Subtitle D Regulated Facilities; State Permit Program Determination of Adequacy; State Implementation RuleAmendments and Technical Corrections

[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Rules and Regulations]
[Pages 4311-4315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1906]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 239

[FRL-6223-8]
RIN 2050-AD03


Subtitle D Regulated Facilities; State Permit Program 
Determination of Adequacy; State Implementation Rule--Amendments and 
Technical Corrections

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to modify the State Implementation Rule (``SIR rule''). 
This modification changes the withdrawal of state permit programs 
provision in Sec. 239.13 of the SIR rule so that Agency withdrawals of 
an approved state municipal solid waste landfill (MSWLF) or 
conditionally exempt small quantity generator (CESQG) permit program 
would only apply to the entire approved program.
    The final SIR, which was published on October 23, 1998, set forth a 
flexible framework for modifications of approved programs, established 
procedures for withdrawal of approvals (including withdrawal of a part 
or parts of a state program), and confirmed the process for future 
program approvals so that standards that safeguard human health and the 
environment are maintained (63 FR 57026). Withdrawal of a part or parts 
of a state program will no longer apply.
    EPA is also making some technical corrections to the withdrawal 
provision of the SIR rule.


[[Page 4312]]


DATES: This rule is effective on March 29, 1999 without further notice, 
unless EPA receives relevant adverse comment by March 1, 1999. If we 
receive relevant adverse comment, we will publish a timely withdrawal 
in the Federal Register informing the public that this rule will not 
take effect.

ADDRESSES: Comments may be sent to the RCRA Information Center (RIC), 
Office of Solid Waste (5305G), U.S. Environmental Protection Agency, 
401 M Street, SW, Washington, DC 20460. Please see the proposed rule 
elsewhere in today's Federal Register action for additional information 
on submission of comments.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection 
Agency, 401 M Street SW, Washington, DC 20460; 800-424-9346; TDD 800-
553-7672 (hearing impaired); in the Washington, DC metropolitan area, 
the number is 703-412-9810; TDD 703-486-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Karen Rudek, Office of Solid Waste (5306W), U.S. 
Environmental Protection Agency Headquarters, 401 M Street SW, 
Washington, DC 20460; 703-308-1682, rudek.karen@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Authority

    The U.S. Environmental Protection Agency (EPA or the Agency) is 
promulgating these amendments to the SIR rule under the authority of 
section 2002(a)(1) and 4005(c) of the Resource Conservation and 
Recovery Act of 1976 (RCRA or the Act), as amended by the Hazardous and 
Solid Waste Amendments of 1984.
    Subtitle D of RCRA, at section 4005(c)(1)(B), requires each state 
to develop and implement a permit program or other system of prior 
approval to ensure that facilities that receive household hazardous 
waste or conditionally exempt small quantity generator (CESQG) 
hazardous waste are in compliance with the federal revised criteria 
promulgated under section 4010(c) of Subtitle D of RCRA. Section 
4005(c)(1)(C) further directs EPA to determine whether state permit 
programs are adequate to ensure compliance with the revised federal 
criteria. Section 2002(a)(1) of RCRA authorizes EPA to promulgate 
regulations necessary to carry out its functions under the Act.

II. Regulated Entities

    Regulated entities include state governments requesting full or 
partial approvals of permit programs or other systems of prior 
approval, or revisions to existing fully or partially approved 
programs.

III. Background

A. The RCRA Subtitle D Federal Revised Criteria

    On October 9, 1991, EPA promulgated the ``Solid Waste Disposal 
Facility Criteria: Final Rule,'' which established 40 CFR part 258 (56 
FR 50978). These criteria include location restrictions and standards 
for design, operation, ground-water monitoring, corrective action, 
financial assurance, and closure and post-closure care for MSWLFs. On 
July 1, 1996, EPA amended 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, Subpart B criteria include location restrictions, ground-
water monitoring, and corrective action standards for non-municipal, 
non-hazardous waste disposal units that receive CESQG hazardous wastes. 
The 40 CFR part 257, Subpart B and 40 CFR part 258 criteria, henceforth 
referred to as the ``Subtitle D federal revised criteria,'' establish 
minimum federal standards that take into account the practical 
capability of owners and operators and ensure that both MSWLFs and non-
municipal, non-hazardous waste disposal units that receive CESQG 
hazardous wastes are designed and managed in a manner that is 
protective of human health and the environment.
    Every standard in the Subtitle D federal revised criteria is 
designed to be implemented by the owner or operator, with or without 
oversight or participation by a regulatory agency. States with approved 
programs may choose to permit 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 performance 
standards. The flexibility that an owner or operator may be allowed 
under an approved state program can provide a significant reduction in 
the burden associated with complying with the federal criteria.

