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[Federal Register Volume 73, Number 150 (Monday, August 4, 2008)]
[Proposed Rules]
[Pages 45187-45193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17828]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R09-RCRA-2008-0354; FRL-8700-3]

Tentative Determination to Approve Research, Development, and 
Demonstration Request for the Salt River Landfill, and Proposed Finding 
of No Adverse Effect Under the National Historic Preservation Act; 
Opportunity for Public Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Environmental Protection Agency Region IX is making a 
tentative 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 seeking public comment on EPA's 
tentative determination to approve SRPMIC's RD&D project. Pursuant to 
the National Historic Preservation Act (NHPA), EPA is also seeking 
public comment on EPA's proposed Area of Potential Effects (APE), the 
proposed finding that the Arizona Canal is the sole historic property 
within the APE, and the proposed finding that the RD&D project will not 
adversely affect the Arizona Canal.

DATES: Comments must be received on or before September 30, 2008. If 
sufficient public interest is expressed, EPA will hold a public hearing 
at 11 a.m. on September 30, 2008. If by September 18, 2008, EPA does 
not receive information indicating sufficient public interest for a 
public hearing, EPA may cancel the public hearing with no further 
notice. If you are interested in attending the public hearing, contact 
Karen Ueno at (415) 972-3317 to verify that a hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
RCRA-2008-0354 by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (415) 947-3530
     Mail: Karen Ueno, Environmental Protection Agency Region 
IX, Mailcode: WST-7, 75 Hawthorne Street, San Francisco, CA 94105-3901.
     Hand Delivery: Environmental Protection Agency Region IX, 
75 Hawthorne Street, San Francisco, CA. Such deliveries are only 
accepted during the Docket Facility's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R09-RCRA-
2008-0354. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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. A complete public portion of the 
administrative record for this rulemaking is also available for review 
at the Docket Facility upon request. The Docket Facility is open from 9 
a.m. to 4 p.m., Monday through

[[Page 45188]]

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.
    Submitting Comments to EPA:
    1. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    2. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    3. Docket Copying Costs. Copying arrangements will be made through 
the Docket Facility and billed directly to the recipient. Copying costs 
may be waived depending on the total number of pages copied.
    If sufficient public interest is expressed, EPA will hold a public 
hearing at 11 a.m. on September 30, 2008 in Conference Room A of the 
offices of the U.S. Bureau of Indian Affairs, 400 North 5th Street, 
Phoenix, Arizona.

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: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Background

    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 a state program 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 an 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.

B. SRPMIC's Site-Specific Flexibility Request

    The Salt River Landfill is a municipal solid waste landfill owned 
and operated by the SPRMIC on the SRPMIC's reservation in Arizona. The 
landfill site is approximately 200 acres. The Salt River Landfill has 
been in operation since October 1993 and serves as a solid waste 
collection and disposal point for Maricopa County, Arizona. The 
landfill consists of 8 disposal cells within 6 waste disposal areas. 
The latter are identified as Phases I--VI. Phase VI is divided into 
three cells: VIA, VIB, and

[[Page 45189]]

