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[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Rules and Regulations]
[Pages 28720-28724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10993]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-HQ-RCRA-2015-0126; FRL-9943-87-OLEM]
RIN 2050-AG75

Revision to the Research, Development and Demonstration Permits 
Rule for Municipal Solid Waste Landfills

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is publishing a 
final rule to revise the maximum permit term for Municipal Solid Waste 
Landfill (MSWLF) units operating under Research, Development and 
Demonstration (RD&D) permits. The RD&D permit program, which began in 
2004, allows landfill facilities to utilize innovative methods that 
vary from the run-on control systems, liquids restrictions, and final 
cover criteria prescribed in 40 CFR part 258 if these systems are 
determined by the Director of an approved State to be at least as 
protective as those criteria. The current rule limits permits for these 
units to three years, and they are renewable three times for a total 
permit term of 12 years. This revision allows the Director of an 
approved State to increase the

[[Page 28721]]

number of permit renewals to six, for a total permit term of up to 21 
years.

DATES: This final rule is effective on November 10, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-RCRA-2015-0126. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Craig Dufficy, Materials Recovery and 
Waste Management Division of the Office of Land and Emergency 
Management (mail code 5304P), U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone: 703-308-
9037; email: Dufficy.craig@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this rule are public or private 
owners or operators of MSWLFs. These entities include:

------------------------------------------------------------------------
                Category                   Example of affected entities
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State Governments......................  Regulatory agencies and
                                          agencies operating landfills.
Industry...............................  Owners or operators of
                                          municipal solid waste
                                          landfills.
Municipalities, including Tribal         Owners or operators of
 Governments.                             municipal solid waste
                                          landfills.
------------------------------------------------------------------------

    The affected entities may also fall under the North American 
Industry Classification System (NAICS) code 924110, Sanitation 
engineering agencies, government; or 562212, Solid Waste Landfill. This 
list of sectors 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 that the EPA believes 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
the applicability criteria found in 40 CFR part 258 and the Research, 
Development and Demonstration Permits for Municipal Solid Waste 
Landfills final rule, referred to as the ``2004 RD&D rule'' (69 FR 
13242, March 22, 2004). If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the agency taking?

    The EPA is revising the maximum permit term for MSWLF units 
operating under RD&D permits. The rule allows the Director of an 
approved State to issue up to six, 3-year permit renewals, for a total 
permit term of 21 years. The RD&D rule previously limited the total 
permit term to 12 years.
    The primary basis for this extension of the permit period to up to 
21 years is to provide the EPA more time to characterize the 
performance of RD&D projects without making the permit period so long 
as to be open-ended. The EPA believes that the period of 21 years 
strikes an appropriate balance between providing more time for projects 
to continue operations as research facilities, while providing enough 
time for the EPA to consider making additional changes to the part 258 
MSWLF regulations.

C. What is the agency's authority for taking this action?

    The authority for this rulemaking 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).

D. What are the anticipated effects and benefits of this action?

    The anticipated effect of this action is to provide the Director of 
an approved State the ability to issue renewals to existing RD&D 
permits, as well as new RD&D permits, for up to 21 years instead of 12 
years. During this time, the EPA will continue to evaluate data from 
these facilities. There are approximately 30 facilities currently 
operating with RD&D permits. It is also relevant to one facility 
operating on tribal lands under a site-specific action. Additional 
facilities may also seek an RD&D permit in the future. The EPA has no 
information with which to estimate whether any new facilities will seek 
RD&D permits. Owners/operators operating under existing RD&D permits 
are not expected to incur any new costs as a result of this final rule. 
The annual costs for ongoing recordkeeping and annual reporting 
requirements are estimated at $2,410 per facility.
    It is important to note that applying for a RD&D permit remains 
voluntary. This action does not impose any new regulatory burden. This 
action allows the Director of an approved State to increase the number 
of extensions of the permit period for existing facilities, or offer 
more extensions of the permit term for new facilities, for those owners 
and operators who choose to participate in this research program. 
Increasing the possible number of extensions of the RD&D permit term 
may benefit current owners and operators of RD&D units by providing 
additional time to recover their costs, if the Director of an approved 
State chooses to extend existing permits. For example, data from one 
RD&D permitted facility show a projected increase of 3% in the rate of 
return for 20 years compared to 12 years.\1\
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    \1\ See docket item EPA-HQ-RCRA-2015-0126-0012, Smiths Creek 
Bioreactor Report.
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    Increasing the possible number of extensions of RD&D permit terms 
is also expected to provide more time for the EPA to collect additional 
data on the potential benefits of the approaches being taken under 
these RD&D permits. These potential benefits include: Decreased costs 
for leachate treatment due to leachate recirculation in bioreactors; 
increased revenue from the sale of landfill gas for use as a renewable 
source of fuel; decreased risk due to a reduction in the transportation 
of leachate for treatment; accelerated production and capture of 
landfill gas for use as a renewable fuel; and accelerated stabilization 
and corresponding decreased post-closure care activities, for 
facilities as a result of the accelerated decomposition of waste.

