96-15031. Utah; Final Determination of Adequacy of State/Tribal Municipal Solid Waste Permit Program  

  • [Federal Register Volume 61, Number 115 (Thursday, June 13, 1996)]
    [Notices]
    [Pages 30064-30067]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-15031]
    
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    [[Page 30065]]
    
    
    ENVIRONMENTAL PROTECTION AGENCY
    [FRL-5515-6]
    
    
    Utah; Final Determination of Adequacy of State/Tribal Municipal 
    Solid Waste Permit Program
    
    AGENCY: Environmental Protection Agency (Region VIII).
    
    ACTION: Notice of final determination of full program adequacy for 
    Utah's application.
    
    -----------------------------------------------------------------------
    
    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 conditionally exempt 
    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. On January 26, 1996, EPA 
    proposed a State/Tribal Implementation Rule (STIR) (40 CFR Parts 239 
    and 258) 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 States/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 Criteria will apply to all 
    permitted and unpermitted MSWLFs.
        Utah applied for a determination of adequacy under Section 4005 of 
    RCRA. EPA reviewed Utah's application and proposed a determination that 
    Utah's MSWLF permit program is adequate to ensure compliance with the 
    revised MSWLF Criteria. After review of all comments received, EPA is 
    today issuing a final determination that Utah's program is adequate.
    
    EFFECTIVE DATE: The determination of adequacy for Utah shall be 
    effective May 29, 1996.
    
    FOR FURTHER INFORMATION CONTACT: Linda Walters, Pollution Prevention 
    Program (8P2-P2), US EPA Region VIII, 999 18th Street, Suite 500, 
    Denver, Colorado 80202-2466, phone 303/312-6385.
    
    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 proposed 
    a State/Tribal Implementation Rule (STIR)(40 CFR Parts 239 and 258, 
    January 26, 1996). 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 final 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 in the 
    proposed State/Tribal Implementation Rule (STIR). EPA expects States/
    Tribes to meet all of these requirements for all elements of an MSWLF 
    program before it gives full approval to an MSWLF program.
        On September 27, 1993, the EPA Administrator signed the final rule 
    extending the effective date of the landfill criteria for certain 
    classifications of landfills (proposed rule 58 Federal Register 40568, 
    July 28, 1993). Thus, for certain small landfills that fit the small 
    landfill exemption as defined in 40 CFR Part 258.1(f), the Federal 
    Criteria were effective on October 9, 1995, rather than on October 9, 
    1993. The final ruling on the effective date extension was published in 
    the Federal Register October 1, 1993.
        On August 10, 1995, the EPA published a proposed rule to solicit 
    comments on a two-year delay, until October 9, 1997, of the general 
    compliance date of the MSWLF criteria for qualifying small MSWLFs. This 
    will allow EPA time to finalize the proposed alternatives. The final 
    ruling on the delay of the compliance date was published in the Federal 
    Register on October 6, 1995.
    
    B. State of Utah
    
        On July 20, 1993, Utah submitted an application for adequacy 
    determination for the State's MSWLF permit program. On October 8, 1993, 
    EPA published a final determination of partial program adequacy for 
    Utah's program. Further background on the final determination of 
    partial program adequacy appears in 58 Federal Register 52489 (October 
    8, 1993). In that action, EPA approved all portions of the State's 
    MSWLF permit program except Utah's regulations incorporating the 
    Federal financial assurance requirements in 40 CFR Part 258, Subpart G.
        On November 28, 1994, the State of Utah submitted a revised 
    application package for full program adequacy. EPA reviewed Utah's 
    application and tentatively determined that the State's Subtitle D 
    program will ensure compliance with the Federal financial assurance 
    requirements in 40 CFR 258.70 through 258.74.
        During its November 9, 1995 meeting, the Utah Solid and Hazardous 
    Waste Control Board adopted proposed changes in the Utah Solid Waste 
    Permitting and Management Rules
    
    [[Page 30066]]
    
    R315-309, Financial Assurance, as required by 40 CFR Part 258, Subpart 
    G.
        EPA has reviewed Utah's application and has determined that all 
    portions of the State's MSWLF permit program will ensure compliance 
    with the revised Federal Criteria. In its application, Utah 
    demonstrated that the State's permit program adequately meets the 
    location restrictions, operating criteria, design criteria, groundwater 
    monitoring and corrective action requirements, closure and post-closure 
    care requirements, and financial assurance criteria in the revised 
    Federal Criteria. In addition, the State of Utah also demonstrated that 
    its MSWLF permit program contains specific provisions for public 
    participation, compliance monitoring, and enforcement.
    
