00-10770. The Territory of the U.S. Virgin Islands; Tentative Determination of Inadequacy of the Virgin Islands Municipal Solid Waste Permit Program; Public Hearings and Public Comment Period

AGENCY:

Environmental Protection Agency .

ACTION:

Proposed rule.

SUMMARY:

Section 4005(c)(1)(B) of the Resource Conservation Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments (HSWA) of 1984, 42 U.S.C. 6945(c)(1)(B) requires States to develop and implement permit programs or other systems of prior approval 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. For RCRA purposes, pursuant to Section 6903(31), 42 U.S.C. 6903(31), the term “State” includes the territory of the Virgin Islands. To implement these statutory provisions, EPA promulgated a State Implementation Final Rule (SIR), 40 CFR Part 239, which provides criteria and procedures for making adequacy determinations of State municipal landfill permit programs.

On October 6, 1993, the U.S. Virgin Islands applied for a determination of program adequacy under section 4005(c)(1)(B) of RCRA. Upon review of the application and certain revisions thereto, EPA on June 16, 1995, published a notice of a tentative determination of adequacy of the Virgin Islands landfill permit program. The notice of tentative determination provided that the Virgin Islands government had committed to amending its existing solid waste regulations so as to conform to federal Part 258 criteria by May, 1996. Two public hearings were subsequently held on the MSWLF application at which EPA received negative comments concerning the Bovoni and Anguilla municipal landfills in the Virgin Islands, which are operated by the government of the Virgin Islands. After further review, EPA requested that the Virgin Islands document the commitment of sufficient resources and budget in order to carry out and sustain improved landfill operations. Thus, provision of an adequate program budget and staff resources, and the promulgation of revised solid waste regulations needed to be accomplished.

Since 1995, EPA has worked with Virgin Islands officials to assist the government in preparing revised solid waste regulations and repeatedly has advised the government of the need to increase the level of resources for its MSWLF permit program. However, the promulgation of revised solid waste regulations by the Virgin Islands government, and the provision of adequate budget and staff resources to carry out program requirements have not occurred to date. Accordingly, by this notice, EPA is now officially promulgating its tentative determination, pursuant to Section 4005(c)(1)(C) of RCRA, that the Virgin Islands municipal landfill permit program is inadequate to assure compliance with the federal landfill criteria.

EPA is providing the public an opportunity to comment on this action, and will also hold two public hearings as described below. If after receipt of public comments and after public hearings to be held in the Virgin Islands, EPA proceeds to a Final Determination of Inadequacy, EPA will then assume enforcement authority for the federal landfill criteria in accordance with RCRA Section 4005(c)(2). Moreover, the Virgin Islands will be denied operational flexibility that is granted approved states, such as utilizing alternate daily cover standards or reducing the frequency of ground water monitoring. In addition, while in unapproved status, since the Virgin Islands is located in a seismic zone, it will be prohibited from siting a new landfill or expanding an existing one.

DATES:

Written comments on today's action must be submitted on or before July 24, 2000. Although RCRA does not require EPA to hold a public hearing on any determination to approve or disapprove a State's MSWLF program, the Region has scheduled two public hearings on this tentative determination. The public hearings have been scheduled, as follows: One public hearing will be held on St. Thomas at 7 p.m. on June 27, 2000 and a second public hearing will be held on St. Croix at 7 p.m. on June 28, 2000. The dates and locations of the public hearings will also be published in the VI Daily News and the St. Croix Avis.

ADDRESSES:

For written comments, commenters should send an original and two copies of their comments to: Carl-Axel P. Soderberg, Director, EPA Region 2, Caribbean Environmental Protection Division, Centro Europa Building, Suite 417, 1492 Ponce De Leon Avenue, San Juan, PR 00907-4127, telephone: [phone] ext. 222. Comments may also be submitted electronically by sending electronic 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 St. Thomas public hearing will be held at the Curriculum Center Conference Room at the Department of Education Curriculum Center, 386 Anna's Retreat (located immediately above the Tutu Fire Station and across from the Seventh Day Adventist Church); the St. Croix public hearing will be held in the Curriculum Center Conference Room at the Department of Education Curriculum Center, 21-22 Hospital Street, Christiansted (located between the Central High School and the St. Croix Territorial Court House along Queens Mary Highway).

