[Federal Register Volume 59, Number 208 (Friday, October 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26816]


[Federal Register: October 28, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5097-2]


The State of New Jersey; Partial Program Adequacy Determination 
of State Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on Partial Program 
Application of the State of New Jersey for Partial Program Adequacy 
Determination, Public Hearing and Public Comment Period.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation 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/Tribe Implementation Rule (STIR) that will provide procedures by 
which EPA will approve, or partially approve, State/Tribal landfill 
permit programs. The Agency has been approving and intends to continue 
approving 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 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/Tribe permit 
programs provide for interaction between State/Tribe and the owner/
operator regarding site-specific permit conditions. Only those owners/
operators located in States/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 State of New Jersey applied for a partial determination of 
adequacy under section 4005 of RCRA. EPA reviewed New Jersey's 
application and certain amendments and revisions thereto, and made a 
tentative determination that all portions of New Jersey's MSWLF permit 
program are adequate to assure compliance with the revised MSWLF 
Criteria, except for Subpart E relating to Ground-Water Monitoring and 
Corrective Action. New Jersey plans to revise the remainder of its 
permit program to assure complete compliance with the revised MSWLF 
Criteria and gain full program approval. New Jersey's application for 
partial program adequacy determination is available for public review 
and comment.
    Although RCRA does not require EPA to hold a hearing on any 
determination to approve a State/Tribe's MSWLF program, the Region has 
scheduled an opportunity for a public hearing on this tentative 
determination. Details appear below in the DATES section.

DATES: All comments on New Jersey's application for a partial adequacy 
determination must be submitted by the close of business on December 
14, 1994.
    One public hearing will be held at the Public Meeting Room on the 
first floor of the offices of the New Jersey Department of 
Environmental Protection (NJDEP), 401 East State Street, Trenton, New 
Jersey on December 14, 1994. The hearing is scheduled for 7 p.m. until 
10:00 p.m. New Jersey will participate in the public hearing held by 
EPA on this subject.

ADDRESSES: Copies of New Jersey's application for adequacy are 
available between 8:30 a.m. and 5:00 p.m. at the following two 
addresses for inspection and copying: U.S. EPA Region II Library, 26 
Federal Plaza, Room 402, New York, New York, 10278, telephone (212) 
264-2881, and NJDEP at the Public Access Room, 401 East State Street, 
Trenton, New Jersey. Written comments should be sent to Conrad Simon, 
Director Air and Waste Management Division, U.S. Environmental 
Protection Agency, 26 Federal Plaza, New York, New York 10278.

FOR FURTHER INFORMATION CONTACT: Lorraine Graves, U.S. EPA Region II, 
Mail Stop 2AWM, Room 1006, 26 Federal Plaza, New York, New York, 10278, 
telephone (212) 264-9638.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that MSWLFs comply with the Federal 
Criteria under part 258. Subtitle D also requires in section 4005 that 
EPA determine that State municipal solid waste landfill permit programs 
are adequate to 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 propose in STIR to allow partial approvals if: (1) 
The Regional Administrator determines that the State/Tribal permit 
program largely meets the requirements for ensuring compliance with 
part 258; (2) changes limited to a narrow part(s) of the State/Tribal 
permit program are needed to meet these requirements; and (3) 
provisions not included in the partially approved portions of the 
State/Tribal permit program are a clearly identifiable and a separable 
subset of part 258. These requirements, if promulgated, will address 
the potential problems posed by the dual State/Tribal and Federal 
programs that came into effect in October 1993 in those States/Tribes 
that only have partial approvals of their MSWLF programs. On that date, 
Federal rules covering any portion of a State/Tribe's program that had 
not received EPA approval became enforceable. Owners and operators of 
MSWLFs subject to such dual programs must be able to understand which 
requirements apply and comply with them. In addition, the pieces of the 
Federal program that are in effect must mesh well enough with the 
approved portions of the State/Tribal program to leave no significant 
gaps in regulatory control of MSWLF's. Partial approval will allow the 
Agency to approve those provisions of the State/Tribal permit program 
that meet the requirements and provide the State/Tribe time to make 
necessary changes to the remaining portions of its program. As a 
result, owners/operators will be able to work with the State/Tribal 
permitting agency to take advantage of the Criteria's flexibility for 
those portions of the program which have been approved.
    As provided in the October 9, 1991 municipal landfill rule, EPA's 
national Subtitle D standards took effect on October 9, 1993. 
Consequently, any remaining portions of the Federal Criteria that are 
not included in an approved State/Tribal program apply directly to the 
owner/operator without the flexibility that would be present in an 
approved State/Tribal program.
    EPA has been approving and intends to continue approving 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) 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. Various 
components of authority and capability were submitted by New Jersey in 
its application for partial program approval, and the revisions and 
amendments thereto.
    EPA also is requesting States/Tribes seeking partial program 
approval to provide a schedule for the submittal of all remaining 
portions of their MSWLF permit programs. EPA notes that it intends to 
propose to make submission of a schedule mandatory in STIR.
    Not all States/Tribes will have existing permit programs through 
which they can ensure compliance with all provisions of the revised 
Federal Criteria. Were EPA to restrict a State/Tribe from submitting 
its application until it could ensure compliance with the entirety of 
40 CFR part 258, many States/Tribes would need to postpone obtaining 
approval of their permit programs for a significant amount of time. 
This delay in determining the adequacy of the State/Tribal permit 
program while the State/Tribe revises its statutes or regulations could 
impose a substantial burden on owners and operators of landfills 
because the State/Tribe would be unable to exercise the flexibility 
available to States/Tribes with permit programs which have been 
approved as adequate.
    As a State's/Tribe's regulations and statutes are amended to comply 
with the federal MSWLF landfill regulations, unapproved portions of a 
partially approved MSWLF permit program may be approved by the EPA. The 
State/Tribe may submit an amended application to EPA for review and an 
adequacy determination will be made using the same criteria as for the 
initial application. This adequacy determination will be published in 
the Federal Register summarizing the Agency's decision and the 
portion(s) of the State/Tribal MSWLF permit program affected and 
providing an opportunity to comment for a period of 30 days. The 
adequacy determination will become effective sixty (60) days following 
publication if no adverse comments are received. If EPA receives 
adverse comments on its adequacy determination, another Federal 
Register notice will be published either affirming or reversing the 
initial decision and responding to the public comments.

