performance Standard in § 258.60(a)(1)

1. Additional Flexibility

2. Applicability to ‘‘Qualifying Small

MSWLFs’’ that Close

D. Financial Assurance

V. Consideration of Issues Related to

Environmental Justice

VI. Impact Analysis

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Executive Order 12875

E. Unfunded Mandates

F. Small Business Regulatory Enforcement

Act of 1996

I. Authority

The Agency is promulgating these

regulations under the authority of

sections 1008(a)(3), 2002(a), 4004(a),

and 4010(c) of the Resource
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations 40709

Conservation and Recovery Act (RCRA),

as amended, 42 USC 6907(a)(3), 6912(a),

6944(a), and 6949a(c).

II. Background

When EPA promulgated the Revised

Criteria for Municipal Solid Waste

Landfills on October 9, 1991 (56 FR

50978), the Agency included an

exemption for owners and operators of

certain small municipal solid waste

landfills (MSWLF) units from the

Design Criteria (Subpart D) and GroundWater Monitoring and Corrective Action

(Subpart E) requirements of the criteria.

To qualify for the exemption, the small

landfill could only accept twenty tons

or less of municipal solid waste per day

(based on an annual average), have no

evidence of existing ground-water

contamination, and either: (1) Serve a

community that experiences an annual

interruption of at least three consecutive

months of surface transportation that

prevents access to a regional waste

management facility, or (2) be located in

an area that annually receives less than

or equal to 25 inches of precipitation

and serves a community that has no

practicable waste management

alternative. In adopting this limited

exemption, the Agency believed it had

complied with the statutory requirement

to protect human health and the

environment, taking into account the

practicable capabilities of small landfill

owners and operators.

In January 1992, the Sierra Club and

the Natural Resources Defense Council

(NRDC) filed a petition with the U.S.

Court of Appeals, District of Columbia

Circuit, for review of the Subtitle D

Criteria. On May 7, 1993, the Court of

Appeals determined in Sierra Club v.

United States Environmental Protection

Agency, 992 F.2d 337 (D.C. Cir. 1993)

that under RCRA section 4010(c), the

only factor EPA could consider in

determining whether facilities must

monitor groundwater was whether such

monitoring was ‘‘necessary to detect

contamination,’’ not whether such

monitoring is ‘‘practicable.’’ Thus, the

Court vacated the small landfill

exemption as it pertained to groundwater monitoring, and remanded that

portion of the final rule to the Agency

for further consideration.

Consequently, as part of the Agency’s

October 1, 1993 final rule (58 FR 51536;

October 1, 1993), EPA rescinded the

exemption from ground-water

monitoring for qualifying small

MSWLFs. Also at that time, EPA

delayed the effective date of the MSWLF

criteria for qualifying small MSWLFs for

two years (until October 9, 1995) to

allow owners and operators of such

small MSWLFs adequate time to decide

whether to continue to operate in light

of the Court’s ruling, and to prepare

financially for the added costs if they

decided to continue to operate.

On October 6, 1995, EPA issued a

final rule extending the general

compliance date of the MSWLF criteria

for two years, from October 9, 1995 to

October 9, 1997, for qualifying small

MSWLFs. The purpose of the extension

was to allow Approved States time to

determine alternative ground-water

monitoring requirements for qualifying

small MSWLFs. This means that

qualifying small MSWLFs are not

subject to the requirements of 40 CFR

part 258 until October 9, 1997, so long

as the MSWLF continues to qualify for

the small landfill exemption in 40 CFR

258.1(f)(1). Should a MSWLF no longer

meet the conditions of § 258.1(f)(1), that

landfill must comply with all of the

requirements of 40 CFR part 258,

including the design and ground-water

monitoring requirements. Until October

9, 1997, owners and operators of

qualifying small MSWLFs are subject to

the requirements of 40 CFR part 257,

Subpart A. Because owners and

operators of qualifying small MSWLFs

may be subject to more stringent State

requirements, these owners and

operators are encouraged to work with

their respective State programs to

understand the regulatory requirements

for their facilities.

On March 26, 1996, the President

signed the ‘‘Land Disposal Program

Flexibility Act’’ (LDPFA), Public Law

104–119, which among other things,

reinstated the exemption from groundwater monitoring for qualifying small

MSWLFs. EPA has issued a final rule

reinstating the exemption (61 FR 50410;

September 25, 1996).

