Determination to Approve Alternative Final Cover Request for the Lake County, MT Landfill; Opportunity for Public Comment, 6597-6600 [2010-2794]
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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 258
[EPA–R08–RCRA–2009–0621; FRL–9110–4]
Determination to Approve Alternative
Final Cover Request for the Lake
County, MT Landfill; Opportunity for
Public Comment
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed rulemaking.
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AGENCY:
SUMMARY: The Environmental Protection
Agency, Region VIII, is making a
determination to approve an alternative
final cover for the Lake County landfill,
a municipal solid waste landfill
(MSWLF) owned and operated by Lake
County, Montana on the Confederated
Salish and Kootenai Tribes’ Flathead
Reservation in Montana. EPA is seeking
public comment on EPA’s
determination to approve Lake County’s
alternative final cover proposal.
DATES: Comments must be received on
or before March 12, 2010. If sufficient
public interest is expressed, EPA will
schedule and hold a public meeting. If
a public meeting is scheduled, the date,
time and location will be announced in
the Missoulian and the Char-Koosta
News. (If you are interested in attending
a public meeting, contact Stephanie
Wallace at (406) 457–5018).
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
RCRA–2009–0621 by one of the
following methods:
• Online: https://www.regulations.gov:
Follow the online instructions for
submitting comments.
• E-mail: wallace.stephanie@epa.gov.
• Fax: (406) 457–5055.
• Mail: Stephanie Wallace,
Environmental Protection Agency,
Region VIII, Montana Office, 10 West
15th Street, Suite 3200, Helena, MT
59626.
• Hand delivery: Environmental
Protection Agency, Region VIII,
Montana Office, 10 West 15th Street,
Suite 3200, Helena, MT 59626. Such
deliveries are only accepted during
normal hours of operation, which are
Monday through Friday from 8 a.m.
until 4:30 p.m.
Instructions: Direct your comments to
Docket ID No. EP–R08–RCRA–2009–
0621. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
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claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information whose
disclosure is restricted by statute. Do
not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or by e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA rather than going through https://
www.regulations.gov, your e-mail
address will be captured automatically
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any detects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information
may not be publicly available, e.g., CBI
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency
Region VIII, Montana Office, 10 W. 15th
Street, Suite 3200, Helena, Montana. A
complete public portion of the
administrative record for this
rulemaking is also available for review
at this location and at the Polson City
Library. The Environmental Protection
Agency Region VIII, Montana Office is
open from 8 a.m. to 4:30 p.m. Monday
through Friday, excluding legal
holidays, and is located in a secure
building. To review docket materials, it
is recommended that the public make
an appointment by calling the EPA
Montana Office at (406) 457–5000
during normal business hours. The
Polson City Library, located at 2 First
Avenue, Polson, MT (telephone (406)
883–8225) is open from 11 a.m. to 6
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p.m., Monday through Friday and 11
a.m. to 4 p.m. Saturday.
FOR FURTHER INFORMATION CONTACT:
Stephanie Wallace, EPA Region VIII
Montana Office, 10 W. 15th Street, Suite
3200, Helena, MT 59626; telephone
number: (406) 457–5018; fax number
(406) 457–5055; e-mail address:
wallace.stephanie@epa.gov.
SUPPLEMENTARY INFORMATION:
Submitting Comments to EPA
1. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The Agency
may ask you to respond to specific
questions or organize comments by
referencing a Code of Federal
Regulations (CFR) part or section
number.
• Explain why you agree or disagree,
suggest alternatives, and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
2. Submitting Confidential Business
Information (CBI). Do not submit this
information to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so-marked
will not be disclosed, except in
accordance with procedures set forth in
40 CFR part 2.
3. Docket Copying Costs: Copying
arrangements will be made through the
EPA Montana Office and billed directly
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to the recipient. Copying costs may be
waived, depending on the total number
of pages copied.
If sufficient public interest is
expressed, EPA will hold a public
meeting. The location, date and time of
a meeting will be announced in the
Missoulian and the Char-Koosta News.
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I. General Information
A. Background
Under sections 1008, 2002, 4004, and
4010 of the Resource Conservation and
Recovery Act of 1976 (RCRA), as
amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA),
EPA established revised minimum
Federal operating criteria for MSWLFs,
including landfill location restrictions,
operating standards, design standards
and requirements for ground water
monitoring, corrective action, closure
and post-closure care, and financial
assurance. Under RCRA section 4005(c),
States are required to develop permit
programs for facilities that may receive
household hazardous waste or waste
from conditionally exempt small
quantity generators, and EPA
determines whether the program is
adequate to ensure that facilities will
comply with the revised criteria.
