[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31616]


[[Page Unknown]]

[Federal Register: December 23, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5127-4]

 

New Mexico; Final Determination of Adequacy of State/Tribal 
Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination on Application of New Mexico for 
Full Program Adequacy Determination.

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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.
    New Mexico applied for a determination of adequacy under Section 
4005 of RCRA. EPA reviewed New Mexico's application and proposed a 
determination (58 FR 181, 48312, September 20, 1994), that New Mexico's 
MSWLF permit program is adequate to ensure compliance with the revised 
MSWLF criteria. EPA is today issuing a final determination that New 
Mexico's program is adequate.

EFFECTIVE DATE: The determination of adequacy for New Mexico shall be 
effective on December 23, 1994.

FOR FURTHER INFORMATION CONTACT: Andrew Tayrien, Environmental 
Engineer, Solid Waste Section, US EPA Region 6, Dallas, Texas 75202, 
(214) 665-8546.

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) 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.

B. State of New Mexico

    On July 20, 1994, New Mexico submitted an application for adequacy 
determination for New Mexico's municipal solid waste landfill permit 
program. On September 20, 1994, EPA published a tentative determination 
of adequacy for all portions of New Mexico's program. Further 
background on the tentative determination of adequacy appears at 58 FR 
181, 48312 (September 20, 1994). A 30-day public comment period was 
held until October 20, 1994. In this notice of tentative determination, 
EPA announced that a public hearing would be held if a sufficient 
number of people requested a hearing. The Agency received one comment 
letter in response to the tentative determination. No requests for a 
public hearing were received, therefore, a hearing was not held.

C. Public Comments

    EPA received the following comment on the tentative determination 
of all portions of adequacy for New Mexico's MSWLF permit program.
    One commenter representing a private solid waste management company 
recommended that EPA ``condition the award of full program approval 
upon the deletion of Sections 108(a) and (b) of the New Mexico solid 
waste disposal regulations.'' Essentially, this commenter takes 
exception with the household waste disposal exemption provided in these 
sections of the New Mexico solid waste management regulations (EIB/
SWMR-4).
    EPA believes that the regulations in EIB/SWMR-4 are consistent with 
Subtitle D. EPA addresses the issue of backyard disposal in the 
criteria for classification of solid waste disposal facilities and 
practices, codified in 40 CFR Part 257. In the final rule for the Part 
257 Criteria, September 13, 1979 Federal Register (Criteria for 
Classification of Solid Waste Disposal Facilities and Practices, Vol. 
44, No. 179, 53441), EPA states that ``EPA does not believe that 
Congress intended the Subtitle D classification scheme to be 
implemented at the household level. RCRA Section 1004(27) refers to 
wastes from `community activities.' In addition, the legislative 
history indicates at several points that `municipal' wastes are of 
concern under Subtitle D. The Act's emphasis on `community' or 
`municipal' waste, indicates that the Congress intended to focus on 
solid waste management at that level rather than at the household 
level. EPA believes that `backyard' practices should be controlled 
through State or local nuisance and public health laws.'' It is 
important to note that 40 CFR Section 257.3-7 prohibits the open 
burning of residential, commercial, institutional or industrial solid 
waste except for the infrequent burning of agricultural wastes in the 
field. 40 CFR Section 257.3-7 further requires that these infrequent 
acts of burning not violate applicable requirements developed under a 
State Implementation Plan approved or promulgated by the Administrator 
pursuant to Section 110 of the Clean Air Act.

D. Decision

    EPA concludes that New Mexico's application for adequacy 
determination meets all of the statutory and regulatory requirements 
established by RCRA. Accordingly, New Mexico is granted a determination 
of adequacy for all portions of its municipal solid waste permit 
program. New Mexico's solid waste program does not apply and cannot be 
enforced in Indian country in the State. 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 the date of publication. 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 State's/Tribe's program are already 
in effect as a matter of State/Tribal 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 12291: The Office of Management and 
Budget has exempted this notice from the requirements of Section 3 of 
Executive Order 12291.

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: December 6, 1994.
William B. Hathaway,
Acting Regional Administrator.
[FR Doc. 94-31616 Filed 12-22-94; 8:45 am]
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