VIC. Construction of Phase VI, which is the last below-grade excavation 
planned for the landfill, is complete. The landfill accepts 
approximately 2,200 tons of solid waste per day and has composting and 
material recovery facilities on-site. The Phases/cells relevant to this 
site-specific flexibility request are Phases IIIB, IVA, VIA, VIB, and 
VIC.
    In January 2005, the SRPMIC submitted a site-specific flexibility 
application request to EPA for the Salt River Landfill. The request is 
twofold. It seeks EPA approval to use innovative and new methods which 
vary from the liquids restrictions at 40 CFR 258.28(a), as allowed by 
EPA's RD&D regulations at 40 CFR 258.4. It also seeks approval to 
install an alternative bottom liner, as allowed by EPA's regulations at 
40 CFR 258.40. Specifically, SRPMIC is seeking to install an 
alternative bottom liner system in and to operate Phase VI as a below 
grade anaerobic bioreactor. SRPMIC is also seeking to add certain 
liquids to two existing waste disposal cells within the landfill, Phase 
IIIB and Phase IVA, which were constructed with an alternative bottom 
liner system previously approved by EPA (63 FR 68453, Dec. 11, 1998).
    Between January 2005 and April 2008, the SRPMIC made revisions to 
its application request in response to concerns raised by EPA. EPA is 
basing its tentative determination and this proposed rule on the 
application, dated September 24, 2007, and the April 2008 amendments to 
that application. The specific requests for EPA approval in SRPMIC's 
application are discussed below. As set forth in more detail below, EPA 
is proposing to approve the request and allow SRPMIC to install an 
alternative bottom liner system in Phase VI, and to operate Phases VI, 
IIIB, and IVA using innovative and new methods which vary from the 
liquids restrictions at 40 CFR 258.28(a). This tentative determination 
is based on 40 CFR 258.40 and 40 CFR 258.4, respectively.
1. Phase VI: Approval to Install an Alternative Bottom Liner System in 
and to Add Certain Liquids to Phase VI
    The SRPMIC is seeking EPA approval to use an alternative bottom 
liner system in each of the Phase VI cells (Phase VIA, B, and C). 
SRPMIC proposes to replace the 24-inch compacted clay liner of the 
composite liner system with a geosynthetic clay liner. As provided in 
40 CFR 258.40(a)(1), SRPMIC must ensure that the alternative liner 
system does not allow the concentration of the chemicals listed in 
Table 1 of 40 CFR 258.40 to be exceeded in the uppermost aquifer at the 
relevant point of compliance, as specified by EPA.
    To create bioreactor conditions in Phase VI, SRMPIC is also seeking 
EPA approval to recirculate leachate and landfill gas condensate, and 
to add storm water and groundwater. A bioreactor uses large amounts of 
liquids to accelerate the biodegradation of waste by increasing the 
moisture content of the waste. In turn, enhanced biodegradation is 
expected to increase the capacity of the cell and extend its operating 
life. Without approval as provided in the RD&D rule, MSWLFs are 
restricted from adding bulk or noncontanerized liquids to cells, and 
from recirculating leachate and landfill gas in cells designed with 
alternative liner systems.
    SRPMIC proposes to recirculate leachate and landfill gas 
condensate, and to add storm water and groundwater to the Phase VI 
cells. Only these types of liquids will be added to Phase VI, and only 
to the below grade portions of this Phase. SRPMIC will introduce these 
liquids into Phase VI using two methods: Moisture addition at the 
working face of the cells, and moisture addition through a series of 
below-grade horizontal pipe galleries. The horizontal pipe galleries 
will be constructed below-grade as landfilling progresses in Phase VI. 
Each horizontal pipe gallery will first be used to collect landfill gas 
before being converted to a liquids addition pipe gallery. The 
conversion to liquids addition will not occur until the pipe gallery 
above it is installed and collecting landfill gas. SRPMIC will install 
at least two layers of horizontal pipe galleries in the above-grade 
portion of Phase VI. These above-ground horizontal pipe galleries will 
be for the sole purpose of collecting gas.
    SRPMIC will monitor for fugitive gas emissions at least annually 
using ground-based optical remote sensing in accordance with EPA's 
approved method (EPA OTM-10). Increases to fugitive gas emission are a 
concern with bioreactor operations due to the enhanced biological 
degradation of the solid waste and the associated rise in the amount of 
gas generated. SRPMIC will monitor for fugitive emission and use this 
and other monitoring and operating information collected to better 
project the amount of landfill gas generated and the performance of the 
landfill gas collection system.
    In addition to increasing the amount of gas generated, bioreactors 
increase the amount of leachate produced. SRPMIC's design for Phase VI 
includes a separate leachate collection and recovery system in each of 
the three cells to support the increase in leachate production 
associated with bioreactor operation. SRPMIC performed modeling to 
estimate peak leachate depth on the liner to help ensure that the 
federal regulatory limit of less than 30-cm would be maintained. The 
leachate collection system is equipped with an alarm that is triggered 
in response to any depth of leachate on the liner outside of the sump 
(for example, if the sump is not fully draining).
    SRPMIC will collect data and results related to the operation of 
Phase VI, including the quality and quantity of gas and leachate 
generated, and the efficiency of the landfill gas and leachate capture 
systems. As stated in SRPMIC's application of September 24, 2007, and 
the April 2008 amendments to that application, an overarching goal is 
to demonstrate that the proposed operation of Phase VI does not 
increase risk to human health and the environment over a standard MSWLF 
permit.
2. Phase IIIB and IVA: Approval to Add Certain Liquids to Below Grade 
Portions of Cells With Previously EPA-Approved Alternative Bottom Liner 
Systems
    SRPMIC is seeking EPA approval to add certain liquids to below-
grade portions of two existing cells, Phases IIIB and IVA, each of 
which were constructed using an alternative bottom liner system 
previously approved by EPA (63 FR 68453, December 11, 1998). As noted, 
above, without approval as provided in the RD&D rule, MSWLFs are 
restricted from adding bulk or noncontanerized liquids to cells, and 
from recirculating leachate and landfill gas condensate in cells 
designed with alternative liner systems.
    SRPMIC proposes to add liquids to Phases IIIB and IVA, but does not 
intend to increase the moisture content of the solid waste mass to a 
bioreactor level (40 CFR 63.1990 defines ``bioreactor'' as reaching a 
minimum average moisture content of at least 40% by weight). SRPMIC is 
seeking to add only 25% of the liquids volume that would be needed to 
increase moisture content to 40%. SRPMIC proposes to increase the 
moisture content of the waste mass by recirculating leachate and 
landfill gas condensate, and by adding storm water and groundwater. 
Only these types of liquids will be added to Phases IIIB and IVA, and 
only to the below grade portions of these Phases.
    SRPMIC will add the liquids using the existing gas collection pipes 
in these cells. Field practice and research have shown that using the 
same pipe galleries to both collect gas and distribute liquids can 
negatively affect the gas collection efficiency of the pipes. SRPMIC 
will monitor the gas flow. If the gas flow rate drops below 50% of the 
pre-liquids

