[Federal Register Volume 63, Number 179 (Wednesday, September 16, 1998)]
[Notices]
[Pages 49566-49568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24738]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6161-3]


Texas; Full Program Adequacy Determination of State Municipal 
Solid Waste Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of tentative determination of full program adequacy for 
the State of Texas.

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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 household hazardous waste or conditionally exempt 
small quantity generator waste, comply with the revised Federal MSWLF 
Criteria (40 CFR part 258). Section 4005(c)(1)(C)of RCRA requires the 
(EPA) to determine whether States have ``adequate'' permit programs for 
MSWLFs, but does not mandate issuance of a rule for such 
determinations.
    Texas applied for a determination of adequacy under section 4005 of 
RCRA. The EPA reviewed Texas' application and made a tentative 
determination subject to public review and comment, that Texas' MSWLF 
permit program is adequate to ensure compliance with the revised MSWLF 
criteria.

DATES: All comments on Texas' application for full determination of 
adequacy must be received by the close of business on October 16, 1998.

ADDRESSES: Copies of Texas' application for adequacy determination are 
available for inspection and copying from 8:30 a.m. to 4 p.m. at the 
following addresses: Texas Natural Resource Conservation Commission 
File Room, Room 1301, Building F, 12100 Park 35 Circle (Yager Lane 
Exit, IH 35 North), Austin, Texas (512) 239-0900; EPA Region 6 Library, 
1445 Ross Avenue, Dallas, Texas Attn.: Willie Kelley, (214) 665-6760, 
or Shari McAllister (214) 665-6424. Written comments should be sent to 
EPA Region 6, Attn. Willie Kelley (6PD-U) 1445 Ross Avenue Dallas, 
Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, UST/Solid Waste Section 
(6PD-U), EPA Region 6, 1445 Ross Ave, Dallas, Texas 75202-2733, phone 
214/665-6454.

A. Background

    On October 9, 1991, EPA promulgated revised criteria for MSWLFs (40 
CFR part 258). Subtitle D of RCRA, as amended by the HSWA of 1984, 
requires States to develop permitting programs to ensure that 
facilities comply with the Federal criteria in 40 CFR 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 at 40 
CFR part 258. To fulfill this requirement, the Agency has proposed a 
State Implementation Rule (SIR). On January 26, 1996, EPA proposed SIR 
(61 FR 2584) that will provide procedures by which EPA will approve, 
partially approve, or disapprove State landfill permit programs. The 
Agency intends to approve adequate State MSWLF permit programs as 
applications are submitted. Thus, these approvals are not dependent on 
final promulgation of the SIR. Prior to promulgation of the SIR, 
adequacy determinations will be made based on the statutory authorities 
and requirements. In addition, States may use the draft SIR as an aid 
in interpreting these requirements. The Agency believes that early 
approvals have an important benefit. Approved State permit programs 
provide interaction between the State and the

[[Page 49567]]

owner/operator regarding site-specific permit conditions. Only those 
owners/operators located in States with approved permit programs can 
use the site-specific flexibility provided by part 258 to the extent 
the State permit program allows such flexibility. The EPA notes that 
regardless of the approval status of a State and the permit status of 
any facility, the Federal criteria will apply to all permitted and 
unpermitted MSWLFs.
    The EPA interprets the requirements for States to develop 
``adequate'' programs for permits or other forms of prior approval to 
impose several minimum requirements. First, each State must have 
enforceable standards for new and existing MSWLFs that are technically 
comparable to EPA's revised MSWLF criteria. Next, the State 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 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 must show 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.
    The EPA Regions will determine whether a State has submitted an 
``adequate'' program based on the interpretation outlined above. The 
EPA has provided specific criteria for this evaluation in the proposed 
SIR. The EPA expects States to meet all of these requirements for all 
elements of an MSWLF program before it gives full approval to an MSWLF 
program.
    On September 27, 1993, the EPA Administrator signed the final rule 
extending the effective date of the landfill criteria for certain 
classifications of landfills (proposed rule 58 FR 40568, July 28, 
1993). Thus, for certain small landfills that fit the small landfill 
exemption as defined in 40 CFR 258.1(f), the Federal criteria were 
effective on October 9, 1995, rather than on October 9, 1993. The final 
rule on the effective date extension was published in the Federal 
Register October 1, 1993 (58 FR 51536).
    On August 10, 1995, the EPA published a proposed rule to solicit 
comments on a two-year delay, until October 9, 1997, of the general 
compliance date of the MSWLF criteria for qualifying small MSWLFs (60 
FR 40799). This allowed EPA time to finalize the proposed alternatives. 
The final rule on the delay of the compliance date was published in the 
Federal Register on October 6, 1995 (60 FR 52337).

