'.530-2
Wednesday
July 28, 1993
Part VI
Protection Agency
40 CFR Part 258
Solid Waste Disposal Facility Criteria;
Delay of the Effective pate; Proposed
Rule ••"..:" -- '•'; ' ." ' .--•'
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4Q5fig..... F>djj:al Register / VoL 58. No. 143 I, Wednesday, July 28, 1993 / Propose^ Rules
. ENVIRONMENTAL PROTEQTIQN
AG£NCYH ,;',,, '..,., ' ,,.,'
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Solid Waata Disposal Facility Criteria-
Delay of the Effective Date
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AGENCY: Environmental Protection
Agency (EPA).
ACTKWJ: Proposed rule.
StlMMARY: On October 9, 1991. EPA,
Soniulgated revised Federal criteria for
unicipal Solid Waste Landfills
{MSWLFsl under Subtitle D of the
|tesource Conservation and Recovery
Act {RCRA}. EPA is proposing to amend
these criteria by delaying the effective
date for six months for certain small
landfills and by delaying the effective
dote for ono year of the financial
, assurance requirements for all landfills.
The Agency has received a considerable
number of requests from States,
localities, and other groups to extend
th
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Federal Register / Vol. 58, No. 143 / Wednesday. July 28. 1993 / Proposed Rules . 40569
MSWLFs in the state, and must
establish requirements adequate to
ensure owners and operators will ;
comply with the federal landfill criteria.
A state also must be able to ensure
comrjliance through monitoring and .
enforcement: actions and must provide
for public participation.
The Agency intends to extend to .
'Indian Tribes the same opportunity to
apply for permit program approval as is
available to states. Providing Tribes
with the opportunity to apply for
approval to adopt and implement
MSWLF permit programs, while not a
statutory requirement in RCRA section
4005{c)(l)(B), is consistent with EPA's
Indian Policy. The Agency plans to ,
propose the concept of Tribal permit
program approval when a tentative .
notice of permit program adequacy is "
published for the first Indian Tribe
seeking program approval.
If EPA approves a state/Tribal
program, a state/Tribe has the
opportunity for more flexibility and
discretion in implementing the criteria
according to local conditions and needs.
'Owners and operators located in a state/
Tribe with an approved program may
benefit from this potential flexibility, :
which extends; to many parts of the •
MSWLF regulations. For example,
owners and operators in unapproved
states/Tribes must design their landfill
with a composite liner in compliance
with 40 CFR 258.40(b), whereas
approved states/Tribes may allow an
owner/operator to use an alternative
design based on the performance
standard described in 40 CFR 258,4Q(a).
Because of the tremendous flexibility
provided in an approved permit
program, and because it is mandated by
section 4005(c)(l)(B) of RGRA, EPA .
fully expects that most states will apply
for and receive full approval of their
MSWLF permit programs, thereby
maintaining the lead role in
implementing and enforcing the
MSWLF Criteria promulgated under 40
CFR part 258. States are currently in
various stages of the program approval
process. Several states have received
"partial" program approval, whereby
only some portions of the state program
have been approved while the
remainder of the program is awaiting
approval pending completion of
statutory and/or regulatory" changes by
the state. In situations where a state
program is not approved, or where
portions of a program are not approved
(in die case of a partial approval], the
MSWLF criteria are implemented by the
owner and operator, with no Federal
permitting program or interaction. In
situations where the Criteria are self-
implementing, each owner/operator
must document compliance and .. •
maintain this documentation in his/her
operating re :ord. -
C. Summary of Features in the Criteria
That Serve to FaciJftaie Compliance
When the MSWLF Criteria were
developed, the Agency realized that
owners and operators of MSWLFs
Would need time to come into
compliance with the regulations and
that some flexibility in the regulations
would be necessary because, one ' - ;
standard set of regulations would not
necessarily accommodate the variety of
conditions that exist at each landfill
location across the country. Taking into
account the practicable capability of
MSWLF owners/operators, the MSWLF
Criteria contain a number of features
that serve to facilitate compliance'.
1. Phased Effective Dates,
First, the current effective date of the
Criteria is two years after the date of .
promulgation in order to provide
sufficient time for faeilities to acquire
sufficient capital and resources to either
upgrade their facilities or close and find
an alternative waste management
option. The Agency also recognized that
a delayed effective date would provide
time to review the adequacy of a state/
Tribal permit program. The two-year
window also accommodates owners and
operators of MSWLFs that wish to close
their landfills to avoid having to comply
with all of the Criteria. These
individuals may accept waste up until
the effective date and then take another
six months to complete closure, thereby'
maximizing the time available to secure
an alternative method of waste ,
management and procure funding and
professional services to close the
landfill.
In addition to a two-year effective
date window, the Criteria also provide
phased effective dates for certain
provisions of the rule. First, ground-
water monitoring requirements for
existing units and lateral expansions of
existing units are phasad-in between
October 9,1994 and October 9,1996,
according to a schedule set by an
approved state or, in a unapproved
state, depending on the proximity of the
MSWLF unit to a drinking water intake.
As discussed in the October 9,1991
preamble to the Final Rule, this
additional time was provided to
compensate for the lack of qualified
drilling firms and hydrogeologists that
would have been necessary to bring
everyone into compliance at the same
time. 56 FR 50978,51062-51063 (Oct. 9,
1991).
Second, the effective date of the
financial assurance requirements is
April 9,1994, or 30 months following
the publication of the Final Rule. As
discussed in the preamble to the Final
Rule, this additional time was provided
to accommodate promulgation of a
financial test for local governments and
corporations, to allow the financial
market sufficient time to respond to new
demands for financial instruments, arid
to provide time for local governments
and corporations to plan for and obtain
any needed financial assurance. 56 FR
51104 (Oct. 9,1991).
EPA also included provisions in the
rule that in some way phase in certain
- requirements. For example, should an
existing unit not be able to comply with
the location restrictions forairport
safety, floodplains, or unstable areas,
owners/operators would have until at
least 1996, and potentially later if the ;
landfill is located in an approved state,
to close. In addition, the landfill; Criteria
do not require a liner for existing
. portions of MSWLF units; the owner or .
operator need not install a,liner until
the unit is expanded laterally. , ;
Thus, for existing MSWLF units, this
generally means that the only .
requirements that immediately take
effect on October 9, ,1993 are the
• operating criteria,, which 'include "goodl
housekeeping" requirements such as
access control, liquid restrictions, and
procedures to exclude the receipt of
regulated hazardous wastes and
polychlorinated biphenylsXPCBs).
2. Small Landfill Exemption
Section 258.1(f) of the MSWLF
Criteria includes an exemption from the
design, ground-water monitoring, and :,
corrective action requirements for some
very small, remote MSWLFs, so long as
these landfills show no evidence ofj
ground-water contamination. The ,-•
Agency's Regulatory Impact Analysis
found that these three regulatory
requirements as the costliest elements of .
the regulations. In adopting this
exemption, EPA maintained that it had
complied withtiie statutory standard to
protect human health and the
environment, taking into account the
practicable capabilities of small landfill
, owners and operators. However, on May
.7,1993, the United States Court of
Appeals for the District of Columbia
Circuit Court issued an opinion • ; . •
pertaining to a.Sierra Club and Natural
Resources Defense Counsel (NRDC)
challenge to the MSWLF Criteria (Sierra
Club v. United States Environmental .
