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###### Environmental Protection Agency

          - 40 CFR Part 258
          - [EPA-R09-RCRA-2008-0354; FRL-8777-9]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Final Rule.

# SUMMARY:

The Environmental Protection Agency Region IX is making a final determination to approve a research, development, and demonstration (RD&D) project at the Salt River Landfill, a commercial municipal solid waste landfill (MSWLF) owned and operated by the Salt River Pima-Maricopa County Indian Community (SRPMIC) on the SRPMIC reservation in Arizona. EPA is promulgating a site-specific rule proposed on August 4, 2008, that approves the RD&D project at the Salt River Landfill.

# DATES:

This final rule is effective on March 19, 2009. The incorporation by reference of certain publications listed in this rule have been approved by the Director of the Federal Register on March 19, 2009.

# ADDRESSES:

                        EPA has established a docket for this action under Docket ID No. EPA-R09-RCRA-2008-0354. 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 either electronically through                         *http://www.regulations.gov*                         or in hard copy at the Docket Facility located at the Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, California. The Docket Facility is open from 9 a.m. to 4 p.m., Monday through Thursday, excluding legal holidays, and is located in a secured building. To review docket materials at the Docket facility, it is recommended that the public make an appointment by calling the Docket Facility at (415) 947-4406 during normal business hours.                    

# FOR FURTHER INFORMATION CONTACT:

                        Karen Ueno, Waste Management Division, WST-7, Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105-3901;                         *telephone number:*                         (415) 972-3317;                         *fax number:*                         (415) 947-3530;                         *e-mail address: ueno.karen@epa.gov*.                    

# SUPPLEMENTARY INFORMATION:

      ( print page 11678)    

## I. General Information

### A. What Did EPA Propose?

                    After completing a review of SRPMIC's final site-specific flexibility application request, dated September 27, 2007, and the amendments to that application, dated April 8, 2008, EPA proposed to approve in the                     **Federal Register**                     on August 4, 2008, (73 FR 45187) SRPMIC's site-specific flexibility request to: (1) Install an alternative bottom liner system in an area of the landfill known as Phase VI and to operate Phase VI as an anaerobic bioreactor by recirculating leachate and landfill gas condensate, and adding storm water and groundwater to the below grade portions of Phase VI; and (2) recirculate leachate and landfill gas condensate and add storm water and groundwater to the below grade portions of areas of the landfill known as Phases IIIB and IVA to increase the moisture content of the waste mass in these phases, both of which have alternative bottom liner systems, which were previously approved by EPA.                

### 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, states are 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 in the Code of Federal Regulations at 40 CFR part 258. These regulations are self-implementing 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 self-implementing regulation. The flexible standard is not self-implementing, and use of the alternative standard requires approval by the Director of an EPA-approved state.

                    Since EPA's approval of the State of Arizona's program generally 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 the 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. See                     *Yankton Sioux Tribe*                     v.                     *EPA*, 950 F. Supp. 1471 (D.S.D. 1996);                     *Backcountry Against Dumps*                     v.                     *EPA*, 100 F.3d 147 (D.C. 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).                

On March 22, 2004, EPA issued a final rule at 40 CFR 258.4 amending the municipal solid waste landfill criteria to allow for RD&D permits. (69 FR 13242). This rule allows for variances from specified criteria for a limited period of time. Specifically, the rule allows for the Director of an approved state to issue a time-limited RD&D permit for a new MSWLF unit, existing MSWLF unit, or lateral expansion, for which the owner or operator proposes to use innovative and new methods which vary from either or both of the following: (1) The run-on control systems at 40 CFR 258.26(a)(1); and/or (2) the liquids restrictions at 40 CFR 258.28(a), provided that the MSWLF unit has a leachate collection system designed and constructed to maintain less than a 30-cm depth of leachate on the liner. The rule also allows for the issuance of a time-limited RD&D permit for which the owner or operator proposes to use innovative and new methods that vary from the final cover criteria at 40 CFR 258.60(a)(1) and (2), and (b)(1), provided that the owner or operator demonstrates that the infiltration of liquid through the alternative cover system will not cause contamination to groundwater or surface water, or cause leachate depth on the liner to exceed 30 cm. RD&D permits must include such terms and conditions at least as protective as the criteria for MSWLFs to assure protection of human health and the environment. An RD&D permit cannot exceed three years and a renewal of an RD&D permit cannot exceed three years. Although multiple renewals of an RD&D permit can be issued, the current total term for an RD&D permit including renewals cannot exceed twelve years. In adopting the RD&D rule, EPA stated that RD&D facilities in Indian country could be approved in a site-specific rule. (69 FR 13253).

