[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Proposed Rules]
[Pages 2584-2606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-878]
[[Page 2583]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 239 and 258
State/Tribal Permit Program Adequacy Determination: Municipal Solid
Waste Facilities; Proposed Rule
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 /
Proposed Rules
[[Page 2584]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 239 and 258
[FRL-5400-5/EPA/530-Z-95-010]
RIN 2050-AD03
Subtitle D Regulated Facilities; State/Tribal Permit Program
Determination of Adequacy; State/Tribal Implementation Rule (STIR)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule is designed to guide States and Indian
Tribes in developing, implementing, and revising programs to issue and
enforce permits for facilities which landfill discarded materials known
as ``municipal solid waste (MSW)''.
On October 9, 1991, the Environmental Protection Agency (EPA)
published the ``Solid Waste Disposal Facility Criteria,'' a set of
standards prescribing how MSW landfills are to be constructed and
operated. States are to adopt and implement permit programs to ensure
that MSW landfills comply with these standards. EPA is to review the
State permit programs and determine whether they are adequate.
The STIR establishes criteria and procedures which EPA will use to
determine whether the State permit programs are adequate to ensure
compliance with the Solid Waste Disposal Facility Criteria. While the
Disposal Facility Criteria automatically apply to all MSW landfills,
States with permit programs deemed adequate have the authority to
provide some flexibility to landfill owners and operators in meeting
the criteria. To date, using the draft STIR as guidance, EPA has
approved more than 40 state permit programs. This proposal is designed
to minimize disruption of existing state/Tribal programs. Eventual
promulgation of a final STIR is not expected to disrupt approved
programs, and will provide a flexible framework for future program
modifications.
The Resource Conservation and Recovery Act (RCRA) is the legal
basis for the proposed STIR. RCRA requires States to adopt and
implement permit programs to ensure compliance with the Federal
Disposal Facility Criteria and requires EPA to determine the adequacy
of the State permit programs. So that management of MSW is equally
protective on Indian lands, the STIR also gives Indian Tribes the right
to apply for EPA approval of their landfill permit programs.
DATES: Comments on this proposed rule must be submitted on or before
April 25, 1996.
ADDRESSES: Commentors must send an original and two copies of their
comments to: Docket Clerk, mailcode: 5305w, Docket No. F-96-STIP-FFFFF,
U.S. Environmental Protection Agency Headquarters, 401 M Street SW.;
Washington, D.C. 20460. Comments should include the docket number F-96-
STIP-FFFFF. The public docket is located at Crystal Gateway, North #1,
1235 Jefferson Davis Highway, First Floor, Arlington , VA and is
available for viewing from 9 a.m. to 4 p.m., Monday through Friday,
excluding Federal holidays. Appointments may be made by calling (703)
603-9230. Copies cost $0.15/page. Charges under $25.00 are waived.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection
Agency Headquarters, 401 M Street SW.; Washington, D.C. 20460, (800)
424-9346; TDD (800) 553-7672 (hearing impaired); in Washington, D.C.
metropolitan area the number is (703) 412-9810, TDD (703) 486-3323.
For more detailed information contact Mia Zmud, Office of Solid
Waste (mailcode 5306W), U.S. Environmental Protection Agency
Headquarters, 401 M Street SW., Washington, D.C. 20460; (703) 308-7263.
SUPPLEMENTARY INFORMATION: Copies of the following document are
available from the Docket Clerk, mailcode 5305, U.S. Environmental
Protection Agency Headquarters, 401 M Street SW.; Washington, D.C.
20460, (202) 475-9327.
Preamble Outline
I. Authority
II. Background
A. Approach
B. Part 258 Revised Criteria
C. Non-municipal solid waste criteria
D. Rationale for Today's Proposed Rule
E. Part 239 Determination of Permit Program Adequacy
F. Differences from Subtitle C Authorization Process
G. Indian Lands
H. Enforcement
III. Section-by-Section Analysis of 40 CFR Part 239
A. Purpose and Scope (Subpart A)
B. Components of Program Application (Subpart B)
C. Requirements for Adequate Permit Programs (Subpart C)
D. Adequacy Determination Procedures (Subpart D)
E. Changes to Part 258
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
I. Authority
EPA is proposing these regulations under the authority of sections
2002(a)(1) and 4005(c) of the Resource Conservation and Recovery Act of
1976, as amended by HSWA (RCRA or the Act). Section 4005(c)(1)(B)
requires each State to develop and implement a permit program to ensure
that facilities that may receive hazardous household waste or hazardous
waste from conditionally exempt small quantity generators are in
compliance with the Subtitle D Federal revised criteria promulgated
under section 4010(c). Section 4005(c)(1)(C) further directs EPA to
determine whether State permit programs are adequate to ensure
compliance with the Subtitle D Federal revised criteria. Section
2002(a)(1) of RCRA authorizes EPA to promulgate regulations necessary
to carry out its functions under the Act.
II. Background
A. Approach
The regulation of solid waste management historically has been a
State and local concern. EPA fully intends that States/Tribes will
maintain the lead role in implementing the Subtitle D Federal revised
criteria as promulgated. This proposal is consistent with general EPA
policy that places primary responsibility for coordinating and
implementing many environmental protection programs with the States/
Tribes. While a State/Tribe may simply adopt the Federal standards,
they also may choose to take advantage of the significant flexibility
designed into today's proposal.
Following are three illustrations of how today's proposal is
designed to cause a minimum disruption of existing State/Tribal permit
programs.
First, EPA's goal is for States/Tribes to apply for and receive
approval of their Subtitle D permit programs. Today's proposal reflects
this policy by requiring elements of basic authority, rather than
prescriptive programmatic elements. This approach establishes a
framework that allows States/Tribes flexibility in the structure of
their individual permit programs, while requiring that States/Tribes
have the necessary authority to ensure that Subtitle D facilities
comply with the Federal revised criteria. Further, today's proposal
does not define how a State/Tribe must implement the basic elements
required in the Federal revised criteria for Subtitle D facilities and
today's proposal. States/Tribes may use their
[[Page 2585]]
own design standards (e.g., develop an alternative liner design),
performance standards (e.g., specify a performance standard for a liner
design such as setting the maximum allowable contaminant level at a
relevant point of compliance), or a combination of these two
approaches.
Second, in assessing the States'/Tribes' authorities, EPA generally
will defer to the State/Tribal certifications of legal authority and
not ``second guess'' the applicants. However, if EPA receives
information indicating that the applicant's legal certification is
inaccurate, EPA reserves the right to conduct its own review of the
applicant's legal certification and authorities.
Third, a State's/Tribe's guidance documents may be used to
supplement laws and regulations if the State's/Tribe's legal
certification demonstrates that the guidance can be used to develop
enforceable permits which will ensure compliance with the Subtitle D
Federal revised criteria. Thus, in some cases, the specific technical
requirements of the Subtitle D Federal revised criteria need not be
contained in State/Tribal law or regulations. By allowing the States/
Tribes to use guidance in the development of enforceable permits where
allowed by State/Tribal law, today's proposal mitigates the problem of
States/Tribes unnecessarily having to restructure their existing laws/
regulations.
B. Part 258 Revised Criteria
On October 9, 1991, EPA promulgated the Subtitle D Federal revised
criteria for MSWLFs (40 CFR Parts 257 and 258 Solid Waste Disposal
Facility Criteria; Final Rule). These Federal revised criteria
establish minimum Federal standards to ensure that MSWLFs are designed
and managed in a manner that is protective of human health and the
environment. The Part 258 Federal revised criteria include location
restrictions and standards for design, operation, ground-water
monitoring, corrective action, financial assurance, and closure/post-
closure care of MSWLFs.
The 40 CFR Part 258 Federal revised criteria are self-implementing
on their effective date for all MSWLFs within the jurisdiction of the
United States. Every standard in 40 CFR Part 258 is designed to be
implemented by the owner or operator with or without oversight or
participation by a regulatory agency (i.e., through a permit program).
RCRA Section 4005(c)(2)(A) authorizes EPA to enforce 40 CFR Part 258 in
those cases where the Agency has determined the State/Tribal permit
program to be inadequate. RCRA Section 7002 also authorizes citizen
suits to ensure compliance with the Federal revised criteria.1
\1\ Nothing in this preamble or rule proposed today is intended
to affect the extent of a State or Tribe's sovereign immunity to
suit under RCRA.
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The Federal revised criteria for MSWLFs recognize the regulatory
value of the permitting system which provides a mechanism for States/
Tribes to interact with the public and with owners/operators on site-
specific issues before and after permit issuance. Within the bounds
established by authorizing statutes and regulations, permitting
agencies are able to interact with facility owners/operators, provide
opportunity for public review and input and, at the discretion of the
State/Tribe, tailor protective permit conditions and requirements to
facility-specific characteristics. Once EPA has determined that State/
Tribal permit programs are adequate to ensure compliance with 40 CFR
Part 258, the Part 258 Federal revised criteria provide approved
States/Tribes the option of allowing MSWLF owners/operators flexibility
in meeting the requirements of Part 258.
The Part 258 MSWLF regulations thus provide approved States/Tribes
the option of making site-specific determinations regarding MSWLF
design and other requirements of Part 258 under specific conditions.
For example, approved States/Tribes that adopt the Federal performance
standard may allow any final cover design if the owner/operator
demonstrates that the design meets the performance standard of 40 CFR
Part 258. Another example of such broad flexibility is the option to
approve an alternative liner design instead of the prescribed composite
design specified in Sec. 258.40(a)(2), as long as the alternative
design meets the performance standard described in Sec. 258.40(a)(1).
In addition, the flexibility afforded to an approved State/Tribe
allows the application of an alternative liner design on a State/
Tribal-wide basis, so long as that design meets the performance
standard in all locations throughout the State/Tribe. This
demonstration, by necessity, would require the use of fate and
transport modeling to demonstrate that the alternative design could
meet the performance standard in ``worst-case'' scenarios. Where there
is no approved permit program, there is no mechanism by which a
regulatory agency can exercise flexibility in developing facility-
specific conditions and requirements adequate to ensure compliance with
40 CFR Part 258.
C. Non-Municipal Solid Waste Criteria
EPA plans to amend existing regulations to address all non-
municipal solid waste facilities that may receive conditionally exempt
small quantity generator (CESQG) waste. In accordance with a settlement
agreement with the Sierra Club filed with the court on January 31,
1994, the Agency proposed these regulations on June 12, 1995 and will
publish final regulations by July 1, 1996. Sierra Club v. Browner, Civ.
No. 93-2167 (D.DC). Specific requirements relating to the approval of
State/Tribal non-municipal solid waste permit programs needed to
implement these amendments may be included in that rulemaking as
appropriate.
D. Rationale for Today's Proposed Rule
Due to the significant flexibility that is only available in
approved States/Tribes, the Agency made active efforts to encourage
States/Tribes to seek early approval of their MSWLF permit programs.
EPA conducted a pilot program with four States and EPA Regions to
streamline the approval process and obtain early feedback from States
and EPA Regions. The draft STIR was used as guidance in interpreting
the statutory authorities and requirements, in identifying the
necessary components of an application, and in making adequacy
determinations of State/Tribal MSWLF permit programs. These early
efforts by EPA were successful in encouraging States/Tribes to apply
for approval of their MSWLF permit programs. To date, EPA has approved
over 40 State/Tribal MSWLF permit programs and anticipates approval of
the remaining States in the near future.
While EPA has proceeded to approve State/Tribal permit programs
using the draft STIR as guidance, the Agency believes it remains
necessary to promulgate today's proposal to provide a framework for
modifications of approved permit programs, to establish procedures for
withdrawal of approvals allowing ample opportunity for EPA and the
State/Tribe to resolve problems, and to establish the process for
future program approvals (e.g., non-municipal solid waste facilities
that may receive conditionally exempt small quantity generator waste).
The Agency provided opportunities for public comments and public
hearings on the State/Tribal MSWLF permit programs that have been
approved to date and received few significant comments on the criteria
used as a basis for approval. Today's proposal establishes the same
approval procedures and standards used by the Agency in approving those
States/
[[Page 2586]]
Tribes. Therefore, the Agency believes that States/Tribes with approved
permit programs will not have to reapply upon promulgation of today's
proposal in final form.
E. Part 239 Determination of Permit Program Adequacy
1. Approval Procedures for State/Tribal Permit Programs
Today's proposed rule establishes the criteria and process for
determining whether State/Tribal permit programs are adequate to ensure
that regulated facilities are in compliance with the Subtitle D Federal
revised criteria. EPA Regional Administrators will make this
determination.
To secure an EPA determination of adequacy under RCRA section
4005(c), a State/Tribe must submit an application for permit program
approval to the appropriate EPA Regional Administrator for review. This
proposed rule describes the program elements to be included in such an
application and sets forth the criteria EPA will use in determining
whether a State/Tribal permit program is adequate. A more detailed
explanation of what EPA is proposing to require of a State/Tribe
seeking a determination is found in the following sections of this
preamble.
2. Approval Procedures for Partial State/Tribal Permit Programs
In view of the comprehensive nature of Subtitle D Federal revised
criteria, it is likely that some State/Tribal permit programs will meet
the procedural and legal requirements of Part 239 but not all of the
technical requirements of the Subtitle D Federal revised criteria
promulgated under Sec. 4010(c) of RCRA. These State/Tribal programs
would require a few revisions before the entire program could be
approved. As a result, they would need to delay submittal of program
approval applications until the limited number of required statutory,
regulatory, and/or guidance changes were complete. This delay concerns
the Agency, because a delay of the final adequacy determination while
these revisions were being made could place a substantial, and often
unnecessary, financial burden on owners/operators by withholding the
flexibility provided by the Subtitle D Federal revised criteria in
approved States/Tribes.
To mitigate this problem, EPA included procedures for partial
program approval in this proposal. This allows the Agency to approve
those provisions of the State/Tribal permit program that meet today's
proposed requirements and provides the State/Tribe time to make
necessary changes to the remaining portions of its program. As a
result, owners/operators will be able to work with the State/Tribal
permitting agency to take advantage of the Subtitle D Federal revised
criteria's flexibility for those portions of the program which have
been approved. For example, if a State/Tribe does not prohibit the open
burning of municipal solid waste, but the remainder of the program is
approvable, the Agency could partially approve that State/Tribal
program. Under this partial approval, the State/Tribe would be approved
for everything but the open burning provisions. Generally, the open
burning provisions may be enforced through citizen suits against
owners/operators. In addition, where a citizen brings a concern to
EPA's attention, the Agency will respond in an appropriate manner on a
case-by-case basis. In addition to the enforcement authority the Agency
assumes upon determining that a State/Tribal permit program is
inadequate, EPA retains enforcement authority under RCRA Section 7003
to address situations that may pose an imminent and substantial
endangerment to human health or the environment. In addition, EPA may
also exercise enforcement authority under Section 104(e) of the
Comprehensive Environmental Response and Liability Act (CERCLA) in
situations where there is a reasonable basis to believe there may be a
release or threat of release of a hazardous substance, pollutant, or
contaminant.
Section 239.11 of today's proposal allows the Agency to approve
either partial or complete State/Tribal permit programs. EPA intends to
approve partial permit programs only when the State/Tribe has a few
discrete technical requirements to revise. Those States/Tribes that
need to make substantial changes to their permit program are encouraged
to complete all necessary program modifications before submitting an
application for approval. In establishing the partial approval process,
EPA does not intend to create a two-step process by which every State/
Tribe would first gain approval for those parts of their permit program
that are currently adequate and then revise the remainder of the
program. A State/Tribal permit program may be eligible for partial
approval if it meets all the procedural and legal Part 239 requirements
(i.e., application components, enforcement, public participation,
compliance monitoring) but does not meet all of the Part 239 technical
requirements (e.g., requirements in 239.6). States/Tribes applying for
partial approval also must include a schedule, agreed to by the State/
Tribe and the appropriate Regional Administrator, for completing the
necessary changes to the laws, regulations, and/or guidance to comply
with the remaining technical requirements.
