[Federal Register Volume 71, Number 15 (Tuesday, January 24, 2006)]
[Rules and Regulations]
[Pages 3779-3781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-627]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 239, 257, and 258

[FRL-8024-2]


Maine: Determination of Adequacy for the State Municipal Solid 
Waste Landfill Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve the State of Maine's permit program for 
municipal solid waste landfills (MSWLFs) and to approve the State's 
approach of not allowing conditionally exempt small quantity generator 
(CESQG) hazardous waste to be sent to non-municipal, non-hazardous 
waste disposal units. Under the Resource Conservation Recovery Act 
(RCRA), as amended by the Hazardous and Solid Waste Amendments (HSWA), 
States may develop and implement permit programs for MSWLFs and for 
non-municipal, non-hazardous waste disposal units that receive CESQG 
hazardous waste, and submit them for review and an adequacy 
determination by EPA. Today's approval documents EPA's determination 
that Maine's MSWLF permit program, and the manner in which the State 
addresses CESQG hazardous waste with respect to non-municipal, non-
hazardous waste disposal units, are adequate to ensure compliance with 
federal requirements.

DATES: This rule is effective on March 27, 2006 without further notice, 
unless EPA receives adverse comment by February 23, 2006. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Submit your comments (including requests for a public 
hearing) by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. E-mail: Chuck Franks at: [email protected].
    3. Mail: Chuck Franks, EPA New England--Region 1, One Congress 
Street, Suite 1100, (Mail Code: CHW), Boston, MA 02114-2023.
    4. Hand Delivery or Courier: Deliver your comments to Chuck Franks, 
EPA New England--Region 1, One Congress Street, Suite 1100, (CHW), 
Boston, MA 02114-2023.
    Instructions: We must receive your comments by February 23, 2006. 
Do not submit information that you consider to be CBI or otherwise 
protected through regulations.gov, or e-mail. The Federal 
regulations.gov website is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    You can view and copy Maine's application and associated publicly 
available materials at the following locations: (1) Maine Department of 
Environmental Protection (ME DEP), State House Station 17, Hospital 
Street, Augusta, Maine 04333, business hours: Monday through Thursday, 
8:30 a.m. to 4:30 p.m. and Friday, 8:30 a.m. to 12:30 p.m.; interested 
persons wanting to examine documents at the state office should make an 
appointment with the ME DEP, Bureau of Remediation and Waste Management 
at least one day in advance by calling (207) 287-2651; and (2) EPA New 
England--Region 1 Library, One Congress Street--11th Floor, Boston, MA 
02114-2023, business hours: 10 a.m. to 3 p.m., Monday through Thursday, 
telephone number: (617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Chuck Franks, EPA New England--Region 
1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; 
telephone number: (617) 918-1554, e-mail: [email protected].

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). This rule promulgates part 258 of Title 40 of the Code 
of Federal Regulations (CFR) (40 CFR part 258) which establishes the 
minimum criteria for Municipal Solid Waste Landfills (MSWLF's). 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 
MSWLFs. On July 1, 1996, EPA amended part 257 of Title 40 of the CFR 
(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 criteria include 
location restrictions and groundwater monitoring and corrective action 
standards for non-municipal, non-hazardous waste disposal units that 
receive CESQG hazardous waste. Today's rule refers to the 40 CFR part 
257, subpart B criteria and the 40 CFR part 258 criteria together as 
the ``Subtitle D federal revised criteria.'' The Subtitle D federal 
revised criteria establish minimum federal standards that take into 
account the practical capability of owners and operators of MSWLFs and 
non-municipal, non-hazardous waste disposal units that receive CESQG 
hazardous waste while ensuring that these two types of 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 (HSWA) of 1984, requires States to develop and implement 
permit programs to ensure that MSWLFs and non-municipal, non-hazardous 
waste disposal units that receive CESQG hazardous waste will comply 
with the Subtitle D federal revised criteria. RCRA Section 
4005(c)(1)(C) requires EPA to determine whether the permit programs 
that states develop and implement for these two types of facilities are 
adequate.
    To fulfill this determination requirement, EPA promulgated the 
State Implementation Rule (SIR). 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 and non-municipal, 
non-hazardous waste disposal units that receive CESQG hazardous waste; 
(3) it provides the procedures for withdrawal of such

