[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)]
[Notices]
[Pages 8384-8386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3660]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5155-1]


New Hampshire; Final Adequacy Determination of State/Tribal 
Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination of Full Program Adequacy for the 
State of New Hampshire's Municipal Solid Waste Landfill Permitting 
Program.

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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, 42 USC 6945(c)(1)(B), 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 hazardous waste, will comply with the 
revised Federal MSWLF Criteria (40 CFR Part 258). RCRA Section 
4005(c)(1)(C), 42 USC Sec. 6945(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 
for 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 intends 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 the 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 owners/operators located in 
State/Tribes with approved permit programs can use the site-specific 
flexibilities provided by 40 CFR 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 shall apply to 
all permitted and unpermitted MSWLF facilities.
    The State of New Hampshire applied for a determination of adequacy 
under Section 4005(c)(1)(C) of RCRA, 42 USC Sec. 6945(c)(1)(C). EPA 
Region I reviewed New Hampshire's MSWLF permit program adequacy 
application and made a determination that all portions of New 
Hampshire's MSWLF permit program are adequate to assure compliance with 
the revised Federal MSWLF Criteria. After consideration of all comments 
received, EPA is today issuing a final determination that the State's 
program is adequate.

Effective Date: The determination of adequacy for the State of New 
Hampshire shall be effective on February 14, 1995.

For further information contact: EPA Region I, John F. Kennedy Federal 
Building, Boston, MA 02203, Attn: Mr. John F. Hackler, Chief, Solid 
Waste and Geographic Information Section, mail code HER-CAN 6, 
telephone (617) 573-9670.

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 MSWLFs comply with the Federal 
Criteria under 40 CFR part 258. Subtitle D also requires in Section 
4005(c)(1)(C), 42 USC Sec. 6945(c)(1)(C), 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 a State/Tribal Implementation Rule (STIR). The rule will 
specify the requirements which State/Tribal programs must satisfy to be 
determined adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of the STIR. EPA interprets the requirements for 
states or tribes to develop ``adequate'' programs for permits, or other 
forms of prior approval and conditions (for example, license to 
operate) to impose several minimum requirements. First, each State/
Tribe must have enforceable [[Page 8385]] standards for new and 
existing MSWLFs that are technically comparable to EPA's revised MSWLF 
criteria. Second, the State/Tribe 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/Tribe also must provide 
for public participation in permit issuance and enforcement as required 
in Section 7004(b) of RCRA, 42 USC Sec. 6974(b). Finally, 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 STIR. 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.

B. State of New Hampshire

    On July 7, 1993, EPA Region I received New Hampshire's final MSWLF 
permit program application for adequacy determination. EPA published in 
the Federal Register a tentative determination of adequacy for all 
portions of New Hampshire's program. Further background on the 
tentative determination of adequacy appears at 59 FR 52299 (October 17, 
1994).
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. In addition, a 
public hearing was tentatively scheduled. However, there were no 
requests for such, and as a result the hearing was not held.

C. Public Comment

    EPA Region I received the following written comments on the 
tentative determination of adequacy for New Hampshire's MSWLF 
permitting program, all of which have been made a part of the 
administrative record and are available to the public for review.
    Several commenters were generally supportive of EPA's tentative 
determination to provide full program approval to New Hampshire's MSWLF 
permitting program. These commenters encouraged EPA Region I to work 
quickly towards the final determination of adequacy of the State's 
program.
    A response was required by only one comment, in which the commenter 
questioned the effectiveness of the State's Guidance Document for 
ensuring compliance with both state and federal requirements for 
MSWLFs. Specifically, the commenter felt there were instances in which 
the Guidance may prove confusing to the regulated community (due in 
part to typographical errors and cross-references to part 258). EPA 
Region I forwarded a summary of the comments to the New Hampshire 
Department of Environmental Services (NH DES), which agreed that 
clarifying changes to its Guidance might be beneficial. Without 
creating any substantive changes, the Guidance was revised after review 
and approval by EPA Region I. The clarifying revisions ensure 
consistency with 40 CFR part 258, while maintaining the integrity of 
the State's original Guidance. To further prevent any chance of 
confusion, the State of New Hampshire will append the part 258 
regulations to its Guidance document for direct reference.

