50930 Federal Register / Vol. 75, No. 159 / Wednesday, August 18, 2010 / Rules and Regulations 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: August 9, 2010. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In §180.960, the table is amended 

by adding alphabetically the following 

polymers to read as follows: 

§ 180.960 Polymers; exemptions from the 

requirement of a tolerance. 

* * * * * 

Polymer CAS No. 

*******

[2-propenoic acid, 2-methyl-, C12-16-alkyl esters, telomers with 1-dodecanethiol, poly 

ethylene-polypropylene glycol ether with propylene glycol monomethacrylate (1:1), and styrene 2,2’-(1,2-diazenediyl)bis[2-methylbutanenitrile]-initiated, minimum number average 

molecular weight (in amu), 4,000 950207–35–9 

*******

[FR Doc. 2010–20297 Filed 8–17–10; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 258 

[EPA–R08–RCRA–2009–0621; FRL–9149–7] 

Final Determination To Approve 

Alternative Final Cover Request for the 

Lake County, Montana Landfill 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency Region VIII is making a final 

determination to approve an alternative 

final cover for the Lake County landfill, 

a municipal solid waste landfill 

(MSWLF) owned and operated by Lake 

County, Montana on the Confederated 

Salish and Kootenai Tribes’ Flathead 

Reservation in Montana. EPA is 

promulgating a site-specific rule 

proposed on February 10, 2010, that 

approves an alternative final cover for 

the Lake County, Montana landfill. 

DATES: This final rule is effective on 

August 18, 2010. The incorporation by 

reference of certain publications listed 

in this rule has been approved by the 

Director of the Federal Register on 

August 18, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–RCRA–2009–0621. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information may not be publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency 

Region VIII, Montana Office, 10 West 

15th Street, Suite 3200, Helena, 

Montana. The Environmental Protection 

Agency Region VIII Montana Office is 

open from 8 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays, and is located in a secure 

building. To review docket materials at 

this location, it is recommended that the 

public make an appointment by calling 

(406) 457–5000 during normal business 

hours. 

FOR FURTHER INFORMATION CONTACT: 

Susanna Trujillo, Solid and Hazardous 

Waste Program, 8P–HW, Environmental 

Protection Agency, 1595 Wynkoop St., 

Denver, CO 80202; telephone number: 

(303) 312–7008; fax number: (303) 312– 

6341; e-mail address: 

trujillo.susanna@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What did EPA propose? 

After completing a review of Lake 

County’s final site-specific flexibility 

application request, dated July 11, 2007, 

and March 17, 2008, and the 

amendments to that application, dated 

January 22, 2009, EPA proposed to 

approve in the Federal Register on 

February 10, 2010, (75 FR 6597) Lake 

County’s site-specific flexibility request 

to install an alternative final cover that 

varies from the final closure 

requirements of 40 Code of Federal 

Regulations (CFR) 258.60(a), but meets 

the criteria at 40 CFR 258.60(b). This 

approval would apply to the 15.4 acres 

of the landfill that have not been 

previously closed. 

B. What is a site-specific flexibility 

request? 

Under Sections 1008, 2002, 4004, and 

4010 of the Resource Conservation and 

Recovery Act of 1976 (RCRA) as 

amended by the Hazardous and Solid 

Waste Amendments of 1984 (HSWA), 

EPA established revised minimum 

Federal criteria for MSWLFs, including 

landfill location restrictions, operating 

standards, design standards and 

requirements for ground water 

monitoring, corrective action, closure 

and post-closure care, and financial 

assurance. Under RCRA Section 4005(c), 

States are required to develop permit 

programs for facilities that may receive 

household hazardous waste or waste 

from conditionally exempt small 

quantity generators, and EPA 

determines whether the program is 

adequate to ensure that facilities will 

comply with the revised criteria. 

The MSWLF criteria are at 40 CFR 

part 258. These regulations are selfimplementing and apply directly to 

owners and operators of MSWLFs. For 

many of these criteria, 40 CFR part 258 

includes a flexible performance 

standard as an alternative to the selfimplementing regulation. The flexible 

standard is not self-implementing, and 

use of the alternative standard requires 

approval by the Director of a State with 

an EPA-approved program. 

