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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5074-7]

New Mexico; Adequacy Determination of State/Tribal Municipal

Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on application of New Mexico

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 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 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

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.

On July 20, 1994, New Mexico applied for a determination of

adequacy under section 4005 of RCRA. EPA has reviewed New Mexico's

MSWLF application and has made a tentative determination that all

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

compliance with the revised MSWLF Criteria. New Mexico's application

for program adequacy determination is available for public review and

comment.

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

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

has scheduled a public hearing on this determination and will hold the

hearing if a sufficient number of people express interest in

participating in the hearing by writing the Region or calling the

contact given below within 30 days of the date of publication of this

notice. If a public hearing is held, it will take place on the date

given below in the ``DATES'' section. The Region will notify all

persons who submit comments on this notice if it decides to hold the

hearing. In addition, anyone who wishes to learn whether the hearing

will be held may call the person listed in the ``CONTACTS'' section

below.

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

adequacy must be received by the close of business on October 20, 1994.

If a public hearing is held, it will be scheduled for November 4, 1994

in Santa Fe, New Mexico. State of New Mexico officials will participate

in the hearing, if held by EPA.

ADDRESSES: Copies of New Mexico's application for adequacy

determination are available during normal business hours for inspection

and copying at the following addresses: New Mexico Environment

Department, 1190 St. Francis Drive, Santa Fe, New Mexico, Mr. Gerald

Silva, 505-827-2775; USEPA Region 6 Library, 1445 Ross Avenue, Dallas,

Texas, Becky Weber, 214-665-6760. Written comments should be sent to

USEPA Region 6, Becky Weber (6H-HW), 1445 Ross Avenue, Dallas, Texas

75202-2733.

FOR FURTHER INFORMATION CONTACT: Becky Weber, USEPA Region 6, 1445 Ross

Avenue, Dallas, Texas 75202-2733, 214-665-6760.

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 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 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 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.

B. State of New Mexico

On July 20, 1994, New Mexico submitted an application for adequacy

determination. EPA has reviewed New Mexico's application and has

tentatively determined that all portions of New Mexico's Subtitle D

program will ensure compliance with the revised Federal Criteria.

On July 8, 1994, the Solid Waste Management Regulations (EIB/SWMR-

4) were adopted by the Environmental Improvement Board. As required by

the New Mexico State Rules Act, NMSA 1978, Section 14-4-5 (1988 Repl.

Pamp.), EIB/SWMR-4 was filed with the New Mexico State Records Center

and Archives on July 18, 1994, and will be in effect thirty days after

filing or August 17, 1994. NMSA 1978, Section 74-1-9.G. EIB/SWMR-4 was

scheduled to be published in the New Mexico Register on July 30, 1994.

EPA has tentatively determined that New Mexico's application is

consistent with the Federal Criteria and will make a final

determination of adequacy after the amended regulations become

effective.

The public may submit written comments on EPA's tentative

determination until October 20, 1994. Copies of New Mexico's

application are available for inspection and copying at the location

indicated in the ``ADDRESSES'' section of this notice. If there is

sufficient public interest, the Agency will hold a public hearing on

its tentative determination on November 4, 1994 at 10 a.m. at the New

Mexico Environment Department in Santa Fe, New Mexico. Comments can be

submitted as transcribed from the discussion of the hearing or in

writing at the time of the hearing.

EPA will consider all public comments on its tentative

determination received during the public comment period and during the

public hearing, if held. Issues raised by those comments may be the

basis for a determination of inadequacy for New Mexico's program. EPA's

final determination notice will include a summary of the reasons for

the final determination and a response to all major comments.

New Mexico's solid waste program is not enforceable on Indian

lands.

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 FR 50978, 50995 (October

9, 1991).

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule 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 rule, 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.

Joe D. Winkle,

Acting Regional Administrator.

[FR Doc. 94-23240 Filed 9-19-94; 8:45 am]

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