[Federal Register Volume 64, Number 76 (Wednesday, April 21, 1999)]
[Rules and Regulations]
[Pages 19494-19496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8337]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[SW-FRL-6319-5]
Texas; Final Full Program Adequacy Determination of State
Municipal Solid Waste Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final determination of full program adequacy for the
State of Texas.
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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments (HSWA) of 1984, requires States to develop and implement
permit programs to ensure that municipal solid waste landfills (MSWLFs)
which may receive household hazardous waste or conditionally exempt
small quantity generator waste, comply with the revised Federal MSWLF
Criteria (40 CFR part 258). Section 4005(c)(1)(C) of RCRA requires the
EPA to determine whether States have ``adequate'' permit programs for
MSWLFs, but does not mandate issuance of a rule for such
determinations.
Texas applied for a determination of adequacy under section 4005 of
RCRA. The EPA reviewed Texas' application and made a tentative
determination that Texas' MSWLF permit program is adequate to ensure
compliance with the revised MSWLF criteria. After allowing for public
comment, EPA today is granting final approval to Texas' full solid
waste program.
EFFECTIVE DATE: The determination of the adequacy of the Texas program
shall be effective on April 21, 1999.
FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, UST/Solid Waste Section
(6PD-U), EPA Region 6, 1445 Ross Ave, Dallas, Texas 75202-2733, phone
214/665-6454.
SUPPLEMENTARY INFORMATON:
A. Background
On October 9, 1991, EPA promulgated revised criteria for MSWLFs (40
CFR part 258). Subtitle D of RCRA, as amended by the HSWA of 1984,
requires States to develop permitting programs to ensure that
facilities comply with the Federal criteria in 40 CFR part 258.
Subtitle D also requires, in section 4005, that EPA determine the
adequacy of State municipal solid waste landfill permit programs to
ensure that facilities comply with the revised Federal criteria at 40
CFR part 258. As the first step to fulfill this requirement, the Agency
drafted a State/Tribal Implementation Rule (STIR), in 1991, and
published in 1996 (61 FR 2584, Jan. 26, 1996), which States used to
apply for a determination of program adequacy and which EPA would use
to approve, partially approve, or disapprove State landfill permit
programs. Since 1992, the Agency has approved adequate State MSWLF
permit programs as applications are submitted. Approved State permit
programs provide interaction between the State and the owner/operator
regarding site-specific permit conditions. Only those owners/operators
located in States with approved permit programs can use the site-
specific flexibility provided by part 258 to the extent the State
permit program allows such flexibility. The EPA notes that regardless
of the approval status of a State and the permit status of any
facility, the Federal criteria will apply to all permitted and
unpermitted MSWLFs. Due to a recent decision by the U.S. Court of
Appeals for the District of Columbia Circuit (Backcountry Against Dumps
versus 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 the
final rule. Thus, although the proposed rule was titled STIR we refer
to the final rule as the State Implementation Rule (SIR). On October
23, 1998, EPA published SIR (63 FR 57025) that provides procedures by
which EPA will approve, partially approve, or disapprove State landfill
permit programs.
Part 40 CFR 239 (63 FR 57040) outlines several minimum requirements
for ``adequate'' permit programs. These requirements include that
states must have enforceable standards for new and existing MSWLFs that
are technically comparable to EPA's revised MSWLF criteria.
Additionally, the State must have the authority to issue a permit or
other notice of prior approval to all new and existing MSWLFs in its
jurisdiction. The State also must provide for public participation in
permit issuance and enforcement as required in section 7004(b) of RCRA.
Finally, the State must show it has sufficient compliance monitoring
and enforcement authorities to take specific action against any owner
or operator that fails to comply with an approved MSWLF program.
The EPA Regions will determine whether a State has submitted an
``adequate'' program based on the interpretation outlined above. The
EPA has provided specific criteria for this evaluation in the SIR. The
EPA expects States to meet all of these requirements for all elements
of an MSWLF program before it gives full approval to an MSWLF program.