Protection Agency, No. 92-1003 (D.C.
Cir. May 7,1993), which vacated the
small landfilLexemptipn relating to
ground-water monitoring. Thus, all
MSWLFs, regardless qf size, are now
required to perform ground-water
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Federal Register A Vol. 58 No. 143 / Wednesday, July 28, 1993. / Proposed Rules
monitoring. Small landfills that meVt
the criteria set forth in 40 CFR
258.1(f)(l) will continue to be eligible
for the exemption from the design >-
requirements.
3. Additional Flexibility Available to
Owners/Operators in States With EPA-
Approved Permit Programs
As mentioned earlier, states/Tribes
with EPA-approved permit programs
acquire a significant amount of
flexibility with respect to the way in
which they implement the MSWLF
criteria, potentially resulting in
considerable cost savings to the owner
and operator. In addition to the example
of flexibility discussed earlier with
respect to an alternative liner design, an
approved state/Tribe may use
alternative approaches to the federal
requirements that would apply in
unapproved states/Tribes, while still
protecting human health and the
environment. Examples include:
allowing siting in certain locations
where owners/operators in unapproved
states/Tribes could not; allowing an
alternative cover material, other than six
inches of soil, to be applied at the end
of each operating day; altering ground-
water monitoring frequencies and clean-
up standards; allowing for alternative
landfill cover designs; shortening the
post-closure care period; and permitting
the use of an alternative financial .
assurance mechanism.
III. Delay of the Effective Date -
A. Reasons Cited for a Delay of the
Effective Date
Despite the existing features of the
Criteria that serve to facilitate
compliance with the Subtitle D
regulations, the Agency has received a
considerable number of requests to
extend the effective date. These requests
have come largely from local
governments that own/operate small
MSWLFs, and a number of the national
organizations who represent local
government interests. These requestors
died a number of reasons for a delay of
the effective date, which are
summarized below.
1, Inability To Comply With Unfunded
Federal Programs
The Agency has received a number of
letters stressing the struggle that local
governments are experiencing in their
attempt to comply with an
"overwhelming" number of "unfunded"
federal requirements. In addition to the
MSWLF criteria, local governments
must deal with a variety of compliance
costs of such environmental programs as
the underground storage tank program,
the safe drinking water program, and the
wastewater treatment program, all of
which are competing for already scarce
local government-funds. Local
governments have requested a delay in
the effective date of the MSWLF Criteria
to give them additional time to put the
financing in place to either upgrade
their existing landfill(s) or close their
landfill(s) and procure an alternative
form of waste management. •
2. Unavailability of Flexibility iii
Unapproved States
Because most states are in the process
of having their permit programs
approved by EPA, local governments
have expressed uncertainty regarding
the regulatory requirements they will be
subject to on the effective date of the ,
criteria. This creates a potentially
confusing situation where, on October 9,
1993, owners/operators in unapproved
states would be subject to "overlapping"
federal and state requirements. In
addition, where a state is not approved
before the effective date, owners and
operators in that state would not be
afforded the flexibility that could be
available in approved states to allow for
consideration of local conditions and
needs when designing and operating a
landfill. For example, owners/operators
in an unapproved state are required to
place six inches of earthen material on
top of their waste at the end of each
operating day (known as "daily cover");
whereas ah approved state Would have
the flexibility to allow owners/operators
to'use an alternative "daily" cover, such
as foam, should it meet a general
performance standard. These alternative
daily covers could save valuable landfill
space and result in considerable cost
savings to the owner/operator.
3. Delays in Gaining Access to a New
Waste Management Facility
Local governments that plan to close
their own landfills and join a regional
facility are experiencing delays in
gaining access to the new facility due to
difficulties in: Securing financial
backing, acquiring permits and other.
approvals, and/or completing timely
construction of a transfer station and/or
the hew landfill; information provided
to EPA indicate that this is especially,
true for communities with smaller
landfills (e.g., accepting less than 100
TPD) that are more likely to close
existing units and join a regional
facility. In some states, the permitting
process is unable to handle the influx of
applications for new landfill permits
and for modifications of existing landfill
permits, thereby delaying an owner's/
operator's ability to meet the criteria on
'the effective date. In addition, many
local governments have experienced
continued opposition to the siting of
new regional facilities by local,
opposition groups, who have initiated
litigation to challenge siting decisions.
Bond issues, tax increases, and tipping
fee charges needed to finance the
closure or construction of MSWLFs
have had to go through the legal
processes required for approval of such
actions. Some local governments, have
had to seek new statutory authorization
from their states to allow the local
governments to form regipnaldistricts
or to finance facilities. Because many
state legislatures meet only for a few
months each year, this task is just now
getting completed in some places. These
local governments are requesting a delay
in the effective date so that, until the
new landfill is complete, they can keep
their local landfill(s) open without being
subject to the new regulatory
requirements (especially costly ground-
water monitoring, post-closure care, and
corrective action requirements).
B, Proposal To Extend the Effective Date
In response to these concerns, the
Agency today proposes a one-time
extension of the effective date of the
MSWLF criteria for a period of six
months—from October 9,1993 to April
9,1994---for owners and operators of
relatively small MSWLF units (existing
and lateral expansions) if certain
conditions are met; EPA is not
proposing any changes in the
substantive requirements of the criteria.
To qualify for the extension, the
following proposed conditions would
.need to be met: (1) The landfill receives
100 tons per day (TPD) or less of any
combination of household, commercial,
or industrial solid waste on an annual
average basis; (2) the landfill is located
in a state that has submitted an
application for program approval to EPA
by October 9,1993 or is located on
Tribal lands; and (3) the landfill is not
currently on the Superfund National
Priorities List (NPL). A further
discussion of individual aspects of this
proposed extension follows. It should be
noted that a state/Tribe, regardless of its
permit program approval status, may •.
impose more stringent effective dates ...
and/or more stringent criteria for
qualifying for an extension.
1. Basis for Six-Month Timeframe
As discussed earlier, owners and
operators have expressed concern that
the federal criteria may be effective
before their respective states obtain EPA
approval of their permit programs,
thereby subjecting such localities to a
changing set of federal-then-state
regulations over a short period of time
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143 / Wednesday, July 28, 1993 /Proposed Rules
Federal Register / Vol 58. No.
and initially limiting the flexibility
available to, and potentially increasing
design and operating costs for, owners
and operators in states wiUiEPA-
approved permit programs, EPA s
current data indicate thatnearly all
states will submit an application for
approval by October 9,1993. The
Agency has found that the approval
process for a state's application takes .
approximately six months. A six-month
delav of the effective date would mean
that most states will have an approved
___™4t Tw
scales are available, owners/operators
may use other means to assure they
meet the ton per day limit. For example,
the owner/operator could conduct a
one-time measurement of typical full'
trash hauling vehicles. This could then
be used to determine average tons per
day. Other options include estimating
weight from volume of trash hauling
vehicles by using a conversion factor
(e.g., one ton equal to three cubic yards),
or using sales/acceptance receipts from
trash haulers. ....--, ;, ,
The Agency solicits comments on ;
whether these two calculations are ,
: necessary in order to avoid extending
the effective date for historically larger
facilities. The Agency alsa seeks
comment on the methods of calculating
the tons per day. '•
While the MSWLF criteria apply only
to landfills that accept household waste,
the'Agency is aware that many of these
landfills also accept commercial and
non-hazardous industrial solid waste.