The law also directed the Agency to

issue rules that grant the Director of an

Approved State the flexibility to

establish alternative requirements for all

MSWLFs that receive 20 tons or less of

municipal solid waste per day, based on

an annual average. The additional

flexibility is not limited to small

MSWLFs in dry or remote locations;

rather, the alternative requirements

may be applied to any MSWLF

receiving 20 tons or less of municipal

solid waste as determined by the

Director of an Approved State.

Specifically, the LDPFA directed EPA to

promulgate revisions to existing criteria

which would allow an approved State to

establish for small MSWLFs alternative

frequencies of daily cover application,

frequencies of methane gas monitoring,

infiltration layers for final cover, and

means for demonstrating financial

assurance. These alternative

requirements are to take into account

climatic and hydrogeologic conditions

and are to be protective of human health

and the environment. There is no

provision in the LDPFA that directed

the Agency to extend the exemption

from ground-water monitoring to other

than qualifying small MSWLFs;

therefore, the exemption from groundwater monitoring will continue to apply

only to small MSWLFs in either dry or

remote areas. For the reasons set forth

in a prior notice, EPA has no plans to

extend this exemption to all small

MSWLFs (56 FR 50989, October 9,

1991).

III. Summary of the Direct Final Rule

This direct final rule amends the

Revised Criteria for Municipal Solid

Waste Landfills to allow the Director of

an Approved State the ability to grant

additional flexibility to small MSWLFs

for alternative frequencies of daily

cover, alternative frequencies of

methane monitoring, and alternative

infiltration layers for final cover. When

providing this flexibility, the State

Director must consider, after public

review and comment, the unique

characteristics of small communities

and take into account climatic and

hydrogeologic conditions while

ensuring that any alternative

requirements are protective of human

health and the environment.

The amendments contained in today’s

direct final rule may be applied by the

Director of Approved States to all

MSWLFs receiving 20 tons or less of

municipal solid waste per day, based on

an annual average, as appropriate.

In the proposed rules Section of

today’s Federal Register, EPA is

proposing this identical rule and

soliciting public comment. If adverse

comments are received, EPA will

withdraw this direct final rule and

address the comments in a subsequent

final rule. EPA will not provide

additional opportunity for comment.

IV. Description of Direct Final Rule

The purpose of this direct final rule

is to allow the Director of an Approved

State to establish alternative

requirements to certain provisions of the

Revised Criteria for Municipal Solid

Waste Landfills for small MSWLFs,

provided the Director determines that

the alternative requirements are

protective of human health and the

environment.

A. Daily Cover

Section 258.21 currently requires

owners or operators to cover disposed

solid waste at the end of each operating

day, or more frequently if necessary,

with six inches of earthen material.
40710 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations

Alternative materials of an alternative

thickness may be used when approved

by the Director of an Approved State if

the owner or operator demonstrates that

the alternative material and thickness

control disease vectors, fires, odors,

blowing litter, scavenging without

presenting a threat to human health and

the environment. The use of daily cover

to control disease vectors, fires, odors,

blowing litter, and scavenging has been

a requirement of Federal regulations

applicable to MSWLFs for nearly twenty

years (40 CFR 257.3–6(a) and (c)(4)). At

least 45 States have had this

requirement for ten or more years.

While the owner or operator is

required to place cover on waste at the

end of each operating day, the owner or

operator can reduce the cost of daily

cover by limiting the number of days

per week that waste is accepted. If the

facility accepts waste for disposal two

days per week, then daily cover is

required on those two operating days

and not on the other days of the week.

While § 258.21(c) allows a temporary

waiver of daily cover during extreme

seasonal climatic conditions, the current

rules do not allow the State to

substantially alter the requirement that

cover be applied on a daily basis.

Consistent with the LDPFA, to

provide additional flexibility to

Approved States, this rule contains a

provision that allows the Director of an

Approved State, after public review and

comment, to establish alternative

frequencies for daily cover for small

MSWLFs provided that the Director

takes into account climatic and

hydrogeologic conditions and

determines that the alternative

requirements are protective of human

health and the environment.