Part 239.11(a)(2) of today's proposal asserts that States/Tribes
with partially approved permit programs are approved to implement only
those portions of the technical requirements included in the partial
approval. This means that any flexibility provided by the Subtitle D
Federal revised criteria to approved States/Tribes is not available to
owners/operators unless the partial program approval includes those
technical provisions.
EPA is proposing an expiration date for partial approvals in order
to assure that States/Tribes will pursue full program approval in a
timely manner. As such, the Agency views the partial approval process
as a temporary measure to accelerate State/Tribal program approval. The
Agency believes that providing two years is necessary, because the time
required to make changes in laws, regulations, and/or guidance would
differ on a case-by-case basis. Also, some State legislatures meet on a
biennial basis, and two years would provide States/Tribes additional
time to make required statutory changes. The Agency believes that
allowing two years provides ample time for States/Tribes to execute the
limited changes to their laws, regulations, and/or guidance necessary
to achieve full program approval. However, the Agency believes it would
be counterproductive to determine an entire program inadequate if a
State/Tribe has cause to miss the two-year deadline by a few weeks or
months. For this reason, the Agency is proposing to accommodate State/
Tribal program development by providing a mechanism to allow partial
programs to extend beyond the two-year deadline if the State/Tribe can
demonstrate cause to their EPA Region.
States/Tribes that receive partial approval should submit an
amended application meeting all requirements of Part 239 and have that
application approved within two years of the effective date of the
final determination for partial program adequacy. States/Tribes should
be sensitive to this deadline and submit an amended and complete
application well in advance to allow Regions ample time to provide
opportunities for public participation, to make tentative and final
adequacy determinations, and to publish these determinations in the
Federal Register. If the State/Tribe can demonstrate that it has
sufficient cause for not meeting the two-year deadline, the appropriate
[[Page 2587]]
Regional Administrator may extend the expiration date of the partial
approval. The Regional Administrator will publish the expiration date
extension for the partial approval and a new date for expiration in the
Federal Register.
EPA believes that partial approvals of State/Tribal permit programs
achieve the goals of avoiding disruption of existing State/Tribal
permit programs, providing flexibility to owners/operators as soon as
possible, and ensuring that owners/operators comply with the relevant
technical criteria.
While States/Tribes must have the authority to issue, monitor
compliance with, and enforce permits adequate to ensure compliance with
40 CFR Part 258, the specific operating, design, ground-water
monitoring, and corrective action requirements, as well as the location
restrictions and the other requirements of the Part 258 Federal revised
criteria, need not be contained in State/Tribal law or regulations. A
State's/Tribe's guidance documents may be used to supplement laws and
regulations.
State/Tribal guidance may be used if the State/Tribe demonstrates
in its legal certification that the guidance will be used to develop
enforceable permits which will ensure compliance with 40 CFR Part 258.
Also, guidance only may be used to supplement State/Tribal laws and
regulations; it cannot correct laws and regulations that are
inconsistent with the guidance. For example, if a State's/Tribe's laws
or regulations required three inches of earthen material daily as a
cover, the State/Tribe could not meet the daily cover requirement of 40
CFR Part 258.21 by issuing guidance that owner/operators apply six
inches of earthen material at the end of each operating day. The
narrative description of the State/Tribal program, discussed below in
the section-by-section analysis of today's proposal, must explain how
the State/Tribe will use guidance to develop enforceable permits. This
option gives the States/Tribes added flexibility in meeting the
requirements of Part 239, yet maintains the requirement that States/
Tribes have the authority to ensure MSWLF owner/operator compliance
with Part 258. The flexibility afforded the States/Tribes should help
limit the need to restructure existing State/Tribal laws/regulations.
F. Differences From the Subtitle C Authorization Process
Today's proposed approach for determining the adequacy of State/
Tribal permit programs under Sec. 4005(c) of Subtitle D of RCRA differs
from the current approach taken for authorizing State hazardous waste
programs under RCRA section 3006 of Subtitle C. These differences in
approach reflect differences in the statutory framework of each
Subtitle.
Under Subtitle C, prior to authorization of a State program, EPA
has primary responsibility for permitting of hazardous waste
facilities. Federal law, including the issuance and enforcement of
permits, applies until EPA authorizes a State to operate the State
program in lieu of EPA operating the Federal program. Subtitle C
requires authorized State programs to be at least equivalent to and
consistent with the Federal program and other authorized State programs
and to have requirements that are no less stringent than the Federal
Subtitle C requirements. Once authorized, State programs operate in
lieu of the Federal program and, if Federal enforcement of requirements
is necessary, EPA must enforce the approved State's requirements. EPA
retains enforcement authority under RCRA sections 3008, 3013, and 7003
although authorized States have primary enforcement responsibility.
In contrast, under Subtitle D Congress intended facility permitting
to be a State responsibility. Subtitle D does not specifically
authorize EPA to issue Federal permits. EPA's current role includes
establishing technical design and operating criteria for facilities,
determining the adequacy of State/Tribal permit programs and enforcing
compliance with the Subtitle D Federal revised criteria only after EPA
determines that the State/Tribal permit program is inadequate. Subtitle
D does not provide EPA with enforcement authority in States/Tribes
pending an adequacy determination or in States/Tribes whose permit
programs are deemed adequate by EPA. In addition, Subtitle D does not
provide for State/Tribal requirements to operate ``in lieu of'' the
Subtitle D Federal revised criteria. Therefore, the Subtitle D Federal
revised criteria and State/Tribal requirements operate concurrently
regardless of whether a State/Tribal permit program is deemed adequate
or inadequate. Generally, the Subtitle D Federal revised criteria may
be enforced through citizen suits against owners/operators under
Section 7002 of RCRA even in approved States/Tribes. In addition, where
a citizen brings a concern to EPA's attention, the Agency will respond
in an appropriate manner on a case-by-case basis. In addition to the
enforcement authority the Agency assumes upon determining that a State/
Tribal permit program is inadequate, EPA retains enforcement authority
under RCRA Section 7003 to address situations that may pose an imminent
and substantial endangerment to human health or the environment. In
addition, EPA may also exercise enforcement authority under Section
104(e) of CERCLA in situations where there is a reasonable basis to
believe there may be a release or threat of release of a hazardous
substance, pollutant, or contaminant.
G. Indian Lands
EPA is extending to Indian Tribes the same opportunity to apply for
permit program approval as is available to States. To date, EPA has
approved one Tribal MSWLF permit program and proposed approval for a
second Tribal program using the same review process used in the State
approvals. The draft STIR was used as guidance in making these early
proposals, and the Agency published a notice for each decision in the
Federal Register that included much of the language found in today's
proposed rule (final approval for the Campo Band of Mission Indians was
published on May 1, 1995, 60 FR at 21191; tentative approval for the
Cheyenne River Sioux Tribe was published on April 7, 1994, 59 FR at
16642).
Providing Tribes with the opportunity to apply for approval of
their MSWLF permit programs is consistent with EPA's Indian policy.
This policy, formally adopted in 1984, recognizes Indian Tribes as the
primary sovereign entities for regulating the reservation environment
and commits the Agency to working with Tribes on a ``government-to-
government'' basis to effectuate that recognition. A major goal of
EPA's Indian Policy is to eliminate all statutory and regulatory
barriers to Tribal implementation of Federal environmental programs.
Today's proposal represents another facet of the Agency's continuing
commitment to the implementation of this long-standing policy.
In the spirit of Indian self-determination and the government-to-
government relationship, EPA recognizes that not all Tribes will choose
to exercise this option at this time. Regardless of the choice made,
the Agency remains committed to providing technical assistance and
training when possible to Tribal entities as they work to resolve their
solid waste management concerns.
Under Section 4005, EPA may enforce 40 CFR Part 258 only after it
determines that a State permit program is inadequate. However, Congress
did not specifically address implementation of Subtitle D on Indian
lands.
[[Page 2588]]
1. Authority
States generally are precluded from enforcing their civil
regulatory programs on Indian lands, absent an explicit Congressional
authorization. California v. Cabazon Band of Mission Indians, 480 U.S.
202 (1987). Yet, under RCRA Subtitle D, EPA generally is precluded from
enforcing the Federal revised criteria as well unless EPA determines
that a State or Tribal permit program is inadequate to ensure
compliance with the Federal revised criteria. Furthermore, Congress has
not yet created an explicit role for Tribes to implement the Subtitle D
program, as it has done under most other major environmental statutes
amended since 1986 (Safe Drinking Water Act, CERCLA, Clean Water Act,
Clean Air Act).
There exist three principal approaches for effectively ensuring
comprehensive, flexible, and efficient implementation of the Subtitle D
Federal revised criteria on Indian lands: (1) Allow Tribes to
demonstrate the existence of adequate Subtitle D permit programs in the
same manner as States under today's proposed rule; (2) make
determinations on a case-by-case basis on whether a Tribe or a State
has adequate authority to ensure compliance with Subtitle D Federal
revised criteria on Indian lands; or, (3) make a blanket determination
as appropriate that States lack the authority to implement their
programs on Indian lands, that there are no adequate permit programs in
place on Indian lands, and that EPA may enforce Subtitle D Federal
revised criteria directly on Indian lands in light of this
determination.
EPA prefers the first approach, under which an Indian Tribe may
seek approval by demonstrating the existence of an adequate permit
program in the same manner as a State pursuant to the procedures
specified in today's proposal, including a demonstration of
jurisdiction. Where no adequate permit program is demonstrated, EPA may
enforce the Subtitle D Federal revised criteria directly upon
determination that the Tribal program is not adequate to ensure
compliance with the Subtitle D Federal revised criteria.
Tribes that are seeking approval may opt to enter into a memoranda
of agreement, or other agreement mechanisms, with another governmental
entity (State, Tribe, or local government) to provide additional
necessary expertise or resources to the Tribe. For example, a Tribe may
arrange to use a ground-water monitoring expert the other governmental
entity has on board, rather than hiring a Tribal ground-water
monitoring expert. Even though a Tribe in this case would be relying in
part on another governmental entity's expertise, as it would in any
other contractor or agency relationship, the Tribe would seek approval
of its program and would continue to exercise its permitting authority.
This type of agreement must specify the relevant roles of each party to
the agreement. The Tribe seeking approval would need to meet all other
requirements outlined in this proposed rule and include copies of all
relevant agreements in its application for program approval. In the
context of making adequacy determinations, EPA will review such
agreements to assure that they will ensure compliance with 40 CFR Part
258.
EPA recognizes, however, that there may be circumstances where a
State seeks to assert jurisdiction in Indian Country. Where a State can
demonstrate jurisdiction on Indian lands, the State seeking approval
may propose, as part of its permit program approval application, to
ensure compliance on Indian lands. However, the burden a State must
meet to demonstrate its authority to regulate Subtitle D regulated
facilities on Indian lands is a high one. See, e.g., 53 FR 43080
(October 25, 1988).
EPA does not favor the third approach, because it requires EPA to
step in to enforce the program without consideration of whether the
Tribe can adequately do so. Under this approach, owners/operators of
MSWLFs on Indian lands would not be able to obtain the flexibility and
lower costs available in jurisdictions with approved permit programs.
EPA believes that adequate authority exists under RCRA to allow
Tribes to seek an adequacy determination for purposes of Sections 4005
and 4010. EPA's interpretation of RCRA is governed by the principles of
Chevron, USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not
explicitly stated its intent in adopting a statutory provision, the
Agency charged with implementing that statute may adopt any
interpretation which, in the Agency's expert judgment, is reasonable in
light of the goals and purposes of the statute as a whole. Id. at 844.
Interpreting RCRA to allow Tribes to apply for an adequacy
determination satisfies the Chevron test.
RCRA does not explicitly define a role for Tribes under Sections
4005 and 4010 and reflects an undeniable ambiguity in Congressional
intent. Indeed, the only mention of Indian Tribes anywhere in RCRA is
in Section 1004(13), a part of the ``Definitions'' of key terms in
RCRA. Section 1004(13) defines the term ``municipality'' to mean:
A city, town, borough, county, parish, district or other public
body created by or pursuant to State law, with responsibility for
the planning or administration or solid waste management, or any
Indian tribe or authorized tribal organization or Alaska Native
village or organization[.]
Id. (emphasis added). The term ``municipality'', in turn, is used
in Sections 4003(c)(1)(C), 4008(a)(2), and 4009(a) of RCRA with
reference to the availability of certain Federal funds and technical
assistance for solid waste planning and management activities by
municipalities. Section 4003(c)(1)(C) specifies that States are to use
Subtitle D grant funds to, among others, assist municipalities in
developing municipal waste programs; Sections 4008(a)(2) and 4008(d)(3)
authorizes EPA to provide financial and technical assistance to
municipalities on solid waste management; Section 4009(a) authorizes
EPA to make grants to States to provide financial assistance to small
municipalities. Thus, Congress apparently intended to make explicit
that Indian Tribes could receive funds and assistance when available in
the same manner as municipal governments. However, Congress did not
explicitly recognize any other role for Tribes under other provisions.
There is no accompanying legislative history which explains why Indian
Tribes were included in Section 1004(13) and nowhere else.
EPA does not believe that Congress, by including Indian Tribes in
Section 1004(13), intended to prohibit EPA from allowing Tribes to
apply for an adequacy determination under Subtitle D. First of all, it
is clear that Indian Tribes are not ``municipalities'' in the
traditional sense. Indian Tribes are not ``public bodies created by or
pursuant to State law.'' Indeed, Indian Tribes are not subject to State
law except in very limited circumstances. Cabazon, supra. Indian Tribes
are sovereign governments. Worcester v. Georgia, 31 U.S. (10 Pet.) 515
(1832). There is no indication in the legislative history that Congress
intended to abrogate any sovereign Tribal authority by defining them as
``municipalities'' under RCRA, i.e., that Congress intended Section
1004(13) to subject Indian Tribes to State law for RCRA purposes.
Moreover, it is a well-established principle of statutory construction
that Federal statutes which might arguably abridge Tribal powers of
self-government must be construed narrowly in favor of retaining Tribal
rights. F. Cohen,
[[Page 2589]]
Handbook of Federal Indian Law, 224 (1981); See, e.g., Ramah Navajo
School Board v. Bureau of Revenue, 458 U.S. 832, 846 (1982).
EPA believes that inclusion of Indian Tribes in Section 1004(13)
was a definitional expedient, to avoid having to include the phrase
``and Indian tribes or tribal organizations or Alaska Native villages
or organizations'' wherever the term ``municipality'' appeared, not to
change the sovereign status of Tribes for RCRA purposes. In particular,
the references in Sections 4003(c) and 4009(a) to state ``assistance''
to municipalities does not suggest that Congress intended Indian Tribes
to be subject to State governmental control. Furthermore, given the
limited number of times the term ``municipality'' appears in RCRA, it
does not appear that Congress was attempting to define a role for
Tribes for all potential statutory purposes.
The ambiguity in RCRA regarding Indian Tribes also is evident from
the structure of the 1984 Amendments. As mentioned earlier, Congress
expressed a strong preference for a State lead in ensuring compliance
with the Subtitle D Federal revised criteria, in that Section 4005(c)
allows EPA to enforce the criteria only after a finding of inadequacy
of the State permit program. Yet, the legislative history of the 1984
Amendments does not suggest that Congress intended to authorize States
to implement such programs on Indian lands or that Congress considered
the legal principle that States generally are precluded from such
implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465
(9th Cir. 1985) (RCRA Subtitle C does not constitute an explicit
delegation of authority to States to implement hazardous waste programs
on Indian lands); accord, Nance v. EPA, 745 F.2d 701 (9th Cir. 1981).
Thus, Congress has otherwise put States in a primary role for Subtitle
D permit programs, yet on Indian lands has failed to define how Tribes
participate where States lack authority. EPA believes it necessary to
harmonize the conflicts and resolve the ambiguities created by these
provisions.