B. State of New Jersey

    On March 3, 1994, the State of New Jersey submitted an application 
for partial determination of adequacy of its solid waste landfill 
permit program. Certain revisions and amendments were submitted on July 
21, 1994 and September 6, 1994. The application addressed all 
components of 40 CFR part 258 and discussed New Jersey's enforcement 
authority, provisions for citizen participation, and the current status 
of the universe of landfills within the State. EPA reviewed New 
Jersey's application and tentatively determined that the State's 
program meets all requirements necessary to qualify for a determination 
of partial approval of adequacy to ensure compliance with the Federal 
Criteria with the exception of Subpart E--Ground-Water Monitoring and 
Corrective Action. Upon appropriate adoption of revisions to its 
existing ground-water regulations, it is expected that New Jersey will 
become eligible for full approval which will include subpart E. On 
September 6, 1994, New Jersey provided a schedule as called for in its 
application, which indicates that all proposed regulatory revisions are 
expected to be adopted by October, 1995, at which time the revised 
regulations will be fully effective.
    The New Jersey Department of Environmental Protection has the 
responsibility for implementing and enforcing solid waste management 
regulations, including a permit program, inspection authority and 
enforcement activities. The State has determined that at present, 12 
regional and 2 municipal sanitary landfills are subject to all 
components of the Federal Criteria. Twenty-two other existing sole 
source landfills as well as those landfills that closed prior to the 
effective date of the Federal Criteria, while not subject to the 
provisions of 40 CFR part 258, are still subject to the laws and 
regulations of the State of New Jersey, including those pertaining to 
closed and unpermitted landfills. New Jersey has identified a 
significant number of such sites, which may be classified as ``open 
dumps'' pursuant to 40 CFR part 257 and which are subject to regulation 
and enforcement by New Jersey under existing state law.
    To ensure compliance with all of the revised Federal Criteria, New 
Jersey needs to revise existing regulations concerning groundwater 
monitoring and corrective action so that the revised regulations are 
aligned with part 258, subpart E. As noted previously, New Jersey has 
submitted a schedule indicating that such regulatory revisions will be 
effective by October, 1995. To allow Jersey to begin exercising some of 
the flexibility allowed in States/Tribes with adequate permit programs, 
EPA is proposing to approve those portions of New Jersey's program that 
are ready for action today. These include criteria for location, 
operation, closure and post-closure care, and financial assurance.
    The public may submit written comments on EPA's tentative 
determination until December 14, 1994. Copies of New Jersey's 
application including revisions and amendments are available for 
inspection and copying at the location indicated in the ADDRESSES 
section of this notice.
    The EPA will hold a public hearing on its tentative decision. The 
hearing will be held on December 14, 1994 at the Public Hearing Room, 
NJDEP, 401 E. State St, Trenton, NJ. Comments can be submitted orally 
at the hearing or in writing at the time of the hearing.
    EPA will consider all public comments on its tentative 
determination received during the public comment period and during the 
public hearing. Issues raised by those comments may be the basis for a 
determination of inadequacy for New Jersey's program. EPA expects to 
make a final determination by January 27, 1995 and will give notice of 
it in the Federal Register. The notice will include a summary of the 
reasons for the final determination and responses to all major 
comments.
    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 will be considered to be in 
compliance with Federal Criteria. See 56 FR 50978, 50995 (October 9, 
1991).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this notice from 
the requirement 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 Section 
4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.

    Dated: October 12, 1994.
Herbert Barrack,
Acting Deputy Regional Administrator.
[FR Doc. 94-26816 Filed 10-27-94; 8:45 am]
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