Friday
            October 23, 1998
ill
Part III



Environmental

Protection  Agency

40 CFR Parts 239, 257, and 258
Subtitle D Regulated Facilities: State
Permit Program Determination of
Adequacy, State Implementation; Final
Rule

-------
 57026
Federal Register/Vol. 63, No. 205/Friday,  October 23,  1998/Rules and Regulations
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Parts 239,257 and 258

 [FRL-6178-8]
 RIN 2050-AD03

 Subtitle D Regulated Facilities; State
 Permit Program Determination of
 Adequacy; State Implementation Rule

 AGENCY: Environmental Protection
 Agency.
 ACTION:  Final rule.

 SUMMARY: The Resource Conservation
 and Recovery Act (RCRA) requires states
 to adopt and implement permit
 programs or other systems of prior
 approval to ensure that municipal solid
 waste landfills (MSWLFs) and non-
 municipal, non-hazardous waste
 disposal units that receive conditionally
 exempt small quantity generator
 (CESQG) hazardous waste comply with
 the federal revised criteria established
 for these disposal units. RCRA further
 directs the Environmental Protection
 Agency  (EPA or the Agency) to
 determine whether state permit
 programs or other systems of prior
 approval are adequate to ensure
 compliance with the federal revised
 criteria. This final rule provides a
 flexible framework for modifications of
 approved programs, establishes
 procedures for withdrawal of approvals,
 and confirms the process for future
 program approvals so that standards
 that safeguard human health and the
 environment are maintained.
 EFFECTIVE DATE: November 23, 1998.
 ADDRESSES: Supporting materials for
 this rule are available for viewing in the
 RCRA Information Center (RIC), located
 at Crystal Gateway I, First Floor, 1235
 Jefferson Davis Highway, Arlington, VA.
 The Docket Identification Number is F-
 98-STIF-FFFFF. The RIC is open from
 9 a.m. to 4 p.m., Monday through
 Friday, excluding federal holidays. To
 review docket materials, it is
 recommended that the public make an
 appointment by calling 703-603-9230.
 The public may copy a maximum of 100
 pages from any regulatory docket at no
 charge. Additional copies cost $0.15 per
 page. The index and supporting
 materials are available electronically.
 See the SUPPLEMENTARY INFORMATION
 section of this document for information
 on accessing them.
 FOR FURTHER INFORMATION CONTACT: For
 general information contact the RCRA
 Hotline. Office of Solid Waste, U.S.
 Environmental Protection Agency, 401
 M Street SW., Washington, DC 20460;
800-424-9346; TDD 800-553-7672
                          (hearing impaired); in the Washington,
                          DC metropolitan area, the number is
                          703-412-9810; TDD 703-486-3323.
                            For more detailed information on
                          specific aspects of this rulemaking,
                          contact Karen Rudek, Office of Solid
                          Waste (5306W), U.S. Environmental
                          Protection Agency Headquarters, 401 M
                          Street SW., Washington, DC 20460; 703-
                          308-1682,
                          rudek.karen@epamail.epa.gov.
                          SUPPLEMENTARY INFORMATION: EPA's
                          response to comments received on the
                          proposed STIR is included in section
                          IV., B., of the preamble to today's final
                          rule. Follow these instructions to obtain
                          electronic access:
                          World Wide Web: http://www.epa.gov/
                           osw/
                          FTP.-ftp.epa.gov
                          Login: anonymous
                          Password: your internet address
                          Files are located in /pub/epaoswer

                         Preamble Outline
                         I. Authority
                         II. Regulated Entities
                         III. Background
                           A. Effect of SIR on State Programs
                           B. Subtitle D Federal Revised Criteria
                            Permit Program Adequacy
                            Determinations
                           C. Summary of Today's Final Rule
                           1. Rationale for Today's Final Rule
                           2. Approval Procedures for State Permit
                            Programs
                           3. Partial Approval Procedures for State
                            Permit Programs
                           4. Role of Guidance
                           D. Differences from the Subtitle C
                            Authorization Process
                           E. Enforcement
                           1. EPA Enforcement
                           2. Citizen Enforcement
                           a. Types of Subtitle D Federal Revised
                            Criteria
                           b. Citizen Enforcement Under RCRA
                            Sections 4005 and 7002
                           c. State Permit Program Provisions Which
                            Are Not Federally Enforceable
                           d. Citizen Enforcement of EPA-Authorized
                            State Hazardous Waste Programs
                        IV. Summary of Comments and EPA
                            Response
                          A. Overview
                          B. General Comments and Agency
                            Response
                           1. Already Approved Programs
                          2. Adequacy Determinations
                          3. State Self-Certification
                          4. Criminal Penalty Authority
                          5. Judicial Review
                          6. Public Notification
                          7. Conflicts of Interest
                          8. Permit Program Modifications
                          9. Partial Withdrawal of State Permit
                            Programs
                        V. Changes to Final Rule
                          A. Revised Wording in 40 CFR 239.2(a)(2)
                          B. Revised Wording in 40 CFR 239.12 (d)
                          C. Revised Wording in 40 CFR 239.13
                          D. Increase in Public Comment Period for
                            Revisions and Withdrawals
   E. Deletion of References to Tribes
   F. Approval Standards for State CESQG
     Permit Programs
   G. Process for Approval of State CESQG
     Permit Programs
  VI. Regulatory Assessments
   A. Executive Order 12866: Assessment of
     Potential Costs and Benefits
   B. Regulatory Flexibility Act
   C. Unfunded Mandates Reform Act
   D. Paperwork Reduction Act
   E. Executive Order 13045: Protection of
     Children from Environmental Health
     Risks and Safety Risks
   F. National Technology Transfer and
     Advancement Act
   G. Executive Order 12898: Environmental
     Justice
   H. Executive Order 12875: Enhancing the
     Intergovernmental Partnership
   I. Executive Order 13084: Consultation and
     Coordination with Indian Tribal
     Governments
 VII. Submission to Congress and the General
     Accounting Office

 I. Authority

   The U.S. Environmental Protection
 Agency (EPA or the Agency) is
 promulgating these regulations under
 the authority of sections 2002 (a) (1) and
 4005 (c) of the Resource Conservation
 and Recovery Act of 1976 (RCRA or the
 Act), as amended by the Hazardous and
 Solid Waste Amendments of 1984.
   Subtitle D of RCRA, at section
 4005(c)(l)(B), requires each state to
 develop and implement a permit
 program or other system of prior
 approval to ensure that facilities that
 receive household hazardous waste or
 conditionally exempt small quantity
 generator (CESQG) hazardous waste are
 in compliance with the federal revised
 criteria promulgated under section
 4010(c) of Subtitle D of RCRA. Section
 4005(c)(l)(C) further directs EPA to
 determine whether state permit
 programs are adequate to ensure
 compliance with the revised federal
 criteria. Section 2002 (a) (1) of RCRA
 authorizes EPA to promulgate
 regulations necessary to carry out its
 functions under the Act.

 n. Regulated Entities

  Regulated entities include state
 governments requesting full or partial
 approvals of permit programs or other
 systems of prior approval, or revisions
 to existing fully or partially approved
 programs.

 m. Background

  On October 9, 1.991, EPA promulgated
the "Solid Waste Disposal Facility
Criteria: Final Rule," which established
40 CFR part 258 (56 FR 50978). These
criteria include location restrictions and
standards for design, operation, ground-
water monitoring, corrective action.

-------
              Federal Register / Vol. 63, No.  205/Friday,  October 23, 1998/Rules and  Regulations
                                                                      57027
 financial assurance, and closure and
 post-closure care for MSWLFs. On July
 1, 1996, EPA amended 40 CFR part 257
 by adding subpart B, "Federal Disposal
 Standards for the Receipt of CESQG
 Wastes at Non-Municipal, Non-
 Hazardous Waste Disposal Units" (61
 FR 34252). The 40 CFR part 257, subpart
 B criteria include location restrictions,
 ground-water monitoring, and corrective
 action standards for non-municipal,
 non-hazardous waste disposal units that
 receive CESQG hazardous wastes. The
 40 CFR part 257, subpart B and 40 CFR
 part 258 criteria, henceforth referred to
 as the "Subtitle D federal revised
 criteria," establish minimum federal
 standards that take into account the
 practical capability of owners and
 operators and ensure that both MSWLFs
 and non-municipal,  non-hazardous
 waste disposal units that receive CESQG
 hazardous wastes are designed and
 managed in a manner that is protective
 of human health and the environment.
 Every standard in the Subtitle D federal
 revised criteria is designed to be
 implemented by the owner or operator,
 with or without oversight or
 participation by a regulatory agency
 (e.g., an approved state permit program).
 States with approved programs may
 choose to permit the Subtitle D federal
 revised criteria exactly, or they may
 choose to allow owners and operators to
 use site-specific alternative approaches
 to meet the federal performance
 standards. The flexibility that an owner
 or operator may be allowed under an
 approved state program can provide a
 significant reduction in the burden
 associated with complying with the
 federal criteria.
   Both the proposed State/Tribal
 Implementation Rule (STIR) (61 FR
 2584, Jan. 26, 1996) and the
 promulgated 40 CFR part 257, subpart
 B, contain language pertaining to waste
 disposal in Indian Country as well as in
 states. Due to a recent decision by the
 U.S. Court of Appeals for the District of
 Columbia Circuit (Backcountry Against
 Dumps v. EPA, 100 F. 3d 147 (DC Cir.
 1996)), tribes are viewed as
 municipalities rather than as states
 under RCRA and, therefore, the Agency
 cannot approve tribal landfill permitting
 programs. To reflect the court decision,
 references to tribes have been deleted
 from this final rule. Thus, although the
 proposed rule was titled STIR, we refer
 to today's final regulation as the State
 Implementation Rule (SIR).
A. Effect of SIR on State Programs
  The regulation of solid waste
management has historically been a
state and local function. Under the final
SIR, EPA intends that states will
  continue their lead role in
  implementing the federal revised
  MSWLF requirements. States with
  approved programs may choose to
  enforce the federal standards by
  requiring owners and operators of
  permitted facilities to implement the
  federal revised criteria exactly as
  written in 40 CFR part 257, subpart B
  and 40 CFR part 258, with no
  consideration given to an owner or
  operator's proposed implementation of
  alternative approaches to meet federal
  performance standards. States with
  approved programs also may choose,
  however, to take advantage of the
  significant flexibility incorporated into
  the 40 CFR part 257, subpart B and part
  258 criteria by allowing owners and
  operators of permitted facilities to use
  alternative approaches to meet federal
  performance requirements.
   To date, 40 states and one U.S.
 territory have obtained EPA's full
 approval of their MSWLF programs, and
 another six states have received partial
 program approval. This final rule is
 designed to minimize disruption of
 those approved programs while assuring
 that facilities comply with the Subtitle
 D federal revised criteria. The following
 is a brief summary of EPA's
 requirements for state authorities and
 the Agency's rights of review.
   • The Agency's goal is for states to
 apply for and receive permit program
 approval. To that end, this rule
 stipulates basic authorities, rather than
 prescriptive programmatic elements.
 Today's rule takes an approach which
 allows states flexibility in the structure
 of their individual permit programs or
 other systems of prior approval
 (henceforth collectively referred to as
 "permit programs") while assuring that
 the states have the necessary authorities
 and procedures, including staffing and
 technical capabilities,  to allow them to
 take action as needed to enforce
 compliance with the Subtitle D federal
 revised criteria. Under the SIR, states
 may use their own design standards,
 performance standards, or a
 combination of the two to implement
 the basic elements required in the
 criteria.
  • EPA generally will defer to the
state certifications of legal authority. If
the Agency receives information
indicating that a state's legal
certification is inaccurate, however,
EPA reserves the right to conduct its
own review of the state's legal
certification and authorities.
  B. Subtitle D Federal Revised Criteria
  Permit Program Adequacy
  Determinations

   For initial determinations of partial or
  full state program adequacy for 40 CFR
  part 258 regulated facilities, and for
  determinations of adequacy for
  revisions in already-approved state
  MSWLF permitting programs, EPA will
  follow the procedures contained in
  today's rule at 40 CFR 239.10.
   To make adequacy determinations for
  non-municipal, non-hazardous waste
  permit programs in states with already-
  approved permit programs where the
  state disposal requirements meet or
  exceed the 40 CFR part 257, subpart B
  requirements, EPA believes it is
  appropriate to use a streamlined
  approval process. The Agency plans to
  publish streamlined adequacy
  determinations in the near future for
  states with programs that meet the
  criteria for streamlined approval.
  Currently, some states require that all
  hazardous waste disposal, including
  CESQG hazardous waste disposal, must
  occur only in hazardous waste disposal
 facilities that comply with the
 hazardous waste disposal requirements
 of RCRA Subtitle C. Other states require
 that CESQG hazardous wastes be
 managed in facilities that comply with
 the requirements of 40 CFR part 258.
 Many of these same states have EPA
 authorized Subtitle C permit programs
 and/or EPA approved MSWLF permit
 programs which, to meet EPA
 requirements for authorization or
 approval, must include all of the  criteria
 enumerated in 40 CFR part 257, subpart
 B as well as additional criteria required
 by Subtitle C or part 258. Such states,
 therefore, have requirements for CESQG
 hazardous waste disposal that are equal
 to or more stringent than the federal
 requirements found in 40 CFR part 257,
 subpart B, since their permitted Subtitle
 C or MSWLF facilities must comply
 with design and operating criteria that
 include all of the 40 CFR part 257,
 subpart B criteria. Thus, in states where
 EPA has already authorized a Subtitle C
 permit program and/or approved a
 MSWLF permit program, and where the
 state requires CESQG hazardous waste
 disposal in permitted facilities, EPA
 need only verify, using documentation
 previously submitted by the state for its
 Subtitle C or MSWLF permit program
 approval application, that the state is
 already in compliance with the 40 CFR
 part 257, subpart B disposal criteria. In
such cases, there is no need for the state
to submit additional information for 40
 CFR part 257, subpart B permit program
approval.