The MSWLF criteria are at 40 Code of
Federal Regulations (CFR) part 258.
These regulations are self-implementing
and apply directly to owners and
operators of MSWLFs. For many of
these criteria, 40 CFR part 258 includes
a flexible performance standard as an
alternative to the self-implementing
regulation. The flexible standard is not
self-implementing, and use of the
alternative standard requires approval
by the Director of a State with an EPAapproved program.
Because EPA’s approval of a State
program does not extend to Indian
country, owners and operators of
MSWLF units located in Indian country
cannot take advantage of the flexibilities
available to those facilities subject to an
approved State program. However, the
EPA has the authority under sections
2002, 4004, and 4010 of RCRA to
promulgate site-specific rules that may
provide for use of alternative standards
in Indian country. See Yankton Sioux
Tribe v. EPA, 950 F. Supp. 1471 (D.S.D.
1996); Backcountry Against Dumps v.
EPA, 100 F.3d. 147 (DC Cir. 1996). EPA
has developed draft guidance on
preparing a site-specific request to
provide flexibility to owners or
operators of MSWLFs in Indian country
(Site-Specific Flexibility Requests for
Municipal Solid Waste Landfills in
Indian country Draft Guidance,
EPA530–R–97–016, August 1997).
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The regulation at 40 CFR 258.60(a)
establishes closure criteria for MSWLF
units that are designed to minimize
infiltration and erosion. The regulation
requires final cover systems to be
designed and constructed to:
(1) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural sub-soils present,
or a permeability no greater than
1×10 ¥5 cm/sec, whichever is less, and
(2) Minimize infiltration through the
closed MSWLF by the use of an
infiltration layer that contains a
minimum of 18 inches of earthen
material, and
(3) Minimize erosion of the final cover
by the use of an erosion layer that
contains a minimum of 6 inches of
earthen material that is capable of
sustaining native plant growth.
The regulation at 40 CFR 258.60(b)
allows for variances from these
specified MSWLF closure criteria.
Specifically, the rule allows for the
Director of an approved State to approve
an alternative final cover design that
includes:
(1) An infiltration layer that achieves
an equivalent reduction in infiltration as
the infiltration layer specified in
paragraphs (a)(1) and (a)(2) of 40 CFR
258.60, and
(2) An erosion layer that provides
equivalent protection from wind and
water erosion as the erosion layer
specified in paragraph (a)(3) of 40 CFR
258.60.
B. Lake County’s Site-Specific Flexibility
Request
The Lake County landfill is a
municipal solid waste landfill owned
and operated by Lake County on the
Confederated Salish and Kootenai
Tribes’ Flathead Reservation in
Montana. The landfill site is
approximately 50 acres in size and
serves approximately 28,000 people in
Lake County. Most of the county,
including the landfill, lies within the
boundaries of the Flathead Reservation.
The landfill itself consists of a 30-acre
unlined waste footprint that was used as
the county’s municipal landfill
beginning in the 1960s. In the early
2000s the County built a transfer station
and converted the landfill to accept
inert and construction and demolition
waste only. Of the existing 30-acre
waste footprint, 14.6 acres were
previously closed and covered.
On July 11, 2007, Lake County
submitted a site-specific flexibility
application request to EPA and the
Confederated Salish and Kootenai
Tribes for the Lake County landfill. The
request seeks EPA approval for the use
of an alternative final cover that varies
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from the final closure requirements of
40 CFR 258.60. This request would
apply to the 15.4 acres of the landfill
that have not been previously closed.
Between July 11, 2007, and January
22, 2009, Lake County made revisions to
its application request in response to
concerns raised by EPA and the
Confederated Salish and Kootenai
Tribes. EPA is basing its determination
and this proposed rule on the
application, dated July 11, 2007 and
March 17, 2008, and the January 22,
2009 amendments to that application.
The specific request for EPA approval of
Lake County’s application is discussed
below. As set forth in more detail below,
EPA is proposing to approve the request
and allow Lake County to install an
alternative final cover that meets the
criteria at 40 CFR 258.60(b).
