Research, Development and Demonstration (RD&D) Rule for the Salt River Pima-Maricopa Indian Community Landfill RD&D Project, 18185-18188 [2021-06901]
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Federal Register / Vol. 86, No. 66 / Thursday, April 8, 2021 / Rules and Regulations
interim rule are inconsistent with the
United States’ obligations under the
USMCA. Specifically, Mexico argued
that the definition of ‘‘material harm’’ at
§ 208.2(j) of the interim rule is
inconsistent with the USMCA in two
respects. First, Mexico expressed its
view that this definition differs from
that provided in USMCA, Annex II,
footnote 1 by adding a provision for a
significant loss of market share for a
‘‘relevant sub-market.’’ Second, Mexico
objected to the interim rule’s definition
of injury to the relevant U.S. industry as
being to ‘‘cross-border long-haul
trucking services’’ rather than merely
‘‘long-haul trucking services.’’ In both
instances, Mexico believes that these
differences lower the threshold for
material injury in a manner inconsistent
with the USMCA.
Commission Response
The Commission has considered the
comments of OOIDA/Teamsters that
support the interim rules as published,
and that OOIDA/Teamsters do not seek
or request amendments to the interim
rules.
Addressing Mexico’s comments, the
Commission notes that Mexico’s
objections are directed at language that
mirrors the USMCA’s implementing
statute. While Mexico alleges that the
interim rule’s definition for material
harm is inconsistent with the USMCA,
the interim rule implements provisions
of the Act rather than the USMCA, and
the Commission adopts its definition of
material harm directly from the Act.
Section 321(9) of the Act defines
material harm as ‘‘a significant loss in
the share of the United States market or
relevant sub-market for cross-border
long-haul trucking services held by
persons of the United States,’’ which is
identical to the definition at § 208.2(j) of
the interim rule. Similarly, section
321(5) of the Act also defines the
relevant U.S. industry as ‘‘cross-border
long-haul trucking services.’’ Because
these definitions track and are
consistent with the Act, we adopt the
definition of material harm from the
interim rule as a final rule without
change.
List of Subjects in 19 CFR Part 208
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Administrative practice and
procedure, Trade agreements.
For the reasons stated in the
preamble, the United States
International Trade Commission adopts
as final rule the interim rule adding 19
CFR part 208 that was published at 85
FR 41355, on July 10, 2020, with the
following change:
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PART 208—INVESTIGATIONS OF
UNITED STATES-MEXICO CROSSBORDER LONG-HAUL TRUCKING
SERVICES
1. The authority citation for part 208
continues to read as follows:
■
Authority: 19 U.S.C. 4574(e).
2. Amend § 208.5 by revising
paragraph (e)(i)(vi) to read as follows:
■
§ 208.5
Contents of petition.
*
*
*
*
*
(e) * * *
(1) * * *
(vi) Any other relevant information,
including freight rates and any evidence
of cross-border long-haul trucking
services lost to persons of Mexico in the
market as a whole or claimed specific
sub-market.
*
*
*
*
*
By order of the Commission.
Issued: April 2, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021–07181 Filed 4–7–21; 8:45 am]
BILLING CODE 7020–02–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 258
[EPA–RCRA–2021–0127; FRL–10021–26–
Region 9]
Research, Development and
Demonstration (RD&D) Rule for the
Salt River Pima-Maricopa Indian
Community Landfill RD&D Project
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
(EPA) is taking direct final action to
approve revisions to the site-specific
Research, Development and
Demonstration rule for the Salt River
Pima-Maricopa Indian Community
(SRPMIC), Salt River Landfill Research,
Development, and Demonstration
Project in order to increase the
maximum term for the site-specific rule
from 12 to 21 years. EPA is also revising
the site-specific rule to reflect a change
in the division title for U.S. EPA Region
9, from the Waste Management Division
to the Land, Chemicals and
Redevelopment Division.
DATES: This rule is effective on June 7,
2021 without further notice, unless EPA
receives adverse comment by May 10,
2021. If EPA receives adverse comment,
we will publish a timely withdrawal in
SUMMARY:
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18185
the Federal Register informing the
public that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R9–
2021–0127 at https://
www.regulations.gov, or via email to
R9LandSubmit@epa.gov. Due to
COVID–19, we are not providing
facsimile or regular mail options, which
are not viable at this time. For
comments submitted at Regulations.gov,
follow the online instructions for
submitting comments. Once submitted,
comments cannot be removed or edited
from Regulations.gov. For either manner
of submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
information considered confidential
business information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For EPA’s full public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Steve Wall, EPA Region IX, (415) 972–
3381, wall.steve@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
or ‘‘our’’ refer to the EPA.