IV. The SIR Rulemaking

A. Partial Withdrawals of State Permit Programs

    On January 26, 1996, EPA published a proposed rule which set forth 
standards which would guide states in developing, implementing, and 
revising RCRA Subtitle D permit programs that would meet criteria for 
an EPA determination of adequacy under RCRA section 4005(c)(1)(C) (61 
FR 2584). In the proposal, we provided standards and procedures 
(Sec. 239.13) for withdrawing an adequacy determination when a Regional 
Administrator has reason to believe that a state `` * * * no longer has 
an adequate permit program or adequate authority to administer and 
enforce an approved program * * * '' (61 FR 2605). At the same time, 
the Agency proposed procedures for approving state permit programs on a 
partial basis (Sec. 239.11; 61 FR 2604).
    EPA received a number of comments on the proposed rule, and took 
those comments into consideration in promulgating the SIR rule. For 
example, the Agency received one comment from a state environmental 
agency which we interpreted as suggesting that EPA include in the final 
rule the option of allowing Regional Administrators to withdraw a state 
permit program in a partial manner. In response to this comment, EPA 
modified the final rule to allow for such partial withdrawals of state 
permit programs (63 FR 57035). As promulgated, Sec. 239.13 authorized 
the Regional Administrator to initiate and proceed with withdrawal 
actions for ``all or a part of a state program * * * '' (63 FR 57043).
    Since publication of the SIR rule, however, a number of different 
stakeholders, including states and a state solid waste management 
organization, have contacted EPA and have raised questions about the 
partial withdrawal provision in section 239.13. Based on these 
additional discussions, we now recognize that there are issues and 
concerns that we had not considered before including the partial 
withdrawal provision in the SIR rule. We now believe that the issue of 
partial withdrawals of RCRA Subtitle D state permit programs is a 
matter that deserves additional discussion with relevant stakeholders. 
Thus, we have decided to amend the SIR rule to allow for withdrawal 
only of an entire program, as originally proposed (rather than allowing 
for the withdrawal of all or a part of an approved state program). The 
Agency intends to consider this issue further and to have additional 
discussions with interested stakeholders before taking any additional 
action.

B. Technical Corrections

    In addition to this amendment to the SIR rule, we are also 
promulgating two technical corrections to errors which the Agency 
discovered in the language of

[[Page 4313]]

Sec. 239.13. First, in Sec. 239.13(g)(3), both the proposed and final 
rule had stated that the Regional Administrator would hold a public 
hearing on a tentative withdrawal determination if such a hearing would 
``clarify issues involved in the tentative adequacy determination'' (63 
FR 57044, Oct. 23, 1998; 61 FR 2605, Jan. 26, 1996). As reflected in 
both the title of this section of the SIR rule (``Criteria and 
procedures for withdrawal of determination of adequacy'') and in the 
preamble to the proposed rule (61 FR 2509), it is clear that the Agency 
intended this language in Sec. 239.13(g)(3) to allow the Regional 
Administrator to hold a public hearing to clarify issues involved in 
the tentative ``withdrawal'' determination and not the tentative 
``adequacy'' determination. The Agency has modified the SIR rule to 
reflect this intention.
    Second, in the first sentence of both Sec. 239.13(f) and (g), we 
have inserted the word ``the'' in the phrase ``withdrawal of 
determination of adequacy'' to read ``withdrawal of the determination 
of adequacy.'' We believe that these corrections merely clarify the 
language without altering the intent of the two provisions.
    EPA is publishing this rule without prior proposal because we view 
these changes as noncontroversial amendments and/or corrections to the 
SIR rule and anticipate no relevant adverse comment. However, in the 
``Proposed Rules'' section of today's Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
amend the SIR rule as outlined herein if adverse comments are received. 
This rule will be effective on March 29, 1999 without further notice 
unless we receive relevant adverse comment by March 1, 1999. If EPA 
receives relevant adverse comment, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting on this 
action must do so at this time.
    If we receive relevant adverse comment on any amendment, paragraph, 
or section of this rule, only those amendments, paragraphs, or sections 
rule will be withdrawn; the other amendments, paragraphs, and sections 
of the rule will go into effect within the time frame specified above.

