[Federal Register Volume 63, Number 89 (Friday, May 8, 1998)]
[Notices]
[Pages 25476-25479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12150]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6010-9]


Salt River Pima-Maricopa Indian Community; Tentative Approval of 
an Alternative Liner System Design and Use of Alternative Daily Cover 
Material for the Salt River Municipal Solid Waste Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Tentative determination on application of the Salt River Pima-
Maricopa Indian Community for approval of an alternative liner system 
design and use of alternative daily cover material for the Salt River 
Municipal Solid Waste Landfill, public hearing and public comment 
period.

-----------------------------------------------------------------------

SUMMARY: Subtitle D of the Resource Conservation and Recovery Act 
(RCRA), 42 U.S.C. 6941-6949a requires EPA to establish minimum federal 
criteria to ensure that municipal solid waste landfills are designed 
and operated in a manner that protects human health and the 
environment. These standards are codified at 40 CFR part 258. 
Generally, these criteria are technical standards and are self-
implementing. For many of these criteria, part 258 also establishes a 
flexible performance-based standard as an alternative to the self 
implementing regulations.
    The Salt River Pima-Maricopa Indian Community submitted 
applications for approval to use two of the flexible

[[Page 25477]]

standards at the Salt River Municipal Solid Waste Landfill. One 
application requests use of a geosynthetic clay liner in place of a 
composite liner. The second application requests use of a tarp system 
as cover in place of earthen material. EPA reviewed the applications 
and all supplementary material and tentatively approves these requests. 
This tentative approval applies solely to the Salt River Municipal 
Solid Waste Landfill located on Salt River Pima-Maricopa Indian 
Reservation in Arizona.
    Although RCRA does not require EPA to hold a public hearing on any 
site-specific flexibility request, Region 9 has scheduled a public 
hearing on these tentative approvals. Details appear below in the DATES 
section of this notice. The Salt River Pima-Maricopa Indian Community's 
applications and all supplementary material are available for public 
review and comment.

DATES: All comments on the Salt River Pima-Maricopa Indian Community's 
applications for approval of site-specific flexibility must be received 
by the close of business on June 10, 1998. A public hearing is 
scheduled for June 10, 1998 from 5-7 p.m. At the hearing, EPA may limit 
oral testimony to five minutes per speaker, depending on the number of 
commenters. Commenters presenting oral testimony must also submit their 
comments in writing at the hearing on June 10, 1998. The hearing may 
adjourn earlier than 7:00 pm if all of the speakers deliver their 
comments before that hour. Representatives of the Salt River Pima-
Maricopa Indian Community and the Salt River Municipal Solid Waste 
Landfill will be present at the public hearing.

ADDRESSES: Written comments should be sent to Ms. Susanna Trujillo, 
Mail Code WST-7, US EPA Region 9, 75 Hawthorne Street, San Francisco, 
California 94105.
    The public hearing will be held at Salt River Pima-Maricopa Indian 
Reservation, Community Development Conference Room, 1005 E. Osborne 
Road, Scottsdale, Arizona 85256. For further information, contact Steve 
Parker at (602) 850-8024.
    Copies of the Salt River Pima-Maricopa Indian Community's 
applications for site-specific flexibility are available for inspection 
and copying at: Salt River Pima-Maricopa Indian Reservation 
Administration Building, 1005 E. Osborne Road, Scottsdale, Arizona 
85256. Contact: Lonita Jim, Tribal Secretary (602) 850-8000 and the US 
EPA Region 9 Library, 75 Hawthorne Street 13th Floor, San Francisco, 
California, 94105, telephone (415) 744-1510, from 9 am to 5 pm Monday 
through Friday.

FOR FURTHER INFORMATION CONTACT: US EPA Region 9, 75 Hawthorne Street, 
San Francisco, California 94105, Attn: Ms. Susanna Trujillo, Mail Code 
WST-7 telephone (415) 744-2099.