I. Why is EPA using a direct final rule?
EPA is publishing this rule without a
prior proposed rule because we view
this as a noncontroversial action and
anticipate no adverse comment because
the revisions to the site-specific rule
merely conform the rule to the national
rule regarding the total length of time
that Research, Development and
Demonstration (RD&D) projects may be
permitted. Moreover, the 2016 RD&D
rule was subjected to public notice and
comment prior to promulgation. Also,
the existing 12-year maximum term for
the Salt River Landfill’s operation as a
bioreactor ends in March 2021, and
further delay in extending the total term
of the RD&D project would potentially
result in economic and environmental
harm, contrary to the mission of the
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Agency. Thus, EPA has determined that
there is good cause for issuing this
direct rule final. However, in the
‘‘Proposed Rules’’ section of this issue
of the Federal Register, we are
publishing a separate document that
will serve as the proposed rule to
increase the maximum term for the sitespecific rule from 12 to 21 years and to
reflect a change in the division title for
U.S. EPA Region 9, from the Waste
Management Division to the Land,
Chemicals and Redevelopment Division
if adverse comments are received on
this direct final rule. We will not
institute a second comment period on
this action. Any parties interested in
commenting must do so at this time. For
further information about commenting
on this rule, see the ADDRESSES section
of this document.
If EPA receives adverse comment, we
will publish a timely withdrawal in the
Federal Register informing the public
that this direct final rule will not take
effect. We would address all public
comments in any subsequent final rule
based on the proposed rule.
II. Legal Authority for This Action
Under sections 1008, 2002, 4004, and
4010 of the Resource Conservation and
Recovery Act of 1976 (RCRA) as
amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA),
EPA established revised minimum
Federal criteria for Municipal Solid
Waste Landfills (MSWLFs). Under
RCRA section 4005, states are to
develop permit programs for facilities
that may receive household hazardous
waste or waste from conditionally
exempt small quantity generators, and
EPA determines whether the program is
adequate to ensure that facilities will
comply with the revised criteria.
The MSWLF criteria are in the Code
of Federal Regulations at 40 CFR part
258. These regulations are selfimplementing 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 selfimplementing regulation; its use
requires approval by the Director of an
EPA-approved state.
Since EPA’s approval of a state
program does not extend to Indian
country, owners and operators of
MSWLF units located in Indian country
cannot take advantage of the flexibilities
available to those facilities outside
Indian country. However, the EPA has
the authority under sections 2002, 4004,
and 4010 of RCRA to promulgate sitespecific rules that may provide for use
of alternative standards. See Yankton
Sioux Tribe v. EPA, 950 F. Supp. 1471
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(D.S.D. 1996); Backcountry Against
Dumps v. EPA, 100 F.3d 147 (D.C. Cir.
1996). EPA has developed draft
guidance on preparing a site-specific
request to provide flexibility to owners
or operators of MSWLFs in Indian
country (Site-Specific Flexibility
Requests for Municipal Solid Waste
Landfills in Indian Country Draft
Guidance, EPA530–R–97–016, August
1997).
In 2004, EPA issued a final rule at 40
CFR 258.4 amending the MSWLF
criteria to allow for RD&D permits. 69
FR 13242, March 22, 2004. That rule
allows for variances from specified
criteria for a limited time. Specifically,
the rule allows for the Director of an
approved state to issue a time-limited
RD&D permit for a new MSWLF unit,
existing MSWLF unit, or lateral
expansion, for which the owner or
operator proposes to use innovative and
new methods which vary from either or
both of the following: (1) The run-on
control systems at 40 CFR 258.26(a)(1);
and/or (2) the liquids restrictions at 40
CFR 258.28(a), provided that the
MSWLF unit has a leachate collection
system designed and constructed to
maintain less than a 30-centimeter
depth of leachate on the liner. The rule
also allows for the issuance of a timelimited RD&D permit for which
innovative and new methods that vary
from the final cover criteria at 40 CFR
258.60(a)(1) and (2) and (b)(1) are
proposed for use, provided a
demonstration is made that the
infiltration of liquid through the
alternative cover system will not cause
contamination to groundwater or
surface water, or cause leachate depth
on the liner to exceed 30 centimeters.
RD&D permits must include such terms
and conditions at least as protective as
the criteria for MSWLFs to assure
protection of human health and the
environment. EPA’s RD&D rule stated
that RD&D facilities in Indian country
could be approved in a site-specific
rule.
The 2004 RD&D rule included time
limits whereby an RD&D permit cannot
exceed three years and a renewal of an
RD&D permit cannot exceed three years.
Although multiple renewals of an RD&D
permit can be issued, the 2004 RD&D
rule included a total term for an RD&D
permit, including renewals, of up to
twelve years. In 2016, EPA revised the
maximum permit term for MSWLF units
operating under the RD&D permit
program to allow the Director of an
approved State to increase the number
of permit renewals to six, for a total
permit term of up to 21 years. 81 FR
28720, May 10, 2016.
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In 2009, EPA approved an RD&D
project at the Salt River Landfill,
promulgating a site-specific rule at 40
CFR 258.42(a). 74 FR 11677, March 19,
2009. Periodic three-year extensions
have allowed the continued operation of
the Salt River Landfill as a bioreactor to
the present. However, the 12-year term
in the current rule, issued March 19,
2009, expires on March 19, 2021.
