40714 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 258

[F–97–FLXP–FFFFF–5865–4]

RIN 2050–AE24

Revisions to Criteria for Municipal

Solid Waste Landfills

AGENCY: Environmental Protection

Agency.

ACTION: Proposed 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 the

Director of Approved States for the

owners and operators of landfills that

receive 20 tons or less of municipal

solid waste per day. The additional

flexibility pertains 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 the

cost of MSWLF operation while still

protecting human health and the

environment. This proposal recognizes,

as did Congress in enacting LDPFA, that

these decisions are best made at the

State and local level and, therefore,

offers this flexibility to approved States.

In the final rules Section of today’s

Federal Register, EPA is promulgating

this amendment as a final rule without

prior proposal because EPA views this

as a noncontroversial action that in

effect, codifies a legislative directive.

Thus, we anticipate no adverse

comments. A detailed rationale for the

amendment is set forth in the preamble

to the direct final rule. If no adverse

comments are received in response to

this proposal, no further activity is

contemplated regarding this proposed

rule. If EPA receives adverse comments,

EPA will withdraw the final rule and all

public comments received will be

addressed in a subsequent final rule

based on the proposed rule. EPA will

not institute a second comment period

on this action.

DATES: Comments on this proposed rule

must be received on or before August

28, 1997. An adverse comment will be

considered to be any comment

substantively criticizing the proposal on

a basis not already provided to EPA in

comment.

ADDRESSES: Commenters must send an

original and two copies of their

comments referencing docket number

F–97–FLXP–FFFFF to: RCRA Docket

Information Center, Office of Solid

Waste (5305G), U.S. Environmental

Protection Agency Headquarters (EPA,

HQ), 401 M Street, SW, Washington, DC

20460. Hand deliveries of comments

should be made to the Arlington, VA,

address below. Comments may also be

submitted electronically through the

Internet to: rcradocket@epamail.epa.gov. Comments in

electronic format should also be

identified by the docket number F–97–

FLXP–FFFFF. All electronic comments

must be submitted as an ASCII file

avoiding the use of special characters

and any form of encryption.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, 401 M Street, SW,

Washington, DC 20460.

Public comments and supporting

materials are available for viewing in

the RCRA Information Center (RIC),

located at Crystal Gateway I, First Floor,

1235 Jefferson Davis Highway,

Arlington, VA. The RIC is open from 9

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

excluding federal holidays. To review

docket materials, it is recommended

that the public make an appointment by

calling 703 603–9230. The public may

copy a maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See the

SUPPLEMENTARY INFORMATION section for

information on accessing them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at 800 424–9346 or TDD 800

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

703 412–9810 or TDD 703 412–3323.

For 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, DC 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.

The official record for this action will

be kept in paper form. Accordingly, EPA

will transfer all comments received

electronically into paper form and place

them in the official record, which will

also include all comments submitted

directly in writing. The official record is

the paper record maintained at the

address in ADDRESSES at the beginning

of this document.

EPA responses to comments, whether

the comments are written or electronic,

will be in a notice in the Federal

Register or in a response to comments

document placed in the official record

for this rulemaking. EPA will not

immediately reply to commenters

electronically other than to seek

clarification of electronic comments that

may be garbled in transmission or

during conversion to paper form, as

discussed above.

Regulated Entities

Entities potentially regulated by this

action are public or private owners or

operators of municipal solid waste

landfills (MSWLFs) that dispose of 20

tons or less of municipal solid waste per

day, based on an annual average.

Regulated categories and entities

include:
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Proposed Rules 40715

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

regulated by this action. This table lists

the types of entities the EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility would be regulated 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. Additional Information

IV. Consideration of Issues Related to

Environmental Justice

V. Impact Analysis

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Executive Order 12875

E. Unfunded Mandates

I. Authority

The Agency is proposing these

regulations under the authority of

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

and 4010(c) of the Resource

Conservation and Recovery Act (RCRA),

as amended, 42 U.S.C. 6907(a)(3),

6912(a), 6944(a), and 6949a(c).

II. Background

As set out in detail in the related

direct final rule, EPA is proposing to

issue rules that grant the Director of an

Approved State the flexibility to

establish alternative requirements for

certain criteria for small MSWLFs. EPA

is promulgating revisions to existing

criteria which would allow a Director of

an Approved State, after public review

and comment, to establish for small

MSWLFs, alternative frequencies of

daily cover application, frequencies of

methane gas monitoring, and infiltration

layers for final cover. Alternative means

for demonstrating financial assurance

for small MSWLFs are also discussed in

the related direct final rule. When

establishing these alternative

requirements, the Director of an

Approved State must, after public

review and comment, consider the

unique characteristics of small

communities, take into account climatic

and hydrogeologic conditions, and

ensure that any alternative standard is

protective of human health and the

environment.

III. Additional Information

For additional information, see the

corresponding direct final rule

published in the final rules section of

this Federal Register. All persons who

may wish to comment should review

the preamble discussion in the direct

final rule Federal Register notice.

IV. 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.

V. 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

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

proposed 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

regulation described above. The

proposed 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
40716 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Proposed Rules

entities. The following discussion

explains EPA’s determination.

Implementation of the various

requirements imposes increased costs

on small MSWLFs and the small

communities, including 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 proposed rule.

The effect of this proposed rule is to

provide small entities with additional

flexibility to meet the requirements of

Part 258. The proposal would not

impose any new burdens on small

entities. Therefore, pursuant to 5 U.S.C.

605(b), I certify that this proposed rule

would not have a significant adverse

impact on a substantial number of small

entities. This proposed 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 proposed 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 proposed rule 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 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

proposed 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 proposed

rule provides States with additional

flexibility that would lower the cost of

compliance with the Criteria for

Municipal Solid Waste Landfills. In

accordance with section 203, EPA has

shared this proposal with State

governments and asked for comment.

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.

[FR Doc. 97–19941 Filed 7–28–97; 8:45 am]

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