-------
 57028
Federal Register/Vol. 63, No.  205/Friday, October 23, 1998/Rules and Regulations
 C. Summary of Today's Final Rule

 1. Rationale for Today's Final Rule

   Significant flexibility for owners and
 operators in meeting the Subtitle D
 federal revised criteria is only available
 in approved states; therefore, the
 Agency has actively encouraged states
 to seek early approval of their permit
 programs. EPA used the draft STIR as
 guidance in interpreting the statutory
 authorities  and requirements, in
 identifying the necessary components of
 an application, and in determining the
 adequacy of state MSWLF permit
 programs. Although,  to date, EPA has
 fully or partially approved 47 state/
 territorial MSWLF permit programs and
 anticipates  approval of programs in the
 remaining states in the near future, the
 Agency believes  it remains necessary to
 promulgate this final rule to provide a
 framework for modifications of
                          approved permit programs, to establish
                          procedures for withdrawal of approvals,
                          and to confirm the process for future
                          program approvals.
                            Public comments on the proposed
                          rule, and public hearings on the state
                          permit programs that have been
                          approved to date, have yielded few
                          significant comments on the process
                          used for approval. Thus, it is not the
                          Agency's intent that states with already
                          approved MSWLF permit programs
                          reapply for approval upon promulgation
                          of this final rule.

                          2. Approval Procedures for State Permit
                          Programs
                            To secure an EPA determination of
                          adequacy under RCRA section 4005 (c),
                          a state must submit an application for
                          permit program approval to the
                          appropriate EPA regional administrator
                          for review. This final rule describes the
                          program elements to be included in the
 state application and sets forth the
 criteria EPA will use to determine state
 program adequacy.
   The Agency encourages states to
 develop and submit draft applications to
 the regions as a first step in the approval
 process. Preparing a draft application
 allows the state to perform a detailed
 review of its current program and
 identify areas that may not meet the
 Subtitle D federal revised criteria.
 Submitting a  draft application also
 enables the Region to provide more
 effective guidance to the state early in
 the process.
   Pursuant to 40 CFR 239.10, Table 1
 presents the schedule and timelines for
 EPA in the SIR application approval
 process. Submission of an application
 for program approval does not ensure
 automatic approval should the Agency
 fail to meet the application review
 timeframe presented in Table 1.
                           TABLE 1.—SCHEDULE FOR SIR APPLICATION APPROVAL PROCESS
                      Milestones and associated tasks
                                                                          Timeframe
 1. EPA Receives Application:
    • Determine whether the application is administratively complete	
    • Prepare docket.
 2. EPA Reviews Application for Adequacy (After Administratively Complete):
    • Submit comments to state
    • Review state's response to comments
    • Determine adequacy of implementation support (e.g., permitting and enforce-
      ment authorities)
    • Determine adequacy of technical landfill provisions
    • Make tentative determination
    • Prepare tentative determination notice
    • Determine strategy for holding a public hearing
    • Obtain Regional Administrator's signature.
 3. EPA Submits Notice for Publication in the Federal Register
    • Specify the tentative determination reached
    • Allow at least a 30-day public comment period
    • Describe any areas of concern
    • Note availability of the application for public inspection
    • Indicate that a public hearing will be scheduled if warranted
 4. Public Comment Period.
 5. EPA Holds Public Hearing (If sufficient interest is expressed).
 6. EPA Prepares Final Determination Notice:
    • Address public comments
    • Prepare Federal Register preamble, including  summary of comments re-
      ceived
    • Obtain Regional Administrator's signature
 7. Final Determination Published in the Federal Register.
                                                       Timeframe: Within 30 days of receiving application.

                                                       Timeframe: Within 180 days.
3. Partial Approval Procedures for State
Permit Programs

  In view of the comprehensive nature
of the Subtitle D federal revised criteria,
It is likely that some state permit
programs will meet the procedural and
legal requirements of 40 CFR part 239,
but not meet all of the technical
requirements of 40 CFR part 257,
subpart B or 40 CFR part 258, as
promulgated under sections 1008 (a) (3),
4004(a) and4010(c) of RCRA. Such
programs will require statutory,
                         regulatory, and/or guidance changes for
                         full program approval. The potential for
                         technical voids concerns the Agency,
                         because it could produce delays in final
                         adequacy determinations. These delays
                         could place substantial burdens on
                         owners and operators by postponing the
                         availability of flexibility that may be
                         afforded by states with approved
                         programs.
                           To address this issue, 40 CFR 239.10
                         and 40 CFR 239.11 of the final SIR
                         include procedures for full and partial
state program approvals. With a partial
approval, the state permitting agency
can allow owners and operators to take
advantage of flexibility for those
portions of the state program that meet
the federal requirements while the state
makes necessary changes to the
remaining portions of its program. If a
state MSWLF program meets all but the
federal ground-water monitoring
criterion, for example, all portions of its
program except ground-water
monitoring would be approved. The

-------
               Federal Register/Vol. 63, No.  205/Friday, October 23,  1998/Rules and Regulations
                                                                      57O29
 state could then allow owners and
 operators flexibility for approved
 criteria while having additional time to
 modify its program to bring it into
 compliance with federal ground-water
 monitoring requirements. For those
 criteria where the state program is not
 approved, the owner or operator must
 self-implement the federal criteria, thus
 ensuring that the solid waste facility is
 in compliance with the Subtitle D
 federal revised criteria. Section
 239.11 (d) of today's final rule provides
 that states with partially approved
 permit programs are approved to
 implement flexibility proposals from
 owners and operators only in those
 portions of the technical requirements
 that are included in the partial approval.
   The partial approval process is not
 intended to create a two-step process by
 which a state first gains approval for
 those parts of its permit program that
 are currently adequate and then revises
 the remainder of the program.
 Applications for partial approval must
 include a schedule, agreed to by the
 state and by the appropriate regional
 administrator, for completing the
 changes to the laws, regulations, and/or
 guidance needed to comply with the
 remaining technical requirements.
 States whose programs require
 procedural, legal, or substantial
 technical changes are encouraged to
 complete all necessary program,
 modifications before submitting an
 application for approval.
   States that receive partial approval
 should  submit an amended application
 meeting all requirements of 40 CFR part
 239 and have that application approved
 within two years of the effective date of
 the final determination for partial
 program adequacy. States should be
 sensitive to this deadline and submit
 amended, complete applications well in
 advance of the deadline to allow regions
 ample time for public participation, to
 make tentative and final adequacy
 determinations, and to publish these
 determinations in the Federal Register.
   To encourage states to pursue full
 program approval in a timely manner,
 EPA has limited the life span for partial
 approvals to two years. The Agency
 views the partial approval process as a
 temporary measure, but believes that
 states may require up to two years to
 make the changes to their laws,
 regulations, and/or guidance which may
 be needed for full program approval.
 The Agency believes, however, that it
 would be counterproductive to
 determine an entire program inadequate
 if a state has good cause to exceed the
two-year timeframe. For this reason, the
Agency will accommodate state program
development by providing a mechanism
  to allow partial approval of programs to
  extend beyond two years if the state
  demonstrates good cause to the EPA
  region. In such cases, the Regional
  Administrator will publish the
  expiration date extension for the partial
  approval in the Federal Register.
  4. Role of Guidance
    While states must have the authority
  to issue, monitor compliance with, and
  enforce permits adequate to ensure
  compliance with the Subtitle D federal
  revised criteria, the specific
  requirements of the applicable Subtitle
  D federal revised criteria need  not be
  contained in state laws or regulations.
  Guidance documents may be used to
  supplement state laws and regulations if
  the state demonstrates in its legal
  certification that the guidance will be
  used to develop enforceable permits or
  other mechanisms that will ensure
  compliance with the criteria. Guidance
 may be used only to supplement state
 laws and regulations; it cannot correct
 laws and regulations that are
 inconsistent with the guidance. If a
 state's laws or regulations require three
 inches of earthen material daily as a
 cover, for example, the state could not
 meet the daily cover requirement of 40
 CFR 258.21 by issuing guidance that
 owners and operators apply six inches
 of earthen material at the end of each
 operating day.
   The narrative description of the state
 program must explain how the  state will
 use guidance to develop enforceable
 permits or other mechanisms of prior
 approval that ensure compliance with
 the Subtitle D federal revised criteria.
 Use of guidance gives the states added
 flexibility in meeting the requirements
 of 40 CFR part 239, yet maintains the
 requirement that states have the
 authority to ensure owner and operator
 compliance with the revised criteria.
 The flexibility afforded by the use of
 guidance should limit the need  for
 states to restructure existing laws and
 regulations.
 D. Differences From the Subtitle C
 Authorization Process
  The approach for determining the
 adequacy of state permit programs
 under section 4005 (c) of Subtitle D of
 RCRA differs from the approach taken
 for authorizing state hazardous waste
 programs under section 3006 of Subtitle
 C of RCRA. The 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 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
  authorized state's requirements under
  Subtitle C, rather than the federal law
  that was superseded by the state
  requirements. EPA retains enforcement
  authority under RCRA sections 3008,
  3013, and 7003, although authorized
  states have primary enforcement
  responsibility. Citizens may also enforce
  the requirements of an authorized state
  hazardous waste program through
  citizen suits in federal court under
  RCRA section 7002.
   In contrast, under Subtitle D, facility
  permitting is a state responsibility.
  EPA's role includes establishing
  technical design and operating criteria
  for facilities, determining the adequacy
  of state permitting programs, and
 enforcing compliance with the Subtitle
 D federal revised criteria only after
 determining that the state permitting
 program is inadequate. Subtitle D does
 not provide for state requirements to
 operate in lieu of the Subtitle D federal
 revised criteria. The Subtitle D federal
 revised criteria and state requirements
 operate concurrently, regardless of
 whether a state permit program is
 deemed adequate or inadequate.
 E. Enforcement
 1. EPA Enforcement
  Approved states have primary
 responsibility for ensuring compliance
 with the Subtitle D federal revised
 criteria through the enforcement
 element of their programs. RCRA does
 not give EPA the authority to take
 enforcement actions in approved states
 or in states pending an adequacy
 determination; therefore, adequate state
 enforcement authorities are crucial to
 ensure compliance.
  EPA retains enforcement and
 response authority, however, in a
 number of ways, including the
 following:
  • Under RCRA section 4005(c) (2)(A),
 the Agency has the authority to enforce
 the Subtitle D federal revised criteria
 only where it determines the state
 permit program to be inadequate.
  • Under RCRA section 7003 and
section 106 of the Comprehensive