B. Methane Gas Monitoring

The decomposition of municipal solid

waste produces methane, an explosive

gas. Section 258.23 requires quarterly

monitoring for methane gas to control

the possibility of an explosion and does

not afford the opportunity for the

Director of an Approved State to allow

monitoring on a less frequent basis. The

current rule further requires that if the

methane levels exceed the allowable

levels, a danger of an explosion may

exist, and the Subtitle D Criteria

establish the actions that must be taken

to control the explosion potential. These

allowable levels are based on safety

considerations and are derived from

allowable concentrations of methane

contained in mining regulations. EPA

estimates that monitoring can cost less

than $100 per quarter.

However, consistent with the LDPFA,

this rule contains a provision that

allows the Director of an Approved

State to establish alternative frequencies

of methane monitoring for any small

MSWLFs provided that the Director,

after public review and comment, takes

into account climatic and hydrogeologic

conditions and determines that the

alternative requirements are protective

of human health and the environment.

C. Final Cover and Discussion of

Performance Standard in § 258.60(a)(1)

1. Additional Flexibility

Section 258.60(a) establishes a twopart performance standard for final

cover of MSWLFs. The final cover must

keep the closed facility as dry as

possible by reducing infiltration and

performs the added function of

minimizing maintenance by reducing

erosion. Sections 258.60(a) (1) through

(3) indicate the types of layers that are

known to provide appropriate control.

Section 258.60(b) allows the Director of

an Approved State to approve

alternative designs that provide an

equivalent reduction in infiltration and

an equivalent protection from wind and

water erosion.

The purpose of the performance

standard is to reduce the possibility of

the ‘‘bathtub effect’’ which can lead to

ground-water contamination. The

‘‘bathtub effect’’ occurs when more

liquid enters the MSWLF than escapes

causing the MSWLF to fill with liquid.

As the unit fills with liquid, more

leachate is formed, the hydraulic head

in the MSWLF increases, causing the

leachate to migrate to groundwater.

The Agency is aware that there may

have been misunderstandings regarding

the performance standard in

§ 258.60(a)(1) which addresses the

permeability of the final cover system.

The most common misconception is

that this provision dictates that in all

cases the infiltration barrier must

include a flexible membrane if the

landfill contains a flexible membrane

liner (FML) or if the permeability of the

soil underlying the landfill is

comparable to the permeability of an

FML. This may not necessarily be true.

The Agency believes that in certain sitespecific situations it may be possible to

construct an infiltration layer that

achieves an equivalent reduction in

infiltration without matching the

permeability in the liner material.

In selecting the alternative infiltration

barrier that achieves an equivalent

reduction in infiltration, the Director of

an Approved State may base the

decision on mathematical models (e.g.,

EPA’s Hydrologic Evaluation of Landfill

Performance (HELP)) or can utilize mass

water balance calculations. The design

of a final cover system that minimizes

run-on and maximizes factors such as

run-off, lateral drainage within the cover

system, water storage capacity in the

cover, and the ability of the vegetative

layer to utilize water may meet the

performance standard (‘‘have a

permeability less than or equal to the

permeability of any bottom liner

system’’) without the need for a flexible

membrane. In making this decision, it

may be feasible that the Director of the

Approved State could establish an

alternative infiltration layer requirement

that would be applicable Statewide for

MSWLFs or could make the decision on

a site-specific basis for individual

MSWLFs.

The LDPFA requires that EPA provide

additional flexibilities to the Director of

Approved States regarding final cover

design than that afforded by the current

regulations at § 258.60(a)(1). Thus,

consistent with the LDPFA, in order to

provide this additional flexibility to

Approved States, today’s rule contains a

provision that allows the Director of an

Approved State to establish alternative

infiltration barriers in the final cover for

any small MSWLFs provided that the

Director, after public review and

comment, takes into account climatic

and hydrogeologic conditions and

determines that the alternative

requirements are protective of human

health and the environment.

2. Applicability to ‘‘Qualifying Small

MSWLFs’’ That Close

In extending the effective date for

qualifying small MSWLFs in dry or

remote locations, EPA amended section

258.1(d) to exempt such small MSWLFs

which stop receiving waste before

October 9, 1997 from having to comply

with Part 258 requirements except for

the final cover requirements in

§ 258.60(a) [60 FR 52337; October 6,

1995]. Such a qualifying MSWLF would

have to complete the final cover

requirements within one year (60 FR

52337; October 6, 1995). During the

course of developing this direct final

rule, a question arose as to whether such

a qualifying small MSWLF in a dry or

remote location which stops receiving

waste prior to the effective date of

October 9, 1997 may utilize an

alternative final cover design authorized

by the Director of an Approved State,

including an alternative final cover

design for the infiltration layer being

addressed in today’s rule. This question

arose because the language in

§ 258.1(d)(1) requiring qualifying small

MSWLFs to comply with final cover

requirements only refers to the

requirements under § 258.60(a) which

sets forth a federal cover design.
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations 40711

Despite referring only to the federal

final cover design standard, EPA

intended to provide maximum

flexibility in complying with the revised

criteria to owners or operators of

MSWLFs located in States with

approved programs (56 FR 50992; Oct.