Lake County is seeking EPA approval
to use an alternative final cover system
for 15.4 acres of its existing waste
footprint. Lake County proposes to
install a 5.5-feet-thick multi-layer cover
system comprised of the following from
bottom to top: An 18-inch intermediate
and gas vent layer, a 24-inch native sand
layer, an 18-inch imported silt
evapotranspiration layer, and a 6-inch
topsoil layer. Lake County has
demonstrated that the infiltration layer
achieves an equivalent reduction in
infiltration as the infiltration layer
specified in paragraphs (a)(1) and (a)(2)
of 40 CFR 258.60, and the erosion layer
provides equivalent protection from
wind and water erosion as the erosion
layer specified in paragraph (a)(3) of 40
CFR 258.60. On January 22, 2009, Lake
County submitted a ‘‘Construction
Quality Assurance & Control Plan’’ for
the closure project that specifies that
testing will be performed on each
component as it is installed. Testing
frequencies and standards during
construction are described in detail in
the ‘‘Construction Quality Assurance &
Control Plan.’’
II. EPA’s Action
A. Determination To Approve Lake
County’s Site-Specific Flexibility
Request
After completing a review of Lake
County’s final site-specific flexibility
application request, dated July 11, 2007,
and the amendments to that application
dated March 17, 2008, and January 22,
2009, EPA is proposing to approve Lake
County’s site-specific flexibility request
to install an alternative final cover.
EPA is basing its determination on a
number of factors, including
unsaturated soil modeling, site-specific
climatic and soils data, and the results
of a pilot test of the viability of an
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evapotranspiration cover conducted at
the site by the County’s consultants, the
Desert Research Institute, and EPA. The
pilot test consisted of the construction
of two landfill cover test plots at the
Lake County landfill facility. One plot
used a landfill cover design with a
flexible membrane liner, and the other
plot used an evapotranspiration cover
design. The results of the pilot test
indicated that the evapotranspiration
cover will perform better than the
standard prescriptive cover in 40 CFR
258.60(a) in preventing the movement of
leachate through the system.
EPA considered certain issues
pertaining to the proposed alternative
final cover, including the need for
stringent quality assurance/quality
control during construction, such as
oversight throughout construction to
ensure soils for each layer of the cover
have the necessary physical properties
and are installed so as to perform as
designed.
In accordance with its application and
the ‘‘Construction Quality Assurance &
Control Plan,’’ Lake County has pledged
to provide the oversight required. EPA
is also requiring as part of its approval
of the final cover design, that Lake
County:
• Submit an Operations and
Maintenance Plan at 50% final design
that includes an inspection schedule (at
least quarterly) and remediation plan to
address any potential rodent damage,
• Achieve re-vegetation rates of
greater than 50% by the end of the first
season and a complete stand of native
grasses by the end of the third season,
and
• Place documentation demonstrating
compliance with the ‘‘Construction
Quality Assurance and Control Plan,’’ 40
CFR 258.60(a)(1), (2), and (3), and the
above requirements in the landfill
operating record.
III. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore is not a regulatory action
subject to review by the Office of
Management and Budget (OMB).
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.)
because it applies to a particular facility
only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
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to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). Because this
rule will affect only a particular facility,
it will not significantly or uniquely
affect small governments, as specified in
section 203 of UMRA.
Because this rule will affect only a
particular facility, this proposed rule
does not have federalism implications.
It will not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132,
‘‘Federalism,’’ (64 FR 43255, August 10,
1999). Thus, Executive Order 13132
does not apply to this rule.
This rule is also not subject to
Executive Order 13045, ‘‘Protection of
Children From Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
basis for this belief is EPA’s
conservative analysis of the potential
risks posed by Lake County’s proposal
and the controls and standards set forth
in the application.
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001), because it is
not a significant regulatory action under
Executive Order 12866.
As required by section 3 of Executive
Order 12988, ‘‘Civil Justice Reform,’’ (61
FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary
steps to eliminate drafting errors and
ambiguity, minimize potential litigation,
and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled
‘‘Consultation and Coordination With
Indian Tribal Governments,’’ (65 FR
67249, November 9, 2000), calls for EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ EPA has concluded that
this action may have Tribal implications
because it is directly applicable to a
facility operating on the Confederated
Salish and Kootenai Tribes’ Flathead
Reservation. However, this
determination will neither impose
substantial direct compliance costs on
Tribal governments, nor preempt Tribal
law. This determination to approve Lake
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County’s application will affect only the
operation of the County’s landfill.
EPA consulted with the Confederated
Salish and Kootenai Tribes early in the
process of making this determination to
approve the County’s alternative final
cover request so that the Tribes had the
opportunity to provide meaningful and
timely input. Between July 11, 2007 and
January 22, 2009, technical issues were
raised and addressed by both the Tribes
and EPA concerning Lake County’s
proposal. EPA’s consultation with the
Tribes culminated in a letter of July 15,
2009 from the Tribes, in which they
stated that they have no further issues
with the Lake County proposal. EPA
specifically solicits any additional
comment on this determination from
Tribal officials of the Confederated
Salish and Kootenai Tribes.
