[Federal Register Volume 64, Number 192 (Tuesday, October 5, 1999)]
[Proposed Rules]
[Pages 53976-53980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25839]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[FRL-6451-8]
Rhode Island: Determination of Adequacy for the State's Municipal
Solid Waste Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to issue a
determination of adequacy for the State
[[Page 53977]]
of Rhode Island's municipal solid waste landfill (MSWLF) permit
program. Under the Resource Conservation and Recovery Act, as amended
by the Hazardous and Solid Waste Amendments, States may develop and
implement permit programs for MSWLFs for review and an adequacy
determination by EPA. This proposed rule would document EPA's
determination that Rhode Island's MSWLF permit program is adequate to
ensure compliance with Federal MSWLF requirements.
DATES: Submit comments and requests for public hearing on or before
November 4, 1999. See the SUPPLEMENTARY INFORMATION section for
additional information.
ADDRESSES: Mail all comments and requests for public hearing concerning
this proposed rule to Michael Hill, United States Environmental
Protection Agency, Region 1, One Congress Street, Suite 1100, Mail Code
CHW, Boston, MA 02114. Copies of Rhode Island's application for a
determination of adequacy are available at the following locations for
inspection and copying: (1) During the hours of 8:00 a.m. to 4:00 p.m.,
Rhode Island Department of Environmental Management, 235 Promenade
Street, Providence, RI, Attn: Mr. Christopher Shafer, telephone number:
(401) 222-2797, ext. 7511; and (2) during the hours of 8:00 a.m. to
5:00 p.m., United States Environmental Protection Agency, Region 1, One
Congress Street, Suite 1100, Boston, MA 02203, Attn: Ellen Culhane,
telephone number: (617) 918-1225.
FOR FURTHER INFORMATION CONTACT: Michael Hill, United States
Environmental Protection Agency, Region 1, One Congress Street, Suite
1100, Mail Code CHW, Boston, MA 02114; telephone number: (617) 918-
1398.
SUPPLEMENTARY INFORMATION:
I. Background
On October 9, 1991, the Environmental Protection Agency (EPA)
promulgated the ``Solid Waste Disposal Facility Criteria: Final Rule''
(56 FR 50978, Oct. 9, 1991). That rule established Part 258 of Title 40
of the Code of Federal Regulations (CFR) (40 CFR part 258). The
criteria set out in 40 CFR part 258 include location restrictions and
standards for design, operation, groundwater monitoring, corrective
action, financial assurance and closure and post-closure care for
municipal solid waste landfills (MSWLFs). The 40 CFR part 258 criteria
establish minimum Federal standards that take into account the
practical capability of owners and operators of MSWLFs while ensuring
that these facilities are designed and managed in a manner that is
protective of human health and the environment.
Section 4005(c)(1)(B) of Subtitle D of the Resource Conservation
and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments of 1984, requires States to develop and implement permit
programs to ensure that MSWLFs will comply with the 40 CFR part 258
criteria. RCRA Section 4005(c)(1)(C) requires EPA to determine whether
the permit programs that States develop and implement for these
facilities are adequate.
To fulfill this requirement to determine whether State permit
programs that implement the 40 CFR part 258 criteria are adequate, EPA
promulgated the State Implementation Rule (SIR) (63 FR 57025, Oct. 23,
1998). The SIR, which established Part 239 of Title 40 of the CFR (40
CFR part 239), has the following four purposes: (1) It spells out the
requirements that State programs must satisfy to be determined
adequate; (2) it confirms the process for EPA approval or partial
approval of State permit programs for MSWLFs; (3) it provides the
procedures for withdrawal of such approvals; and (4) it establishes a
flexible framework for modifications of approved programs.
Only those owners and operators located in States with approved
permit programs for MSWLFs can use the site-specific flexibility
provided by 40 CFR part 258, to the extent the State permit program
allows such flexibility. Every standard in the 40 CFR part 258 criteria
is designed to be implemented by the owner or operator with or without
oversight or participation by EPA or the State regulatory agency.