Because EPA’s approval of a State 

program does not extend to Indian 

country, owners and operators of 

MSWLF units located in Indian country 

cannot take advantage of the flexibilities 

available to those facilities subject to an 

approved State program. However, the 

EPA has the authority under Sections 

2002, 4004, and 4010 of RCRA to 

promulgate site-specific rules that may 

provide for use of alternative standards 

in Indian country. See Yankton Sioux 


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Federal Register / Vol. 75, No. 159 / Wednesday, August 18, 2010 / Rules and Regulations 50931 

Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 

1996); Backcountry Against Dumps v. 

EPA, 100 F.3d. 147 (DC Cir. 1996). EPA 

has developed draft guidance on 

preparing a site-specific request to 

provide flexibility to owners or 

operators of MSWLFs in Indian country 

(Site-Specific Flexibility Requests for 

Municipal Solid Waste Landfills in 

Indian Country Draft Guidance, 

EPA530–R–97–016, August 1997). 

The regulation at 40 CFR 258.60(a) 

establishes closure criteria for MSWLF 

units that are designed to minimize 

infiltration and erosion. The regulation 

requires final cover systems to be 

designed and constructed to: 

(1) Have a permeability of less than or 

equal to the permeability of any bottom 

liner system or natural sub-soils present, 

or a permeability no greater than 1 × 

10 5 cm/sec, whichever is less, and 

(2) Minimize infiltration through the 

closed MSWLF by the use of an 

infiltration layer that contains a 

minimum of 18 inches of earthen 

material, and 

(3) Minimize erosion of the final cover 

by the use of an erosion layer that 

contains a minimum of 6 inches of 

earthen material that is capable of 

sustaining native plant growth. 

The regulation at 40 CFR 258.60(b) 

allows for variances from these 

specified MSWLF closure criteria. 

Specifically, the rule allows for the 

Director of an approved state to approve 

an alternative final cover design that 

includes: 

(1) An infiltration layer that achieves 

an equivalent reduction in infiltration as 

the infiltration layer specified in 

paragraphs (a)(1) and (a)(2) of 40 CFR 

258.60, and 

(2) An erosion layer that provides 

equivalent protection from wind and 

water erosion as the erosion layer 

specified in paragraph (a)(3) of 40 CFR 

258.60. 

C. Overview of Lake County’s SiteSpecific Flexibility Request and EPA’s 

Action 

Today, EPA is making a final 

determination to approve Lake County’s 

site-specific flexibility request to install 

an alternative final landfill cover that 

meets the requirements of 40 CFR 

258.60(b). The County’s request is 

discussed in further detail in the 

February 10, 2010 proposal. 

EPA is basing its final determination 

on a number of factors, including 

unsaturated soil modeling, site-specific 

climatic and soils data, and the results 

of a pilot test of the viability of an 

evapotranspiration cover conducted at 

the site by the County’s consultants, the 

Desert Research Institute, and EPA. The 

results of the pilot test indicated that the 

evapotranspiration cover will perform 

better than the standard prescriptive 

cover in 40 CFR 258.60(a) in preventing 

movement of leachate through the 

system. 

EPA has determined that Lake County 

has demonstrated that the proposed 

infiltration layer for the landfill cover 

achieves an equivalent reduction in 

infiltration as the infiltration layer 

specified in paragraphs (a)(1) and (a)(2) 

of 40 CFR 258.60, and the erosion layer 

provides equivalent protection from 

wind and water erosion as the erosion 

layer specified in paragraph (a)(3) of 40 

CFR 258.60. On January 22, 2009, Lake 

County submitted a ‘‘Construction 

Quality Assurance & Control Plan’’ for 

the closure project that specifies that 

testing will be performed on each 

component as it is installed. Testing 

frequencies and standards during 

construction are described in detail in 

the ‘‘Construction Quality Assurance 

and Control Plan.’’ 