9, 1991). This intent extended to

allowing MSWLFs located in Approved

States to utilize a final cover design

which the Director has determined

meets the performance standard in

§ 258.60(b) [56 FR 51040; Oct. 9, 1991].

The final cover requirement for

MSWLFs which stop receiving waste

prior to the effective date is consistent

with many State programs, thus, EPA

believes that qualifying small landfills

which stop receiving waste prior to

October 9, 1997 may utilize any of the

final cover designs, including an

Approved State alternative for the

infiltration layer as specified in today’s

rule, which meet the performance

standards in § 258.60(b).

D. Financial Assurance

Subpart G of Part 258 contains the

Financial Assurance requirements

applicable to MSWLFs. As noted in the

preamble to the Revised Criteria for

Municipal Solid Waste Landfills (56 FR

51104; October 9, 1991), EPA has

determined that financial responsibility

is a necessary component of the

regulatory program and is essential to

protecting human health and the

environment. Further, EPA considered

its requirements as the minimum that it

considered necessary. ‘‘The financial

assurance requirements in today’s rule

have been structured such that the

assurance is required only for costs of

activities that are certain to be needed,

and the amount of financial assurance is

based on site-specific estimates of the

costs of closure, post-closure care, and

corrective action. Less stringent

financial assurance requirements would

not ensure that adequate funds will be

available when needed to cover these

costs.’’ (56 FR 51105; October 9, 1991).

Having adequate funds available is

necessary since, ‘‘Technical

requirements are effective in protecting

human health and the environment only

if funds are available in a timely manner

to conduct these activities’’ (ibid). EPA

was and remains concerned that a

general relaxation of the standards

beyond the considerable flexibility EPA

is already providing might not be

protective.

However, EPA’s rules allow States to

adopt a range of approaches that would

also be protective and promote

compliance by all owners and operators.

In establishing its financial assurance

regulations for MSWLFs, EPA provided

several federally specified mechanisms,

and the option for States to determine

mechanisms that would meet a highly

flexible performance standard. This

performance standard allows the

Director of an Approved State to

approve any financial mechanism that

(a) ensures sufficient coverage, (b)

ensures funds are available in a timely

fashion when needed, (c) is obtained by

the deadline, and (d) is legally valid,

binding, and enforceable. EPA

encouraged State Directors to consider

adopting a broad range of financial

approaches to promote compliance by

all owners and operators.

Generally, these requirements became

effective for MSWLFs on April 9, 1997,

although there is a provision that delays

the effective date for qualifying small

MSWLFs until October 9, 1997.

Additionally, EPA recently published

an amendment (61 FR 60327; November

27, 1996) to the Criteria that allows the

Director of an Approved State to delay

the effective date of the Financial

Assurance requirements for an

additional 12 months beyond the April

9, 1997 effective date, if the owner or

operator demonstrates to the Director of

an Approved State that the applicable

effective date does not provide

sufficient time to comply with these

requirements and that such a waiver

will not adversely affect human health

and the environment.

The November 27, 1996, amendment

also established a financial test for local

governments, including local

governments that own or operate small

MSWLFs. This test allows a local

government to use its financial strength

to avoid incurring the expenses

associated with the use of a third-party

financial instrument (61 FR 60327).

Additionally, this summer EPA

intends to promulgate a regulation

providing a financial test and corporate

guarantee as a mechanism private

owners and operators of MSWLFs may

use to demonstrate financial assurance.

This test will extend to private owners

and operators the regulatory flexibility

already provided to municipal owners

or operators of MSWLFs. These

regulations would allow a firm to

demonstrate financial assurance by

passing a financial test. For firms that

qualify for the financial test, this

mechanism will be less costly than the

use of a third party financial instrument

such as a trust fund or a surety bond.

EPA believes that considerable

additional flexibility has been or soon

will be afforded to the Director of

Approved States. These changes include

the following;

a. the additional flexibility to extend

the effective date for financial

assurance, as described above,

b. the local government test, and

c. the corporate financial test.