SUPPLEMENTARY INFORMATION:

A. Regulatory Background

    Subtitle D of the Resource Conservation and Recovery Act (RCRA), as 
amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 
U.S.C. 6941-6949a, governs the disposal of nonhazardous solid waste and 
of small-quantity hazardous waste not regulated under Subtitle C of 
RCRA. Subtitle D prohibits ``open dumping'' and EPA established 
criteria for determining which solid waste facilities classified as 
``sanitary landfills'' which is ``open dumps.'' 40 CFR part 257, 
subpart A. Pursuant to HSWA, EPA added revised criteria to establish 
minimum federal standards to ensure that municipal solid waste 
landfills (MSWLF) are designed and operated in a manner that protects 
human health and the environment. The Federal revised criteria are 
codified at 40 CFR part 258. RCRA also requires states to implement 
permit programs to ensure that MSWLF facilities comply with the revised 
criteria (40 U.S.C. 6945(c)). EPA determines whether each state has 
developed an adequate solid waste permitting program and ``approves'' 
those states. In states that do not develop an adequate program, the 
regulations set forth in part 258 are self-implementing and apply to 
owners and operators of MSWLF units without additional EPA approval or 
review (40 CFR 258.1).
    For many of the criteria, part 258 establishes a flexible 
performance standard as an alternative to the self-implementing 
regulation. The flexibility provided in the MSWLF criteria allows for 
the consideration of site-specific conditions in designing and 
operating an MSWLF at the lowest cost possible while ensuring 
protection of human health and the environment. The flexible standard 
is not self-implementing, and use of the alternative standard is 
generally approved by the Director of an approved state. Part 258 does 
not currently provide owners and operators of MSWLF units located in 
Indian Country with a mechanism for obtaining approval of the flexible 
performance standards.
    Indian tribes are defined as ``municipalities'' under RCRA section 
1004(13), 42 U.S.C. 6903. As a ``municipality,'' the tribe would seek 
approval of design flexibility from the appropriate approved state. 
However, states are generally precluded from enforcing their civil 
regulatory programs in Indian Country absent an explicit Congressional 
authorization. California v. Cabazon Band of Mission Indians, 480 U.S. 
202 (1987). Including tribes as part of section 1004(13) was a 
definitional expedient, to avoid adding the phrase ``and Indian tribes 
or tribal organizations or Alaska Native villages or organizations'' 
wherever the term ``municipality'' appeared. By this definition, 
Congress did not intend to change the sovereign status of tribes for 
purposes of RCRA. In Backcountry Against Dumps v. EPA, 100 F.3d 147, 
151 (D.C.Cir. 1996), the District of Columbia Circuit Court determined 
that the inclusion of Indian Tribes as ``municipalities'' ``does not 
strip the tribe of its sovereign authority to govern its own affairs * 
* * [the tribe has the authority] to create and enforce its own solid 
waste management plan.'' RCRA does not grant the regulatory authority 
to develop and implement solid waste management plans to 
municipalities.
    Owners and operators of MSWLF units in Indian Country are not 
subject to state authority, they cannot obtain approval from the state 
for the performance standards included in part 258. Yet, the Federal 
revised criteria are silent as to the process by which MSWLF units in 
Indian Country can apply for the alternate standards.
    EPA proposes this site-specific rule to allow the Salt River Pima-
Maricopa Indian Community (``Community''), an owner/operator of an 
MSWLF in Indian Country, the same flexibility as owners and operators 
of MSWLF units in approved states. EPA derives its authority to 
promulgate this rule from sections 4004, 4005, and 4010 of RCRA, 42 
US.C. 6944, 6945, and 6949a. These sections provide the basis on which 
EPA developed the criteria distinguishing open dumps from landfills and 
the revised criteria in part 258. Nothing in these provisions limits 
EPA's ability to issue site-specific criteria. In this instance, where 
the existing part 258 regulations do not contain a process for approval 
of the flexible performance standards for MSWLF units in Indian 
Country, it is appropriate to issue a site-specific rule to supplement 
part 258 and address this unique situation. The U.S. District Court in 
the District of South Dakota reviewed this issue directly and upheld 
EPA's authority to issue a site-specific rule to provide design 
flexibility under subtitle D of RCRA. (Yankton Sioux Tribe v. US EPA), 
950 F.Supp. 1471 (D.S.D. 1996). The Yankton court determined that EPA

