The State of New York; Adequacy Determination of State Municipal Solid Waste Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5022-6]

The State of New York; Adequacy Determination of State Municipal

Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Tentative Determination on Application of the State

of New York for Full Program Adequacy Determination, Public Hearing and

Public Comment Period.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation 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/Tribe 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 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/Tribe permit programs provide for interaction between

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 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. EPA reviewed New York's MSWLF application and

certain revisions thereto, and made a tentative determination that all

portions of New York's MSWLF permit program are adequate to assure

compliance with the revised Federal Criteria. New York's application

for program adequacy determination and its revisions are available for

public review and comment.

Although RCRA does not require EPA to hold a hearing on any

determination to approve a State/Tribe's MSWLF program, the Region has

scheduled two public hearings on this tentative determination. Details

appear below in the DATES section.

DATES: All comments on New York's application for a determination of

adequacy must be received by the close of business on September 13,

1994.

Two public hearings will be held in New York State. Both hearings

will begin at 7:00 p.m. The First hearing will be held on September 12,

1994 at the Quality Inn Hotel which is located on Interstate 90 and

Everett Road in Albany, New York. The second hearing will be held on

September 13, 1994 in the Katie Murphy Amphitheater which is located in

the Fashion Institute of Technology, 7th Avenue at 27th Street in New

York City. New York State will participate in the public hearings held

by EPA on this subject.

ADDRESSES: Copies of New York's application for adequacy are available

between 8:30 a.m. and 5:00 p.m. at the following two addresses for

inspection and copying: U.S. EPA Region II Library, 26 Federal Plaza,

Room 402, New York, New York, 10278, telephone (212) 264-2881, and the

New York State Department of Environmental Conservation, 50 Wolf Road,

Albany, New York 12233-0001 in the Office of the Division of Solid

Waste. Written comments should be sent to Stanley Siegel, Chief,

Hazardous and Solid Waste Program Branch, U.S. EPA--Region II, 26

Federal Plaza, Rm. 1006, New York, New York 10278.

FOR FURTHER INFORMATION CONTACT: David Savetsky, U.S. EPA Region II,

Mail Stop 2AWM-HWP, Room 1006, 26 Federal Plaza, New York, New York,

10278, telephone (212) 264-0547.

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 Part 258. Subtitle D also requires in section 4005 that

EPA determine that State municipal solid waste landfill permit programs

are adequate to 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 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. These various

components of authority and capability were submitted by New York State

in its application and revisions thereto.

EPA Regions will determine whether a State/Tribe has submitted an

``Adequate'' program based on the interpretation outlined above. 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. New York State

On Sept. 24, 1993 New York State submitted an application for

adequacy determination. On March 14, 1994, May 10, 1994 and June 28,

1994 New York State submitted revisions to the original application.

EPA reviewed the application together with the subsequent revisions and

has tentatively determined that all portions of New York's subtitle D

program are adequate to provide compliance with the revised Federal

Criteria.

The New York Department of Environmental Conservation adopted its

initial set of regulations relative to the regulatory permitting

requirements for solid waste management facilities in 1977. These

regulations underwent substantial amendment in 1981, and again were

significantly amended in 1988.

Since December 31, 1988, the effective date of the existing Part

360 Solid Waste Management Facilities regulations, numerous

technological advances have taken place in solid waste reduction, reuse

and recycling, composting, construction and demolition debris

processing, and other solid waste treatment, storage, and disposal

activities. These changes, combined with ever diminishing landfill

disposal capacity, have exacerbated the complexities of managing solid

waste in New York State. In response to the increased environmental

awareness surrounding the siting, design, construction, operations and

closure of solid waste management facilities, as well as the

requirements of 40 CFR Part 258, the New York State Department of

Environmental Conservation again revised its Part 360 Solid Waste

Management Facilities regulations to include full public involvement,

including workshops, public hearings, environmental impact/assessment,

and responsiveness summary. The revised regulations were approved by

the State Environmental Board on June 30, 1993 and filed with the New

York Department of State on August 5, 1993. The amended regulations

became effective on October 9, 1993.

The Part 360 regulations contain provisions whereby the Department

of Environmental Conservation, in appropriate circumstances, may grant

variances from one or more specific provisions of the Part 360

requirements. New York has stated that such a variance will not be

granted in any way that is less stringent than the Part 258

requirements. The New York State Department of Environmental

Conservation will also formally amend its Part 360 regulations to

clarify that variances to Part 360 provisions will not be granted in

any way that is less stringent than the Part 258 requirements.

There are currently 41 active landfills in New York State subject

to both the 40 CFR Part 258 and 6 NYCRR Part 360 regulations. There was

a significant decrease in the number of active MSWLFs as a result of

the April 9, 1994 federal deadline for small landfills to either close

or be subject to all of the federal criteria. Twenty-eight (28)

facilities are under Part 360 permits, eleven (11) facilities are under

consent order, and two (2) facilities are operating without either a

permit or consent order.

New York State is concentrating its efforts to bring all landfills

that receive municipal solid waste into compliance with the Part 360

regulations through one or more forms of enforcement actions. Landfills

that are permitted under the revised Part 360 regulations, effective

October 9, 1993, will meet the federal criteria. For existing

facilities all owners or operators must file a renewal application if

they intend to continue construction or operation beyond the expiration

date of existing permits. For those facilities with Part 360 permits

that will expire over the next 2-3 years, the Department will ensure

that each such facility meets the applicable federal and state

regulations before a renewal permit is issued. Further, for the

estimated seven facilities with permits that will expire three or more

years beyond the date of program approval, the Department will pursue

permit modifications in accordance with requirements contained in 6

NYCRR Part 621 Uniform Procedures. New York State expects to complete

those seven permit modifications so as to ensure compliance with both

federal and state regulations within three years of program approval.

Those facilities operating under a consent order will either be

required to close or be upgraded to meet the applicable regulations in

accordance with the terms and conditions of their consent order.

New York does not have the statutory authority to enforce the MSWLF

permit program on Indian Lands. MSWLFs located on Indian Lands are

subject to the Federal Criteria.

The EPA will hold two public hearings on its tentative decision.

Comments can be submitted orally at the hearing or in writing at the

time of the hearing. The public may also submit written comments on

EPA's tentative determination to the location indicated in the

ADDRESSES section of this notice such that they are received by the

close of business on September 13, 1994. Copies of New York's state

application are available for inspection and copying at the locations

indicated in the ADDRESSES section of this notice.

EPA will consider all public comments on its tentative

determination received during the public comment period and during each

public hearing. Issues raised by those comments may be the basis for a

determination of inadequacy for New York's state program. EPA expects

to make a final decision on whether or not to approve New York's state

program by November 1, 1994, and will give notice of it in the Federal

Register. The notice will include a summary of the reasons for the

final determination and responses to all major comments.

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 will be considered to be in

compliance with Federal Criteria. See 56 FR 50978, 50995 (October 9,

1991).

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this notice from

the requirement 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 Section

4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.

Dated: July 21, 1994.

Jeanne M. Fox,

Regional Administrator.

[FR Doc. 94-18450 Filed 7-27-94; 8:45 am]

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