In addition, since the promulgation of
the 2009 site-specific rule for the Salt
River Landfill, the division title for U.S.
EPA Region 9, Waste Management
Division has been changed to the Land,
Chemicals and Redevelopment Division.
A. What action is the Agency taking?
EPA is taking direct final action to
revise 40 CFR 258.42(a) to allow
operation of the Salt River Landfill
consistent with the RD&D rule for a total
of 21 years. However, a renewal of this
authority must continue to be sought
every three years. Each renewal request
is subject to public notice and comment.
No renewal may be for greater than
three years and the overall period of
operation may not exceed 21 years.
This action revises the overall term of
the rule pertaining to SRPMIC’s sitespecific flexibility request to recirculate
leachate and landfill gas condensate and
add storm water and groundwater to the
below grade portions of areas of the
landfill known as Phases IIIB and IVA
to increase the moisture content of the
waste mass in these phases.
EPA is also revising its site-specific
rule to reflect a change in the division
title for U.S. EPA Region 9, from the
Waste Management Division to the
Land, Chemicals and Redevelopment
Division.
B. What are the anticipated effects and
benefits of this action?
The 2016 revision to the RD&D rule at
40 CFR 258.4(e)(1) articulated the
anticipated effect of extending the
overall period of operations of these
units from 12 to 21 years. 81 FR at
28721. Based on that rulemaking, EPA
has determined that the extension of the
site-specific rule’s total term will
provide EPA the ability to issue
renewals to the existing authority to
operate this RD&D unit pursuant to this
program for up to 21 years instead of 12
years. During this time, the EPA will
continue to evaluate data from this
facility. The SRPMIC is not expected to
incur any significant costs due to this
direct final rule. Based on the 2016
rulemaking, the annual costs for
ongoing recordkeeping and reporting
requirements are estimated at $2,410 per
facility and seeking periodic three-year
extensions to operate an RD&D unit
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remains voluntary. This action does not
impose any new regulatory burden. This
action allows EPA to increase the
number of extensions of the operational
period for the Salt River Landfill’s
RD&D unit if the tribal owner/operator
continues to choose to participate in
this research program. Increasing the
possible number of extensions of the
RD&D unit’s operational term may
benefit the tribal owner/operator of
RD&D units, assuming a projected
increase in the rate of return for 21 years
compared to 12 years, based on the
findings in EPA’s 2016 rulemaking. 81
FR at 28721.
The 2016 final rule also indicated that
increasing the possible number of
extensions of RD&D permit terms was
expected to provide more time for the
EPA to collect additional data on the
approaches being taken under these
RD&D permits. Id. With respect to the
continued operation of the Salt River
Landfill, the following potential benefits
set forth in the 2016 rule’s preamble are
expected: Increased potential for
revenue from the sale of landfill gas for
use as a renewable source of fuel,
accelerated production and capture of
landfill gas for potential use as a
renewable fuel, and accelerated
stabilization and corresponding
decreased post-closure care activities for
facilities due to the accelerated
decomposition of waste.
III. Statutory and Executive Order
Reviews
Section 106 of the National Historic
Preservation Act of 1966 (NHPA)
requires Federal agencies to take into
account the effects of their undertakings
on historic properties and to afford the
Advisory Council on Historic
Preservation a reasonable opportunity to
comment. 36 CFR part 800. While EPA
consulted with the SRPMIC, as well as
the Ak-Chin Indian Community, the
Fort McDowell Yavapai Nation, the Gila
River Indian Community, the Hopi
Tribe, the Pascua Yaqui Tribe, the
Tohono O’odham Nation, the YavapaiApache Nation, and the YavapaiPrescott Indian Tribe on the original
site-specific flexibility rulemaking in
2009 (see 74 FR at 11679), EPA finds
that this direct final action to extend the
existing 12-year term of the authority to
operate a bioreactor in accordance with
EPA’s RD&D Program to a 21-year term
has ‘‘no potential to cause effects’’ on
historic properties within the meaning
of Section 106 of the NHPA.
In compliance with the Endangered
Species Act, 16 U.S.C. 1536 et seq., EPA
performed a biological assessment for
the project site. No known threatened,
endangered or candidate species or their
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habitat exist on the site. Additionally,
there are no ground disturbing surface
activities associated with EPA’s
approval of an increase to the maximum
period the Salt River Landfill RD&D
project can operate units as bioreactor
units. No impacts to listed species that
may occur in in project area are
anticipated.
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 direct final 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 also is not subject to
Executive Order 13045, ‘‘Protection of
Children From Environmental Health
Risks and Safety Risks,’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
basis for this belief is EPA’s
conservative analysis of the potential
risks posed by SRPMIC’s RD&D Program
proposal and the controls and standards
set forth in the application and
incorporated by reference into the
original site-specific rule at 40 CFR
258.42(a).
