[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21108]


[[Page Unknown]]

[Federal Register: August 26, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5059-3]

 

Commonwealth of Puerto Rico; Final Determination of Adequacy of 
State/Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of adequacy to fully approve the 
Commonwealth of Puerto Rico's municipal solid waste permit program.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and 
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, requires States to develop and implement 
permit programs to ensure that municipal solid waste landfills (MSWLFs) 
which may receive hazardous household waste or small quantity generator 
waste will comply with the revised Federal MSWLF Criteria (40 CFR part 
258). RCRA section 4005(c)(1)(C) requires the Environmental Protection 
Agency (EPA) to determine whether States have adequate ``permit'' 
programs for MSWLFs, but does not mandate issuance of a rule for such 
determinations. EPA has drafted and is in the process of proposing a 
State/Tribal Implementation Rule (STIR) that will provide procedures by 
which EPA will approve, or partially approve, State/Tribal landfill 
permit programs. The Agency intends to approve adequate State/Tribal 
MSWLF permit programs as applications are submitted. Thus, these 
approvals are not dependent on final promulgation of the STIR. Prior to 
promulgation of the STIR, adequacy determinations will be made based on 
the statutory authorities and requirements. In addition, States/Tribes 
may use the draft STIR as an aid in interpreting these requirements. 
The Agency believes that early approvals have an important benefit. 
Approved State/Tribal permit programs provide interaction between the 
State/Tribe and the owner/operator regarding site-specific permit 
conditions. Only those owners/operators located in State/Tribes with 
approved permit programs can use the site-specific flexibility provided 
by part 258 to the extent the State/Tribal permit program allows such 
flexibility. EPA notes that regardless of the approval status of a 
State/Tribe and the permit status of any facility, the Federal landfill 
criteria will apply to all permitted and unpermitted MSWLF facilities.
    The Commonwealth of Puerto Rico applied for a determination of 
adequacy under section 4005 of RCRA. The components of authority and 
capability were contained in Puerto Rico's application and its 
revisions. EPA reviewed Puerto Rico's application, and certain 
revisions thereto, and on March 23, 1994, proposed a determination that 
Puerto Rico's MSWLF permit program is adequate to ensure compliance 
with the revised MSWLF Criteria. Puerto Rico's revised regulation as 
adopted by the Environmental Quality Board, pursuant to Commonwealth 
law, is titled the Non-Hazardous Solid Waste Management Regulation. 
After consideration of all comments received regarding the tentative 
determination of adequacy, EPA is today issuing a final determination 
that the Commonwealth's program is adequate.

EFFECTIVE DATE: The determination of adequacy for the Commonwealth of 
Puerto Rico shall be effective on August 26, 1994.

FOR FURTHER INFORMATION CONTACT: Jenine Tankoos, USEPA Region II, Mail 
Stop 2AWM, room 1006, 26 Federal Plaza, New York, New York, 10278, 
telephone (212) 264-1369.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that facilities comply with the Federal 
Criteria under part 258. Subtitle D also requires in section 4005 that 
EPA determine the adequacy of State municipal solid waste landfill 
permit programs to ensure that facilities comply with the revised 
Federal Criteria. To fulfill this requirement, the Agency has drafted 
and is in the process of proposing a State/Tribal Implementation Rule 
(STIR). The rule will specify the requirements which State/Tribal 
programs must satisfy to be determined adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of STIR. EPA interprets the requirements for States or 
Tribes to develop ``adequate'' programs for permits or other forms of 
prior approval to impose several minimum requirements. First, each 
State/Tribe must have enforceable standards for new and existing MSWLFs 
that are technically comparable to EPA's revised MSWLF criteria. Next, 
the State/Tribe must have the authority to issue a permit or other 
notice of prior approval to all new and existing MSWLFs in its 
jurisdiction. The State/Tribe also must provide for public 
participation in permit issuance and enforcement as required in section 
7004(b)(1) of RCRA. Finally, EPA believes that the State/Tribe must 
show that it has sufficient compliance monitoring and enforcement 
authorities to take specific action against any owner or operator that 
fails to comply with an approved MSWLF program.
    EPA Regions will determine whether a State/Tribe has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
plans to provide more specific criteria for this evaluation when it 
proposes the State/Tribal Implementation Rule. EPA expects States/
Tribes to meet all of these requirements for all elements of a MSWLF 
program before it gives full approval to a MSWLF program.
    On October 8, 1993, the Commonwealth of Puerto Rico submitted an 
application for adequacy determination for Puerto Rico's municipal 
solid waste landfill permit program. On February 17, 1994, Puerto Rico 
made a revised submission. On March 23, 1994, after reviewing Puerto 
Rico's application and the revised submission, EPA published a 
tentative determination of adequacy for all portions of Puerto Rico's 
program. Further background on the tentative determination of adequacy 
appears at 59 FR 13707, March 23, 1994.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. Puerto Rico's 
application for program adequacy determination and its revisions were 
available for public review and comment at the EPA Region II Caribbean 
Field Office in San Juan and at the EPA Region II Library in New York 
City. The public comment period commenced on March 23, 1994 and ended 
on May 26, 1994. The public comment period was originally scheduled to 
end on May 12, 1994. However, at a public hearing held on May 12, 1994, 
a request was made to extend the comment period and EPA responded by 
extending the comment period until May 26, 1994.
    Although RCRA does not require EPA to hold a hearing on any 
determination to approve a State/Tribe's MSWLF program, the Region 
scheduled four public hearings on this tentative determination. Two 
public hearings were held at the Solid Waste Management Authority in 
Hato Rey, Puerto Rico on May 11, 1994. Two additional hearings were 
held at the Mayaguez City Hall in Mayaguez, Puerto Rico on May 12, 
1994. A summary of the comments received, and EPA's responses thereto 
is contained in the public comment section of this notice.
    On October 4, 1993, Puerto Rico, acting through its Environmental 
Quality Board, adopted comprehensive, revised regulations governing 
solid waste disposal. These regulations are patterned after the 40 CFR 
part 258 criteria, and are intended to bring Puerto Rico into full 
conformity with the Federal criteria. The Puerto Rico Environmental 
Quality Board has sufficient authority and responsibility for 
implementing and enforcing solid waste management regulations, 
including a permitprogram, inspection authority and enforcement 
activities. In addition, in its application, Puerto Rico states that 
adequatetechnical, support and legal personnel will be assigned to 
implement its permit program.

