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
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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.
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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.
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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
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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
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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
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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. •
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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.
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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,
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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