-------
 57030
Federal  Register/Vol. 63, No. 205/Friday, October 23,  1998/Rules and Regulations
 Environmental Response,
 Compensation, and Liability Act
 (CERCLA), EPA retains enforcement
 authority to address situations that may
 pose imminent and substantial
 endangerment to human health or the
 environment.
   •  Under CERCLA section 104(a),
 EPA may take response actions 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
 Into the environment.
   Where a citizen brings a concern to
 EPA's attention, the Agency will
 respond in an appropriate manner on a
 case-by-case basis.
 2. Citizen Enforcement
   In light of recent federal court
 decisions in the case ofAshoffv. City
 oflfkiah, questions have been raised by
 members of the public as to the
 Agency's position on the ability of
 citizens to enforce requirements where
 EPA has approved a state permit
 program under Subtitle D of RCRA. The
 district court in the .Asho/Fcase held
 that citizens cannot enforce the
 requirements of an approved state
 MSWLF permit program under RCRA
 Subtitle D and dismissed the citizen suit
 which the plaintiff had brought under
 RCRA. Ashoffv. CityofUkiahNo. C-
 96-1302 VRW (N.D. Calif. Nov. 21,
 1996). On appeal, the United States
 Court of Appeals for the Ninth Circuit
 affirmed the district court's dismissal of
 the RCRA citizen suit, but held that
 citizens could maintain actions under
 RCRA section 7002 to enforce those
 elements of an approved state Subtitle D
 permit program which had become
 effective pursuant to RCRA. Ashoffv.
 CltyofUkiah, 130 F.3d 409,411-412
 (9th Cir. 1997). At the same time, the
 Court held that citizens could not bring
 RCRA citizen suit actions to enforce
 those elements of an EPA-approved
 Subtitle D state permit program that are
 more stringent than the federal MSWLF
 criteria. Id. at 412. While the district
 court opinion misconstrued a number of
 statements EPA has made in the Federal
 Register, the Ninth Circuit's opinion is
 essentially consistent with the Agency's
 position as set forth below.
  a. Types of Subtitle D federal revised
 criteria. The Subtitle D federal revised
 criteria applicable to MSWLFs and non-
 municipal, non-hazardous disposal
 units  that receive CESQG waste are of
 three  general types. The first type
 establishes a single federal standard that
 all MSWLFs and non-municipal,
 nonhazardous disposal units that
receive CESQG waste must meet and
that leaves no discretion to the state or
                         the owner or operator. An example of
                         the first type of criterion can be found
                         in 40 CFR 258.24(b) of the federal
                         MSWLF revised criteria, which
                         prohibits open burning of solid waste at
                         MSWLFs, except for the infrequent
                         burning of certain specifically-identified
                         types of waste. The federal MSWLF
                         revised criteria do not allow states to
                         waive or alter this prohibition so that it
                         would be a less stringent prohibition.
                         Thus, owners and operators of MSWLFs
                         in states with EPA-approved programs
                         and those states whose programs have
                         not yet been fully reviewed by the
                         Agency must comply with this federal
                         minimum open burning prohibition.
                         States could choose, however, to make
                         the prohibition more exacting by not
                         permitting the infrequent open burning
                         of the identified wastes. As discussed
                         below, however, such a complete open
                         burning prohibition adopted by the state
                         would not be enforceable by citizens
                         under RCRA sections 4005 (a) and
                         7002(a)(l)(A).
                           A similar type of provision, which
                         leaves no discretion to the state or the
                         owner or operator, is contained in 40
                         CFR 257.8(a) of the revised  criteria for
                         non-municipal, non-hazardous waste
                         disposal units. Owners or operators of
                         waste disposal units that receive CESQG
                         hazardous waste and are located in 100-
                         year flood plain must demonstrate that
                         the units will not restrict the flow of the
                         100-year flood, reduce the capacity of
                         the floodplain, or result in a washout  of
                         solid waste so as to pose a hazard to
                         human health or the  environment. The
                         owner or operator must notify the state
                         director that the demonstration has been
                         placed in the operating record of the
                         unit. The state director cannot waive
                         this demonstration requirement. If, by
                        January 1, 1998, the owner or operator
                         of an existing unit cannot make the
                        flood plains demonstration, the unit
                        must not accept CESQG waste for
                        disposal  (40 CFR 257.13). The
                        demonstration requirement and the
                        prohibition against the continued
                        receipt of CESQG waste if the
                        requirement is not met apply whether
                        the unit is located in  an approved state
                        or not.
                          The second type of criterion
                        establishes a federal standard, but
                        allows an approved state to establish an
                        alternative standard, compliance with
                        which constitutes compliance with the
                        relevant federal standard. The revised
                        MSWLF criteria, for example, establish
                        two alternative means of compliance
                        with requirements for daily cover of
                        landfills.  Under 40 CFR 258.21, MSWLF
                        owners or operators must either use six
                        inches of earthen material as cover at
                        the end of each operating day or use
 alternative materials of an alternative
 thickness that the director of an
 approved state has approved. The owner
 or operator must demonstrate that the
 alternative material and thickness
 control disease vectors, fires, odors,
 blowing litter, and scavenging without
 presenting a threat to human health and
 the environment. Other areas of the
 revised MSWLF criteria that provide
 approved states with the right to
 establish alternative standards include
 certain design, operating, location,
 ground-water monitoring, corrective
 action, closure and post-closure care,
 and financial assurance requirements.
 The revised criteria for non-municipal,
 non-hazardous waste  disposal units that
 receive CESQG waste also provide that
 directors of approved states may
 establish alternative standards in a
 variety of circumstances. For example,
 see 40 CFR 257.21 (h) and CO (alternative
 ground-water monitoring systems for
 certain small CESQG waste disposal
 units in arid  or remote locations); 40
 CFR257.22(b) (alternative use of a
 multi-unit ground-water monitoring
 system); and 40 CFR 257.24(a)(2)
 (alternative list of indicator parameters
 for which detection monitoring is
 required).
   Where an approved state implements
 an alternative standard specifically
 provided for  by the Subtitle D federal
 revised criteria, compliance with that
 approved state alternative standard
 constitutes compliance with the
 relevant federal criterion. The following
 Federal Register citations reference
 state alternative standards: 61 FR 2584,
 2593, "EPA expects the owner or
 operator who complies with the
 requirements of an approved state's or
 tribe's permit program will be found by
 federal courts to have complied with the
 requirements in the Subtitle D federal
 revised criteria;" and 56 FR 50978,
 50995, "EPA  expects that owners or
 operators in approved  states who use
 the state standard will be found by
 federal courts to have complied with the
 design requirements of part 258." An
 owner or operator must comply, as
 appropriate, with either the Subtitle D
 federal revised criteria or the alternative
 approved state standard provided for in
 the revised criteria; failure  to comply
 with the federal standard or the
 alternative approved state standard, as
 appropriate, constitutes open dumping.
 For more information,  see 40 CFR
 257.1 (a) (1) and (2); and 40 CFR 258. l(g)
 and (h).
  A third type of federal criterion gives
 the owner or operator discretion to
implement fully the federal standard
based on site-specific information. This
type of criterion contemplates instances


-------
               Federal Register/Vol. 63, No. 205/Friday, October 23,  1998/Rules and Regulations       57031
 where site-specific definition must be
 given to make the federal criterion
 meaningful. EPA promulgated the
 revised criteria so that owners and
 operators could implement the
 standards on their own if states chose
 not to adopt permit programs (61 FR
 2584, 2595, Jan. 26, 1996 and 56 FR
 50978, 50992-50993, Oct. 9, 1991). The
 Subtitle D federal revised criteria thus
 establish some performance standards
 that an owner or operator must meet by
 considering a number of identified site-
 specific factors. If ground-water
 contamination at a MSWLF or a CESQG
 waste disposal unit requires clean up,
 for example, the Subtitle D federal
 revised criteria provide that the owner
 or operator must select both the cleanup
 remedy and the schedule for
 implementing it (40 CFR 257.27(a)-(d);
 and 40 CFR 258.57(a)-(d)). Once the
 owner or operator considers the
 necessary factors and selects the remedy
 and the schedule, the revised criteria
 require the  owner or operator to comply
 with that plan (40 CFR 257.28(a)(l) and
 (2); and 40 CFR 258.58(a)(l) and (2)).
 These choices made by the owner or
 operator are specifically required by the
 revised criteria. As such, they are
 incorporated into the Subtitle D federal
 revised criteria (which include open
 dumping criteria) and become effective
 pursuant to RCRA.
   In practice, a state .often stands in the
 shoes of an  owner or operator and
 exercises the discretion reserved by the
 Subtitle D federal revised criteria to set
 a cleanup remedy and schedule. A state
 may establish such standards via a
 permit or other mechanism, for
 example, as part of the state's Subtitle
 D program. Where a state selects a
 remedy and schedule using the factors
 provided for in the revised criteria (e.g.,
 40 CFR 257.27(a)-(d); and 40 CFR
 258.57(a)-(d)), and stands in the
 owner's or operator's shoes to make the
 decision reserved by the Subtitle D
 federal revised criteria, the state's
 cleanup plan and schedule are
 incorporated into the federal criteria
 and become effective pursuant to RCRA.
  b. Citizen  enforcement under RCRA
 Sections 4005 and 7002. RCRA
 authorizes citizens to enforce Subtitle D
 requirements pursuant to two separate
 provisions of the Act. First, RCRA
 section 7002(a)(l)(A) authorizes any
 person to commence a civil action
 against "any person* * *alleged to be
 in violation of any permit, standard,
 regulation, condition, requirement,
 prohibition,  or order which has become
 effective pursuant to this Act" (42
U.S.C. 6972(a)(l)(A)). Second, RCRA
section 4005 (a) states that once EPA
promulgates criteria under section
  1008 (a) (3) of RCRA, any practice which
  constitutes open dumping (as defined
  by those criteria) is prohibited (42
  U.S.C. 6945(a)). Importantly, this
  section also provides that the open
  dumping prohibition "shall be
  enforceable under section 7002 of this
  title against persons engaged in the act
  of open dumping." Id. The three types
  of Subtitle D federal revised criteria
  discussed above are enforceable by
  federal citizen suit under RCRA because
  they become the criteria for the open
  dumping prohibition in section 4005 (a)
  and, thus, they become requirements
  and a prohibition which has become
  effective pursuant  to RCRA for purposes
  of section 7002(a) (1) (A).
   Section 4005 (a) of RCRA prohibits
  "any solid waste management practice
  which constitutes the open dumping of
  solid waste or hazardous waste" (42
  U.S.C. 6945(a)). RCRA defines an "open
  dump" as "any facility or site where
  solid waste is disposed" that does not
  meet criteria promulgated under RCRA
  section 4004 (42 U.S.C. 6903(14)). RCRA
  section 4004 (a) directs the
  Administrator to promulgate criteria for
  determining "which facilities shall be
 classified as sanitary landfills and
 which shall be classified as open
 dumps" (42 U.S.C.  6944(a)). Similarly,
 RCRA section 1008 requires the
 Administrator to publish guidelines that
 "provide minimum criteria to be used
 by the states to define those solid waste
 management practices which constitute
 the open dumping" prohibited by RCRA
 Subtitle D (42 U.S.C. 6907(a)(3)). In
 1984, Congress further directed EPA to
 promulgate revised open dumping
 criteria "for facilities that may receive
 hazardous household wastes or
 hazardous wastes from small quantity
 generators" (i.e., CESQG wastes) (42
 U.$.C. 6949a(c)).
  EPA promulgated the revised criteria
 for MSWLFs and for non-municipal,
 non-hazardous waste disposal units
 receiving CESQG waste under the
 authority of RCRA sections 1008 (a) (3),
 2002(a)(l), 4004(a),  and 4010(c)  (56 FR
 50978, 50979 and 61 FR 34252, 34253
 and 34269). Any violation of either the
 40 CFR part 257 or 40 CFR part 258
 criteria constitutes "open dumping,"
 under the plain language both of RCRA,
 42 U.S.C. 6903(14), and of the
 regulations, 40 CFR 257.1 (a) (1) arid
 (a) (2) (faculties and  practices failing to
 satisfy the criteria in part 257 are
 considered open dumps and constitute
 open dumping, respectively); 40 CFR
 257.2 (definition of "open dump"); and
 40 CFR 258.1 (h) ("Municipal solid
waste landfill units failing to satisfy
these criteria constitute open dumps,
  which are prohibited under section
  4005 of RCRA.").
    Because RCRA prohibits open
  dumping, any violation of these criteria
  is illegal as a matter of federal law (42
  U.S.C 6945(a)). Nothing in RCRA
  suggests that the federal open dumping
  prohibition is diminished by EPA's
  determination, under RCRA section
  4005(c)(l)(C), that a state Subtitle D
  permit program is adequate. On the
  contrary,  "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" (61 FR 2584
  2593, Jan. 26, 1996 (preamble to
  proposed STIR rule)). Because Congress
  has specifically authorized citizens to
  enforce the open dumping prohibition
  under RCRA section 4005(a), citizens
  may certainly enforce the first type of
  "open dumping" criteria which are
  contained in the Subtitle D federal
  revised criteria in either an approved or
  unapproved state.
    State alternative standards that are
  part of the Subtitle D federal revised
  criteria also define open dumping, the
  prohibition of which is enforceable
.  under RCRA sections 4005(a) and 7002.
  This conclusion follows inescapably
  from the following reasoning (based on
  the plain language of RCRA and EPA's
  implementing regulations): (1) citizens
  may enforce the open dumping
  prohibition under RCRA section
  4005(a); (2) state alternative standards
 specifically allowed by the revised
 criteria are a part of those criteria, and,
 thus, define (in part) "open dumping,"
 see, e.g., 40 CFR 257.1 (a) (1) and (a) (2);
 40 CFR 258.l(g) and (h); therefore, (3)
 citizens may enforce compliance with
 these approved state alternative
 standards through the open dumping
 prohibition of RCRA section 4005 (a) and
 the citizen suit provision of RCRA
 section 7002(a)(l) (A).
   The same reasoning applies to citizen
 suit enforcement in federal courts of
 those requirements of a state permit
 program that are within the scope of
 discretion afforded by the revised
 criteria (i.e., the third type of criterion
 where the state steps into the shoes of
 the owner or operator to make certain
 site-specific decisions). The Subtitle D
 federal revised criteria, for example,
 afford the owner or operator significant
 discretion to select a corrective action
 remedy and schedule (40 CFR
 257.27(a)-(d) and 40 CFR 258.57(a)-(d)).
If the state issues a standard that
exercises that discretion on behalf of the
owner or operator, that state standard
becomes part of the federal open
dumping criteria.  •