[[Page 3780]]

approvals; and (4) it establishes a flexible framework for 
modifications of approved programs.
    To receive a determination of adequacy under the SIR, a State must 
have: (1) Enforceable standards for new and existing MSWLFs and non-
municipal, non-hazardous waste disposal units that receive CESQG 
hazardous waste that are technically comparable to the Subtitle D 
federal revised criteria; (2) authority to issue a permit or other 
notice of prior approval and conditions to all new and existing MSWLFs 
and non-municipal, non-hazardous waste disposal units that receive 
CESQG hazardous waste in its jurisdiction; (3) provisions for public 
participation in permit issuance and enforcement, as required in RCRA 
Section 7004(b); and (4) sufficient compliance monitoring and 
enforcement authorities to take specific action against any owner or 
operator that fails to comply with the state 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 Maine

    On September 29, 1993, Maine submitted an application for a 
determination of adequacy of its MSWLF permit program to EPA (Region 
1). EPA reviewed the application and requested additional information 
about program implementation. This information was provided and is part 
of the application record. Also, as a part of the application process, 
ME DEP initiated a process to revise portions of Maine's statutes and 
the Department's solid waste management rules as necessary to make the 
program consistent with the Federal criteria under 40 CFR part 258.
    After EPA provided Maine with initial comments regarding the 
application, Maine provided EPA with a copy of the proposed draft 
revisions to their solid waste management rules on August 28, 1995. The 
August 28, 1995 draft revisions were distributed to an extensive list 
of potentially interested parties and Maine DEP received public 
comments concerning this draft which it determined warranted additional 
draft changes and public review and comment. Subsequent revision drafts 
dated September 1996 and January 1998 were prepared and distributed for 
public review and comment and were also forwarded to EPA for agency 
review relative to the criteria under 40 CFR part 258. The revised 
MSWLF permit program regulations were adopted by Maine DEP and became 
effective on November 2, 1998. Subsequent minor revisions to correct 
errors and omissions or to provide greater clarity to the MSWLF permit 
program regulations were drafted, distributed for public comment, 
adopted through formal rulemaking and made effective on September 6, 
1999.
    On March 22, 2004, the EPA promulgated the Research Development and 
Demonstration amendments at 40 CFR 258.4. Maine is not seeking approval 
to implement the provisions of the RD&D amendments in this 
determination of adequacy. Adopting these provisions is optional. Maine 
may apply for, and be approved to implement these provisions at a later 
time.
    Based on our review, EPA has determined that Maine's MSWLF permit 
program meets all of the criteria necessary to qualify for full program 
approval. The bases for this determination are set forth in checklists 
comparing the state program to the federal criteria, and other 
documents, contained in the Administrative Docket.
    Maine has not submitted an application for a determination of 
adequacy under Subtitle D for a permit program for non-municipal, non-
hazardous waste disposal units that receive CESQG hazardous waste 
because it does not have such a program. The State instead requires 
that all hazardous waste disposal, including CESQG hazardous waste 
disposal, must occur only at hazardous waste disposal facilities that 
comply with the disposal requirements of RCRA Subtitle C. Therefore, 
the state exceeds the requirements as set out in 40 CFR part 257, 
subpart B for non-municipal, non-hazardous waste disposal units 
receiving CESQG hazardous waste and is, therefore, approved by EPA as 
having met or exceeded all RCRA Subtitle D CESQG disposal requirements. 
The State has no plans to revise its current CESQG hazardous waste 
disposal requirements and has indicated that any potential future 
changes to Maine's solid waste management rules that may alter these 
requirements will be forwarded to EPA for approval under the provisions 
of Subtitle D.
    Owners and operators located in States with approved permit 
programs may benefit from the site-specific flexibility provided by 40 
CFR part 257, subpart B, and 40 CFR part 258, to the extent the State 
program allows such flexibility. States with approved programs may 
choose to require facilities to comply with 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 criteria. The flexibility allowed by 40 CFR part 257, subpart B 
is not applicable in Maine since, as explained above, Maine requires 
CESQG hazardous waste to be disposed of only at hazardous waste 
disposal facilities. The Maine regulations generally track the federal 
regulations and, therefore, generally allow the flexibility provided by 
40 CFR part 258.
    RCRA Section 4005(a) provides that citizens may use the citizen 
suit provisions of RCRA Section 7002 to enforce the RCRA Subtitle D 
Federal revised criteria independent of any State enforcement program. 
EPA expects that any owner or operator complying with the provisions in 
a State program approved by EPA should be considered to be in 
compliance with the criteria set out in 40 CFR part 257, subpart B and 
40 CFR part 258.
    Maine is not applying at this time for the authority to carry out 
its federal program in Indian country. Therefore, today's EPA action 
does not include approval for the State to carry out its program in 
Indian country within the State, which includes the lands of the 
Houlton Band of Maliseet Indians, the Aroostook Band of Micmacs, the 
Passamaquoddy Tribe at Pleasant Point and Indian Township, and the 
Penobscot Nation. Today's action has no effect on Indian country. EPA 
will address any issues relating to the State's authority regarding 
Indian country only if and when the State applies to be authorized to 
carry out this federal program in Indian country.