EPA concludes that interpreting Sections 4005, 4008, and 4010 to
allow Indian Tribes to seek an adequacy determination is reasonable.\2\
Several factors enter into this determination. First, as discussed in
the previous paragraph, this approach is consistent with Subtitle D,
because it preserves Congressional intent to limit the Federal
government's role in Subtitle D permit programs. Absent the opportunity
for Tribes to seek a determination of adequacy, there would be few or
no adequate permit programs in place on Indian lands (because the State
lacked the authority and the Tribe could not apply for program
approval).
\2\ EPA notes that the arguments set forth below also may apply
to other RCRA programs/statutory sections, including Section 3006
(EPA authorization of State hazardous waste programs), although
there are unique considerations associated with each program. EPA
currently is considering whether to allow Tribes to apply for
authorization to implement other RCRA programs and will revisit the
issue in future Federal Register notices.
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Failure to approve Tribal programs would deny Tribes the option
available to approved States of granting their owners and operators
flexibility in meeting the requirements of the Subtitle D Federal
revised criteria. Under Part 258, the Federal revised criteria would be
implemented without benefit of an EPA approved permit process and EPA
would take enforcement actions as appropriate. With this proposal,
however, Subtitle D regulated facilities on Indian Lands could be under
the jurisdiction of the closest sovereign with permitting and
enforcement authority, the Tribe, rather than the Federal government.
In the case of other environmental statutes (e.g., the Clean Water
Act), EPA has worked to revise them to define explicitly the role for
Tribes under these programs. Yet, EPA also has stepped in on at least
two occasions to allow Tribes to seek program approval despite the lack
of an explicit Congressional mandate. Most recently, EPA recognized
Indian Tribes as the appropriate authority under the Emergency Planning
and Community Right-to-Know Act (EPCRA), despite silence on the Tribal
role under EPCRA. 55 FR 30632 (July 26, 1990). EPA reasoned that since
EPCRA has no federal role to backup State planning activities, failure
to recognize Tribes as the authority under EPCRA would leave gaps in
emergency planning on Indian lands. 54 FR 13000-01 (March 29, 1989).
EPA filled a similar statutory gap much earlier as well, even
before development of its formal Indian Policy. In 1974, EPA
promulgated regulations which authorized Indian Tribes to redesignate
the level of air quality applicable to Indian Lands under the
Prevention of Significant Deterioration (PSD) program of the Clean Air
Act in the same manner that States could redesignate for other lands.
See Nance v. EPA (upholding regulations). EPA promulgated this
regulation despite the fact that the Clean Air Act at that time made no
reference whatsoever to Indian Tribes or their status under the Act.\3\
\3\ Congress ratified EPA's regulation in 1977 by explicitly
authorizing Tribes to make PSD redesignations; the 1990 Amendments
to the Act authorize EPA to allow Tribes to apply for approval to
implement any programs EPA deems appropriate.
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One Court already has recognized the reasonableness of EPA's
actions in filling such regulatory gaps on Indian lands. In Nance, the
U.S. Court of Appeals for the Ninth Circuit affirmed EPA's PSD
redesignation regulations described in the previous paragraph. The
Court found that EPA could reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather than allowing the States to
exercise that authority or exempting Indian lands from the
redesignation process. 745 F.2d 713. The Court noted that EPA's rule
was reasonable in light of the general existence of Tribal sovereignty
over activities on Indian Lands. Id. at 714.
Today's proposal is analogous to the rule upheld in Nance. EPA is
proposing to fill a gap in jurisdiction on Indian lands. As with the
redesignation program, approving Tribal MSWLF permit programs ensures
that the Federal government is not the entity exercising authority that
Congress intended to be exercised at a more local level. Furthermore,
the case law supporting EPA's interpretation is even stronger today
than at the time of the Nance decision. First, the Supreme Court
reaffirmed EPA's authority to develop reasonable controlling
interpretations of environmental statutes. Chevron, supra. Second, the
Supreme Court emphasized since Nance that Indian Tribes may regulate
activities on Indian Lands, including those of non-Indians, where the
conduct directly threatens the health and safety of the Tribe or its
members. Montana v. United States, 450 U.S. 544, 565 (1981).
In the case of Subtitle D regulated facilities, EPA believes that
improperly maintained facilities would not be protective of human
health (including that of Tribal members) and the environment
(including Indian lands). Tribes are likely to be able to assert
regulatory authority over facilities on Indian lands to protect these
interests. Allowing Tribes to seek adequacy would reflect general
principles of Federal Indian law. Thus, as in Nance, EPA believes that
allowing Tribes to apply for program approval reflects the sovereign
authority of Tribes under Federal law.
2. Jurisdiction
To have its Subtitle D permit program deemed adequate by EPA, a
Tribe must
[[Page 2590]]
have adequate authority over the regulated activities. Indian
reservations include lands owned in fee by non-Indians. Pursuant to
Montana v. U.S., 450 U.S. 544 (1981), Tribes have jurisdiction over
Indian lands owned by Indians. However, the extent of Tribal authority
to regulate activities by non-Indians on fee lands has been the subject
of considerable discussion. The test for civil regulatory authority
over non-member owned fee lands within Indian reservations was stated
in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations omitted):
To be sure, Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. A tribe may regulate . .
. the activities of non-members who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. . . . A tribe may also
retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.
In Brendale v. Confederated Tribes and Bands of the Yakima Indian
Nation, 492 U.S. 408 (1989), the Court applied this test. Both the
State of Washington and the Yakima Nation asserted authority to zone
non-Indian real estate developments on two parcels within the Yakima
reservation, one in an area that was primarily Tribal, the other in an
area where much of the land was owned in fee by nonmembers. Although
the Court analyzed the issues and the appropriate interpretation of
Montana at considerable length, the nine members split 4:2:3 in
reaching the decision that the Tribe should have exclusive zoning
authority over property in the Tribal area and the State should have
exclusive zoning authority over non-Indian owned property in the fee
area.
Specifically, the Court recognized Tribal authority over activities
that would threaten the health and welfare of the Tribe, 492 U.S. at
443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun,
J. concurring). Conversely, the Court found no Tribal jurisdiction
where the proposed activities ``would not threaten the Tribe's * * *
health and welfare.'' Id. at 432 (White, J., writing for the Court).
Given the lack of a majority rationale, the primary significance of
Brendale is in its result, which was fully consistent with Montana v.
United States.
In evaluating whether a Tribe has authority to regulate a
particular activity on land owned in fee by nonmembers but located
within a reservation, EPA will examine the Tribe's authority in light
of the evolving case law as reflected in Montana and Brendale and
applicable Federal law. The extent of such Tribal authority depends on
the effect of that activity on the Tribe. As discussed above, in the
absence of a contrary statutory policy, a Tribe may regulate the
activities of non-Indians on fee lands within its reservation when
those activities threaten or have a direct effect on the political
integrity, the economic security, or the health or welfare of the
Tribe. Montana, 450 U.S. at 565-66.
However, as discussed by EPA in the context of the Clean Water Act,
the Supreme Court, in a number of post-Montana cases, has explored
several criteria to assure that the impacts upon Tribes of the
activities of non-Indians on fee land, under the Montana test, are more
than de minimis, although to date the Court has not agreed, in a case
on point, on any one reformulation of the test. See 56 FR 64876, 64878
(December 12, 1991). In response to this uncertainty, the Agency will
apply, as an interim operating rule, a formulation of the Montana
standard that will require a showing that the potential impacts of
regulated activities of non-members on the Tribe are serious and
substantial. See 56 FR at 64878. Thus, EPA will require that a Tribe
seeking RCRA Subtitle D permit program approval demonstrate
jurisdiction, i.e., make a showing that the potential impacts on the
Tribe from solid waste management activities of non-members on fee
lands are serious and substantial.
The choice of an Agency operating rule containing this standard is
taken solely as a matter of prudence in light of judicial uncertainty
and does not reflect an Agency endorsement of this standard per se. See
56 FR at 64878. Moreover, as discussed below, the Agency believes that
the activities regulated under the various environmental statutes,
including RCRA, generally have potential direct impacts on human health
and welfare that are serious and substantial. As a result, the Agency
believes that Tribes usually will be able to meet the Agency's
operating rule, and that use of such a rule by the Agency should not
create an improper burden of proof on Tribes.
Whether a Tribe has jurisdiction over activities by nonmembers will
be determined case-by-case, based on factual, Tribal-specific findings.
The determination as to whether the required effect is present in a
particular case depends on the circumstances.
Nonetheless, the Agency also may take into account the provisions
of environmental statutes and any legislative findings that the effects
of the activity are serious and substantial in making a generalized
finding that Tribes are likely to possess sufficient inherent authority
to control environmental quality in Indian Country. See, e.g., Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 476-77 and nn.6, 7
(1987). The Agency also may rely on its special expertise and practical
experience regarding the importance of proper solid waste management to
the protection of Tribal environments and the health and welfare of
Tribal members. As a result, the reservation-specific demonstration
required of a Tribe may, in many cases, be relatively simple.
The Agency believes that Congressional enactment of RCRA
establishes a strong Federal interest in effective management of solid
waste. For example, Congress has stated that ``the disposal of solid
waste * * * in or on the land without careful planning and management
can present a danger to human health and the environment'' and that
unsound solid waste disposal practices ``have created greater amounts
of air and water pollution and other problems for the environment and
health.'' RCRA Sec. 1002(b)(2), (3), 42 U.S.C. 6901(b) (2), (3).
Congress recognized that potential hazards from mismanagement of solid
waste disposal facilities include ``fire hazards; air pollution
(including reduced visibility); explosive gas migration; surface and
ground-water contamination; disease transfer (via vectors such as rats
and flies); personal injury (to unauthorized scavengers); and,
aesthetic blight.'' House Report to accompany H.R. 14496, September 9,
1976 at 37. EPA has confirmed these Congressional observations.4
\4\ See, e.g., USEPA, OSW, Case Studies on Ground-Water and
Surface Water Contamination from Municipal Solid Waste Landfills--
Criteria for Solid Waste Landfills (40 CFR Part 258) Subtitle D of
RCRA, July 1988, EPA//530-SW-88-040; USEPA, OSW, Operating Criteria
(Subpart C)--Criteria for Solid Waste Landfills (400 CFR Part 258)
Subtitle D of RCRA, July 1988, EPA/530-SW-88-037.
---------------------------------------------------------------------------
EPA notes that, where solid waste affects ground water which has
pathways that allow it to migrate readily, it would be practically very
difficult to separate out the effects of solid waste disposal on non-
Indian fee land within a reservation from those on Tribal portions. In
addition, EPA notes that many of the environmental problems caused by
mismanagement of solid waste (e.g., ground-water
[[Page 2591]]
contamination or the contamination of surface water through
uncontrolled run-off) by their nature present potential direct impacts
that are serious and substantial in areas that are outside the place
where the solid waste activity originally occurred. In other words, any
environmental impairment that occurs on, or as a result of, solid waste
activities by non-members on fee lands within the reservation is likely
to present direct impacts to Tribal environments, health, and welfare
that are serious and substantial. EPA also believes that a
``checkerboard'' system of regulation, whereby the Tribe and State
split up regulation of solid waste on Indian lands, would exacerbate
the difficulties of assuring compliance with RCRA requirements.
In light of the Agency's statutory responsibility for implementing
the environmental statutes, its interpretations of the intent of
Congress regarding Tribal management of solid waste within the
reservation are entitled to substantial deference. Washington Dep't of
Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985); see generally
Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 843-45 (1984).
The Agency also believes that the effects on Tribal health and
welfare necessary to support Tribal regulation of non-Indian activities
on Indian lands may be easier to establish in the context of
environmental regulation than with regard to zoning, which was at issue
in Brendale. There is a significant distinction between land use
planning and environmental regulation of solid waste under RCRA. The
Supreme Court has explicitly recognized such a distinction: ``Land use
planning in essence chooses particular uses for the land; environmental
regulation * * * does not mandate particular uses of the land but
requires only that, however the land is used, damage to the environment
is kept within prescribed limits.'' California Coastal Comm'n v.
Granite Rock Co., 480 U.S. 572, 587 (1987). The Court has relied on
this distinction to support a finding that States retain authority to
carry out environmental regulation even in cases where their ability to
carry out general land use regulation is preempted by federal law. Id.
at 587-589.
Further, management of solid waste serves the purpose of protecting
public health and safety, which is a core governmental function, whose
exercise is critical to self-government. The special status of
governmental actions to protect public health and safety is well
established.5 By contrast, the power to zone can be exercised to
achieve purposes which have little or no direct nexus to public health
and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White, J.)
(listing broad range of consequences of state zoning decision).
Moreover, solid waste may affect ground water, which is mobile, freely
migrating from one local jurisdiction to another, sometimes over large
distances. By contrast, zoning regulates the uses of particular
properties with impacts that are much more likely to be contained
within a given local jurisdiction.
\5\ This special status has been reaffirmed by all nine
justices in the context of Fifth Amendment takings law. See Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n. 20
(1987); id. at 512 (Rehnquist, C.J., dissenting).
---------------------------------------------------------------------------
The process that the Agency will use for Tribes to demonstrate
their authority over non-members on fee lands includes a submission of
a statement in the Tribal legal Certification (section 239.5(c))
explaining the legal basis for the Tribe's regulatory authority.
However, EPA also will rely on its generalized findings regarding the
relationship of solid waste management to Tribal health and welfare.
Thus, the Tribal submission will need to make a showing of facts that
there are or may be activities regulated under RCRA Subtitle D engaged
in by non-members on fee lands within the territory for which the Tribe
is seeking approval, and that the Tribe or Tribal members could be
subject to exposure to solid waste from such activities through, e.g.,
ground water, surface water, soil, and/or direct contact. The Tribe
must explicitly assert jurisdiction, i.e., make a showing that improper
management of solid waste by non-members on fee lands could have direct
impacts on the health and welfare of the Tribe and its members that are
serious and substantial. Once a Tribe meets this initial burden, EPA
will, in light of the facts presented by the Tribe and the generalized
statutory and factual findings regarding the importance of proper solid
waste management in Indian country, presume that the Tribe has made an
adequate showing of jurisdiction over non-member activities on fee
lands, unless an appropriate governmental entity (e.g., an adjacent
Tribe or State) demonstrates a lack of jurisdiction on the part of the
Tribe.
The Agency recognizes that jurisdictional disputes between Tribes
and States can be complex and difficult and that it will, in some
circumstances, be forced to address such disputes by attempting to work
with the parties in a mediative fashion. However, EPA's ultimate
responsibility is protection of human health and the environment. In
view of the mobility of environmental problems, and the interdependence
of various jurisdictions, it is imperative that all affected sovereigns
work cooperatively for environmental protection.
3. Permit Program Approval
EPA wishes to emphasize that Tribes are not required to seek
approval of their Subtitle D permit programs. Today's proposed rule
states that a Tribe may, by submitting an application for EPA review,
seek approval of its permit program. If the Tribe does not wish to seek
adequacy, it simply need not submit an application for that purpose.
This is in contrast to the requirement of Section 4005(c)(1)(B), which
requires States to adopt and implement adequate permit programs. EPA
does not believe it should impose a mandatory duty on Tribes to adopt
and implement permit programs simply because some Tribes may seek and
receive a determination of adequacy. Given that Congress has not
explicitly defined the Tribal role under Subtitle D, EPA doubts that
Congress intended to impose a mandatory duty on all Tribes. The
decision of whether or not to seek approval is an individual Tribal
determination based upon a number of factors such as whether the
flexibility available to approved programs offers the Tribe any
advantage and whether the Tribe has the infrastructure and resources to
apply for and administer such a program.
Generally, Tribes that opt to seek program approval must meet the
same approval criteria EPA requires States to meet. Today's proposal
recognizes the uniqueness of Tribes and Indian lands, however, and
includes appropriate requirements in certain sections of the proposed
rule. For example, due to the lack of clarity of Tribal boundaries (or
lands over which the Tribe asserts jurisdiction) in some cases, the
proposed rule requires Tribes to include a map or legal description of
these lands. A more detailed explanation of the requirements Tribes
must meet to be deemed adequate by EPA follows.