-------
 57032
Federal Register/Vol. 63, No.  205/Friday, October 23, 1998/Rules and Regulations
   RCRA's principal citizen suit
 provision, section 7002, authorizes "any
 person" to file suit against any other
 person "alleged to be in violation of any
 permit, standard, regulation, condition,
 requirement, prohibition, or order
 which has become effective pursuant to
 [RCRA]" (42 U.S.C. 6972(a)(l)(A)).
 Those approved state alternative
 standards expressly provided for by
 EPA's revised criteria do "become
 effective pursuant to" RCRA because
 EPA's approval of the state  program
 gave that alternative state standard legal
 effect. The revised criteria only allow
 state alternatives in approved states;
 therefore, the alternative compliance
 options that states may implement
 under the Subtitle D federal revised
 Criteria are of no effect under RCRA
 unless and until EPA approves the state
 program under RCRA section 4005 (c).
   Similarly, citizens also may enforce
 under RCRA section 7002 the
 requirements of a state program where
 those requirements are within the scope
 of discretion afforded by the Subtitle D
 federal revised criteria. The revised
 criteria contemplate instances, for
 example, where site-specific definition
 must be given to make the federal
 criteria meaningful, such as where an
 owner or operator must select a
 schedule for cleanup of contaminated
 ground water. See 40 CFR 257.27(d)(l-
 8) and 40 CFR 258.57(d)(l-8). Once
 such a schedule is selected, it
 implements the discretion reserved by
 the federal criterion, and, thus, is
 effective pursuant to RCRA, within the
 meaning of section 7002(a)(l)(A). Where
 the state stands in the shoes of an owner
 or operator in exercising the discretion
 reserved by the revised criteria, then the
 state standard would similarly become
 enforceable by federal citizen suit.1
  c. State permit program provisions
 which are not federally enforceable.
 EPA believes, however, that elements of
 a state permit program which are not
 specifically provided for in the revised
 criteria as alternative standards or
 which are not within the scope of
 discretion afforded by the Subtitle D
  > Such a state standard is enforceable by citizens
without regard to whether the state has a permit
program that has been approved as "adequate" by
EPA under RCRA section 4005(c)(l)CC). 42 U.S.C.
G945(c)(l)(C) This is so because when the state
exercises the discretion afforded to the owner or
operator to define a site-specific federal
requirement under the revised criteria, that state
choke becomes incorporated into the federal
definition prohibiting open dumping and, thus, is
cReeUve pursuant to RCRA. This situation is
distinguishable from the second type of criteria
discussed above, i.e.. the alternative standards of an
approved sute. where the approval of the state's
permit program is necessary before the alternative
standard becomes incorporated into the federal
open dumping criteria.
                          federal revised criteria have no effect
                          pursuant to federal law, and, therefore,
                          are not enforceable in federal court
                          under RCRA sections 4005 (a) or
                          7002(a)(l)(A). The MSWLF revised
                          criteria, for example, require owners or
                          operators of MSWLFs to ensure that the
                          concentration of methane (an explosive
                          gas) does not exceed 25 percent of the
                          lower explosive limit for methane in
                          facility structures, and that the methane
                          concentration does not exceed the lower
                          explosive limit for methane at the
                          facility property boundary (40 CFR
                          258.23(a)). This provision, which guards
                          against potentially catastrophic
                          explosions and/or fires at MSWLFs (56
                          FR at 51051-52), neither leaves room for
                          an approved state to set a  more specific
                          standard nor provides the owner or
                          operator with the discretion to
                          determine how some general standard
                          should be articulated based on site-
                          specific factors. Thus, if a state
                          establishes a more stringent requirement
                          for controlling explosive gases, that
                          different state standard would not fill in
                          an area of discretion reserved by the
                          Subtitle D federal revised criteria,
                          would not become effective pursuant to
                          RCRA, and would not be enforceable in
                          federal court by RCRA citizen suit.
                          Similarly, state standards that regulate
                          activities beyond the scope of the
                          revised criteria—e.g., regulating wastes
                          not regulated by the federal standards-
                         would not be effective pursuant to
                         RCRA.
                           State adoption qf such a different
                         MSWLF requirement, however, does not
                         preclude citizen enforcement under
                         RCRA section 7002 of the Subtitle D
                         federal revised criteria. Even in a state
                         which requires that methane gas
                         concentrations not exceed 10  percent of
                         the lower explosive limit in facility
                         structures, for example, a citizen could
                         still enforce the less stringent federal
                         minimum requirement of not  exceeding
                         25 percent of the lower explosive limit
                         in facility structures.
                           RCRA does not authorize citizen
                         enforcement in federal court of such
                         divergent state requirements for several
                         reasons. The federal open dumping
                         criteria do not incorporate either state
                         standards beyond those provided for in
                         the Subtitle D federal revised criteria or
                         those state standards which fall outside
                         the scope of the discretion afforded by
                         those revised criteria. While RCRA
                         section 7002(a)(l)(A) permits citizen
                         enforcement of requirements that
                         "become effective pursuant to" RCRA,
                         nothing in RCRA Subtitle D or its
                         implementing regulations gives
                         additional state requirements—beyond
                         those allowed by the revised criteria—
                         any legal effect. In evaluating state
 permit programs under RCRA Subtitle
 D, EPA is making only a determination
 as to whether the state program will
 ensure that MSWLFs and waste disposal
 units receiving CESQG waste comply
 with the minimum federal criteria (42
 U.S.C. 6945(c)(l)(B) and (C)). The
 statutory language of RCRA Subtitle D
 clearly contemplates that while states
 may develop their own permit
 programs, compliance with the Subtitle
 D federal revised criteria was to be the
 primary goal of those state programs.
   Significantly, unlike the state
 authorization provisions in RCRA
 Subtitle C, Subtitle D state permit
 programs do not operate "in lieu" of the
 federal MSWLF program. Cf. 42 U.S.C.
 6926 (b). This has two consequences.
 First, the Subtitle D federal revised
 criteria remain in effect in approved
 states, as explained by EPA in the STIR
 proposed rule (61 FR 2593, Jan. 26,
 1996). Second, except for the alternative
 standards issued by an approved state
 Subtitle D permit program, which are
 specifically provided for in the revised
 criteria (the second type of criterion
 discussed), EPA's adequacy
 determination under RCRA Subtitle D
 does not make the state program
 "effective pursuant to" RCRA under
 RCRA section 7002(a)(1) (A).
   Moreover, RCRA section 3009
 specifically allows states to impose
 hazardous waste requirements under
 Subtitle C that are more stringent than
 the federal requirements (42 U.S.C.
 6929). In contrast, RCRA Subtitle D
 contains no statutory language
 specifically retaining a state's authority
 to impose more stringent requirements
 than those EPA has promulgated under
 RCRA sections 1008, 2002, 4004, and
 4010. While the Agency believes that
 states are free to establish more stringent
 requirements for facilities receiving
 hazardous household waste and CESQG
 waste, such requirements are not
 federally enforceable under Subtitle D's
 statutory scheme (unlike the more
 stringent provisions of an EPA-
 authorized state hazardous waste
 program).
  Thus, divergent state Subtitle D
 standards, which fall outside the scope
 of requirements provided in the revised
 criteria or which are more stringent than
 the revised criteria are not "effective
 pursuant to" RCRA and, therefore, not
 enforceable by citizen suit in federal
 court. The state's decision to impose a
 different requirement, including a more
stringent requirement, is solely a matter
of state law and policy. Allowing citizen
suits in federal court to enforce the
federal minimum standards, but not to
enforce purely state standards not
contemplated by the revised criteria.

-------
               Federal Register/Vol.  63,  No. 205/Friday,  October 23,  1998/Rules and Regulations       57033
  respects Congress's intent for a limited
  federal role under RCRA Subtitle D (as
  compared to RCRA Subtitle C). See 42
  U.S.C. 6901 (a) (4) (collection and
  disposal of solid wastes should continue
  to be primarily the function of state,
  regional, and local agencies).2
   d. Citizen enforcement of EPA-
  authorized state hazardous waste
  programs. EPA's longstanding view is
  that citizens can enforce the elements of
  an authorized state hazardous waste
  program under RCRA Subtitle C by
  bringing an action under RCRA section
  7002. See 49 FR 48300, 48304 (Dec. 12,
  1984) ("it is the EPA's position that the
  citizen suit provision of RCRA is
  available to all citizens whether or not
  a state is authorized."). The Agency's
  position that authorized state hazardous
  waste programs are enforceable by
  citizens is supported by the statutory
  structure of RCRA Subtitle C.
   In adopting hazardous waste
  programs, states must ensure that their
  programs are at least equivalent to the
  federal program, although state
  programs can be more stringent. 42
  U.S.C. sections 6926(b) and 6929. Once
 the (potentially more stringent) state
 program is authorized by EPA, that
 program operates "in lieu of the federal
 program. 42 U.S.C. 6926(b). Moreover,
 RCRA specifically envisions that EPA
 will enforce the requirements of an
 authorized state hazardous waste
 program by authorizing EPA to take
 enforcement action against violations
 which occur in a state with an
 authorized Subtitle C program. 42
 U.S.C. 6928(a)(2); see U.S. v. Bethlehem
 Steel Corp., 829 F.Supp.  10123, 1045
 (N.D. Ind. 1993) ("United States has
 concurrent authority to enforce those
 portions of the RCRA hazardous waste
 management program that EPA has
 authorized a state to enforce."), affd, 38
 F.3d 862 (7th Cir. 1994). In such
 circumstances, EPA authorization of the
 state program gives that state program
 legal effect under federal law—i.e., the
 state program "becomes effective
 pursuant to RCRA." The state program
 thus is citizen enforceable under the
 plain language of RCRA section 7002.
  Given that Subtitle C specifically
 allows states to develop more stringent
 requirements for hazardous waste and
 provides that such state requirements
 operate in lieu of federal requirements,
  EPA believes that citizens can enforce
  requirements of an authorized state
  hazardous^ waste program which are
  more stringent than the federal
  requirements. However, those
  requirements of an authorized state
  hazardous waste program which are
  broader in scope than those in the
  federal hazardous waste program are not
  federally-authorized and are not
  enforceable by citizens in federal courts.
  See 40 CFR 271.1 (I) (1) and  (2) (states are
  authorized to adopt more stringent
  standards but standards which have a
  greater scope of coverage than the
  federal requirements do not become part
  of the federally-authorized program).
  IV. Summary of Comments and EPA
  Response

  A. Overview
   More than twenty entities submitted
  comments in response to the proposed
  STIR. Commenters represented various
  interests, including state agencies, tribal
  governments, a waste management
  company, and a nonaffiliated
  individual. Because the D.C. Circuit
  Court's decision in Backcountry Against
  Dumps v. EPA precludes approval by
  EPA of tribal programs under RCRA
 Subtitle D, the Agency is not responding
 to comments that relate solely to Indian
 Country and has deleted the mechanism
 for approving tribal programs from
 today's final SIR.
   Additionally, the Agency has
 carefully considered all other comments
 during development of today's final
 rule. Apart from the deletion of
 references to tribal permit programs, the
 final SIR contains only minor changes
 from the proposed rule. Commenters
 clearly did not favor imposing
 additional requirements or
 incorporating major changes to the
 proposed rule. This section presents a
 summary of the major comments on the
 proposed STIR.

 B. General Comments and Agency
 Response
  2 Because of the unique structure and language of
RCRA Subtitle D, EPA's position on whether state
requirements contained within an EPA-approved
RCRA Subtitle D permit or other prior approval
program are enforceable by citizens does not have
any bearing on issues related to citizen suit
enforcement of state programs under other
environmental statutes, such as the Clean Water Act
and the Clean Air Act.                  .
 1. Already Approved Programs
   Comment: Several commenters
 expressed concern that today's rule
 would include changes from the
 proposed STIR that would necessitate
 major revisions to already approved
 programs. These commenters requested
 assurance that the final rule would not
 require reapproval of already approved
 permit programs.
  Response: Except for the
modifications discussed in Section V of
this preamble, today's rule is unchanged
from the draft proposed STIR that states
used as guidance in developing their
Subtitle D permit programs. The Agency
  provided opportunities for public
  comments and public hearings on the
  state MSWLF permit programs that have
  been approved to date and received few
  significant comments on the criteria
  used as a basis for approval. Since this
  final rule establishes essentially the
  same approval procedures and
  standards used in approving those
  states, states with approved permit
  programs need not reapply for approval.
  Language clearly stating that previously
  approved Subtitle D state permit
  programs will not require resubmission
  of ari application for approval to meet
  the requirements of today's final rule
  has been added to §239.2(a)(2). New
  applications for such already-approved
  states will only be necessary when state
  permit programs are modified as
  described in § 239.12. It remains
  necessary, however, to promulgate
  today's rule to provide a framework for
  modifications of approved permit
  programs, to establish procedures for
  withdrawal of approvals, and to finalize
  the process for future program
  approvals, including approvals for
  programs that allow for CESQG waste
  disposal at non-municipal, non-
  hazardous waste disposal units.
 2. Adequacy Determinations
   Comment: Several commenters
 expressed concern that the regulations
 as proposed do not provide adequate
 review of state programs to determine if
 they are sufficient to enforce the
 prohibition on open dumping and meet
 the Subtitle D federal revised criteria.
 These commenters believed that the
 proposed rule should require EPA to
 review the level of staffing and the
 technical capabilities of state programs
 as a component of the adequacy
 determination.
   Response: Due to the site-specific
 nature of ensuring compliance with the
 Subtitle D federal revised criteria, the
 Agency is not requiring specific
 resources and/or staffing for approved
 programs. Today's rule requires that
 approved state programs  have adequate
 authorities and procedures to allow
 them to take action as needed to ensure
 compliance with the requirements,
 including staffing and technical
 capabilities. It does not prescribe
 specific permitting procedures or
 enforcement and compliance
 monitoring activity levels or tasks.
 Different states will have  different
 resource requirements. State strategies
 for ensuring compliance must allow the
 states flexibility in determining the best
allocation of resources. State program
applications must include a discussion
of the resources that the state has
available to carry out its program and,

-------
 57034       Federal Register/Vol. 63, No.  205/Friday,  October 23, 1998/Rules and Regulations
 in certain cases (e.g., where state
 resources clearly are insufficient),
 resource information provided by the
 state may be used to make a
 determination of inadequacy.
 3. State Self-Certification
   Comment: Several commenters
 suggested that EPA include state self-
 certification provisions in the final rule
 to reduce the burden on states and EPA.
 Commenters suggested that such
 provisions would allow states to make
 their own determinations for permit
 program approvals and modifications.
   Response: RCRA section 4005 (c) (1) (C)
 directs EPA to determine whether state
 permit programs are adequate to ensure
 compliance with the Subtitle D federal
 revised criteria. EPA does not believe
 allowing self-certification without an
 independent EPA determination fulfills
 its obligations under RCRA section
 4005(c)(l)(C). which requires the
 Agency, rather than  the state, to make
 the final determination of adequacy for
 state Subtitle D permit programs. EPA
 recognizes the potential benefits of
 flexibility to MSWLF owners and
 operators in states with approved
 programs, and will make every effort to
 complete its adequacy determinations in
 accordance with the timeframe cited in
 section DI. C. 2.. Table 1. of this
 preamble.
   As indicated previously, EPA has
 developed a streamlined process that
 simplifies the adequacy determination
 process for certain state permit
 programs or other systems of prior
 approval that address requirements for
 non-hazardous, non-municipal waste
 disposal units that receive CESQG
 hazardous waste. In many states,
 disposal units receiving CESQG
 hazardous waste are  already subject to
 standards contained  in a state MSWLF
 permit program that EPA has approved
 or in a state hazardous waste permit
 program that EPA has authorized (61 FR
 34252. 34264. July 1. 1996). In such
 cases, as discussed previously in this
 preamble, the Agency believes that a
 streamlined review process is
 appropriate. EPA expects that such a
 process will significantly reduce
 burdens on states.
 4. Criminal Penalty Authority
   Comment: Several commenters
 expressed the belief that states should
 not be required to have criminal penalty
 authority for permit violations because,
 while not all states have criminal
 penalty authority, many have strong
 civil enforcement authority.
  Response: The Agency agrees with the
commenters. Although EPA asked for
comment on the issue of criminal
 penalty authority for permit violations
 (61 FR 2584, 2597, Jan. 26, 1996), the
 Agency did not propose that states must
 have such authority as a prerequisite for
 program approval. Effective
 enforcement programs include an
 appropriate means to deter violations
 and, when violations occur, to take
 action to bring violators into
 compliance. Although several
 environmental statutes other than RCRA
 contain language requiring states to
 have criminal penalty authority, the
 Agency believes that effective
 administrative and civil enforcement
 programs can ensure compliance under
 RCRA Subtitle D. The decision to
 establish criminal enforcement penalty
 provisions for Subtitle D criteria has
 been and will continue to be at the
 discretion of individual states.
 5. Judicial Review
   Comment: Two commenters
 expressed their view that strong public
 participation can only be ensured fay
 allowing judicial review of state agency
 permit decisions.
   Response: RCRA Subtitle D does not
 require judicial review of the
 requirements for approval of state
 permit programs, nor does it mandate
 states to require judicial review of
 individual permit decisions. Further,
 not all states have judicial review
 provisions for permitting decisions.
 Providing a requirement for judicial
 review would require a change in
 statutory authority and is beyond the
 scope of today's rulemaking.
   Under RCRA section 7004 (b), EPA is
 to encourage public participation. The
 public participation provisions in
 section 7004 (b) and in this rule are
 designed to ensure that the public is
 informed of decisions affecting solid
 waste management in their community.
 This rule requires approved states to
 have public participation procedures for
 permit issuance and post-permit action
 and to provide for public intervention in
 civil enforcement proceedings. EPA
 believes these requirements encourage
 public participation as prescribed under
 RCRA section 7004(b).
  In addition, under RCRA section
 7002(a), citizens may file actions in
 federal court to enforce the Subtitle D
 federal revised criteria for MSWLFs and
 non-municipal, non-hazardous disposal
 units that receive CESQG hazardous
 waste. Further, as discussed earlier, EPA
 believes that citizens may also file
 actions under RCRA section 7002 (a) to
 enforce (1) alternative state standards
 specifically provided for in the Subtitle
 D federal revised criteria and (2) state
standards that exercise the discretion
which the revised criteria provide to the
  owner or operator, e.g., selection of a
  corrective action remedy and schedule.

