Solid Waste Disposal Facility Criteria; Re-Establishment of Ground-Water Monitoring Exemption for Small Municipal Solid Waste Landfills Located in Either Dry or Remote Areas

SUMMARY: Today, the Environmental Protection Agency (EPA) is revising

the criteria for municipal solid waste landfills (MSWLFs)by re-

establishing an exemption from ground-water monitoring for owners or

operators of certain small landfills. In order to qualify for the

exemption, the landfill must accept less than 20 tons of municipal

solid waste per day (based on an annual average), have no evidence of

ground-water contamination, and be located in either a dry or remote

location. This action codifies Sec. 3 of the Land Disposal Program

Flexibility Act of 1996 (LDPFA, P.L. 104-119, March 26, 1996), which

provides explicit authority for this ground-water monitoring exemption.

This action will ease burdens on certain small landfill owners and

local governments, without compromising groundwater quality.

EFFECTIVE DATE: This rule is effective on September 25, 1996.

ADDRESSES: Supporting materials are available for viewing in the RCRA

Information Center (RIC), located in Crystal Gateway I, 1235 Jefferson

Davis Highway, First Floor, Arlington, Virginia. The Docket

Identification Number is F-96-SDRF-FFFFF. The RIC is open from 9:00 am

to 4:00 pm, Monday through Friday, excluding federal holidays. To

review docket materials, it is recommended that the public make an

appointment by calling 703 603-9230. The public may copy a maximum of

100 pages from any regulatory docket at no charge. Additional copies

cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general questions on this rule,

contact the RCRA Hotline at 800 424-9346, TDD 800 553-7672 (hearing

impaired), or 703 412-9810 (Washington, DC metropolitan area).

For technical questions, contact Ms. Dana Arnold of the Office of

Solid Waste at 703 308-7279, or at U.S. Environmental Protection Agency

(5306W), 401 M Street, S.W., Washington, DC 24060.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority

II. Regulated Entities

III. Summary of Today's Action

IV. Background

A. Prior EPA Ground-Water Monitoring Requirements for Small

MSWLFs

B. The Land Disposal Program Flexibility Act of 1996

V. Good Cause Exemption from Notice-and-Comment Rulemaking

Procedures

VI. Withdrawal of Proposed Rule on Alternative Ground-Water

Monitoring

VII. Impact Analysis

A. Executive Order 12866

B. Regulatory Flexibility Act and Small Business Regulatory

Enforcement Fairness Act

C. Paperwork Reduction Act

D. Executive Order 12875 and Unfunded Mandates Reform Act

E. Considerations of Issues Related to Environmental Justice

VIII. Submission to Congress and the General Accounting Office

I. Authority

This regulation is promulgated under the authority of sections

1008(a)(3), 2002(a), 4004(a), and 4010(c) of the Solid Waste Disposal

Act, as amended by the Resource Conservation and Recovery Act of 1976

(RCRA), as amended, 42 U.S.C. 6907(a)(3), 6912(a), 6944(a), and

6949a(c).

II. Regulated Entities

Entities potentially regulated by this action are public or private

owners or operators of municipal solid waste landfills (MSWLFs) that

accept less than 20 tons of municipal solid waste and are located in

dry or remote areas. Regulated categories and entities include:

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

Category Examples of regulated entities

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

Industry............................ Owners or operators of small

MSWLFs in dry or remote

locations.

Municipal Government................ Owners or operators of small

MSWLFs in dry or remote

locations.

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

III. Summary of Today's Action

Today, EPA is revising the 40 CFR Part 258 criteria for MSWLFs by

re-establishing an exemption from ground-water monitoring for owners or

operators of small landfills that have no known ground-water

contamination and that are located in dry or remote areas. This rule

codifies Sec. 3 of the Land Disposal Program Flexibility Act of 1996

(P.L. 104-119, March 26, 1996), which amended section 4010(c) of RCRA

to exempt certain small MSWLFs from ground-water monitoring

requirements. This rule applies to owners or operators of new MSWLF

units, existing MSWLF units, and lateral expansions of existing MSWLF

units.

IV. Background

A. Prior EPA Ground-Water Monitoring Requirements for Small MSWLFs

On August 30, 1988, EPA proposed municipal solid waste landfill

criteria under Subtitle D of RCRA (53 FR 33314), which included minimum

federal criteria for location restrictions, facility design and

operation, ground-water monitoring, corrective action, financial

assurance, and closure and post-closure care requirements.

