[Federal Register Volume 85, Number 90 (Friday, May 8, 2020)]
[Proposed Rules]
[Pages 27348-27351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09241]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[EPA-R09-RCRA-2018-0568; FRL-10007-02-Region 9]


Tentative Determination To Approve Site Specific Flexibility for 
the Cocopah Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making a 
tentative determination to approve two Site Specific Flexibility 
Requests (SSFRs) from Cocopah Landfill, Inc. (CLI), a Republic Services 
(Republic) company, to close and monitor the Cocopah Landfill. The 
Cocopah Landfill is located within Indian Country on the Cocopah Indian 
Reservation near Somerton, Arizona and was operated by Republic and its 
predecessors from the 1960's to the present. Republic is seeking 
approval from EPA for an alternative final cover and an alternative 
location for the storage of facility records. EPA is now seeking public 
comment on EPA's tentative determination to approve the SSFRs. EPA will 
consider timely comments before making a final determination.

DATES: Comments must be received on or before June 8, 2020. If 
sufficient public interest is expressed by May 26, 2020, EPA will hold 
a virtual public hearing on June 8, 2020 from 6:00 p.m. to 8:00 p.m. If 
by May 26, 2020 EPA does not receive information indicating sufficient 
public interest for a public hearing, EPA will cancel the public 
hearing and provide notice of the cancelled public hearing on http://www.regulations.gov under Docket ID No. EPA-R09-RCRA-2018-0568. If 
there is sufficient public interest for a public meeting EPA will 
announce further details on http://www.regulations.gov under Docket ID 
No. EPA-R09-RCRA-2018-0568 in advance of the hearing. If you are 
interested in attending the public hearing, contact Steve Wall at (415) 
972-3381 to verify that a hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
RCRA-2018-0568 at http://www.regulations.gov, or via email to 
R9LandSubmit@epa.gov. Due to COVID-19, we are not providing facsimile 
or regular mail options, because those 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 you consider to be 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 the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://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.

Table of Contents

I. Legal Authority for This Proposal
II. Background
III. Basis for Proposal
    A. Alternative Final Cover SSFR: Alternative Final Cover System
    B. Records Storage SSFR: Alternative Location for the Storage of 
Facility Records
IV. Additional Findings

I. Legal Authority for This Proposal

    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), 42 U.S.C. 6901 et 
seq., Congress required EPA to establish revised minimum federal 
criteria for Municipal Solid Waste Landfills (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, states are to develop permit programs for facilities that 
may receive household hazardous waste or waste from conditionally 
exempt small quantity generators of hazardous waste, and EPA is to 
determine whether the state's program is adequate to ensure that 
facilities will comply with the revised federal criteria.
    The MSWLF criteria are in the Code of Federal Regulations at 40 CFR 
part 258. These regulations are prescriptive, self-implementing and 
apply directly to owners and operators of MSWLFs. Many of these 
criteria include a flexible performance standard as an alternative to 
the prescriptive, self-implementing regulation. The flexible standard 
is not self-implementing and requires approval by the Director of an 
EPA-approved state MSWLF permitting program.
    However, EPA's approval of a state program generally does not 
extend to Indian Country because states generally do not have authority 
over Indian Country. For this reason, owners and operators of MSWLF 
units located in Indian Country cannot take advantage of the 
flexibilities available to those facilities that are within the 
jurisdiction of an EPA-approved state program.

[[Page 27349]]

However, the EPA has the authority under sections 2002, 4004, and 4010 
of RCRA to promulgate site-specific rules to enable such owners and 
operators to use the flexible 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 refers to such rules as ``Site 
Specific Flexibility Determinations'' and has developed draft guidance 
for owners and operators on preparing a request for such a site-
specific rule, entitled ``Site-Specific Flexibility Requests for 
Municipal Solid Waste Landfills in Indian Country Draft Guidance,'' 
EPA530-R-97-016 (August 1997) (Draft Guidance).