  6. Public Notification

    Comment: A commenter stated that
  the rule should be modified to provide
  public notice in the Federal Register
  whenever the Agency has information
  that may potentially lead to withdrawal
  of a previous adequacy determination
  for a state program. The commenter
  suggested that 40 CFR 239.12 and 40
  CFR 239.13 be modified to assure
  adequate public notice, including notice
  to the regulated community, of
  information that could threaten the
  approved status of a state program.
   Response: EPA agrees with the
  commenter that public notice and
  participation in evaluating a state's
  permit program is important. Existing
  regulations found in 40 CFR part 256 do
 require states to solicit public reaction
 and recommendations by allowing for
 public input when state legislation or
 regulations are being considered. 40
 CFR 256.62. Thus, if regulations
 underlying a state's approved permit
 program are being revised because of the
 Agency's re-evaluation of that program,
 the state may hold a public hearing in
 accordance with the state administrative
 procedure act. 40 CFR 256.2(a). In
 addition, states are free to use their own
 public involvement provisions to solicit
 public comments and involvement
 when a question arises as to the
 continued adequacy of an approved
 program which does not involve a
 change to state legislation or
 regulations.
   Furthermore, to provide for a greater
 level of public input concerning the
 withdrawal of an approved state
 program, EPA has decided to extend the
 time for public comment of a Regional
 Administrator's tentative withdrawal
 determination and on revised and
 amended applications from 30 days to
 60 days. These revisions to the proposed
 rule can be found in §§239.12(g)(l) and
 239.13(g).
  In conclusion, with these revisions,
 the Agency believes that the public
 notification and participation
 procedures delineated in 40 CFR 239.12,
 "Modifications of State Programs," and
 40 CFR 239.13, "Criteria arid Procedures
 for Withdrawal of Determination of
 Adequacy," in this final rule will
 provide sufficient public involvement in
 the determination process. EPA believes
 that these modified procedures for
public involvement are protective of
public interest, human health, and the
environment,  and, at the same time,
discourage unwarranted claims against
adequate programs.

-------
               Federal Register/Vol. 63,  No. 205/Friday, October 23, 1998/Rules and Regulations
                                                                      57035
 7. Conflicts of Interest

   Comment: One commenter was
 concerned about the potential conflict of
 interest involved when local
 government entities issue landfill
 permits to themselves. The commenter
 suggested that the final rule should
 include a provision to preclude local
 government agencies from issuing and
 enforcing permits where they own or
 operate the facility.
   Response: Because the effort required
 to manage and regulate municipal solid
 waste and non-municipal, non-
 hazardous solid waste dictates that the
 actual day-to-day work take place at
 both state and local levels, the final rule
 allows local agencies an implementation
 role where lead state agencies
 demonstrate, in the application for
 permit program approval, that the local
 agencies will ensure compliance and
 will operate under statewide authorities.
 As it did in the preamble to the
 proposed rule (61 FR 2594, Jan. 26,
 1996), the Agency continues to
 encourage states to work closely with
 local implementing agencies and
 provide oversight so that problems, such
 as local conflicts of interest, are
 prevented. Under §239.4, the narrative
 description of state permit programs
 must include a delineation of the
 jurisdiction and responsibilities of all
 implementing agencies and a
 description of the procedures for
 coordinating responsibilities among
 those agencies. EPA does not believe it
 necessary to preclude a local
 implementing agency from issuing and
 enforcing permits when there is state
 compliance oversight.

 8. Permit Program Modifications

   Comment: One commenter noted that,
 as proposed, 40 CFR 239.12 (d), which
, addresses notification requirements for
 states, could be interpreted to require
 approved states to notify EPA of all
 permit program modifications. The
 commenter recommended revising the
 language to identify those program
 modifications that require notification.
  Response: The Agency agrees that the
program modifications for which
notification would be required under
§239.12(d) are only those delineated
elsewhere in §239.12. Section 239.12(d)
now reads: "states must notify the
appropriate Regional Administrator of
all permit program modifications
required in paragraphs (b) and (c) of
this section within a time-frame agreed
upon by the State Director and the
Regional Administrator."
  9. Partial Withdrawal of State Permit
  Programs

    Comment: One comrh'enter stated that
  because the rule would provide that a
  state's permit program could be partially
  approved, the rule should also provide
  that EPA could withdraw approval for
  only certain portions or elements of a
  state's permit program, e.g. issuance of
  a partial withdrawal determination.
   Response: The Agency agrees with
  this comment and believes that in
  certain cases it may be appropriate to
  withdraw approval of only certain
  elements of a state's approved permit
  program rather than to withdraw an
  adequacy determination for an entire
  program. EPA has included language in
  § 239.13 which clarifies that EPA could,
  if appropriate, withdraw approval for
  only certain portions or elements of a
  state's permit program.

 V. Changes to Final Rule

 A. Revised Wording in 40 CFR
  239.2(a)(2)

   Several commenters requested
 assurance that promulgation of the final
 SIR would not require major revisions
 to, or reapproval of, already approved
 state permit programs. 40 CFR
 239.2(a)(2) contains clear language
 stating EPA's belief that today's rule
 does not contain changes from the
 proposed STIR that would require such
 revisions or reapprovals for fully
 approved programs or for approved
 elements of partially approved
 programs.

 B. Revised Wording in 40 CFR 239.12(d)

  As noted in section IV, Response 8,
 because of potential confusion involving
 the proposed wording of 40 CFR
 239.12(d), the Agency has revised the
 wording in today's final rule to clarify
 the intent of that section. In the
 proposed STIR, §239.12(d) could have
 been interpreted to require approved
 states to notify EPA of all permit
 program modifications. The Agency has
 modified §239.12(d) to now read:
 "states must notify the appropriate
 Regional Administrator of all permit
 program modifications required in
 paragraphs (b) and (c) of this section
 within a time-frame agreed by the State
 Director and the Regional.
 Administrator." This change should
 clarify the reference in §239.12(d).

 C. Revised Wording in 40 CFR 239.13
  One commenter requested that the
Agency allow issuance of a partial
withdrawal of a determination of
adequacy for only certain portions or
elements of a state's permit program.
  EPA has modified §239.13 to allow for
  such partial withdrawals.

  D. Increase in Public Comment Period
  for Revisions and Withdrawals
    To ensure that the public has
  adequate time to provide input on an
  Agency re-evaluation of already
  approved state permit program, EPA is
  extending the time for public comment
  on tentative withdrawal determinations
  (40 CFR 239.12(g)(l)) and on revised
  and amended applications (40 CFR
  239.13(g)) from 30 to 60 days.

  E. Deletion of References to Tribes
    On October 29, 1996, the United
  States Court of Appeals for the DC
  Circuit  (in Backcountry Against Dumps
  v. EPA, 100 F. 3d 147 (D.C. Cir. 1996))
  rejected EPA's argument that section
  4005(c)(l)(C) of RCRA, which requires
  EPA to review and determine the
  adequacy of state permitting programs
  or other systems of prior approval,
  authorized the Agency to review and
  approve tribal programs. Because the
  Court ruled that EPA cannot approve
  tribal MSWLF permitting programs
  under RCRA, owners and operators in
 Indian Country cannot, through tribal
 program approval, take advantage of the
 flexibility in implementing the Subtitle
 D federal revised criteria that is
 available in states with approved  permit
 programs. To reflect the court decision,
 references to tribes have been deleted
 from this final rule, and definitions for
 state and state director have been
 revised. With regard to providing
 flexibility to MSWLF owners and
 operators in Indian Country, the Court
 noted that EPA need not wait for
 Congress to revise section 4005(c)(l)(C)
 of RCRA. Without suggesting any
 disagreement, the Court indicated that
 all parties to the case (EPA, the Campo
 Band, and Backcountry Against Dumps)
 "agreed  that the Campo Band could seek
 EPA approval for a site-specific
 regulation which would satisfy both
 RCRA and the tribe's desire for
 flexibility in designing and monitoring
 a landfill on its reservation"
 (Backcountry Against Dumps v. EPA,
 100 F.3d at 150). To meet its goal of
 providing warranted flexibility quickly
 and efficiently to owners and operators
 in Indian country, including tribal
 government owners and operators, the
 Agency proactively issued site-specific
 rulemaking guidance consistent with
 the Court's suggestion. Owners or
 operators wishing to request such rules
should consult the document entitled
 "Site-Specific Flexibility Requests  for
Municipal Solid Waste Landfills in
Indian Country" (EPA 530-R-97-016).
The document is available through the

-------
  57036
Federal Register/Vol. 63, No. 205/Friday, October 23, 1998/Rules and Regulations
  RCRA Hotline (see For Further
  Information Contact above).
  F. Approval Standards for State CESQG
  Permit Programs
   In accordance with RCRA section
  4010(c). EPA has promulgated revised
  criteria for both facilities receiving
  hazardous household waste (40 CFR
  part 258) and facilities that receive
  CESQG hazardous waste (40 CFR part
  257, subpart B). Under RCRA section
  4005(c)(l)(B), states are required to
  adopt and implement permit programs
  or other systems of prior approval (here,
  collectively termed "permit programs)
  for both sets of revised criteria.
   In January 1996, when EPA proposed
  the STIR rule (61 FR 2584), the Agency
  had already promulgated the MSWLF
  revised criteria (56 FR 50978, Oct. 9,
  1991), but was still developing the
  standards for non-municipal, non-
  hazardous disposal units that receive
  CESQG hazardous waste. Thus.
  although EPA has since promulgated the
  CESQG revised criteria (61 FR 34252,
 July 1, 1996), the proposed STIR
 focused mainly on criteria for evaluating
 state MSWLF permit programs. It has
 always been EPA's intent, however, that
 the approval, modification, and
 withdrawal standards to be established
 In the STIR (now SIR) would also apply
 to State programs for disposal units
 receiving CESQG hazardous waste. This
 is evidenced by the proposed rule
 language itself and a number of
 statements EPA has made in Federal
 Register notices related to both this
 rulemaking and the CESQG revised
 criteria.
   First, EPA proposed that the
 provisions of the SIR rule would be
 applicable to all state permit programs
 that RCRA section 4005 (c) (1) (B) requires
 states to adopt and implement (61 FR
 2584.2601, Jan. 26.1996 (proposed
 §239.1)). As discussed above, such
 permit programs include state programs
 for disposal units receiving CESQG
 hazardous waste.
   Second. EPA proposed that states
 seeking an adequacy determination
 would need to submit an application
 that identified the scope of the program
 for which the state is seeking approval,
 i,e., which class of "Subtitle D regulated
 facilities" are covered by the application
 (61 FR2584. 2602 (proposed §239.3)).
 The Agency proposed to define
 "Subtitle D regulated facilities" to mean
 all "solid waste disposal facilities
subject to the revised criteria
promulgated by EPA under RCRA
section 4010(c)" (61 FR 2584,2602
 (proposed §239.2)). Such facilities
include disposal units that receive
CESQG hazardous waste.
                           Third, although the STIR proposal
                         indicated that the CESQG rulemaking
                         may address "as appropriate" the
                         requirements for EPA approval of non-
                         municipal, non-hazardous state permit
                         programs (61 FR 2584, 2585), the
                         Agency also has indicated  in the CESQG
                         rulemaking notices that the standards to
                         be established in the SIR rule would be
                         generally applicable to the Agency's
                         evaluation of state permit programs for
                         disposal units that accept CESQG
                         hazardous waste. In proposing the
                         revised criteria for non-municipal, non-
                         hazardous waste disposal units, for
                         example, EPA stated that "the process
                         that the Agency will use in evaluating
                         the adequacy of state programs will be
                         set forth in a separate rulemaking, the
                         State/Tribal Permit Program
                         Determination of Adequacy" (60 FR
                         30964, 30979, June 12, 1995). EPA also
                        stated in the proposed CESQG rule that
                        the process for evaluating state CESQG
                        programs would be the same as that
                        process used for evaluating state
                        MSWLF permitting programs and that
                        states would need to meet the
                        procedural and administrative
                        requirements identified in the STIR
                        rulemaking. Id.
                          Finally, in that same Federal Register
                        notice, EPA indicated that in
                        determining the adequacy of state
                        programs established to permit disposal
                        units receiving CESQG hazardous waste,
                        the Agency intended to evaluate the
                        state's program for its comparability to
                        the Subtitle D federal revised criteria for
                        location, ground-water monitoring, and
                        corrective action standards to be.
                        promulgated for those waste disposal
                        units receiving CESQG hazardous waste.
                        (See 60 FR 30979, June 12, 1995, "* * *
                        for the purpose of determining adequacy
                        and granting approval of state CESQG
                        programs, only the proposed technical
                        amendments to 40 CFR 257.5 through
                        257.30 will be evaluated.") Thus, to
                        clarify this intent, EPA has added
                        provisions to 40 CFR 239.6 that set forth
                        the requirements for state permit
                        programs pertaining to non-municipal,
                        non-hazardous waste disposal units that
                        receive CESQG hazardous waste.
                         These provisions (40 CFR  239.6(f))
                        require that states have the authority to
                        impose standards for waste disposal
                        units receiving CESQG hazardous waste.
                       These standards are comparable to those
                       found in the Subtitle D federal revised
                       criteria (40 CFR part 257, subpart B).
                       States must also ensure that new and
                       existing waste disposal units receiving
                       CESQG hazardous waste have permits
                       that incorporate conditions to ensure
                       compliance with the Subtitle D federal
                       revised criteria in 40 CFR part 257,
                       subpart B. The other requirements for
  public participation, compliance
  monitoring, and enforcement contained
  in the SIR rule must also be satisfied to
  obtain EPA approval of a state CESQG
  permit program.

