Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17649

PART 7—SPECIAL REGULATIONS,

AREAS OF THE NATIONAL PARK

SYSTEM

1. The authority citation for part 7

continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(q),

462(k); Sec. 7.96 also issued under D.C. Code

8–137 (1981) and D.C. Code 40–721 (1981).

2. Section 7.96 is amended by revising

paragraph (k)(2) to read as follows:

§ 7.96 National Capital Region Parks.

* * * * *

(k) * * *

(1) * * *

(2) No merchandise may be sold

during the conduct of special events or

demonstrations except for books,

newspapers, leaflets, pamphlets, buttons

and bumper stickers. A permit is

required for the sale or distribution of

permitted merchandise when done with

the aid of a stand or structure. Such

stand or structure may consist of one

table per site, which may be no larger

than 21⁄2 feet by 8 feet or 4 feet by 4 feet.

The dimensions of a sales site may not

exceed 6 feet wide by 15 feet long by 6

feet high. With or without a permit,

such sale or distribution is prohibited in

the following areas:

* * * * *

3. Section 7.96 paragraph (k)(3) is

removed.

4. Section 7.96 paragraph (k)(4) is

redesignated as paragraph (k)(3).

Dated: March 14, 1995.

George T. Frampton, Jr.,

Assistant Secretary, Fish and Wildlife and

Parks.

[FR Doc. 95–8599 Filed 4–6–95; 8:45 am]

BILLING CODE 4310–70–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 258

[FRL–5186–1]

RIN 2050–AE27

Financial Assurance Effective Date for

Owners and Operators of Municipal

Solid Waste Landfill Facilities

AGENCY: Environmental Protection

Agency [EPA].

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency is amending the criteria for

Municipal Solid Waste Landfills

(MSWLFs) under subtitle D of the

Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. 6921 et seq., by

delaying the effective date of the

Financial Assurance Criteria set out at

40 CFR part 258, subpart G, until April

9, 1997. The extension applies to any

size MSWLF, including remote, very

small landfills as defined at 40 CFR

258.1(f)(1), and delays the compliance

date for MSWLFs by two years, from

April 9, 1995 until April 9, 1997 (for

remote, very small landfills by 18

months, from October 9, 1995 until

April 9, 1997).

EFFECTIVE DATE: The amendments in this

final rule are effective March 31, 1995.

The effective date of subpart G of part

258 (§§ 258.70 through 258.74) which

was added at 56 FR 51016 is delayed

until April 9, 1997.

ADDRESSES: The docket for this

rulemaking is available for public

inspection at Room M–2616, U.S. EPA,

401 M Street SW., Washington, DC

20460 from 9 a.m. to 4 p.m., Monday

through Friday, excluding holidays. The

docket number is F–95–FADF-FFFFF.

Call (202) 260–9327 to make an

appointment with the docket clerk. As

provided in 40 CFR Part 2, a reasonable

fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: The

RCRA Hotline toll free at (800) 424–

9346 or in Washington, D.C. at (703)

412–9810, from 8:30 a.m. to 7:30 p.m.

EST, Monday through Friday, excluding

holidays; or Nancy Hunt, Office of Solid

Waste (5303W), U.S. Environmental

Protection Agency, 401 M Street SW,

Washington, DC 20460 at (703) 308–

8762.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority.

II. Background.

III. Response to Comments and Analysis of

Issues.

A. Support for Extension.

B. Opposition to Extension.

C. Local Governments.

D. Remote/Very Small Landfills.

E. Unfunded Mandate.

IV. Effective Date.

V. Economic and Regulatory Impacts.

A. Executive Order 12866.

B. Regulatory Flexibility Act.

C. Paperwork Reduction Act.

I. Authority

These amendments to Title 40, part

258, of the Code of Federal Regulations

are promulgated under the authority of

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

and 4010(c) of the Resource

Conservation and Recovery Act (RCRA),

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

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

II. Background

The Agency proposed revised criteria

for municipal solid waste landfills

(MSWLFs), including financial

assurance requirements, on August 30,

1988 (see 53 FR 33314). The purpose of

the financial assurance requirements is

to assure that adequate funds will be

readily available to cover the costs of

closure, post-closure care, and

corrective action associated with

MSWLFs.

In the August 30, 1988 proposal,

rather than proposing specific financial

assurance mechanisms, the Agency

proposed a financial assurance

performance standard. The Agency

solicited public comment on this

performance standard approach and, at

the same time, requested comment on

whether the Agency should develop

financial test mechanisms for use by

local governments and corporations.