Information and background documents concerning the Virgin Islands MSWLF program are available for viewing at the EPA Region 2, Caribbean Environmental Protection Division office located at the Federal Building and U.S. Courthouse, 5500 Veterans Drive, Room 142, St. Thomas, U.S. Virgin Islands 00802, telephone number [phone]; the Enid M. Baa Library & Archives, 20 Dronningens Gade, St. Thomas, Virgin Islands 00802; the Elaine I. Sprauve Library & Museum, Enighed Estate, Cruz Bay, St. John, Virgin Islands 00801; and the Florence Williams Public Library, 49-50 King's Street, Christiansted, St. Croix, Virgin Islands 00820. The background documents include the Virgin Islands MSWLF permit program application; information on the 1995 public hearings concerning the Virgin Islands MSWLF permit program and EPA correspondence with the Virgin Islands Government. The Index to the Administrative Record concerning the Virgin Islands MSWLF program is also available at these locations. Persons who wish to obtain copies of documents from the Administrative Record or who seek additional information, should contact the EPA official listed below.

FOR FURTHER INFORMATION CONTACT:

John Filippelli, RCRA Programs Branch, Division of Environmental Planning and Protection, U.S. EPA Region 2, 290 Broadway, New York, NY 10007-1866, telephone [phone], facsimile [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 or other systems of prior approval to ensure that MSWLFs comply with the Federal Criteria under Part 258. RCRA also requires in Section 4005(c)(1)(C) that EPA determine whether State MSWLF permit programs are adequate to comply with the revised Federal Criteria. To fulfill this requirement, the Agency has promulgated a State Implementation Rule (SIR), 40 CFR Part 239—Requirements for State Permit Program Determination of Adequacy (63 FR 57025, October 23, 1998). Part 239 specifies the minimum requirements which State landfill permit programs must satisfy to be determined to be adequate, including: the state must have legally adopted enforceable standards for new and existing MSWLFs that are technically comparable to EPA's revised MSWLF landfill criteria; the state must have an adequate compliance monitoring program and the legal authority to issue permits or other forms of prior approval to all new and existing MSWLFs in its jurisdiction; the State must provide for public participation in permit issuance and enforcement as required in section 7004(b) of RCRA; the State must also demonstrate that it has sufficient compliance monitoring and enforcement authorities to take specific action against any owner or operator that fails to comply with applicable regulations or its landfill permit.

EPA Regions are authorized to determine whether a State has submitted an “adequate” program based on the statute and the regulations summarized above. EPA expects States to meet all of these requirements for its MSWLF program before it gives full approval to a MSWLF program.

As a general matter, the Agency believes that approvals of state programs have an important benefit. Approved State permit programs provide for interaction between State and the owner/operator regarding site-specific permit conditions. Only those owners/operators located in States with approved permit programs can use the site-specific flexibility provided by Part 258 to the extent that the State permit program allows such flexibility. EPA notes that regardless of the approval status of a State and the permit status of any facility, the federal landfill criteria apply to all permitted and unpermitted MSWLF facilities. EPA also notes that 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 enforcement program.

B. Territory of the U.S. Virgin Islands

On October 6, 1993, the Territory of the U.S. Virgin Islands submitted a program application for adequacy determination. Subsequently, the Virgin Islands made several revised submissions. EPA has reviewed the application and the revised submissions, and on June 16, 1995 published a Federal Register notice of tentative determination that all portions of the U.S. Virgin Islands' Subtitle D program were adequate to provide compliance with the revised Federal Criteria. The June 16, 1995 notice provided that the Virgin Islands expected to revise its solid waste regulations so as to be technically comparable to federal criteria by May, 1996. However, the revised regulations have not as yet been officially promulgated, although substantial preparatory work has been done. In addition, substantial adverse comments on the Virgin Islands' MSWLF permit program were presented during the public comment period and at the public hearings in 1995. EPA subsequently advised the Virgin Islands that it must both demonstrate a commitment of budget and staff resources to enable it to sustain adequate landfill program operations and promulgate revised regulations as prerequisites for obtaining a final EPA determination of program adequacy.