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) directs
EPA to use voluntary consensus
standards in its regulatory activities
unless doing so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards, (e.g.,
materials specification, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standard bodies.
The NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
The technical standards included in
the application were proposed by Lake
County. Given EPA’s obligations under
Executive Order 13175 (see above), the
Agency has, to the extent appropriate,
applied the standards established by the
County and accepted by the Tribes. In
addition, the Agency evaluated the
proposal’s design against the
engineering design and construction
criteria contained in the EPA draft
guidance document, ‘‘Water Balance
Covers for Waste Containment:
Principles and Practice (2009).’’
Authority: Sections 1008, 2002, 4004, and
4010 of the Solid Waste Disposal Act, as
amended, 42 U.S.C. 6907, 6912, 6944, and
6949a. Temporary Delegation of Authority to
Promulgate Site-Specific Rules To Respond
to Requests for Flexibility From Owners/
Operators of Municipal Solid Waste Landfill
Facilities in Indian Country, October 14,
2009, Incorporation by Reference.
List of Subjects in 40 CFR Part 258
Environmental protection, Municipal
landfills, Reporting and recordkeeping
requirements, Waste treatment and
disposal.
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Dated: January 15, 2010.
Carol Rushin,
Acting Regional Administrator, Region VIII.
[FR Doc. 2010–2794 Filed 2–9–10; 8:45 am]
For the reasons stated in the
preamble, 40 CFR part 258 is proposed
to be amended as follows:
PART 258—CRITERIA FOR MUNICIPAL
SOLID WASTE LANDFILLS
1. The authority citation for part 258
continues to read as follows:
Authority: 33 U.S.C. 1345(d) and (e); 42
U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c)
and 6949a(c), 6981(a).
Subpart F—[Amended]
2. Add § 258.62 to subpart F to read
as follows:
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§ 258.62 Approval of site-specific flexibility
requests in Indian Country.
(a) Lake County Municipal Landfill
final cover requirements. Paragraph (a)
of this section applies to the Lake
County Landfill, a municipal solid
waste landfill owned and operated by
Lake County on the Confederated Salish
and Kootenai Tribes’ Flathead
Reservation in Montana. The alternative
final cover request submitted by Lake
County and dated July 11, 2007, and
amended March 17, 2008, and January
22, 2009 is hereby incorporated into this
provision by this reference. The facility
owner and/or operator may close the
facility in accordance with this
application, including the following
activities more generally described as
follows:
(1) The owner and operator may
install an evapotranspiration system as
an alternative final cover for the 15.4
acre active area.
(2) The final cover system shall
consist of a 5.5 feet-thick multi-layer
cover system comprised, from bottom to
top, of an 18-inch intermediate and gas
vent layer, a 24-inch native sand layer,
an 18-inch imported silt layer and a 6inch topsoil layer, as well as seeding
and erosion control.
(3) The final cover system shall be
constructed to achieve an equivalent
reduction in infiltration as the
infiltration layer specified in
§ 258.60(a)(1) and (a)(2), and provide an
equivalent protection from wind and
water erosion as the erosion layer
specified in paragraph (a)(3) of this
section.
(4) In addition to meeting the
specifications of the Lake County
landfill ‘‘Alternative Cover’’ application
of May 2007, and the ‘‘Construction
Quality Assurance & Control Plan for
the Lake County Class II Landfill Unit
Landfill Closure Project’’ of January
2009, the owner and operator shall:
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(i) At 50% final design, submit to EPA
for approval an Operations and
Maintenance Plan that includes an
inspection schedule (at least quarterly)
and remediation plan to address any
potential rodent damage to the final
cover; and
(ii) Achieve re-vegetation rates greater
than 50% by the end of the first season
and a complete stand of native grasses
by the end of the third season.
(5) The owner and operator shall
place documentation demonstrating
compliance with the provisions of this
Section in the operating record.
(6) All other applicable provisions of
40 CFR part 258 remain in effect.
(b) [Reserved]
the community’s map repository. The
respective addresses are listed in the
table below.
You may submit comments, identified
by Docket No. FEMA–B–1087, to Kevin
C. Long, Acting Chief, Engineering
Management Branch, Mitigation
Directorate, Federal Emergency
Management Agency, 500 C Street, SW.,
Washington, DC 20472, (202) 646–2820,
or (e-mail) kevin.long@dhs.gov.
FOR FURTHER INFORMATION CONTACT:
Kevin C. Long, Acting Chief,
Engineering Management Branch,
Mitigation Directorate, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–2820, or (e-mail)
kevin.long@dhs.gov.