II. Background

    Under Subchapter IV of RCRA, 42 U.S.C. 6941-6949a, the EPA has 
promulgated minimum national standards for MSWLFs at 40 CFR part 258 
(56 FR 50978, October 9, 1991). As specified in 42 U.S.C. 6981(a), RCRA 
also directs EPA to encourage research and development for, among other 
things, the development and application of new and improved methods of 
collecting and disposing of solid waste.

[[Page 28722]]

    The initial 1991 MSWLF regulations addressed seven basic areas: 
Location restrictions; operation; design; groundwater monitoring; 
corrective action; closure and post-closure care; and financial 
assurance. These MSWLF landfill regulations focused on dry-tomb 
landfills to minimize the possibility of groundwater contamination from 
the production and subsequent leakage of leachate. After the 
promulgation of those standards, the EPA became aware that landfill 
technology had advanced sufficiently that some alternative designs and 
operations could benefit from further study through research and 
demonstration projects. For example, some of these methods, 
particularly the addition of liquids and leachate recirculation, could 
accelerate biodegradation and provide additional potential benefits. 
These include:

--Acceleration of landfill gas generation which can be collected as a 
source of renewable fuel;
--minimization of leachate treatment requirements during the 
operational life of the landfill;
--more rapid reduction in concentration of leachate constituents of 
concern, thereby limiting the corresponding post-closure activities for 
leachate control; and
--an increase in the rate of landfill settlement resulting in the more 
efficient use of permitted landfill capacity.

    As a means to advance innovation in landfill design, in 2000 the 
EPA selected four landfills to participate in its Project XL 
program,\2\ all of which involved some use of bioreactor technology or 
leachate recirculation. The landfills are located in Buncombe County, 
North Carolina; Yolo County, California; King George County, Virginia; 
and the Maplewood facility in Amelia Country, Virginia.
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    \2\ EPA began Project XL in 1995, and accepted projects until 
2002, as a national pilot program to help business, state and local 
governments, and federal facilities work with EPA to develop and 
test innovative approaches to achieve better and more cost-effective 
environmental and public health protection. The provisions for the 
four Project XL landfills discussed here are codified in Sec.  
258.41.
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    In addition to Project XL, in 2001 the EPA began using Cooperative 
Research and Development Agreements (CRADAs) to promote collaborative 
research between federal and non-federal scientists as an additional 
means to explore the addition of liquids to landfills to promote faster 
biodegradation and stabilization. Bioreactor landfill sites operating 
with CRADAs include the Outer Loop landfill in Louisville, Kentucky; 
and the Polk County landfill in Florida.
    Subsequently, in 2004, the EPA amended the part 258 MSWLF 
regulations to create a broader RD&D research program. The 2004 RD&D 
action (69 FR 13242, March 22, 2004), which added Sec.  258.4, enabled 
the Director of an approved State to allow RD&D projects with variances 
to specific provisions of the MSWLF criteria, including variances from 
operating criteria in part 258 with respect to run-on controls (Sec.  
258.26(a)(1)) and the liquids restrictions in Sec.  258.28(a). In 
addition, the 2004 RD&D rule allows an additional variance for the 
final cover requirements set forth in the closure criteria in Sec.  
258.60(a)(1), (a)(2) and (b)(1). The 2004 RD&D rule limits the duration 
of the initial permit to three years, and the permit can be renewed for 
up to three additional 3-year terms, for a total of 12 years.
    As of March 2014, in the most recent compilation of data available 
to the EPA, there were 30 active RD&D projects in 11 approved states 
and one project on tribal lands.\3\ The maximum permit period for the 
first of these projects is coming to an end. This final rule allows the 
Director of an approved State to continue to extend the permit period 
for up to a total of 21 years to allow for continued research.
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    \3\ Permitting of Landfill Bioreactor Operations: Ten years 
After the RD&D Rule, EPA document number EPA/600/R-14/335.
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A. What did EPA propose?