In response to comment, the Agency

promulgated several specific financial

mechanisms in the October 9, 1991 final

rule on MSWLF criteria (56 FR 50978),

in addition to the financial assurance

performance standard of section 258.74,

which allows approved States to use

any State-approved mechanism that

meets that performance standard.

Commenters on the August 30, 1988

proposal also supported the

development of financial tests for local

governments and for corporations to

demonstrate that they can satisfy the

goals of financial assurance on their

own, without the need to produce a

third-party instrument to assure that the

obligations associated with their landfill

will be met. The Agency agreed with

commenters and in the October 9, 1991

preamble, announced its intention to

develop both a local government and

corporate financial test in advance of

the effective date of the financial

assurance provisions.

The Agency has delayed the effective

date of the financial responsibility

provisions until April 9, 1995 (see 58 FR

51536) in order to provide adequate

time to promulgate a financial test for

local governments and another for

corporations before the effective date of

the financial assurance provisions. The

delayed effective date also was intended

to provide owners and operators

sufficient time to determine whether

they satisfy the applicable financial test

criteria for all of the obligations

associated with their facilities, and to

obtain a guarantor or an alternate

instrument, if necessary. The Agency

also recognized that local governments,

in particular, require notice of the

requirements in order to plan their

budgets for the upcoming year.

The Agency proposed a local

government financial test and a

corporate financial test on December 27,

1993 (see 58 FR 68353) and October 12,
17650 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

1For a description of the third-party instruments

available to MSWLF owners and operators see 56

FR 50978.

1994 (see 59 FR 51523), respectively.

The Agency expects to promulgate the

local government test in the fall of 1995

and the corporate test in the spring of

1996. The Agency, therefore, proposed

an additional extension on October 18,

1994 to delay the current April 9, 1995

effective date for subtitle D financial

assurance requirements by one year

until April 9, 1996 (see 59 FR 52498) to

allow MSWLF owners and operators

that qualify to demonstrate financial

assurance for their closure, post-closure,

and corrective action obligations

through the use of a financial test.

Owners and operators who meet the

requirements of the financial tests will

not be required to obtain a third-party

financial assurance instrument 1 for

these obligations.

III. Response to Comments and

Analysis of Issues

This section summarizes and

addresses the major comments out of a

total of 139 comments received on the

October 18, 1994 proposal. A discussion

of, and response to, all comments can be

found in the docket for this rulemaking.

A. Support for Extension

Most commenters support the

proposal to extend the effective date of

the financial assurance requirements.

Many commenters, however, expressed

concern that the proposed one-year

extension until April 9, 1996 would not

be enough time for MSWLF owners and

operators to meet the financial

assurance requirements by using the

local government and corporate

financial tests. Not only have the

financial tests not been promulgated yet,

but States will need time to incorporate

the financial tests into their regulations

and MSWLF owners and operators will

then need time to comply with the

recordkeeping and reporting

requirements of the financial test (or

with the requirements of an alternate

financial assurance instrument).

The Agency agrees that one year may

not be enough time to take advantage of

a financial test and, accordingly, has

decided to extend the effective date of

the financial assurance requirements for

MSWLF owners and operators by two

years from April 9, 1995 until April 9,

1997 (for landfill owners and operators

of remote, very small landfills by 18

months, from October 9, 1995 until

April 9, 1997). Although the Agency

would like to implement the financial

assurance requirements as soon as

possible, the Agency must also balance

the goals of ensuring protection of

human health and the environment and

minimizing the costs of regulatory

compliance to owners and operators of

MSWLFs. The Agency believes that the

potential cost savings to MSWLF

owners and operators of complying with

financial assurance requirements

through the use of a financial test

outweigh the risks of delaying their

implementation. The Agency does not

believe that delaying the effective date

of the financial assurance requirements

by a temporary extension will result in

a significant threat to human health and

the environment. The purpose of the

financial assurance requirements is to

ensure that funds will be available to

cover the costs of closure and postclosure care if the owner or operator is

unable to cover these costs when they

occur. The delay in implementing the

financial assurance requirements,

however, does not in any way affect the

owner or operator’s existing obligation

to conduct closure and post-closure care

at the facility when required in a

manner consistent with the Subtitle D

criteria, and to pay the costs incurred in

conducting those activities. Like other

future business expenses, the Agency

anticipates that most owners and

operators have prepared or are currently

preparing to meet these expenses. Thus,

it is unlikely that a delay in

implementing the financial

responsibility requirements will result

in significant numbers of unfunded

closure and post-closure care activities.

