[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31616]
[[Page Unknown]]
[Federal Register: December 23, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5127-4]
New Mexico; Final Determination of Adequacy of State/Tribal
Municipal Solid Waste Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of Final Determination on Application of New Mexico for
Full Program Adequacy Determination.
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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments (HSWA) of 1984, requires States to develop and implement
permit programs to ensure that municipal solid waste landfills (MSWLFs)
which may receive hazardous household waste or small quantity generator
waste will comply with the revised Federal MSWLF Criteria (40 CFR Part
258). RCRA Section 4005(c)(1)(C) requires the Environmental Protection
Agency (EPA) to determine whether States have adequate ``permit''
programs for MSWLFs, but does not mandate issuance of a rule for such
determinations. EPA has drafted and is in the process of proposing a
State/Tribal Implementation Rule (STIR) that will provide procedures by
which EPA will approve, or partially approve, State/Tribal landfill
permit programs. The Agency intends to approve adequate State/Tribal
MSWLF permit programs as applications are submitted. Thus, these
approvals are not dependent on final promulgation of the STIR. Prior to
promulgation of the STIR, adequacy determinations will be made based on
the statutory authorities and requirements. In addition, States/Tribes
may use the draft STIR as an aid in interpreting these requirements.
The Agency believes that early approvals have an important benefit.
Approved State/Tribal permit programs provide interaction between the
State/Tribe and the owner/operator regarding site-specific permit
conditions. Only those owners/operators located in State/Tribes with
approved permit programs can use the site-specific flexibility provided
by Part 258 to the extent the State/Tribal permit program allows such
flexibility. EPA notes that regardless of the approval status of a
State/Tribe and the permit status of any facility, the federal landfill
criteria will apply to all permitted and unpermitted MSWLF facilities.
New Mexico applied for a determination of adequacy under Section
4005 of RCRA. EPA reviewed New Mexico's application and proposed a
determination (58 FR 181, 48312, September 20, 1994), that New Mexico's
MSWLF permit program is adequate to ensure compliance with the revised
MSWLF criteria. EPA is today issuing a final determination that New
Mexico's program is adequate.
EFFECTIVE DATE: The determination of adequacy for New Mexico shall be
effective on December 23, 1994.
FOR FURTHER INFORMATION CONTACT: Andrew Tayrien, Environmental
Engineer, Solid Waste Section, US EPA Region 6, Dallas, Texas 75202,
(214) 665-8546.
SUPPLEMENTARY INFORMATION
A. Background
On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40
CFR Part 258). Subtitle D of RCRA, as amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA), requires States to develop
permitting programs to ensure that facilities comply with the Federal
Criteria under Part 258. Subtitle D also requires in Section 4005 that
EPA determine the adequacy of State municipal solid waste landfill
permit programs to ensure that facilities comply with the revised
Federal Criteria. To fulfill this requirement, the Agency has drafted
and is in the process of proposing a State/Tribal Implementation Rule
(STIR). The rule will specify the requirements which State/Tribal
programs must satisfy to be determined adequate.
EPA intends to approve State/Tribal MSWLF permit programs prior to
the promulgation of STIR. EPA interprets the requirements for States or
Tribes to develop ``adequate'' programs for permits or other forms of
prior approval to impose several minimum requirements. First, each
State/Tribe must have enforceable standards for new and existing MSWLFs
that are technically comparable to EPA's revised MSWLF criteria. Next,
the State/Tribe must have the authority to issue a permit or other
notice of prior approval to all new and existing MSWLFs in its
jurisdiction. The State/Tribe also must provide for public
participation in permit issuance and enforcement as required in Section
7004(b) of RCRA. Finally, EPA believes that the State/Tribe must show
that it has sufficient compliance monitoring and enforcement
authorities to take specific action against any owner or operator that
fails to comply with an approved MSWLF program.
EPA Regions will determine whether a State/Tribe has submitted an
``adequate'' program based on the interpretation outlined above. EPA
plans to provide more specific criteria for this evaluation when it
proposes the State/Tribal Implementation Rule. EPA expects States/
Tribes to meet all of these requirements for all elements of a MSWLF
program before it gives full approval to a MSWLF program.