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
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18187
Energy Supply, Distribution, or Use,’’
(66 FR 28355, May 22, 2001), because it
is not a significant regulatory action
under Executive Order 12866.
As required by section 3 of Executive
Order 12988, ‘‘Civil Justice Reform,’’ (61
FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary
steps to eliminate drafting errors and
ambiguity, minimize potential litigation,
and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled
‘‘Consultation and Coordination With
Indian Tribal Governments,’’ (65 FR
67249, November 9, 2000), calls for EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ EPA has concluded that
this action may have tribal implications
because it is directly applicable to the
owner and operator of the landfill,
which is currently the SRPMIC.
However, this direct final rule will
neither impose substantial direct
compliance costs on tribal governments,
nor preempt Tribal law. This direct final
rule to revise the maximum total term
from up to 12 years to up to 21 years
will affect only the SRPMIC’s operation
of their landfill on their own land.
On March 10, 2021, EPA offered
consultation to the SRPMIC so as to give
the Tribe a meaningful and timely
opportunity to provide input into the
extension of the total term of the rule
from 12 years to 21 years. To the extent
that SRPMIC accepts EPA’s offer to
consult on this action, the Agency will
endeavor to undertake such
consultation during the 30-day public
comment period for this direct final
rule.
With respect to the type of flexibility
being afforded to SRPMIC under this
direct final rule, E.O. 13175 does
provide for agencies to review
applications for flexibility ‘‘with a
general view toward increasing
opportunities for utilizing flexible
policy approaches at the Indian tribal
level in cases in which the proposed
waiver is consistent with the applicable
Federal policy objectives and is
otherwise appropriate.’’ In formulating
this direct final rule, the Region has
been guided by the fundamental
principles set forth in E.O. 13175 and
has granted the SRPMIC the ‘‘maximum
administrative discretion possible’’
within the standards set forth under the
RD&D rule in accordance with E.O.
13175.
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
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standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards, (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The technical standards
included in the original site-specific
flexibility request were proposed by
SRPMIC. Given EPA’s obligations under
E.O. 13175 (see above), the Agency
applied the standards established by the
Tribe. In addition, the Agency
considered the Interstate Technology
and Regulatory Council’s February 2006
technical and regulatory guideline
‘‘Characterization, Design, Construction,
and Monitoring of Bioreactor Landfills.’’
Nothing about this analysis has changed
since the 2009 site-specific rule was
promulgated nor does the extension of
the total possible term of the RD&D
unit’s operations in accordance with the
site-specific rule from 12 years to 21
years affect this analysis.
Congressional Review Act (CRA). This
action is not subject to the CRA because
the term ‘‘rule’’ as it is used in the CRA
does not include ‘‘any rule of particular
applicability,’’ such as a site-specific
rule. See, 5 U.S.C. Section 804(3)(A).
Environmental Justice—Executive
Order 12898, Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations, and the accompanying
presidential memorandum advising
Federal agencies to identify and
address, whenever feasible,
disproportionately high and adverse
human health or environmental effects
on minority communities or low-income
communities. The action will not
adversely impact minorities or lowincome communities.
Authority: Sections 1008, 2002, 4004, and
4010 of the Solid Waste Disposal Act, as
amended, 42 U.S.C. Sections 6907, 6912,
6944, and 6949a. Delegation 8–54, SiteSpecific Rules for Flexibility from Owners/
Operators of Municipal Solid Waste Landfills
(MSWLFs) in Indian Country, November 24,
2010. Regional Delegation R9–8–54, October
10, 2014.
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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: March 26, 2021.
Steven Barhite,
Acting Director, Land, Chemicals and
Redevelopment Division, Region IX.
For the reasons set forth in the
preamble, 40 CFR part 258 is amended
as follows:
PART 258—CRITERIA FOR MUNICIPAL
SOLID WASTE LANDFILLS
1. The authority citation for part 258
continues to read as follows:
■
Authority: 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 D—Design Criteria
2. Revise § 258.42(a)(5) through (10) to
read as follows:
■
§ 258.42 Approval of site-specific flexibility
requests in Indian country.
(a) * * *
(5) The owner and/or operator shall
submit reports to the Director of the
Land, Chemicals and Redevelopment
Division at EPA Region 9 as specified in
‘‘Research, Development, and
Demonstration Permit Application Salt
River Landfill,’’ dated September 24,
2007 and amended on April 8, 2008,
including an annual report showing
whether and to what extent the site is
progressing in attaining project goals.
The annual report will also include a
summary of all monitoring and testing
results, as specified in the application.
(6) The owner and/or operator may
not operate the facility pursuant to the
authority granted by this section if there
is any deviation from the terms,
conditions, and requirements of this
section unless the operation of the
facility will continue to conform to the
standards set forth in § 258.4 and the
owner and/or operator has obtained the
prior written approval of the Director of
the Land, Chemicals and
Redevelopment Division at EPA Region
9 or the Director’s designee to
implement corrective measures or
otherwise operate the facility subject to
such deviation. The Director of the
Land, Chemicals and Redevelopment
Division or designee shall provide an
opportunity for the public to comment
on any significant deviation prior to
providing written approval of the
deviation.