BILLING CODE 6560–50–P
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 67
[Docket ID FEMA–2010–0003; Internal
Agency Docket No. FEMA–B–1087]
Proposed Flood Elevation
Determinations
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Proposed rule.
SUMMARY: Comments are requested on
the proposed Base (1% annual-chance)
Flood Elevations (BFEs) and proposed
BFE modifications for the communities
listed in the table below. The purpose
of this notice is to seek general
information and comment regarding the
proposed regulatory flood elevations for
the reach described by the downstream
and upstream locations in the table
below. The BFEs and modified BFEs are
a part of the floodplain management
measures that the community is
required either to adopt or show
evidence of having in effect in order to
qualify or remain qualified for
participation in the National Flood
Insurance Program (NFIP). In addition,
these elevations, once finalized, will be
used by insurance agents, and others to
calculate appropriate flood insurance
premium rates for new buildings and
the contents in those buildings.
DATES: Comments are to be submitted
on or before May 11, 2010.
ADDRESSES: The corresponding
preliminary Flood Insurance Rate Map
(FIRM) for the proposed BFEs for each
community is available for inspection at
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The
Federal Emergency Management Agency
(FEMA) proposes to make
determinations of BFEs and modified
BFEs for each community listed below,
in accordance with section 110 of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified
BFEs, together with the floodplain
management criteria required by 44 CFR
60.3, are the minimum that are required.
They should not be construed to mean
that the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own, or
pursuant to policies established by other
Federal, State, or regional entities.
These proposed elevations are used to
meet the floodplain management
requirements of the NFIP and are also
used to calculate the appropriate flood
insurance premium rates for new
buildings built after these elevations are
made final, and for the contents in these
buildings.
Comments on any aspect of the Flood
Insurance Study and FIRM, other than
the proposed BFEs, will be considered.
A letter acknowledging receipt of any
comments will not be sent.
National Environmental Policy Act.
This proposed rule is categorically
excluded from the requirements of 44
CFR part 10, Environmental
Consideration. An environmental
impact assessment has not been
prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Executive Order 12866, Regulatory
Planning and Review. This proposed
rule is not a significant regulatory action
E:\FR\FM\10FEP1.SGM
10FEP1
Agencies
[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6597-6600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2794]
[[Page 6597]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[EPA-R08-RCRA-2009-0621; FRL-9110-4]
Determination to Approve Alternative Final Cover Request for the
Lake County, MT Landfill; Opportunity for Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency, Region VIII, is making a
determination to approve an alternative final cover for the Lake County
landfill, a municipal solid waste landfill (MSWLF) owned and operated
by Lake County, Montana on the Confederated Salish and Kootenai Tribes'
Flathead Reservation in Montana. EPA is seeking public comment on EPA's
determination to approve Lake County's alternative final cover
proposal.
DATES: Comments must be received on or before March 12, 2010. If
sufficient public interest is expressed, EPA will schedule and hold a
public meeting. If a public meeting is scheduled, the date, time and
location will be announced in the Missoulian and the Char-Koosta News.
(If you are interested in attending a public meeting, contact Stephanie
Wallace at (406) 457-5018).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
RCRA-2009-0621 by one of the following methods:
Online: https://www.regulations.gov: Follow the online
instructions for submitting comments.
E-mail: wallace.stephanie@epa.gov.
Fax: (406) 457-5055.
Mail: Stephanie Wallace, Environmental Protection Agency,
Region VIII, Montana Office, 10 West 15th Street, Suite 3200, Helena,
MT 59626.
Hand delivery: Environmental Protection Agency, Region
VIII, Montana Office, 10 West 15th Street, Suite 3200, Helena, MT
59626. Such deliveries are only accepted during normal hours of
operation, which are Monday through Friday from 8 a.m. until 4:30 p.m.
Instructions: Direct your comments to Docket ID No. EP-R08-RCRA-
2009-0621. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or by e-mail. The https://www.regulations.gov Web
site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an e-mail comment directly to EPA rather
than going through https://www.regulations.gov, your e-mail address will
be captured automatically and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any detects or viruses.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in https://www.regulations.gov or in hard copy at the
Environmental Protection Agency Region VIII, Montana Office, 10 W. 15th
Street, Suite 3200, Helena, Montana. A complete public portion of the
administrative record for this rulemaking is also available for review
at this location and at the Polson City Library. The Environmental
Protection Agency Region VIII, Montana Office is open from 8 a.m. to
4:30 p.m. Monday through Friday, excluding legal holidays, and is
located in a secure building. To review docket materials, it is
recommended that the public make an appointment by calling the EPA
Montana Office at (406) 457-5000 during normal business hours. The
Polson City Library, located at 2 First Avenue, Polson, MT (telephone
(406) 883-8225) is open from 11 a.m. to 6 p.m., Monday through Friday
and 11 a.m. to 4 p.m. Saturday.