As part of this final determination, 

EPA is requiring that Lake County 

submit to EPA for approval at 50% final 

design, an Operations and Maintenance 

Plan that includes an inspection 

schedule (at least quarterly) and 

remediation plan to address any 

potential rodent damage to the final 

cover. Lake County must achieve revegetation rates of greater than 50% on 

the closed landfill by the end of the first 

season and a complete stand of native 

grasses by the end of the third season. 

EPA is also requiring the landfill owner 

and operator to place documentation 

demonstrating compliance with the 

provisions of the site-specific rule in the 

operating record. 

D. Summary of Public Comments 

Received and Response to Comments 

EPA received no comments during the 

public comment period regarding 

approval of an alternative final cover for 

the Lake County, Montana landfill, as 

proposed in the Federal Register on 

February 10, 2010. 

II. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 

‘‘Regulatory Planning and Review’’ (58 

FR 51735, October 4, 1993), this rule is 

not of general applicability and, 

therefore, is not a regulatory action 

subject to review by the Office of 

Management and Budget (OMB). 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.) 

because it applies to a particular facility 

only. 

Because this rule is of particular 

applicability relating to a particular 

facility, it is not subject to the regulatory 

flexibility provisions of the Regulatory 

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

to sections 202, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). Because this 

rule will affect only a particular facility, 

it will not significantly or uniquely 

affect small governments, as specified in 

section 203 of UMRA. 

Because this rule will affect only a 

particular facility, this proposed rule 

does not have federalism implications. 

It will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132, 

‘‘Federalism,’’ (64 FR 43255, August 10, 

1999). Thus, Executive Order 13132 

does not apply to this rule. 

This rule also is not subject to 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

basis for this belief is EPA’s analysis of 

the potential risks posed by Lake 

County’s proposal and the controls and 

standards set forth in the application. 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355 May 22, 2001), because it is 

not a significant regulatory action under 

Executive Order 12866. 

As required by section 3 of Executive 

Order 12988, ‘‘Civil Justice Reform,’’ (61 

FR 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ (65 FR 

67249, November 9, 2000), calls for EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ EPA has concluded that 

this action may have Tribal implications 

because it is directly applicable to a 

facility operating on the Confederated 

Salish and Kootenai Tribes’ Flathead 

Reservation. However, this 


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50932 Federal Register / Vol. 75, No. 159 / Wednesday, August 18, 2010 / Rules and Regulations 

determination will neither impose 

substantial direct compliance costs on 

Tribal governments, nor preempt Tribal 

law. This determination to approve the 

Lake County’s application will affect 

only the Lake County’s operation of the 

County’s landfill. 

EPA consulted with the Confederated 

Salish and Kootenai Tribes early in the 

process of making this determination to 

approve the County’s alternative final 

cover request so that the Tribes had the 

opportunity to provide meaningful and 

timely input. Between 2007 and 2009, 

technical issues were raised and 

addressed by both the Tribes and EPA 

concerning Lake County’s proposal. 

EPA’s consultation with the Tribes 

culminated in a letter of July 15, 2009, 

from the Tribes, in which they stated 

that they have no further issues with the 

Lake County proposal. The Tribes did 

not offer any additional comments 

during the public comment period 

announced in the Federal Register on 

February 10, 2010. 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTA) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities, 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards, (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide to Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

The technical standards included in 

the application were proposed by Lake 

County. Given EPA’s obligations under 

Executive Order 13175 (see above), the 

Agency has, to the extent appropriate, 

applied the standards established by the 

County and accepted by the Tribes. In 

addition, the Agency evaluated the 

proposal’s design against the 

engineering design and construction 

criteria contained in the EPA draft 

guidance document, ‘‘Water Balance 

Covers for Waste Containment: 

Principles and Practice (2009).’’ 

Authority: Sections 1008, 2002, 4004, and 

4010 of the Solid Waste Disposal Act, as 

amended, 42 U.S.C. 6907, 6912, 6944, and 

6949a. Temporary Delegation of Authority to 

Promulgate Site-Specific Rules to Respond to 

Requests for Flexibility from Owners/ 

Operators of Municipal Solid Waste Landfill 

Facilities in Indian Country, October 14, 

2009, Incorporation by Reference. 