  G. Process for Approval of State CESQG
  Permit Programs
    EPA proposed not to use a
  streamlined process to review revised
  applications for approval of state permit
  programs that relate to additional
  classifications of Subtitle D regulated
  facilities (61 FR 2584, 2599). Such
  additional classifications would include
  non-municipal, non-hazardous waste
  disposal units that receive CESQG
  hazardous waste. However, in
  promulgating the revised criteria for
  such CESQG hazardous waste disposal
  units (40 CFR part 257, subpart B), EPA
  indicated it was re-evaluating the use of
  a streamlined process, and that a final
  decision would be reached when the
  Agency issued the final STIR (now SIR)
  rule (61 FR 34252, 34264, July 1, 1996).
   EPA has discussed this issue with
  states and has decided to utilize a
  streamlined process for review of state
  CESQG permit programs in certain
  circumstances. As indicated above, for
  example, the Agency intends to use a
  streamlined review process to make
  adequacy determinations for state
  CESQG permit programs where EPA has
 previously reviewed a state permitting
 program, determined that it meets
 statutory requirements, and thus
 authorized the program under RCRA
 Subtitle C or approved it under Subtitle
 D (40 CFR part 258), if the state requires
 that CESQG hazardous waste be
 disposed of in permitted facilities
 meeting Subtitle C requirements or the
 MSWLF criteria. In such cases, EPA
 believes the state is already meeting the
 40 CFR part 257, subpart B CESQG
 hazardous waste disposal requirements
 because the location restrictions,
 ground-water monitoring, and corrective
 action standards required by 40 CFR
 part 257, subpart B are a subset of the
 requirements for authorized RCRA
 Subtitle C permit programs or approved
 Subtitle D MSWLF programs. Because
 these programs have been approved by
 EPA, there is no need for the Agency to
 conduct an additional review for the
 part 257, subpart B program. Further,
 EPA believes that, because the
 requirements of an authorized Subtitle C
 program or an approved MSWLF
program are clearly equal to or more
stringent than those contained in the
Subtitle D federal revised criteria for
CESQG hazardous waste disposal units,
a more streamlined approval process is
appropriate. Streamlined adequacy
determinations will be published in the

-------
              Federal Register/Vol. 63, No. 205/Friday, October 23, 1998/Rules and Regulations
                                                                      57037
 near future for states with programs that
 meet the criteria for streamlined
 approval.

 VI. Regulatory Assessments

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

   Under Executive Order 12866 (58 FR
 51735, October 4, 1993), the Agency
 must determine whether any proposed
 or final regulatory action is
 "significant," and therefore, subject to
 OMB review and the requirements of
 the Executive Order. The order defines
 "significant regulatory action" as one
 that is likely to result in a rule that may:
   (a) Have an annual effect on the
 economy of $100 million or more, or
 adversely affect in a material way the
 economy, a sector of the economy,
 productivity, competition, jobs, the
 environment, public health or safety, or
 State, local, or tribal governments or
 communities;
   (b) Create a serious inconsistency or
 otherwise interfere with an action taken
 or planned by another Agency;
   (c) Materially alter the budgetary
 impact of entitlements, grants, user fees,
 or loan programs, or the rights and
 obligations of recipients thereof; or
   (d) Raise novel legal or policy issues
 arising out of legal mandates, the
 President's priorities, or the principles
 set forth in the Executive Order.
   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 permit
 programs as outlined in this rule will
 not add substantial costs beyond those
 already imposed under the Subtitle D
 federal revised criteria. Regardless of
 this regulation, RCRA section .
 4005(c)(l)(B) requires all states to
 develop and implement permit
 programs to ensure compliance with the
 Subtitle D federal revised criteria. EPA
 believes that the final SIR does not
 impose a major increase in costs over
 and above any costs that RCRA section
 4005(c)(l)(B) already imposes on states.
The use of the streamlined process for
state CESQG permit program approval
when the Agency has previously
deemed a state permitting program to
meet all statutory requirements and if
the state requires CESQG disposal in a
permitted facility, further minimizes
any additional costs likely to be
incurred by the states.
 B. Regulatory Flexibility Act
   Pursuant to the Regulatory Flexibility
 Act (5 U.S.C. 601 etseqn as amended by
 the Small Business Regulatory
 Enforcement Fairness Act (SBREFA) of
 1996) whenever an agency is required to
 publish a notice of rulemaking for any
 proposed or final rule, it must prepare
 and make available for public comment
 a regulatory flexibility analysis that
 describes the effect of the rule on small
 entities (i.e., small businesses, small
 organizations, and small governmental
 jurisdictions). However, no regulatory
 flexibility analysis is required if the
 head of an agency certifies the rule will
 not have  a significant adverse economic
 impact on a substantial number of small
 entities.
   SBREFA amended the Regulatory
 Flexibility Act to require Federal
 agencies to provide a statement of the
 factual basis for certifying that a rule
 will not have a significant economic
 impact on a substantial number of small
 entities. The following discussion
 explains EPA's determination.
   The Agency has determined that
 today's final rule will not have a
 significant economic impact on a
 substantial number of small entities,
 since the  rule has direct effects only on
 state agencies. Therefore, no RFA has
 been prepared. Based on the foregoing
 discussion, I hereby certify that this rule
 will not have a significant adverse
 economic impact on a substantial
 number of small entities.

 C. Unfunded Mandates Reform Act
   Title II of the Unfunded Mandates
 Reform Act of 1995 (UMRA), Public
 Law 104-4, establishes requirements for
 federal agencies to assess the effects of
 their regulatory actions on state, local,
 and tribal governments and the private
 sector. Under section 202 of the UMRA,
 EPA generally must prepare a written
 statement, including a cost-benefit
 analysis, for proposed and final rules
 with "federal mandates" that may result
 in expenditures to state, local, and tribal
 governments, in the aggregate, or to the
 private sector, of $100 million or more
 in any one year. Before promulgating an
 EPA rule for which a written statement
 is needed, section 205 of UMRA
 generally requires EPA to identify and
 consider a reasonable number of
 regulatory alternatives and adopt the
 least costly, most cost-effective, or least
 burdensome alternative that achieves
the objectives of the rule. The
provisions of UMRA section 205 do not
apply when they are inconsistent with
applicable law. Moreover, UMRA
section 205 allows EPA to adopt an
alternative other than the least costly.
 most cost-effective or least burdensome
 alternative, if the Administrator
 publishes with the final rule an
 explanation of why that alternative was
 not adopted. Before EPA establishes any
 regulatory requirements that may
 significantly or uniquely affect small
 governments, including tribal
 governments, it must have developed,
 under section 203 of UMRA, a small
 government agency plan. The plan must
 provide for notifying potentially
 affected small governments, enabling
 officials of affected small governments
 to have meaningful and timely input in
 the development of EPA regulatory
 proposals with significant federal
 intergovernmental mandates, and
 informing, educating, and advising
 small governments on compliance with
 the regulatory requirements.
   EPA has determined that this rule
 does not contain a federal mandate   .
 (under the regulatory provisions of Title
 II of the UMRA) that may result in
 expenditures of $100 million or more
 for state and local governments in the
 aggregate, or for the private sector in any
 one year. EPA estimates that it costs a
 state approximately $15,000 to develop
 and submit to EPA an application for
 approval of a state MSWLF permit
 program. For a state preparing an
 application for non-municipal, non-
 hazardous waste disposal units that
 receive CESQG hazardous waste permit
 program, EPA estimates that it costs
 approximately $7,000. The lower
 estimated cost for CESQG program
 applications reflects the fact that CESQG
 requirements are a subset of the MSWLF
 criteria. Since the number of criteria
 that must be addressed by the
 application is fewer, time and resources
 needed to complete the application are
 decreased. EPA expects that a state
 applying for the streamlined approval
 process will incur no cost, since the
 required information will have been
 submitted to EPA by the state for
 previous program approval requests,
 and should already be in the Agency's
 files.
  EPA's approval of state programs has
 a deregulatory effect on the private
 sector. Once a state permit program or
 other system of prior approval for
 MSWLFs and non-municipal, non-
 hazardous waste disposal units that
 receive CESQG hazardous waste is
 determined to be "adequate" under
 RCRA section 4005(c)(l)(C), the
 flexibility the state may exercise tends
 to reduce, not increase, compliance
 costs for the private sector.
  EPA has determined that the final SIR
will not significantly or uniquely affect
small governments (UMRA section 203).
The Agency recognizes that small

-------
 57038
Federal Register/Vol. 63, No. 205/Friday,  October 23, 1998/Rules and Regulations
 governments may own and/or operate
 solid waste disposal facilities, including
 MSWLFs and non-municipal, non-
 hazardous waste disposal units that
 receive CESQG hazardous waste, that
 will be subject to the requirements of an
 approved state permit program under
 this rule. However, small governments
 that own and/or operate MSWLFs and
 non-municipal, non-hazardous waste
 disposal units that receive CESQG
 hazardous waste are already subject to
 the requirements in the Subtitle D
 federal revised criteria. Once EPA
 approves state permit programs under
 the SIR, these same small governments
 may own and operate their MSWLFs or
 non-municipal, non-hazardous waste
 disposal units that accept CESQG
 hazardous waste with increased levels
 of flexibility and generally lower
 compliance costs.
 D. Paperwork Reduction Act
   The information collection
 requirements in this rule have been
 submitted for approval to OMB under
 the Paperwork Reduction Act, 44 U.S.C.
 3501 etseg. An Information Collection
 Request (ICR) document has been
 prepared by EPA (ICR No. 1608.01), and
 a copy may be obtained from Sandy
 Farmer, OPPE Regulatory Information
 Division, U.S. EPA (2137), 401 M Street
 SW., Washington, DC 20460, or by email
 at farmer.sandy@epamail.epa.gov., or by
 calling (202)  260-2740.
  The need for this collection of
 information from the states derives from
 section 4005(c)  of RCRA. This section
 requires the EPA Administrator to
 review state permit programs to
 determine if they are adequate to ensure
 that MSWLFs and non-municipal, non-
 hazardous waste disposal units that
 receive CESQG hazardous waste comply
 with the federal requirements
 established for these disposal units. To
 carry out this mandate and make a
 determination. EPA must collect
 information from states in the form of an
 application for permit program
 approval. The universe of respondents
 involved in this information collection
 will be limited to those states seeking
 approval of their permit programs. The
 information that states will submit is
 public information: no problems of
 confidentiality or sensitive questions
 arise.
  EPA is preparing to publish a
 streamlined approval process for state
 CESQG permit programs when the state
 already has an Agency-authorized
 Subtitle C or an Agency-approved
 MSWLF permit program and the state
requires that CESQG hazardous waste
disposal occur only in a permitted
facility that meets the requirements of
                         Subtitle C or the MSWLF criteria. The
                         Agency believes the use of a streamlined
                         approval process is appropriate in such
                         cases because the hazardous waste
                         regulations and the MSWLF criteria
                         include disposal requirements that are
                         equal to or more stringent than the
                         requirements of 40 CFR part 257,
                         subpart B. Additionally, in all cases
                         where a state program is eligible for
                         streamlined approval, the Agency has
                         already authorized the Subtitle C
                         permitting program or approved the
                         MSWLF permitting program in that
                         state, as appropriate. EPA expects that
                         23 states will be processed under the
                         streamlined approval process. For these
                         states, there is no burden, because EPA
                         expects to use information contained in
                         existing Agency files to conduct the
                         review. The Agency estimates that 32
                         states and territories will be approved
                         under the SIR review process for their
                         CESQG waste disposal requirements.
                          To date, EPA has fully or partially
                         approved 47 state/territorial MSWLF
                         permit programs using the draft STIR as
                         guidance. EPA has received 3 new, first
                         time MSWLF permit program
                         applications from states/territories and
                         expects 3 states/territories to modify
                         pending applications. Therefore, EPA
                         estimates 38 states/territories will be
                        subject to information collection
                        requests in the form of an application
                        for permit program approval.
                          The projected burden estimate for the
                        submittal of a schedule or an
                        application by the projected 38 states/
                        territories within a 3-year timeframe is
                        9,900 hours, or about 3,300 hours per
                        year for the three year period. Given
                        these parameters, the final cost estimate
                        for the states is $294,000 over three
                        years. The projected three year burden
                        for the Agency to review 38 new or
                        revised state applications and to provide
                        streamlined review of 23 state CESQG
                        hazardous waste disposal requirements
                        is 10,300 hours and $309,000. The total
                        burden for states and EPA over a three
                        year period is 20,200 hours and
                        $603,000. This cost estimate reflects
                        costs for reviewing instructions,
                        searching existing data sources,
                        gathering and maintaining needed data,
                        and completing and reviewing the
                        collection of information. 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; to develop,
                        acquire, install, and utilize technology
                        and systems for the purposes of
                        collecting, validating, and verifying
                        information; to adjust the existing ways
                        to comply with any previously-
  applicable instructions and
  requirements; to train personnel to be
  able to respond to a collection of
  information; to search data sources; to
  complete and review the collection of
  information; and to 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.  Send comments 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 to the Director, OP
  Regulatory Information Division; U.S.
  Environmental Protection Agency
  (2137); 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."
 Comments are requested By November
 23,  1998. Include the ICR number in any
 correspondence.