The definitions of household,
commercial, and industrial solid waste
may be found in 40 CFR 258.2. Data
contained in the EPA Report
"Characterization of Municipal Solid
Waste in the United States: 1992
Update," indicate that 55 to 65 percent
of municipal solid waste conies from
residential sources arid 35 to 45 percent
comes from commercial sources. Other
data compiled by the Agency suggest
that, while the vast amount of
nonhazardous industrial waste is
generated by manufacturers and is
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40572 Federal Register
managed on-site, a small percentage of
Industrial waste is sent to MSWLFsl
When deliberating over the
qualifications for the proposed
extension in today's rule, the Agency
considered prohibiting MSWLFs that
qualify for the extension from accepting
non-hazardous industrial waste. For
several reasons, however, the Agency
decided against a prohibition of
accepting industrial waste. Specifically,
(1) This waste stream typically
represents a small fraction of the entire
waste sent to a MSWLF, (2) prohibition
of certain waste streams would be
difficult to enforce, (3) for some
industries, the locajl MSWLF represents
the only economical method of disposal
of their waste, and (4) the extension
would be granted for only a short period
of time. Therefore, today's proposed
extension applies to MSWLFs accepting
100 tons per day or less of any type of
solid waste, which may include
household waste, commercial solid
waste, and industrial solid waste as
defined in 40 CFR 258.2.
Finally, today's proposed extension,
while providing an extension for a
majority of the landfills in the country,
will have little effect on the majority of
waste disposed in landfills. Overall,
* limiting the extension to landfills
receiving 100 TPD or less would extend
the effective date for approximately 75
percent of the MSWLFs in the country,
but would apply to less than 15 percent
of the total waste stream.
3. The Extension Is Limited to Existing
MSWLF Units and Lateral Expansions
of Existing Units
The Agency, in § 258.2, defines an
existing MSWLF unit as any unit that is
receiving solid waste as of the effective
date of the landfill criteria (currently set
at October 9,1993). The Agency has
interpreted this to mean that an existing
unit is defined by the area! extent of
waste (sometimes referred to as the
waste "footprint") placed as of October
9,1993. A lateral expansion is defined
as the horizontal expansion of the waste
boundaries of an existing unit. A new
MSWLF unit is any unit that has not
received waste prior to the effective date
(October 9,1993).,Today's proposed
extension of the effective date for
landfills accepting less than 100 TPD
doos not apply to new units. If a unit
has not received waste by October 8,
1993, it is a new unit and must comply
with the Part 258 requirements on
October 9,1993. The major rationale for
today's proposed limited extension is to
allow existing landfill units in small
localities to remain open while they
complete their plans for alternative'
waste management methods or for
MTol- 58. No, 143 / Wednesday, July 28, 1993 /Proposed Rules
coming into full compliance with the
criteria. Today's proposed extension is
not intended to provide relief for
owners/operators who wish to open
new units. The Agency is allowing
owners and operators of MSWLF units
receiving less than 100 TPD and that
meet the other criteria discussed herein,"
to laterally expand their units during
this delay period so as not to disrupt the
trench and area fill practices that occur
at many of the smaller landfills in the
U.S. For example, in a trench fill
operation, a small trench is excavated,
filled, and covered in a relatively short
period of time. As the old trench is
filled, it is extended to accommodate
additional waste. This extension is by
definition a lateral expansion. Limiting
today's proposal to existing units would
therefore limit the extension to
considerably fewer landfills than
intended.
4. The MSWLF Is Located in a State
That Has Submitted an Application for
Permit Program Approval by October 9,
1993 or Is Located on Indian Lands
As previously mentioned, among the
reasons for today's proposed extension
is the need to provide more time for
states/Tribes to obtain EPA approval of
their permitting programs so that many
of the owners and_pperators will be able
to take advantage of state/Tribal
flexibility upon the new effective date
and so that localities can avoid the re-
tooling that would be necessary to meet
federal standards in October and then
different state standards several months
later. The Agency's current data indicate
that nearly all states are likely to have
received final approval by April 9,1994.
In order to assure that this occurs, and
to provide further incentives to the
states, the-Agency decided to limit
today's proposed extension to owners
and operators of MSWLF units receiving
100 TPD or less in states that have
submitted an application for permit
program approval. The Agency is
Unking today's proposed extension to
the state permit program approval
process so as not to slow the pace of
state program approval. Conversely, this
linkage may indeed serve as impetus for
states to submit their applications
sooner rather than later.
The Agency recognizes that, for an
owner/operator to take advantage of this
extension, that owner/operator must
know whether their state has submitted
an application for permit program
approval on or before October 9,1993.
Therefore, when the Agency publishes
the final rule for this extension, it will
include a list of states who have
submitted an application by the date on
which the final rule was signed. EPA
will subsequently acknowledge receipt
of application for those States who
submit their applications after this date
but on or before October 9, 1993
Owners/operators with MSWLF units
located in states that do not appear on
this hst in the final rule should contact
their state to find.out whether EPA has
notified the state that it has officially
mitted aPPlicfltion by October 9,
While states are required by RCRA
Section 4005(c)(l)(BJI to develop a
permit program for MSWLFs, the statute
a^s not require Indian Tribes to do the
same. AS mentioned previously in this s
preamoW, the Agency plans tn nrnnnco
ss tar
could qualify for to^y-s pr0posed ^.
month extension ;by v^ ofAelaS
that they accept less tb* 100 TpD 11,,-.
are not on the National Parities L^T
the Agency is proposing toK-
MSWLF units on Indian laflVto t«l™
advantage of the six-month ex»nsTfn
even if the Indian Tribe has not-
submitted an application for peri^t
program approval^ October 9, 1J>3>
For the purpose of today's proposs
an Indian Tribe is defined as any Indin
tribe, band, nation, or community
recognized by the Secretary of the
Interior and exercising substantial
governmental duties and powers Within
Indian country. Indian lands means: (a)
All land within the limits of any Indian
reservation under the jurisdiction of the
United States Government,
notwithstanding the issuance of any
patent; and including rights-of-way
running throughout the reservation, (b)
all dependent Indian communities
within the borders of the United States,
whether original or subsequently
acquired territory thereof, and whether
within or without the limits of a state,
and (c) all Indian allotments, the Indian
titles to which have not been
extinguished, including rights of way
running through the same.
While the definition of Tribes in
today's proposal does not explicitly
include Alaska Native Villages, EPA
believes that, to the extent these entities
exercise substantial governmental duties
and powers, they would be eligible to
apply for permit program approval. For
purposes of today's proposal, as with
Indian Lands in other States, EPA is
allowing that landfills on Native Village
Lands be eligible for the six-month
extension whether or not the Village has
submitted an application for permit
program approval.
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Federal Register / Vol. 58, No. 143 I r Wednesday, "jiity 28,' 1993 / Proposed '
40573
5. The MSWLF is not Currently on the
National Priorities List ""'.''
Prior to publishing the proposed rule
for the MSWLF criteria in 1988 (sea 53
FR 33313), the Agency examined the .
characteristics ,of landfills in the, .:'-',:
Superfund data base, Ofthe 27,000 sites
in the Superfund data base in 1986,
almost one fourth were MS'W/LFs. In
addition, as of May 1986,22 percent of
the sites on the Superfund National
Priorities List (NPL) were identified as
MSWLFs, as of May, 1986. Because the ^
Agency does not wish to perpetuate any
problems associated with MSWLFs
currently on the NPL, today's proposed
extension does not apply to landfills
currently on the NPL as published in
appendix B to 40 CFR part 300.