The Agency believes that the two-year

extension adopted in this rule can be

fairly characterized as the logical

outgrowth of the October 18, 1994

proposal. Although the proposed rule

contemplated a one-year extension, the

point was to provide notice of the need

for additional time for MSWLF owners

and operators to meet the financial

assurance requirements through the use

of a financial test. In light of the

comments received, the Agency is now

persuaded that a two-year, not a oneyear, extension is necessary for MSWLF

owners and operators to meet the

financial assurance requirements

through the use of a financial test.

B. Opposition to Extension

Four commenters out of a total of 139

commenters oppose extending the time

for MSWLFs to comply with financial

assurance requirements.

One commenter argues that MSWLF

owners and operators could comply at

this time using currently available

financial assurance mechanisms, such

as a trust fund, letter of credit or surety

bond, and that an extension would only

serve to delay closure of MSWLFs that

could not meet financial assurance

requirements. A related comment argues

that repeated delays undermine the

credibility of the financial assurance

program; that the use of a trust fund is

preferable to a financial test; and that

any additional delay in implementing

the financial assurance requirements for

local governments should be no more

than eight months after the April 1995

effective date.

Although many MSWLF owners and

operators could comply with financial

assurance requirements using currently

available alternatives, the Agency is

committed to developing a local

government and corporate financial test

as an alternative to third party financial

mechanisms for the reasons discussed

above. The Agency, therefore, believes

that MSWLF owners and operators

should not have to select a financial

assurance mechanism until all the

financial assurance alternatives are

available, including the financial tests,

so that MSWLF owners and operators

can assess all the alternatives to

determine which one will best serve

their needs.

The Agency disagrees that delaying

the effective date will only serve to

delay closure of facilities than cannot

meet the financial assurance criteria.

MSWLFs are already subject to design

and operating requirements that are

more extensive, and significantly more

expensive, than the financial assurance

criteria. MSWLFs that were unable to

meet Federal minimum design and

operating requirements have already

closed.

The State of Missouri argues that a

delay in implementing Federal financial

assurance requirements would place

MSWLF owners and operators in States

that already require financial assurance

at a competitive disadvantage with

MSWLF owners and operators in States

that do not currently require financial

assurance, as well as place States with

existing or planned financial assurance

programs in the position of having to

spend valuable time and effort to delay

their own programs.

The Agency does not believe that an

additional two years to comply with

Federal financial assurance

requirements would create a

competitive disadvantage between

MSWLF owners and operators in States

with different financial assurance

requirements. The available evidence

suggests that the costs of transporting

waste—even between adjacent States—

will more than offset the additional

costs of disposing of waste in a State

with financial assurance requirements.

Further, since waste disposal contracts

are generally written to cover several
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17651

years, the Agency believes it is unlikely

waste generators will shift disposal to a

different MSWLF during a temporary

extension period.

Furthermore, in the absence of a

significant competitive disadvantage

among States as a result of the delay

there is, arguably, no need for States

with existing or planned financial

assurance programs to change their own

requirements. States can adopt

requirements under State law that are

more stringent than the Federal

requirements and, therefore, do not

need to delay implementing their own

financial assurance requirements.

Indeed, States that adopt responsible

financial assurance requirements over

the next two years will be better able to

cover unanticipated MSWLF closure or

post-closure costs. If, however, a State

chose to delay its own financial

assurance requirements, the commenter

has not shown that it would be

prohibitively expensive or difficult to

implement such an extension.

A commenter from the insurance and

surety industry argues that delaying the

effective date of the financial assurance

requirements to allow the use of a

financial test would ultimately

undermine the purpose of the financial

assurance requirements and force States

to incur the costs of closing, and

remediating releases from, MSWLFs that

cannot meet financial assurance

requirements. The argument is that the

use of a financial test would mean that

only the least financially able MSWLF

owners and operators would purchase

third-party financial assurance

instruments, which would discourage

the continued development of alternate

financial assurance instruments in the

insurance and surety industry, thereby,

making it more expensive and more

difficult to obtain third-party financial

assurance instruments. Financially

weaker MSWLF owners and operators

would, therefore, be unable to meet

financial assurance requirements and

would seek to further reduce the

requirements necessary to meet a

financial test. Inevitably, States would

be burdened with the closure and

response costs of financially weak

MSWLF owners and operators that are

either unable to obtain third-party

financial assurance instruments or that

are allowed to continue to operate as a

result of a devalued financial test.

