02-4648. The Commonwealth of the Northern Mariana Islands; Full Program Adequacy Determination of State Municipal Solid Waste Landfill Permit Program

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of tentative determination of full program adequacy of the Commonwealth of the Northern Mariana Islands (CNMI) Municipal Solid Waste Landfill Permitting Program, public hearing, and public comment period.

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, 42 U.S.C. 6945(1)(B), requires states to develop and implement permit programs to ensure that municipal solid waste landfills (MSWLFs), which may receive hazardous household waste or conditionally exempt small quantity generator waste, comply with the revised Federal MSWLF Criteria. Section 4005(c)(1)(C) of RCRA requires the Environmental Protection Agency (EPA) to determine whether States have adequate permit programs for MSWLFs. Approval of State permit programs allows the State to tailor permits to include site-specific conditions. Only those owners/operators located in States with approved permit programs can use the site-specific flexibilities provided by 40 CFR part 258 to the extent the State permit program allows such flexibility. EPA notes that, regardless of the approval status of any facility, the federal landfill criteria shall apply to all permitted and unpermitted MSWLF facilities.

The CNMI is defined as a “State” in 40 CFR 258.2. The CNMI has applied for a determination of adequacy under Section 4005(c)(1)(C) of RCRA, 42 U.S.C. 6945(c)(1)(C). EPA Region IX has reviewed the CNMI's MSWLF permit program application and has made a tentative determination that all portions of the CNMI's permit program application are adequate to ensure compliance with the revised MSWLF criteria. The CNMI's application for program adequacy is available for public review and comment during regular business hours at the place(s) listed in the ADDRESSES section below.

Although RCRA does not require EPA to hold a public hearing on a determination to approve any State's MSWLF permit program, the Region has tentatively scheduled a public hearing on this determination. If a sufficient number of persons express an interest in participating in a hearing by writing to the Region IX Office of Pollution Prevention and Solid Waste at the address listed in the ADDRESSES section below or by calling the contact given in the FOR FURTHER INFORMATION CONTACT section below within 30 days of the date of publication of this notice, the Region will hold a hearing in Susupe, Saipan, CNMI. The Region will notify all persons who submit comments on this notice if it appears that there is sufficient public interest to warrant a hearing. In addition, anyone who wishes to learn whether the hearing will be held may call the person listed in the FOR FURTHER INFORMATION CONTACT section below.

DATES:

All comments on the CNMI's application for a determination of adequacy must be received by the close of business on April 29, 2002.

If, and only if, sufficient public interest in having a public hearing is requested on or before March 29, 2002, a public hearing to receive oral and written testimony on EPA's tentative determination will be held on April 29, 2002, from 6:00 p.m. to 8:00 p.m. If EPA determines that more time for receiving testimony is needed, EPA may extend the closing time up to 8:30 p.m. on this date. The hearing, if held, will be April 29, 2002. At the hearing, EPA may limit oral testimony to five minutes per speaker, depending on the number of commenters. Commenters presenting oral testimony must also submit their comments in writing at the hearing on April 29, 2002. The hearing may adjourn earlier than 8:00 p.m. if all of the speakers deliver their comments before that hour. The State will participate in the public hearing, if held by EPA, on this subject.

Requests for a public hearing must be in writing and must be received by the EPA contact shown in this document before the close of business on March 29, 2002, and should include a statement on the writer's reason for wanting a public hearing. EPA will determine, within twelve calendar days of the date by which requests must be received, whether a public hearing is warranted. After twelve days, anyone may contact the EPA person listed in the FOR FURTHER INFORMATION CONTACT section to find out if a public hearing will be held.

ADDRESSES:

Written comments and requests for a public hearing should be sent to Ms. Heidi Hall, Chief, Office of Pollution Prevention and Solid Waste, mail code WST-7, EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. Comments may also be submitted electronically by sending electronic mail (e-mail) through the Internet to: [e-mail]. Comments in electronic format should clearly identify the subject matter. All electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption.

The public hearing, if held, will be at the Joeten-Kiyu Public Library in Susupe, Saipan, CNMI. Copies of the CNMI's application for adequacy determination are available at the following addresses for inspection and copying: CNMI Division of Environmental Quality, Third Floor, Morgen Building, San Jose, Saipan, CNMI, between the hours of 8:00 a.m. and 4:30 p.m., telephone [phone]; and, by prior visiting arrangements, at the EPA Region IX Library, 75 Hawthorne Street, San Francisco, California 94105, between the hours of 9:00 a.m. and 4:00 p.m., telephone [phone] or 415-972-3383 to make visiting arrangements.

FOR FURTHER INFORMATION CONTACT:

Ms. Kelly Doordan, Office of Pollution Prevention and Solid Waste, mail code WST-7, EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105, telephone [phone], or via the Internet: [e-mail].

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 MSWLFs comply with the Federal Criteria under 40 CFR part 258. Subtitle D also requires in Section 4005 (c) (1) (C), 42 U.S.C. 6945 (c) (1) (C), 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 EPA has promulgated the Final State Implementation Rule (SIR), which can be found at 40 CFR part 239. The rule specifies the requirements which State programs must satisfy to be determined adequate.