B. Public Comment

    A summary of the public comments received on the tentative 
determination of adequacy and EPA's responses thereto follows below.
    A number of the commenters suggested that the Environmental Quality 
Board (EQB), Puerto Rico's regulating agency, may not effectively 
implement and enforce the Commonwealth's new MSWLF regulations. 
Commenters cited evidence of problems they believe had occurred or 
currently exist at particular landfill sites and which they feel EQB 
had not properly addressed. The EQB, however, has instituted a new 
structure for implementing and enforcing its new MSWLF permit program, 
which was developed in order to meet part 258 requirements. Upon 
reviewing EQB's MSWLF permit program, EPA Region II believes that 
problems related to regulatory oversight, will be effectively addressed 
under the EQB's new program. Among the changes to the program is the 
implementation of a new management and staffing structure. In addition, 
the number of employees working on the program and the number of hours 
of inspection and compliance training provided to staff have increased 
dramatically. These changes will allow the EQB to inspect landfills 
semi-annually whereas inspections previously took place only once per 
year or in some cases every other year under the previous program. 
Inspections by technicians at the Solid Waste Management Authority, 
which take place an average of 2 to 3 times per year at each landfill, 
will also be performed and the results of those inspections made 
available to EQB. Step by-step procedures for receiving and responding 
to public complaints, which did not exist under the previous program 
will also help the EQB to monitor landfills and permit a more efficient 
public participation process.
    One commenter noted that Puerto Rico presents a different 
ecological situation than is found in the States, and one where it is 
more difficult to find a suitable location for a landfill. This 
commenter felt that the Federal Government should modify its 
regulations for location criteria of municipal solid waste landfills to 
take into account that there are locations with different situations. 
EPA feels that the Federal regulations, 40 CFR part 258, already 
contain sufficient flexibility, particularly in location standards to 
allow an approved state to consider local conditions. The use of the 
flexibility, however, does require that certain environmental 
protection performance standards still be met.
    Two commenters expressed concern that the location of landfills in 
Puerto Rico may violate President Clinton's Executive Order on 
Environmental Justice. The Federal Government, including EPA, is 
currently engaged in preparing a national strategy that will establish 
procedures to implement this order.
    There were additional comments related to oversight of EQB by EPA, 
coordination between EQB and the Solid Waste Management Authority, 
siting requirements, and groundwater protection. All the foregoing 
comments and several additional comments that were not relative to the 
subject of the public hearing are addressed in the responsiveness 
summary which is made part of the public record.

C. Decision

    After reviewing the public comments, I conclude that Puerto Rico's 
application for adequacy determination meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, the 
Commonwealth of Puerto Rico is granted a determination of adequacy for 
all portions of its municipal solid waste permit program.
    Section 4005(a) of RCRA provides that citizens may use the citizen 
suit provisions of section 7002 of RCRA to enforce the Federal MSWLF 
criteria in 40 CFR part 258 independent of any State/Tribal enforcement 
program. As EPA explained in the preamble to the final MSWLF criteria, 
EPA expects that any owner or operator complying with provisions in a 
State/Tribal program approved by EPA should be considered to be in 
compliance with the Federal Criteria. See 56 FR 50978, 50995 (October 
9, 1991).
    Today's action takes effect on [insert date of publication here]. 
EPA believes it has good cause under section 553(d) of the 
Administrative Procedure Act, 5 U.S.C 553(d), to put this action into 
effect less than 30 days after publication in the Federal Register. All 
of the requirements and obligations in the Commonwealth's program are 
already in effect as a matter of Commonwealth law. EPA's action today 
does not impose any new requirements that the regulated community must 
begin to comply with. Nor do these requirements become enforceable by 
EPA as Federal law. Consequently, EPA finds that it does not need to 
give notice prior to making its approval effective.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this notice from 
the requirements of section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this approval will not have a significant economic impact on a 
substantial number of small entities. It does not impose any new 
burdens on small entities. This notice, therefore, does not require a 
regulatory flexibility analysis.

    Authority: This notice is issued under the authority of sections 
2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended; 
42 U.S.C. 6912, 6945, 6949a(c).

    Dated: August 17, 1994.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 94-21108 Filed 8-25-94; 8:45 am]
BILLING CODE 6560-50-F