[[Page 45190]]

injection rate, SRPMIC will suspend liquids injection until gas flow 
rebounds to 75% of the pre-liquids injection rate.
    As proposed for Phase VI, SRPMIC will monitor for fugitive gas 
emission and use this and other monitoring and operating information to 
better project the amount of landfill gas generated and the performance 
of the landfill gas collection system. SRPMIC will collect data and 
results related to the operation of Phases IIIB and IVA, including the 
quality and quantity of gas and leachate generated, and the efficiency 
of the landfill gas and leachate capture systems.
    SRPMIC has performed modeling to determine how much liquid can be 
added annually to Phases IIIB and IVA to, among other things, keep the 
depth of leachate on the liner to less than 30 cm as required by the 
federal regulations. SRPMIC is required to suspend adding liquids to 
Phases IIIB and IVA if operating parameters are not being met, 
including depth of leachate on the liner at or over 30 cm, ponding, gas 
collection difficulty, and seeps. As stated in SRPMIC's application of 
September 24, 2007, and the April 2008 amendments to that application, 
an overarching goal is to demonstrate that the proposed operation of 
Phase IIIB and IVA does not increase risk to human health and the 
environment over a standard MSWLF permit.
    To further reduce the potential risk posed by increased liquids 
addition and leachate generation from Phases VI, IIIB, and IVA, SRPMIC 
will install a new groundwater monitoring network of 7 wells. The 
network will be used to monitor the uppermost portion of the aquifer 
for changes to groundwater elevation and quality. SRPMIC shall maintain 
at least a 25-foot separation zone between the bottom of the landfill 
and groundwater. SRPMIC will also monitor liquids balance (how much 
liquid is being deposited into the landfill compared to how much is 
being collected), mass balance (the mass of the materials deposited 
into the landfill, compared to the mass of what is being collected), 
and waste volume and settlement.