List of Subjects in 40 CFR Part 258 

Environmental protection, 

Incorporation by reference, Municipal 

landfills, Reporting and recordkeeping 

requirements, Waste treatment and 

disposal. 

Dated: April 22, 2010. 

Carol Rushin, 

Acting Regional Administrator, Region VIII. 

Editorial Note: This document was 

received in the Office of the Federal Register 

on August 11, 2010. 

■ For the reasons stated in the preamble, 

40 CFR part 258 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: 33 U.S.C. 1345(d) and (e); 42 

U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) 

and 6949a(c), 6981(a). 

Subpart F—[Amended] 

■ 2. Add § 258.62 to subpart F to read 

as follows: 

§ 258.62 Approval of Site-Specific 

Flexibility Requests in Indian Country. 

(a) Lake County Municipal Landfill 

final cover requirements. Paragraph (a) 

of this section applies to the Lake 

County Landfill, a municipal solid 

waste landfill owned and operated by 

Lake County on the Confederated Salish 

and Kootenai Tribes’ Flathead 

Reservation in Montana. The alternative 

final cover request submitted by Lake 

County, Montana, consisting of the 

‘‘Lake County Landfill Alternative 

Cover,’’ dated May 2007, the 

‘‘Construction Quality Assurance & 

Control Plan for the Lake County Class 

II Landfill Unit Landfill Closure Project’’ 

and the ‘‘Lake County Landfill Plans for 

Final Closure January 2009,’’ dated 

January 2009, is hereby incorporated by 

reference. The Director of the Federal 

Register approves this incorporation by 

reference in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. You may 

inspect or obtain a copy at the 

Environmental Protection Agency, 

Region VIII, Montana Office, 10 West 

15th St., Suite 3200, Helena, MT or by 

calling 406–457–5000. You may also 

inspect a copy at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call 202–741– 

6030, or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. The facility owner 

and/or operator may close the facility in 

accordance with this application, 

including the following activities more 

generally described as follows: 

(1) The owner and operator may 

install an evapotranspiration system as 

an alternative final cover for the 15.4 

acre active area. 

(2) The final cover system shall 

consist of a 5.5-feet-thick multi-layer 

cover system comprised, from bottom to 

top, of an 18-inch intermediate and gas 

vent layer, a 24-inch native sand layer, 

an 18-inch imported silt layer and a 

6-inch topsoil layer, as well as seeding 

and erosion control. 

(3) The final cover system shall be 

constructed to achieve an equivalent 

reduction in infiltration as the 

infiltration layer specified in 

§ 258.60(a)(1) and (a)(2), and provide an 

equivalent protection from wind and 

water erosion as the erosion layer 

specified in paragraph (a)(3) of this 

section. 

(4) In addition to meeting the 

specifications of the ‘‘Lake County 

Landfill Alternative Cover’’ dated May 

2007, and the ‘‘Construction Quality 

Assurance & Control Plan for the Lake 

County Class II Landfill Unit Landfill 

Closure Project’’ dated January 2009, the 

owner and operator shall: 

(i) At 50% final design, submit to EPA 

for approval an Operations and 

Maintenance Plan that includes an 

inspection schedule (at least quarterly) 

and remediation plan to address any 

potential rodent damage to the final 

cover; and 

(ii) Achieve re-vegetation rates greater 

than 50% by the end of the first season 

and a complete stand of native grasses 

by the end of the third season. 

(5) The owner and operator shall 

place documentation demonstrating 

compliance with the provisions of this 

Section in the operating record. 

(6) All other applicable provisions of 

40 CFR part 258 remain in effect. 

[Reserved] 

[FR Doc. 2010–20184 Filed 8–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R01–RCRA–2010–0468–FRL–9190–6] 

Massachusetts: Final Authorization of 

State Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Commonwealth of 

Massachusetts applied to EPA for final 


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