In the final MSWLF criteria (56 FR 50978, October 9, 1991), EPA

included an exemption for owners and operators of certain small MSWLF

units located in dry or remote areas (hereafter referred to as

``qualifying small MSWLFs'') from the design and ground-water

monitoring requirements. To qualify for the exemption, the landfill

must have met the following criteria: accepted less than 20 tons of

municipal solid waste per day (based on an annual average), had no

evidence of ground-water contamination, and either: (1) served a

community that experiences an annual interruption of at least three

consecutive months of surface transportation that prevents access to a

regional waste management facility, or (2) been located in an area that

annually receives 25 inches or less of precipitation and serve a

community that has no practicable waste management alternative. In

adopting this limited exemption, the Agency believed that it had

complied with the statutory requirement to protect human health and the

environment, taking into account the practicable capabilities of

landfill owners and operators, in this case owners or operators of

small MSWLFs.

This exemption was successfully challenged by the Sierra Club and

the Natural Resources Defense Council (NRDC). In Sierra Club v. United

States Environmental Protection Agency, 992 F.2d 337 (D.C. Cir. 1993),

the U.S. Court of Appeals held that under RCRA section 4010(c), the

only factor EPA could consider in determining whether facilities must

monitor ground-water was whether such monitoring was ``necessary to

detect contamination,'' not whether such monitoring is ``practicable.''

Thus, the Court vacated the exemption for qualifying small MSWLFs as it

pertains to ground-water monitoring, and remanded that portion of the

final rule to the Agency for

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further consideration. The Court did not require EPA to remove the

exemption from the design requirements.

On October 1, 1993, EPA rescinded the exemption from ground-water

monitoring for qualifying small MSWLFs (58 FR 51536). The Agency also

delayed the effective date of the MSWLF criteria for qualifying small

MSWLFs for two years (until October 9, 1995), to allow owners and

operators of such small MSWLFs adequate time to decide whether to

continue to operate in light of the Court's ruling, and to prepare

financially for the added costs if they decided to continue to operate.

The U.S. Court of Appeals decision did not preclude EPA from

issuing separate ground-water monitoring standards for these landfills,

taking into account size, location, and climate, as long as these

separate standards ensured that any ground-water contamination would be

detected. Therefore, EPA intended to use the additional two-year period

to determine if there were practical and affordable alternative

monitoring systems or approaches that would be adequate to detect

contamination. The Agency determined that there are alternative methods

and proposed alternative ground-water monitoring regulations in 1995

(60 FR 40799, August 10, 1995). The Agency subsequently extended the

effective date for qualifying small MSWLFs until October 9, 1997 to

provide EPA with time to finalize the alternative monitoring

requirements (60 FR 52337, October 6, 1995).

B. The Land Disposal Program Flexibility Act of 1996

On March 26, 1996, President Clinton signed into law the Land

Disposal Program Flexibility Act of 1996 (LDPFA), P.L. 104-119, which,

among other things, amended RCRA section 4010(c) to exempt certain

small MSWLFs located in either dry or remote areas from the ground-

water monitoring requirements. The LDPFA specifies that the ground-

water monitoring requirements do not apply to the owner or operator of

a new MSWLF unit, an existing MSWLF unit, or a lateral expansion of a

MSWLF unit, that disposes of less than 20 tons of MSW daily, based on

an annual average, if there is no evidence of ground-water

contamination from the unit or expansion and the unit or expansion

serves either a remote community (i.e., one that experiences an annual

interruption of at least 3 consecutive months of surface transportation

that prevents access to a regional MSW facility) or a dry community

(i.e., one that receives 25 inches or less of precipitation annually)

that has no practicable waste management alternative.

Today, EPA is implementing this amendment to RCRA section 4010(c)

by re-establishing in the Part 258 MSWLF criteria the exemption from

the ground-water monitoring requirements for owners or operators of

qualifying small MSWLFs. To do so, EPA is revising the introductory

text to Sec. 258.1(f)(1), which currently provides that qualifying

small MSWLFs are also exempt from the design requirements found in

subpart D of Part 258. The revision provides that the qualifying small

MSWLFs are exempt from the ground-water monitoring requirements of

subpart E. The rest of the exemption (i.e., Sec. 258.1(f)(1) (i) and

(ii)) is unchanged. EPA also is revising Sec. 258.1(f)(3) to specify

that, if the owner or operator of a qualifying small MSWLF has

knowledge of ground-water contamination, then the owner or operator

must notify the state Director and comply with the subpart E ground-

water monitoring and correction criteria, as well as the subpart D

design criteria.

The LDPFA also authorizes States to require MSWLF owners or

operators of qualifying small MSWLFs to conduct ground-water monitoring

in the specified instances described below. Under the LDPFA, a State

may require the owner or operator of a small MSWLF located in a dry or

remote area to conduct ground-water monitoring if necessary to protect

ground-water resources and ensure compliance with a State ground-water

protection plan. If the State finds a release from a solid waste

landfill unit, the State must require corrective action as appropriate.

The LDPFA also authorizes States to allow owners or operators of

qualifying small MSWLFs to use alternatives to ground-water monitoring

wells to detect releases.