Under the Clean Water Act, Safe Drinking Water Act, CERCLA, and the
Clean Air Act, Congress has specified certain criteria by which EPA is
to determine whether Tribes should be allowed to seek program approval.
These criteria generally require that: (1) The Tribe be recognized by
the Secretary of the Interior; (2) the Tribe has an existing government
exercising substantial governmental duties and powers; (3) the Tribe
has adequate civil regulatory jurisdiction over the subject matter and
entities to be regulated; and
[[Page 2592]]
(4) the Tribe is reasonably expected to be capable of administering the
federal environmental program.
Today's proposal recognizes the importance and fully agrees with
the substance of these criteria. Therefore, EPA has integrated the four
criteria used in other statutes into today's proposed State/Tribal
Implementation Rule and has not established a pre-approval process for
Indian Tribes. Under proposed Section 239.4(g), a Tribe seeking
approval of its permit program would address three of the above
criteria in its Narrative Description. As proposed in Section 239.5(c),
the Tribe would address the fourth criterion, adequacy of civil
regulatory jurisdiction, in its Legal Certification.
The process EPA is proposing for Tribes to make this showing
generally is not an onerous one. The Agency has simplified its process
for determining Tribal eligibility to administer environmental programs
under several other environmental statutes. See 59 FR 64339 (December
14, 1994) (``Treatment as a State (TAS) Simplification Rule''). The
proposed process for determining eligibility for RCRA Subtitle D
Programs parallels the simplification rule.
Generally, the fact that a Tribe has met the recognition or
governmental function requirements under another environmental statute
allowing for Tribal assumption of environmental programs or grants
(e.g., the Clean Water Act, Safe Drinking Water Act, Clean Air Act)
will establish that the Tribe meets those requirements for purpose of
RCRA Subtitle D permit program approval. To facilitate review of Tribal
applications, EPA therefore requests that the Tribe, in responding to
proposed Section 239.4(g), demonstrate that it has been approved for
``TAS'' (under the old ``TAS'' process) or has been deemed eligible to
receive authorization (under the simplified process) for any other
program. If a Tribe has not received ``TAS'' approval or has not been
deemed eligible to receive authorization for any other program, the
Tribe must demonstrate, pursuant to proposed Section 239.4(g), that it
meets the recognition and governmental function criteria described
above. Discussion on how to make these showings can be found at 59 FR
64339 (December 14, 1994).
Section 239.2 of today's proposal defines Tribes to mean any Indian
Tribe, band, nation, or other organized group or community which is
recognized by the Secretary of the Interior or Congress and which
exercises substantial governmental duties and powers. While the
definition of Tribes in today's proposal does not explicitly include
Alaska Native Villages, Alaska Native entities (e.g., villages) may
apply for permit program approval. Alaska Native Villages that are
Federally-recognized Tribes should not be excluded per se from seeking
EPA program approval, although EPA does not mean to imply that it has
determined that any village possesses the adequate civil regulatory
authority to operate a permit program. Rather, such a determination
would be made on a case-by-case basis. Alaska Native Villages that
demonstrate that their permit programs meet the jurisdictional capacity
and other requirements of today's proposal will be deemed adequate.
EPA believes that the Agency must make a separate determination
that a Tribe has adequate jurisdictional authority and administrative
and programmatic capability before it approves each Tribal permit
program. Thus, today's proposal requires, under proposed Section
239.5(c), that a Tribe seeking program approval provide an analysis of
jurisdictional authorities in the Tribal Legal Certification. The legal
certification must include a map or legal description of the lands over
which the Tribe asserts jurisdiction and documents supporting the
Tribe's assertion of jurisdiction. In addition, as noted above, if the
Tribe is asserting jurisdiction over solid waste activities conducted
by non-members on fee lands within Reservation boundaries, it must
explicitly show in its submission that the activities of non-members on
fee lands regarding solid waste could have direct effects on the health
and welfare of the Tribe that are serious and substantial.
Finally, capability is a determination that will be made on a case-
by-case basis. Ordinarily, the information provided in the application
for RCRA Subtitle D permit program approval submitted by any applicant,
Tribal or State, will be sufficient. For example, today's proposal
requires both States and Tribes to discuss the staff resources
available to carry out the program. Section 239.3 requires that States/
Tribes list the number of Subtitle D regulated facilities under their
jurisdiction and discuss staff resources available to carry out and
enforce the program. However, EPA may request, in individual cases,
that a Tribe provide additional narrative or other documents showing
that the Tribe is capable of administering the program for which it is
seeking approval. See 59 FR 44339 (December 14, 1994).
4. Financial Assurance for Tribally owned MSWLFs
Part 258 exempts States that are MSWLF owner/operators from the
financial assurance requirements contained in 40 CFR Part Section
258.74. While today's proposal extends to Tribes the same opportunity
to apply for permit program approval as it does to States, EPA has no
basis for believing that Indian Tribes are exactly like States in terms
of their financial capabilities. Thus, EPA is proposing that the
financial assurance requirement contained in 40 CFR Sec. 258.74 remain
applicable to Tribes.
EPA considered, during the development of 40 CFR Part 258, whether
to exempt Tribes from financial responsibility requirements and whether
Tribes have the requisite financial strength and incentives to cover
the costs of closure, post-closure care, and corrective action for
known releases. The Agency found that, due to the variation among
Tribes in terms of size, financial capacity, and function performed,
exempting all Tribes from the requirements would provide insufficient
protection of human health and the environment. Requiring all Tribes to
demonstrate financial assurance should encourage appropriate advanced
planning for the costs of closure, post-closure care, and corrective
action for known releases by these entities. See 56 FR 51106-07
(October 9, 1991).
The Agency does not believe that the financial assurance
requirements generally will be burdensome to Tribes due to the
relatively small part of the total cost of compliance with today's
proposal imposed by the financial assurance requirements. Mechanisms
that could be used to make this demonstration, such as trust funds,
surety bonds, and letters of credit, are discussed in 40 CFR Part
258.74. The Agency is developing a special financial test for local
governments that also may be utilized by Tribes (proposed on December
27, 1993, 58 FR at 68353). Financially strong Tribes, like financially
strong municipalities, will be able to comply with the requirement
using the local government financial test. EPA intends to issue the
financial assurance test for local governments in October 1995, well
before the effective date of the financial assurance requirement (April
9, 1997).
EPA solicits comment on whether today's proposal incorporates the
appropriate criteria and procedures in general for determining whether
a Tribe's permit program should be deemed adequate by EPA. EPA also
[[Page 2593]]
invites comment on appropriate terms for Tribal positions equivalent to
State positions, such as Governor, Attorney General, Agency, and
Director.
H. Enforcement
Approved States/Tribes have primary responsibility for ensuring
compliance with the Subtitle D Federal revised criteria through the
enforcement element of their permit programs. Because RCRA does not
give EPA the authority to take enforcement actions in approved States/
Tribes, adequate State/Tribal enforcement authorities are crucial to
ensuring compliance. Under RCRA 4005(c)(2)(A), the Agency has the
authority to enforce the Subtitle D Federal revised criteria where it
determines the State/Tribal permit program to be inadequate.
Independent of any governmental enforcement program, citizens may
seek enforcement of the Subtitle D Federal revised criteria by means of
citizen suits against owners/operators under Section 7002 of RCRA.
Section 7002 provides that any person may commence a civil action on
his or her own behalf against any person who is alleged to be in
violation of any permit, standard, regulation, condition, requirement,
prohibition, or order which has become effective pursuant to RCRA. The
self-implementing Subtitle D Federal revised criteria constitute the
basis for enforcement actions through potential citizen suits against
facilities that fail to comply. In addition, where a citizen brings a
concern to EPA's attention, the Agency will respond in an appropriate
manner on a case-by-case basis. In addition to the enforcement
authority the Agency assumes upon determining that a State/Tribal
permit program is inadequate, EPA retains enforcement authority under
RCRA Section 7003 to address situations that may pose an imminent and
substantial endangerment to human health or the environment. In
addition, EPA may also exercise enforcement authority under Section
104(e) of CERCLA in situations where there is a reasonable basis to
believe there may be a release or threat of release of a hazardous
substance, pollutant, or contaminant.
Unlike Subtitles C and I of RCRA, the statute does not provide that
State programs deemed adequate by EPA operate in lieu of the Federal
program. Absent such a statutory provision, the Subtitle D Federal
revised criteria are applicable to all Subtitle D regulated facilities,
regardless of whether EPA has approved the State/Tribal permit program.
Violation of the Subtitle D Federal revised criteria may subject the
violator to a citizen suit in Federal court. In the event of a citizen
suit against an owner/operator permitted by an approved State/Tribe,
however, EPA expects the owner/operator who complies with the
requirements of an approved State's/Tribe's permit program will be
found by Federal courts to have complied with the requirements in the
Subtitle D Federal revised criteria. EPA expects this result because
EPA will have reviewed and explicitly approved the State's/Tribe's
design or performance standard approach as ensuring compliance with the
Subtitle D Federal revised criteria.
This citizen suit authority under RCRA is an important addition to
State/Tribal and Federal enforcement which EPA believes will help
ensure compliance with Subtitle D Federal revised criteria. For
example, the citizen suit authority provides an incentive for owners
and operators to comply with the Subtitle D Federal revised criteria.
In addition, citizens may bring action against a State (to the extent
permitted by the eleventh amendment to the Constitution) for failure to
develop and implement an adequate permit program as required by RCRA
Section 4005(c)(1)(B). (Such suits would not be appropriate against
Indian Tribes, who are not specifically required to comply with RCRA
Section 4005.)
III. Section-by-Section Analysis of 40 CFR Part 239
The following sections of this preamble include discussions of the
major issues and present the rationale for the specific regulations
being proposed today. The preamble is organized in a section-by-section
sequence for ease of reference.
A. Purpose and Scope (Subpart A, Secs. 239.1 and 239.2)
Sections 239.1 and 239.2 outline the purpose and scope of today's
proposal and provide definitions of key terms used in the requirements.
Today's proposal specifies the requirements that State/Tribal permit
programs must meet to be determined adequate to ensure that Subtitle D
facilities regulated under RCRA section 4010(c) comply with the
Subtitle D Federal revised criteria. The proposed rule also sets forth
the procedures EPA will follow in determining the adequacy of State/
Tribal permit programs. Nothing in today's proposal precludes States/
Tribes from requiring more stringent levels of protection than those
required by the Subtitle D Federal revised criteria. The definitions
proposed in Sec. 239.2 are consistent with definitions in other RCRA
regulations where appropriate. For this Part, the Agency defines
``permit'' to include other systems of prior approval and conditions
(e.g., licenses). The Agency is proposing this definition to be
consistent with RCRA Sec. 4005(c) which requires States to ``adopt and
implement a permit program or other system of prior approval and
conditions'' and to accommodate existing State/Tribal programs that
function as ``permit'' programs but are not so designated.
B. Components of a Permit Program Application (Subpart B, Secs. 239.3-
239.5)
1. State/Tribal Permit Program Application (Sec. 239.3)
Section 239.3 of today's proposed rule identifies the components
that the State/Tribe must include in its program application to obtain
an adequacy determination under this Part. Under the proposed rule, a
State/Tribe must submit an application containing the following: (1) A
transmittal letter requesting permit program approval, (2) a
description of the State/Tribal permit program, (3) a written legal
certification demonstrating that the State/Tribal authorities cited in
the permit program application are fully enacted and effective, (4)
copies of all applicable State/Tribal laws, regulations and guidance
that the State/Tribe will use to ensure that Subtitle D regulated
facilities comply with the Subtitle D Federal revised criteria, and (5)
copies of any Tribal-State agreements if a Tribe and State have
negotiated agreements for the implementation of the Subtitle D permit
program on Indian lands. Copies of all applicable State/Tribal laws,
regulations, and guidance or other policy documents submitted with the
State's/Tribe's application will be used by EPA to evaluate the
adequacy of a State/Tribal program's scope and technical requirements.
A transmittal letter signed by the State/Tribal Director must
accompany the official State/Tribal application. If more than one
State/Tribal agency has implementation responsibilities, the
transmittal letter must designate a lead agency and be jointly signed
by all State/Tribal agencies with implementation responsibilities or by
the State Governor/Tribal authority exercising powers substantially
similar to those of a State Governor. This letter is the State's/
Tribe's formal request for determination of adequacy. The designation
of a lead agency will provide EPA with a single point of contact in the
State/Tribe and will facilitate communication between EPA and the
State/Tribe. Under today's proposal, EPA only will approve adequate
programs with jurisdiction
[[Page 2594]]
throughout a State/Tribe. Independent sub-State or sub-Tribal agencies
that do not have jurisdiction throughout the State/Tribe are not
eligible for adequacy determinations but can have implementation roles
as outlined in the next section.
2. Narrative Description of a State/Tribal Program (Sec. 239.4)
Under proposed Sec. 239.4, any State/Tribe that seeks approval for
its Subtitle D permit program must submit a narrative description of
the State/Tribal permit program as part of its application. The
narrative description provides an overview of the State/Tribal permit
program and demonstrates how the program meets the statutory
requirement to ensure that owners/operators comply with the Subtitle D
Federal revised criteria under RCRA section 4010(c). The narrative must
demonstrate that the State/Tribal program ensures the protection of
human health and the environment through the implementation of permit
standards that ensure compliance with the Subtitle D Federal revised
criteria.
The narrative description is the component of the application
wherein the State/Tribe describes how its permit program satisfies the
requirements of Subpart C of today's proposed rule. The specific
elements of the program narrative which must be included in a State's/
Tribe's application and are being proposed today are listed in
Sec. 239.4 and are described briefly below. The narrative must include
a discussion of the jurisdiction and responsibilities of all State/
Tribal and local agencies implementing the permit program. The
narrative also must provide a description of State/Tribal procedures
for permitting, compliance monitoring, and enforcement as specified in
Secs. 239.6 through 239.9 of today's proposal and any applicable State-
Tribal agreements.
Many State, Tribal, and local agencies have begun to address the
Subtitle D Federal revised criteria, and the Agency does not wish to
disrupt these on-going efforts. The nature of the problem and the work
involved in implementing the regulatory program dictate that the actual
day-to-day work take place at the State, Tribal, and local levels.
Therefore, today's proposal does not require implementation only by
State/Tribal agencies with State/Tribal-wide jurisdiction and
authorities. Rather, EPA is allowing sub-State/Tribal agencies an
implementation role where lead State/Tribal agencies demonstrate in the
application for permit program approval that the local agencies will
ensure compliance and will operate under State/Tribal-wide authorities.
The Agency encourages States/Tribes to work closely with local
implementing agencies and provide oversight so that problems, such as
local conflicts of interest, are prevented.
The program narrative also must provide a discussion of how the
State's/Tribe's permit program will provide for the permitting of new
and existing Subtitle D regulated facilities to ensure compliance with
the Subtitle D Federal revised criteria. Under today's proposal, new
Subtitle D regulated facilities must have permits prior to construction
and operation. States/Tribes may meet this requirement with a multi-
stage permitting process (e.g., issuing a permit to construct and a
separate permit to operate) if all requirements relevant to each stage
are incorporated into the permit for that stage and if new Subtitle D
regulated facilities have permits incorporating all the requirements of
the Subtitle D Federal revised criteria before operating. If a State/
Tribe uses a multi-stage permitting process it must ensure that the
public participation elements of today's proposal in Sec. 239.6(a) and
Sec. 239.6(b) are met during each stage.
Strategies for ensuring that existing Subtitle D regulated
facilities are permitted to ensure compliance are likely to vary
depending on the composition of the regulated community in a State/
Tribe and on whether the State/Tribe has a pre-existing permit program.
Among the strategies a State/Tribe may wish to consider are: (1)
Putting existing facilities on a schedule to receive a permit where no
permits have yet been issued; (2) scheduling review of existing
permits; (3) scheduling closure of existing facilities that are
unlikely to come into compliance with new requirements; or (4) a
combination of these approaches. Regardless of which strategy is
selected, eventually all facilities in approved States/Tribes must
receive permits that ensure compliance with the Subtitle D Federal
revised criteria or they must close.