This comment is more appropriately

addressed to the proposed financial

tests themselves, rather than to a delay

in implementing the financial assurance

requirements. At this time it is difficult,

if not impossible, to predict how many

MSWLFs will or will not be able to meet

a financial test, because the local

government and corporate financial

tests have not yet been promulgated or

otherwise finalized. Accordingly, the

Agency will address this issue more

fully in the financial test rulemakings.

Even if, however, insurance and surety

mechanisms become expensive and

difficult to obtain due to underwriting

considerations, owners and operators

still have the option of obtaining a

guarantee, a letter of credit, or of

establishing a trust fund to comply with

financial assurance obligations. Trust

funds, in particular, are available to all

owners and operators regardless of

corporate affiliation or prevailing

market conditions, because creating a

trust fund does not present a financial

risk.

In any event, the Agency does not

believe that a temporary delay in

implementing the Subtitle D financial

assurance requirements in anticipation

of the development of a financial test

will cause financial services firms to

abandon the market for, or otherwise

limit their development of, third-party

financial assurance instruments. First, it

is the Agency’s understanding that

providers of financial assurance

mechanisms make decisions regarding

potential markets and the desirability of

entering those markets based on

evaluations of long-term market

demand; arguably, a two-year delay

should not have a significant effect on

this long term decision-making. Second,

an extensive market for financial

assurance mechanisms, which is

sufficient to maintain the infrastructure

of the market for such mechanisms,

already exists independent of the RCRA

Subtitle D financial assurance

requirements. For example, owners and

operators of hazardous waste treatment,

storage and disposal facilities (TSDFs),

underground storage tanks, and PCB

commercial storage facilities must meet

financial assurance requirements, which

include third-party mechanisms that are

essentially the same as those provided

for in the Subtitle D criteria.

C. Local Governments

Some commenters argue that local

governments as a class should be

exempt from meeting financial

assurance requirements for MSWLFs,

because unlike private MSWLFs owners

and operators, local governments do not

go out of business or otherwise

disappear. Today’s rule and the October

18, 1994 proposal, however, only

address the issue of extending the

effective date for meeting the financial

assurance requirements for MSWLFs;

they do not raise the issue of whether

certain classes of MSWLF owners and

operators, such as local governments,

should be exempt from the financial

assurance requirements. The Agency

previously addressed this issue in the

October 9, 1991 rule that revised the

minimum Federal standards, including

financial assurance criteria, for

MSWLFs (see 56 FR 50978). At that

time, the Agency determined that local

governments should not be exempt from

financial assurance requirements

because local governments may be

unable to obtain the immediate funds

necessary to meet closure and/or

corrective action obligations at MSWLFs

so as to ensure protection of human

health and the environment. Local

governments, for example, often have

relatively limited resources, limited

flexibility in their annual budgets and a

limited ability to quickly obtain

traditional sources of financing or

revenues, such as bond issues, taxes and

intergovernmental transfers.

D. Remote/Very Small Landfills

Today’s rule extends the effective date

of the financial assurance requirements

for all MSWLF owners and operators,

including remote, very small (less than

20 tons per day) landfills as defined at

40 CFR § 258.1(f)(1), until April 9, 1997.

Although the proposed rule

contemplated extending the effective

date of the financial assurance

requirements for all MSWLFs, this was

apparently unclear to several

commenters who suggested that the

Agency extend the deadline for the

remote, very small landfills as well as

for the general class of MSWLFs.

Remote/very-small landfills had been

subject to different deadlines for

meeting the MSWLF criteria than the

general class of MSWLFs; until today’s

rule the effective date of the financial

assurance requirements for owners and

operators of remote, very small landfills

was October 9, 1995 (see 58 FR 51536).

E. Unfunded Mandate

A few commenters assert that the

financial assurance requirements

contained in the October 9, 1991 final

rule on MSWLF Criteria (56 FR 50978)

constitute a Federal unfunded mandate

on local governments. Today’s rule,

however, provides regulatory relief by

extending for two years the effective

date by which MSWLF owners and

operators (including local government

owners and operators) must meet those

financial assurance requirements.

Moreover, the purpose of the extension

provided by this rule is to allow the

Agency sufficient time to promulgate a

rule to give MSWLF owners and

operators additional flexibility to meet

the financial assurance requirements.

That rule will allow owners and
17652 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

operators to use a financial test instead

of a more expensive third-party

instrument to assure that adequate

funds will be readily available to cover

the costs of closure, post-closure care,

and corrective action associated with

MSWLFs.

