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###### Environmental Protection Agency

          - 40 CFR Parts 239 and 258 
          - [EPA-R07-RCRA-2006-0878; FRL-8523-2] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Final rule. 

# SUMMARY:

This action approves Nebraska's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved States. On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP Program. On November 16, 2006, the EPA published direct final and proposed rules to approve the application on January 16, 2007, if adverse comment was not received. EPA received adverse comment and withdrew the direct final rule on January 16, 2007. This action addresses the comment and approves the Nebraska application. 

# DATES:

This final determination is effective January 31, 2008. 

# ADDRESSES:

                        EPA has established a docket for this action under Docket ID No. EPA-R07-RCRA-2006-0878. 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, i.e., 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 Environmental Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8:00 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.                     

# FOR FURTHER INFORMATION CONTACT:

                        Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101, telephone (913) 551-7666, or by e-mail at                         *mclaughlin.chilton@epa.gov*.                     

# SUPPLEMENTARY INFORMATION:

## A. Background 

                    On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued at certain municipal solid waste landfills (69 FR 13242). This new provision may only be implemented by an approved State. While States are not required to seek approval for this new provision, those States that are interested in providing RD&D permits to municipal solid waste landfills must seek approval from EPA before issuing such permits. The current request is for approval to issue RD&D permits. Nebraska received partial approval for 40 CFR part 258 provisions on October 5, 1993 (58 FR 51819). The provision that it received partial approval for did not include requirements for groundwater monitoring at small, arid landfills as required by an opinion by the United States Court of Appeals on February 12, 1992, which instructed                           ( print page 5752)                        EPA to require groundwater monitoring at all landfills. The updated State rules impose groundwater monitoring at small, arid landfills. The current request also incorporates the August 7, 1995, rule (60 FR 40105) which modifies the financial assurance criteria; September 25, 1996, rule (61 FR 50413) which relates to groundwater exemptions of small, arid, remote landfills; November 27, 1996, rule (61 FR 60328 at 60337) which adds financial mechanisms for local governments; and April 10, 1998, rule (63 FR 17706 at 17729) which adds a financial test and corporate guarantee to financial assurance mechanisms. Approval procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR 239.12.                 

On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP Program. On November 16, 2006, the EPA published direct final and proposed rules (71 FR 66686 and 71 FR 66722, respectively) to approve the application on January 16, 2007, if adverse comment was not received. EPA received adverse comment and withdrew the direct final rule on January 16, 2007 (72 FR 1670). 

## B. Response to Comment 

The comment was from the GrassRoots Recycling Network (GRRN). The GRRN objected to Nebraska's effort to implement an RD&D permit program alleging that the underlying RD&D violates the Resource Conservation and Recovery Act (RCRA) and the National Environmental Policy Act (NEPA). The commenter objected to what it claims are inadequacies in the underlying RD&D rule, namely, an allegedly unlimited number of permits and an allegedly unlimited program duration. 

                    EPA is proceeding with its approval of the Nebraska program. First, it should be noted that the timeframe within which challenges to the Federal underlying RD&D rule may be filed has expired. (See 42 U.S.C. 6976, petitions challenging a RCRA regulation must be filed within 90 days of promulgation.) The GRRN has challenged the rule before the U.S. Court of Appeals for the D.C. Circuit, which found that GRRN did not have standing to challenge the rule (                    *GrassRoots Recycling Network*                     v.                     *EPA*, No. 04-1196 (D.C. Cir.)).                 

Moreover, EPA does not intend to reopen the underlying RD&D rule in its approval of state programs. The issue before the Agency in this action is whether Nebraska's submitted RD&D program is adequate under RCRA and EPA's Subtitle D regulations, but the comment is addressed to the underlying Federal program. Thus, the comment does not change EPA's decision to approve Nebraska's submitted RD&D program. 

## C. Decision 

After a thorough review, EPA Region 7 determined that Nebraska's RD&D provisions and the updated rules for its Municipal Solid Waste Landfill Permit Program (the August 7, 1995, rule (60 FR 40105) which modifies the financial assurance criteria; September 25, 1996, rule (61 FR 50413) which relates to groundwater exemptions of small, arid, remote landfills; November 27, 1996, rule (61 FR 60328, at 60337) which adds financial mechanisms for local governments; and April 10, 1998, rule (63 FR 17706, at 17729) which adds a financial test and corporate guarantee to financial assurance mechanisms) as defined under Nebraska Title 132—Integrated Solid Waste effective March 7, 2006, are adequate to ensure compliance with the Federal criteria as defined at 40 CFR 258.1, 258.4, 258.70, 258.74, and 258.75. 

## D. Statutory and Executive Order Reviews 

This action approves State solid waste requirements pursuant to Resource Conservation and Recovery Act (RCRA) Section 4005 and imposes no Federal requirements. Therefore, this rule complies with applicable executive orders and statutory provisions as follows: 

1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this action from its review under Executive Order (EO) 12866; 

2. Paperwork Reduction Act—This action does not impose an information collection burden under the Paperwork Reduction Act; 

3. Regulatory Flexibility Act—After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities; 

4. Unfunded Mandates Reform Act—Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, this action does not contain any unfunded mandate, or significantly or uniquely affect small governments, as described in the Unfunded Mandates Act; 

5. Executive Order 13132: Federalism—EO 13132 does not apply to this action because this action will not have federalism implications (i.e., there are no substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities between Federal and State governments); 

6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply to this action because it will not have tribal implications (i.e., there are no substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes); 

7. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks—This action is not subject to EO 13045 because it is not economically significant and is not based on health or safety risks; 

8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This action is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866; 

9. National Technology Transfer Advancement Act—EPA approves State programs so long as the State programs meet the criteria delineated in RCRA. It would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets RCRA requirements. Thus, section 12(d) of the National Technology Transfer and Advancement Act does not apply to this action; 

                    10. Congressional Review Act—EPA will submit a report containing this action and other information required by the Congressional Review Act (5 U.S.C. 801*et seq.*) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the                     **Federal Register**                    .                 

# List of Subjects 

### 40 CFR Part 239

      - Environmental protection
      - Administrative practice and procedure
      - Intergovernmental relations
      - Waste treatment and disposal

### 40 CFR Part 258

      - Reporting and recordkeeping requirements
      - Waste treatment disposal
      - Water pollution control

Authority:This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a). 

      ( print page 5753)    
Dated: January 18, 2008. 

John B. Askew, 

Regional Administrator, Region 7.

[FR Doc. E8-1786 Filed 1-30-08; 8:45 am] 

BILLING CODE 6560-50-P