FOR FURTHER INFORMATION CONTACT: Stephanie Wallace, EPA Region VIII
Montana Office, 10 W. 15th Street, Suite 3200, Helena, MT 59626;
telephone number: (406) 457-5018; fax number (406) 457-5055; e-mail
address: wallace.stephanie@epa.gov.
SUPPLEMENTARY INFORMATION:
Submitting Comments to EPA
1. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
2. Submitting Confidential Business Information (CBI). Do not
submit this information to EPA through https://www.regulations.gov or e-
mail. Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA,
mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so-marked will not be
disclosed, except in accordance with procedures set forth in 40 CFR
part 2.
3. Docket Copying Costs: Copying arrangements will be made through
the EPA Montana Office and billed directly
[[Page 6598]]
to the recipient. Copying costs may be waived, depending on the total
number of pages copied.
If sufficient public interest is expressed, EPA will hold a public
meeting. The location, date and time of a meeting will be announced in
the Missoulian and the Char-Koosta News.
I. General Information
A. Background
Under sections 1008, 2002, 4004, and 4010 of the Resource
Conservation and Recovery Act of 1976 (RCRA), as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA), EPA established
revised minimum Federal operating criteria for MSWLFs, including
landfill location restrictions, operating standards, design standards
and requirements for ground water monitoring, corrective action,
closure and post-closure care, and financial assurance. Under RCRA
section 4005(c), States are required to develop permit programs for
facilities that may receive household hazardous waste or waste from
conditionally exempt small quantity generators, and EPA determines
whether the program is adequate to ensure that facilities will comply
with the revised criteria.
The MSWLF criteria are at 40 Code of Federal Regulations (CFR) part
258. These regulations are self-implementing and apply directly to
owners and operators of MSWLFs. For many of these criteria, 40 CFR part
258 includes a flexible performance standard as an alternative to the
self-implementing regulation. The flexible standard is not self-
implementing, and use of the alternative standard requires approval by
the Director of a State with an EPA-approved program.
Because EPA's approval of a State program does not extend to Indian
country, owners and operators of MSWLF units located in Indian country
cannot take advantage of the flexibilities available to those
facilities subject to an approved State program. However, the EPA has
the authority under sections 2002, 4004, and 4010 of RCRA to promulgate
site-specific rules that may provide for use of alternative standards
in Indian country. See Yankton Sioux Tribe v. EPA, 950 F. Supp. 1471
(D.S.D. 1996); Backcountry Against Dumps v. EPA, 100 F.3d. 147 (DC Cir.
1996). EPA has developed draft guidance on preparing a site-specific
request to provide flexibility to owners or operators of MSWLFs in
Indian country (Site-Specific Flexibility Requests for Municipal Solid
Waste Landfills in Indian country Draft Guidance, EPA530-R-97-016,
August 1997).
The regulation at 40 CFR 258.60(a) establishes closure criteria for
MSWLF units that are designed to minimize infiltration and erosion. The
regulation requires final cover systems to be designed and constructed
to:
(1) Have a permeability less than or equal to the permeability of
any bottom liner system or natural sub-soils present, or a permeability
no greater than 1x10 -5 cm/sec, whichever is less, and
(2) Minimize infiltration through the closed MSWLF by the use of an
infiltration layer that contains a minimum of 18 inches of earthen
material, and
(3) Minimize erosion of the final cover by the use of an erosion
layer that contains a minimum of 6 inches of earthen material that is
capable of sustaining native plant growth.
The regulation at 40 CFR 258.60(b) allows for variances from these
specified MSWLF closure criteria. Specifically, the rule allows for the
Director of an approved State to approve an alternative final cover
design that includes:
(1) An infiltration layer that achieves an equivalent reduction in
infiltration as the infiltration layer specified in paragraphs (a)(1)
and (a)(2) of 40 CFR 258.60, and
(2) An erosion layer that provides equivalent protection from wind
and water erosion as the erosion layer specified in paragraph (a)(3) of
40 CFR 258.60.
B. Lake County's Site-Specific Flexibility Request
The Lake County landfill is a municipal solid waste landfill owned
and operated by Lake County on the Confederated Salish and Kootenai
Tribes' Flathead Reservation in Montana. The landfill site is
approximately 50 acres in size and serves approximately 28,000 people
in Lake County. Most of the county, including the landfill, lies within
the boundaries of the Flathead Reservation. The landfill itself
consists of a 30-acre unlined waste footprint that was used as the
county's municipal landfill beginning in the 1960s. In the early 2000s
the County built a transfer station and converted the landfill to
accept inert and construction and demolition waste only. Of the
existing 30-acre waste footprint, 14.6 acres were previously closed and
covered.