Currently there are two municipal solid waste disposal facilities operating in the U.S. Virgin Islands. One facility is located on St. Thomas and the other on St. Croix. The island of St. John is currently serviced by a transfer station from which the waste is transported to the St. Thomas landfill for disposal. The Virgin Islands Department of Planning and Natural Resources (DPNR) has responsibility for implementing and enforcing solid waste management regulations, including issuing permits, and undertaking inspections and other enforcement activities. The solid waste landfills presently located in the Territory are operated by the Virgin Islands Department of Public Works (DPW). The Anguilla landfill is owned by the Virgin Islands Port Authority while the Bovoni landfill is owned by the government of the Virgin Islands. The DPNR and DPW entered into a Memorandum of Agreement (MOA) dated January 11, 1995 which committed the two agencies to meeting the requirements of 40 CFR Part 258 at the Virgin Islands landfills. This MOA was submitted to the EPA in conjunction with the application for a program adequacy determination. The DPNR Commissioner also advised EPA that no permits would be issued for the establishment of any private solid waste disposal facility until revised regulations for solid waste landfill management were in place. In addition, DPNR committed to issuing a permit to DPW pursuant to the revised regulations once these revised regulations were adopted. EPA reviewed these items as well as the other contents of the Virgin Islands' application when it made its earlier, initial determination of program adequacy.

On August 1 and August 2, 1995, EPA held two public hearings in the Virgin Islands on its tentative approval decision. Public comments were submitted orally at the hearings and in writing to the EPA. Substantial negative comments were received concerning the Virgin Islands' MSWLF program. EPA accordingly delayed making a final determination of adequacy, and in a February 19, 1996 letter to the DPNR Commissioner, the EPA Regional Administrator recommended delaying the final determination of program adequacy until the revised solid waste regulations meeting 40 CFR part 258 were in place, and other issues were resolved. On February 5, 1997, the DPNR Commissioner agreed to the delay, thus giving the Virgin Islands a further opportunity to promulgate revised regulations and obtain adequate solid waste staff and program resources. On April 3, 1997, the EPA Regional Administrator advised the Governor of the need for the Virgin Islands to adopt revised regulations as well as to update the Virgin Islands Attorney General's certificate as to the adequacy and enforceability of such regulations, and to demonstrate sufficient staff and funding to carry out the permit program. In a February 9, 1998 letter, the EPA Deputy Regional Administrator requested that the DPNR Commissioner establish a schedule of activities needed to promulgate revised regulations, secure funding and hire staff to run the program. On April 23, 1999, the EPA Regional Administrator advised the Governor that adequate solid waste management was one of the highest priority environmental problems in the Virgin Islands. Finally, on August 30, 1999, the EPA Regional Administrator advised the Governor that EPA would begin the official process to make the determination that the Virgin Islands' solid waste permit program is not adequate to meet federal part 258 landfill criteria because the essential prerequisites for program approval had not been put in place.

The U.S. Virgin Islands has not met its commitment to promulgate revised regulations meeting the requirements of 40 CFR part 258. Continued delay in promulgating such solid waste regulations, and obtaining funding and hiring staff for the solid waste program have resulted in a continuation of program deficiencies. The two operating municipal solid waste landfills, Bovoni on St. Thomas and Anguilla on St. Croix are substantially out of compliance with federal criteria. Conditions at the Bovoni landfill on St. Thomas have been determined to pose a potential imminent and substantial endangerment to human health and the environment, and have caused EPA and the Virgin Islands government to negotiate an administrative consent order pursuant to RCRA Section 7003 so as to provide immediate remedial action. In addition, the former Susannaberg landfill was not closed in accordance with part 258 requirements.

EPA has provided substantial technical assistance to the Virgin Islands in the form of providing MSWLF operator training for DPNR and DPW staff; performing reviews of regulatory and design documents; awarding solid waste management assistance grants; conducting groundwater and air monitoring at the landfills; and providing numerous technical documents and publications. EPA has also assisted the Virgin Islands in identifying sources of funding potentially available for staff and program activities and for landfill rehabilitation. Despite these efforts, actions have not been taken by the Virgin Islands to resolve critical outstanding deficiencies in its landfill permit program since EPA's tentative approval on June 16, 1995.