    EPA proposed this rulemaking through an action in the Federal 
Register published at 80 FR 70180, November 13, 2015. EPA proposed to 
allow the Director of an approved State to increase the maximum term 
for RD&D permits from 12 to 21 years at Sec.  258.4(e)(1), in order to 
provide the EPA more time to continue to support research into the 
performance of bioreactors, alternative covers and run-on systems. In 
effect, the proposal would allow the Director of an approved State to 
increase the number of permit renewals from three to six. The EPA did 
not propose any other changes to the RD&D permit program and made it 
clear that EPA was not reopening at this time any other provision of 
the existing RD&D rule or MSWLF criteria in 40 CFR part 258.
    Separately from this final rule, the EPA plans to publish an 
Advanced Notice of Proposed Rulemaking (ANPRM) seeking comment on the 
possibility of revising other sections of the MSWLF criteria (40 CFR 
part 258) to authorize the operation of wet landfills and bioreactors 
and other possible changes to the national criteria on a permanent 
basis. Interested parties will have an opportunity to comment on 
broader issues relating to bioreactor operation during the public 
comment period on that ANPRM.
    In response to the 80 FR 70180, November 13, 2015 proposed rule, 
the Agency received six sets of comments during the comment period that 
closed on December 14, 2015. The six sets of comments were from: The 
States of Iowa, Kansas, Michigan and Nebraska; the Southeast Michigan 
Council of Governments, and the Solid Waste Disposal and Conversion 
Task Force of the Association of State and Territorial Solid Waste 
Management Officials. All comments can be reviewed on-line at http://www.regulations.gov/, using ``EPA-HQ-RCRA-2015-0126'' in the search 
box, and then by opening the docket folder and select `view comments' 
to review any or all of the comments.
    Five of the six commenters expressed support for extending maximum 
permit term for RD&D permits to EPA's proposed term of 21 years. 
Several commenters (including the one commenter that did not support an 
extension to 21 years) indicated support for eliminating the overall 
permit term entirely, arguing that any time limit may discourage 
entities from making investments. Several commenters also encouraged 
the EPA to establish a mechanism to convert RD&D permits into permanent 
designs and operational practices subject to appropriate monitoring and 
performance standards as administered by an approved state. Commenters 
indicated support for making permanent changes to the regulations at 40 
CFR part 258 to authorize bioreactor operations.
    After consideration of these comments, and in light of other 
information in the record, the EPA has decided to issue the final rule 
as proposed. The EPA disagrees with the comments that the RD&D permit 
program should not be time-limited, which is consistent with the EPA 
position since the original RD&D rule was promulgated in 2004. The RD&D 
permits have always been intended to be used for innovation and 
experimentation for a limited period of time. As such, the RD&D rule is 
not intended to authorize activities on a permanent basis, as unlimited 
renewals could effectively allow. In addition, EPA notes that the 
commenters did not suggest an alternative, discrete, maximum time frame 
other than EPA's proposal for a maximum permit term of 21 years.
    The issue of making changes to the part 258 regulations to 
authorize

[[Page 28723]]

bioreactor operations on a permanent basis is outside the scope of this 
rule, as EPA stated in the proposed rule (80 FR 70180, November 13, 
2015). As discussed previously, EPA plans to publish an ANPRM 
requesting data relating to wet landfills and bioreactors. EPA intends 
this ANPRM to begin the process of considering additional changes to 
the part 258 regulations. In that proceeding, the commenters are free 
to raise concerns about how existing RD&D projects can be appropriately 
addressed under any potential future amendments to the existing MSWLF 
regulations. Thus, the comments did not change EPA's view that a 
maximum term of 21 years is an appropriate balance between allowing 
more time for continued research by EPA and allowing the facilities to 
continue operating for a significant but not open-ended period of time.

B. Basis for This Final Rule

    In the 2004 RD&D final rule, the EPA made clear its intention that 
MSWLF RD&D permits be of limited duration while also providing data to 
support future rulemaking. This final rule is intended to further these 
dual goals. Although the EPA does not expect that all RD&D permits will 
necessarily extend to the full permit term, the EPA believes that the 
current 12-year time limit may not be sufficient to realize potential 
benefits in all cases. Thus, extending the permit period for up to 21 
years will provide more time to collect data on potential benefits and 
any problems without making the permit period so long as to be open-
ended.
    Extending the maximum permit term will help continuing efforts to 
collect data at existing RD&D units. If the EPA did not take this 
action, owners and operators using existing RD&D permits would need to 
make significant modifications to their disposal units or cease 
operation altogether, before reaching the end of their normal 
operations or closure. Because of the potential environmental benefits 
that may be derived from bioreactors, alternative cover designs, and 
run-on systems, the EPA believes that it is important to extend the 
maximum permit period to 21 years to provide more time to characterize 
the performance of RD&D projects without making the permit period so 
long as to be open-ended.
    The EPA also wishes to enhance the economic feasibility to build 
and operate bioreactors or employ alternative approaches for final 
covers, which would provide additional sources of data in the future. 
The EPA has heard from stakeholders that limiting the permit period to 
12 years has the unintended consequence of discouraging the development 
of bioreactors.

