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[Federal Register Volume 61, Number 115 (Thursday, June 13, 1996)]
[Notices]
[Pages 30064-30067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15031]

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[[Page 30065]]

ENVIRONMENTAL PROTECTION AGENCY
[FRL-5515-6]

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

AGENCY: Environmental Protection Agency (Region VIII).

ACTION: Notice of final determination of full program adequacy for 
Utah'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 conditionally exempt 
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. On January 26, 1996, EPA 
proposed a State/Tribal Implementation Rule (STIR) (40 CFR Parts 239 
and 258) 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 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 Criteria will apply to all 
permitted and unpermitted MSWLFs.
    Utah applied for a determination of adequacy under Section 4005 of 
RCRA. EPA reviewed Utah's application and proposed a determination that 
Utah's MSWLF permit program is adequate to ensure compliance with the 
revised MSWLF Criteria. After review of all comments received, EPA is 
today issuing a final determination that Utah's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Utah shall be 
effective May 29, 1996.

FOR FURTHER INFORMATION CONTACT: Linda Walters, Pollution Prevention 
Program (8P2-P2), US EPA Region VIII, 999 18th Street, Suite 500, 
Denver, Colorado 80202-2466, phone 303/312-6385.

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 proposed 
a State/Tribal Implementation Rule (STIR)(40 CFR Parts 239 and 258, 
January 26, 1996). 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 final 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) 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 in the 
proposed State/Tribal Implementation Rule (STIR). EPA expects States/
Tribes to meet all of these requirements for all elements of an MSWLF 
program before it gives full approval to an MSWLF program.
    On September 27, 1993, the EPA Administrator signed the final rule 
extending the effective date of the landfill criteria for certain 
classifications of landfills (proposed rule 58 Federal Register 40568, 
July 28, 1993). Thus, for certain small landfills that fit the small 
landfill exemption as defined in 40 CFR Part 258.1(f), the Federal 
Criteria were effective on October 9, 1995, rather than on October 9, 
1993. The final ruling on the effective date extension was published in 
the Federal Register October 1, 1993.
    On August 10, 1995, the EPA published a proposed rule to solicit 
comments on a two-year delay, until October 9, 1997, of the general 
compliance date of the MSWLF criteria for qualifying small MSWLFs. This 
will allow EPA time to finalize the proposed alternatives. The final 
ruling on the delay of the compliance date was published in the Federal 
Register on October 6, 1995.

B. State of Utah

    On July 20, 1993, Utah submitted an application for adequacy 
determination for the State's MSWLF permit program. On October 8, 1993, 
EPA published a final determination of partial program adequacy for 
Utah's program. Further background on the final determination of 
partial program adequacy appears in 58 Federal Register 52489 (October 
8, 1993). In that action, EPA approved all portions of the State's 
MSWLF permit program except Utah's regulations incorporating the 
Federal financial assurance requirements in 40 CFR Part 258, Subpart G.
    On November 28, 1994, the State of Utah submitted a revised 
application package for full program adequacy. EPA reviewed Utah's 
application and tentatively determined that the State's Subtitle D 
program will ensure compliance with the Federal financial assurance 
requirements in 40 CFR 258.70 through 258.74.
    During its November 9, 1995 meeting, the Utah Solid and Hazardous 
Waste Control Board adopted proposed changes in the Utah Solid Waste 
Permitting and Management Rules

[[Page 30066]]

R315-309, Financial Assurance, as required by 40 CFR Part 258, Subpart 
G.
    EPA has reviewed Utah's application and has determined that all 
portions of the State's MSWLF permit program will ensure compliance 
with the revised Federal Criteria. In its application, Utah 
demonstrated that the State's permit program adequately meets the 
location restrictions, operating criteria, design criteria, groundwater 
monitoring and corrective action requirements, closure and post-closure 
care requirements, and financial assurance criteria in the revised 
Federal Criteria. In addition, the State of Utah also demonstrated that 
its MSWLF permit program contains specific provisions for public 
participation, compliance monitoring, and enforcement.