In addition, the LDPFA authorizes a State to suspend the ground-

water monitoring requirements for any MSWLF, if the landfill operator

demonstrates that there is no potential for migration of hazardous

constituents from the unit to the uppermost aquifer during the active

life of the unit and the post-closure care period. The opportunity to

demonstrate that there is no migration applies to the operators of all

MSWLFs, not just to the operators of qualifying small MSWLFs. The MSWLF

rule already contains this ``no migration'' exemption provision. See 40

CFR 258.50(b). As required by the LDPFA, EPA intends to issue guidance

to facilitate small community use of this no migration exemption.

V. Good Cause Exemption From Notice-and-Comment Rulemaking

Procedures

The Administrative Procedure Act generally requires agencies to

provide prior notice and opportunity for public comment before issuing

a final rule. 5 U.S.C. Sec. 553(b). Rules are exempt from this

requirement if the issuing agency finds good cause that notice and

comment are unnecessary. 5 U.S.C. Sec. 553(b)(3)(B).

EPA has determined that providing prior notice and opportunity for

comment on the promulgation of this rule is unnecessary. As discussed

in Part IV of this preamble, the LDPFA amended RCRA section 4010(c) to

reinstate the small community landfill exemption and to authorize

states to require ground-water monitoring and corrective action at

small MSWLFs that otherwise would qualify for the exemption. The

statutory exemption and other provisions took effect when the President

signed the LDPFA on March 26, 1996. Promulgation of today's rule simply

implements the Congressional intent of section 3(b) of LDPFA to

``immediately reinstate'' the small community MSWLF exemption that was

once codified in 40 CFR Sec. 258.1(f). Because EPA is making no changes

to the exemption specifically provided by the LDPFA, it is unnecessary

to again provide notice and accept public comment.

For the same reasons, EPA believes there is good cause for making

the reinstatement of the small community MSWLF exemption in Part 258

immediately effective. See 5 U.S.C. Sec. 553(d).

VI. Withdrawal of Proposed Rule on Alternative Ground-Water

Monitoring

On August 10, 1995 (60 FR 40799), EPA proposed requirements for

alternative ground-water monitoring systems or approaches to provide

owners and operators of qualifying small MSWLFs with flexibility in

meeting the ground-water monitoring requirements of RCRA section

4010(c) and EPA's implementing regulations. As a result of today's re-

establishment of the ground-water monitoring exemption into the Part

258 MSWLF criteria, many small landfills will no longer need this

flexibility because they will not be subject to the ground-water

monitoring requirements. Even if ground-water monitoring is necessary

at a qualifying small MSWLF, under the LDPFA, it is the State (or

Tribe), rather than EPA, that can allow the landfill operator to use

alternative ground-water monitoring techniques. Thus, it is not

necessary for EPA to promulgate alternative ground-

[[Page 50412]]

water monitoring requirements, and the Agency is withdrawing the

proposed alternative ground-water monitoring regulations published on

August 10, 1995.

VII. Impact Analysis

Under the LDPFA, the ground-water monitoring exemption for

qualified small MSWLFs are in effect regardless of EPA action. In

today's final rule, EPA is simply codifying this LDPFA provision in

order to enable affected entities to find all relevant requirements in

the Part 258 MSWLF criteria in the Code of Federal Regulations.

Therefore, any potential regulatory impacts have already been created

by Congressional action in enacting the LDPFA. Because the ground-water

monitoring exemption for qualified small MSWLFs is deregulatory in

nature, however, it provides regulatory relief to small entities.

A. Executive Order 12866

Under Executive Order 12866, EPA must determine whether a

regulatory action is significant and therefore subject to OMB review

and the other provisions of the Executive Order. A significant

regulatory action is defined as one 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 entitlements, grants,

user fees, or loan programs or rights and obligations or 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

Executive Order 12866.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of E.O. 12866 and therefore is not

subject to OMB review. In the proposed rule to establish alternative

ground-water monitoring requirements, EPA estimated the national annual

costs of ground-water monitoring requirements at qualifying small

MSWLFs to range from $7.2 million to $26.6 million per year (60 FR

40810, August 10, 1995). Today's action is deregulatory in nature and

will provide certain small entities with relief from the costs of

ground-water monitoring without adversely impacting human health or the

environment.

B. Regulatory Flexibility Act and Small Business Regulatory Enforcement

Fairness Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended

by the Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA), generally requires an agency to prepare a regulatory

flexibility analysis that describes the impact of a proposed or final

rule on small entities (i.e., small businesses, small organizations,

and small governmental jurisdictions). However, no regulatory

flexibility analysis is required if the head of an agency certifies the

rule will not have a significant economic impact on a substantial

number of small entities.