6. Issues Pertaining to Sewage Sludge
As discusse'd in the preamble to the
October 9,1991 final rule, the MSWLF
criteria in 40 CFR part 258 fulfill a
portion of the Clean Water Act (CWA)
section 405(d) mandate that EPA
promulgate regulations governing the
use and disposal of sewage sludge. For
this reason, the part 258 criteria were ~
jointly promulgated under CWA and
RCRA authorities and apply to all
MSWLFs in which sewage sludge is co-
disposed with household wastes. -
Section 3d7(b)(l) of the CWA provides
that publicly owned treatment works
(POTWs) may relieve industrial
dischargers from pretreatment
requirements for a pollutant (i.e., grant
a "removal credit") under certain
conditions, to avoid duplicative .
wastewater treatment by the POTW and
.industrial pretreater.
40 CFR 403.7(a)(3) of EPA's removal
credits regulations provides that a
POTW may be authorized to grant
removal credits only if "the granting of
removal credits will not cause the
POTW to violate the local, state, and
Federal sludge requirements, which
apply to the sludge management method
chosen by the POTW." Where the
management method is co-disposal in a
MSWLF, the applicable regulations are
spelled out in 40 CFR part 258. As
'stated in the preamble to the final rule
for the MSWLF criteria, "EPA has
determined that POTWs should not be
authorized to grant removal credits until
the MSWLF to which the POTO sends.
its sludge is in compliance with all the
part 258 requirements * * *"In
addition to the operating requirements,
these would include location standards,
design, groundTwater monitoring, and
financial assurance requirements.
Despite any extensions to the effective
date that may be promulgated, ERA will
not grant removal credit authority to a
POTW unless it sends its sludge to a
MSWLF that complies with the fall
panoply of the part 258 rule
requirements. Therefore, POTWs will
not be eligible to receive removal credits
if they send their sludge to small
landfills that choose to take advantage
of the six-month extension.
IV. Delay of the Financial Assurance
Requirements . r
A. Reasons for a Delay of the Financial
Assurance Requirements ','_
In the final MSWLE criteria rule, the
Agency promulgated an effective date of
October 9,1993 for most of the
provisions of the rule; however, because
the Agency was not prepared at that
time to promulgate a financial test for
local governments and for corporations, .'
the Agency delayed the effective date of
.the financial responsibility provisions
until April 9,1994. hi doing so, the
Agency intended 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
financial test would allow owners and
operators to demonstrate, that they can .
satisfy the goals of financial assurance
on their own, and that they do not need
to procure a third-party instrument to
assure that the obligations associated
with their landfill will be met. Because
an owner or operator using a financial
test would not have to secure a third-
party instrument, the cost of financial
assurance to the regulated community •
would decrease.
;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 'obtain a guarantor or an _.
alternate instrument, if necessary. The
Agency also recdgnized that local
governments, in particular, require
notice of the requirements in order to
plan their budgets for the upcoming
year. However, the Agency encountered
unanticipated delays in the rulemaking
process during the development of both
the local government and corporate
financial tests. As a result, neither
financial test will be promulgated
within the timeframe anticipated when
the Agency established the April 9,1994
effective date for the financial
responsibility provisions.
The Agency nelieves that it is
important to have these financial tests
in place before the financial •; '
responsibility provisions become
effective.This will allow owners and
operators that satisfy the requirements
: of a financial test to realize a significant
decrease in the cost of compliance, with
the financial responsibility ;;":
requirements, while assuring that the '
costs associated with MSWLFs will he
met. It also will provide.time for the
remaining owners and operators to
budget for and acquire the appropriate '
financial assurance mechanism. .
ET Proposal To Delay the Financial,
Assurance Requirements
Today's proposal includes a delay of
the effective date of the financial
assurance requirements to respond to
the delay in promulgating filial financial
test rules. Today's rulemaking proposes
to establish the effective date of subpart
G, Financial Assurance, to be April 9*-.' -'
1995. The Agency believes that this
additional time will be adequate to
complete the promulgation of theT
financial test rule and provide notice to
affected parties. This one-year extension
would be limited to the financial
responsibility provisions published in .
subpart G of the final MSWLF criteria
published oh October 9,1991. This one-
year extension is not limited to small _
landfills. It is available to owners arid /
, operators of all MSWLFs required to;
comply with the financial responsibility
requirements whether or not it is
located in a state having submitted an
application for permit program
'approval.
V. Modifications to the Exemption for.
Very Small Landfills in § 258.1 (f)
A. Background
The October 9,1991 Final Rule for the
MSWLF Criteria included an exemption
for owners and operators of certain : : '
small MSWLF units (existing, new, or
lateral expansion) from the design
.(Subpart D) and ground-water : :'.-•'•
monitoring and corrective action •':'
(Subpart E) requirements of the Criteria.
See 40 CFR 258.1(f). To qualify for the
exemption, the small landfill had to'
accept less than 20 tons per day, oh an
average annual basis, exhibit no
evidence of ground-water . :
contamination, and serve either:
(i) 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
.(ii) A community that has no
practicable waste management ,
•alternative and the landfill unit is
located in an area that annually receives
less than or equal to 25 inches of ;
.precipitation. . . ;.'.' •-•
In adopting this limited exemption, -..._
the Agency maintained that it had
complied with the statutory standard to,,.
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40574 Federal Register / Vol." 58, No. 14? / Wednesday, July 28, 1993 / Proposed Rules
protect human health and the
environment, taking into account the
practicable capabilities of small landfill
owners and operators. See discussion in
58 FR 50991.
In January 1992, the Sierra Club and
the Natural Resources Defense Council
(NRDC) filed petitions with the U.S.
Court of Appeals, District of Columbia
Circuit, for review of the Subtitle D
criteria. The Sierra Club and NRDC suit
allogod, among other things, that EPA
acted illegally when it exempted these
small landfills from the ground-water
monitoring requirements. On May 7,
1993, the United States Court of
Appeals for the District of Columbia
Circuit issued an opinion pertaining to
the Sierra Club and NRDC challenge to
the small landfill exemption. Sierra
Club v. United States Environmental
Protection Agency, No. 92-1003 (D.C.
Cir. May 7,1993).
The Court held that under section
4010(c), the only factor EPA could
consider in determining whether
facilities must monitor their ground
water was whether such monitoring was
"necessary to detect contamination,"
not whether such monitoring is
"practicable." The Court noted that
while EPA could consider the
practicable capabilities of facilities in
detormining the extent or kind of
ground-water monitoring that a landfill
owner/operator must conduct, EPA
could not justify the complete
exemption from ground-water
monitoring requirements. Thus, the
Court vacated the small landfill
exemption as it pertains to ground-water
monitoring, directing the Agency to
•<* * * revise its rule to require ground-
water monitoring at all landfills."
J3. Changes to the Small Landfill
Exemption Regarding Ground-Water
Monitoring
As a result of the May 7,1993 U.S.