(7) Paragraphs (a)(2), (3), (5), (6), and
(9) of this section will terminate on
March 19, 2024, unless the Director of
the Land, Chemicals and
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Redevelopment Division at EPA Region
9 or the Director’s designee renews this
authority in writing. Any such renewal
may extend the authority granted under
paragraphs (a)(2), (3), (5), (6), and (9) of
this section for up to an additional three
years, and multiple renewals (up to a
total of 21 years from March 19, 2009)
may be provided. The Director of the
Land, Chemicals and Redevelopment
Division or designee shall provide an
opportunity for the public to comment
on any renewal request prior to
providing written approval or
disapproval of such request.
(8) In no event will the provisions of
paragraph (a)(2), (3), (5), (6), or (9) of
this section remain in effect after March
19, 2030, 21 years after the March 19,
2009 date of publication of the sitespecific rule in this section. Upon
termination of paragraphs (a)(2), (3), (5),
(6), and (9) of this section, and except
with respect to paragraphs (a)(1) and (4)
of this section, the owner and/or
operator shall return to compliance with
the regulatory requirements which
would have been in effect absent the
flexibility provided through the sitespecific rule in this section.
(9) In seeking any renewal of the
authority granted under or other
requirements of paragraphs (a)(2), (3),
(5), and (6) of this section, the owner
and/or operator shall provide a detailed
assessment of the project showing the
status with respect to achieving project
goals, a list of problems and status with
respect to problem resolutions, and any
other requirements that the Director of
the Land, Chemicals and
Redevelopment Division at EPA Region
9 or the Director’s designee has
determined are necessary for the
approval of any renewal and has
communicated in writing to the owner
and operator.
(10) The owner and/or operator’s
authority to operate the landfill in
accordance with paragraphs (a)(2), (3),
(5), (6), and (9) of this section shall
terminate if the Director of the Land,
Chemicals and Redevelopment Division
at EPA Region 9 or the Director’s
designee determines that the overall
goals of the project are not being
attained, including protection of human
health or the environment. Any such
determination shall be communicated in
writing to the owner and operator.
*
*
*
*
*
[FR Doc. 2021–06901 Filed 4–7–21; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\08APR1.SGM
08APR1
Agencies
[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Rules and Regulations]
[Pages 18185-18188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06901]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[EPA-RCRA-2021-0127; FRL-10021-26-Region 9]
Research, Development and Demonstration (RD&D) Rule for the Salt
River Pima-Maricopa Indian Community Landfill RD&D Project
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection (EPA) is taking direct final
action to approve revisions to the site-specific Research, Development
and Demonstration rule for the Salt River Pima-Maricopa Indian
Community (SRPMIC), Salt River Landfill Research, Development, and
Demonstration Project in order to increase the maximum term for the
site-specific rule from 12 to 21 years. EPA is also revising the site-
specific rule to reflect a change in the division title for U.S. EPA
Region 9, from the Waste Management Division to the Land, Chemicals and
Redevelopment Division.
DATES: This rule is effective on June 7, 2021 without further notice,
unless EPA receives adverse comment by May 10, 2021. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R9-
2021-0127 at https://www.regulations.gov, or via email to
[email protected]. Due to COVID-19, we are not providing facsimile
or regular mail options, which are not viable at this time. For
comments submitted at Regulations.gov, follow the online instructions
for submitting comments. Once submitted, comments cannot be removed or
edited from Regulations.gov. For either manner of submission, the EPA
may publish any comment received to its public docket. Do not submit
electronically any information considered confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section. For EPA's full public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Steve Wall, EPA Region IX, (415) 972-
3381, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
``our'' refer to the EPA.
I. Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment because the revisions to the site-specific rule merely conform
the rule to the national rule regarding the total length of time that
Research, Development and Demonstration (RD&D) projects may be
permitted. Moreover, the 2016 RD&D rule was subjected to public notice
and comment prior to promulgation. Also, the existing 12-year maximum
term for the Salt River Landfill's operation as a bioreactor ends in
March 2021, and further delay in extending the total term of the RD&D
project would potentially result in economic and environmental harm,
contrary to the mission of the
[[Page 18186]]
Agency. Thus, EPA has determined that there is good cause for issuing
this direct rule final. However, in the ``Proposed Rules'' section of
this issue of the Federal Register, we are publishing a separate
document that will serve as the proposed rule to increase the maximum
term for the site-specific rule from 12 to 21 years and to reflect a
change in the division title for U.S. EPA Region 9, from the Waste
Management Division to the Land, Chemicals and Redevelopment Division
if adverse comments are received on this direct final rule. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
II. Legal Authority for This Action
Under sections 1008, 2002, 4004, and 4010 of the Resource
Conservation and Recovery Act of 1976 (RCRA) as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA), EPA established
revised minimum Federal criteria for Municipal Solid Waste Landfills
(MSWLFs). Under RCRA section 4005, states are to develop permit
programs for facilities that may receive household hazardous waste or
waste from conditionally exempt small quantity generators, and EPA
determines whether the program is adequate to ensure that facilities
will comply with the revised criteria.