States with approved programs may choose to require facilities to
comply with the 40 CFR part 258 criteria exactly, or they may choose to
allow owners and operators to use site-specific alternative approaches
to meet the Federal criteria. 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
40 CFR part 258 criteria. Regardless of the approval status of a State
and the permit status of any facility, the 40 CFR part 258 criteria
shall apply to all permitted and unpermitted MSWLFs.
To receive a determination of adequacy for a MSWLF permit program
under the SIR, a State must have enforceable standards for new and
existing MSWLFs. These State standards must be technically comparable
to the 40 CFR part 258 criteria. In addition, the State must have the
authority to issue a permit or other notice of prior approval and
conditions 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 RCRA Section 7004(b). Finally, the State
must demonstrate that it has sufficient compliance monitoring and
enforcement authorities to take specific action against any owner or
operator that fails to comply with an approved permit program. EPA
expects States to meet all of these requirements for all elements of a
permit program before it gives full approval to a State's program.
II. State of Rhode Island
On March 18, 1994, Rhode Island submitted a complete application
for a determination of adequacy of its MSWLF permit program to EPA. EPA
reviewed the application and requested additional information about
program implementation. Rhode Island provided this information. As a
result of the review process, Rhode Island identified certain
deficiencies in its MSWLF permit program regulations, and it proposed
revisions to make the program consistent with the Federal minimum
criteria under 40 CFR part 258. On March 23, 1995, EPA provided Rhode
Island with its comments regarding the application and acknowledged
that Rhode Island had proposed to revise the MSWLF permit program
regulations. Rhode Island provided EPA with these proposed revisions,
subject to public comment, on August 28, 1995. On September 25, 1995,
EPA informed Rhode Island that it had (1) completed its review of the
proposed revisions, and (2) determined that upon their adoption as
written, EPA would publish a tentative full determination of adequacy
for the State's MSWLF permit program in the Federal Register. Before
publication of this notice, however, Rhode Island further amended its
MSWLF permit program regulations. It made these amendments in order to
satisfy certain State law requirements and conform the regulations to
certain Rhode Island Department of Environmental Management (RIDEM)
recycling requirements, and because of a RIDEM reorganization. The
revised MSWLF permit program regulations became effective on January
30, 1997. EPA reviewed these regulations and requested additional
information about program implementation, which Rhode Island provided.
Based on its review, EPA has tentatively determined that all
portions of Rhode Island's MSWLF permit
[[Page 53978]]
program meet all the requirements necessary to qualify for full program
approval and ensure compliance with the 40 CFR part 258 criteria.
By finding that Rhode Island's MSWLF permit program is adequate,
EPA does not intend to affect the rights of Federally recognized Indian
Tribes in Rhode Island, nor does it intend to limit the existing rights
of the State of Rhode Island. In addition, nothing in this action
should be construed as making any determinations or expressing any
position with regard to Rhode Island's audit law (R.I. Gen. Laws
Secs. 42-17.8-1 to 8-8). The action taken here does not express or
imply any viewpoint on the question of whether there are legal
deficiencies in this or any other Federally authorized, delegated, or
approved program resulting from the effect of Rhode Island's audit law.
RCRA Section 4005(a) provides that citizens may use the citizen
suit provisions of RCRA Section 7002 to enforce the 40 CFR part 258
criteria independent of any State enforcement program. EPA expects that
any owner or operator complying with provisions in a State program
approved by EPA should be considered to be in compliance with the 40
CFR Part 258 criteria.
III. Public Comments and Public Hearing
The public may submit written comments on this proposed rule. The
deadline for submitting written comments is in the DATES section of
this proposed rule. EPA will consider all public comments on this
proposed rule that it receives during the public comment period and
during any public hearing, if held. Issues raised by those comments may
be the basis for a determination of inadequacy for Rhode Island's
program. EPA will make a final decision on approval of the State of
Rhode Island's program and will publish the final rule in the Federal
Register. The final rule shall include a summary of the reasons for the
final determination and responses to all significant comments.