    C. Public Comment
    
        The EPA received three public comments on the tentative 
    determination of adequacy for Utah's MSWLF permit program.
        The State of Utah, in two comments, requested that EPA re-evaluate 
    language in the tentative determination regarding jurisdiction over 
    ``Indian Country'', especially the use of the term ``former Indian 
    reservation lands''. The commentors requested that EPA approve the 
    State's MSWLF permit program within the State of Utah except for Indian 
    lands. EPA has revised this language in the section below entitled 
    ``Decision''.
        In its application for adequacy determination, Utah has not 
    asserted jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 
    Section 1511. Until EPA approves a State or Tribal MSWLF permitting 
    program, the requirements of 40 CFR Part 258 in Utah for any part of 
    ``Indian Country'' will automatically apply to that area. Thereafter, 
    the requirements of 40 CFR Part 258 will apply to all owners/operators 
    of MSWLFs located in any part of ``Indian Country'' that is not covered 
    by an approved State or Tribal MSWLF permitting program. For further 
    information regarding this issue, see the ``Decision'' section.
        One commentor maintained that use of the proposed STIR as guidance 
    is a violation of the Administrative Procedure Act (APA) requirements 
    that a rule must go through notice and opportunity for comment. EPA 
    does not believe that it is violating requirements of the APA. The 
    Agency is not utilizing the proposed STIR as a regulation which binds 
    either the Agency or the States/Tribes. Instead, EPA is using the 
    proposed STIR as guidance for evaluating State/Tribal permit programs 
    utilizing the proposed STIR and/or other criteria which assure 
    compliance with 40 CFR Part 258.
        In addition, members of the public have an opportunity to comment 
    on the criteria by which EPA assures the adequacy of State/Tribal MSWLF 
    permit programs because the Agency discusses the criteria for approval 
    of a permit program when it publishes each tentative determination 
    notice in the Federal Register. In the tentative determination notice 
    for the State of Utah's permit program, the Agency set forth for public 
    comment the requirements for an adequate permit program (58 FR 42965-
    42967, August 12, 1993).
    
    D. Decision
    
        After reviewing the public comments, I conclude that Utah's 
    application for adequacy determination meets all of the statutory and 
    regulatory requirements established by RCRA. Accordingly, Utah is 
    granted a determination of adequacy for all portions of its MSWLF 
    permit program.
        This approval does not extend to ``Indian Country'', as defined in 
    18 U.S.C. Section 1511, including lands within the exterior boundaries 
    of the following Indian reservations located within or abutting the 
    State of Utah:
    
    1. Gosute Indian Reservation
    2. Navajo Indian Reservation
    3. Northwestern Band of the Shoshone Nation of Utah (Washakie) Indian 
    Reservation
    4. Paiute Indian Tribe of Utah Indian Reservation
    5. Skull Valley Band of Goshute Indians of Utah Indian Reservation
    6. Uintah and Ouray Indian Reservation
    7. Ute Mountain Indian Reservation
    
        EPA is cognizant that the State of Utah and the United States 
    Government differ as to the exact geographical extent of Indian Country 
    within the Uintah and Ouray Indian Reservation and are currently 
    litigating this question in Federal Court. Until that litigation is 
    completed and this question is resolved, EPA will enter into 
    discussions with the Ute Indian Tribe of the Uintah and Ouray Indian 
    Reservation and the State of Utah to determine the best interim 
    approach to managing this program in the disputed area. EPA will notify 
    the public of the outcome of these discussions. In excluding Indian 
    Country from the scope of this approval, EPA is not making a 
    determination that the State either has adequate jurisdiction or lacks 
    jurisdiction over sources in Indian Country. Should the State of Utah 
    choose to seek program approval within Indian Country, it may do so 
    without prejudice. Before EPA would approve the State's program for any 
    portion of Indian Country, EPA would have to be satisfied that the 
    State has authority, either pursuant to explicit Congressional 
    authorization or applicable principles of Federal Indian law, to 
    enforce its laws against existing and potential pollution sources 
    within any geographical area for which it seeks program approval and 
    that such approval would constitute sound administrative practice.
        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 Federal Register 50978, 
    50995 (October 9, 1991).
        This action takes effect on May 29, 1996. 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 with which the regulated community must begin to comply. 
    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 of the Solid Waste Disposal Act, as amended; 42 
    U.S.C. 6912, 6945, 6949(a).
    
    
    [[Page 30067]]
    
    
        Dated: May 16, 1996.
    Max Dodson,
    Acting Regional Administrator.
    [FR Doc. 96-15031 Filed 6-12-96; 8:45 am]
    BILLING CODE 6560-50-P
    
    

Document Information

Effective Date:
5/29/1996
Published:
06/13/1996
Department:
Environmental Protection Agency
Entry Type:
Notice
Action:
Notice of final determination of full program adequacy for Utah's application.
Document Number:
96-15031
Dates:
The determination of adequacy for Utah shall be effective May 29, 1996.
Pages:
30064-30067 (4 pages)
Docket Numbers:
FRL-5515-6
PDF File:
96-15031.pdf