[Federal Register Volume 63, Number 205 (Friday, October 23, 1998)]
[Rules and Regulations]
[Pages 57026-57044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28361]



[[Page 57025]]

_______________________________________________________________________

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

  Federal Register / Vol. 63, No. 205 / Friday, October 23, 1998 / 
Rules and Regulations  

[[Page 57026]]



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, [email protected].

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)(1)(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)(1)(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.

II. 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.

III. Background

    On October 9, 1991, 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,

[[Page 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.

[[Page 57028]]

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           Timeframe: Within 30 days of receiving application.
     application is administratively
     complete.
     Prepare docket................
2. EPA Reviews Application for Adequacy   Timeframe: Within 180 days.
 (After Administratively Complete):
     Submit comments to state
     Review state's response to
     comments
     Determine adequacy of
     implementation support (e.g.,
     permitting and enforcement
     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 received
     Obtain Regional
     Administrator's signature
7. Final Determination Published in the
 Federal Register.
----------------------------------------------------------------------------------------------------------------

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) and 
4010(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

[[Page 57029]]

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

[[Page 57030]]

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 of Ashoff v. 
City of Ukiah, 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 Ashoff case 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. Ashoff v. City of Ukiah No. 
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. Ashoff v. City of Ukiah, 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)(1)(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 (I) (alternative 
ground-water monitoring systems for certain small CESQG waste disposal 
units in arid or remote locations); 40 CFR 257.22(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 258.1(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

[[Page 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)(1) and (2); and 40 CFR 258.58(a)(1) 
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)(1)(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)(1)(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.S.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)(1), 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) and (a)(2) 
(facilities 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)(1)(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 
258.1(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)(1)(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.

[[Page 57032]]

    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)(1)(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)(1-8) and 40 CFR 258.57(d)(1-8). 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)(1)(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
---------------------------------------------------------------------------

    \1\ 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)(1)(C). 42 
U.S.C. 6945(c)(1)(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 
choice becomes incorporated into the federal definition prohibiting 
open dumping and, thus, is effective pursuant to RCRA. This 
situation is distinguishable from the second type of criteria 
discussed above, i.e., the alternative standards of an approved 
state, where the approval of the state's permit program is necessary 
before the alternative standard becomes incorporated into the 
federal open dumping criteria.
---------------------------------------------------------------------------

    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 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)(1)(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 of 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)(1)(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)(1)(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,

[[Page 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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.''), aff'd, 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

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 an 
application for approval to meet the requirements of today's final rule 
has been added to Sec. 239.2(a)(2). New applications for such already-
approved states will only be necessary when state permit programs are 
modified as described in Sec. 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,

[[Page 57034]]

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)(1)(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 III. 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 by 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 Secs. 239.12(g)(1) 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 and 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.

[[Page 57035]]

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 Sec. 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 Sec. 239.12(d) are only 
those delineated elsewhere in Sec. 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 commenter 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 Sec. 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, Sec. 239.12(d) could have been 
interpreted to require approved states to notify EPA of all permit 
program modifications. The Agency has modified Sec. 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 
Sec. 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 Sec. 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)(1)) 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)(1)(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)(1)(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

[[Page 57036]]

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)(1)(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 Sec. 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 
FR 2584, 2602 (proposed Sec. 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 Sec. 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

[[Page 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)(1)(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)(1)(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 et seq., 
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)(1)(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

[[Page 57038]]

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 et seq. 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 
[email protected]., 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

[[Page 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 1(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.

VII. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., 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.

[[Page 57040]]

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 239--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


Sec. 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)(1)(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)(1)(B).


Sec. 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 Sec. 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 Sec. 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)(1)(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 with 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 facilities means 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


Sec. 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

[[Page 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 Sec. 239.4;
    (c) A legal certification in accordance with Sec. 239.5;
    (d) Copies of all applicable state statutes, regulations, and 
guidance.


Sec. 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 
Secs. 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.
    (f) A description of the state's public participation procedures as 
specified in Sec. 239.6(a) through (c).


Sec. 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 
Sec. 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


Sec. 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 Sec. 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

[[Page 57042]]

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 (Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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


Sec. 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 Sec. 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 Sec. 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

[[Page 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.


Sec. 239.11  Approval procedures for partial approval.

    (a) EPA may partially approve state permit programs that do not 
meet all of the requirements in Sec. 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 
Sec. 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 Sec. 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 Sec. 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.
    (f) The Regional Administrator will follow the adequacy 
determination procedures in Sec. 239.10 for all initial applications 
for partial program approval and follow the adequacy determination 
procedures in Sec. 239.12(f) for any amendments for approval for 
unapproved sections of the relevant Subtitle D federal revised 
criteria.


Sec. 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 Sec. 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 Sec. 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.


Sec. 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

[[Page 57044]]

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)(1), 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:


Sec. 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:


Sec. 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