[[Page 25478]]

appropriately created an ``alternative mechanism'' to provide 
flexibility to the relevant MSWLF in Indian Country. The U.S. Court of 
Appeals for the D.C. Circuit also supports EPA's authority to issue 
such a site-specific rule under RCRA Subtitle D. (See Backcountry 
Against Dumps v. EPA, 100 F.3d at 152 (1996).) For a description of the 
suggested process used to apply for and approve flexibility requests in 
Indian Country, see EPA draft guidance entitled ``Site-Specific 
Flexibility Requests for MSWLFs in Indian Country'' (August 1997 
Document Number: EPA530-R-97-016).

B. EPA's Tentative Determination

1. Alternative Liner System Design (40 CFR 258.40)

    The Salt River Landfill (Landfill) is located on 200 acres of 
property east of Phoenix, Arizona. It is operated by the Salt River 
Pima-Maricopa Indian Community and serves as a sanitary landfill for 
the tri-city area of Mesa, Tempe, and Scottsdale, Arizona. Landfill 
operations began in October 1993 and are expected to continue until at 
least the year 2003. The landfill currently consists of three lined 
cells and three undeveloped cells. The three operational cells are 
lined with the composite liner prescribed by 40 CFR 258.40(b). On May 
23, 1997, the Community submitted an application to the EPA requesting 
approval to use a geosynthetic clay liner in place of a composite liner 
for the undeveloped cells of the Landfill.
    The federal revised criteria do not specifically include a 
procedure for EPA's tentative determination. However, EPA relied on the 
requirements set forth in 40 CFR 258.40 as a guideline for analyzing 
the Community's application.
    Generally, 40 CFR 258.40 (a)(1), (c), and (d) require the 
following:
    <bullet> The alternative liner design ensures that constituent 
concentrations of the chemicals listed in Table 1 of the criteria will 
not be exceeded in the uppermost aquifer at the relevant point of 
compliance; and
    <bullet> The alternative liner design addresses the hydrogeologic 
characteristics of the landfill site, climate, volume, and physical and 
chemical characteristics of the leachate, and models potential 
contaminant migration.
    EPA reviewed all information submitted by the Community and 
tentatively determined that the proposed alternative liner meets or 
exceeds the performance standards set forth in 40 CFR 258.40(a)(1), 
(c), and (d).