II. EPA's Action

A. Tentative Determination To Approve SRPMIC's Site-Specific 
Flexibility Request

    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 2008, EPA is proposing 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 recirclating 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 previously EPA-approved 
alternative bottom liner systems.
    EPA is basing its tentative 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 rule to 
maintain less than 30-cm depth of leachate on the liner.
    EPA considered certain issues pertaining to the proposed RD&D 
project, including the potential for increased leachate production and 
increased landfill gas generation and fugitive emissions from operation 
of the bioreactor. With respect to the potential for increased leachate 
production, SRPMIC performed modeling to project the impact of liquids 
addition on the liner and peak leachate production rates, and to assess 
the adequacy of the leachate collection system design capacity. This 
modeling demonstrated that the leachate collection system is designed 
to appropriately handle the amount of anticipated leachate and that the 
increase in liquids should not adversely affect the performance of the 
liner system in protecting groundwater. SRPMIC will also maintain a 25-
foot or greater separation zone between the bottom of the landfill and 
the top of the groundwater aquifer. SRPMIC will routinely monitor 
leachate quantity and quality, liquids balance, volume and settlement 
of the waste, and groundwater quality and levels. By monitoring, SRPMIC 
will be able to ensure effective and protective ongoing operations of 
these Phases of the landfill and provide data for EPA to use in its 
ongoing RD&D study.
    With respect to the potential for increased landfill gas generation 
and fugitive gas emissions, 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 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 tentative determination, and in accordance with 40 
CFR 258.4, EPA is proposing to require 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, 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 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.
    The tentative determination would 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

[[Page 45191]]

three years. EPA is proposing to allow operation of the landfill cells 
in accordance with the RD&D rule for three years, but the operator may 
request a renewal of the authorization by submitting a request to the 
Director of the Waste Management Division. Each renewal request would 
be 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.