On July 11, 2007, Lake County submitted a site-specific flexibility
application request to EPA and the Confederated Salish and Kootenai
Tribes for the Lake County landfill. The request seeks EPA approval for
the use of an alternative final cover that varies from the final
closure requirements of 40 CFR 258.60. This request would apply to the
15.4 acres of the landfill that have not been previously closed.
Between July 11, 2007, and January 22, 2009, Lake County made
revisions to its application request in response to concerns raised by
EPA and the Confederated Salish and Kootenai Tribes. EPA is basing its
determination and this proposed rule on the application, dated July 11,
2007 and March 17, 2008, and the January 22, 2009 amendments to that
application. The specific request for EPA approval of Lake County's
application is discussed below. As set forth in more detail below, EPA
is proposing to approve the request and allow Lake County to install an
alternative final cover that meets the criteria at 40 CFR 258.60(b).
Lake County is seeking EPA approval to use an alternative final
cover system for 15.4 acres of its existing waste footprint. Lake
County proposes to install a 5.5-feet-thick multi-layer cover system
comprised of the following from bottom to top: An 18-inch intermediate
and gas vent layer, a 24-inch native sand layer, an 18-inch imported
silt evapotranspiration layer, and a 6-inch topsoil layer. Lake County
has demonstrated that the infiltration layer achieves an equivalent
reduction in infiltration as the infiltration layer specified in
paragraphs (a)(1) and (a)(2) of 40 CFR 258.60, and the erosion layer
provides equivalent protection from wind and water erosion as the
erosion layer specified in paragraph (a)(3) of 40 CFR 258.60. On
January 22, 2009, Lake County submitted a ``Construction Quality
Assurance & Control Plan'' for the closure project that specifies that
testing will be performed on each component as it is installed. Testing
frequencies and standards during construction are described in detail
in the ``Construction Quality Assurance & Control Plan.''
II. EPA's Action
A. Determination To Approve Lake County's Site-Specific Flexibility
Request
After completing a review of Lake County's final site-specific
flexibility application request, dated July 11, 2007, and the
amendments to that application dated March 17, 2008, and January 22,
2009, EPA is proposing to approve Lake County's site-specific
flexibility request to install an alternative final cover.
EPA is basing its determination on a number of factors, including
unsaturated soil modeling, site-specific climatic and soils data, and
the results of a pilot test of the viability of an
[[Page 6599]]
evapotranspiration cover conducted at the site by the County's
consultants, the Desert Research Institute, and EPA. The pilot test
consisted of the construction of two landfill cover test plots at the
Lake County landfill facility. One plot used a landfill cover design
with a flexible membrane liner, and the other plot used an
evapotranspiration cover design. The results of the pilot test
indicated that the evapotranspiration cover will perform better than
the standard prescriptive cover in 40 CFR 258.60(a) in preventing the
movement of leachate through the system.
EPA considered certain issues pertaining to the proposed
alternative final cover, including the need for stringent quality
assurance/quality control during construction, such as oversight
throughout construction to ensure soils for each layer of the cover
have the necessary physical properties and are installed so as to
perform as designed.
In accordance with its application and the ``Construction Quality
Assurance & Control Plan,'' Lake County has pledged to provide the
oversight required. EPA is also requiring as part of its approval of
the final cover design, that Lake County:
Submit an Operations and Maintenance Plan at 50% final
design that includes an inspection schedule (at least quarterly) and
remediation plan to address any potential rodent damage,
Achieve re-vegetation rates of greater than 50% by the end
of the first season and a complete stand of native grasses by the end
of the third season, and
Place documentation demonstrating compliance with the
``Construction Quality Assurance and Control Plan,'' 40 CFR
258.60(a)(1), (2), and (3), and the above requirements in the landfill
operating record.
III. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB).
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.) because it applies to a particular facility only.
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a
particular facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA.
Because this rule will affect only a particular facility, this
proposed rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, ``Federalism,'' (64 FR 43255,
August 10, 1999). Thus, Executive Order 13132 does not apply to this
rule.
This rule is also not subject to Executive Order 13045,
``Protection of Children From Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The basis for this belief is EPA's conservative analysis of
the potential risks posed by Lake County's proposal and the controls
and standards set forth in the application.