The MSWLF criteria are in the Code of Federal Regulations at 40 CFR
part 258. These regulations are self-implementing and apply directly to
owners and operators of MSWLFs. For many of these criteria, 40 CFR part
258 includes a flexible performance standard as an alternative to the
self-implementing regulation; its use requires approval by the Director
of an EPA-approved state.
Since EPA's approval of a state program does not extend to Indian
country, owners and operators of MSWLF units located in Indian country
cannot take advantage of the flexibilities available to those
facilities outside Indian country. However, the EPA has the authority
under sections 2002, 4004, and 4010 of RCRA to promulgate site-specific
rules that may provide for use of alternative standards. See Yankton
Sioux Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996); Backcountry
Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996). EPA has developed
draft guidance on preparing a site-specific request to provide
flexibility to owners or operators of MSWLFs in Indian country (Site-
Specific Flexibility Requests for Municipal Solid Waste Landfills in
Indian Country Draft Guidance, EPA530-R-97-016, August 1997).
In 2004, EPA issued a final rule at 40 CFR 258.4 amending the MSWLF
criteria to allow for RD&D permits. 69 FR 13242, March 22, 2004. That
rule allows for variances from specified criteria for a limited time.
Specifically, the rule allows for the Director of an approved state to
issue a time-limited RD&D permit for a new MSWLF unit, existing MSWLF
unit, or lateral expansion, for which the owner or operator proposes to
use innovative and new methods which vary from either or both of the
following: (1) The run-on control systems at 40 CFR 258.26(a)(1); and/
or (2) the liquids restrictions at 40 CFR 258.28(a), provided that the
MSWLF unit has a leachate collection system designed and constructed to
maintain less than a 30-centimeter depth of leachate on the liner. The
rule also allows for the issuance of a time-limited RD&D permit for
which innovative and new methods that vary from the final cover
criteria at 40 CFR 258.60(a)(1) and (2) and (b)(1) are proposed for
use, provided a demonstration is made that the infiltration of liquid
through the alternative cover system will not cause contamination to
groundwater or surface water, or cause leachate depth on the liner to
exceed 30 centimeters. RD&D permits must include such terms and
conditions at least as protective as the criteria for MSWLFs to assure
protection of human health and the environment. EPA's RD&D rule stated
that RD&D facilities in Indian country could be approved in a site-
specific rule.
The 2004 RD&D rule included time limits whereby an RD&D permit
cannot exceed three years and a renewal of an RD&D permit cannot exceed
three years. Although multiple renewals of an RD&D permit can be
issued, the 2004 RD&D rule included a total term for an RD&D permit,
including renewals, of up to twelve years. In 2016, EPA revised the
maximum permit term for MSWLF units operating under the RD&D permit
program to allow the Director of an approved State to increase the
number of permit renewals to six, for a total permit term of up to 21
years. 81 FR 28720, May 10, 2016.
In 2009, EPA approved an RD&D project at the Salt River Landfill,
promulgating a site-specific rule at 40 CFR 258.42(a). 74 FR 11677,
March 19, 2009. Periodic three-year extensions have allowed the
continued operation of the Salt River Landfill as a bioreactor to the
present. However, the 12-year term in the current rule, issued March
19, 2009, expires on March 19, 2021.
In addition, since the promulgation of the 2009 site-specific rule
for the Salt River Landfill, the division title for U.S. EPA Region 9,
Waste Management Division has been changed to the Land, Chemicals and
Redevelopment Division.
A. What action is the Agency taking?
EPA is taking direct final action to revise 40 CFR 258.42(a) to
allow operation of the Salt River Landfill consistent with the RD&D
rule for a total of 21 years. However, a renewal of this authority must
continue to be sought every three years. Each renewal request is
subject to public notice and comment. No renewal may be for greater
than three years and the overall period of operation may not exceed 21
years.
This action revises the overall term of the rule pertaining to
SRPMIC's site-specific flexibility request to recirculate leachate and
landfill gas condensate and add storm water and groundwater to the
below grade portions of areas of the landfill known as Phases IIIB and
IVA to increase the moisture content of the waste mass in these phases.
EPA is also revising its site-specific rule to reflect a change in
the division title for U.S. EPA Region 9, from the Waste Management
Division to the Land, Chemicals and Redevelopment Division.