The total number of regulated facilities within the State/Tribal
jurisdiction must be indicated in the narrative. EPA believes that
information pertaining to the number of facilities within the State/
Tribal jurisdiction will be useful in assessing whether the State's/
Tribe's available resources are adequate to ensure compliance. As
explained below, however, resource information is not likely to be a
central factor in the determination of State/Tribal permit program
adequacy.
Finally, the program narrative must address the staff resources
that the State/Tribe has available to carry out its program. The Agency
has not proposed specific resource and staffing requirements for
approved programs due to the site-specific nature of ensuring
compliance with the Subtitle D Federal revised criteria. Each State/
Tribe will have different resource requirements and strategies for
ensuring compliance. The Agency intends to allow States/Tribes
flexibility in determining the best use of their resources. Such
information is not likely to be a central factor in the determination
of State/Tribal permit program adequacy. However, EPA intends that, in
certain cases (e.g., where EPA determines that State/Tribal resources
clearly are insufficient), this information may be used to make a
determination of inadequacy. The resource estimates will not be judged
with any upper or lower bounds for approval or disapproval, yet EPA
wants to ensure that funding and staffing exist.
2.a. MSWLF Permit Program Approval
The total number of MSWLFs within the State/Tribal jurisdiction
that received municipal solid waste on or after October 9, 1991, must
be indicated in the narrative. The October 9, 1991, date was chosen,
because MSWLFs receiving waste after this date must, at a minimum,
comply with the final cover requirements in 40 CFR Part 258.60(a)(2).
The MSWLFs included in this number are those units which may receive
hazardous household waste or conditionally exempt small quantity
generator hazardous waste. Land application units, surface
impoundments, injection wells, or waste piles, as those terms are
defined under Part 257.2, do not have to be addressed in the narrative
for approval of MSWLF permit programs.
3. State/Tribal Legal Certification (Sec. 239.5)
Section 239.5 of the proposed rule would require any State/Tribe
that seeks a determination of adequacy to submit a written statement
from the State/Tribal Attorney General certifying that the laws,
regulations, and guidance cited in the State's/Tribe's permit program
application are fully enacted and fully effective when the State/Tribal
permit program is approved. The State/Tribal legal certification serves
as the foundation for ensuring that the State/Tribal permit program has
adequate authority to ensure compliance with the Subtitle D Federal
revised criteria and to meet the requirements of this rule.
If guidance is to be used to supplement statutes and regulations,
the State/Tribal legal certification must state that the State/Tribe
has the authority to
[[Page 2595]]
use guidance to develop enforceable permits which will ensure
compliance with the Subtitle D Federal revised criteria and that the
guidance was duly issued in accordance with State/Tribal law. Guidance
only may be used to supplement State/Tribal laws and regulations; it
cannot correct laws and regulations that are inconsistent with the
Subtitle D Federal revised criteria. The narrative description of the
State/Tribal program must explain how the State/Tribe will use guidance
to develop enforceable permits. The Agency emphasizes that guidance is
not a substitute for regulations and statutes and that the applicant
must have the necessary authorities to ensure compliance with the
Subtitle D Federal revised criteria.
This certification may be signed by the independent legal counsel
for the State/Tribe, rather than the Attorney General or equivalent
Tribal official, provided that such counsel has full authority to
represent independently the lead State/Tribal Agency in court on all
matters pertaining to the State/Tribal program.
Applicants seeking approval of permit programs on Indian lands also
must include in the legal certification an analysis of the applicant's
authority to regulate all facilities covered by the relevant Subtitle D
Federal revised criteria on Indian lands. The applicant shall include:
a map or legal description of the Indian lands over which the applicant
asserts jurisdiction and a copy of all documents such as constitutions,
by-laws, charters, executive orders, codes, ordinances, and/or
resolutions which support the applicant's assertions of authority.
States asserting jurisdiction over Indian lands also must submit the
same information, as well as copies of applicable State-Tribal
agreements.
To facilitate greater flexibility in the approval process, the
Agency intends to allow legal certifications that cite statutes, rules,
or guidance that are still in the legislative or rulemaking process and
are not yet fully enacted or fully effective. The Agency will make
tentative determinations of adequacy based on these types of legal
certifications but will request copies of the revised laws and
regulations and a revised legal certification stating all laws and
regulations are fully enacted and fully effective prior to any final
adequacy determination by EPA. It may occur that the statutes,
regulations, or guidance originally submitted with the application are
modified so that they no longer ensure compliance with the Subtitle D
Federal revised criteria. Should this happen, the Regional
Administrator will publish a new tentative adequacy determination in
the Federal Register to provide for adequate public participation,
including an opportunity for the public to provide comments.
C. Requirements for Adequate Permit Programs (Subpart C, Sec. 239.6-
239.9)
Under Sec. 239.6-239.9 the Agency is proposing requirements for
State/Tribal permit programs to ensure that all new and existing
Subtitle D facilities which are subject to regulation under RCRA
section 4010(c) have a permit and comply with the Subtitle D Federal
revised criteria. Strategies for permitting existing facilities are
discussed in section B.2 above. Section 239.6 of the proposed rule
requires States/Tribes to have legal authority to require permits
ensuring compliance with the Subtitle D Federal revised criteria. A
State/Tribe must have adequate authority to collect all information it
needs to issue permits that implement the technical requirements.
Sections 239.7 through 239.9 of the proposed rule outline the
minimum components of an adequate compliance monitoring and enforcement
program to ensure compliance with the Subtitle D Federal revised
criteria. In general, the proposed rule requires that States/Tribes
have the authority to effectively ensure and enforce ongoing compliance
with their approved State/Tribal permit requirements. These sections
describe the general legal and procedural program elements that are
necessary: compliance monitoring authorities, enforcement authorities,
and provisions for public intervention in civil enforcement
proceedings.
The rule does not prescribe specific permitting procedures or
enforcement and compliance monitoring activity levels or tasks. In
proposing these requirements, EPA is emphasizing elements of basic
authority, rather than detailed programmatic elements. This emphasis
allows sufficient State/Tribal flexibility while requiring that the
approved State/Tribal programs have adequate authorities and procedures
that will allow them to take action as needed to ensure compliance with
the technical requirements. A detailed discussion of the permitting,
compliance, and enforcement provisions of today's proposal follows.
1. Permitting Requirements (Sec. 239.6)
The Agency recognizes public involvement in permit decisions as an
essential component of an effective permit program. In light of the
recognized importance of public participation, EPA is requiring that
the permit application process must provide for public review of and
input to permit documents containing the applicable site-specific
design and operating conditions and must provide for consideration of
comments received and notification to the public of the final permit
decision.
The Agency believes that it is essential for an effective permit
program to provide opportunities for public involvement in permit
decisions made after the initial permit issuance (e.g., permit
modifications). States/Tribes must provide a full description of their
public participation procedures, including procedures for permit
actions after initial permit issuance, in the narrative and include a
copy of the procedures in the permit program application.
The public participation requirements are intended to ensure that
approved permit programs avail the public of needed information and the
opportunity to provide input on decisions affecting the management of
regulated Subtitle D facilities located in their community. Although
EPA is not proposing prescriptive public participation requirements,
EPA expects the States/Tribes to have comprehensive and effective
procedures for public involvement in key permitting decisions, in
accordance with RCRA Section 7004(b)(1).
The Agency believes that it is particularly important to provide
for review and comment (including the opportunity for public hearings
or meetings) on permits. It also is important to provide public notice
and sufficient time for the public to review technical, often complex,
permit documents. In addition, EPA has found that notice of
opportunities for public review of and input to key post-permit
decisions (e.g., significant permit modifications) is essential to an
effective public participation program. While some States/Tribes may
distinguish between minor permit actions (e.g., increasing the gas
monitoring frequency) and major permit actions (e.g., selecting a
corrective action remedy), the public should be involved in key
decisions which affect their health and their community. For example,
public notice of remedial actions and opportunity to comment on the
selection of remedies is recommended.
EPA believes the ultimate success of a permit program depends in
large part on the effectiveness of a State's/Tribe's public
participation program. The additional up-front time a State/Tribe takes
involving the public in key permit decisions will result in long-term
improvements to the permit program.
[[Page 2596]]
While post-permit issuance public participation procedures will not be
a determining factor in an adequacy determination, EPA is concerned
with ensuring effective public participation. To that end, if, after
reviewing the State's/Tribe's public participation narrative and
procedures, the Regional Administrator determines that the State's/
Tribe's procedures could be improved, he/she will direct Regional staff
to work with the State/Tribe to improve the effectiveness of its public
participation procedures.
States/Tribes also must demonstrate that they have the authority to
require permit conditions that ensure compliance with the Subtitle D
Federal revised criteria. Section 239.6 outlines the authorities
States/Tribes must have for their permit programs to be deemed
adequate.
In order to demonstrate that they will ensure compliance with the
Subtitle D Federal revised criteria, States/Tribes must describe and
explain substantive differences between the State/Tribal requirements
and the Subtitle D Federal revised criteria. States/Tribes may, in any
case, impose requirements which are more stringent than the Federal
requirements.
1.a. Permitting Requirements for MSWLFs
As discussed earlier in the Approach section of today's proposal,
States/Tribes may use any combination of design and performance
standards as long as the State/Tribal standards ensure compliance with
the Subtitle D Federal revised criteria for MSWLFs. Where 40 CFR Part
258 has a performance standard (e.g., Subpart B Location Restrictions),
the State/Tribe may use any performance standard that is at least as
stringent as the Federal performance standard. The State/Tribe also may
use its own design standard or a combination of a performance standard
and a design standard which achieves the Federal performance standard.
Where Part 258 has both a performance standard and design standard
(e.g., section 258.21--cover material requirements), the State/Tribe
need only demonstrate technical comparability with one of the
standards. For example, if the State/Tribe requires MSWLF owners and
operators to use a specific daily cover material that the State/Tribe
demonstrates to the satisfaction of the Regional Administrator meets
the Federal performance standard of Part 258.21 (i.e., controlling
disease vectors, fires, odors, blowing litter, and scavenging without
presenting a threat to human health and the environment), the Regional
Administrator may accept that design as adequate. States/Tribes also
may use design or performance standards that the Regional Administrator
deems to be clearly more stringent than those found in Part 258.
EPA has received a number of questions concerning the Agency's
standard for determining the adequacy of the design portion of a
state's permit program. In Subpart D of 40 CFR Part 258, the Agency
promulgated both a performance standard (section 258.40(a)(1)) and a
uniform composite liner requirement (sections 258.40(a)(2) and
258.40(b)). Under the performance standard provision, a new MSWLF unit
or a lateral expansion of an existing unit must be constructed using a
design approved by the Director of an approved state, and this design
must ensure that concentration values listed in Table 1 of section
258.40 (Maximum Contaminant Levels (``MCLs'')) will not be exceeded at
the relevant point of compliance, as specified by the approved State
Director under section 258.40(d).
Section 258.40(c) sets forth criteria for the Director of an
approved state to utilize in evaluating designs. Section 258.40(d)
provides that the relevant point of compliance shall be no more than
150 meters from the waste management unit boundary and shall be located
on land owned by the owner of the MSWLF unit. This section also
establishes the factors which the Director of an approved state must
consider in determining what the relevant point of compliance should
be.
As the Agency stated when the MSWLF final rule was promulgated,
EPA's approach to state program approval recognizes the traditional
lead role that states take in implementing landfill standards and
protecting ground water. 56 FR 50994 (Oct. 9, 1991). More specifically,
EPA stated that, ``[i]n selecting a design to meet this performance
standard, an approved State may adopt its own performance standard, it
may use the rule's specific liner design, or it may use any design it
determines would be capable of preventing contamination of ground water
beyond the drinking water standards [the MCLs].'' Id.
In evaluating the design requirements for new units and lateral
expansions in State permit programs, EPA has provided states with
various approaches for developing adequate programs. For example,
States can develop design requirements that only include a performance
standard that is at least as stringent as the performance standard in
40 CFR section 258.40(a)(1), i.e., not exceeding the MCLs at the
relevant point of compliance. In such States, the Director could
approve alternative designs on a site-specific basis as long as the
alternative design satisfied the performance standard. The vast
majority of the 44 State/Tribal permit programs which EPA has approved
as adequate have included a performance standard that is at least as
stringent (in certain cases more stringent, e.g., by specifying a
relevant point of compliance closer than 150 meters from the unit
boundary) than the performance standard in section 258.40(a)(1). EPA
believes that state adoption of a design performance standard that is
at least as stringent as the one adopted in the MSWLF rule will ensure
that owners and operators of new MSWLF units and lateral expansions
will comply with the design requirements of the revised criteria.
Except as specified in 40 CFR section 258.40(e), i.e., in situations
where an unapproved state determines that an alternative liner meets
the performance standard and submits a petition to EPA, the Agency
never intended to review and/or approve alternative liner designs on a
site-specific basis.
EPA has also approved State programs as being adequate under RCRA
section 4005(c)(1)(C) if the State has adopted one alternative design
or various liner designs which have been shown to satisfy the
performance standard in 40 CFR section 258.40(a)(1) in all locations in
the State. In these situations, states may perform modeling and
associated analysis to show that the alternative design(s) satisfy the
performance standard contained in 40 CFR section 258.40(a)(1). The
Agency has issued technical guidance which provides states and the
public information as to how such modeling and analysis can be done. In
approving such state alternative designs, EPA has ensured that the
modeling done by the state and any done by the Agency was contained in
the public record for review and comment. If the modeling and analysis
show that the performance standard in 40 CFR section 258.40(a)(1) will
be met in the various locations throughout the state, then the Agency
believes the State's alternative design(s) will ensure compliance with
the revised criteria, and, thus, is adequate under RCRA section
4005(c)(1)(C). EPA has approved at least six state permit programs
which incorporate these alternative design(s) on a state-wide basis.
States are not required to utilize one particular model to show
that an alternative liner design will satisfy the performance standard
on a state-wide basis. In fact, EPA's technical guidance document
identifies a number of models that States may use to assess alternative
[[Page 2597]]
designs. In certain situations, however, e.g., where a state adopts a
state-wide double composite liner design which is clearly more
stringent than the MSWLF single composite design set forth in 40 CFR
258.40(b), EPA believes that modeling and associated analysis may not
be necessary.
States may also adopt a combination of a performance standard that
is at least as stringent as the performance standard in section
258.40(a)(1) and either the composite liner design contained in
sections 258.40(a)(2) and 258.40(b) or alternative designs (discussed
above) that meet the performance standard of ensuring that the MCLs
will not be exceeded at the relevant point of compliance. In such
states, owners and operators of facilities have maximum flexibility in
constructing new units and lateral expansions of existing units, while
still ensuring that the design standards in Part 258 are satisfied.
2. Requirements for Compliance Monitoring (Sec. 239.7)
Section 239.7 requires States/Tribes to demonstrate the authority
to require compliance monitoring and testing. Paragraph (a) requires
that the State/Tribe have the authority to obtain all relevant
compliance information. More specifically, the proposed rule requires
that the State/Tribe have the authority to: obtain any and all
information from an owner or operator necessary to determine whether
the owner/operator is in compliance with the State/Tribal program
requirements; conduct monitoring or testing to ensure that owners/
operators are in compliance with the State/Tribal program requirements;
and enter any site or premises subject to the permit program or in
which records relevant to the operation of the regulated facilities or
activities are kept. A State/Tribe also must demonstrate that its
compliance monitoring program provides for inspections adequate to
determine compliance with State/Tribal program requirements.
Finally, a State/Tribe must demonstrate that its compliance
monitoring program provides mechanisms and processes to: verify the
accuracy of information submitted by owners or operators; ensure proper
consideration of information submitted by the public; verify adequacy
of methods (including sampling) used by owners or operators in
developing that information; and produce evidence admissible in an
enforcement proceeding.
EPA believes that these compliance monitoring authorities and
procedures are central to a State's/Tribe's ability to ensure
compliance with the Subtitle D Federal revised criteria. Monitoring and
testing programs help ensure that States/Tribes are able to detect
permit violations and collect the necessary evidence to support case
development and enforcement actions. These authorities play an integral
role in the overall determination of adequate permit programs.