C. Public Comment

    The EPA received three public comments on the tentative 
determination of adequacy for Utah's MSWLF permit program.
    The State of Utah, in two comments, requested that EPA re-evaluate 
language in the tentative determination regarding jurisdiction over 
``Indian Country'', especially the use of the term ``former Indian 
reservation lands''. The commentors requested that EPA approve the 
State's MSWLF permit program within the State of Utah except for Indian 
lands. EPA has revised this language in the section below entitled 
``Decision''.
    In its application for adequacy determination, Utah has not 
asserted jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 
Section 1511. Until EPA approves a State or Tribal MSWLF permitting 
program, the requirements of 40 CFR Part 258 in Utah for any part of 
``Indian Country'' will automatically apply to that area. Thereafter, 
the requirements of 40 CFR Part 258 will apply to all owners/operators 
of MSWLFs located in any part of ``Indian Country'' that is not covered 
by an approved State or Tribal MSWLF permitting program. For further 
information regarding this issue, see the ``Decision'' section.
    One commentor maintained that use of the proposed STIR as guidance 
is a violation of the Administrative Procedure Act (APA) requirements 
that a rule must go through notice and opportunity for comment. EPA 
does not believe that it is violating requirements of the APA. The 
Agency is not utilizing the proposed STIR as a regulation which binds 
either the Agency or the States/Tribes. Instead, EPA is using the 
proposed STIR as guidance for evaluating State/Tribal permit programs 
utilizing the proposed STIR and/or other criteria which assure 
compliance with 40 CFR Part 258.
    In addition, members of the public have an opportunity to comment 
on the criteria by which EPA assures the adequacy of State/Tribal MSWLF 
permit programs because the Agency discusses the criteria for approval 
of a permit program when it publishes each tentative determination 
notice in the Federal Register. In the tentative determination notice 
for the State of Utah's permit program, the Agency set forth for public 
comment the requirements for an adequate permit program (58 FR 42965-
42967, August 12, 1993).

D. Decision

    After reviewing the public comments, I conclude that Utah's 
application for adequacy determination meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Utah is 
granted a determination of adequacy for all portions of its MSWLF 
permit program.
    This approval does not extend to ``Indian Country'', as defined in 
18 U.S.C. Section 1511, including lands within the exterior boundaries 
of the following Indian reservations located within or abutting the 
State of Utah:

1. Gosute Indian Reservation
2. Navajo Indian Reservation
3. Northwestern Band of the Shoshone Nation of Utah (Washakie) Indian 
Reservation
4. Paiute Indian Tribe of Utah Indian Reservation
5. Skull Valley Band of Goshute Indians of Utah Indian Reservation
6. Uintah and Ouray Indian Reservation
7. Ute Mountain Indian Reservation

    EPA is cognizant that the State of Utah and the United States 
Government differ as to the exact geographical extent of Indian Country 
within the Uintah and Ouray Indian Reservation and are currently 
litigating this question in Federal Court. Until that litigation is 
completed and this question is resolved, EPA will enter into 
discussions with the Ute Indian Tribe of the Uintah and Ouray Indian 
Reservation and the State of Utah to determine the best interim 
approach to managing this program in the disputed area. EPA will notify 
the public of the outcome of these discussions. In excluding Indian 
Country from the scope of this approval, EPA is not making a 
determination that the State either has adequate jurisdiction or lacks 
jurisdiction over sources in Indian Country. Should the State of Utah 
choose to seek program approval within Indian Country, it may do so 
without prejudice. Before EPA would approve the State's program for any 
portion of Indian Country, EPA would have to be satisfied that the 
State has authority, either pursuant to explicit Congressional 
authorization or applicable principles of Federal Indian law, to 
enforce its laws against existing and potential pollution sources 
within any geographical area for which it seeks program approval and 
that such approval would constitute sound administrative practice.
    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 Federal Criteria. See 56 Federal Register 50978, 
50995 (October 9, 1991).
    This action takes effect on May 29, 1996. 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/Tribe's program are already in effect as a 
matter of State/Tribal law. EPA's action today does not impose any new 
requirements with which the regulated community must begin to comply. 
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 of the Solid Waste Disposal Act, as amended; 42 
U.S.C. 6912, 6945, 6949(a).

[[Page 30067]]

    Dated: May 16, 1996.
Max Dodson,
Acting Regional Administrator.
[FR Doc. 96-15031 Filed 6-12-96; 8:45 am]
BILLING CODE 6560-50-P
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