B. What are the anticipated effects and benefits of this action?
The 2016 revision to the RD&D rule at 40 CFR 258.4(e)(1)
articulated the anticipated effect of extending the overall period of
operations of these units from 12 to 21 years. 81 FR at 28721. Based on
that rulemaking, EPA has determined that the extension of the site-
specific rule's total term will provide EPA the ability to issue
renewals to the existing authority to operate this RD&D unit pursuant
to this program for up to 21 years instead of 12 years. During this
time, the EPA will continue to evaluate data from this facility. The
SRPMIC is not expected to incur any significant costs due to this
direct final rule. Based on the 2016 rulemaking, the annual costs for
ongoing recordkeeping and reporting requirements are estimated at
$2,410 per facility and seeking periodic three-year extensions to
operate an RD&D unit
[[Page 18187]]
remains voluntary. This action does not impose any new regulatory
burden. This action allows EPA to increase the number of extensions of
the operational period for the Salt River Landfill's RD&D unit if the
tribal owner/operator continues to choose to participate in this
research program. Increasing the possible number of extensions of the
RD&D unit's operational term may benefit the tribal owner/operator of
RD&D units, assuming a projected increase in the rate of return for 21
years compared to 12 years, based on the findings in EPA's 2016
rulemaking. 81 FR at 28721.
The 2016 final rule also indicated that increasing the possible
number of extensions of RD&D permit terms was expected to provide more
time for the EPA to collect additional data on the approaches being
taken under these RD&D permits. Id. With respect to the continued
operation of the Salt River Landfill, the following potential benefits
set forth in the 2016 rule's preamble are expected: Increased potential
for revenue from the sale of landfill gas for use as a renewable source
of fuel, accelerated production and capture of landfill gas for
potential use as a renewable fuel, and accelerated stabilization and
corresponding decreased post-closure care activities for facilities due
to the accelerated decomposition of waste.
III. Statutory and Executive Order Reviews
Section 106 of the National Historic Preservation Act of 1966
(NHPA) requires Federal agencies to take into account the effects of
their undertakings on historic properties and to afford the Advisory
Council on Historic Preservation a reasonable opportunity to comment.
36 CFR part 800. While EPA consulted with the SRPMIC, as well as the
Ak-Chin Indian Community, the Fort McDowell Yavapai Nation, the Gila
River Indian Community, the Hopi Tribe, the Pascua Yaqui Tribe, the
Tohono O'odham Nation, the Yavapai-Apache Nation, and the Yavapai-
Prescott Indian Tribe on the original site-specific flexibility
rulemaking in 2009 (see 74 FR at 11679), EPA finds that this direct
final action to extend the existing 12-year term of the authority to
operate a bioreactor in accordance with EPA's RD&D Program to a 21-year
term has ``no potential to cause effects'' on historic properties
within the meaning of Section 106 of the NHPA.
In compliance with the Endangered Species Act, 16 U.S.C. 1536 et
seq., EPA performed a biological assessment for the project site. No
known threatened, endangered or candidate species or their habitat
exist on the site. Additionally, there are no ground disturbing surface
activities associated with EPA's approval of an increase to the maximum
period the Salt River Landfill RD&D project can operate units as
bioreactor units. No impacts to listed species that may occur in in
project area are anticipated.
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
direct final 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 also is not subject to Executive Order 13045,
``Protection of Children From Environmental Health Risks and Safety
Risks,'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and because the Agency
does not have reason to believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The basis for this belief is EPA's conservative analysis of
the potential risks posed by SRPMIC's RD&D Program proposal and the
controls and standards set forth in the application and incorporated by
reference into the original site-specific rule at 40 CFR 258.42(a).
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use,'' (66 FR 28355, May 22, 2001), because it is not
a significant regulatory action under Executive Order 12866.
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments,'' (65 FR 67249, November 9, 2000),
calls for EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' EPA has concluded that this
action may have tribal implications because it is directly applicable
to the owner and operator of the landfill, which is currently the
SRPMIC. However, this direct final rule will neither impose substantial
direct compliance costs on tribal governments, nor preempt Tribal law.
This direct final rule to revise the maximum total term from up to 12
years to up to 21 years will affect only the SRPMIC's operation of
their landfill on their own land.
On March 10, 2021, EPA offered consultation to the SRPMIC so as to
give the Tribe a meaningful and timely opportunity to provide input
into the extension of the total term of the rule from 12 years to 21
years. To the extent that SRPMIC accepts EPA's offer to consult on this
action, the Agency will endeavor to undertake such consultation during
the 30-day public comment period for this direct final rule.
With respect to the type of flexibility being afforded to SRPMIC
under this direct final rule, E.O. 13175 does provide for agencies to
review applications for flexibility ``with a general view toward
increasing opportunities for utilizing flexible policy approaches at
the Indian tribal level in cases in which the proposed waiver is
consistent with the applicable Federal policy objectives and is
otherwise appropriate.'' In formulating this direct final rule, the
Region has been guided by the fundamental principles set forth in E.O.
13175 and has granted the SRPMIC the ``maximum administrative
discretion possible'' within the standards set forth under the RD&D
rule in accordance with E.O. 13175.