EPA interprets the requirement for states to develop “adequate” programs for permits or other forms of prior approval and conditions to impose several minimum requirements. First, each State must have enforceable standards for new and existing MSWLFs that are technically comparable to EPA's revised MSWLF criteria. Next, the State must have the authority to issue a permit or other notice of prior approval and conditions to all new and existing MSWLFs in it jurisdiction. The State also must provide for public participation in permit issuance and enforcement, as required in Section 7004 (b) of RCRA, 42 U.S.C. 6974 (b). Finally, the State 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 has submitted an “adequate” program based on the requirements of the SIR. EPA expects States to meet all of these requirements for all elements of a MSWLF program before it gives full approval to a MSWLF program.

B. CNMI

On September 19, 2001 EPA Region IX received the CNMI's MSWLF Permit Program application for adequacy determination. Region IX reviewed the application, submitted comments to the CNMI, and requested supplementary information about the state program implementation. The CNMI addressed EPA's comments, provided the requested additional information, and submitted a revised narrative portion of the final application for adequacy determination on January 4, 2002. Region IX has reviewed the CNMI's final application and has tentatively determined that all portions of the CNMI's MSWLF permit program meet the requirements necessary to qualify for full program approval and ensure compliance with the revised Federal Criteria.

The CNMI has three municipal solid waste dumps that are currently out of compliance with the federal criteria for MSWLFs: the Puerto Rico Dump (PRD) on Saipan, one dump on Tinian, and one dump on Rota. The CNMI has developed a schedule for closure of the PRD and construction of a new MSWLF on Saipan. The federal regulations do not allow location of a landfill in a seismic zone without an approved State program. As the entire island of Saipan is considered a seismic zone, the CNMI intends to utilize the flexibility provisions afforded to approved states under particular circumstances to construct a new MSWLF in a seismic impact zone and to use an alternative landfill liner.

During the application review process, EPA expressed concern about the CNMI's staffing capacity and anticipated schedule for bringing the dumps on Tinian and Rota into compliance with federal criteria. On January 4, 2002, the CNMI sent EPA a supplement to the original application with additional information on CNMI commitments to maintaining adequate staffing levels to oversee the program and to developing integrated solid waste management and dump closure plans for Tinian and Rota.

The public may submit written comments on EPA's tentative determination until April 29, 2002. Copies of the CNMI's application are available for inspection and copying at the locations indicated in the ADDRESSES section of this notice.

EPA will consider all public comments on this tentative determination that are received during the public comment period and during any public hearing, if a hearing is held. Issues raised by those comments may be the basis for a determination of inadequacy for the CNMI's program. EPA will make a final decision on approval of the CNMI's program and will give notice of the final determination in the Federal Register. The notice shall include a summary of the reasons for the final determination and a response to all significant comments.

Section 4005 (a) of RCRA, 42 U.S.C. 6945 (a), provides that citizens may use the citizen suit provisions of Section 7002 of RCRA, 42 U.S.C. 6972, to enforce the Federal Criteria in 40 CFR part 258 independent of any State 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 program approved by EPA should be considered to be in compliance with the Federal Criteria. See 56 FR 50978, 50995 (October 9, 1991).

Administrative Requirements

A. Compliance With Executive Order 12866

Executive Order 12866 requires Office of Management and Budget review of “significant regulatory actions.” Significant regulatory actions are defined as those that (1) have an annual effect on the economy of $100 million or more or adversely affect a sector of the economy, including state, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients; or (4) raise novel legal or policy issues. This tentative decision is not a “significant regulatory action” and is not subject to the requirements of Executive Order 12866.

B. 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.

C. Unfunded Mandates Act

Under Section 202 of the Unfunded Mandates and Reform Act of 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated costs to state or local governments in the aggregate, or to the private sector, of $100 million or more. The EPA has determined that the approval action being promulgated does not include a federal mandate that may result in costs of $100 million or more to either state or local governments in the aggregate, or to the private sector. This federal action approves preexisting requirements under state law, and imposes no new requirements. Accordingly, no additional costs to state or local governments, or to the private sector, result from this action.

D. Executive Order 12875

Executive Order 12875 is intended to develop an effective process to permit elected officials and other representatives of state or local governments to provide meaningful input in the development of regulatory proposals containing significant unfunded mandates. Since this final federal action approves preexisting requirements of state law, no new unfunded mandates result from this action. See also the discussion under C, above, Unfunded Mandates Act.

E. Executive Order 13045

Executive Order 13045, effective April 21, 1997, concerns protection of children from environmental health and safety risks, and applies to regulatory action that is “economically significant” in that such action may result in an annual effect on the economy of $100 million or more. The EPA has determined that the approval action being promulgated will not have a significant effect on the economy. This federal action approves preexisting requirements under state law, and imposes no new requirements. Accordingly, Executive Order 13045 does not apply to this action.

F. Executive Order 12898

Executive Order 12898 requires agencies to consider impacts on the health and environmental conditions in minority and low-income communities with the goal of achieving environmental justice. This tentative determination is consistent with Executive Order 12898.

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: January 23, 2002.

Wayne Nastri,

Regional Administrator, Region 9.