The compliance monitoring requirements proposed today are designed
to ensure that approved State/Tribal representatives have the
authorities and procedures to conduct facility inspections and obtain
information necessary to determine owner/operator compliance with
approved State/Tribal permit programs. These authorities and procedures
provide a basis for State/Tribal agencies to effectively take
enforcement actions and help ensure that the regulated community
complies with applicable requirements.
3. Requirements for Enforcement Authority (Sec. 239.8)
Section 239.8 outlines enforcement authority requirements that are
necessary for adequate State/Tribal permit programs. A strong State/
Tribal enforcement presence is critical to ensuring compliance. The
State/Tribe must have the legal authority to take specific actions
against any owner/operator that fails to comply with the approved
State's/Tribe's requirements. Each of these actions is discussed in
detail below.
Paragraph 239.8(a) requires that States/Tribes have the ability to
use an administrative or court order to restrain any person from
conducting an activity that threatens human health or the environment.
Under proposed paragraph 239.8(b), States/Tribes must have the
authority to sue in court to enjoin any party from violating State/
Tribal program statutes, regulations, orders, or permits. Paragraph
239.8(c) requires that States/Tribes demonstrate the authority to sue
in a court of competent jurisdiction to recover civil penalties for
violations of permit or order conditions as well as for failure to
comply with laws and regulations.
Although the rule being proposed today does not require that
States/Tribes have authority to assess criminal penalties, other State/
Tribal-delegated programs, such as programs under the Clean Water Act,
do require this authority. In fact, there are at least 30 States which
already have criminal authority for enforcement of municipal solid
waste requirements.6
\6\ Review of State Enforcement Powers and Authorities Under
RCRA Subtitle D: Final Report. U.S. Environmental Protection Agency,
March 31, 1987.
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The Agency solicits comment on whether the rule should require that
States/Tribes have criminal penalty authority for their permit
programs. The Agency realizes that such a criminal requirement could
raise impediments to Tribal permit program approval. Federal law bars
Indian Tribes from criminally trying or punishing non-Indians in the
absence of a treaty or other agreement to the contrary. Oliphant v.
Suquamish Indian Tribe 435 U.S. 191 (1978). In addition, the Federal
Indian Civil Rights Act prohibits any Indian court or tribunal from
imposing any criminal fine greater than $5,000 (25 U.S.C. 1302(7)). To
address this problem, EPA has traditionally asserted that it would
exercise criminal enforcement authority where the Tribe is incapable of
doing so pursuant to a Memorandum of Agreement (MOA) between EPA and
the Tribe specifying procedures for referral of cases. See, e.g., 40
CFR 123.34. The Agency is interested in receiving comments on employing
the ``MOA referral'' approach for Tribal MSWLF permit programs and any
other suggestions as to how Tribes could meet a criminal penalty
authority requirement in light of the limitations on their authority to
assert criminal jurisdiction over non-Indians on Tribal lands.
4. Intervention in Civil Enforcement Proceedings (Sec. 239.9)
Today's proposal provides that State/Tribal civil enforcement
proceedings must ensure adequate opportunity for public participation
through either of two options: (1) authority to allow intervention as a
right; or, (2) assurances that the State/Tribal authority will provide
notice and opportunity for public comment in all proposed settlements
of civil enforcement actions, investigate and provide responses to
citizen complaints about violations, and not oppose citizen
intervention when permissive intervention is allowed by statute, rule,
or regulation.
Each of these options separately provides an adequate opportunity
for public participation. Thus, States/Tribes need only provide one of
the options. The options ensure that the opportunity for public
participation in civil enforcement proceedings is provided with minimal
intrusion into the States'/Tribes' judicial systems. The purpose for
the intervention requirement is
[[Page 2598]]
outlined below followed by a detailed discussion of the two options.
The purpose of providing public participation in the decision
making process is to promote public involvement in the enforcement of
Subtitle D Federal revised criteria. Without intervention requirements,
citizens may be precluded from participating in civil enforcement
proceedings even if they have pertinent information that would support
State/Tribal enforcement cases. Also, citizens that have an interest in
or that may be affected by the outcome of the enforcement action may
not be able to intervene in enforcement proceedings.
Citizen intervention provisions are mandatory for other EPA
programs, such as the Underground Storage Tank, Hazardous Waste,
Underground Injection Control, and National Pollutant Discharge
Elimination System programs. EPA first required citizen intervention as
a result of the decision in Citizens for a Better Environment v.
Environmental Protection Agency, 596 F.2d 720 (7th Cir. 1979). That
decision interpreted section 101(e) of the Federal Water Pollution
Control Act Amendments (FWPCA) of 1972 to require EPA to establish
State program guidelines and evaluate State programs to ensure that
there is public participation in the enforcement of the Clean Water
Act. This principle has been extended to RCRA, because the language of
FWPCA section 101(e) is quite similar to RCRA section 7004(b)(1).
Section 7004 of RCRA requires EPA and the States to provide for,
encourage, and assist with public participation in the development,
revision, implementation, and enforcement of any regulation, guideline,
information, or program under RCRA.
Under today's proposal, the State/Tribe would be required to
provide for intervention using either of two options. The first option,
paragraph 239.9(a), requires that the State/Tribe allow intervention by
any citizen having an interest that is or may be adversely affected.
Under this option, the State/Tribe allows intervention as a right in
any civil action to enforce this Part. The second option requires the
State/Tribe to assure that it would: provide opportunity for public
involvement or comment on all proposed civil settlements; respond to
citizen complaints about violations; and not oppose citizen action when
intervention is legally allowed. The public involvement or comment
requirement of this last option may be satisfied by a variety of means:
from a formal notice and hearing to less formal public review.
D. Adequacy Determination Procedures (Subpart D, Secs. 239.10-239.12)
1. Adequacy Determination Procedures (Sec. 239.10)
To encourage early and close working relationships between the
States/Tribes and the EPA Regions, approval authority has been
delegated to EPA's Regional Administrators. EPA Regional Offices will
review State/Tribal applications to determine if a State's/Tribe's
application is complete and whether the State/Tribal permit program
meets the requirements of this Part.
For those States/Tribes that have submitted a permit program
application, the Regional Administrator will have 30 days to make an
administrative review of each application and request additional
information from the State/Tribe or notify the State/Tribe that the
application is administratively complete.
Upon review of a complete application, EPA will make a tentative
determination of the adequacy of the permit program. After publication
of the Federal Register notice of this tentative determination, a
public comment period, and review and consideration of comments
received, the Regional Administrator will make a final adequacy
determination and publish it in the Federal Register. At the discretion
of the Regional Administrator, a public hearing may be held if
sufficient public interest exists or if such a hearing might clarify
substantive issues. A final determination of adequacy will be made
within 180 days of EPA's determination that the application is complete
unless a delay is agreed to by the Regional Administrator after
consultation with the State/Tribal Director.
The Agency designed this process to ensure that permit program
adequacy is determined in a timely manner, while simultaneously
affording the public and EPA sufficient opportunity for review and
comment.
2. Partial Approval Procedures for State/Tribal Permit Programs
(Sec. 239.11)
Section 239.11 proposes procedures for partial approval of State/
Tribal permit programs. A State/Tribal permit program is eligible for
partial approval if it meets all of the procedural and legal Part 239
requirements (i.e., but not limited to, enforcement, public
participation, compliance monitoring) and meets essentially all of the
technical Part 239 requirements (e.g., 40 CFR Part 258 requirements).
States/Tribes applying for partial approval also must include a
schedule, agreed to by the State/Tribe and the appropriate Regional
Administrator, for completing the necessary changes to the laws,
regulations, and/or guidance to comply with the remaining technical
requirements. For an additional explanation of the partial approval
process refer to section II.E.2 in the background portion of this
preamble.
3. Procedures for Review of Modified State/Tribal Programs
(Sec. 239.12)
Section 239.12 proposes procedures for submittal and review of
revised applications for State/Tribal program adequacy determinations,
should a State/Tribe revise its permit program once deemed adequate.
Program revision may result from changes in the pertinent Federal
statutory or regulatory authority, changes in State/Tribal statutory or
regulatory authority or relevant guidance, or when responsibility for
the State/Tribal program is shifted within the lead agency or to a new
or different State/Tribal agency or agencies.
States/Tribes may be required to revise their permit program if the
Federal statutory or regulatory authorities which have significant
implications for State/Tribal permit programs change. These changes
also may require revision to a State's/Tribe's permit program
application. Such a change at the Federal level, and resultant
requirements for States/Tribes, would be made known to the States/
Tribes either in the Federal Register containing the change or through
the appropriate EPA Regional Office.
Changes to parts of the State/Tribal permit program, as described
in its application, which may result in the permit program becoming
inadequate must be reported to the appropriate Regional Administrator.
In cases where the State/Tribal statutory or regulatory authority or
relevant guidance changes, or when responsibility for the State/Tribal
program is shifted within the lead agency or to a new or different
State/Tribal agency or agencies, the State/Tribal Director must inform
the Regional Administrator of these modifications. In addition, changes
to a State's/Tribe's statutes, regulations, or guidance which were not
part of the State's/Tribe's initial application, but which may have a
significant impact on the adequacy of the State's/Tribe's permit
program, also shall be reported to the EPA. An example of a change in
State/Tribal statutes or regulations which may have a significant
effect on the adequacy of a State's/Tribe's permit program is the
passage of a new law
[[Page 2599]]
which disallows the use of guidance in environmental regulatory
programs, where a State/Tribe has submitted guidance as part of its
application.
The Regional Administrator will determine, on a case-by-case basis,
whether changes at the State/Tribal level warrant re-examination of the
State/Tribal program adequacy determination, including submission of a
revised application. In re-examining the adequacy determination, the
Regional Administrator will follow the adequacy determination
procedures outlined in today's rule under Sec. 239.12.
This process is necessary to ensure that State/Tribal permit
programs remain current with Federal requirements and continue to be
adequate to ensure compliance with the Subtitle D Federal revised
criteria. There are no mandatory time-frames for submitting
modifications or re-examining adequacy determinations. Rather,
schedules for approved States/Tribes to submit modifications to the
Regional Administrator and for State/Tribal submission of a revised
application are to be negotiated by the State/Tribal Director and the
Regional Administrator. This arrangement should minimize potential
disruption to ongoing program activities.
Section 239.12(g) and 239.12(h) of today's proposal refer to
``additional classifications of Subtitle D regulated facilities'' and
specify that streamlined approval procedures will not be followed in
this case. This language has been included in anticipation of future
EPA regulation of other types of facilities under Subtitle D. An
example of a potential additional class of Subtitle D facilities is
industrial landfills that accept conditionally exempt small quantity
generator waste.
EPA anticipates maintaining a continued informal dialogue with
approved States/Tribes as States/Tribes make changes to their permit
programs or as Federal statutes or regulations change. State/Tribal
permitting is a dynamic process and EPA anticipates State/Tribal
Directors and the respective EPA Regional Administrators will continue
to communicate on a variety of solid waste issues. These types of
routine communications between the States/Tribes and the EPA Regions
are important in maintaining good information exchange and should be
encouraged. EPA notes that the majority of communications between
States/Tribes and the Regions are part of normal operations and should
not be construed as part of the adequacy withdrawal process or program
modification process. The procedures for modification of State/Tribal
permit programs and for withdrawal of determination of adequacy require
formal notifications to the State/Tribe and any such correspondence
shall be clearly identified to differentiate it from other
correspondence.
4. Withdrawal of Determination of Adequacy of State/Tribal Permit
Programs (Sec. 239.13)
Section 239.13 lays out specific conditions and procedures for the
withdrawal of State/Tribal permit program determinations of adequacy.
Withdrawal procedures may be initiated where it appears that the State/
Tribal permit program may no longer be adequate to ensure compliance
with the Subtitle D Federal revised criteria. The withdrawal of the
Agency's adequacy determination will require completion of several
steps including: (1) receipt of substantive information sufficient to
indicate that the State's/Tribe's permit program may no longer be
adequate; (2) a 45-day period allowing the State/Tribe to demonstrate
its permit program adequacy; (3) a determination of any measures needed
to correct program deficiencies and an opportunity for the State/Tribe
to address these program deficiencies; (4) initiation of proceedings
for withdrawal of adequacy determination (i.e., notice of tentative
determination of inadequacy), if the State/Tribe fails to appropriately
resolve the deficiency; (5) public involvement; and, (6) a final
determination.
The first step is EPA receipt of substantive information sufficient
to indicate program inadequacy, after which the Regional Administrator
will inform the State/Tribe of the information. It is EPA's intent that
a program withdrawal would not be triggered by minor complaints.
Today's proposed rule will allow a State/Tribe 45 days to demonstrate
that its permit program remains adequate.
If, after reviewing the State's/Tribe's response, the Regional
Administrator believes there is reason to revise the permit program,
the State/Tribe and Region will negotiate a schedule for the resolution
of the deficiency(ies). If the State/Tribal Director and Regional
Administrator fail to agree to a time period for resolving the
deficiency(ies), the Regional Administrator will set a time period and
inform the State/Tribal Director of the time period.
If, within the established time frame, the State/Tribe has not
adequately addressed the identified program deficiencies, the Regional
Administrator may initiate adequacy determination withdrawal by
publishing a notice of tentative adequacy withdrawal in the Federal
Register. This notice will outline the deficiency and will allow for a
period of public comment and opportunity for a public hearing. At the
conclusion of the public comment period and after the public hearing
(if any), the Regional Administrator will consider all comments
received, reevaluate the State/Tribal permit program, and determine
whether the State/Tribal permit program can ensure compliance with the
Subtitle D Federal revised criteria.
If the Regional Administrator finds that the State/Tribal program
remains adequate, he/she will publish a notice in the Federal Register
which explains the reasons for the decision and terminate the
withdrawal process. However, if the Regional Administrator finds that
the permit program is no longer adequate to ensure compliance with the
Subtitle D Federal revised criteria, he/she will publish a notice in
the Federal Register withdrawing the Agency's determination of State/
Tribal permit program adequacy and declaring the State/Tribal permit
program inadequate to ensure compliance with the Subtitle D Federal
revised criteria.
The Agency proposes these specific withdrawal procedures to ensure
that citizens have the opportunity to bring alleged State/Tribal
deficiencies to the attention of the Regional Administrators and that
States/Tribes have the opportunity to refute or correct alleged
problems as they arise. Any State/Tribe whose permit program has been
deemed inadequate to ensure compliance with the Subtitle D Federal
revised criteria may seek another adequacy determination at any time.
E. Changes to Part 258
For the sole purpose of applying the Federal revised criteria to
approved Tribal programs, the rule proposes to include Indian Tribes in
the definition of ``State'' and Tribal Director in the definition of
``State Director.'' The Agency proposes to do this as a means of
efficiency and not to imply any other substantive effect on the
character, authority, and/or rights of Tribes.
IV. Economic and Regulatory Impacts
A. Regulatory Impact Analysis
Pursuant to the terms of executive order 12866, the Office of
Management and Budget (OMB) has notified EPA that it considers this a
``significant regulatory action.'' EPA has submitted this action to OMB
for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
Requirements for State/Tribal permit programs as outlined in this
proposal
[[Page 2600]]
will not add substantial costs beyond those already imposed under the
Subtitle D Federal revised criteria. Regardless of this regulation,
RCRA section 4005(c)(1)(B) requires all States to develop and implement
permit programs to ensure compliance with the Subtitle D Federal
revised criteria.
EPA believes that the proposed STIR does not impose a major increase in
costs over and above any costs which RCRA section 4005(c)(1)(B) already
imposes on States/Tribes.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to prepare, and make available for public comment, a regulatory
flexibility analysis that describes the impact of a proposed or final
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions). No regulatory flexibility
analysis is required if the head of an agency certifies the rule will
not have significant economic impact on a substantial number of small
entities.