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
[[Page 18188]]
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards, (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The technical standards included in the original
site-specific flexibility request were proposed by SRPMIC. Given EPA's
obligations under E.O. 13175 (see above), the Agency applied the
standards established by the Tribe. In addition, the Agency considered
the Interstate Technology and Regulatory Council's February 2006
technical and regulatory guideline ``Characterization, Design,
Construction, and Monitoring of Bioreactor Landfills.'' Nothing about
this analysis has changed since the 2009 site-specific rule was
promulgated nor does the extension of the total possible term of the
RD&D unit's operations in accordance with the site-specific rule from
12 years to 21 years affect this analysis.
Congressional Review Act (CRA). This action is not subject to the
CRA because the term ``rule'' as it is used in the CRA does not include
``any rule of particular applicability,'' such as a site-specific rule.
See, 5 U.S.C. Section 804(3)(A).
Environmental Justice--Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, and the accompanying presidential memorandum advising
Federal agencies to identify and address, whenever feasible,
disproportionately high and adverse human health or environmental
effects on minority communities or low-income communities. The action
will not adversely impact minorities or low-income communities.
Authority: Sections 1008, 2002, 4004, and 4010 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. Sections 6907, 6912, 6944,
and 6949a. Delegation 8-54, Site-Specific Rules for Flexibility from
Owners/Operators of Municipal Solid Waste Landfills (MSWLFs) in
Indian Country, November 24, 2010. Regional Delegation R9-8-54,
October 10, 2014.
List of Subjects in 40 CFR Part 258
Environmental protection, Municipal landfills, Reporting and
recordkeeping requirements, Waste treatment and disposal.
Dated: March 26, 2021.
Steven Barhite,
Acting Director, Land, Chemicals and Redevelopment Division, Region IX.
For the reasons set forth in the preamble, 40 CFR part 258 is
amended as follows:
PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS
0
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 D--Design Criteria
0
2. Revise Sec. 258.42(a)(5) through (10) to read as follows:
Sec. 258.42 Approval of site-specific flexibility requests in Indian
country.
(a) * * *
(5) The owner and/or operator shall submit reports to the Director
of the Land, Chemicals and Redevelopment Division at EPA Region 9 as
specified in ``Research, Development, and Demonstration Permit
Application Salt River Landfill,'' dated September 24, 2007 and amended
on April 8, 2008, including an annual report showing whether and to
what extent the site is progressing in attaining project goals. The
annual report will also include a summary of all monitoring and testing
results, as specified in the application.
(6) The owner and/or operator may not operate the facility pursuant
to the authority granted by this section if there is any deviation from
the terms, conditions, and requirements of this section unless the
operation of the facility will continue to conform to the standards set
forth in Sec. 258.4 and the owner and/or operator has obtained the
prior written approval of the Director of the Land, Chemicals and
Redevelopment Division at EPA Region 9 or the Director's designee to
implement corrective measures or otherwise operate the facility subject
to such deviation. The Director of the Land, Chemicals and
Redevelopment Division or designee shall provide an opportunity for the
public to comment on any significant deviation prior to providing
written approval of the deviation.
(7) Paragraphs (a)(2), (3), (5), (6), and (9) of this section will
terminate on March 19, 2024, unless the Director of the Land, Chemicals
and Redevelopment Division at EPA Region 9 or the Director's designee
renews this authority in writing. Any such renewal may extend the
authority granted under paragraphs (a)(2), (3), (5), (6), and (9) of
this section for up to an additional three years, and multiple renewals
(up to a total of 21 years from March 19, 2009) may be provided. The
Director of the Land, Chemicals and Redevelopment Division or designee
shall provide an opportunity for the public to comment on any renewal
request prior to providing written approval or disapproval of such
request.
(8) In no event will the provisions of paragraph (a)(2), (3), (5),
(6), or (9) of this section remain in effect after March 19, 2030, 21
years after the March 19, 2009 date of publication of the site-specific
rule in this section. Upon termination of paragraphs (a)(2), (3), (5),
(6), and (9) of this section, and except with respect to paragraphs
(a)(1) and (4) of this section, the owner and/or operator shall return
to compliance with the regulatory requirements which would have been in
effect absent the flexibility provided through the site-specific rule
in this section.
(9) In seeking any renewal of the authority granted under or other
requirements of paragraphs (a)(2), (3), (5), and (6) of this section,
the owner and/or operator shall provide a detailed assessment of the
project showing the status with respect to achieving project goals, a
list of problems and status with respect to problem resolutions, and
any other requirements that the Director of the Land, Chemicals and
Redevelopment Division at EPA Region 9 or the Director's designee has
determined are necessary for the approval of any renewal and has
communicated in writing to the owner and operator.
(10) The owner and/or operator's authority to operate the landfill
in accordance with paragraphs (a)(2), (3), (5), (6), and (9) of this
section shall terminate if the Director of the Land, Chemicals and
Redevelopment Division at EPA Region 9 or the Director's designee
determines that the overall goals of the project are not being
attained, including protection of human health or the environment. Any
such determination shall be communicated in writing to the owner and
operator.
* * * * *
[FR Doc. 2021-06901 Filed 4-7-21; 8:45 am]
BILLING CODE 6560-50-P