B. Proposed Finding of No Adverse Effect Under NHPA

    As part of the NHPA process, EPA is proposing a \1/2\-mile radius 
around the Salt River Landfill as the area of potential effects (APE). 
An APE is the geographic area within which a project may directly or 
indirectly cause alterations in the character or use of historic 
properties, if any such properties exist. In proposing a \1/2\-mile 
APE, EPA considered that SRPMIC's request is of a limited nature at a 
landfill that already exists and has been operating since 1993. EPA's 
proposed APE is consistent with the policy of the Archaeology 
Department of SRPMIC's Environmental Protection and Natural Resources 
Division. SRPMIC does not have a Tribal Historic Preservation Officer 
(THPO).
    In accordance with the NHPA, EPA consulted with SRPMIC's 
Archaeology Department, the Arizona State Historic Preservation 
Officer, the U.S. Bureau of Reclamation, the Salt River Project, the 
U.S. Bureau of Indian Affairs and nearby certified local governments on 
SRPMIC's RD&D request and reviewed the NHPA requirements. EPA provided 
the following tribes, who may have a cultural or historic interest 
within the proposed APE, with an opportunity to identify such cultural 
or historic properties: Ak-Chin Indian Community; Fort McDowell Yavapai 
Nation; Gila River Indian Community; Hopi Tribe; Pascua Yaqui Tribe; 
Tohono O'odham Nation; Yavapai-Apache Nation; Yavapai-Prescott Indian 
Tribe. No cultural or historic property was identified by these tribes, 
nor was any interest expressed to further consult with EPA.
    Only one historic property, the Arizona Canal, has been identified 
within the proposed APE. The Arizona Canal and associated access roads 
and banks are the property of the U.S. Bureau of Reclamation. 
Construction of the Arizona Canal began in 1883. It is a concrete-lined 
structure that continues to distribute water for domestic and 
irrigation uses in Maricopa County. The canal banks support a variety 
of non-motorized recreation activities, such as hiking, bicycling, 
walking, and jogging.
    The northern border of the Salt River Landfill is adjacent to the 
Arizona Canal. An eight-foot fence separates the landfill and the 
canal, and at its closest proximity, the fence is approximately 50 feet 
away from the canal. An additional 10-30 feet separates the fence from 
the proposed locations of the new groundwater wells nearest to the 
canal. Recreational use of the canal is restricted and minimized in the 
vicinity of the SRPMIC border.
    The proposed SRPMIC RD&D project could potentially impact the 
Arizona Canal in three ways: (1) Off-site migration of leachate, (2) 
disturbance from the installation of the 7 new groundwater monitoring 
network wells, and (3) fugitive gas emissions.
    It is not likely that there would be off-site migration of leachate 
via the groundwater or surface water pathways. With respect to the 
groundwater pathway, SRPMIC will maintain a 25-foot or greater zone of 
separation between the bottom of the landfill and the top of the 
aquifer to prevent leachate from coming into contact with groundwater. 
Each waste cell is or will be equipped with a bottom liner and leachate 
collection system to further reduce the risk of off-site leachate 
migration. With respect to the surface water pathway, the leachate 
retention pond has the estimated capacity to accommodate the additional 
leachate projected to be generated from Phases VI, IIIA, and IVB, even 
when leachate is not being recirculated back into the landfill. 
Stormwater is retained on-site and stormwater retention capacity will 
continue to be increased by SRPMIC throughout the life of the landfill. 
The canal, itself, is protected by berms and is at a higher elevation 
than the landfill. Surface water from the landfill does not flow 
towards the canal.
    The installation of 7 new groundwater monitoring wells should not 
have an adverse impact on the canal. The noise, equipment, vehicles, 
and possible dust associated with installing wells should not affect 
recreation use of the canal because the installation process is short-
term, and recreation use is restricted and minimized along the SRPMIC 
border. In addition, the proposed well locations and the canal are 
separated by an eight-foot fence and a distance of 60 feet or more. 
Because surface water does not move from the landfill towards the 
canal, and because storm water is retained on-site, it is not likely 
that loosened sediment from ground disturbance would find a ready 
pathway to the canal.
    Increased gas generation and emissions should not negatively impact 
the canal, as the canal is made of concrete, an inert building 
material. As required by EPA approval of the proposed RD&D project, 
each of the waste cells have or will have a gas collection and control 
system, and SRPMIC will routinely monitor the quality and quantity of 
landfill gas and fugitive emissions, and assess collection efficiency. 
The gas that is collected will be destroyed at the landfill's flare 
station or converted into energy. To the extent there are increased 
fugitive emissions, recreational use of the canal should not be 
adversely affected since there are few, if any, such uses along the 
SRPMIC border of the canal.
    Pursuant to section 106 of the NHPA, EPA has reviewed SRPMIC's 
site-specific flexibility request to take into account the effect of 
the proposed RD&D project on historic properties. EPA requests public 
comment on its proposed \1/2\-mile area of potential effects, its 
proposed finding that the Arizona Canal is the sole historic property 
within the APE, and its proposed finding of no adverse effect.

III. Statutory and Executive Order Reviews

    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,

[[Page 45192]]

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, Executive Order 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 Executive Order 13175 and has granted the 
SRPMIC the ``maximum administrative discretion possible'' within the 
standards set forth under the RD&D rule in accordance with Executive 
Order 13175.
    EPA specifically solicits any additional comment on this tentative 
determination from tribal officials of the SRPMIC.
    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 Executive Order 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. 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, Municipal landfills, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Dated: July 23, 2008.
Wayne Nastri,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, 40 CFR part 258 is proposed 
to be 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 by adding Sec.  258.42 to read as follows:

Sec.  258.42  Approval of Site-specific Flexibility Requests in Indian 
Country.

    (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 Research, Development, and 
Demonstration Permit Application Salt River Landfill, submitted by 
SRPMIC and dated September 24, 2007 and amended in April 2008 is hereby 
incorporated into this provision by this reference. 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

[[Page 45193]]

Waste Management Division at EPA Region 9 as specified in the September 
24, 2007 application, as amended in April of 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 Sec.  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 August 4, 2011 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 August 4, 2020. 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. E8-17828 Filed 8-1-08; 8:45 am]
BILLING CODE 6560-50-P
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