[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30434-30437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14347]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 239

[FRL-6354-7]


Adequacy of State Permit Programs Under RCRA Subtitle D

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to streamline the approval process for specified States 
permit programs for solid waste disposal facilities other than 
municipal solid waste landfills (MSWLFs) that receive conditionally 
exempt small quantity generator (CESQG) hazardous waste. States whose 
subtitle D MSWLF permit programs or subtitle C hazardous waste 
management programs have been reviewed and approved or authorized by 
the Agency are eligible for this streamlined approval process if their 
State programs require the disposal of CESQG hazardous waste in 
suitable facilities. EPA is issuing an adequacy determination to the 
following State programs: Arizona, California, Colorado, Connecticut, 
Florida, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, 
Michigan, Minnesota, New Hampshire, New York, North Carolina, North 
Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island, South Dakota, 
Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and 
Wyoming.
    Elsewhere in the proposed rule section of today's Federal Register, 
EPA is proposing the program adequacy of these States and soliciting 
comment on this decision. If relevant adverse comments are received, 
EPA will withdraw this direct final rule of program adequacy and 
address the comments in a subsequent final rule document. EPA will not 
give additional opportunity for comment. If EPA receives relevant 
adverse comment concerning the adequacy of only certain State programs, 
the Agency's withdrawal of the direct final rule will only apply to 
those State programs. Comments on the inclusion or exclusion of one 
State permit program will not affect the timing of the decision on the 
other State permit programs.

DATES: This final rule will become effective September 7, 1999, unless 
EPA receives relevant adverse comment by July 8, 1999. Should the 
Agency receive such relevant adverse comments, EPA will withdraw this 
direct final rule and give timely notice in the Federal Register.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number F-98-SAPF-FFFFF to: RCRA Docket 
Information Center, Office of Solid Waste (5305G), U.S. Environmental 
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW, Washington, 
D.C. 20460. Hand deliveries of comments should be made to the 
Arlington, VA, address listed below. Comments may also be submitted 
electronically by sending electronic mail through the Internet to: 
[email protected]. Comments in electronic format should also 
be identified by the docket number F-98-SAPF-FFFFF. All electronic 
comments must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, 
D.C. 20460.
    Public comments are available for viewing in the RCRA Information 
Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson 
Davis Highway, Arlington, VA. 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/page. 
For information on accessing paper and/or electronic copies of the 
document, see the SUPPLEMENTARY INFORMATION section.
    Supporting materials for the final determination for Connecticut, 
Massachusetts, New Hampshire, Rhode Island, and Vermont are available 
for viewing by contacting Cynthia Greene, US EPA Region 1, 90 Canal 
Street, Boston, MA 02203, phone 617/565-3165.
    Supporting materials for the final determination for New York are 
available for viewing by contacting John Filippelli, US EPA Region 2, 
290 Broadway, New York, NY 10007-1866, phone 212/637-4125.
    Supporting materials for the final determination for Pennsylvania, 
West Virginia, and Virginia are available for viewing by contacting 
Mike Giuranna, US EPA Region 3, 1650 Arch Street, Philadelphia, PA 
19103-2029, phone 215/814-3298.
    Supporting materials for the final determination for Florida, 
Georgia, Kentucky, North Carolina, and Tennessee are available for 
viewing by contacting Patricia Herbert, US EPA Region 4, Atlanta 
Federal Center, 61 Forsyth Street, Atlanta, GA 30303-3104, phone: 404/
562-8449.
    Supporting materials for the final determination for Illinois, 
Michigan, Minnesota, Ohio, and Wisconsin are available for viewing by 
contacting Mary Setnicar, US EPA Region 5, 77 West Jackson Blvd., 
Chicago, IL 60604-3590, phone 312/886-0976.
    Supporting materials for the final determination for Louisiana and 
Oklahoma are available for viewing by contacting Willie Kelley, US EPA 
Region 6, 1445 Ross Avenue, Dallas, TX 75202-2733, phone: 214/665-6760.
    Supporting materials for the final determination for Colorado, 
North Dakota, South Dakota, Utah, and Wyoming are available for viewing 
by contacting Gerald Allen, Region 8, US EPA 999 18th Street, Suite 
500, Denver, CO 80202-2466, phone 303/312-7008.
    Supporting materials for the final determination for Arizona and 
California are available for viewing by contacting Steve Wall, US EPA 
Region 9, 75 Hawthorne Street, San Francisco, CA 94105, phone 415/744-
2123.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800/553-7672 (hearing impaired). In 
the Washington, D.C., metropolitan area, call 703/412-9810 or TDD 703/
412-3323.
    For information on specific aspects of this direct final rule, 
contact Allen Geswein, Municipal and Industrial Solid Waste Division of 
the Office of

[[Page 30435]]

Solid Waste (mail code 5306W), U.S. Environmental Protection Agency 
Headquarters, 401 M Street, SW., Washington, D.C. 20460; 703/308-7261, 
[GESWEIN.ALLEN@ EPAMAIL.EPA.GOV].