EPA will consider all public comments on this tentative determination of inadequacy that are received during the public comment period and during each public hearing. EPA will review all comments, including any comments offered by the Virgin Islands government, and make a final determination on whether or not to approve the Virgin Islands' permit program and will give notice of its decision in the Federal Register. The notice will include a summary of the reasons for the final determination, and responses to all major comments received at the public hearings and during the public comment period.

Administrative Requirements

A. Executive Order 12866: Assessment of Potential Costs and Benefits

Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or 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 and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

B. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any proposed rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small government jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities: (1) A small entity is as defined in Small Business Administration's (SBA) regulations at 13 CFR § 121.201; (2) a small government jurisdiction is a government of a city, town, school district or other special district with a population of less than 50,000; and (3) a small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

The proposed rule will not have a significant economic impact on a substantial number of small entities, since the rule only directly affects the government of the Virgin Islands. The proposed rule will not impose any requirements on small entities. Therefore, no regulatory flexibility analysis has been prepared. Based on the foregoing discussion, I hereby certify that this proposed rule will not have a significant adverse impact on a substantial number of small entities.

C. The Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, as amended, 44 U.S.C. 3501 et seq. As described in the preamble, the proposed rule affects only the government of the Virgin Islands, and is an EPA determination based on information previously submitted by the government of the Virgin Islands in its application for approval of its municipal solid waste landfill permit program, pursuant to 40 CFR parts 239 and 258.

D. The Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995, (UMRA), P.L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with regulatory requirements.

EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector, in any one year. Today's proposed rule concerns an EPA determination with respect to the adequacy of the government of the Virgin Islands municipal solid waste landfill program, pursuant to 40 CFR part 239. Existing Federal and Virgin Islands municipal solid waste regulations remain in effect, and no new Federal mandate is imposed on the Virgin Islands or the private sector under this rule. Section 203 of the UMRA is also inapplicable to this proposed rule because the rule only affects the government of the Virgin Islands and does not contain any regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by E.O. 12866, and because it is an EPA determination concerning a program application from the government of the Virgin Islands Federal with respect to its municipal solid waste landfill permit program.

F. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. No. 104-113, § (d) (15 USC 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

G. Executive Order 13132 (Federalism)

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effect 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.”

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation.

The proposed rule does not have federalism implications. It will not have substantial direct effect 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. Today's proposed rule solely concerns the territory of the Virgin Island, and EPA has made the determination that E.O. 13132 is therefore inapplicable. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule. EPA notes, however, that the proposed rule does not preempt any law or regulation of the government of the Virgin Islands, nor does it impose any requirements that are inconsistent with the fundamental federalism principles contained in Executive Order 13132. Moreover, as the preamble, above, make clear, there has been extensive consultation by EPA with the government of the Virgin Islands concerning its municipal solid waste landfill permit program prior to today's action.

H. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” This proposed rule does not significantly or uniquely affect the communities of Indian tribal governments because there are no federally recognized Indian Tribal governments in the Virgin Islands, and the rule solely affects the government of the Virgin Islands. Accordingly, the requirements of Section 3(b) of Executive Order 13084 do not apply to this proposed rule.

I. Executive Order 12898: Environmental Justice

Under Executive Order 12898 EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for residents of all communities. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and that all people live in clean and sustainable communities.

The Agency believes that today's proposed rule will potentially advance environmental justice causes. The process set in motion by this proposed rule allows all potentially affected segments of the population of the Virgin Islands to participate in public hearings and/or to provide public comment on health and environmental concerns that they feel may arise pursuant to the Agency's proposed action. In addition, the purpose of today's proposed rule is to help achieve compliance with 40 CFR Part 258 municipal solid waste landfill criteria, which will provide direct benefit to residents living near the landfill.

Authority: This proposed rule is issued under the authority of Section 4005 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6945.

Dated: April 19, 2000.

William J. Muszynski,

Acting Regional Administrator, Region 2.