### C. Overview of SRPMIC's Site-Specific Flexibility Request and EPA's Action

Today, EPA is making a final determination to approve SRPMIC's site-specific flexibility request to: (1) Install an alternative bottom liner system in Phase VI and to operate Phase VI as an anaerobic bioreactor by recirculating leachate and landfill gas condensate, and adding storm water and groundwater to the below grade portions of Phase VI; and (2) recirculate leachate and landfill gas condensate and add storm water and groundwater to the below grade portions of Phases IIIB and IVA to increase the moisture content of the waste mass in these phases, both of which have alternative bottom liner systems, which were previously approved by EPA. The Tribe's request is discussed in further detail in the August 4, 2008 proposal.

EPA is basing its final determination on a number of factors, including SRPMIC's overarching goal to demonstrate protection of human health and the environment, and the requirement of today's final rule to maintain less than 30-cm depth of leachate on the liner. SRPMIC will also maintain a 25-foot or greater separation zone between the bottom of the landfill and the top of the groundwater aquifer, and will routinely monitor leachate quantity and quality, liquids balance, volume and settlement of the waste, and groundwater quality and levels.

                    SRPMIC will ensure that each horizontal pipe gallery in Phase VI will be used to collect landfill gas before being converted for liquids addition to reduce the risk of negatively affecting the gas collection efficiency of the pipe gallery. No pipe gallery will be converted to liquids addition until the pipe gallery above it is installed and collecting landfill gas. SRPMIC also will install at least two layers of horizontal pipe galleries in the above-grade portion of Phase VI for the sole purpose of collecting gas. To further reduce the risk of increased landfill gas generation and fugitive emissions, SRPMIC will only add liquids to the below-grade portions of Phases VI, IIIB, and IVA. SRPMIC will monitor fugitive gas emissions annually or more frequently, as appropriate, using ground-based optical remote sensing (EPA OTM-10), and will routinely monitor landfill gas quantity and quality. Using information gained from the monitoring program, SRPMIC will propose site-specific input parameters to EPA that improve modeling calculations for the amount of landfill gas generated and the                           ( print page 11679)                        performance of landfill gas collection systems.                

In the event that EPA determines that the project goals are not being attained, including protecting human health and the environment, EPA may terminate SRPMIC's authority to operate the RD&D project.

As part of this final determination and in accordance with 40 CFR 258.4, EPA is requiring SRPMIC to maintain less than 30 cm depth of leachate on the liner in Phases VI, IIIB, and IVA, and to ensure that the approved operation of these Phases is protective of human health and the environment. For purposes of the alternative liner system in Phase VI, the relevant point(s) of compliance pursuant to 40 CFR 258.40 will be determined by EPA and shall be no more than 150 meters from the waste management cell boundaries and located on land owned by the owner of the cells.

In accordance with its application, which today's final rule incorporates by reference, SRPMIC will submit annual reports to EPA that summarize and show whether and to what extent RD&D project goals are being achieved. The annual report will include a summary of all monitoring and testing results. Any deviations from the September 27, 2007 application, and the April 8, 2008 amendments to that application, must continue to conform to the standards set forth in 40 CFR 258.4 and require the prior approval of EPA.

Also in accordance with its application, SRPMIC will arrange for independent, third party inspections of the RD&D operations on a quarterly basis throughout the term of the RD&D approval. Copies of the report will be submitted to EPA.

EPA's final determination will allow operation of the subject Phases of the landfill consistent with the RD&D rule for a total of 12 years. However, the owner or operator of the landfill must seek a renewal of this authority every three years. Each renewal request is subject to public notice and comment. No renewal may be for greater than three years and the overall period of operation may not exceed twelve years.

### D. Summary of Public Comments Received and Response to Comments

EPA received one comment on EPA's Tentative Determination. The commenter, the National Solid Wastes Management Association, expressed concern with the use of ground-based optical remote sensing (EPA OTM-10). The commenter felt that the use of OTM-10 should not be required at this time, and indicated concern with the test method's applicability to municipal solid waste landfills and relatively high cost, and cited EPA's ongoing research on the test method. The commenter suggested that EPA use existing gas monitoring methods rather than OTM-10 until EPA's current research on OTM-10 is completed, and the method's applicability to landfills and cost-effectiveness are demonstrated.

As indicated in EPA's “Development of EPA OTM-10 for Landfill Applications Interim Report 2,” (September 2008), due to the spatial extent and non-homogenous nature of many source areas, assessment of fugitive emissions using traditional point sampling techniques can be problematic. EPA posted OTM-10 in 2006 to help address this issue, and believes it is a valuable tool to supplement traditional monitoring approaches. OTM-10 is an “other test method” that has not been subject to Federal rulemaking, but which may be useful to the emission control community. EPA continues to study the application of OTM-10 from both performance and implementation standpoints.