On September 27, 1993, the EPA Administrator signed the final rule
extending the effective date of the landfill criteria for certain
classifications of landfills (proposed rule 58 FR 40568, July 28,
1993). Thus, for certain small landfills that fit the small landfill
exemption as defined in 40 CFR part 258.1(f), the Federal criteria were
effective on October 9, 1995, rather than on October 9, 1993. The final
rule on the effective date extension was published in the Federal
Register October 1, 1993 (58 FR 51536).
On August 10, 1995, the EPA published a proposed rule to solicit
comments on a two-year delay, until October 9, 1997, of the general
compliance date of the MSWLF criteria for qualifying small MSWLFs (60
FR 40799). This allowed EPA time to finalize the proposed alternatives.
The final rule granting the delay of the
[[Page 19495]]
compliance date was published in the Federal Register on October 6,
1995 (60 FR 52337).
B. State of Texas
On August 4, 1993, Texas submitted an application for a full
adequacy determination for the State's MSWLF permit program. On
December 17, 1993, EPA published a final determination of partial
program adequacy for Texas' program. Further background on the final
determination of partial program adequacy appears in 58 FR 65986
(December 17, 1993) and in 58 FR 44821 (August 25, 1993). In those
actions, EPA approved all portions of the State's MSWLF permit program
except Texas' regulations exempting certain small landfills in arid
regions from ground water monitoring requirements. On May 7, 1993 the
U.S. Court of Appeals for the District of Columbia Circuit Court
(Sierra Club v. EPA, 992F.2d 337 (D.C.Cir. 1993)) directed EPA to
eliminate an exemption from ground water monitoring for small landfills
in arid and remote locations (40 CFR 258.1 (f)(1)).
The court held that ``* * * the Agency must revise its final rule
to require groundwater monitoring, as necessary to detect
contamination, at all landfills. While such factors as size, location
and climate may affect the extent or kind of monitoring necessary to
detect contamination at a specific facility, they cannot justify
exemption from the statutory monitoring requirement.'' Thus, the Court
vacated the small landfill exemption as it pertains to ground water
monitoring, directing the Agency to ``* * * revise its rule to require
groundwater monitoring at all landfills.'' For that reason, EPA
directed Texas to remove the exemption for certain small landfills in
arid regions from ground water monitoring. However, with EPA's
concurrence, Texas deferred repealing the exemption until EPA adopted a
new standard.
On March 26, 1996, the Land Disposal Program Flexibility Act of
1996 was passed (P.L. 104-119, March 26, 1996) providing explicit
authority for the ground water monitoring exemption, whereupon EPA
reestablished the ground water monitoring exemption (61 FR 50410
September 25, 1996) that had been vacated by the Court. Therefore, on
September 23, 1997, Texas applied for a determination of full program
adequacy, since it had retained the ground water monitoring exemption
in its rules and was now in conformity with the revised Federal
criteria.
The EPA has reviewed Texas' application and has determined that all
portions of the State's application are consistent with the revised
Federal criteria. In its application, Texas demonstrated that the
State's permit program adequately meets the location restrictions,
operating criteria, design criteria, groundwater monitoring and
corrective action requirements, closure and post-closure care
requirements, and financial assurance criteria in the revised Federal
criteria. In addition, the State of Texas also demonstrated that its
MSWLF permit program contains specific provisions for public
participation, compliance monitoring, and enforcement.
C. Public Comments
The public comment period on EPA's tentative determination began on
September 16, 1998, and closed on October 16, 1998. No public comments
were received.
Texas does not claim jurisdiction over Indian lands.
Section 4005(a) of RCRA provides that citizens may use the citizen
suit provisions of section 7002 of RCRA to enforce the Federal MSWLF
criteria in 40 CFR part 258 independent of any state enforcement
program. As EPA explained in the preamble to the MSWLF criteria, EPA
expects that any owner or operator complying with provisions in a State
program approved by EPA to be in compliance with the Federal criteria.
See 56 FR 50978, 50995 (October 9, 1991).
D. Decision
After allowing for the public comment, EPA concludes that Texas'
application for a full program adequacy determination meets all of the
statutory and regulatory requirements established by RCRA. Accordingly,
Texas is granted a determination of full program adequacy for all areas
of its municipal solid waste permit program.