 E. Executive Order  13045: Protection of
 Children From Environmental Health
 Risks and Safety Risks
   Executive Order 13045, entitled
 "Protection of Children from
 Environmental Health Risks and Safety
 Risks" (see 62 FR 19885, April 23, 1997)
 applies to any rule that (1) is
 determined to be "economically
 significant" as defined under E.O.
 12866, and (2) concerns an
 environmental health or safety risk that
 EPA has reason to believe may have a
 disproportionate effect on children. If
 the regulatory action meets both criteria,
 the Agency must evaluate the
 environmental health or safety effects of
 the planned rule on children, and
 explain why the planned regulation is
 preferable to other potentially effective
 and  reasonably feasible alternatives
 considered by the Agency. This rule is
 not subject to E.O. 13045 because it is
 not an economically significant rule as
 defined by E.O. 12866.

 F. National Technology Transfer and
 Advancement Act
  Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Public Law No.
 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to  use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or

-------
              Federal  Register/Vol. 63, No.  205/Friday, October 23,  1998/Rules and Regulations
                                                                     57039
 otherwise impractical. Voluntary
 consensus standards are technical
 standards (e.g., materials specifications,
 test methods, sampling procedures, and
 business practices) that are developed or
 adopted by voluntary consensus
 standards bodies. The NTTAA directs
 EPA to provide Congress, through OMB,
 explanations when the Agency decides
 not to use available and applicable
 voluntary consensus standards.
   This action does not involve technical
 standards. Therefore, EPA did not
 consider the use of any voluntary
 consensus standards.

 G. Executive Order 12898:
 Environmental Justice
   Under Executive Order 12898,
 "Federal Actions to Address
 Environmental Justice in Minority
 Populations and Low-Income
 Populations," as well as through EPA's
 April 1995, "Environmental Justice
 Strategy, OSWER Environmental Justice
 Task Force Action Agenda Report," and
 National Environmental Justice
 Advisory  Council, EPA has undertaken
 to incorporate environmental justice
 into its policies and programs. EPA is
 committed to addressing environmental
justice concerns and is assuming a
 leadership role in environmental justice
 initiatives to enhance environmental
 quality for all residents of the United
 States. The Agency's  goals are to ensure
 that no segment of the population,
 regardless of race, color, national origin,
 or income bears disproportionately high
 and adverse human health and
 environmental effects as a result of
 EPA's policies, programs, and activities,
 and all people live in clean and
 sustainable communities. To address
 this goal, EPA considered the impacts of
 the State Implementation final rule on
 low-income populations and minority
populations and concluded that today's
final rule will potentially advance
environmental justice causes. The state
permit program approval process set
forth in today's final rule allows all
potentially affected segments of the
population to participate in public
hearings and/or to provide comment on
health and environmental concerns that
may arise  pursuant to a proposed
Agency action under the rule. In
addition, the rule's civil suit provision
provides citizens with various
mechanisms to help ensure compliance
with 40 CFR part 257, subpart B or 40
CFR part 258 criteria.

H. Executive Order 12875: Enhancing
the Intergovernmental Partnership
  Under Executive Order 12875, EPA
may not issue a regulation that is not
required by statute and that creates a
 mandate upon a State, local or tribal
 government, unless the Federal
 government provides the funds
 necessary to pay the direct compliance
 costs incurred by those governments. If
 the mandate is unfunded, EPA must
 provide to the Office of Management
 and Budget a description of the extent
 of EPA's prior consultation with
 representatives of affected State, local
 and tribal governments, the nature of
 their concerns, copies of any written
 communications from the governments,
 and a statement supporting the need to
 issue the regulation. In addition,
 Executive Order 12875 requires EPA to
 develop an effective process permitting
 elected officials and other
 representatives of State, local and tribal
 governments "to provide meaningful
 and timely input in the development of
 regulatory proposals containing
 significant unfunded mandates."
   In developing this rule, EPA
 consulted with various states and state
 organizations to enable them to provide
 meaningful and timely input in the
 development of this rule. EPA worked
 closely with state governments in the
 development of the final SIR. EPA
 distributed drafts of the proposed rule to
 14 states for their review and comments
 and provided copies of the draft
 proposed STIR to the Association of
 State and Territorial Solid Waste
 Management Officials, which
 distributed it to all of its state and
 territorial members. EPA also 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 provided notice to small
 governments of the requirements of the
 Subtitle D federal revised criteria and
 the SIR; obtained meaningful and timely
 input from them; and informed,
 educated, and advised small
 governments on how to comply with the
 requirements of the SIR and the Subtitle
 D federal revised criteria. Through
 notice, EPA sought input from small
 governments during the rulemaking
 process. However, today's rule does not
 create a mandate on State,' local or tribal
 governments. The rule does not impose
 any enforceable duties on these entities.
 Accordingly, the requirements of
 section l(a) of Executive Order 12875 do
 not apply to this rule.
 I. Executive Order 13084: Consultation
 and Coordination With Indian Tribal
 Governments
  Under Executive Order 13084,  EPA
may not issue a regulation that is not
required by statute, that significantly or
 uniquely affects the communities of
 Indian tribal governments, and that
 imposes substantial direct compliance
 costs on those communities, unless the
 Federal government provides the funds
 necessary to pay the direct compliance
 costs incurred by the tribal
 governments. If the mandate is
 unfunded, EPA must provide to the
 Office of Management and Budget, in a
 separately identified section of the
 preamble to the rule, a description of
 the extent of EPA's prior consultation
 with representatives of affected tribal
 governments, a summary of the nature
 of their concerns, and a statement
 supporting the need to issue the
 regulation. In addition, Executive Order
 13084 requires EPA to develop an
 effective process permitting elected and
 other representatives of Indian tribal
 governments "to provide meaningful
 and timely input in the development of
 regulatory policies on matters that
 significantly or uniquely affect their
 communities.''
   Today's rule does not significantly or
 uniquely affect the communities of
 Indian tribal governments. There is no
 impact on these communities.
 Accordingly, the requirements of
 section 3(b) of Executive Order 13084
 do not apply to this rule.

 VH. Submission to Congress and the
 General Accounting Office

   The Congressional Review Act, 5
 U.S.C. 801 etseq., as added by the Small
 Business Regulatory Enforcement
 Fairness Act of 1996, generally provides
 that before a rule may take effect, the
 agency promulgating the rule must
 submit a rule report, which includes a
 copy of the rule, to each House of the
 Congress and to the Comptroller General
 of the United States. EPA will submit a
 report containing this rule and other
 required information to the U.S. Senate,
 the U.S. House of Representatives, and
 the Comptroller General of the United
 States prior to publication of the rule in
 the Federal Register.  A Major rule
 cannot take effect until 60 days after it
 is published in the Federal Register.
 This action is not a "major rule" as
 defined by 5 U.S.C. 804(2), This rule
 will be effective November 23, 1998.

 List of Subjects

 40 CFR Part 239

  Environmental protection, Adequacy,
Administrative practice and procedure,
Municipal solid waste landfills, Non-
hazardous solid waste, Non-municipal
solid waste, State permit program
approval.

-------
  57040
Federal  Register/Vol. 63, No.  205/Friday, October  23,  1998/Rules and Regulations
  40 CFR Part 257
    Environmental protection, Reporting
  and recordkeeping requirements. Waste
  disposal.
  40 CFR Part 258
    Environmental protection. Reporting
  and recordkeeping requirements. Waste
  treatment and disposal. Water pollution
  control.
   Dated: October 15,1998.
  Carol M. Browner,
  Administrator.
   For the reasons set out in the
  preamble. Title 40, Chapter I of the Code
  of Federal Regulations is amended as set
  forth below:

  PART 235—REQUIREMENTS FOR
  STATE PERMIT PROGRAM

   1. Part 239 is added to read as follows:

  PART 239—REQUIREMENTS FOR
 STATE PERMIT PROGRAM
 DETERMINATION OF ADEQUACY

 Subpart A—General
 Sec.
 239.1  Purpose.
 239.2  Scope and definitions.
 Subpart B—State Program Application
 239.3  Components of program application.
 239.4  Narrative description of state permit
     program.
 239,5  State 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 programs.
 239.13  Criteria and procedures for
    withdrawal of determination of
    adequacy.
  Authority: 42 U.S.C. 6912, 6945.

 Subpart A—General

 §239.1   Purpose.
  This part specifies the requirements
 that state permit programs must meet  to
 be determined adequate by the EPA
 under section 4005(c)(l)(C) of the
 Resource Conservation and Recovery
 Act (RCRA or the Act)  and the
 procedures EPA will follow in
 determining the adequacy of state
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)(l)(B).

                         §239.2  Scope and definitions.
                           (a) Scope. (1) Nothing in this part
                         precludes a state 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 which develop and
                         implement a Subtitle D permit program
                         must submit an application for an
                         adequacy determination for purposes of
                         this part. Except as provided in
                         §239.12, state Subtitle D permit
                         programs which received full approval
                         prior to November 23, 1998 need not
                         submit new applications for approval
                         under this part. Similarly, except as
                         provided in §239.12, states that
                         received partial approval of their
                         Subtitle D permit programs prior to
                         November 23,  1998 need not reapply
                         under this part for approval for those
                         program elements EPA has already
                         determined to  be adequate.
                           (3) If EPA determines that a state
                         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
                        jurisdiction.
                           (b) Definitions. (1) For purposes of
                         this part:
                          Administrator means the
                        Administrator of the U.S.
                        Environmental Protection Agency or
                        any authorized representative.
                          Approved permit program or
                        approved program means a state
                        Subtitle D permit program or other
                        system of prior approval and conditions
                        required under section 4005(c)(l)(B) of
                        RCRA that has  been determined to be
                        adequate by EPA under this part.
                          Approved state means a state whose
                        Subtitle D permit program or other
                        system of prior approval and conditions
                        required under section 4005 (c) (1) (B) of
                        RCRA 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 laws and regulations.
                        These documents provide direction
                        with regard to how state agencies
                        should interpret their permit program
                        requirements and must be consistent
                        witfi state laws and regulations.
    Implementing agency means the state
  and/or local agency(ies) responsible for
  carrying out an approved state permit
  program.
    Lead state agency means the state
  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 facilities regulated under
  section 4010(c) of Subtitle D of RCRA
  comply with the requirements of the
  approved state permit program and/or
  has been designated as lead agency.
   Permit or prior approval and
  conditions means any authorization,
  license, or equivalent control document
  issued under the authority of the state
  regulating the location, design,
  operation, ground-water monitoring,
  closure, post-closure care, corrective
  action, and financial assurance of
  Subtitle D regulated facilities.
   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, found at 40 CFR part
  257, subpart B and 40 CFR part 258, and
 the technical and administrative
  information used to explain the basis of
 permit conditions.
   Regional Administrator means any
 one of the ten Regional Administrators
 of the U.S. Environmental Protection
 Agency or any authorized
 representative.
   State Director means the chief
 administrative officer of the lead state
 agency responsible for implementing
 the state permit program for Subtitle D
 regulated facilities.
   State program or permit program
 means all the authorities, activities, and
 procedures that comprise the state'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 facilitiesmeans
 all solid waste disposal facilities subject
 to the revised criteria promulgated by
 EPA under the authority of RCRA
 Section 4010(c).
   (c) The definitions in 40 CFR part 257,
 subpart B and 40 CFR part 258 apply to
 all subparts of this part.

 Subpart B—State Program Application

 § 239.3 Components of program
application.
  Any state that seeks a determination
of adequacy under this part must submit
an application to the Regional
Administrator in the appropriate EPA

-------
              Federal Register/Vol. 63, No.  205/Friday, October 23, 1998/Rules and .Regulations
                                                                       57041
 Region. The application must identify
 the scope of the 'program for which the
 state 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 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 jurisdiction. The application
 must contain the following parts:
   (a) A transmittal letter, signed by the
 State Director, requesting program
 approval. If more than one state agency
 has implementation responsibilities, the
 transmittal letter must designate a lead
 agency and be jointly signed by all state
 agencies with implementation
 responsibilities or by the State
 Governor;
   (b) A narrative  description  of the state
 permit program in accordance with
 § 239.4;
   (c) A legal certification in accordance
 with § 239.5;
   (d) Copies of all applicable state
 statutes, regulations, and guidance.