IV. Effective Date

Today’s rule is effective immediately.

Section 3010(b) of RCRA provides that

regulations respecting requirements

applicable to the treatment, storage, or

disposal of hazardous waste shall take

effect six months after the date of

promulgation. However, section

3010(b)(1) of RCRA allows the Agency

to set a shorter effective date if the

Agency finds that the regulated

community does not need six months to

come into compliance with the new

regulation.

The regulated community does not

need six months to come into

compliance with today’s rule, because

the provisions of this rule delays the

regulatory requirements of financial

responsibility and allows the Agency

time to develop additional, more

flexible, methods for MSWLF owners

and operators to comply with the

regulations. Today’s rule, therefore, is

immediately effective under section

553(d) of the Administrative Procedure

Act.

V. Economic and Regulatory Impacts

A. Executive Order 12866

Under Executive Order 12866, which

was published in the Federal Register

on October 4, 1993 (see 58 FR 51735),

the Agency must determine whether a

regulatory action is ‘‘significant’’ and,

therefore, subject to OMB review and

the requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or Tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlement, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

The Agency believes that this final

rule does not meet the definition of a

major regulation. Thus, the Agency is

not conducting a Regulatory Impact

Analysis, and today’s final rule is not

subject to review by the Office of

Management and Budget (OMB) based

upon Executive Order 12886.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

[5 U.S.C. 601 et seq.] at the time an

Agency publishes a proposed or final

rule, it generally must prepare a

Regulatory Flexibility Analysis that

describes the impact of the rule on small

entities (i.e., small businesses, small

organizations, and small governmental

jurisdictions), unless the Administrator

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

The effect of this final rule is to provide

small entities with additional time to

meet the financial assurance

requirements of subtitle D regarding

closure and post-closure costs.

Therefore, pursuant to 5 U.S.C. 605b,

the Agency believes that this final rule

will not have a significant impact on a

substantial number of small entities.

C. Paperwork Reduction Act

The Agency has determined that there

are no new reporting, notification, or

recordkeeping provisions associated

with today’s final rule.

List of Subjects in 40 CFR Part 258

Environmental protection, Reporting

and recordkeeping requirements, Waste

treatment and disposal.

Dated: March 31, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40 chapter I, of the Code

of Federal Regulations 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: 42 U.S.C. 6907(a)(3), 6912(a),

6944(a), and 6949a(c); 33 U.S.C. 1345(d) and

1345(e).

2. § 258.70 is amended by revising

paragraph (b) to read as follows:

§ 258.70 Applicability and effective date.

* * * * *

(b) The requirements of this section

are effective April 9, 1997.

3. § 258.74 is amended by revising

paragraph (a)(5) to read as follows:

§ 258.74 Allowable mechanisms.

* * * * *

(a) * * *

(5) The initial payment into the trust

fund must be made before the initial

receipt of waste or before the effective

date of the requirements of this section

(April 9, 1997), whichever is later, in

the case of closure and post-closure

care, or no later than 120 days after the

corrective action remedy has been

selected in accordance with the

requirements of § 258.58.

* * * * *

4. § 258.74 is amended by revising the

third sentence of paragraph (b)(1); by

revising the second sentence of

paragraph (c)(1); and by revising the

second sentence of paragraph (d)(1) to

read as follows:

§ 258.74 Allowable mechanisms.

* * * * *

(b) * * *

(1) * * * The bond must be effective

before the initial receipt of waste or

before the effective date of the

requirements of this section (April 9,

1997), whichever is later, in the case of

closure and post-closure care, or no later

than 120 days after the corrective action

remedy has been selected in accordance

with the requirements of § 258.58.* * *

* * * * *

(c) * * *

(1) * * * The letter of credit must be

effective before the initial receipt of

waste or before the effective date of the

requirements of this section (April 9,

1997), whichever is later, in the case of

closure and post-closure care, or no later

than 120 days after the corrective action

remedy has been selected in accordance

with the requirements of § 258.58.

* * *

* * * * *

(d) * * *

(1) * * * The insurance must be

effective before the initial receipt of

waste or before the effective date of the

requirements of this section (April 9,

1997), whichever is later, in the case of

closure and post-closure care, or no later

than 120 days after the corrective action

remedy has been selected in accordance

with the requirements of § 258.58.* * *

* * * * *

[FR Doc. 95–8605 Filed 4–6–95; 8:45 am]

BILLING CODE 6560–50–P