SUPPLEMENTARY INFORMATION: The official record for this action will be 
kept in paper form. Accordingly, EPA will transfer all comments 
received electronically into paper form and place them in the official 
record, which will also include all comments submitted directly in 
writing. The official record is the paper record maintained at the 
address in ADDRESSES at the beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register as outlined in 
DATES above or in a response to comments document placed in the 
official record for this rulemaking. EPA will not immediately reply to 
commenters electronically other than to seek clarification of 
electronic comments that may be garbled in transmission or during 
conversion to paper form, as discussed above.

A. Background

    Section 4010(c) of the Resource Conservation and Recovery Act 
(RCRA) requires the U.S. Environmental Protection Agency (EPA) to 
revise the criteria for facilities that accept household hazardous 
waste and conditionally exempt small quantity generator (CESQG) 
hazardous waste or both. On October 9, 1991, EPA issued revised 
Criteria for Municipal Solid Waste Landfills (MSWLFs) (40 CFR part 
258). MSWLFs typically receive both household hazardous waste and CESQG 
hazardous waste. On July 1, 1996, EPA issued the revised Criteria for 
Classification of Solid Waste Disposal Facilities and Practices to 
address solid waste disposal facilities other than MSWLFs that 
facilities receive CESQG waste (40 CFR part 257, subpart B).
    RCRA section 4005, as amended by the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, requires States to develop permitting 
programs or other systems of prior approvals and conditions to ensure 
that solid waste disposal units that receive household hazardous waste 
and CESQG hazardous waste or both comply with the revised Federal 
criteria under part 257, subpart B. Section 4005 also requires EPA to 
determine the adequacy of State permit programs. To fulfill this need, 
the Agency issued the State Implementation Rule (SIR) on October 23, 
1998 (63 FR 57026) to give a process for approving State municipal 
solid waste permit programs. The SIR specifies the needs that State 
MSWLF permit programs must satisfy to be determined adequate. The SIR 
also addresses the processes that should be used for approving State 
programs for non-MSWLFs that receive CESQG hazardous waste.
    Throughout this document, the term ``approved State'' refers only 
to a State that has received approval for its MSWLF permit program 
under subtitle D (40 CFR part 258) and the term ``authorized State'' 
refers only to a State that has an authorized hazardous waste landfill 
permit program under subtitle C (40 CFR part 264). Today's final 
adequacy determination is intended to give a streamlined approval 
process to address, as a group, those State programs that require the 
disposal of CESQG hazardous waste in suitable facilities and whose 
subtitle D MSWLF permit programs or subtitle C hazardous waste 
management programs have been reviewed and approved or authorized by 
the Agency. Today's direct final rule notice applies to the following 
State programs: Arizona, California, Colorado, Connecticut, Florida, 
Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, 
Minnesota, New Hampshire, New York, North Carolina, North Dakota, 
Oklahoma, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, 
Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
    Programs developed by these States for permitting either hazardous 
waste facilities or MSWLFs have been reviewed and approved or 
authorized by the Agency. The regulatory programs are more 
comprehensive and are equal to or more stringent than the part 257, 
subpart B criteria.
    The Agency has determined that the above States have submitted the 
documentation that would have been needed for the determination of 
permit program adequacy under 40 CFR part 257, subpart B. Further, the 
Agency has determined that the technical review conducted for either 
``approval'' of MSWLF permitting programs or ``authorization'' of 
hazardous waste permitting programs can substitute for the technical 
review of the standards for 40 CFR part 257, subpart B and their 
implementation by the States.
    The States that are today receiving a final determination of 
adequacy had previously submitted documentation of State statutory 
authorities and requirements that regulate solid waste disposal units 
that may receive CESQG waste. Each State has sent a letter requesting 
EPA's determination of permit program adequacy under subtitle C or 
subtitle D, as appropriate. Each State has submitted a written 
statement from the State Attorney General certifying that the laws, 
regulations, and guidance cited in the State's submission would be 
fully enacted and fully effective when the ``authorization'' or 
``approval'' of the permit program became effective. The State legal 
certification served as the foundation for ensuring that the State 
permit program or other system of prior approvals and conditions had 
adequate authority to ensure compliance with the hazardous waste or 
MSWLF regulations, as appropriate. This certification could have been 
signed by the independent legal counsel for the State, rather than the 
Attorney General, provided that such counsel had the full authority to 
represent independently the lead State Agency in court on all matters 
pertaining to the State program.
    The technical requirements for part 257, subpart B are location 
restrictions, ground-water monitoring, corrective action, and 
recordkeeping requirements. These requirements have been met by the 
State programs listed in today's final determination.
    Today's determination includes ``authorized'' States that have 
laws, regulations, or guidance in place requiring that CESQG hazardous 
waste be managed in a RCRA subtitle C facility (see 61 FR 34264). These 
``authorized'' States are California, Colorado, Connecticut, Florida, 
Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, 
Minnesota, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, 
Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, 
West Virginia, Wisconsin, and Wyoming. Arizona, Virginia, and New York 
are ``approved'' States that require CESQG waste to be disposed of in a 
MSWLF meeting or exceeding the requirements of 40 CFR part 258 (see 61 
FR 34264). For all cases, the State regulations have been reviewed by 
EPA, found to be equal to or more stringent than 40 CFR part 257, 
subpart B and approved. Most State program regulations contain 
additional requirements and are more stringent.
    The States covered by today's approval have permit programs or 
other systems of prior approval for all waste disposal units that may 
receive CESQG hazardous waste in their jurisdictions. These States 
provide for public participation in permit issuance and enforcement as 
specified in the SIR rule. Finally, EPA believes that these States have 
sufficient compliance monitoring and enforcement authorities to take 
action against any owner or operator that fails to comply with 
regulations applicable to waste disposal units that may receive CESQG 
hazardous waste.

