[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)] [Notices] [Pages 8384-8386] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-3660] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [FRL-5155-1] New Hampshire; Final Adequacy Determination of State/Tribal Municipal Solid Waste Permit Program AGENCY: Environmental Protection Agency. ACTION: Notice of Final Determination of Full Program Adequacy for the State of New Hampshire's Municipal Solid Waste Landfill Permitting Program. ----------------------------------------------------------------------- SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments (HSWA) of 1984, 42 USC 6945(c)(1)(B), requires states to develop and implement permit programs to ensure that municipal solid waste landfills (MSWLFs), which may receive hazardous household waste or small quantity generator hazardous waste, will comply with the revised Federal MSWLF Criteria (40 CFR Part 258). RCRA Section 4005(c)(1)(C), 42 USC Sec. 6945(c)(1)(C), requires the Environmental Protection Agency (EPA) to determine whether states have adequate ``permit'' programs for MSWLFs, but does not mandate issuance of a rule for such determinations. EPA has drafted and is in the process of proposing a State/Tribal Implementation Rule (STIR) that will provide procedures by which EPA will approve, or partially approve, State/ Tribal landfill permit programs. The Agency intends to approve adequate State/Tribal MSWLF permit programs as applications are submitted. Thus, these approvals are not dependent on final promulgation of the STIR. Prior to promulgation of the STIR, adequacy determinations will be made based on the statutory authorities and requirements. In addition, States/Tribes may use the draft STIR as an aid in interpreting these requirements. The Agency believes that early approvals have an important benefit. Approved State/Tribal permit programs provide for interaction between the State/Tribe and the owner/operator regarding site-specific permit conditions. Only those owners/operators located in State/Tribes with approved permit programs can use the site-specific flexibilities provided by 40 CFR part 258 to the extent the State/ Tribal permit program allows such flexibility. EPA notes that regardless of the approval status of a State/Tribe and the permit status of any facility, the federal landfill criteria shall apply to all permitted and unpermitted MSWLF facilities. The State of New Hampshire applied for a determination of adequacy under Section 4005(c)(1)(C) of RCRA, 42 USC Sec. 6945(c)(1)(C). EPA Region I reviewed New Hampshire's MSWLF permit program adequacy application and made a determination that all portions of New Hampshire's MSWLF permit program are adequate to assure compliance with the revised Federal MSWLF Criteria. After consideration of all comments received, EPA is today issuing a final determination that the State's program is adequate. Effective Date: The determination of adequacy for the State of New Hampshire shall be effective on February 14, 1995. For further information contact: EPA Region I, John F. Kennedy Federal Building, Boston, MA 02203, Attn: Mr. John F. Hackler, Chief, Solid Waste and Geographic Information Section, mail code HER-CAN 6, telephone (617) 573-9670. Supplementary Information: A. Background On October 9, 1991, EPA promulgated revised criteria for MSWLFs (40 CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), requires states to develop permitting programs to ensure that MSWLFs comply with the Federal Criteria under 40 CFR part 258. Subtitle D also requires in Section 4005(c)(1)(C), 42 USC Sec. 6945(c)(1)(C), that EPA determine the adequacy of state municipal solid waste landfill permit programs to ensure that facilities comply with the revised Federal Criteria. To fulfill this requirement, the Agency has drafted and is in the process of proposing a State/Tribal Implementation Rule (STIR). The rule will specify the requirements which State/Tribal programs must satisfy to be determined adequate. EPA intends to approve State/Tribal MSWLF permit programs prior to the promulgation of the STIR. EPA interprets the requirements for states or tribes to develop ``adequate'' programs for permits, or other forms of prior approval and conditions (for example, license to operate) to impose several minimum requirements. First, each State/ Tribe must have enforceable [[Page 8385]] standards for new and existing MSWLFs that are technically comparable to EPA's revised MSWLF criteria. Second, the State/Tribe must have the authority to issue a permit or other notice of prior approval and conditions to all new and existing MSWLFs in its jurisdiction. The State/Tribe also must provide for public participation in permit issuance and enforcement as required in Section 7004(b) of RCRA, 42 USC Sec. 6974(b). Finally, the State/ Tribe must show that it has sufficient compliance monitoring and enforcement authorities to take specific action against any owner or operator that fails to comply with an approved MSWLF program. EPA Regions will determine whether a State/Tribe has submitted an ``adequate'' program based on the interpretation outlined above. EPA plans to provide more specific criteria for this evaluation when it proposes the STIR. EPA expects States/Tribes to meet all of these requirements for all elements of a MSWLF program before it gives full approval to a MSWLF program. B. State of New Hampshire On July 7, 1993, EPA Region I received New Hampshire's final MSWLF permit program application for adequacy determination. EPA published in the Federal Register a tentative determination of adequacy for all portions of New Hampshire's program. Further background on the tentative determination of adequacy appears at 59 FR 52299 (October 17, 1994). Along with the tentative determination, EPA announced the availability of the application for public comment. In addition, a public hearing was tentatively scheduled. However, there were no requests for such, and as a result the hearing was not held. C. Public Comment EPA Region I received the following written comments on the tentative determination of adequacy for New Hampshire's MSWLF permitting program, all of which have been made a part of the administrative record and are available to the public for review. Several commenters were generally supportive of EPA's tentative determination to provide full program approval to New Hampshire's MSWLF permitting program. These commenters encouraged EPA Region I to work quickly towards the final determination of adequacy of the State's program. A response was required by only one comment, in which the commenter questioned the effectiveness of the State's Guidance Document for ensuring compliance with both state and federal requirements for MSWLFs. Specifically, the commenter