Court of Appeals decision requiring
ground-water monitoring at all landfills
that receive household hazardous waste
or small quantity generator waste, the
Agency, as part of today's proposal, is
issuing a regulatory notice that
announces conforming changes to the
small landfill exemption. Based on the
Court's decision, owners and operators
of MSWLF units that meet the
qualifications outlined in 40 CFR
258.Iff) are no longer exempt from
ground-water monitoring requirements
to 40 CFR 258.50-258.55. It is important
to note that Sierra Club and NRDC
challenged only that portion of the
small landfill exemption relating to
' ground-water monitoring requirements,
and the Court's opinion addressed only
that portion of the exemption.
The Court's opinion only vacated that
part of the exemption pertaining to
ground-water monitoring and does not
explicitly mention corrective action.
However, the'ground-water monitoring
and corrective action requirements are
highly inter-related parts of the
regulatory program. (EPA promulgated
these requirements together in subpart E
of part 258.) Under the current
' regulations, these small facilities are not
exempt from corrective action because
the entire small landfill exemption
under § 258.l(f) is eliminated if an
owner/operator of a MSWLF unit has
knowledge of ground-water ;
contamination resulting from the unit.
Therefore, in this circumstance, the
existing regulations already subject
owners/operators to all of the provisions
in subpart E, including corrective
action. Today's modification to
§ 258.1(f) reflects the current regulatory
requirements by exempting owners/
operators only from the design
requirements under subpart D of part
258. It also is important to note that
state/Tribal programs may be more
stringent arid may not allow such an
exemption.
Today's notice serves to formalize the
U.S. Court of Appeals decision by
removing the exemption for small
landfills from the ground-water
monitoring requirements. In its
decision, however, the U.S. Court of
Appeals does not preclude the
possibility that the Agency could
• undertake a rulemaking process to
establish separate ground-water
monitoring standards for small landfills
that take such factors as size, location,
and climate into account. The Agency
continues to be sympathetic to the
difficulties that these small, arid, and
remote communities face with respect to
meeting the landfill criteria.
Accordingly, the Agency today solicits
comment on alternative ground-water
monitoring programs that could
accommodate the practicable capability
of small landfill owners/operators
through consideration of size, location,
and climate, while ensuring that the
program is adequate to detect
contamination.
C. Proposal to Delay the Effective Date
for Landfills That Qualify for the Small
Landfill Exemption
Owners and operators of very small
landfills that qualified for the small
landfill exemption in 40 CFR 258.1(f)(l)
and made a decision to remain open
based on their exemption from ground-
water monitoring will now need to
reevaluate their waste management
alternatives in light of the U.S. Court of
Appeals decision. Such landfills acted
in good faith under the then existing ' ...
regulatory requirements in making
operational and financial decisions .
during the period that the exemption
from ground-water monitoring was to
have been available. The court's
decision announced on May 7,1993,
changes the situation dramatically for
many of these small landfills by making
them subject for the first time to the
often expensive ground-water •
monitoring requirements. EPA believes
that these facilities should be given the
same amount of time that all other
facilities (not meeting the small landfill
exemption) have had to deal with the
Criteria arid to make alternative waste
management decisions, as appropriate.
The Agency considered two options
for these small landfills: (1) Extend the
effective date only for the ground-water
monitoring requirements and exempt
owners/operators from ground-water
monitoring during the post-closure care
period if they cease receipt of waste
prior to the delayed effective date of
ground-water monitoring, or (2) extend
the effective date for all of the
requirements of the criteria.
The first option considers the fact that
the Court decision only affected ground-
water monitoring and not the other
criteria requirements. Therefore," these
small landfills should be required to ;
comply with all requirements that they
would have had to comply with should
they remain open. Should they decide
to cease receipt of waste prior to the
delayed effective date of groundrwater.
monitoring, they would not have to
expend any additional money to comply
because .they would be exempt from
ground-water monitoring during the
post-closure period.
The second option considers the fact
that had small landfill owners/operators
known on the October 9,1991
promulgation date that they were
subject to ground-water monitoring, it is
probable that some, perhaps many,
could have made arrangements to close
their landfill and seek alternative waste
management options. Now, almost two
years later, these owners/operators find
themselves re-evaluating whether it is
within their practicable capability to
comply not only with certain of the
criteria requirements (namely location
restrictions and operating criteria,
subparts B and C, respectively), but also
ground-water monitoring requirements.
Because the Agency believes that
these small landfills should be given the
opportunity to make a decision
regarding closure and future waste
management options under the same
circumstances that all other landfill
owners/operators had (i.e., not subject
to any portion of the criteria) and
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Federal Register / ¥oL 58, No. 143 / Wednesday^ July 28, 19^ / Proposed Rules
40575
because;E|P£jM>nsidfp5 that. Gojnplianee *
witH all of-the rule's requirements may
be beyond the practicable capability of
MSWLFsthatmeet:the exemption .:,•, ::••••
criteria In the short term, the Agency, as
.part oftoday's proposed rule, proposes
to extend the effective date for all ,, ..
requirements of the MSWLF criteria for -
a period of two years, for all MSWLF ,
units that qualify for the small landfill
exemption under §258,1(0- The Agency
^solicits comment on today's proposal to
/extend the effective date of all of the
criteria, rather than just the ground-
water monitoring requirements, for this
select group of very,- small landfills. -•
Today's proposed two-year extension;'.
• for these very small landfills would;
mean that'the effective-date for the ' '
location restrictions, operating
requirements, and financial assurance
would be October 9f 1995. The effective
date for the ground-water; monitoring
and corrective'action requirements
Would be adjusted to correspond, to >
some degree, with the current phase-in
fof all other MSWLF .units as described
in § 258.50(c). Therefore, EPA proposes
that very small MSWLF units which
meet the exemption criteria in "';"..'
§258.1(0(1) and are located less than
two miles from a drinking water intake
must be incompliance with the ground-
water monitoring requirements by .
October 9,1995 and those very small
MSWLF units located greater than two
miles from a drinking water intake must
be in compliance by October 9,1996. -
(Existing units and lateral expansions
that do not meet the very small landfill
exemption criteria under §258.1(1) and
are located less than one mile from a
drinking water intake must still comply
with the ground-water monitoring
requirements by October 9,1994. See 40
CFR 258.50(c)(l):) "
Today's proposal to extend the
effective date for two years for all
requirements of Part 258 would be
available to any MSWLF unit that meets
the qualifications for the small landfill
exemption in § 258.1(f). The Agency
wishes toistress that-owners/operators of
these MSWLF units, must, in addition
to meeting the tonnage requirements of
less than, 2.0 TPD and-the requirement
that there be no evidence of ground-
water contamination, be able to
. document either of the following-sets of
conditions in order to qualify for the
two-year extension: (l).An interruption
in surface transportation for three
consecutive months that would prevent
access to a regional facility, or (2) no
practicable waste management
alternative exists and the MSWLF unit
is located in an area that receives less
than or equal to 25 inches of
precipitation. '
It should be noted that this extension
for very small landfills that qualify for ~
the exemption under § 258.1(fj is
independent oftoday's proposed six-
month extension for MSWLF units
accepting less than 100 TPp. Landfills
qualifying for the exemption under ;
§258.1(f) need not meet ail the
qualifications proposed for the six- ,
month extension for MSWLF units
accepting less than 100 TPD.
VI. Modification of Closure Provisions
for FacUities Ceasing Receipt of Waste
fey Their Respective Effective Date
The Final Rule for the MSWLF
criteria requires owners and operators of
MSWLF units accepting waste after
October 9,1991, but ceasing receipt of
waste before October9^ 1993, to
complete closure activities at their
MSWLF unit within six months of last
receipt of waste by placing a cover on
the unit that is in compliance with the
cover requirements of 40 CFR 258.60(a).