C. Implementation of This Final Rule

    This rule does not require states with EPA-approved RD&D programs 
to modify their solid waste permit programs. Since this change to the 
2004 RD&D rule provides more flexibility than existing federal 
criteria, states are not required to amend existing solid waste permit 
programs that have been determined by EPA to be adequate under 40 CFR 
part 239. At the same time, the RD&D rule (including the revised 
maximum permit term) is not self-implementing, and states are required 
to adopt the RD&D rule and obtain EPA approval for their RD&D program 
in order to issue a RD&D permit. States previously approved to issue 
RD&D permits that wish to increase the total length of time for which 
RD&D permits can be issued will need to notify the EPA in accordance 
with 40 CFR part 239. States with EPA-approved solid waste permit 
programs that have not previously sought approval for an RD&D program 
and now wish to do so will need to apply to EPA for approval of an RD&D 
program, including approval of the longer time period allowed by this 
rulemaking. Any state without an EPA-approved solid waste permit 
program may submit an application to EPA for a determination of 
adequacy under 40 CFR part 239 and may include a request for approval 
of the RD&D permit provisions reflecting the longer time period allowed 
by this rule. For MSWLF units located in Indian Country, EPA intends to 
consider the longer maximum permit term when issuing or modifying any 
site-specific RD&D rule. EPA has previously issued draft guidance on 
the site-specific flexibility request process in Indian Country. See 
``Site-Specific Flexibility Requests for Municipal Solid Waste 
Landfills in Indian Country,'' EPA 530-R-97-016, August 1997.

III. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new Information Collection Request 
(ICR) burden under the PRA. The purpose of this action is to extend the 
maximum allowable permit period for this program, and this change to 
the RD&D program itself does not impose any additional reporting 
requirements. The OMB has previously approved the information 
collection activities contained in the existing regulations in two 
different, applicable ICRs. The ICRs affected by this proposal are for 
40 CFR part 239, Requirements for State Permit Program Determination of 
Adequacy and part 258, MSWLF Criteria. The OMB has reviewed the ICR for 
part 239 (ICR# 1608.07, OMB# 2050-0152). The EPA will request comments 
under the ICR review process from states that plan to make these 
revisions so that the EPA can better understand the expected burden 
that would be incurred by states who wish to make these changes. In 
addition, the EPA will also be requesting information from MSWLF 
owners/operators on the reporting burden that they would incur under an 
extended permit term provided in accordance with this rule under the 
part 258, MSWLF criteria ICR (ICR# 1381.09, OMB# 2050-0122) when that 
review process begins. This process is scheduled to be completed in 
June 2016.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. 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, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This rule will not create any additional 
burden for small entities. Small entities are not required to take any 
action as a consequence of this rule, and this action will not have a 
significant impact on a substantial number of small entities. We have 
therefore concluded that this action will have no net regulatory burden 
for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small

[[Page 28724]]

governments. The action imposes no enforceable duty on any state, local 
or tribal governments or the private sector. The costs involved in this 
action are imposed only by voluntary participation in a federal 
program.

E. Executive Order 13132: Federalism

    This action 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. The EPA has concluded that this action will have 
no new tribal implications, nor would it present any additional burden 
on the tribes. It will neither impose substantial direct compliance 
costs on tribal governments, nor preempt tribal law. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045, because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. The underlying RD&D rule requires all RD&D permits to include 
terms and conditions that are at least as protective as the criteria 
for municipal solid waste landfills to assure protection of human 
health and the environment, and this rule does not reopen or otherwise 
change that requirement.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health and environmental risk addressed 
by this action will not have a new disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. The underlying RD&D regulations require all 
RD&D permits to include terms and conditions that are at least as 
protective as the criteria for municipal solid waste landfills to 
assure protection of human health and the environment. This final rule 
is an administrative action to extend the maximum permit period, and it 
does not reopen or otherwise change the requirement for protectiveness. 
Therefore, the EPA finds that the human health and environmental risks 
addressed by this action will not have disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations, because this action does not affect the 
level of protection provided to human health or the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 258

    Environmental protection, Municipal landfills, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Dated: April 29, 2016.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
258 as follows:

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

0
1. The authority citation for part 258 continues to read as follows:

    Authority:  33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).

Subpart A--General

0
2. Revise Sec.  258.4(e)(1) to read as follows:

Sec.  258.4  Research, development, and demonstration permits.

* * * * *
    (e) * * *
    (1) The total term for a permit for a project including renewals 
may not exceed twenty-one (21) years; and
* * * * *
[FR Doc. 2016-10993 Filed 5-9-16; 8:45 am]
 BILLING CODE 6560-50-P
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