This proposal, in itself, will not have a significant impact on a
substantial number of small entities, since the proposal has direct
effects only on State/Tribal Agencies. Therefore, no regulatory
flexibility analysis has been prepared.
C. Paperwork Reduction Act
The information collection requirements in today's proposed rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
An Information Collection Request (ICR) document has been prepared by
EPA (ICR No. 1608), and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division, U.S. EPA (2136), 401 M Street SW.,
Washington, D.C., 20460 or by calling (202) 260-2740.
`The need for this collection of information from the States/Tribes
derives from Section 4005(c) of RCRA. This section requires the EPA
Administrator to review State/Tribal permit programs to determine if
they are adequate to ensure compliance with the Federal MSWLF criteria.
To carry out this mandate, and thus make a determination, EPA must
collect information in the form of an application for MSWLF permit
program approval from States/Tribes. The universe of respondents
involved in this information collection will be limited to those
States/Tribes seeking approval of their municipal solid waste permit
programs. The information which States/Tribes would submit is public
information; therefore, no problems of confidentiality or sensitive
questions arise.
The projected cost and hour burden for the submittal of a schedule
or an application by the estimated 41 respondents within a three year
time frame is 9,236 Hours. Given these parameters, the bottom line cost
estimate is $318,280.00. This cost estimate reflects total capital
costs and operation and maintenance costs. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2136); 401 M St., S.W.; Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after January 26, 1996, a comment to OMB is
best assured of having its full effect if OMB receives it by February
26, 1996. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), P.L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with federal
mandates that may result in estimated costs to state, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the Act, EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
EPA has determined that the proposed STIR does not include a
federal mandate that may result in estimated costs of $100 million or
more to state, local, or tribal governments in the aggregate, or to the
private sector, in any one year. Under the authority of RCRA section
4005(c)(1)(C), EPA has already approved 42 state MSWLF permit programs.
The Agency also has approved one tribal MSWLF program. EPA does not
anticipate that the approval of MSWLF permit programs under the
proposed STIR for the few remaining states (or any tribes which submit
their programs voluntarily for approval) will result in annual costs of
$100 million or more. EPA estimates that it costs a state approximately
$15,000 to develop and submit to EPA an application for approval of a
state permit program. The Agency also has estimated that tribal
governments may spend approximately $8,000 to prepare and submit a
permit program application.
EPA's approval of state and tribal programs generally have a
deregulatory effect on the private sector because once a state or
tribal MSWLF permit program is determined to be ``adequate'' under RCRA
section 4005(c)(1)(C), owners and
[[Page 2601]]
operators of MSWLFs may take advantage of the flexibility that an
approved state or Indian tribe may exercise. Such flexibility will
reduce, not increase, compliance costs for the private sector.
As to section 203 of the Act, EPA has determined that the proposed
STIR will not significantly or uniquely affect small governments,
including tribal governments. The Agency recognizes that small
governments may own and/or operate solid waste disposal facilities,
including MSWLFs, that will become subject to the requirements of a
state permit program that is approved under the STIR, once it is
promulgated. However, such small governments which own and/or operate
MSWLFs are already subject to the requirements in 40 CFR Part 258. Once
EPA approves state permit programs under the STIR, these same small
governments will be able to own and operate their MSWLFs with increased
levels of flexibility provided under the approved state program.
EPA has, however, worked closely with states and small governments
in the development of the proposed STIR. EPA distributed drafts of the
proposed rule to 14 states for their review and comments. The Agency
also provided copies of the draft proposed STIR to the Association of
State and Territorial Solid Waste Management Officials, which
distributed the draft rule to all of its state and territorial members.
In addition, EPA conducted a pilot program where the Agency worked with
the states of California, Connecticut, Virginia, and Wisconsin to
develop their applications for program approval using the draft STIR as
guidance.
EPA also distributed the draft STIR at the National Tribal
Conference on Environmental Management and at EPA Regional-Tribal
conferences. Although tribal governments are not required to submit
applications for program approval under RCRA section 4005(c)(1)(B), EPA
has utilized the draft proposed STIR as guidance in working with
particular tribal governments which have chosen to seek EPA's approval,
e.g., the Campo Band tribe in California and the Cheyenne River Sioux
in South Dakota.
As owners and/or operators of municipal landfills, small
governments have been more directly impacted by the MSWLF rule (40 CFR
Part 258) than they will be by the STIR. Indeed, the STIR will provide
small governments with additional flexibility, resulting in a cost
reduction, once their state permit program is approved. The Agency has
worked closely with small governments in the implementation of the
MSWLF rule and provided them with information concerning the
flexibility which it provides to owners/operators in approved states.
EPA has supported training workshops for small governments and has
prepared and distributed an extensive amount of information, including
fact sheets and brochures about the MSWLF rule.
In working with these various tribal governments, states, state
organizations, and local governments, EPA has provided notice to small
governments of the requirements of the MSWLF rule and the STIR;
obtained meaningful and timely input from them; and informed, educated,
and advised small governments on how to comply with the requirements of
the STIR and the MSWLF rule. Through this notice, EPA seeks input from
small governments during this rulemaking process. Thus, any application
requirements of section 203 of the Act will have been met.
List of Subjects
40 CFR Part 239
Environmental protection, Administrative practice and procedure,
municipal solid waste landfills, non-municipal solid waste, State/
Tribal permit program approval, and adequacy.
40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal, Water pollution control.
Authority: These regulations are issued under authority of the
Resource Conservation and Recovery Act, 42 U.S.C. 6901.
Dated: December 12, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Chap. I is proposed
to be amended as follows:
1. Part 239 is added to read as follows:
PART 239--REQUIREMENTS FOR STATE/TRIBAL PERMIT PROGRAM
DETERMINATION OF ADEQUACY
Subpart A--General
Sec.
239.1 Purpose.
239.2 Scope and definitions.
Subpart B--State/Tribal Program Application
239.3 Components of program application.
239.4 Narrative description of State/Tribal permit program.
239.5 State/Tribal legal certification.
Subpart C--Requirements for Adequate Permit Programs
239.6 Permitting requirements.
239.7 Requirements for compliance monitoring authority.
239.8 Requirements for enforcement authority.
239.9 Intervention in civil enforcement proceedings.
Subpart D--Adequacy Determination Procedures
239.10 Criteria and procedures for making adequacy determinations.
239.11 Approval procedures for partial approval.
239.12 Modifications of State/Tribal programs.
239.13 Criteria and procedures for withdrawal of determination of
adequacy.
Authority: 42 U.S.C. 6901.
Subpart A--General
Sec. 239.1 Purpose.
This Part specifies the requirements that State/Tribal permit
programs must meet to be determined adequate by the EPA under section
4005(c)(1)(C) of the Resource Conservation and Recovery Act (RCRA or
the Act) and the procedures EPA will follow in determining the adequacy
of State/Tribal Subtitle D permit programs or other systems of prior
approval and conditions required to be adopted and implemented by
States under RCRA section 4005(c)(1)(B).
Sec. 239.2 Scope and definitions.
(a) Scope. (1) Nothing in this Part precludes a State/Tribe from
adopting or enforcing requirements that are more stringent or more
extensive than those required under this Part or from operating a
permit program or other system of prior approval and conditions with
more stringent requirements or a broader scope of coverage than that
required under this Part.
(2) All States shall submit a Subtitle D permit program application
for an adequacy determination for purposes of this Part.
(3) An Indian Tribe may, within its discretion, submit a Subtitle D
permit program application for an adequacy determination for purposes
of this Part.
(4) If EPA determines that a State/Tribal Subtitle D permit program
is inadequate, EPA will have the authority to enforce the Subtitle D
Federal revised criteria on the RCRA section 4010(c) regulated
facilities under the State's/Tribe's jurisdiction.
(b) Definitions. (1) For purposes of this part:
Administrator means the Administrator of the United States
Environmental Protection Agency or any authorized representative.
Approved permit program or approved program means a State/Tribal
Subtitle D permit program or other system of prior approval and
conditions
[[Page 2602]]
that has been determined to be adequate by EPA under this part.
Approved State/Tribe means a State/Tribe whose Subtitle D permit
program or other system of prior approval and conditions has been
determined to be adequate by EPA under this part.
Guidance means policy memorandum, an application for approval under
this Part, or other technical or policy documents that supplement
State/Tribal laws and regulations. These documents provide direction
with regard to how State/Tribal agencies should interpret their permit
program requirements and are consistent with State/Tribal laws and
regulations.
Implementing agency means the State/Tribal and/or local agency(ies)
responsible for carrying out an approved State/Tribal permit program.
Indian lands or Indian country means: (1) all land within the
limits of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent, and
including rights-of-way running throughout the reservation; (2) all
dependent Indian communities within the borders of the United States
whether within the original or subsequently acquired territory thereof,
and whether within or without the limits of a State; and, (3) all
Indian allotments, the Indian titles to which have not been
extinguished, including rights of way running through the same.
Indian Tribe or Tribe means any Indian Tribe, band, nation, or
community recognized by the Secretary of the Interior and exercising
substantial governmental duties and powers.
Lead State/Tribal Agency means the State/Tribal agency which has
the legal authority and oversight responsibilities to implement the
permit program or other system of prior approval and conditions to
ensure that Subtitle D regulated facilities comply with the
requirements of the approved State/Tribal permit program and/or has
been designated as lead agency.
Permit documents means permit applications, draft and final
permits, or other documents that include applicable design and
management conditions in accordance with the Subtitle D Federal revised
criteria and the technical and administrative information used to
explain the basis of permit conditions.
Permit or prior approval and conditions means any authorization,
license, or equivalent control document issued under the authority of
the State/Tribe regulating the location, design, operation, ground-
water monitoring, closure, post-closure care, corrective action, and
financial assurance of Subtitle D facilities.
Regional Administrator means any one of the ten Regional
Administrators of the United States Environmental Protection Agency or
any authorized representative.
State/Tribal Director means the chief administrative officer of the
lead State/Tribal agency responsible for implementing the State/Tribal
permit program for Subtitle D regulated facilities.
State/Tribal program or permit program means all the authorities,
activities, and procedures that comprise the State's/Tribe's system of
prior approval and conditions for regulating the location, design,
operation, ground-water monitoring, closure, post-closure care,
corrective action, and financial assurance of Subtitle D regulated
facilities.
Subtitle D regulated facilities means all solid waste disposal
facilities subject to the revised criteria promulgated by EPA under
RCRA section 4010(c).
(2) The definitions in Part 258 apply to all Subparts of this Part.
Subpart B--State/Tribal Program Application
Sec. 239.3 Components of program application.
Any State/Tribe that seeks a determination of adequacy under this
Part must submit an application to the Regional Administrator, in the
appropriate EPA Region. The application must identify the scope of the
program for which the State/Tribe is seeking approval (i.e., which
class of Subtitle D regulated facilities are covered by the
application). The application also must demonstrate that the State's/
Tribe's authorities and procedures are adequate to ensure compliance
with the relevant Subtitle D Federal revised criteria and that its
permit program is uniformly applicable to all the relevant Subtitle D
regulated facilities within the State's/Tribe's jurisdiction. The
application must contain the following parts:
(a) A transmittal letter, signed by the State/Tribal Director,
requesting program approval. If more than one State/Tribal agency has
implementation responsibilities, the transmittal letter must designate
a lead agency and be jointly signed by all State/Tribal agencies with
implementation responsibilities or by the State Governor/Tribal
authority exercising powers substantially similar to those of a State
Governor;
(b) A narrative description of the State/Tribal permit program in
accordance with Sec. 239.4;
(c) A legal certification in accordance with Sec. 239.5;
(d) Copies of all applicable State/Tribal statutes, regulations,
and guidance; and,
(e) Copies of any State-Tribal agreements, if a State and Indian
Tribe have negotiated agreements for the implementation of the permit
program on Indian lands.
Sec. 239.4 Narrative Description of State/Tribal Permit Program.
The description of a State's/Tribe's program must include:
(a) An explanation of the jurisdiction and responsibilities of all
State/Tribal agencies and local agencies implementing the permit
program and description of the coordination and communication
responsibilities of the lead State/Tribal agency to facilitate
communications between EPA and the State/Tribe if more than one State/
Tribal agency has implementation responsibilities;
(b) An explanation of how the State/Tribe will ensure that existing
and new facilities are permitted or otherwise approved and in
compliance with the relevant Subtitle D Federal revised criteria;
(c) A demonstration that the State/Tribe meets the requirements in
Secs. 239.6, 239.7, 239.8, and 239.9;
(d) The number of facilities within the State's/Tribe's
jurisdiction that received waste on or after the date specified below:
(1) For municipal solid waste landfill units, October 9, 1991.
(2) [Reserved.]
(e) A discussion of staff resources available to carry out and
enforce the State/Tribal relevant permit program.
(f) A description of the State's/Tribe's public participation
procedures as specified in Sec. 239.6(a) through (c).
(g) For Indian Tribes, an assertion and demonstration that the
Tribe is recognized by the Secretary of the Interior; has an existing
government exercising substantial governmental duties and powers; has
adequate civil regulatory jurisdiction (as shown in the Tribal Legal
Certification under 239.5(c)) over the subject matter and entities to
be regulated; and is reasonably expected to be capable of administering
the federal environmental program for which it is seeking approval. If
the Administrator has previously determined that a Tribe has met these
prerequisites for another EPA program authorization, then that Tribe
need provide only that information
[[Page 2603]]
unique to RCRA Subtitle D permit program approval.
Sec. 239.5 State/Tribal legal certification.
(a) A State/Tribe must submit a written certification from the
Attorney General or equivalent Tribal official that the laws,
regulations, and any applicable guidance cited in the application are
enacted at the time the certification is signed and are fully effective
when the State/Tribal permit program is approved. This certification
may be signed by the independent legal counsel for the State/Tribe,
rather than the Attorney General or equivalent Tribal official,
provided that such counsel has full authority to independently
represent the lead State/Tribal Agency in court on all matters
pertaining to the State/Tribal program.
(b) If guidance is to be used to supplement statutes and
regulations, the State/Tribal legal certification must state that the
State/Tribe has the authority to use guidance to develop enforceable
permits which will ensure compliance with relevant Subtitle D Federal
revised criteria and that the guidance was duly issued in accordance
with State/Tribal law.
(c) If an applicant seeks approval of its permit program on Indian
lands, the required legal certification shall include an analysis of
the applicant's authority to implement the permitting and enforcement
provisions of this Part (Subparts C and D) on those Indian lands. The
applicant shall include: a map or legal description of the Indian lands
over which it asserts jurisdiction and a copy of all documents such as
constitutions, by-laws, charters, executive orders, codes, ordinances,
court decisions, and/or resolutions which support the applicant's
assertions of authority.
(d) If any laws, regulations, or guidance are not enacted or fully
effective when the legal certification is signed, the certification
should specify what portion(s) of laws, regulations, or guidance are
not yet enacted or fully effective and when they are expected to be
enacted or fully effective.
The Agency may make a tentative determination of adequacy using
this legal certification. The State/Tribe must submit a revised legal
certification meeting the requirements of paragraph (a) of this section
and, if appropriate, paragraph (b) of this section along with all the
applicable fully enacted and effective statutes, regulations, or
guidance, prior to the Agency making a final determination of adequacy.
If the statutes, regulations or guidance originally submitted under
Sec. 239.3(d) and certified to under this section are modified in a
significant way, the Regional Administrator will publish a new
tentative determination to ensure adequate public participation.
Subpart C--Requirements for Adequate Permit Programs
Sec. 239.6 Permitting requirements.
(a) State/Tribal law must require that:
(1) Permit documents for permit determinations are made available
for public review and comment; and,
(2) Final permit determinations on permit applications are made
known to the public.
(b) The State/Tribe shall have procedures that ensure that public
comments on permit determinations are considered.
(c) The State/Tribe must fully describe its public participation
procedures for permit issuance and post-permit actions in the narrative
description required under Sec. 239.4 and include a copy of these
procedures in its permit program application.
(d) The State/Tribe shall have the authority to collect all
information necessary to issue permits that are adequate to ensure
compliance with the relevant Subtitle D Federal revised criteria.