These flexibilities coupled with the

flexibility available to Directors of

Approved States in the Criteria for

MSWLFs promulgated on October 9,

1991, also described above, provide the

flexibility contemplated by the LDPFA.

Thus, today’s rule does not include any

additional changes to the Financial

Assurance requirements. As described

above, EPA will establish an additional

area of flexibility when the corporate

financial test is promulgated later this

fiscal year.

V. Consideration of Issues Related to

Environmental Justice

EPA is committed to addressing

environmental justice concerns and is

assuming a leadership role in

environmental justice initiatives to

enhance environmental quality for all

residents of the United States. The

Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, or income

bears disproportionately high and

adverse human health and

environmental effects as a result of

EPA’s policies, programs, and activities,

and all people live in clean and

sustainable communities.

The Agency does not currently have

data on the demographics of

populations surrounding the small

MSWLFs affected by today’s rule. The

Agency does not believe, however, that

today’s rule granting additional

flexibility to owners and operators of

small MSWLFs will have a

disproportionately high and adverse

environmental or economic impact on

any minority or low-income group, or

on any other type of affected

community. In addition, any minority

group or low-income group affected by

alternative requirements will have an

opportunity to review and comment on

the alternative requirement proposed by

the Director of the Approved State prior

to its implementation. The Agency

believes that this rulemaking will enable

some minority and/or low-income

communities to continue to be served by

a local landfill at the lowest possible

cost to residents, including minority

and low income residents.

VI. Impact Analysis

A. Executive Order 12866

Under Executive Order 12866, EPA

must determine whether a regulatory

action is significant and therefore

subject to OMB review and the other
40712 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations

provisions of the Executive Order. A

significant regulatory action is defined

by Executive Order 12866 as one that

may:

(1) Have an annual effect on the economy

of $100 million or more or adversely affect

in a material way the economy, a sector of

the economy, productivity, competition, jobs,

the environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or

planned by another agency;

(3) Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or rights and obligations or

recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the President’s

priorities, or the principles set forth in

Executive Order 12866.

The Agency believes that this direct

final rule does not meet the definition

of a major regulation because it does not

have an annual effect on the economy

of $100 million or more; nor does the

rule fall within the other definitional

criteria for a significant regulatory

action described above. The rule is

deregulatory and will result in

requirements applicable to specific

MSWLFs that are protective of human

health and the environment at a lower

cost than would be the case without the

additional flexibility afforded by these

amendments. For this reason, the

Agency is not conducting a Regulatory

Impact Analysis.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.), as amended by the

Small Business Regulatory Enforcement

Fairness Act of 1996 (SBREFA),

generally requires an agency to prepare,

and make available for public comment,

a regulatory flexibility analysis that

describes the impact of a proposed or

final rule on small entities (i.e., small

businesses, small organizations, and

small governmental jurisdictions).

However, no regulatory flexibility

analysis is required if the head of an

agency certifies the rule will not have a

significant adverse impact on a

substantial number of small entities.

SBREFA amended the Regulatory

Flexibility Act to require Federal

agencies to provide a statement of the

factual basis for certifying that a rule

will not have a significant economic

impact on a substantial number of small

entities. The following discussion

explains EPA’s determination.

Implementation of the various

requirements imposes increased costs

on small MSWLFs and the small

communities, including small Indian

Tribes, that they serve. MSWLFs that

dispose of 20 TPD of waste generally

serve populations of 10,000 persons or

less (based on a waste generation rate of

4 pounds per person per day). Because

these owners/operators may lack

practicable solid waste management

alternatives, such as the option of

joining regional waste management

systems, these communities may have

been required to absorb higher than

necessary costs of compliance in the

absence of the additional flexibility

afforded by today’s rule.

The effect of this rule is to provide

small entities with additional flexibility

to meet the requirements of Part 258.

The rule does not impose new burdens

on small entities. Therefore, pursuant to

5 U.S.C. 605b, I hereby certify that this

rule will not have a significant adverse

impact on a substantial number of small

entities. This rule, therefore, does not

require a regulatory flexibility analysis.

C. Paperwork Reduction Act

The Agency has determined that there

are no new reporting, notification, or

recordkeeping provisions associated

with today’s final rule.

