[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Notices]
[Pages 62439-62441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29740]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5340-3]


State of New Jersey; Final Partial Program Determination of 
Adequacy of State/Tribe Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Partial Program Determination of Adequacy on 
New Jersey's Application.

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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 hazardous household waste or small quantity generator 
waste will comply with the revised Federal MSWLF Criteria (40 CFR 258). 
RCRA section 4005(c)(1)(C) requires the Environmental Protection Agency 
(EPA) to determine whether States have adequate ``permit'' programs for 
MSWLFs, but does not mandate issuance of a rule governing such 
determinations. EPA has drafted and is in the process of proposing a 
State/Tribal Implementation Rule (STIR) that will provide procedures by 
which EPA will approve, or partially approve, State/Tribal landfill 
permit programs. The Agency has approved and will continue to approve 
adequate State/Tribal MSWLF permit programs as applications are 
submitted. Thus, these approvals are not dependent on final 
promulgation of the STIR. Prior to promulgation of the STIR, adequacy 
determinations will be made based on statutory authorities and 
requirements. In addition, States/Tribes may use the draft STIR as an 
aid in interpreting these requirements. The Agency believes that early 
approvals have an important benefit. Approved State/Tribal permit 
programs provide for interaction between the State/Tribe and the owner/
operator regarding site-specific permit conditions. Only those owner/
operators located in States/Tribes with approved permit programs can 
use the site-specific flexibility provided by Part 258 to the extent 
the State/Tribal permit program allows such flexibility. EPA notes that 
regardless of the approval status of a State/Tribe and the permit 
status of any facility, the federal landfill criteria will apply to all 
permitted and unpermitted MSWLF facilities.
    The State of New Jersey applied for a partial program determination 
of adequacy under Section 4005 of RCRA. EPA reviewed New Jersey's 
application and made a tentative determination of adequacy for those 
portions of the MSWLF permit program that are adequate to ensure 
compliance with the revised MSWLF Criteria. After reviewing all 
comments received, EPA today is granting final partial approval to New 
Jersey's program.

 
[[Page 62440]]

EFFECTIVE DATE: The partial program determination of adequacy for New 
Jersey shall be effective on December 6, 1995.

FOR FURTHER INFORMATION CONTACT: Lorraine Graves, U.S. EPA Region II, 
Mail code 2AWM, 22nd Floor, 290 Broadway, New York, New York, 10007-
1866, telephone: (212) 637-4099.
SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR Part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that facilities comply with the Federal 
Criteria under 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. To fulfill this requirement, the Agency has drafted 
and is in the process of proposing the State/Tribal Implementation Rule 
(STIR). The rule will specify the requirements which State/Tribal 
programs must satisfy to be determined adequate.
    EPA intends to propose in STIR to allow partial approval if: 1) the 
Regional Administrator determines that the State/Tribal permit program 
largely meets the requirements for ensuring compliance with Part 258; 
2) changes to a limited narrow part(s) of the State/Tribal permit 
program are needed to meet these requirements; and, 3) provisions not 
included in the partially approved portions of the State/Tribal permit 
program are a clearly identifiable and separable subset of Part 258. As 
provided in the October 9, 1991, municipal landfill rule, EPA's 
national Subtitle D standards took effect in October, 1993. 
Consequently, any portions of the Federal Criteria which are not 
included in an approved State/Tribal program by October, 1993, would 
apply directly to the owner/operator. The requirements of the STIR, if 
promulgated, will ensure that any mixture of State/Tribal and Federal 
rules that take effect will be fully workable and leave no significant 
gaps in environmental protection. These practical concerns apply to 
individual partial approvals granted prior to the promulgation of the 
STIR rule. Consequently, EPA reviewed the program approved today and 
concluded that the New Jersey permit program and the Federal 
requirements mesh reasonably well and leave no significant gaps. 
Partial approval will allow the Agency to approve those provisions of 
the New Jersey permit program that meet the requirements and provide 
the State time to make necessary changes to the remaining portions of 
its program. As a result, owners/operators will be able to work with 
the New Jersey permitting agency to take advantage of the Criteria's 
flexibility for those portions of the program which have been approved.
    EPA has reviewed New Jersey's requirements to determine whether 
they are ``adequate'' under section 4005(c)(1)(C) of RCRA. EPA 
interprets the requirements for States or Tribes to develop 
``adequate'' programs for permits or other forms of prior approval to 
impose several minimum requirements. First, each State/Tribe must have 
enforceable standards for new and existing MSWLFs that are technically 
comparable to EPA's revised MSWLF criteria. Next, the State/Tribe 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/Tribe 
also must provide for public participation in permit issuance and 
enforcement as required in Section 7004(b) of RCRA. Finally, EPA 
believes that the State/Tribe must show 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 MSWLF program.
    EPA Regions will determine whether a State/Tribe has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
plans to provide more specific criteria for this evaluation when it 
proposes the State/Tribal Implementation Rule. EPA expects States/
Tribes to meet all of these requirements for all elements of a MSWLF 
program before it gives full approval to a MSWLF program. EPA also is 
requesting States/Tribes seeking partial program approval to provide a 
schedule for the submittal of all remaining portions of their MSWLF 
permit programs. EPA notes that it intends to propose to make 
submissions of a schedule mandatory in STIR.
    On March 3, 1994, the State of New Jersey submitted an application 
to obtain a partial program adequacy determination for its municipal 
solid waste landfill permit program. Additional material was submitted 
on July 21, 1994 and September 6, 1994. On October 28, 1994, EPA 
published a tentative partial determination of adequacy for New 
Jersey's program. Further background on the tentative partial program 
determination of adequacy appears at 59 FR 54190, October 28, 1994.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. The New Jersey 
application for partial program adequacy determination was available 
for public review and comment at the New Jersey Department of 
Environmental Protection in Trenton, New Jersey and at the EPA Region 
II Library in New York, New York. The public comment period commenced 
on October 28, 1994 and ended on December 14, 1994.
    Although RCRA does not require EPA to hold a hearing on any 
determination to approve a State/Tribe's MSWLF program, the Region 
scheduled a public hearing on this tentative partial determination. A 
public hearing was held in Trenton, New Jersey on December 14, 1994. A 
summary of the comments received, and EPA's responses thereto is 
contained in the public comment section of this notice.
    On March 3, 1994, the State of New Jersey submitted an application 
for partial determination of adequacy of its solid waste landfill 
permit program. Certain revisions and amendments were submitted on July 
21, 1994 and September 6, 1994. The application addressed all 
components of 40 CFR Part 258 and discussed New Jersey's enforcement 
authority, provisions for citizen participation, and the current status 
of solid waste landfills within the State. EPA reviewed New Jersey's 
application and tentatively determined that the State's program met the 
requirements necessary to qualify for a determination of partial 
program approval of adequacy to ensure compliance with the Federal 
Criteria with the exception of Subpart E--Ground-Water Monitoring and 
Corrective Action. Upon appropriate adoption of revisions to its 
existing ground-water regulations, it is expected that New Jersey will 
become eligible for full approval, which will include Subpart E--
Ground-Water Monitoring and Corrective Action. New Jersey has provided 
a revised schedule for adoption of proposed regulatory revisions. The 
revised regulations are expected to be fully effective by late 1996, 
rather than by the end of 1995 as set forth in the original schedule. 
EPA has reviewed the revised schedule and concluded that it is 
reasonable. In addition, all of the New Jersey solid waste regulations 
are scheduled to be re-adopted during the 1995-1996 period to comply 
with the Governor's Executive Order #66 requiring periodic re-adoption 
of administrative rules. 