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments,'' (65 FR 67249, November 9, 2000),
calls for EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' EPA has concluded that this
action may have Tribal implications because it is directly applicable
to a facility operating on the Confederated Salish and Kootenai Tribes'
Flathead Reservation. However, this determination will neither impose
substantial direct compliance costs on Tribal governments, nor preempt
Tribal law. This determination to approve Lake County's application
will affect only the operation of the County's landfill.
EPA consulted with the Confederated Salish and Kootenai Tribes
early in the process of making this determination to approve the
County's alternative final cover request so that the Tribes had the
opportunity to provide meaningful and timely input. Between July 11,
2007 and January 22, 2009, technical issues were raised and addressed
by both the Tribes and EPA concerning Lake County's proposal. EPA's
consultation with the Tribes culminated in a letter of July 15, 2009
from the Tribes, in which they stated that they have no further issues
with the Lake County proposal. EPA specifically solicits any additional
comment on this determination from Tribal officials of the Confederated
Salish and Kootenai Tribes.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) directs EPA to use voluntary consensus
standards in its regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards, (e.g., materials
specification, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
The technical standards included in the application were proposed
by Lake County. Given EPA's obligations under Executive Order 13175
(see above), the Agency has, to the extent appropriate, applied the
standards established by the County and accepted by the Tribes. In
addition, the Agency evaluated the proposal's design against the
engineering design and construction criteria contained in the EPA draft
guidance document, ``Water Balance Covers for Waste Containment:
Principles and Practice (2009).''
Authority: Sections 1008, 2002, 4004, and 4010 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. 6907, 6912, 6944, and
6949a. Temporary Delegation of Authority to Promulgate Site-Specific
Rules To Respond to Requests for Flexibility From Owners/Operators
of Municipal Solid Waste Landfill Facilities in Indian Country,
October 14, 2009, Incorporation by Reference.
List of Subjects in 40 CFR Part 258
Environmental protection, Municipal landfills, Reporting and
recordkeeping requirements, Waste treatment and disposal.
[[Page 6600]]
Dated: January 15, 2010.
Carol Rushin,
Acting Regional Administrator, Region VIII.
For the reasons stated in the preamble, 40 CFR part 258 is proposed
to be amended as follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
1. The authority citation for part 258 continues to read as
follows:
Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907,
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).
Subpart F--[Amended]
2. Add Sec. 258.62 to subpart F to read as follows:
Sec. 258.62 Approval of site-specific flexibility requests in Indian
Country.
(a) Lake County Municipal Landfill final cover requirements.
Paragraph (a) of this section applies to the Lake County Landfill, a
municipal solid waste landfill owned and operated by Lake County on the
Confederated Salish and Kootenai Tribes' Flathead Reservation in
Montana. The alternative final cover request submitted by Lake County
and dated July 11, 2007, and amended March 17, 2008, and January 22,
2009 is hereby incorporated into this provision by this reference. The
facility owner and/or operator may close the facility in accordance
with this application, including the following activities more
generally described as follows:
(1) The owner and operator may install an evapotranspiration system
as an alternative final cover for the 15.4 acre active area.
(2) The final cover system shall consist of a 5.5 feet-thick multi-
layer cover system comprised, from bottom to top, of an 18-inch
intermediate and gas vent layer, a 24-inch native sand layer, an 18-
inch imported silt layer and a 6-inch topsoil layer, as well as seeding
and erosion control.
(3) The final cover system shall be constructed to achieve an
equivalent reduction in infiltration as the infiltration layer
specified in Sec. 258.60(a)(1) and (a)(2), and provide an equivalent
protection from wind and water erosion as the erosion layer specified
in paragraph (a)(3) of this section.
(4) In addition to meeting the specifications of the Lake County
landfill ``Alternative Cover'' application of May 2007, and the
``Construction Quality Assurance & Control Plan for the Lake County
Class II Landfill Unit Landfill Closure Project'' of January 2009, the
owner and operator shall:
(i) At 50% final design, submit to EPA for approval an Operations
and Maintenance Plan that includes an inspection schedule (at least
quarterly) and remediation plan to address any potential rodent damage
to the final cover; and
(ii) Achieve re-vegetation rates greater than 50% by the end of the
first season and a complete stand of native grasses by the end of the
third season.
(5) The owner and operator shall place documentation demonstrating
compliance with the provisions of this Section in the operating record.
(6) All other applicable provisions of 40 CFR part 258 remain in
effect.
(b) [Reserved]
[FR Doc. 2010-2794 Filed 2-9-10; 8:45 am]
BILLING CODE 6560-50-P