[[Page 30436]]

B. Decision

    After reviewing the States' previous submissions for approval under 
subtitle D (40 CFR part 258) and authorization under subtitle C (40 CFR 
part 264), the Agency concludes that the above States meet all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
the above States are granted a final determination of adequacy for all 
portions of their permit program for solid waste disposal units that 
may receive CESQG hazardous waste.
    RCRA section 4005(a) provides that citizens may use the citizen 
suit provisions of RCRA section 7002 to enforce the Federal Criteria 
for Classification of Solid Waste Disposal Facilities and Practices in 
40 CFR part 257, subpart B independent of any State enforcement 
program. As explained in the preamble to 40 CFR part 257, subpart B, 
EPA expects that any owner or operator complying with the provisions of 
a State program approved by EPA that requires that CESQG hazardous 
waste be disposed of in either a subtitle C facility or a subtitle D 
MSWLF would be in compliance with the Federal Criteria. See 61 FR 34264 
(July 1, 1996).
    In the future, approval for State permit programs for non-MSWLF 
units that accept CESQG hazardous waste and meet the 40 CFR part 257, 
subpart B requirements, will follow the procedures outlined in the SIR 
and will be done on an individual State basis.
    Today's action will become effective ninety (90) days from the date 
of publication if no adverse comments are received.

Related Acts of Congress and Executive Orders

    We have evaluated these streamlined approvals in relation to a 
number of statutory provisions and executive orders which apply to 
rules. These evaluations are summarized below, and further analysis and 
explanation can be found in the proposed rule published elsewhere in 
todays Federal Register.

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether a 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: (1) 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; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.'' It has been 
determined that this rule is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 and is therefore not subject 
to OMB review.

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 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. This rule does not impose any new burdens on small 
entities. It merely confirms existing needs for the disposal of CESQG 
waste under state law. This proposal does not impose any new cost 
burdens. I hereby certify that this rule will not have a significant 
economic impact on a substantial number of small entities. This rule, 
therefore, does not need a regulatory flexibility analysis.

C. The Paperwork Reduction Act

    Today's final rule is in compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. We found that no information is being 
collected from the States for this direct final rule, so we do not need 
to prepare an Information Collection Request (ICR).

D. The Unfunded Mandates Reform Act

    The Agency's analysis of compliance with UMRA found that today's 
direct final rule imposes no enforceable duty on any State, local or 
tribal governments or the private sector; thus today's rule is not 
subject to the requirements of sections 202 and 205 of UMRA.

E. Executive Order 13045

    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by E.O. 12866, and because 
it does not involve decisions based on environmental health or safety 
risks.

F. National Technology Transfer and Advancement Act

    This direct final rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

G. Executive Order 12875

    Today's direct final 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.

H. Executive Order 13084

    Today's direct final rule does not significantly or uniquely affect 
the communities of Indian tribal governments. There is no impact to 
tribal governments as the result of the State plan approvals. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

I. Executive Order 12898: Environmental Justice

    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.
    The Agency does not believe that today's direct final rule granting 
State permit program approval will have a disproportionately high and 
adverse environmental or economic impact on any minority or low-income 
group, or on any other type of affected community.

[[Page 30437]]

J. The Congressional Review Act

    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 September 7, 1999.

    Authority: This document is issued under the authority of 
section 4005 of the Solid Waste Disposal Act as amended, 42 U.S.C. 
6946.

    Dated: May 28, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-14347 Filed 6-7-99; 8:45 am]
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