II. Background

    The Cocopah Landfill is located on the Cocopah Indian Reservation 
on property owned by the Cocopah Indian Tribe (Tribe) and is located 
near Somerton, Arizona. The Cocopah Landfill is a commercial MSWLF 
operated by Republic and its predecessors from the 1960's to the 
present. Waste was last received at the Site on June 30, 2000 and 
interim closure construction was completed in 2003 with an interim 3-
foot-thick monolithic soil cover. The Cocopah Landfill property 
encompasses an area of 192 acres of which approximately 138 acres were 
used for placement of waste materials. Disposal operations were 
restricted to two separate units of 105 acres and 33 acres each, 
designated as the North Fill Area and the South Fill Area, 
respectively. A combined total of approximately 2.5 million tons of 
waste are known to have been deposited in the two disposal units.
    Between 2010 and 2016, EPA worked with the Tribe and Republic to 
develop and reach agreement on an overall landfill closure plan. During 
this time, EPA also reviewed the SSFRs to determine whether they met 
technical and regulatory requirements. On September 5, 2017, the Tribe 
submitted Republic's ``Final Closure and Post-Closure Maintenance Plan 
and Site-Specific Flexibility Requests for the Cocopah Landfill'' 
(Final Closure Plan) to EPA, requesting that EPA take appropriate 
action to ensure that the Final Closure Plan and accompanying SSFRs 
satisfy U.S. EPA's requirements. EPA provided final comments on the 
Plan on April 26, 2019, which Republic addressed in an updated Final 
Closure Plan dated November 2019. The Final Closure Plan submitted to 
EPA includes two SSFRs. The requests seek EPA approval to use an 
alternative final cover meeting the performance requirements of 40 CFR 
258.60(a), and approval to use an alternative location for the storage 
of facility records pursuant to 40 CFR 258.29(a).

III. Basis for Proposal

    EPA is basing its tentative determination to approve the SSFRs on 
the Tribe's concurrence, dated September 5, 2017, on the SSFRs as 
included in the Closure Plan, as well as EPA's determination that the 
SSFRs meet the requirements in 40 CFR part 258, and on EPA's 
independent review of the Final Closure Plan.

A. Alternative Final Cover SSFR: Alternative Final Cover System

    The regulations require the installation of a final cover system 
specified in 40 CFR 258.60(a), which consists of an infiltration layer 
with a minimum of 18 inches of compacted clay with a permeability of 1 
x 10-5 cm/sec, covered by an erosion layer with a minimum 
six inches of topsoil. Republic seeks approval for an alternative final 
cover designed to satisfy the performance criteria specified in 40 CFR 
258.60(b); Republic proposes an alternative cover, called an 
evapotranspiration cover, which would consist of two and a half feet of 
native soil to control infiltration covered by six inches of a soil 
gravel mixture to control erosion.
    EPA is basing its tentative determination on a number of factors, 
including: (1) Research showing that the prescriptive, self-
implementing requirements for final covers, comprised of low 
permeability compacted clay, do not perform well in the arid west. The 
clay dries out and cracks, which allows increased infiltration along 
the cracks; (2) Research showing that in arid environments thick soil 
covers comprised of native soil can perform as well or better than the 
prescriptive cover; and (3) Republic's analysis demonstrating, based on 
site-specific climatic conditions and soil properties, that the 
proposed alternative soil final cover will achieve equivalent reduction 
in infiltration as the prescriptive cover design and that the proposed 
erosion layer provides equivalent protection from wind and water 
erosion. This analysis is provided in Appendix A, B, C and M of the 
Final Closure Plan for the Cocopah Landfill dated November 2019.

B. Records Storage SSFR: Alternative Location for the Storage of 
Facility Records

    The regulations at 40 CFR 258.29(a) require that the owner or 
operator of a MSWLF unit must record and retain operating records at or 
near the facility or at an approved alternative location. Republic does 
not have administrative facilities at the Cocopah Landfill where 
records can be maintained. As a result, Republic requested approval to 
store all required documentation relating to the operating record of 
the Cocopah Landfill at the Copper Mountain Landfill (CML), which is 
Republic's closest operating facility to the Cocopah Landfill. The 
address of Copper Mountain Landfill is 34853 East County 12th Street, 
Wellton, Arizona 85356, which is 36 miles from the Cocopah Landfill.
    EPA is basing its tentative determination on factors including: (1) 
The Cocopah Landfill is no longer operational, and Republic does not 
have administrative facilities there; and (2) Republic's proposed 
alternative records storage location, the Copper Mountain Landfill, is 
only 36 miles away.

IV. Additional Findings

    In order to comply with the National Historic Preservation Act, 54 
U.S.C. 100101 et seq., Republic will coordinate with the Tribe to 
arrange for a qualified Native American monitor to be present during 
any work. If buried or previously unidentified cultural resources are 
encountered during project activities, all work within the vicinity of 
the find will cease, and the provisions pursuant to 36 CFR 800.13(b) 
will be implemented. If, during the Landfill closure activities, 
previously undocumented archaeological material or human remains are 
encountered, all work shall cease in the immediate area and a qualified 
archaeologist shall be retained to evaluate the significance of the 
find and recommend further management actions.
    Though no known threatened or endangered species or their habitat 
exist on the site, a preconstruction survey will be conducted prior to 
cover installation to ensure no threatened or endangered species are 
present. Following closure and vegetation restoration activities, the 
Site may become suitable for threatened and endangered species. This 
would be a beneficial effect.
    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.