Owners and operators who fail to
complete cover installation within this
six month period are subject to all of the
.requiremerits of the landfill criteria.
Since publication of the Final Rule,
the Agency has received a number of
inquiries regarding the practicality of
requiring cover to be placed within six
months of last receipt_pf waste. Owners
and operators that wish to accept waste
until; the last possible date before being
subject to the full Subtitle D criteria
(i.e., cease receipt of waste by October *
Q, 1993) would be required to close
during the late fall/winter months of
October through March. Construction of
a landfill cover during winter weather '
in some parts of the country would be
most difficult and would be subject to
the most delays that would make it '
difficult, if not impossible, to complete*
within the six month timeframe "
required.'
To facilitate cover installation for
those landfill owners and operators who
intend to cease receipt of waste by their
respective effective date, the Agency is
today proposing to modify the
requirement that a cover be placed
within six months of last receipt of,
waste by replacing it with, a requirement
that cover installation be completed by
a date certain—-October 9,1994. Again, •
should the owner/operator fail, to install
a cover by this new date, they would be
subject to all of the requirements of part
258. Owners and operators of landfills ,
that are subject to the October 9,1993
effective date would then have one year .
to install a cover, while owners and',.1
operators of landfills that would be
subject to the proposed April 9,1994
effective date would have six months to
install a cover; Both time frames will
provide at least six months of moderate
weather during which to plan and
install a landfill cover. To accommodate
the weather concerns of owners and'
operators of landfills that qualify for the
small landfill exemption (under
§ 258. l(f)) and intend to cease receipt of*
waste before the proposed October 9,
1995 effective date, today's proposed
rule would, require cover installation by
October 9,1996,-
VII. Summary of This Proposed Rule
Table I provides a summary of the
changes to the effective dates of the
MSWLF criteria as outlined in today's
proposed rule.
TABLE !.—SUMMARY .OF PROPOSED CHANGES TO THE EFFECTIVE DATES OF THE MSWLF CRITERIA
General effective date' .
This is the effective date
for location, operation,
.design, and closure/'
post-closure
New, existing, and lat-
eral expansion
MSWLF units accept-
ing greater than 100
TPD
Oc}. 9, 1993
Existing and lateral expansion MSWLF units
accepting less than 100 TPD; are located in
a state thai has submitted an application for
approval by 10/9/93 or are iocated on Tribal
lands; aM are not on the NPL
Apr. 9, 1994 , ,.
MSWLF units that meet the small landfill ex-
emption in 40 CFR § 258.1 (f) „
Oct Q, 1995,
f F
""• * - - i. ''
,
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40576 Federal Register /Vol. 58, No. 143 / Wednesday, July 28. 1993 / Proposed Rutes
• TABLE I.—SUMMARY OF PFKDPOSED CHANGES TO THE EFFECTIVE DATES OF THE MSWLF CRITERIA—Continued
Data by which closure
activities must be
completed If cease re-
ceipt of waste by the
general effective date.
Effecb've date erf ground-
water monitoring and
corrective action.
Effective date of finan-
cial assurance re-
quirements.
New, existing, and lat-
eral expansion
MSWLF units accept-
ing greater than 100
TPD
Oci 9, 1994 <
Prior to receipt of
waste of new units;
Oct 9. 1994
through Oct 9,
1996 for existing
units and lateral ex-
pansions.
Apr. 9, 1995
Existing and lateral expansion MSWLF units
accepting less than 100 TPD; are located in
a state that has submitted an application for
approval by 10/9/93 or are located oh Tribal
lands; and are not on the NPL
Oct. 9, 1994 ....;; ,
Oct 9, 1993 for new units; Oct 9. 1994
through Oct 9, 1996 for existing and lat-
eral expansions.
Apr. 9, 1995
MSWLF units Wat meet the small landfill ex-
emption in 40 CFR § 258.1 (f) -
Oct. 9, 1996.
Oct. 9, 1995 for MSWLF units less, than 2
miles from a drinking water intake; Oct. 9,
1996 for MSWLF units greater than 2
miles from a drinking water intake.
Oct 9 1995
'"If receive waste on or after this date must comply with all of Part 258.
VUf. Request for Comments
Throughout today's proposed rule, the
Agency solicited comments on a
number of specific issues such as: (1)
The types of calculations necessary to
avoid extending the effective date for
historically larger facilities accepting
greater than 100 tons per day and (2)
alternative ground-water monitoring
programs that could accommodate the
practicable capability of very small
landfill owners/operators that are no
longer exempt from ground-water
monitoring due to the Court's decision.
While the Agency is interested in
these specific comments, the Agency is
requesting comments on all aspects of
today's proposal. In particular, EPA is
soliciting comments on the four major
aspects of today's proposal: (1) To delay
the effective date for landfills accepting
100 TPD or less and are located in. either
a state that has submitted an application
for permit program approval by October
9,1993 or are located on Indian lands;
(2) to delay the effective data of all of
the MSWLF criteria for two years for
those landfills meeting the small-landfill
exemption in 258.1(0; (3) to delay the
effective date of the financial assurance
requirements for all MSWLFs until
April 9,1995; and (4) to require that
those landfills ceasing receipt of waste
by their respective effective date
complete final cover installation by
October 9,1994.
In addition to the aforementioned
issues, the Agency is concerned about
the recent flooding in midwestern states
• and the ability of localities to manage
the potentially dramatic increase in
solid waste that may be generated as a
result of clean-up efforts. These
concerns include: (1) Whether certain
MSWLFs that may have qualified for the
six-month extension under today's
proposed rule may no longer qualify
because of the dramatic increase in
waste generated as a result of the floods;
(2) whether a six-month extension is an
adequate time frame for owner/
operators of MSWLFs in areas impacted
by the flooding to meet the Part 258
requirements; and (3) whether MSWLFs
accepting greater than 100 TPD of waste
also may now require an effective date
extension to accommodate the
additional waste generated by the
floods.
Given these concerns, EPA is today
soliciting comments on how best to
accommodate MSWLFs that have been
directly affected by the flood waters and
MSWLFs that may be located outside
the flooded areas, but will receive a
dramatic increase in waste as a result of
flood. Examples of such
accommodations could include an
increase in the TPD criterion for an
extension (i.e., greater than 100 TPD) or
an additional time extension for these
landfills (i.e., greater than six months).
IX. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
Under Executive Order 12291, EPA
must determine whether a new
regulation is a "major" rule and prepare
a Regulatory Impact Analysis (RIA) in
connection with a major rule. A "major"
rule is defined as one that is likely to
result in: (1) An annual effect on the
economy of $100 million or more; (2) a
major increase in costs or prices for
consumers, individual industries,
Federal, state/Tribal, and local
government agencies or geographic
regions; or (3) significant adverse effects
on competition,"employment, /
, investment, productivity, innovation or
on the ability of U.S.-based enterprises
to compete with foreign-based .
enterprises in domestic or export
markets.
This proposal, if finalized, will have
none of the above effects because
amendments to the regulations outlined
in this proposal will, except for the
provision requiring dry/remote small
landfills accepting less than 20 TPD to
perform ground-water monitoring,
reduce requirements imposed by the 40
CFR part 258 criteria. Agency data
indicate that the costs of ground-water
monitoring requirements for small
landfills will not result in this rule
being defined as a "major rule" for the
purposes of determining whether to
conduct an RIA. Moreover, under this
proposal, owners/operators of MSWLFs
that meet the small landfill exemption
of § 258.1(f) are provided regulatory
relief by a delayed effective date.
