[Federal Register: January 31, 2008 (Volume 73, Number 21)]
[Rules and Regulations]
[Page 5751-5753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja08-13]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 239 and 258
[EPA-R07-RCRA-2006-0878; FRL-8523-2]
Adequacy of Nebraska Municipal Solid Waste Landfill Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action approves Nebraska's Research, Development and
Demonstration (RD&D) permit program and updates to the approved
Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22,
2004, the EPA issued final regulations allowing RD&D permits to be
issued to certain municipal solid waste landfills by approved States.
On September 27, 2006, Nebraska submitted an application to the EPA
seeking Federal approval of its RD&D requirements and to update Federal
approval of its MSWLP Program. On November 16, 2006, the EPA published
direct final and proposed rules to approve the application on January
16, 2007, if adverse comment was not received. EPA received adverse
comment and withdrew the direct final rule on January 16, 2007. This
action addresses the comment and approves the Nebraska application.
DATES: This final determination is effective January 31, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-RCRA-2006-0878. All documents in the docket are listed on
the http://www.regulations.gov web site. Although listed in the index,
some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North
5th Street, Kansas City, Kansas 66101. The Regional Office's official
hours of business are Monday through Friday, 8:00 to 4:30 excluding
Federal holidays. The interested persons wanting to examine these
documents should make an appointment with the office at least 24 hours
in advance.
FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin, EPA Region 7,
Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas
City, Kansas 66101, telephone (913) 551-7666, or by e-mail at
mclaughlin.chilton@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
On March 22, 2004, the EPA issued final regulations allowing RD&D
permits to be issued at certain municipal solid waste landfills (69 FR
13242). This new provision may only be implemented by an approved
State. While States are not required to seek approval for this new
provision, those States that are interested in providing RD&D permits
to municipal solid waste landfills must seek approval from EPA before
issuing such permits. The current request is for approval to issue RD&D
permits. Nebraska received partial approval for 40 CFR part 258
provisions on October 5, 1993 (58 FR 51819). The provision that it
received partial approval for did not include requirements for
groundwater monitoring at small, arid landfills as required by an
opinion by the United States Court of Appeals on February 12, 1992,
which instructed
[[Page 5752]]
EPA to require groundwater monitoring at all landfills. The updated
State rules impose groundwater monitoring at small, arid landfills. The
current request also incorporates the August 7, 1995, rule (60 FR
40105) which modifies the financial assurance criteria; September 25,
1996, rule (61 FR 50413) which relates to groundwater exemptions of
small, arid, remote landfills; November 27, 1996, rule (61 FR 60328 at
60337) which adds financial mechanisms for local governments; and April
10, 1998, rule (63 FR 17706 at 17729) which adds a financial test and
corporate guarantee to financial assurance mechanisms. Approval
procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR
239.12.
On September 27, 2006, Nebraska submitted an application to the EPA
seeking Federal approval of its RD&D requirements and to update Federal
approval of its MSWLP Program. On November 16, 2006, the EPA published
direct final and proposed rules (71 FR 66686 and 71 FR 66722,
respectively) to approve the application on January 16, 2007, if
adverse comment was not received. EPA received adverse comment and
withdrew the direct final rule on January 16, 2007 (72 FR 1670).
B. Response to Comment
The comment was from the GrassRoots Recycling Network (GRRN). The
GRRN objected to Nebraska's effort to implement an RD&D permit program
alleging that the underlying RD&D violates the Resource Conservation
and Recovery Act (RCRA) and the National Environmental Policy Act
(NEPA). The commenter objected to what it claims are inadequacies in
the underlying RD&D rule, namely, an allegedly unlimited number of
permits and an allegedly unlimited program duration.
EPA is proceeding with its approval of the Nebraska program. First,
it should be noted that the timeframe within which challenges to the
Federal underlying RD&D rule may be filed has expired. (See 42 U.S.C.
6976, petitions challenging a RCRA regulation must be filed within 90
days of promulgation.) The GRRN has challenged the rule before the U.S.
Court of Appeals for the D.C. Circuit, which found that GRRN did not
have standing to challenge the rule (GrassRoots Recycling Network v.
EPA, No. 04-1196 (D.C. Cir.)).
Moreover, EPA does not intend to reopen the underlying RD&D rule in
its approval of state programs. The issue before the Agency in this
action is whether Nebraska's submitted RD&D program is adequate under
RCRA and EPA's Subtitle D regulations, but the comment is addressed to
the underlying Federal program. Thus, the comment does not change EPA's
decision to approve Nebraska's submitted RD&D program.
C. Decision
After a thorough review, EPA Region 7 determined that Nebraska's
RD&D provisions and the updated rules for its Municipal Solid Waste
Landfill Permit Program (the August 7, 1995, rule (60 FR 40105) which
modifies the financial assurance criteria; September 25, 1996, rule (61
FR 50413) which relates to groundwater exemptions of small, arid,
remote landfills; November 27, 1996, rule (61 FR 60328, at 60337) which
adds financial mechanisms for local governments; and April 10, 1998,
rule (63 FR 17706, at 17729) which adds a financial test and corporate
guarantee to financial assurance mechanisms) as defined under Nebraska
Title 132--Integrated Solid Waste effective March 7, 2006, are adequate
to ensure compliance with the Federal criteria as defined at 40 CFR
258.1, 258.4, 258.70, 258.74, and 258.75.
D. Statutory and Executive Order Reviews
This action approves State solid waste requirements pursuant to
Resource Conservation and Recovery Act (RCRA) Section 4005 and imposes
no Federal requirements. Therefore, this rule complies with applicable
executive orders and statutory provisions as follows:
1. Executive Order 12866: Regulatory Planning Review--The Office of
Management and Budget has exempted this action from its review under
Executive Order (EO) 12866;
2. Paperwork Reduction Act--This action does not impose an
information collection burden under the Paperwork Reduction Act;
3. Regulatory Flexibility Act--After considering the economic
impacts of today's action on small entities under the Regulatory
Flexibility Act, I certify that this action will not have a significant
economic impact on a substantial number of small entities;
4. Unfunded Mandates Reform Act--Because this action approves pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law, this
action does not contain any unfunded mandate, or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Act;
5. Executive Order 13132: Federalism--EO 13132 does not apply to
this action because this action will not have federalism implications
(i.e., there are no substantial direct effects on States, on the
relationship between the national government and States, or on the
distribution of power and responsibilities between Federal and State
governments);
6. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments--EO 13175 does not apply to this action because it
will not have tribal implications (i.e., there are no substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes);
7. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks--This action is not subject to EO 13045 because
it is not economically significant and is not based on health or safety
risks;
8. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use--This action is not subject to EO 13211
because it is not a significant regulatory action as defined in EO
12866;
9. National Technology Transfer Advancement Act--EPA approves State
programs so long as the State programs meet the criteria delineated in
RCRA. It would be inconsistent with applicable law for EPA, in its
review of a State program, to require the use of any particular
voluntary consensus standard in place of another standard that meets
RCRA requirements. Thus, section 12(d) of the National Technology
Transfer and Advancement Act does not apply to this action;
10. Congressional Review Act--EPA will submit a report containing
this action and other information required by the Congressional Review
Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register.
List of Subjects
40 CFR Part 239
Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Waste treatment and disposal.
40 CFR Part 258
Reporting and recordkeeping requirements, Waste treatment disposal,
Water pollution control.
Authority: This action is issued under the authority of section
2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended,
42 U.S.C. 6912, 6945 and 6949(a).
[[Page 5753]]
Dated: January 18, 2008.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E8-1786 Filed 1-30-08; 8:45 am]
BILLING CODE 6560-50-P