B. State of Texas

    On September 23, 1997, Texas submitted an application for a full 
adequacy determination for the State's MSWLF permit program. The EPA 
has reviewed Texas' application and has tentatively determined that all 
portions of Texas' subtitle D MSWLF program will ensure compliance with 
the revised Federal criteria. On December 17, 1993, EPA published a 
final determination of partial program adequacy for Texas' program. 
Further background on the final determination of partial program 
adequacy appears in 58 FR 65986 (December 17, 1993) and in 58 FR 44821 
(August 25, 1993). In those actions, EPA approved all portions of the 
State's MSWLF permit program except Texas' regulations exempting 
certain small landfills in arid regions from ground water monitoring 
requirements. On May 7, 1993 the U.S. Court of Appeals for the District 
of Columbia Circuit Court (Sierra Club v. EPA, 992F.2d 337 D.C. Cir. 
1993) directed EPA to eliminate an exemption from ground water 
monitoring for small landfills in arid and remote locations (40 CFR 
258.1 (f)(1)).
    In effect, the court held that ``* * * the Agency must revise its 
final rule to require groundwater monitoring, as necessary to detect 
contamination, at all landfills. While such factors as size, location 
and climate may affect the extent or kind of monitoring necessary to 
detect contamination at a specific facility, they can not justify 
exemption from the statutory monitoring requirement.'' Thus, the Court 
vacated the small landfill exemption as it pertains to ground water 
monitoring, directing the Agency to ``* * * revise its rule to require 
groundwater monitoring at all landfills.'' For that reason, EPA 
directed Texas to remove the exemption for certain small landfills in 
arid regions from ground water monitoring. However, with EPA's 
concurrence, Texas deferred repealing the exemption until EPA adopted a 
new standard.
    On March 26, 1996, the Land Disposal Program Flexibility Act of 
1996 was passed (Pub. L. 104-119, March 26, 1996) which provides 
explicit authority for the ground water monitoring exemption, whereupon 
EPA reestablished the ground water monitoring exemption (61 FR 50410, 
September 25, 1996) that had been vacated by the Court. Thereafter, 
Texas applied for a determination of full program adequacy, since it 
had retained the ground water monitoring exemption in its rules and was 
now in conformity with the revised Federal criteria.
    The EPA has reviewed Texas' application and has tentatively 
determined that all portions of the State's application are consistent 
with the revised Federal criteria. In its application, Texas 
demonstrated that the State's permit program adequately meets the 
location restrictions, operating criteria, design criteria, groundwater 
monitoring and corrective action requirements, closure and post-closure 
care requirements, and financial assurance criteria in the revised 
Federal criteria. In addition, the State of Texas also demonstrated 
that its MSWLF permit program contains specific provisions for public 
participation, compliance monitoring, and enforcement.
    The public may submit written comments on EPA's tentative 
determination until October 16, 1998. Copies of Texas' application are 
available for inspection and copying at the locations indicated in the 
ADDRESSES section of this document. The EPA will consider all public 
comments on its tentative determination that where received during the 
public comment period. Issues raised by those comments may be the basis 
for a determination of inadequacy for Texas' program. The EPA's final 
determination notice will include a summary of the reasons for the 
final determination and a response to all major comments.
    Texas does not claim jurisdiction over Indian lands.
    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 enforcement 
program. As EPA explained in the preamble to the MSWLF criteria, EPA 
expects that any owner or operator complying with provisions in a State 
program approved by EPA to be in compliance with the Federal criteria. 
See 56 FR 50978, 50995 (October 9, 1991).
    Children's Health Protection: Under Executive Order (E.O.) 13045, 
for all significant regulatory actions as defined by E.O. 12866, EPA 
must provide an evaluation of the environmental health or safety effect 
of a proposed rule on children and an explanation of why the proposed 
rule is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This is not a significant 
regulatory action and is exempt from EO 13045.
    Compliance With Executive Order 12866: The office of Management and 
Budget has exempted this rule from the

[[Page 49568]]

requirements of section 3 of Executive Order 12291.
    Unfunded Mandates Reform Act: Title II of the Unfunded Mandates 
Reform Act of 1995 (UMRA), Pub. L. 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, the EPA 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.
    Today's document contains no Federal mandates (under the regulatory 
provisions of Title of the UMRA) for State, local, or tribal 
governments or the private sector. Today's document would merely 
acknowledge the adequacy of a portion of an existing State program. The 
EPA has determined that this document would not contain any Federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate or the private 
sector in any one year. Therefore, today's document is not subject to 
the requirements of section 202 of the UMRA.
    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 
rule, 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: August 26, 1998.
Jerry Clifford,
Deputy Regional Administrator, Region 6.
[FR Doc. 98-24738 Filed 9-15-98; 8:45 am]
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