[[Page 62441]]


B. Public Comment

    A summary of the public comments received on the tentative 
determination of partial program adequacy and EPA's responses follows. 
Two comments were received by mail. The first involved questions and 
concerns of a site-specific nature in several New Jersey counties. 
Since the questions and concerns raised were specific to either 
particular facilities or working operations and were not relevant to 
the State's program as to its equivalency to the federal criteria or 
overall program adequacy, these questions were not considered in this 
determination and will not be discussed in this notice. However, 
concerns were addressed by direct correspondence with the commentor.
    The second comment challenged New Jersey's wetlands protection 
standards. The comment asserted that New Jersey's wetland standards 
were not ``technically comparable'' to the Federal Criteria and that 
the State application ``failed to cite regulations'' that adequately 
protect wetlands. It also asserted that New Jersey regulations lack a 
counterpart to 40 CFR Sec. 258.12(a)(1), which provides significant 
restrictions on locating solid waste landfill units in wetlands. In 
addition, the commentor remarked that New Jersey had permitted a 
particular county landfill expansion in violation of the Federal 
landfill criteria.
    The New Jersey application identified and discussed its wetlands 
regulations as they appear in N.J.A.C. 7:26, the solid waste 
requirements, as well as N.J.A.C. 7:7A, the Freshwater Wetlands 
Protection Act Rules. The narrative portion of the New Jersey 
application clearly states that the New Jersey Department of Solid 
Waste Management shall issue a freshwater wetlands or open water fill 
permit only if it finds that there is no practicable alternative to the 
proposed activity. The rules apply to sanitary landfills proposing to 
engage in regulated activities set forth in N.J.A.C. 7:7A. Subsequent 
to the public hearing, New Jersey again addressed this issue in 
correspondence with EPA and reaffirmed that New Jersey regulations are 
consistent with the federal approach.
    As to the matter of the particular county landfill expansion, it is 
EPA's understanding that the owner/operator of the facility in question 
has not received a permit to proceed with these activities. 
Furthermore, EPA's responsibility in this matter is only directed to a 
determination concerning the adequacy of the State permit program.

C. Decision

    After reviewing the public comments, I conclude that New Jersey's 
application for a partial program adequacy determination meets all of 
the statutory and regulatory requirements established by RCRA. 
Accordingly, New Jersey is granted a partial program determination of 
adequacy for the following areas of its municipal solid waste permit 
program: location restrictions, operating criteria, design criteria, 
closure and post-closure care, and financial assurance criteria.
    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/Tribal enforcement 
program. As EPA explained in the preamble to the final MSWLF criteria, 
EPA expects that any owner or operator complying with provisions in a 
State/Tribal program approved by EPA should be considered to be in 
compliance with the relevant portions of the Federal Criteria. See 56 
FR 50978, 50995 (October 9, 1991).
    Today's action takes effect on the date of publication. 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. 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 give notice prior 
to making its approval effective.

Compliance With Executive Order 12291

    The Office of Management and Budget has exempted this notice from 
the requirements of Section 3 of Executive Order 12291.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this final 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 notice, therefore, does not require a 
regulatory flexibility analysis.

    Authority: This notice is issued under the authority of Section 
4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.

    Dated: November 7, 1995.
William J. Muszynski,
Deputy Regional Administrator.
[FR Doc. 95-29740 Filed 12-5-95; 8:45 am]
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