V. Regulatory Assessments

A. Executive Order 12866: Assessment of Potential Costs and Benefits

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether any proposed or final regulatory action 
is ``significant,'' and, therefore, subject to OMB review and the 
requirements of the Executive Order. The order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may:
    (a) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action.'' Thus, EPA has not submitted this action to OMB for 
review under E.O. 12866.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(``SBREFA'') of 1996) whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant adverse 
economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination.
    The Agency has determined that today's final rule will not have a 
significant economic impact on a substantial number of small entities, 
since the rule has direct effects only on state agencies. Therefore, no 
regulatory flexibility analysis has been prepared. Based on the 
foregoing discussion, I hereby certify that this rule will not have a 
significant adverse economic impact on a substantial number of small 
entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Pub. L. 104-4, establishes requirements for federal agencies to assess 
the effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of UMRA section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
UMRA section 205 allows EPA to adopt an alternative other than the 
least costly, most cost-effective or least burdensome alternative, if 
the Administrator publishes with the final rule an explanation of why 
that alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed, 
under section 203 of UMRA, a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of EPA regulatory proposals with 
significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    EPA has determined that this rule does not contain a federal 
mandate (under the regulatory provisions of Title II of the UMRA) that 
may result in expenditures of $100 million or more for state and local 
governments in the aggregate, or for the private sector in any one 
year. Thus, there is no obligation to prepare a written statement, 
including a cost-benefit analysis, under section 202 of UMRA. For the 
same reasons outlined

[[Page 4314]]

in part V.B above, EPA has determined that this direct final rule 
amending the SIR rule will not significantly or uniquely affect small 
governments (UMRA section 203).

D. Paperwork Reduction Act

    Today's rule does not add new burden as defined by the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. The Office of Management and 
Budget has previously approved the information collection in the 
existing regulations and has assigned OMB control number 2050-0152, 
(EPA ICR No. 1608.01).

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to E.O. 13045 because it is not an economically significant 
rule as defined by E.O. 12866.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

G. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice concerns 
and is assuming a leadership role in environmental justice initiatives 
to enhance environmental quality for all residents of the United 
States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities. To address this 
goal, EPA considered the impacts of the final State Implementation Rule 
on low-income populations and minority populations and concluded that 
the SIR will potentially advance environmental justice causes (63 FR 
57039, Oct. 23, 1998). Today's amendments to the SIR will not affect 
these beneficial impacts on environmental justice causes.

H. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    In developing this rule, EPA consulted with various states and a 
state organization to enable them to provide meaningful and timely 
input in the development of this rule. EPA also worked closely with 
state governments in the development of the final SIR (63 FR 57039, 
Oct. 23, 1998).
    Through notice, EPA sought input from small governments during the 
SIR rulemaking process. However, today's rule amending the SIR rule 
does not create a mandate on State, local or tribal governments. The 
rule does not impose any enforceable duties on these entities. 
Accordingly, the requirements of section 1(a) of Executive Order 12875 
do not apply to this rule.

I. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. There is no impact on these 
communities. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

VII. Submission to Congress and the General Accounting Office

    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

[[Page 4315]]

report containing this rule 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 of the rule in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 239

    Environmental protection, Administrative practice and procedure, 
Municipal solid waste landfills, Non-municipal solid waste, Non-
hazardous solid waste, State permit program approval, Adequacy.

    Dated: January 19, 1999.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as set forth below:

PART 239--REQUIREMENTS FOR STATE PERMIT PROGRAM DETERMINATION OF 
ADEQUACY

    1. The authority citation for Part 239 continues to read as 
follows:

    Authority: 42 U.S.C. 6912, 6945.

    2. Section 239.13 is amended by revising paragraphs (a), (b), (c), 
(f), and (g)(3) to read as follows:


Sec. 239.13  Criteria and procedures for withdrawal of determination of 
adequacy.

    (a) The Regional Administrator may initiate withdrawal of a 
determination of adequacy when the Regional Administrator has reason to 
believe that:
    (1) A state no longer has an adequate permit program; or
    (2) The state no longer has adequate authority to administer and 
enforce an approved program in accordance with this part.
    (b) Upon receipt of substantive information sufficient to indicate 
that a state program may no longer be adequate, the Regional 
Administrator shall inform the state in writing of the information.
    (c) If, within 45 days of the state's receipt of the information in 
paragraph (b) of this section, the state demonstrates to the 
satisfaction of the Regional Administrator that the state program is 
adequate (i.e., in compliance with this part), the Regional 
Administrator shall take no further action toward withdrawal of the 
determination of adequacy and shall so notify the state and any 
person(s) who submitted information regarding the adequacy of the 
state's program and authorities.
* * * * *
    (f) If the state takes appropriate action to correct deficiencies, 
the Regional Administrator shall take no further action toward 
withdrawal of the determination of adequacy and shall so notify the 
state and any person(s) who submitted information regarding the 
adequacy of the state's permit program. If the state has not 
demonstrated its compliance with this part to the satisfaction of the 
Regional Administrator, the Regional Administrator shall inform the 
State Director and may initiate withdrawal of the determination of 
state program adequacy.
    (g) * * *
    (3) Indicate that a public hearing will be held by EPA if 
sufficient public interest is expressed during the comment period or 
when the Regional Administrator determines that such a hearing might 
clarify issues involved in the tentative withdrawal determination.
* * * * *
[FR Doc. 99-1906 Filed 1-27-99; 8:45 am]
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