2. Alternative Daily Cover Materials (40 CFR 258.21)

    The federal revised criteria requires that MSWLF units must use six 
inches of earthen material to cover disposed solid waste each day. 40 
CFR 258.21(b) provides flexibility by allowing use of alternative 
materials and an alternative thickness if they control disease vectors, 
fires, odors, blowing litter, and scavenging without presenting a 
threat to human health and the environment.
    On June 2, 1997, the Community submitted an application to the EPA 
requesting approval to use any alternative daily cover material that 
Arizona has approved for that state. These materials consist of tarps, 
foams, chipped green waste, drinking water treatment residues, and 
chipped tires. The Community subsequently restricted their current 
application to the use of tarps as an alternative daily cover material.
    The federal revised criteria does not specifically include a 
procedure for EPA's tentative determination. However, EPA relied on the 
requirements set forth in 40 CFR 258.21 as a guideline for analyzing 
the Community's application. The Community proposes to use the 
Tarpomatic tarping operation, consisting of a polypropylene tarp rolled 
over the landfill material at the end of each business day and 
retrieved at the beginning of the next business day.
    EPA reviewed all information submitted by the Community and 
tentatively determined that the proposed alternative daily cover meets 
or exceeds the performance standards set forth in Section 258.21(b)
Public Comment
    EPA Region 9 will hold a public hearing on this tentative 
determination from 5:00 to 7:00 pm on June 10, 1998, at Salt River 
Pima-Maricopa Indian Reservation, Community Development Conference 
Room, 1005 E. Osborne Road, Scottsdale, Arizona 85256. For further 
information, contact Stu Baker at (602) 941-3427.
    The public may submit written comments on this tentative 
determination until June 10, 1998. Copies of the Community's 
applications and supplementary material are available for inspection 
at: Salt River Pima-Maricopa Indian Reservation Administration 
Building, 1005 E. Osborne Road, Scottsdale, Arizona 85256. Contact: 
Lonita Jim, Tribal Secretary (602) 850-8000 and the US EPA Region 9 
Library, 75 Hawthorne Street 13th Floor, San Francisco, California, 
94105, telephone (415) 744-1510, from 9 am to 5 p.m. Monday through 
Friday.
    EPA will consider all public comments on its tentative 
determination received at the hearing or during the public comment 
period. Issues raised by those comments may be the basis for a decision 
not to approve one or both of the Community's applications. EPA will 
make a final determination on whether or not to approve the Community's 
applications and will give notice of this decision in the Federal 
Register. The notice will include a summary of the reasons for the 
final determination and a response to all major comments.
Executive Order 12866
    Executive Order 12866 requires Office of Management and Budget 
review of ``significant regulatory actions.'' Significant regulatory 
actions are defined as those that (1) have an annual effect on the 
economy $100 Million or more or adversely affect a sector of the 
economy, including state, local or tribal governments or communities; 
(2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights or obligations of recipients; or (4) raise novel legal or 
policy issues. This tentative decision is a not a ``significant 
regulatory action'' and is not subject to the requirements of Executive 
Order 12866.
Executive Order 12875
    EO 12875 applies to regulations that create an unfunded mandate 
upon state, local or tribal government. As this tentative determination 
is site-specific and applies only to the Community as owner and 
operator of the Landfill's MSWLF, this tentative determination does not 
create an unfunded mandate for state, local, or tribal government.
Executive Order 13045
    Executive Order 13045 applies to rulemaking that (1) has an annual 
effect on the economy of $100 Million or more or adversely affects any 
sector of the economy and (2) may disproportionately create an 
environmental health or safety risk for children. This tentative 
decision to approve alternate landfill requirements will not result in 
such impacts and is not subject to the requirements of EO 13045.
Executive Order 12898
    Executive Order 12898 requires agencies to consider impacts on the 
health and environmental conditions in

[[Page 25479]]

minority and low-income communities with the goal of achieving 
environmental justice. This tentative determination to approve the 
Community's requests for use of an alternative landfill standard is 
consistent with EO 12898. By allowing the Community to use the site-
specific flexibility provided by part 258, the Community is placed on a 
parity with those owners and operators of MSWLF units regulated by 
authorized state Subtitle D programs. This tentative determination 
fosters non-discrimination in implementing Subtitle D of RCRA.
The National Technology Transfer and Advancement Act (NTTAA)
    The NTTAA requires agencies to consider using suitable voluntary 
consensus standards to carry out policy objectives or activities. As a 
rule of particular applicability, this tentative determination to 
approve the alternative landfill requirements is not subject to the 
NTTAA.
Paperwork Reduction Act
    This tentative decision is not an information collection request 
subject to the Paperwork Reduction Act.
The Regulatory Flexibility Act
    As a rule of particular applicability, this tentative determination 
to approve the alternative landfill requirements is not subject to the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act.
The Unfunded Mandates Reform Act
    This tentative determination is a rule of particular applicability 
and does not include a federal mandate imposing enforceable duties upon 
state, local, or tribal governments. On this basis, this tentative 
determination is not subject to the requirements of the Unfunded 
Mandates Act.

    Authority: This notice is issued under the authority of sections 
2002, 4004, 4005, and 4010 of the Solid Waste Disposal Act as 
amended, 42 U.S.C. 6912, 6944, 6945, and 6949a. The Regional 
Administrator is making this decision in accordance with EPA 
Delegations Manual No. 8-47 (October 8, 1993).

    Dated: April 27, 1998.
Felicia Marcus,
Regional Administrator.
[FR Doc. 98-12150 Filed 5-7-98; 8:45 am]
BILLING CODE 6560-50-P