[[Page 27350]]

    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 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 Republic'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 three 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.'' See also ``EPA Policy for the 
Administration of Environmental Programs on Indian Reservations,'' 
(November 8, 1984) and ``EPA Policy on Consultation and Coordination 
with Indian Tribes,'' (May 4, 2011). EPA consulted with the Tribe 
throughout Republic's development of its Final Closure Plan for the 
Cocopah Landfill. EPA specifically solicits any additional comment on 
this tentative determination from officials of the Tribe.

List of Subjects in 40 CFR Part 258

    Environmental protection, Municipal landfills, Final cover, Post-
closure care, Groundwater monitoring, Reporting and recordkeeping 
requirements, Waste treatment and disposal, Water pollution control.

    Dated: April 23, 2020.
Jeffrey Scott
Director,Land, Chemicals and Redevelopment Division,Region IX.

    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

0
1. The authority citation 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--Closure and Post-Closure Care

0
2. Section 258.62 is amended by adding paragraph (d) to read as 
follows:


Sec.  258.62  Approval of Site-specific flexibility requests in Indian 
Country.

* * * * *
    (d) Cocopah Municipal Solid Waste Landfill--Alternative final cover 
and alternative location for the storage of facility records. This 
paragraph (d) applies to the Cocopah Landfill, a Municipal Solid Waste 
landfill operated by Republic on the Cocopah Indian Reservation near 
Somerton, Arizona.
    (1) In accordance with 40 CFR 258.60(b), the owner or operator may 
replace the prescriptive final cover set forth in 40 CFR 258.60(a), 
with an alternative final cover as follows:
    (i) The owner or operator may install an evapotranspiration cover 
system as an alternative final cover for the 135-acre site.
    (ii) The alternative 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 (2) and provide an equivalent 
protection from wind and water erosion as the erosion layer specified 
in Sec.  258.60(a)(3). Top-deck cover slopes shall have a minimum slope 
of 2%. All side slopes in the South Fill Area shall be regraded to a 
maximum 3 horizontal to 1 vertical (3H:1V). The existing side slope of 
2.5H:1V in the North Fill Area will remain; however, drainage benches 
shall be installed on portions of the slope where the vertical height 
exceeds 50 feet.
    (iii) The final cover system shall consist of a minimum three-feet-
thick multi-layer cover system comprised, from bottom to top, of:
    (A) A minimum 30-inch thick infiltration layer consisting of:
    (1) Existing intermediate cover; and
    (2) Additional cover soil from on-site sources, which, prior to 
placement, shall be wetted to optimal moisture and thoroughly mixed to 
near uniform condition, and the material shall then be placed in lifts 
with an uncompacted thickness of six to eight inches, spread evenly and 
compacted to 90 percent of the maximum dry density, and shall:
    (i) Exhibit a grain size distribution that excludes particles in 
excess of three inches in diameter;
    (ii) Have a minimum fines content (percent by weight passing U.S. 
No. 200 Sieve) of 12 percent for the average of ten consecutive tests; 
and
    (iii) Have a grain size distribution with a minimum of six percent 
finer than five microns for the average of ten consecutive tests; and
    (B) A surface erosion layer comprised of a rock/soil admixture for 
top deck slopes and rock armoring for side slopes. The surface erosion 
layer requirements for top-deck slopes and side slopes are detailed 
below:
    (1) Top deck slope surface erosion layer requirements: The top deck 
slope surface erosion layer shall be a minimum six-inch surface erosion 
layer comprised of a rock/soil admixture. The top deck surface erosion 
layer shall achieve the following gradation specification:
    (i) Exclude particles in excess of three inches in diameter;
    (ii) 40% to 75% passing No. 4 sieve
    (iii) 10% to 50% passing No. 40 sieve
    (iv) Less than or equal to 15% passing No. 200 sieve
    (2) Side slope surface erosion layer: The side slope surfaces 
erosion layer shall consist of a 4-inch thick rock armor underlain by 
an 8 ounce per square yard (oz/sy) non-woven geotextile filter fabric. 
The side slope surface erosion rock armor layer shall achieve the 
following gradation specification:
    (i) Exclude particles in excess of three inches in diameter;
    (ii) 10% to 40% passing No. 4 sieve
    (iii) 0% to 10% passing No. 40 sieve
    (2) In accordance with 40 CFR 258.29(a), the owner operator may 
retain

[[Page 27351]]

all required documentation relating to the operating record of the 
Cocopah Landfill at the administrative offices of Copper Mountain 
Landfill. The address of Copper Mountain Landfill is 34853 East County 
12th Street, Wellton, Arizona 85356.
    (3) The owner or operator shall place documentation demonstrating 
compliance with the provisions of this Section in the operating record.
    (4) All other applicable provisions of 40 CFR part 258 remain in 
effect.

[FR Doc. 2020-09241 Filed 5-7-20; 8:45 am]
 BILLING CODE 6560-50-P