III. Public Comments and Public Hearing

    The public may submit written comments on this rule. The deadline 
for submitting written comments is in the DATES section of this rule. 
The mailing and email addresses to which comments should be sent are in 
the ADDRESSES section of this rule. EPA will consider all public 
comments on this direct final rule that it receives during the public 
comment period and during any public hearing, if held.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve a State's MSWLF permit program and the manner 
in which CESQG hazardous waste is addressed at non-municipal, non-
hazardous waste disposal units, EPA will hold a public hearing on this 
determination if sufficient public interest is expressed by persons 
either writing to EPA at the address in the ADDRESSES section above or 
calling the EPA representative listed in the FOR FURTHER INFORMATION 
CONTACT section by February 23, 2006. Should EPA

[[Page 3781]]

decide to hold a public hearing, this direct final rule will be revoked 
and the final deadline for submitting comments will be extended. EPA 
will notify any persons who submit comments on this notice if there is 
a public hearing. In addition, anyone who wishes to learn whether the 
hearing will be held may call the EPA representative listed in the FOR 
FURTHER INFORMATION CONTACT section above.
    Copies of Maine's application are available for inspection and 
copying at the location indicated in the ADDRESSES section of this 
direct final rule.

IV. Regulatory Assessments

    The Office of Management and Budget has exempted this type of 
action from the requirements of Executive Order 12866; therefore, this 
action is not subject to review by OMB. This action approves State 
requirements for the purposes of RCRA and imposes no additional 
requirements beyond those imposed by State law. Accordingly, this 
action will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.). Because this action authorizes pre-existing requirements 
under State law and does not impose any additional enforceable duty 
beyond that required by State law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). 
For the same reason, and because this action has no effect in Indian 
country, this action also does not significantly or uniquely affect the 
communities or Tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action will not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely approves State requirements as part of the State RCRA 
program without altering the relationship or the distribution of power 
and responsibilities established by RCRA. This action also is not 
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because 
it is not economically significant and it does not make decisions based 
on environmental health or safety risks. This rule is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001) ) because it is not a significant regulatory action 
under Executive Order 12866.
    Under RCRA, EPA grants a State's application as long as the State 
meets the criteria required by RCRA. It would thus be inconsistent with 
applicable law for EPA, when it reviews a State application, to require 
the use of any particular voluntary consensus standard in place of 
another standard that otherwise satisfies the requirements of RCRA. 
Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).
    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 document 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 in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2) and therefore is not subject to 
the additional requirements for major rules.

List of Subjects

40 CFR Part 239

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Waste treatment and disposal.

40 CFR Part 257

    Waste treatment and disposal.

40 CFR Part 258

    Reporting and recordkeeping requirements, Waste treatment and 
disposal, Water pollution control.

    Authority: This action is issued under the authority of the 
Solid Waste Disposal Act as amended 42 U.S.C. 6912, 6945, 6949(a).

    Dated: December 27, 2005.
Robert Varney,
Regional Administrator, New England.
[FR Doc. 06-627 Filed 1-23-06; 8:45 am]
BILLING CODE 6560-50-P