During the development of the revised
Subtitle D Criteria (October 9,1991),
EPA developed rough cost estimates for
a wide variety of regulatory options.
EPA estimated that the annualized costs
attributable to the revised criteria for
landfills accepting less than 20 tons per
day and located in areas receiving less
than 25 inches of precipitation per year
were approximately $13 million per
year (represented in 1992 dollars).
While these costs represent ground-
water monitoring, design, closure, post-
closure care and corrective action, the
majority of the costs are ground-water.
monitoring and thus should represent a
rough estimate of ground-water
monitoring costs resulting from the
court decision. These national costs.
were developed using the same
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:• Federal" !^gi^
assumptions'fis ;thbse in
Impact Analysis (RlA) developed for the
revised Criteria. For example,,EPA >
assumed reduced "costs fpt ground-water
monitoring for landfills located in states
already requiring ground-water >
monitoring (39 states required ground-
water monitoring in 1991). ThiS'cbst '
estimate was based on an initial .-
universe of 1020 small landfills that '
were assumed to close over time and ,
were replaced by fewer larger, less
expensive regionalized landfills.
The Agency does not believe a
significant number of MSWLFs will
experience corrective action .costs'due to
the Court's decision'for several reasons,;
First, of the small landfills that would
have qualified for the small landfill
exemption, it is difficult to estimate the
number of these landfills that will
continue to operate now that they are
jequired to perform ground-water
monitoring. Many will choose to close
because of these new requirements.
Second, it is highly unlikely that
continued operation of-these small ,
landfills will result in ground-water
contamination that requires corrective
action. Because these landfills generally'
are located in dry areas receiving less ,^
than 25 inches of precipitation per year,
very little leachate will be available for
release to the ground water.
Additionally, many of these small dry •
landfills are situated above aquifers that
are-located several hundred feet below
the ground surface/thereby creating a
significant natural barrier to threat of
contamination. Third, even if these
landfill owners/operators detected '
contamination that would trigger
corrective action, the MSWLF criteria
currently allow the Director of a state
. with an'EPA-approved permit program
to waive corrective action under the
circumstances outlined in 40 CFR
258.57(e).
Thus, giy,enthese factors, it is difficult
to estimate the national cost impact of
. corrective action on these small
landfills. The Agency believes that few,
if any, would contaminate ground water
and be required to perform these clean-
up activities. However, ifa;landfill did
trigger corrective action in a state that
required clean-up, the Agency estimates
that the average total annualized cost
(over 20 years) of corrective action for .^
that landfill would range from
approximately $160,000 to $350,000 per
year. These costs assume-pump and
treat.clean-up technology and a 40-year
post-closure care period-
Again, most of the cost assumptions
in this estimate are based on unit cost
assumptions from the Regulatory Impact
Analysis for the Revised Subtitle D
Criteria found in docket number F-9i-
! The Agency requests: •''
comments on cost assumptions
including specifically the estimated
number of small landfills which would
be affected by today's proposed rule, '".'•
and the estimated costs of ground-water
monitoring and corrective action.
Because the proposed rulemaking
does hot meet the definition of a major'
regulation, the Agency is not conducting
a Regulatory Impact Analysis at this
time. Today's proposal has been
submitted to, the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291. - •'
B. Regulatory Flexibility Act ,
The Regulatory Flexibility Act (5
U,S.Cr601 et;seq.) requires an agency to
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the impact of a
proposed or final rule on small entities
(i.e., small businesses, small
organizations, arid small governmental
jurisdictions). No regulatory flexibility'
analysis is required if the head of an
agency certifies the rule, will not have
significant economic impact on a
substantial number of small entities.
The'estimates of potential total
annualized costs for specific landfills
are discussed above in Section IX-A.
However, not all landfills will .
experience these costs. Several landfills
are located in states that already require
ground-water monitoring, liners and
covers, and/or corrective action and
thus there would be little incremental
cost to these landfills du&to the court"
decision. In addition, EPA believes
there will be a reduction in small
landfills^ver time as these landfills
close and communities regionalize.
Therefore, one cannot use the unit cost
figures cited below to provide a national
estimate of cost impact due to the
Court's decision.
• The proposed amendments to 40 CFR
part 258, except for'the provision
requiring dry/remote small landfills
accepting less than'20 TPD to perform
ground-water monitoring, has the
general effect of reducing the -
requirements of the Part 258 criteria, ,
•thereby imposing no additional
economic impact to small entities. The
provision requiring dry/remote landfills
accepting less than 20 TPD to .perform
ground-water monitoring could have a:
significant economic impact on these
small entities: Agency data indicate that
economic impact will vary with size,
with larger landfills experiencing a
relatively moderate cost increase when
compared to smaller landfills where
economies of scale are not available. ... •-•'•
Agendy data indicate that the total
annualized costs of ground-water
mbriitori|ig:fpr & 'IfiSWLE unit accepting ;
• _. __ .. '" rL_i»t. * "*' 1_ '-^ « fMi »i * 1'-. ..'•... 1 .1 _ "-_. "_ «' . -i* * ' •
$40 to $50 per househbld, While for
ianijfills accepting less than one TPD;
(the'Agenicy estimates that ' "
approximately one-thirdL to one-Half of
all MSWLF units that qualify for the.'
exemption are in this size category),,the
annualized cost per household could ,
range from $270 to $350 per household.
The higher number in these ranges
assumes that the existing landfill life ,
will be 1Q years and will be replaced by
a.new landfill wife a life of 20 years/ '
The larger number assumes an existing
landfill life of 20 years. In making these
estimates, the Agency assumed that 10
TPDifacilities would install five ground-
water monitoring wells, while the one
TPD facilities would install three wells.
These cost figures are a rough-estimate
using national unit costs; labor and
equipment costs wiU vary per site and
, may be more expensive in rural, remote
areas of the country. .
The Agency has not estimated the
number of small landfills that will be
affected. According to the 1986 landfill
survey, many of the small landfills had
plans to close by 1995. Others have been
closed as communities participate in
regionalized waste management.
Therefore, whilein''1986 there were "
over 1,000 landfills that would be
affected by today's rule, it is unclear '•"•' -:.
how many are in this universe today.
While the Agency believes that these "
are substantial impacts, the court •
decision leaves the Agency no choice
but to pro'mulgate these changes.
However, as mentioned earlier, the
.Agency is soliciting comment on ;_,r
' alternative ground-water monitoring '/;,' :
; requirements that could accommodate
the .practicable Capability of small
landfills through consideration of size,
location, and climate, while ensuring
that the program is adequate to detect
contamination.;
C, Paperwork- Reduction Act ,
The Agency has determined that there
are no new reporting, notification, or
recordkeeping provisions assdciated
withto'day's'prbpbsed nile; "
.List df Subjects in 40 CFR Part 258 ,
Corrective aetjpn, Ground->yater . , .
monitoring, Hpusehpld hazardous :. ;
waste,.Liner requirements, Liquids in
landfills, State/Tribal permit program -.
approval arid adequacy. Security ,,
measureSj Small quantity generators, ,
Waste treatment a,hd: disposal,. Water ,
pollution eoritro}.? ,< ; '' • "•'•--:•, : > •*••', •:'
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40578 Federal Register / Vol. 58. No. 143 / Wednesday, July 28, 1993 / Proposed Rules
Dated: July 22,1993.