Although RCRA does not require EPA to hold a public hearing on a
tentative determination to approve any State's MSWLF permit program,
EPA will hold a public hearing on this determination if enough persons
express interest by either writing to EPA at the address in the
ADDRESSES section above or calling the EPA representative listed in the
CONTACTS section above within thirty (30) days of the date of
publication of this proposed rule. EPA will notify all persons who
submit comments on this notice if there is public interest in a
hearing. In addition, anyone who wishes to learn whether the hearing
will be held may call the EPA representative listed in the CONTACTS
section above. The State will participate in the public hearing if it
is held.
Copies of Rhode Island's application are available for inspection
and copying at the location indicated in the ADDRESSES section of this
proposed rule.
IV. Regulatory Assessments
A. Compliance With Executive Order 12866: Regulatory Planning and
Review
Under Executive Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), EPA
must determine whether any proposed or final regulatory action is
``significant'' and therefore subject to Office of Management and
Budget (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.
OMB has exempted today's action from E.O. 12866 review.
B. Compliance With E.O. 12875--Enhancing the Intergovernmental
Partnership
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, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to OMB a description of
the extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns, 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.
C. Compliance With E.O. 13045--Children's Health Protection
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, Apr. 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, EPA
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 EPA. EPA interprets E.O. 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under Section 5-501 of the Order has the
potential to influence the regulation. Today's action is not subject to
E.O. 13045 because it does not establish an environmental standard
intended to mitigate health or safety risks.
D. Compliance With E.O. 13084--Consultation and Coordination With
Indian Tribal Governments
Under E.O. 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, or EPA consults with those
governments. If EPA complies by consulting, E.O. 12875 requires EPA to
provide to 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
[[Page 53979]]
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
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.
E. Compliance With the Regulatory Flexibility Act
EPA has determined that this tentative determination of adequacy
will not have a significant adverse economic impact on a substantial
number of small entities. The MSWLF revised criteria in 40 CFR part 258
provide directors of States with approved programs the authority to
exercise discretion and to modify various Federal requirements.
Directors of approved States may modify certain of these Federal
requirements to make them more flexible on either a site-specific or
State-wide basis. In many cases, exercise of this flexibility results
in a decrease in burden or economic impact upon owners or operators of
MSWLFs. Thus, with EPA's determination that the Rhode Island MSWLF
permitting program is adequate, the burden on MSWLF owners and
operators in that State that are also small entities should be reduced.
Moreover, because small entities that own or operate MSWLFs are already
subject to the requirements in 40 CFR part 258 (although some small
entities may already be exempted from certain of these requirements,
such as the groundwater monitoring and design provisions (40 CFR
258.1(f)(1)), today's action does not impose any additional burdens on
them.
F. Compliance With 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. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
G. Compliance With the 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.
Today's action contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. It implements mandates specifically
and explicitly 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 policy discretion by EPA. In any event, EPA does not believe that
this tentative determination of the State program's adequacy will
result in estimated costs of $100 million or more to State, local, and
tribal governments in the aggregate, or to the private sector, in any
one year. This is due to the additional flexibility that the State can
generally exercise (which will reduce, not increase, compliance costs).
Moreover, this tentative determination will not significantly or
uniquely affect small governments including Tribal small governments.
As to the applicant, the State has received notice of the requirements
of an approved program, has had meaningful and timely input into the
development of the program requirements, and is fully informed as to
compliance with the approved program. Thus, any applicable requirements
of section 203 of the Act have been satisfied.
H. Compliance With E.O. 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. EPA does not
believe that today's proposed rule 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.
I. Compliance With the National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 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 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
proposed rulemaking does not involve technical standards. Therefore,
EPA is
[[Page 53980]]
not considering the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 258
Environmental protection, Adequacy, Administrative practice and
procedure, Municipal solid waste landfills, Non-hazardous solid waste,
State permit program approval.
Authority: 42 U.S.C. 6912, 6945, 6949(a).
Dated: September 23, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-25839 Filed 10-4-99; 8:45 am]
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