felt there were instances in which the Guidance may prove confusing to the regulated community (due in part to typographical errors and cross-references to part 258). EPA Region I forwarded a summary of the comments to the New Hampshire Department of Environmental Services (NH DES), which agreed that clarifying changes to its Guidance might be beneficial. Without creating any substantive changes, the Guidance was revised after review and approval by EPA Region I. The clarifying revisions ensure consistency with 40 CFR part 258, while maintaining the integrity of the State's original Guidance. To further prevent any chance of confusion, the State of New Hampshire will append the part 258 regulations to its Guidance document for direct reference. D. Decision After evaluating the New Hampshire program, EPA Region I concludes that the State of New Hampshire's MSWLF Permitting Program meets all of the statutory and regulatory requirements established by RCRA. The New Hampshire MSWLF Permitting Program is technically comparable to, no less stringent than, and equally as effective as the revised Federal Criteria. Accordingly, the State of New Hampshire is granted a determination of adequacy for all portions of its municipal solid waste permit program. To ensure full compliance with the Federal Criteria, New Hampshire has revised its current MSWLF permitting requirements by development of the Guidance Document for the State Permitting of Municipal Solid Waste Landfills Regulated Under Federal Rules (40 CFR Part 258) in New Hampshire. This guidance document has incorporated those requirements from the Federal Criteria not found in the State's existing MSWLF program which are applicable to all existing MSWLFs and to all MSWLF permit applications. New Hampshire will implement its MSWLF permit program through enforceable permit conditions. These new requirements occur in the following areas: 1. The adoption of the following definitions as required by the revised Federal Criteria, 40 CFR 258.2: Active life, active portion, director, household waste, industrial solid waste, owner, saturated zone, sludge, solid waste, state, state director, and waste management unit boundary. 2. Compliance with the location restrictions of 40 CFR 258.10, 258.11. 258.12, 258.13, 258.14, 258.15, and 258.16, which pertain to airport safety, floodplains, wetlands, fault areas, seismic impact zones, unstable areas and closure of existing MSWLF units. 3. Compliance with the operating criteria of 40 CFR 288.20, 258.21, 258.23, 258.24, 258.28, 258.29, which pertain to excluding the receipt of hazardous waste, cover material requirements, explosive gases control, air criteria, liquid restrictions, and record keeping requirements. 4. Compliance with the design criteria of 40 CFR 258.40. 5. Compliance with the ground-water monitoring and corrective action requirements of 40 CFR 258.53, 258.54, 258.55, 258.56, 258.57, and 258.58, which pertain to groundwater sampling and analysis requirements, detection monitoring, assessment monitoring, assessment of corrective measures, selection of remedy, and implementation of the corrective action program. 6. Compliance with the closure and post-closure criteria of Secs. 258.60 and 258.61. 7. Compliance with the financial assurance criteria of 40 CFR 258.70, 258.71, 258.72, 258.73, and 258.74, which pertain to applicability and effective date, financial assurance for closure, financial assurance for post-closure care, financial assurance for corrective action, and allowable mechanisms. New Hampshire's Department of Environmental Services requires all existing MSWLFs to have either an existing permit or a temporary permit, both of which require compliance with the Federal Criteria in 40 CFR part 258 pursuant to state laws and regulations, found at New Hampshire Revised Statutes Annotated Chapter 149-M:11 and New Hampshire Code of Administrative Rules Env-Wm 308.03. The State of New Hampshire is not asserting jurisdiction over Indian land recognized by the United States government for the purpose of this notice. Tribes recognized by the United States government are also required to comply with the terms and conditions found at 40 CFR Part 258. Region I notes that New Hampshire's receipt of Federal financial assistance subjects the State to the statutory obligations of Title VI of the Civil Rights Act of 1964. EPA Region I is committed to working with the State to support and ensure compliance with all Title VI requirements. Furthermore, the narrative portion of the State's application expresses New Hampshire's voluntary support of environmental justice principles in the management of the Subtitle D program. Although this is not a criterion for program approval, [[Page 8386]] Region I acknowledges New Hampshire's support of environmental justice principles. Section 4005(a) of RCRA, 42 USC Sec. 6945(a) provides that citizens may use the citizen suit provisions of Section 7002 of RCRA, 42 USC 6972, to enforce the Federal MSWLF Criteria set forth in 40 CFR part 258 independent of any State/Tribal enforcement program. As EPA explained in the preamble to the final MSWLF criteria, EPA expects that any owner or operator complying with provisions in a State/Tribal program approved by EPA should be considered to be in compliance with the Federal Criteria. See, 56 FR 50978, 50995 (October 9, 1991). Today's action takes effect on the date of publication. EPA believes it has good cause under Section 553(d) of the Administrative Procedure Act, 5 USC Sec. 553(d), to put this action into effect less than 30 days after the publication in the Federal Register. All of the requirements and obligations in the State's program are already in effect as a matter of state law. EPA's action today does not impose any new requirements that the regulated community must begin to comply with. Nor do these requirements become enforceable by EPA as federal law. Consequently, EPA finds that it does not need to give notice prior to making its approval effective. Compliance With Executive Order 12866 The Office of Management and Budget has exempted this notice from the requirements of Section 6 of Executive Order 12866. Certification Under the Regulatory Flexibility Act Pursuant to the provisions of 5 USC 605(b), I hereby certify that this approval will not have a significant economic impact on a substantial number of small entities. It does not impose any new burdens on small entities. This notice, therefore, does not require a regulatory flexibility analysis. Authority: This notice is issued under the authority of Sections 2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended, 42 USC Secs. 6912, 6945 and 6949a(c). Dated: February 4, 1995. John P. DeVillars, Regional Administrator. [FR Doc. 95-3660 Filed 2-13-95; 8:45 am] BILLING CODE 6560-50-P