 § 239.4  Narrative description of state
 permit program.
   The description of a state's program
 must include:
   (a) An explanation of the jurisdiction
 and responsibilities of all state agencies
 and local agencies implementing the
 permit program and description of the
 coordination and communication
 responsibilities of the lead state agency
 to facilitate communications between
 EPA and the state if more than one state
 agency has implementation
 responsibilities;
   (b) An explanation of how the state
 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
 meets the requirements in §§239.6,
 239.7, 239.8, and  239.9;
   (d) The number of facilities within the
 state's jurisdiction that received waste
 on or after the following dates:
   (1) For municipal solid waste landfill
 units, October 9, 1991.
   (2) For non-municipal, non-hazardous
waste disposal units that receive CESQG
hazardous waste, January 1, 1998.
   (e) A discussion of staff resources
available to carry  out and enforce the
relevant state permit program.
  (fj A description of the state's  public
participation procedures as specified in
§239.6(a) through (c).
 §239.5  State legal certification.
   (a) A state must submit a written
 certification from the state Attorney
 General 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 permit program
 is approved. This certification may be
 signed by the independent legal counsel
 for the state rather than the Attorney
 General, provided that such counsel has
 full authority to independently
 represent the lead state agency in court
 on all matters pertaining to the state
 program.
   (b) If guidance is to be used to
 supplement statutes and regulations, the
 state legal certification must discuss that
 the state has the authority to use
 guidance to develop enforceable permits
 which will  ensure compliance with
 relevant standards issued pursuant to
 RCRA section 4010(c) and that the
 guidance was duly issued in accordance
 with state law.
   (c) 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 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 §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

§239.6  Permitting requirements.
   (a) State law must require that:
   (1) Documents for permit
determinations are made available for
public review and comment; and
   (2) Final determinations on permit
applications are made known to the
public.
   (b) The state shall have procedures
that ensure that public comments on
permit determinations are considered.
   (c) The state must fully describe its
public participation procedures for
  permit issuance and post-permit actions
  in the narrative description required
  under §239.4 and include a copy of
  these procedures in its permit program
  application.
   (d) The state shall have the authority
  to collect all information necessary to
  issue permits that are adequate to
  ensure compliance with the relevant 40
  CFR part 257, subpart B or 40 CFR part
  258 federal revised criteria.
   (e) For municipal solid waste landfill
  units, state 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 by the
 deadlines identified in 40 CFR 258.1;
   (3) The state 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.
   (f) For non-municipal, non-hazardous
 waste disposal units that receive CESQG
 waste, state law must require that:
   (1) Prior to construction and
 operation, all new non-municipal, non-
 hazardous waste disposal units that
 receive  CESQG hazardous waste shall
 have a permit incorporating the
 conditions identified in paragraph (f)(3)
 of this section;
   (2) All existing non-municipal, non-
hazardous waste disposal units that
receive CESQG hazardous waste shall

-------
 57042
Federal  Register/Vol. 63, No. 205/Friday, October 23, 1998/Rules and Regulations
 have a permit incorporating the
 conditions identified in paragraph (f)(3)
 of this section by the deadlines
 identified in 40 CFR 257.5;
   (3) The state shall have the authority
 to impose requirements for non-
 municipal, non-hazardous waste
 disposal units that receive CESQG
 hazardous waste adequate to ensure
 compliance with 40 CFR part 257,
 subpart B. These requirements shall
 include:
   (i) General standards which achieve
 compliance with 40 CFR part 257,
 subpart B(§ 257.5);
   (ii) Location restrictions for non-
 municipal, non-hazardous waste
 disposal units which achieve
 compliance with 40 CFR 257.7 through
 257.13;
   (iii) Ground-water monitoring and
 corrective action standards for non-
 municipal, non-hazardous waste
 disposal units which achieve
 compliance with 40 CFR 257.21 through
 257.28; and.
   (iv) Recordkeeping for non-municipal,
 non-hazardous waste disposal units
 which achieves compliance with 40
 CFR 257.30.

 § 239.7  Requirements for compliance
 monitoring authority.
   (a) The state must have the authority
 to:
   (1) Obtain any and all information
 necessary, including records and
 reports, from an owner or operator of a
 Subtitle D regulated facility, to
 determine whether the owner or
 operator is in compliance with the state
 requirements;
   (2) Conduct monitoring or testing to
 ensure that owners and operators are in
 compliance with the state 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 must demonstrate that its
 compliance monitoring program
 provides for inspections adequate to
 determine compliance with the
 approved state permit program.
   (c) A state 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.

                         § 239.8  Requirements for enforcement
                         authority.
                           Any state seeking approval must have
                         the authority to impose the following
                         remedies for violation of state 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
                         which is part of or issued pursuant to
                         the state 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 program or of
                         an order or permit which is issued
                         pursuant to the state program.

                         §239.9  Intervention in civil enforcement
                         proceedings.
                          Any state seeking approval must
                         provide for intervention in the state
                         civil enforcement process by providing
                         either:
                          (a) Authority that allows intervention,
                         as a right, in any civil action to obtain
                         remedies specified in §239.8 by any
                         citizen having an interest that is or may
                         be adversely affected; or,
                          (b) Assurance by the appropriate state
                         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

                        §239.10 Criteria and procedures for
                        making adequacy determinations.
                          (a) The State Director seeking an
                        adequacy determination must submit to
                        the appropriate Regional Administrator
                        an application in accordance with
                        §239.3.
                          (b) Within 30 days of receipt of a state
                        program application, the Regional
  Administrator will review the
  application and notify the state whether
  its application is administratively
  complete in accordance with the
  application components required in
  §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 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 program. The Regional
  Administrator shall publish the
  tentative determination on the adequacy
  of the state 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
 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
 program may not be adequate;
   (4) Note the availability for inspection
 by the public of the state permit
 program application; and
   (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 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 Director, agrees to extend the
 review period. The Regional
 Administrator will give notice of the
 final determination in the Federal
 Register. The document must include a
 statement of the reasons for the
 determination and a response to
 significant comments received.
  (e) For all states 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

-------
              Federal Register/Vol.  63, No. 205/Friday,  October 23,  1998/Rules and Regulations
                                                                      57043
 permit programs inadequate to ensure
 compliance with the relevant Subtitle D
 federal revised criteria. Such states may
 apply later for a determination of
 adequacy.

 § 239.11  Approval procedures for partial
 approval.
   (a) EPA may partially approve state
 permit programs that do not meet all of
 the requirements in §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 permit program  largely meets the
 technical requirements of §239.6 and
 meets all other requirements of this part;
   (2) Changes to a specific part(s) of the
 state permit program are required in
 order for the state program to fully meet
 the requirements of §239.6;  and
   (3) Provisions not included in the
 partially approved portions  of the state
 permit program are clearly identifiable
 and separable subsets of the relevant
 Subtitle D federal revised criteria.
   (b) A state 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 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 with partially approved
 permit programs are only approved for
 those relevant provisions of the Subtitle
 D criteria included in the partial
 approval.
   (e) Any partial approval adequacy
 determination made by the Regional
 Administrator pursuant to this section
 and § 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 seeking an extension
 must submit a request to the appropriate
 Regional Administrator, must provide
 good 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 good cause  and if the
 new schedule is realistic. If the Regional
Administrator extends the expiration
 date, the Region will publish a
 document in the Federal Register along
with the new expiration date. A state
with partial approval shall submit an
 amended application meeting all of the
 requirements of this part and have that
 application approved by the two-year
 deadline or the amended date set by the
 Regional Administrator.
   (!) The Regional Administrator will
 follow the adequacy determination
 procedures in §239.10 for all initial
 applications for partial program
 approval and follow the adequacy
 determination procedures in §239.12(f)
 for any amendments for approval for
 unapproved sections of the relevant
 Subtitle D federal revised criteria.

 § 239.12  Modifications of state programs.
   (a) Approved state permit programs
 may be modified for various reasons,
 such as changes in federal or state
 statutory or regulatory authority.
   (b) If the federal statutory or
 regulatory authorities that have
 significant implications for state permit
 programs change, approved states 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 requirements
 would be made  known to the states
 either in a Federal Register document
 containing the change or through the
 appropriate EPA Regional Office.
   (c) States that modify their programs
 must notify the Regional Administrator
 of the modifications. Program
 modifications include changes in state
 statutory or regulatory authority or
 relevant guidance or shifting of
 responsibility for the state program
 within the lead agency or to a new or
 different state agency or agencies.
 Changes to the state'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 basic statutory or
 regulatory authority or guidance which
 were not part of the state's initial
 application, but  may have a significant
 impact  on the adequacy of the state's
 permit program, also must be reported
 to the Regional Administrator.
  (d) States must notify the appropriate
 Regional Administrator of all permit
 program modifications required in
 paragraphs (b) and (c)  of this section
 within a time-frame agreed to by the
 State Director and the Regional
 Administrator.
  (e) The Regional Administrator will
 review the modifications  and determine
whether the State Director must submit
 a revised application. If a revised
 application is necessary, the Regional
Administrator will inform the State
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 municipal solid
 waste landfill permit program
 applications, and for all amended
 applications in the case of partially
 approved programs, the state must
 submit to the appropriate Regional
 Administrator an amended application
 that addresses those portions of its
 program that have changed or are being
 amended. For such revised programs, as
 well as for those from states seeking
 EPA approval of permit programs for
 state regulation of non-municipal, non-
 hazardous waste disposal units which
 receive conditionally exempt small
 quantity generator hazardous waste, the
 Regional Administrator will make an
 adequacy determination using the
 criteria found in  § 239.10.
   (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 §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 permit program affected and
 providing an opportunity to comment
 for a period of at least 60 days.
   (2) The adequacy determination will
 become effective  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 document responding
 to public comments and either affirming
 or revising the initial decision.

 § 239.13  Criteria and procedures for
 withdrawal of determination of adequacy.
  (a) The Regional Administrator may
 initiate withdrawal of all or part of a
 determination of state program
 adequacy when the Regional
 Administrator has reason to believe that:
  (1) All or a part of a state program is
 no longer adequate, or
  (2) The state no longer has adequate
 authority to administer and enforce all
 or part of an approved program in
accordance with this part.
  (b) Upon receipt of substantive
information sufficient to indicate that
all or a part of a state program may no
longer be adequate, the Regional

-------
  57044
Federal Register/Vol. 63, No. 205/Friday, October 23, 1998/Rules and Regulations
  Administrator shall inform the state in
  writing of the information.
    (c) If, within 45 days of the state's
  receipt of the information in paragraph
  (b) of this section, the state
  demonstrates to the satisfaction of the
  Regional Administrator that the state
  program is adequate (i.e., in compliance
  with this  part), the Regional
  Administrator shall take no further
  action toward withdrawal of
  determination of adequacy and shall so
  notify the state and any person(s) who
  submitted information regarding the
  adequacy of the state's program and
  authorities.
   (d) If the State Director does not
  demonstrate the state'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 a reasonable time for the state 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 must
 correct any program deficiencies and
 inform the State Director of the time
 period in writing.
   (e) Within the schedule negotiated by
 the Regional Administrator and the
 State Director, or set by the Regional
 Administrator, the state shall take
 appropriate action to correct
 deficiencies and shall file with the
 Regional Administrator a statement
 certified by the State Director describing
 the steps taken to correct the
 deficiencies.
   (f) If the  state takes appropriate action
 to correct deficiencies, the Regional
 Administrator shall take no further
 action toward withdrawal of
 determination of adequacy and shall so
 notify the state and any person(s) who
 submitted information regarding the
 adequacy of the state's permit program.
 If the state  has not demonstrated its
 compliance with this part to the
 satisfaction of the Regional
 Administrator, the Regional
 Administrator shall inform the State
 Director and may initiate withdrawal of
 all or part of the determination of state
 program adequacy.
  (g) The Regional  Administrator shall
 initiate withdrawal of determination of
adequacy by publishing the tentative
                         withdrawal of determination of
                         adequacy of the state program in the
                         Federal Register. Notice of the tentative
                         determination must:
                           (1) Afford the public at least 60 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
                         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
                         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 is in
                         compliance with this part, the
                         withdrawal proceedings shall be
                         terminated and the decision shall be
                         published in the Federal Register. The
                         document 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 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
                        permit program inadequate to ensure
                        compliance with the relevant Subtitle D
                        federal revised criteria. The document
                        will include a statement of the reasons
                        for this determination and response to
                        significant comments received.
                          (i) States may seek a  determination of
                        adequacy at any time after a
                        determination of inadequacy.

                        PART 257—CRITERIA  FOR
                        CLASSIFICATION OF SOLID WASTE
                        DISPOSAL FACILITIES AND
                        PRACTICES

                         2-3. The authority citation for part
                        257 continues to read as follows:
   Authority: 42 U.S.C. 6907(a)(3), 6912(a)(l),
  6944(a) and 6949(c); 33 U.S.C. 1345(d) and
  (e).

   4. Section 257.5 is amended by
  revising the definitions for State and
  State Director to read as follows:

  § 257.5  Disposal standards for owners/
  operators of non-municipal, non-hazardous
  waste disposal units that receive
  Conditionally Exempt Small Quantity
  Generator (CESQG) waste.
  *****

   State means any of the several States,
  the District of Columbia, the
  Commonwealth of Puerto Rico, the
  Virgin Islands, Guam, American Samoa,
  and the Commonwealth of the Northern
  Mariana Islands.
   State Director means the chief
  administrative officer of the lead state
  agency responsible for implementing
  the state permit program for 40 CFR part
  257, subpart B and 40 CFR part 258
 regulated facilities.
 PART 258—SOLID WASTE DISPOSAL
 CRITERIA

   5. The authority citation 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).

   6. Section 258.2 is amended by
 revising the definitions for "Director of
 an Approved State" and "State
 Director" to read as follows:

 §258.2  Definitions.
  Director of an Approved State means
the chief administrative officer of a state
agency responsible for implementing
the state permit program that is deemed
to be adequate by EPA under regulations
published pursuant to sections 2002 and
4005 of RCRA.
*****

  State Director means the chief
administrative officer of the lead state
agency responsible for implementing
the state permit program for 40 CFR part
257, subpart B and 40 CFR part 258
regulated facilities.
******
[FR Doc. 98-28361 Filed 10-22-98; 8:45 am]
BILLING CODE 6560-50-P

-------