D. Executive Order 12875

Under Executive Order 12875, Federal

agencies are charged with enhancing

intergovernmental partnerships by

allowing State and local governments

the flexibility to design solutions to

problems the citizenry is facing.

Executive Order 12875 calls on Federal

agencies to either pay the direct costs of

complying with Federal mandates or to

consult with representatives of State,

local, or Tribal governments prior to

formal promulgation of the requirement.

The Executive Order also relates to

increasing flexibility for State, Tribal,

and local governments through waivers.

Today’s notice grants additional

flexibility in complying with the

MSWLF criteria, does not impose

unfunded federal mandates on State,

Tribal, and local governments, and is

being undertaken to ensure that EPA is

providing maximum flexibility to States,

Tribes, and local governments.

Additionally, the Agency has

maintained a dialog with States, Tribes,

and local governments regarding ways

of ensuring appropriate flexibility while

maintaining protection of human health

and the environment for small

MSWLFs. Therefore, the Agency

believes that this consultation with

States, Tribes, and local governments, in

addition to the public comment period

provided in the proposed rules section

of today’s Federal Register, satisfies the

requirement of this Executive Order.

E. Unfunded Mandates

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

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 has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

tribal governments in the aggregate, or

to the private sector. In fact, today’s rule

provides States with additional

flexibility that will lower the cost of

compliance with the Criteria for

Municipal Solid Waste Landfills. In

accordance with section 203, EPA has

worked closely with the States in the

development of this rule.

F. Small Business Regulatory

Enforcement Act of 1996 (SBREFA)

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Act of 1996, before this
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Rules and Regulations 40713

rule takes effect, EPA has submitted a

report containing this rule and other

required information to the U.S. Senate,

U.S. House of Representatives, and the

Comptroller General of the General of

the General Accounting Office prior to

publication of this rule in today’s

Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

List of Subjects in 40 CFR Part 258

Environmental protection, Reporting

and recordkeeping requirements, Waste

treatment and disposal.

Dated: July 23, 1997.

Carol M. Browner,

Administrator.

For reasons set out in the preamble,

Title 40 of the Code of Federal

Regulations is amended as follows:

PART 258—CRITERIA FOR MUNICIPAL

SOLID WASTE LANDFILLS

1. The authority citation for part 258

continues to read as follows:

Authority: 42 U.S.C. 6907(a)(3), 6912(a),

6944(a) and 6949a(c); 33 U.S.C. 1345 (d) and

(e).

2. Section 258.21 is amended by

adding a new paragraph (d) to read as

follows:

§ 258.21 Cover material requirements.

* * * * *

(d) The Director of an Approved State

may establish alternative frequencies for

cover requirements in paragraphs (a)

and (b) of this section, after public

review and comment, for any owners or

operators of MSWLFs that dispose of 20

tons of municipal solid waste per day or

less, based on an annual average. Any

alternative requirements established

under this paragraph must:

(1) Consider the unique

characteristics of small communities;

(2) Take into account climatic and

hydrogeologic conditions; and

(3) Be protective of human health and

the environment.

3. Section 258.23 is amended by

adding a new paragraph (e) to read as

follows:

§ 258.23 Explosive gases control.

* * * * *

(e) The Director of an Approved State

may establish alternative frequencies for

the monitoring requirement of

paragraph (b)(2) of this section, after

public review and comment, for any

owners or operators of MSWLFs that

dispose of 20 tons of municipal solid

waste per day or less, based on an

annual average. Any alternative

monitoring frequencies established

under this paragraph must:

(1) Consider the unique

characteristics of small communities;

(2) Take into account climatic and

hydrogeologic conditions; and

(3) Be protective of human health and

the environment.

4. Section 258.60 is amended by

adding a new paragraph (b) (3) to read

as follows:

§ 258.60 Closure criteria.

* * * * *

(b) * * *

(3) The Director of an Approved State

may establish alternative requirements

for the infiltration barrier in a paragraph

(b)(1) of this section, after public review

and comment, for any owners or

operators of MSWLFs that dispose of 20

tons of municipal solid waste per day or

less, based on an annual average. Any

alternative requirements established

under this paragraph must:

(i) Consider the unique characteristics

of small communities:

(ii) Take into account climatic and

hydrogeologic conditions; and

(iii) Be protective of human health

and the environment.

* * * * *

[FR Doc. 97–19942 Filed 7–28–97; 8:45 am]

BILLING CODE 6560–50–U