[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Notices]
[Pages 13722-13724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6269]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5171-9]


State of New York: Final Determination of Adequacy of State/
Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of adequacy to fully approve the 
New York State Municipal Solid Waste Permit 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, 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 Part 
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 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 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 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 York applied for a determination of adequacy under 
section 4005 of RCRA. The components of authority and capability were 
contained in New York State's application and its revisions. EPA 
reviewed New York State's application, and certain revisions thereto, 
and on July 28, 1994, proposed a determination that New York State's 
MSWLF permit program is adequate to ensure compliance with the revised 
MSWLF Criteria. After consideration of all comments received regarding 
the tentative determination of adequacy, EPA is today issuing a final 
determination that New York State's program is adequate.

EFFECTIVE DATE: The determination of adequacy for the New York State 
shall be effective on March 14, 1995.

FOR FURTHER INFORMATION CONTACT: David Savetsky, U.S. EPA Region II, 
Mail Stop 2AWM, Room 1006, 26 Federal Plaza, New York, New York, 10278, 
telephone (212) 637-4098.

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 
[[Page 13723]] 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 STIR. 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)(1) 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.
    On September 24, 1993, the State of New York submitted an 
application for adequacy determination for New York State's municipal 
solid waste landfill permit program. On March 14, 1994, May 10, 1994, 
and June 28, 1994, New York made revisions to its original submission. 
On July 28, 1994, after reviewing New York State application and the 
revised submissions, EPA published a tentative determination of 
adequacy for all portions of New York State's program. Further 
background on the tentative determination of adequacy appears at 59 FR 
38463, July 28, 1993.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. New York State's 
application for program adequacy determination and its revisions were 
available for public review and comment at the New York State 
Department of Environmental Conservation, in Albany New York and at the 
EPA Region II Library in New York City. The public comment period 
commenced on July 28, 1994 and ended on September 13, 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 two public hearings on this tentative determination. A public 
hearing was held in Albany New York and in New York City. A summary of 
the comments received, and EPA's responses thereto is contained in the 
public comment section of this notice.
    On October 9, 1993, New York, acting through the New York State 
Department of Environmental Conservation, adopted comprehensive, 
revised regulations governing solid waste disposal. These regulations 
are patterned after the 40 CFR Part 258 criteria, and are intended to 
bring New York into full conformity with the Federal criteria. The New 
York State Department of Environmental Conservation has sufficient 
authority and responsibility for implementing and enforcing solid waste 
management regulations, including a permit program, inspection 
authority and enforcement activities.
    New York does not have the statutory authority to enforce the MSWLF 
permit program on Indian Lands. MSWLFs located on Indian Lands are 
subjected to the Federal Criteria.
    In addition, in its application, New York states that adequate 
technical, support and legal personnel will be assigned to implement 
its permit program.

B. Public Comment

    A summary of the public comments received on the tentative 
determination of adequacy and EPA's responses thereto follows below. 
The major comments suggested the Fresh Kills landfill in Staten Island, 
New York is illegally operating without a permit and is continuing to 
operate under consent orders since 1980. The commentors believed that 
this demonstrates the inability of New York to effectively enforce 
landfill criteria. A facility not meeting Federal Criteria must be 
upgraded in a reasonable time to meet such criteria before or after 
approval of the state program. Upgrading can take place concurrent with 
or after state program approval. The use of enforcement tools such as 
consent orders as a method by which a facility is brought into 
compliance is not a basis for disapproving a state program. In fact, 
preliminary findings of an EPA study of the Fresh Kills facility 
compliance status indicates relatively minor violations currently exist 
and the facility exceeds some Federal requirements such as groundwater 
monitoring. In fact, we see no loss of enforcement authority by 
approving the State program. The State regulatory program will enhance 
compliance with Federal Criteria which remain in effect in any case.
    EPA believes that the State has the statutory and regulatory 
authority to implement and enforce such a program. Many of the numerous 
citings of past and or continuing site-specific violations do not 
recognize that the State Part 360 regulations underwent a significant 
revision which became effective on October 9, 1993, to conform to the 
Federal Part 258 Criteria.
    Landfill closures in New York State have been primarily a result of 
the State enforcement of policies and procedures for compliance with 
laws and regulations governing closures of active solid waste 
landfills. In 1984, the Commissioner of the New York State Department 
of Environmental Conservation formally initiated a landfill closure 
strategy to obtain closure of unlined landfills in the State of New 
York. Pursuant to the 1984 Landfill Closure Enforcement Directive and 
subsequent amendments of 1988, a methodical program was pursued by the 
NYSDEC whereby solid waste disposal facility planning and landfill 
closures were to be coordinated. This strategy contemplated a process 
of consolidation of solid waste disposal into a few regional landfills, 
pending planning, design and permitting of new, properly designed 
disposal facilities. The State's approach to solid waste compliance by 
New York City was in accordance with this strategy, while at the same 
time recognizing the need to allow for efficient and economic 
transition to sound solid waste management practices by the City.
    There were several additional comments. These are addressed in the 
responsiveness summary which is made part of the public record.

C. Decision

    After reviewing the public comments, I conclude that New York 
State's application for adequacy determination meets all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
the State of New York is granted a determination of adequacy for all 
portions of its municipal solid waste permit program.
    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 [[Page 13724]] 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 March 14, 1995. 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 New York State program 
are already in effect as a matter of 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 U.S.C. 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 U.S.C. 6912, 6945, 6949a(c).

    Dated: February 21, 1995.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 95-6269 Filed 3-13-95; 8:45 am]
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