This action takes effect on the date of publication. The EPA
believes it has good cause under section 553(d) of the Administrative
Procedure Act, 5 U.S.C. 553(d), to put this action into effect less
than 30 days after publication in the Federal Register. All of the
requirements and obligations in the State's program are already in
effect as a matter of State law. The EPA's action today does not impose
any new requirements that the regulated community must begin to comply
with. Nor do these requirements become enforceable by EPA as Federal
law. Consequently, EPA finds that it does not need to delay the
effective date.
Children's Health Protection
Under Executive Order (E.O.) 13045, for all significant regulatory
actions as defined by E.O.13045, EPA must provide an evaluation of the
environmental health or safety effect of a proposed rule on children
and an explanation of why the proposed rule is preferable to other
potentially effective and reasonably feasible alternatives considered
by EPA. This is not a significant regulatory action and is exempt from
E.O. 13045.
Compliance With Executive Order 12866
The Office of Management and Budget (OMB) has exempted this rule
from the requirements of Section 6 of E.O. 12866.
Enhancing Intergovernmental Partnerships
Under E.O. 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 OMB a
description of the extent of EPA's prior consultation with
representatives of the 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, E.O. 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.'' Today's action implements
requirements specifically set forth by the Congress in sections
4005(c)(1)(B) and (c)(1)(C) of Subtitle D of RCRA, as amended, without
the exercise of any discretion by EPA. Accordingly, the requirements of
section 1(a) of E.O. 12875 do not apply to today's action.
Compliance With Executive Order 13084
Under E.O. 13084, Consultation and Coordination with Indian Tribal
Governments, 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
[[Page 19496]]
governments. If the mandate is unfunded, EPA must provide to the OMB,
in a separately identified section of the preamble to today's action, 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, E.O. 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 action implements
requirements specifically set forth by the Congress in sections
4005(c)(1)(B) and (c)(1)(C) of Subtitle D of RCRA, as amended, without
the exercise of any discretion by EPA. Accordingly, the requirements of
section 3(b) of E.O. 13084 do not apply to today's action.
Certification Under the Regulatory Flexibility Act
The EPA has determined that this authorization will not have a
significant adverse economic impact on a substantial number of small
entities. By approving State municipal solid waste permitting programs,
owners and operators of municipal solid waste landfills who are also
small entities will be eligible to use the site-specific flexibility
provided by part 258 to the extent the State permit program allows such
flexibility. However, since such small entities which own and/or
operate municipal solid waste landfills are already subject to the
requirements in 40 CFR part 258 or are exempted from certain of these
requirements, such as the groundwater monitoring and design provisions,
this approval does not impose any additional burdens on these small
entities.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this approval will not have a significant adverse
economic impact on a substantial number of small entities. It does not
impose any new burdens on small entities; rather this approval creates
flexibility for small entities in complying with the 40 CFR part 258
requirements. Today's action, therefore, does not require a regulatory
flexibility analysis.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing today's document and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of today's action in the Federal Register.
Today's action is not a ``major rule'' as defined by section 804(2) of
the APA as amended.
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, the
EPA must prepare a written statement, including a cost benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector of $100 million or more in any
one year.
Today's action contains no Federal mandates (under the regulatory
provisions of Title of the UMRA) for State, local, or tribal
governments or the private sector. Today's action would merely
acknowledge the adequacy of a portion of an existing State program. The
EPA has determined that this action would not contain any Federal
mandate that may result in expenditures of $100 million or more for
state, local, and tribal governments, in the aggregate or the private
sector in any one year. Therefore, today's action is not subject to the
requirements of section 202 of the UMRA.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this approval will not have a significant economic impact on a
substantial number of small entities. It does not impose any new
burdens on small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
Authority: This action is issued under the authority of section
4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.
Dated: March 10, 1999.
Myron O. Knudson,
Acting Regional Administrator, Region 6.
[FR Doc. 99-8337 Filed 4-20-99; 8:45 am]
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