(e) For municipal solid waste landfill units, State/Tribal law must
require that:
(1) Prior to construction and operation, all new municipal solid
waste landfill units shall have a permit incorporating the conditions
identified in paragraph (e)(3) of this section;
(2) All existing municipal solid waste landfill units shall have a
permit incorporating the conditions identified in paragraph (e)(3) of
this section;
(3) The State/Tribe shall have the authority to impose requirements
for municipal solid waste landfill units adequate to ensure compliance
with 40 CFR part 258. These requirements shall include:
(i) General standards which achieve compliance with 40 CFR part 258
subpart A;
(ii) Location restrictions for municipal solid waste landfill units
which achieve compliance with 40 CFR part 258 subpart B;
(iii) Operating criteria for municipal solid waste landfill units
which achieve compliance with 40 CFR part 258 subpart C;
(iv) Design criteria for municipal solid waste landfill units which
achieve compliance with 40 CFR part 258 subpart D;
(v) Ground-water monitoring and corrective action standards for
municipal solid waste landfill units which achieve compliance with 40
CFR part 258 subpart E;
(vi) Closure and post-closure care standards for municipal solid
waste landfill units which achieve compliance with 40 CFR part 258
subpart F; and,
(vii) Financial assurance standards for municipal solid waste
landfill units which achieve compliance with 40 CFR part 258 subpart G.
Sec. 239.7 Requirements for compliance monitoring authority.
(a) The State/Tribe must have the authority to:
(1) Obtain any and all information, including records and reports,
from an owner or operator of a Subtitle D regulated facility necessary
to determine whether the owner/operator is in compliance with the
State/Tribal requirements;
(2) Conduct monitoring or testing to ensure that owners/operators
are in compliance with the State/Tribal requirements; and,
(3) Enter any site or premise subject to the permit program or in
which records relevant to the operation of Subtitle D regulated
facilities or activities are kept.
(b) A State/Tribe must demonstrate that its compliance monitoring
program provides for inspections adequate to determine compliance with
the approved State/Tribal permit program.
(c) A State/Tribe must demonstrate that its compliance monitoring
program provides mechanisms or processes to:
(1) Verify the accuracy of information submitted by owners or
operators of Subtitle D regulated facilities;
(2) Verify the adequacy of methods (including sampling) used by
owners or operators in developing that information;
(3) Produce evidence admissible in an enforcement proceeding; and,
(4) Receive and ensure proper consideration of information
submitted by the public.
Sec. 239.8 Requirements for enforcement authority.
Any State/Tribe seeking approval must have the authority to impose
the following remedies for violation of State/Tribal program
requirements:
(a) To restrain immediately and effectively any person by
administrative or court order or by suit in a court of competent
jurisdiction from engaging in any activity which may endanger or cause
damage to human health or the environment.
(b) To sue in a court of competent jurisdiction to enjoin any
threatened or continuing activity which violates any statute,
regulation, order, or permit
[[Page 2604]]
which is part of or issued pursuant to the State/Tribal program.
(c) To sue in a court of competent jurisdiction to recover civil
penalties for violations of a statute or regulation which is part of
the State/Tribal program or of an order or permit which is issued
pursuant to the State/Tribal program.
Sec. 239.9 Intervention in civil enforcement proceedings.
Any State/Tribe seeking approval must provide for intervention in
the State/Tribal civil enforcement process by providing either:
(a) Authority that allows intervention as a right in any civil
action to obtain remedies specified in Section 239.8 by any citizen
having an interest that is or may be adversely affected; or,
(b) Assurance by the appropriate State/Tribal agency that:
(1) It will provide notice and opportunity for public involvement
in all proposed settlements of civil enforcement actions (except where
immediate action is necessary to adequately protect human health and
the environment); and,
(2) It will investigate and provide responses to citizen complaints
about violations; and,
(3) It will not oppose citizen intervention when permissive
intervention is allowed by statute, rule, or regulation.
Subpart D--Adequacy Determination Procedures
Sec. 239.10 Criteria and procedures for making adequacy
determinations.
(a) The State/Tribal Director seeking an adequacy determination
must submit to the appropriate Regional Administrator an application in
accordance with Sec. 239.3.
(b) Within 30 days of receipt of a State/Tribal program
application, the Regional Administrator will review the application and
notify the State/Tribe whether its application is administratively
complete in accordance with the application components required in
Sec. 239.3. The 180-day review period for final determination of
adequacy, described in paragraph (d) of this section, begins when the
Regional Administrator deems a State/Tribal application to be
administratively complete.
(c) After receipt and review of a complete application, the
Regional Administrator will make a tentative determination on the
adequacy of the State/Tribal program. The Regional Administrator shall
publish the tentative determination on the adequacy of the State/Tribal
program in the Federal Register. Notice of the tentative determination
must:
(1) Specify the Regional Administrator's tentative determination;
(2) Afford the public at least 30 days after the notice to comment
on the State/Tribal application and the Regional Administrator's
tentative determination;
(3) Include a specific statement of the areas of concern, if the
Regional Administrator indicates the State/Tribal program may not be
adequate;
(4) Note the availability for inspection by the public of the
State/Tribal permit program application;
(5) Indicate that a public hearing will be held by EPA if
sufficient public interest is expressed during the comment period. The
Regional Administrator may determine when such a hearing is necessary
to clarify issues involved in the tentative adequacy determination. If
held, the public hearing will be scheduled at least 45 days from public
notice of such hearing. The public comment period may be continued
after the hearing at the discretion of the Regional Administrator.
(d) Within 180 days of determining that a State/Tribal program
application is administratively complete, the Regional Administrator
will make a final determination of adequacy after review and
consideration of all public comments, unless the Regional Administrator
after consultation with the State/Tribal Director agrees to extend the
review period. The Regional Administrator will give notice of the final
determination in the Federal Register. The notice must include a
statement of the reasons for the determination and a response to
significant comments received.
(e) For all States/Tribes that do not submit an application, the
Administrator or Regional Administrator may issue a final determination
of inadequacy in the Federal Register declaring those State/Tribal
permit programs inadequate to ensure compliance with the relevant
Subtitle D Federal revised criteria. Such States/Tribes may apply later
for a determination of adequacy.
Sec. 239.11 Approval procedures for partial approval.
(a) The EPA may partially approve State/Tribal permit programs that
do not meet all of the requirements in Sec. 239.6 (e)(3) (i.e., do not
incorporate all of the relevant Subtitle D Federal revised criteria).
Such permit programs may be partially approved if:
(1) The appropriate Regional Administrator determines that the
State's/Tribe's permit program largely meets the technical requirements
of Section 239.6 and meets all other requirements of this rule;
(2) Changes to a specific part(s) of the State/Tribal permit
program are required in order for the State/Tribal program to fully
meet the requirements of Section 239.6; and,
(3) Provisions not included in the partially approved portions of
the State/Tribal permit program are clearly identifiable and separable
subsets of the relevant Subtitle D Federal revised criteria.
(b) A State/Tribe applying for partial approval must include in its
application a schedule to revise the necessary laws, regulations, and/
or guidance to obtain full approval within two years of final approval
of the partial permit program. The Regional Administrator and the
State/Tribal Director must agree to the schedule.
(c) The application for partial approval must fully meet the
requirements of subparts B and C of this part.
(d) States/Tribes with partially approved permit programs are only
approved for those relevant provisions of the Subtitle D Federal
revised criteria included in the partial approval.
(e) Any partial approval adequacy determination made by the
Regional Administrator pursuant to this section and Sec. 239.10 shall
expire two years from the effective date of the final partial program
adequacy determination unless the Regional Administrator grants an
extension. States/Tribes seeking an extension must submit a request to
the appropriate Regional Administrator, must provide cause for missing
the deadline, and must supply a new schedule to revise necessary laws,
regulations, and/or guidance to obtain full approval. The appropriate
Regional Administrator will decide if there is cause and the new
schedule is realistic. If the Regional Administrator extends the
expiration date, the Region will publish a notice in the Federal
Register along with the new expiration date. A State/Tribe with partial
approval shall submit an amended application meeting all of the
requirements of part 239 and have that application approved by the two-
year deadline or the amended date set by the Regional Administrator.
(f) The Regional Administrator will follow the adequacy
determination procedures in Sec. 239.10 for all initial applications
for partial program approval and follow the adequacy determination
procedures in Sec. 239.12(f) for any amendments for approval for
[[Page 2605]]
unapproved sections of the relevant Subtitle D Federal revised
criteria.
Sec. 239.12 Modifications of State/Tribal programs.
(a) Approved State/Tribal permit programs may be modified for
various reasons, such as changes in Federal or State/Tribal statutory
or regulatory authority.
(b) If the Federal statutory or regulatory authorities that have
significant implications for State/Tribal permit programs change,
approved State/Tribes may be required to revise their permit programs.
These changes may necessitate submission of a revised application. Such
a change at the Federal level and resultant State/Tribal requirements
would be made known to the States/Tribes either in the Federal Register
containing the change or through the appropriate EPA Regional Office.
(c) States/Tribes that modify their programs must notify the
Regional Administrator of the modifications. Program modifications
include changes in State/Tribal statutory or regulatory authority or
relevant guidance or shifting of responsibility for the State/Tribal
program within the lead agency or to a new or different State/Tribal
agency or agencies. Changes to the State's/Tribe's permit program as
described in its application which may result in the program becoming
inadequate must be reported to the Regional Administrator. In addition,
changes to a State's/Tribe's basic statutory or regulatory authority or
guidance which were not part of the State's/Tribe's initial
application, but may have a significant impact on the adequacy of the
State's/Tribe's permit program, also must be reported to the Regional
Administrator.
(d) States/Tribes must notify the appropriate Regional
Administrator of all permit program modifications within a time-frame
agreed to by the State/Tribal Director and the Regional Administrator.
(e) The Regional Administrator will review the modifications and
determine whether the State/Tribal Director must submit a revised
application. If a revised application is necessary, the Regional
Administrator will inform the State/Tribal Director in writing that a
revised application is necessary, specifying the required revisions and
establishing a schedule for submission of the revised application.
(f) For all revised applications, and amended applications in the
case of partially approved programs, the State/Tribe must submit to the
appropriate Regional Administrator an amended application that
addresses those portions of its program that have changed or are being
amended. The Regional Administrator will make an adequacy determination
using the same criteria as used for the initial application.
(g) For revised applications that do not incorporate permit
programs for additional classifications of Subtitle D regulated
facilities and for all amended applications in the case of partially
approved programs, the appropriate Regional Administrator shall provide
for public participation using the procedures outlined in Sec. 239.10
or, at the Regional Administrator's discretion, using the following
procedures.
(1) The Regional Administrator will publish an adequacy
determination in the Federal Register summarizing the Agency's decision
and the portion(s) of the State/Tribal permit program affected and
providing an opportunity to comment for a period of at least 30 days.
(2) The adequacy determination will become effective sixty (60)
days following publication if no adverse comments are received. If EPA
receives comments opposing its adequacy determination, the Regional
Administrator will review these comments and publish another Federal
Register notice either affirming or revising the initial decision and
responding to public comments.
(h) For revised applications that incorporate permit programs for
additional classifications of Subtitle D regulated facilities, the
appropriate Regional Administrator will follow the procedures in
Sec. 239.10.
Sec. 239.13 Criteria and procedures for withdrawal of determination of
adequacy.
(a) The Regional Administrator may initiate withdrawal of a
determination of adequacy when the Regional Administrator has reason to
believe that a State/Tribe no longer has an adequate permit program or
adequate authority to administer and enforce an approved program in
accordance with this Part.
(b) Upon receipt of substantive information sufficient to indicate
that a State/Tribal program may no longer be adequate, the Regional
Administrator shall inform the State/Tribe in writing of the
information.
(c) If, within 45 days of the State's/Tribe's receipt of the
information in paragraph (b) of this section, the State/Tribe
demonstrates to the satisfaction of the Regional Administrator that the
State/Tribal program is adequate (i.e., in compliance with this part),
the Regional Administrator shall take no further action toward adequacy
withdrawal and shall so notify the State/Tribe and any person(s) who
submitted information regarding the adequacy of the State's/Tribe's
program and authorities.
(d) If the State/Tribal Director does not demonstrate the State's/
Tribe's compliance with this Part to the satisfaction of the Regional
Administrator, the Regional Administrator shall list the deficiencies
in the program and negotiate with the State/Tribe a reasonable time for
the State/Tribe to complete such action to correct deficiencies as the
Regional Administrator determines necessary. If these negotiations
reach an impasse, the Regional Administrator shall establish a time
period within which the State/Tribe must correct any program
deficiencies and inform the State/Tribal Director of the time period in
writing.
(e) Within the schedule negotiated by the Regional Administrator
and the State/Tribal Director, or set by the Regional Administrator,
the State/Tribe shall take appropriate action to correct deficiencies
and shall file with the Regional Administrator a statement certified by
the State/Tribal Director describing the steps taken to correct the
deficiencies.
(f) If the State/Tribe takes appropriate action to correct
deficiencies, the Regional Administrator shall take no further action
toward adequacy withdrawal and shall so notify the State/Tribe and any
person(s) who submitted information regarding the adequacy of the
State's/Tribe's permit program. If the State/Tribe has not demonstrated
its compliance with this Part to the satisfaction of the Regional
Administrator, the Regional Administrator shall inform the State/Tribal
Director and may initiate withdrawal of determination of adequacy.
(g) The Regional Administrator shall initiate withdrawal of
determination of adequacy by publishing the tentative withdrawal of
adequacy of the State/Tribal program in the Federal Register. Notice of
the tentative determination must:
(1) Afford the public at least 30 days after the notice to comment
on the Regional Administrator's tentative determination;
(2) Include a specific statement of the Regional Administrator's
areas of concern and reason to believe the State/Tribal program may no
longer be adequate; and,
(3) Indicate that a public hearing will be held by EPA if
sufficient public interest is expressed during the comment period or
when the Regional Administrator determines that such a hearing might
clarify issues involved in the tentative adequacy determination. If
[[Page 2606]]
held, the public hearing will be scheduled at least 45 days from notice
of such hearing. The public comment period may be continued after the
hearing at the discretion of the Regional Administrator.
(h) If the Regional Administrator finds, after the public hearing
(if any) and review and consideration of all public comments, that the
State/Tribe is in compliance with this Part, the withdrawal proceedings
shall be terminated and the decision shall be published in the Federal
Register. The notice must include a statement of the reasons for this
determination and a response to significant comments received. If the
Regional Administrator finds that the State/Tribal program is not in
compliance with this Part by the date prescribed by the Regional
Administrator or any extension approved by the Regional Administrator,
a final notice of inadequacy shall be published in the Federal Register
declaring the State/Tribal permit program inadequate to ensure
compliance with the relevant Subtitle D Federal revised criteria. The
notice will include a statement of the reasons for this determination
and response to significant comments received.
(i) States/Tribes may seek a determination of adequacy any time
after a determination of inadequacy.
PART 258--SOLID WASTE DISPOSAL CRITERIA
2. The authority cite for part 258 continues to read as follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a), 6944(a) and 6949(c);
33 U.S.C. 1345 (d) and (e).
3. Section 258.2 is amended by revising the definitions for
``Director of an approved State'', ``State'' and ``State Director'' to
read as follows:
Sec. 258.2 Definitions.
* * * * *
Director of an approved State means the chief administrative
officer of a State/Tribal agency responsible for implementing the
State/Tribal permit program that is deemed to be adequate by EPA under
regulations published pursuant to sections 2002 and 4005 of RCRA.
* * * * *
State means any of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, and Indian
Tribes, although Tribes are excluded from the definition for purposes
of Subpart G of Part 258 (Financial Assurance).
State Director means the chief administrative officer of the lead
State/Tribal agency responsible for implementing the State/Tribal
permit program for Subtitle D regulated facilities.
* * * * *
[FR Doc. 96-878 Filed 1-25-96; 8:45 am]
BILLING CODE: 6560-50-P