For purposes of today's action, the use of OTM-10 is specific solely to the Salt River Landfill and the SRPMIC Research, Development, and Demonstration project. SPRMIC agreed to use OTM-10 to help address concerns with increases to fugitive gas emissions from bioreactor operations. OTM-10 data will supplement other landfill gas monitoring and operating information collected to better project the amount of landfill gas generated and the performance of the landfill gas collection system.

The SRPMIC project is a research, development, and demonstration project, and EPA believes that the data collected by SRPMIC will help to characterize emissions from the bioreactor operations at the landfill and further the research and evaluation of the OTM-10 test method by providing additional information on actual use scenarios. EPA anticipates working closely with SRPMIC to help guide the implementation of OTM-10 and facilitate the quality and use of data collected. Any long-term use of OTM-10 at the Salt River Landfill will be assessed after EPA reviews the method's applicability at this landfill, and overall cost-effectiveness.

## II. Statutory and Executive Order Reviews

Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. In accordance with this provision, EPA first determined whether it has an undertaking that is a type of activity that could affect historic properties. Historic properties are properties that are included in the National Register of Historic Places or that meet the criteria for the National Register. EPA then identified the appropriate State Historic Preservation Officer (SHPO) to consult with during the process, the Arizona SHPO.

The NHPA regulations, found at 36 CFR Part 800, place major emphasis on consultation with Indian tribes. Consultation with an Indian tribe must respect tribal sovereignty and the government-to-government relationship between the Federal Government and Indian tribes. Even if an Indian tribe has not been certified by the National Park Service to have a Tribal Historic Preservation Officer (THPO) who can act for the SHPO on its lands, it must be consulted about undertakings on or affecting its lands on the same basis and in addition to the SHPO.

While there was no Tribal Historic Preservation Officer for the Tribes which historically used the area around the Salt River Landfill, EPA consulted with the SRPMIC, as well as the Ak-Chin Indian Community, the Fort McDowell Yavapai Nation, the Gila River Indian Community, the Hopi Tribe, the Pascua Yaqui Tribe, the Tohono O'odham Nation, the Yavapai-Apache Nation, and the Yavapai-Prescott Indian Tribe. No cultural or historic properties were identified by these Tribes, nor was any interest expressed in having further consultation on the NHPA process with EPA.

Pursuant to Section 106 of the NHPA, EPA reviewed SRPMIC's site-specific flexibility request to take into account the effect of the proposed RD&D project on historic properties. EPA tentatively determined that there is a one-half mile area of potential effects, a finding that the Arizona Canal is the sole historic property within the APE, and that the action has no adverse effect.

                    EPA received no public comments on the proposed Area of Potential Effects (APE), proposed finding that the Arizona Canal is the sole historic property within the APE, or proposed finding of no adverse effect under the NHPA. As a result, EPA is today also making a finding of no adverse effect under the NHPA, having determined that the RD&D project will not adversely affect the Arizona Canal, which is the sole historic property within the Area of Potential Effects (APE). The Arizona SHPO concurs with EPA's finding.                          ( print page 11680)    

                    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 conservative analysis of the potential risks posed by SRPMIC'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 the owner and/or operator of the landfill, which is currently the Tribe. However, this tentative determination, if made final, will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This tentative determination to approve the SRPMIC's application will affect only the SRPMIC's operation of their landfill on their own land.                

EPA consulted with the SRPMIC early in the process of making this tentative determination to approve the Tribe's RD&D project so as to give them meaningful and timely input into the determination. In 2005, SRPMIC submitted its site-specific RD&D flexibility request. Between 2005 and 2008, many technical issues were raised and addressed concerning SRPMIC's proposal. EPA's consultation with the Tribe culminated in the SRPMIC submitting an RD&D application amendment in April of 2008.

With respect to the type of flexibility being afforded to SRPMIC under this proposed rule, EO 13175 does provide for agencies to review applications for flexibility “with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.” In formulating this tentative determination and proposed rule, the Region has been guided by the fundamental principles set forth in EO 13175 and has granted the SRPMIC the “maximum administrative discretion possible” within the standards set forth under the RD&D rule in accordance with EO 13175.

                    Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (                    *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 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 SRPMIC. Given EPA's obligations under EO 13175 (see above), the Agency has, to the extent appropriate, applied the standards established by the Tribe. In addition, the Agency considered the Interstate Technology and Regulatory Council's February 2006 technical and regulatory guideline “Characterization, Design, Construction, and Monitoring of Bioreactor Landfills.”

Authority:Sections 1008, 2002, 4004, and 4010 of the Solid Waste Disposal Act, as amended, 42 U.S.C. Sections 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, February 26, 2008, 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: February 19, 2009.

