[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Notices]
[Pages 13722-13724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6269]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5171-9]
State of New York: Final Determination of Adequacy of State/
Tribal Municipal Solid Waste Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of final determination of adequacy to fully approve the
New York State Municipal Solid Waste Permit Program.
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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.
The State of New York applied for a determination of adequacy under
section 4005 of RCRA. The components of authority and capability were
contained in New York State's application and its revisions. EPA
reviewed New York State's application, and certain revisions thereto,
and on July 28, 1994, proposed a determination that New York State's
MSWLF permit program is adequate to ensure compliance with the revised
MSWLF Criteria. After consideration of all comments received regarding
the tentative determination of adequacy, EPA is today issuing a final
determination that New York State's program is adequate.
EFFECTIVE DATE: The determination of adequacy for the New York State
shall be effective on March 14, 1995.
FOR FURTHER INFORMATION CONTACT: David Savetsky, U.S. EPA Region II,
Mail Stop 2AWM, Room 1006, 26 Federal Plaza, New York, New York, 10278,
telephone (212) 637-4098.
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
[[Page 13723]] 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)(1) 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.
On September 24, 1993, the State of New York submitted an
application for adequacy determination for New York State's municipal
solid waste landfill permit program. On March 14, 1994, May 10, 1994,
and June 28, 1994, New York made revisions to its original submission.
On July 28, 1994, after reviewing New York State application and the
revised submissions, EPA published a tentative determination of
adequacy for all portions of New York State's program. Further
background on the tentative determination of adequacy appears at 59 FR
38463, July 28, 1993.
Along with the tentative determination, EPA announced the
availability of the application for public comment. New York State's
application for program adequacy determination and its revisions were
available for public review and comment at the New York State
Department of Environmental Conservation, in Albany New York and at the
EPA Region II Library in New York City. The public comment period
commenced on July 28, 1994 and ended on September 13, 1994.
Although RCRA does not require EPA to hold a hearing on any
determination to approve a State/Tribe's MSWLF program, the Region
scheduled two public hearings on this tentative determination. A public
hearing was held in Albany New York and in New York City. A summary of
the comments received, and EPA's responses thereto is contained in the
public comment section of this notice.
On October 9, 1993, New York, acting through the New York State
Department of Environmental Conservation, adopted comprehensive,
revised regulations governing solid waste disposal. These regulations
are patterned after the 40 CFR Part 258 criteria, and are intended to
bring New York into full conformity with the Federal criteria. The New
York State Department of Environmental Conservation has sufficient
authority and responsibility for implementing and enforcing solid waste
management regulations, including a permit program, inspection
authority and enforcement activities.
New York does not have the statutory authority to enforce the MSWLF
permit program on Indian Lands. MSWLFs located on Indian Lands are
subjected to the Federal Criteria.
In addition, in its application, New York states that adequate
technical, support and legal personnel will be assigned to implement
its permit program.
B. Public Comment
A summary of the public comments received on the tentative
determination of adequacy and EPA's responses thereto follows below.
The major comments suggested the Fresh Kills landfill in Staten Island,
New York is illegally operating without a permit and is continuing to
operate under consent orders since 1980. The commentors believed that
this demonstrates the inability of New York to effectively enforce
landfill criteria. A facility not meeting Federal Criteria must be
upgraded in a reasonable time to meet such criteria before or after
approval of the state program. Upgrading can take place concurrent with
or after state program approval. The use of enforcement tools such as
consent orders as a method by which a facility is brought into
compliance is not a basis for disapproving a state program. In fact,
preliminary findings of an EPA study of the Fresh Kills facility
compliance status indicates relatively minor violations currently exist
and the facility exceeds some Federal requirements such as groundwater
monitoring. In fact, we see no loss of enforcement authority by
approving the State program. The State regulatory program will enhance
compliance with Federal Criteria which remain in effect in any case.
EPA believes that the State has the statutory and regulatory
authority to implement and enforce such a program. Many of the numerous
citings of past and or continuing site-specific violations do not
recognize that the State Part 360 regulations underwent a significant
revision which became effective on October 9, 1993, to conform to the
Federal Part 258 Criteria.
Landfill closures in New York State have been primarily a result of
the State enforcement of policies and procedures for compliance with
laws and regulations governing closures of active solid waste
landfills. In 1984, the Commissioner of the New York State Department
of Environmental Conservation formally initiated a landfill closure
strategy to obtain closure of unlined landfills in the State of New
York. Pursuant to the 1984 Landfill Closure Enforcement Directive and
subsequent amendments of 1988, a methodical program was pursued by the
NYSDEC whereby solid waste disposal facility planning and landfill
closures were to be coordinated. This strategy contemplated a process
of consolidation of solid waste disposal into a few regional landfills,
pending planning, design and permitting of new, properly designed
disposal facilities. The State's approach to solid waste compliance by
New York City was in accordance with this strategy, while at the same
time recognizing the need to allow for efficient and economic
transition to sound solid waste management practices by the City.
There were several additional comments. These are addressed in the
responsiveness summary which is made part of the public record.
C. Decision
After reviewing the public comments, I conclude that New York
State's application for adequacy determination meets all of the
statutory and regulatory requirements established by RCRA. Accordingly,
the State of New York is granted a determination of adequacy for all
portions of its municipal solid waste permit program.
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 [[Page 13724]] 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 March 14, 1995. 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 New York State program
are already in effect as a matter of 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 12866
The Office of Management and Budget has exempted this notice from
the requirements of Section 6 of Executive Order 12866.
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 Sections
2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended;
42 U.S.C. 6912, 6945, 6949a(c).
Dated: February 21, 1995.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 95-6269 Filed 3-13-95; 8:45 am]
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