Carol M. Browner)
Administrator.
For reasons set out in the preamble,
title 40, chapter I, of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 258—CRITERIA FOR MUNICIPAL
SOLID WASTE LANDFILLS (EFF. 10-9-
93)
1. The authority citation for part 258
continues to read as follows:
Authority: 42 U.S.C. 6907(£i)(3), 6944(a)
and 6949(c); 33 U.S.C. 1345(d) and (e).
2. Section 258.1 is amended by
revising paragraphs (d), (e), (f)(l)
introductory text, (0(3), and (j) to read
as follows:
f 258.1 Purpose, scope, and applicability. '
*****
(d)(l) MSWLF units that meet the
conditions of §258.1(e)(2) and receive
waste after October 9,1991 but stop
receiving waste before April 9,1994, are
exempt from all the requirements of this
part 258, except the final cover
requirement specified in §258.60(a).
The final cover must be installed by
October 9,1994. Owners or operators of
MSWLF units described in this
paragraph that fail to complete cover
installation by October 9,1994 will be
subject to all the requirements of this -
part 258, unless otherwise specified.
(2) MSWLF units that meet the
conditions of § 258.1(f)(l) and receive
•waste after October 9,1991 but stop
receiving waste before October 9,1995,
are exempt from all the requirements of
this part 258, except the final cover
requirement specified in § 258.60(a).
The final cover must be installed by
October 9,1996. Owners or operators of
MSWLF units described in this
paragraph that fail to complete cover
installation by October 9,1996 will be
subject to all the requirements of this
part 258, unless otherwise specified.
(3) MSWLF units that do not meet th&
conditions of § 258.1(e)(2) or (!) and
receive waste after October 9,1991 but
stop receiving waste before October 9,
1993, are exempt from all the
requirements of this part 258, except the
final cover requirement specified in
§ 258.60(a). The final cover must be
installed by October 9,1994. Owners or
operators of MSWLF units described in
this paragraph that fail to complete
cover installation by October 9,1994
will be subject to all the requirements of
this port 258, unless otherwise
specified.
(e)(l) All MSWLF units that receive
waste on or after October 9,1993, except
those units that qualify for a delay
under paragraph (e)(2) or (3) of this
section, must comply with all
requirements of this part 258 unless
otherwise specified.
(2) The effective date is April 9,1994
for an existing MSWLF unit or a lateral
expansion of an existing MSWLF unit
that meets the following conditions:
(i) The MSWLF unit disposed of 100
tons per day or less of solid waste
between October 9,1991 and October 9,
1992;
(ii) The unit does not dispose of more
than an average of 100 TPD of solid
waste each month between October 9,
1993 and April 9,1994;
(iii) The MSWLF unit is located in a
state that has submitted an application
for permit program approval to EPA by
October 9,1993 or is located on Indian
Lands or Indian Country; and
(iv) The MSWLF unit is not on the
National Priorities List (NPL) as found
in appendix B to 40 CFR part 300.
(3) The effective date is October 9,
1995 far a MSWLF unit that meets the
conditions for the exemption in
paragraph (f)(l) of this section.
(0(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 subpart D 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 (fj(l)(i) or
(f)(l)(ii) of this section, the owner or
operator must notify the state Director of
such contamination and, thereafter,
comply with subpart D of this part.
*****
(j) Subpart G of this part is effective
April 9,1995, except for MSWLF units
meeting the requirements of paragraph
(f)(l) of this section, in which case the
effective date of subpart G is October 9,
1995.
*****
3. Section 258.2 is amended by
adding definitions for "Indian lands or
Indian Country" and "Indian tribe or
Tribe" in alphabetical order to read as
follows:
§258.2 Definitions.
* * * * *
Indian lands or Indian 'country means:
(1) All land within the limits of any
Indian reservation under the
jurisdiction of the United States
Government, notwithstanding the
issuance of any patent, and including .
rights-of-way running throughout the
reservation;
(2) All dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the
limits of the State; and
(3) All Indian allotments, the Indian
titles to which have not been
extinguished, including rights of way
running through the same.
Indian Tribe or Tribe means any
Indian tribe, band, nation, or
community recognized by the Secretary
of the Interior and exercising substantial
governmental duties and powers on
Indian lands. . - . .
* * * * *
4. Section 258.50 is amended by
revising paragraph (c) introductory text,
by redesignating paragraphs (e), (f) and
(g) as paragraphs (f), (g), and (h); and by
adding paragraph (e) to read as follows:
§258.50 Applicability.
* * * * *
(c) Owners and operators of MSWLF
units, except those meeting the
conditions of § 258.1(0, must comply
with the ground-water monitoring
requirements of this part according to
the following schedule unless an
alternative schedule is specified under
paragraph (d) of this section:
* * * * *~ •
(e) Owners and operators of all. .
MSWLF units that meet the conditions
of § 258.1(f)(l) must comply with the
ground-water monitoring requirements
of this part according to the following
schedule:
(1) All MSWLF units less than two
miles from a drinking water intake
(surface or subsurface) must be in
compliance with the ground-water
monitoring requirements specified in
§§ 258.51 through 258.55 by October 9,
1995;
(2) All MSWLF units greater than two
miles from a drinking water intake
(surface or subsurface) must be in
compliance with the ground-water
monitoring requirements specified in
§§ 258.51 through 258.55 by October 9,
1996.
* * * * *
5. Section 258.70 is amended by
revising paragraph (b) to read as follows:
§ 258.70 Applicability and effective data.
* * * - * *
(b) The requirements of this section
are effective April 9,1995 except for
MSWLF units meeting the conditions of
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Federal Register '/'Vol;
^KQd), in which case the effective
58, No. 143; /: Wednesday, ; July . 28> ;ig93- '--}• -
.Rides .-
of paragraph {c)(l)l and by revising foe
o pa
second sentence of paragraph (d)(l) to
(5) The initial payment into the tost
fund must be made before the initial
receipt of waste or before the effective
date of this section (April 9,1995; or
Ociober'9,1995 for MSWtF units
meeting the conditions of § 258.1(0(1)3,
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.* * *
* .*• * , * .*..•
7. Section 258.74 is amended by
revising the third sentence of paragraph
(b)(l); by revising the second sentence
(lj * * * The bond must be effective
before the initial receipt of waste or
before the effective data of this section
(April 9,1995, or October 9,1995 for
MSWLF units meeting the conditions of
§ 258,1(0(1)), whichever is later, in the
case of closure and post-closure care, or
no later than 120 days after the
corrective actiogT*medy has beea
selected in accordance with the
requirements Bf § 25,8.58.*
* * *~ * * '
(c) * * *
(1) * * * The letter of credit must be
effective before the initial receipt of
waste or before the effective date of this
section (April 9,1995, or October 9,
1995 for MSWLF units meeting the
conditions "of § 258.1(0(1)), whichever is
later, in the case of closure and post-
closure care, or no later than 120 days
after foe.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 this
section (April 9,1995, or October 9,
1995 for MSWLF units meeting the
conditions of § 258.1(0(1)), whichever is
later, in ttie 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.* * *
*****
[FRDoc. 93-18008 Filed 7-27-93; 8:45 ami
B5LUNS COUE SSSO-SW8
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