Laura Yoshii,

Acting Regional Administrator, Region IX.

For the reasons stated in the preamble, 40 CFR part 258 is amended as follows:

# PART 258—CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

# Subpart D—[Amended]

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).

2. Amend Subpart D to add § 258.42 to read as follows: 

§ 258.42 

                            (a) Salt River Pima-Maricopa Indian Community (SRPMIC), Salt River Landfill Research, Development, and Demonstration Project Requirements. Paragraph (a) of this section applies to the Salt River Landfill, a municipal solid waste landfill owned and operated by the SPRMIC on the SRPMIC's reservation in Arizona, which includes waste disposal areas identified as “Phases I-VI.” The application submitted by SRPMIC, “Research, Development, and Demonstration Permit Application Salt River Landfill,” dated September 24, 2007 and amended                                   ( print page 11681)                                on April 8, 2008 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 IX, 75 Hawthorne Street, San Francisco, CA, or by calling the Docket Facility at (415) 947-4406, or go to                             *http://www.regulations.gov*, Docket ID No. EPA-R09-RCRA-2008-0354. You may also inspect a copy at the National Archives and Records Administration (NARA). For information on the availability 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 operate the facility in accordance with this application, including the following activities more generally described as follows:                        

(1) The owner and/or operator may install a geosynthetic clay liner as an alternative bottom liner system in Phase VI.

(2) The owner and/or operator may operate Phase VI as a bioreactor by recirculating leachate and landfill gas condensate, and by adding storm water and groundwater, to the below grade portions of Phase VI.

(3) The owner and/or operator may increase the moisture content of the waste mass in Phases IIIB and IVA by recirculating leachate and landfill gas condensate, and by adding storm water and groundwater, to the below grade portions of Phases IIIB and IVA.

(4) The owner and/or operator shall maintain less than a 30-cm depth of leachate on the liner.

(5) The owner and/or operator shall submit reports to the Director of the Waste Management Division at EPA Region 9 as specified in “Research, Development, and Demonstration Permit Application Salt River Landfill,” dated September 24, 2007 and amended on April 8, 2008 including an annual report showing whether and to what extent the site is progressing in attaining project goals. The annual report will also include a summary of all monitoring and testing results, as specified in the application.

(6) The owner and/or operator may not operate the facility pursuant to the authority granted by this section if there is any deviation from the terms, conditions, and requirements of this section unless the operation of the facility will continue to conform to the standards set forth in § 258.4 of this chapter and the owner and/or operator has obtained the prior written approval of the Director of the Waste Management Division at EPA Region 9 or his or her designee to implement corrective measures or otherwise operate the facility subject to such deviation. The Director of the Waste Management Division or designee shall provide an opportunity for the public to comment on any significant deviation prior to providing his or her written approval of the deviation.

                            (7) Paragraphs (a)(2), (3), (5), (6) and (9) of this section will terminate 36 months after date of publication in the                             **Federal Register**                             unless the Director of the Waste Management Division at EPA Region 9 or his or her designee renews this authority in writing. Any such renewal may extend the authority granted under paragraphs (a)(2), (3), (5), (6) and (9) of this section for up to an additional three years, and multiple renewals (up to a total of 12 years) may be provided. The Director of the Waste Management Division or designee shall provide an opportunity for the public to comment on any renewal request prior to providing his or her written approval or disapproval of such request.                        

                            (8) In no event will the provisions of paragraphs (a)(2), (3), (5), (6) or (9) of this section remain in effect after 12 years after date of publication in the                             **Federal Register**                            . Upon termination of paragraphs (a)(2), (3), (5), (6) and (9) of this section, and except with respect to paragraphs (a)(1) and (4) of this section, the owner and/or operator shall return to compliance with the regulatory requirements which would have been in effect absent the flexibility provided through this site-specific rule.                        

(9) In seeking any renewal of the authority granted under or other requirements of paragraphs (a)(2), (3), (5) and (6) of this section, the owner and/or operator shall provide a detailed assessment of the project showing the status with respect to achieving project goals, a list of problems and status with respect to problem resolutions, and any other requirements that the Director of the Waste Management Division at EPA Region 9 or his or her designee has determined are necessary for the approval of any renewal and has communicated in writing to the owner and operator.

(10) The owner and/or operator's authority to operate the landfill in accordance with paragraphs (a)(2), (3), (5), (6) and (9) of this section shall terminate if the Director of the Waste Management Division at EPA Region 9 or his or her designee determines that the overall goals of the project are not being attained, including protection of human health or the environment. Any such determination shall be communicated in writing to the owner and operator.

(b) [Reserved]

[FR Doc. E9-5848 Filed 3-18-09; 8:45 am]

BILLING CODE 6560-50-P