B. State of New Mexico
On July 20, 1994, New Mexico submitted an application for adequacy
determination for New Mexico's municipal solid waste landfill permit
program. On September 20, 1994, EPA published a tentative determination
of adequacy for all portions of New Mexico's program. Further
background on the tentative determination of adequacy appears at 58 FR
181, 48312 (September 20, 1994). A 30-day public comment period was
held until October 20, 1994. In this notice of tentative determination,
EPA announced that a public hearing would be held if a sufficient
number of people requested a hearing. The Agency received one comment
letter in response to the tentative determination. No requests for a
public hearing were received, therefore, a hearing was not held.
C. Public Comments
EPA received the following comment on the tentative determination
of all portions of adequacy for New Mexico's MSWLF permit program.
One commenter representing a private solid waste management company
recommended that EPA ``condition the award of full program approval
upon the deletion of Sections 108(a) and (b) of the New Mexico solid
waste disposal regulations.'' Essentially, this commenter takes
exception with the household waste disposal exemption provided in these
sections of the New Mexico solid waste management regulations (EIB/
SWMR-4).
EPA believes that the regulations in EIB/SWMR-4 are consistent with
Subtitle D. EPA addresses the issue of backyard disposal in the
criteria for classification of solid waste disposal facilities and
practices, codified in 40 CFR Part 257. In the final rule for the Part
257 Criteria, September 13, 1979 Federal Register (Criteria for
Classification of Solid Waste Disposal Facilities and Practices, Vol.
44, No. 179, 53441), EPA states that ``EPA does not believe that
Congress intended the Subtitle D classification scheme to be
implemented at the household level. RCRA Section 1004(27) refers to
wastes from `community activities.' In addition, the legislative
history indicates at several points that `municipal' wastes are of
concern under Subtitle D. The Act's emphasis on `community' or
`municipal' waste, indicates that the Congress intended to focus on
solid waste management at that level rather than at the household
level. EPA believes that `backyard' practices should be controlled
through State or local nuisance and public health laws.'' It is
important to note that 40 CFR Section 257.3-7 prohibits the open
burning of residential, commercial, institutional or industrial solid
waste except for the infrequent burning of agricultural wastes in the
field. 40 CFR Section 257.3-7 further requires that these infrequent
acts of burning not violate applicable requirements developed under a
State Implementation Plan approved or promulgated by the Administrator
pursuant to Section 110 of the Clean Air Act.
D. Decision
EPA concludes that New Mexico's application for adequacy
determination meets all of the statutory and regulatory requirements
established by RCRA. Accordingly, New Mexico is granted a determination
of adequacy for all portions of its municipal solid waste permit
program. New Mexico's solid waste program does not apply and cannot be
enforced in Indian country in the State. Section 4005(a) of RCRA
provides that citizens may use the citizen suit provisions of Section
7002 of RCRA to enforce the Federal MSWLF criteria in 40 CFR Part 258
independent of any State/Tribal enforcement program. As EPA explained
in the preamble to the final MSWLF criteria, EPA expects that any owner
or operator complying with provisions in a State/Tribal program
approved by EPA should be considered to be in compliance with the
Federal Criteria. See 56 FR 50978, 50995 (October 9, 1991).
Today's action takes effect on the date of publication. EPA
believes it has good cause under section 553(d) of the Administrative
Procedure Act, 5 U.S.C 553(d), to put this action into effect less than
30 days after publication in the Federal Register. All of the
requirements and obligations in the State's/Tribe's program are already
in effect as a matter of State/Tribal law. EPA's action today does not
impose any new requirements that the regulated community must begin to
comply with; nor do these requirements become enforceable by EPA as
federal law. Consequently, EPA finds that it does not need to give
notice prior to making its approval effective.
COMPLIANCE WITH EXECUTIVE ORDER 12291: The Office of Management and
Budget has exempted this notice from the requirements of Section 3 of
Executive Order 12291.
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant to the
provisions of 5 U.S.C. 605(b), I hereby certify that this approval will
not have a significant economic impact on a substantial number of small
entities. It does not impose any new burdens on small entities. This
notice, therefore, does not require a regulatory flexibility analysis.
Authority: This notice is issued under the authority of Section
4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.
Dated: December 6, 1994.
William B. Hathaway,
Acting Regional Administrator.
[FR Doc. 94-31616 Filed 12-22-94; 8:45 am]
BILLING CODE 6560-50-P