Pursuant to 5 U.S.C. 605(b), I hereby certify that today's final

rule will not have a significant adverse impact on a substantial number

of small entities. Today's rule is deregulatory in nature and does not

impose any new burdens on small entities. The effect of today's final

rule is to provide certain small entities with relief from ground-water

monitoring requirements and the costs associated with those

requirements. Therefore, this rule does not require a regulatory

flexibility analysis.

C. Paperwork Reduction Act

EPA's 1991 MSWLF regulations provided that owners or operators that

meet the criteria for exemptions from the ground-water monitoring and

design criteria must place documentation in the facility operating

record demonstrating that they qualified for the exemptions. The

information collection requirements for all of Part 258, including this

documentation requirement for small, dry or remote landfills, were

submitted to the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The OMB approval number

for compliance with the Part 258 MSWLF criteria recordkeeping and

reporting requirements is 2050-0122.

D. Executive Order 12875 and Unfunded Mandates Reform Act

Under Executive Order 12875, Federal agencies are charged with

enhancing intergovernmental partnerships by allowing State and local

governments the flexibility to design solutions to problems the

citizenry is facing. E.O. 12875 calls on Federal agencies to either pay

the direct costs of complying with Federal mandates or to consult with

representatives of State, local, or Tribal governments prior to formal

promulgation of the requirement. The Executive Order also provides for

increasing flexibility for State, Tribal, and local governments through

waivers.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.

L. 104-4, establishes requirements for federal agencies to assess the

effects of regulatory actions on State, local, and Tribal governments,

and the private sector. UMRA requires agencies to prepare a written

statement, including a cost-benefit analysis, for proposed and final

rules with ``Federal mandates'' that may result in expenditures by

State, local, and Tribal governments, in the aggregate, or to the

private sector, of $100 million or more in any one year.

EPA has determined that today's final rule does not include a

Federal mandate that may result in estimated costs of $100 million or

more to either State, Tribal, and local governments in the aggregate,

or to the private sector. As previously discussed in this preamble, the

exemption from ground-water monitoring for qualifying small MSWLFs

reduces a regulatory burden and associated costs that these small

entities otherwise would be required to incur.

Prior to passage of the LDPFA, EPA had maintained dialogue with

States, Tribes, and local governments regarding ways of ensuring

appropriate flexibility while maintaining protection of human health

and the environment for small MSWLFs, particularly those in dry or

remote locations. The Agency believes that this consultation with

States, Tribes, and local governments satisfies the requirement of

Executive Order 12875.

E. Considerations of Issues Related to Environmental Justice

EPA is committed to addressing environmental justice concerns and

is assuming a leadership role in environmental justice initiatives to

enhance environmental quality for all residents of the United States.

The Agency's goals are to ensure that no segment of the population,

regardless of race, color, national origin, or income bears

disproportionately high and adverse human health and environmental

effects as a result of EPA's policies, programs, and activities, and

all people live in clean and sustainable communities.

The Agency believes that today's rule will not have a

disproportionately high or adverse environmental or economic impact on

any minority or low-income group, or on any other type of affected

community. The Agency believes that this rulemaking will enable some

minority and/or low-income communities to continue to be served by a

local landfill that otherwise would

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close because it could not afford the cost of ground-water monitoring.

The Agency further believes that this rulemaking will not create

adverse impacts on human health and the environment because the ground-

water monitoring exemption is only available if there is no evidence of

ground-water contamination from the landfill, and States can require

both ground-water monitoring and corrective action as necessary to

protect ground-water resources.

VIII. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 258

Environmental protection, Corrective action, Ground-water

monitoring, Household hazardous waste, Liner requirements, Liquids in

landfills, Reporting and recordkeeping requirements, Security measures,

Small quantity generators, State/Trial permit program approval and

adequacy, Waste disposal, Water pollution control.

Dated: September 19, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40 of the Code of

Federal Regulations, Part 258, 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 (e).

2. Section 258.1 is amended by revising the introductory text of

paragraph (f)(1) and by revising paragraph (f)(3) to read as follows:

Sec. 258.1 Purpose, scope, and applicability.

* * * * *

(f)(1) Owners or operators of new MSWLF units, existing MSWLF

units, and lateral expansions that dispose of less than twenty (20)

tons of municipal solid waste daily, based on an annual average, are

exempt from subparts D and E of this part, so long as there is no

evidence of ground-water contamination from the MSWLF unit, and the

MSWLF unit serves:

* * * * *

(3) If the owner or operator of a new MSWLF unit, existing MSWLF

unit, or lateral expansion has knowledge of ground-water contamination

resulting from the unit that has asserted the exemption in paragraph

(f)(1)(i) or (f)(1)(ii) of this section, the owner or operator must

notify the state Director of such contamination and, thereafter, comply

with subparts D and E of this part.

* * * * *

[FR Doc. 96-24591 Filed 9-24-96; 8:45 am]

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