D. Decision

    After evaluating the New Hampshire program, EPA Region I concludes 
that the State of New Hampshire's MSWLF Permitting Program meets all of 
the statutory and regulatory requirements established by RCRA. The New 
Hampshire MSWLF Permitting Program is technically comparable to, no 
less stringent than, and equally as effective as the revised Federal 
Criteria. Accordingly, the State of New Hampshire is granted a 
determination of adequacy for all portions of its municipal solid waste 
permit program.
    To ensure full compliance with the Federal Criteria, New Hampshire 
has revised its current MSWLF permitting requirements by development of 
the Guidance Document for the State Permitting of Municipal Solid Waste 
Landfills Regulated Under Federal Rules (40 CFR Part 258) in New 
Hampshire. This guidance document has incorporated those requirements 
from the Federal Criteria not found in the State's existing MSWLF 
program which are applicable to all existing MSWLFs and to all MSWLF 
permit applications. New Hampshire will implement its MSWLF permit 
program through enforceable permit conditions. These new requirements 
occur in the following areas:
    1. The adoption of the following definitions as required by the 
revised Federal Criteria, 40 CFR 258.2: Active life, active portion, 
director, household waste, industrial solid waste, owner, saturated 
zone, sludge, solid waste, state, state director, and waste management 
unit boundary.
    2. Compliance with the location restrictions of 40 CFR 258.10, 
258.11. 258.12, 258.13, 258.14, 258.15, and 258.16, which pertain to 
airport safety, floodplains, wetlands, fault areas, seismic impact 
zones, unstable areas and closure of existing MSWLF units.
    3. Compliance with the operating criteria of 40 CFR 288.20, 258.21, 
258.23, 258.24, 258.28, 258.29, which pertain to excluding the receipt 
of hazardous waste, cover material requirements, explosive gases 
control, air criteria, liquid restrictions, and record keeping 
requirements.
    4. Compliance with the design criteria of 40 CFR 258.40.
    5. Compliance with the ground-water monitoring and corrective 
action requirements of 40 CFR 258.53, 258.54, 258.55, 258.56, 258.57, 
and 258.58, which pertain to groundwater sampling and analysis 
requirements, detection monitoring, assessment monitoring, assessment 
of corrective measures, selection of remedy, and implementation of the 
corrective action program.
    6. Compliance with the closure and post-closure criteria of 
Secs. 258.60 and 258.61.
    7. Compliance with the financial assurance criteria of 40 CFR 
258.70, 258.71, 258.72, 258.73, and 258.74, which pertain to 
applicability and effective date, financial assurance for closure, 
financial assurance for post-closure care, financial assurance for 
corrective action, and allowable mechanisms.
    New Hampshire's Department of Environmental Services requires all 
existing MSWLFs to have either an existing permit or a temporary 
permit, both of which require compliance with the Federal Criteria in 
40 CFR part 258 pursuant to state laws and regulations, found at New 
Hampshire Revised Statutes Annotated Chapter 149-M:11 and New Hampshire 
Code of Administrative Rules Env-Wm 308.03. The State of New Hampshire 
is not asserting jurisdiction over Indian land recognized by the United 
States government for the purpose of this notice. Tribes recognized by 
the United States government are also required to comply with the terms 
and conditions found at 40 CFR Part 258.
    Region I notes that New Hampshire's receipt of Federal financial 
assistance subjects the State to the statutory obligations of Title VI 
of the Civil Rights Act of 1964. EPA Region I is committed to working 
with the State to support and ensure compliance with all Title VI 
requirements. Furthermore, the narrative portion of the State's 
application expresses New Hampshire's voluntary support of 
environmental justice principles in the management of the Subtitle D 
program. Although this is not a criterion for program approval, 
[[Page 8386]] Region I acknowledges New Hampshire's support of 
environmental justice principles.
    Section 4005(a) of RCRA, 42 USC Sec. 6945(a) provides that citizens 
may use the citizen suit provisions of Section 7002 of RCRA, 42 USC 
6972, to enforce the Federal MSWLF Criteria set forth 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 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 USC Sec. 553(d), to put this action into effect less 
than 30 days after the 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 12866

    The Office of Management and Budget has exempted this notice from 
the requirements of Section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 USC 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 notice, therefore, does not require a 
regulatory flexibility analysis.

    Authority: This notice is issued under the authority of Sections 
2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended, 
42 USC Secs. 6912, 6945 and 6949a(c).

    Dated: February 4, 1995.
John P. DeVillars,
Regional Administrator.
[FR Doc. 95-3660 Filed 2-13-95; 8:45 am]
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