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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5090-8]

New Hampshire: Adequacy Determination of State/Tribal Municipal

Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Tentative Determination to Fully Approve the Adequacy

of the State of New Hampshire's Municipal Solid Waste Permitting

Program, 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, 42 U.S.C. 6945(c)(1)(B), 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 hazardous waste will comply with the

revised Federal MSWLF Criteria (40 CFR part 258). RCRA Section

4005(c)(1)(C), 42 U.S.C. 6945(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/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

flexibilities provided by 40 CFR 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 shall apply to

all permitted and unpermitted MSWLF facilities.

The State of New Hampshire has applied for a determination of

adequacy under Section 4005(c)(1)(C) of RCRA, 42 U.S.C. 6945(c)(1)(C).

EPA Region I has reviewed New Hampshire's MSWLF permit program adequacy

application and has made a tentative determination that all portions of

New Hampshire's MSWLF permit program are adequate to assure compliance

with the revised MSWLF Criteria. New Hampshire's application for

program adequacy determination is available for public review and

comment at the places listed in the ADDRESSES section below during

regular office hours.

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

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

Region has tentatively scheduled a public hearing on this

determination. If a sufficient number of persons express interest in

participating in a hearing by writing to the Region I Solid Waste

Program or calling the contact given below within 30 days of the date

of publication of this notice, the Region will hold a hearing, in

Concord, New Hampshire, on the date given below in the DATES section.

The Region will notify all persons who submit comments on this notice

if it appears that there is sufficient public interest to warrant a

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 Hampshire's application for a determination

of adequacy must be received by the close of business on November 16,

1994. If there is sufficient interest, a public hearing will be held on

December 2, 1994, at 10:00 a.m., in New Hampshire. The State will

participate in the public hearing, if held by EPA on this subject.

ADDRESSES: Written comments should be sent to Mr. John F. Hackler,

Chief, Solid Waste and Geographic Information Section, mail code HER-

CAN6, EPA Region I, John F. Kennedy Federal Building, Boston, MA 02203-

2211. The public hearing will be held at the offices of the New

Hampshire Department of Environmental Services, Health and Human

Services Building, 6 Hazen Drive, Concord, NH. Copies of New

Hampshire's application for adequacy determination are available at the

following addresses for inspection and copying: during the hours of

8:00 a.m. to 4:00 p.m., New Hampshire Department of Environmental

Services, Waste Management Division, Health and Human Resources

Building, 6 Hazen Drive, Concord, NH, 03301, Attn: Ms. Ariel Parent,

telephone (603) 271-2900; during the hours of 8:00 a.m. to 5:00 p.m.,

U.S. EPA Region I, 90 Canal Street, Boston, MA 02203, Attn: Fred

Friedman, telephone (617) 573-9687.

FOR FURTHER INFORMATION CONTACT: EPA Region I, John F. Kennedy Federal

Building, Boston, MA 02203-2211, Attn: Mr. Aaron R. Gilbert, mail code

HER-CAN6, telephone (617) 223-5530.

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 40 CFR part 258. Subtitle D also requires in Section

4005(c)(1)(C), 42 U.S.C. 6945(c)(1)(C), 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.

The 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 and conditions (for example, license to operate) 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

and conditions 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, 42

U.S.C. 6974(b). Finally, 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 STIR. 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 Hampshire

On July 7, 1993, EPA Region I received New Hampshire's final MSWLF

Permit Program application for adequacy determination. Region I

reviewed the final application, submitted comments to New Hampshire,

and requested additional information about state program

implementation. New Hampshire addressed EPA's comments, provided the

requested additional information, and submitted a revised final

application for adequacy determination on August 30, 1994. Region I has

reviewed New Hampshire's revised application and has tentatively

determined that all portions of New Hampshire's MSWLF program meet all

the requirements necessary to qualify for full program approval and

ensures compliance with the revised Federal Criteria.

The public may submit written comments on EPA's tentative

determination until November 16, 1994. Copies of New Hampshire's

application are available for inspection and copying at the location

indicated in the ADDRESSES section of this notice.

The State of New Hampshire's Solid Waste Rules reflect the dynamic

nature of solid waste management by establishing minimum standards to

protect human health and the environment as well as performance-based

standards. These requirements are in keeping with the Federal Criteria

for municipal solid waste disposal in that they specify a standard to

be achieved and then allow flexibility to achieve that standard in

innovative ways.

To ensure full compliance with the Federal Criteria, New Hampshire

has revised its current MSWLF permitting requirements by development of

the Guidance Document for the State Permitting of Municipal Solid Waste

Landfills Regulated Under Federal Rules (40 CFR Part 258) in New

Hampshire. This guidance document has incorporated those requirements

from the federal criteria not found in the State's existing MSWLF

program and are applicable to all existing MSWLFs and to all MSWLF

permit applications. New Hampshire will implement its MSWLF permit

program through enforceable permit conditions. These new requirements

occur in the following areas:

1. The adoption of the following definitions as required by the

revised Federal Criteria, 40 CFR 258.2: active life, active portion,

director, household waste, industrial solid waste, owner, saturated

zone, sludge, solid waste, state, state director, and waste management

unit boundary.

2. Compliance with the new location restrictions of 40 CFR 258.10,

258.11. 258.12, 258.13, 258.14, 258.15, and 258.16, which pertain to

airport safety, floodplains, wetlands, fault areas, seismic impact

zones, unstable areas and closure of existing MSWLF units.

3. Compliance with the new operating criteria of 40 CFR 288.20,

258.21, 258.23, 258.24, 258.28, 258.29, which pertain to excluding the

receipt of hazardous waste, cover material requirements, explosive

gases control, air criteria, liquid restrictions, and record keeping

requirements.

4. Compliance with the design criteria of 40 CFR 258.40.

5. Compliance with the ground-water monitoring and corrective

action requirements of 40 CFR 258.53, 258.54, 258.55, 258.56, 258.57,

and 258.58, which pertain to groundwater sampling and analysis

requirements, detection monitoring, assessment monitoring, assessment

of corrective measures, selection of remedy, and implementation of the

corrective action program.

6. Compliance with the closure and post-closure criteria of 258.60

and 258.61.

7. Compliance with the financial assurance criteria of 40 CFR

258.70, 258.71, 258.72, 258.73, and 258.74, which pertain to

applicability and effective date, financial assurance for closure,

financial assurance for post-closure care, financial assurance for

corrective action, and allowable mechanisms.

New Hampshire's Department of Environmental Services requires all

existing MSWLFs to have either an existing permit or a temporary

permit, both of which require compliance with the Federal Criteria in

40 CFR Part 258 pursuant to state laws and regulations, found at New

Hampshire Revised Statutes Annotated Chapter 149-M:11 and New Hampshire

Code of Administrative Rules Env-Wm 308.03. The State of New Hampshire

is not asserting jurisdiction over Indian land recognized by the United

States government for the purpose of this notice. Tribes recognized by

the United States government are also required to comply with the terms

and conditions found at 40 CFR Part 258.

The State of New Hampshire is committed to implementing its MSWLF

program in accordance with the principles of environmental justice. The

State has expressed this commitment in the narrative portion of its

application.

EPA will consider all public comments on its tentative

determination received during the public comment period and during any

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

for a determination of inadequacy for New Hampshire's program. EPA will

make a final decision on approval of the State of New Hampshire's

program and will give notice of the final determination in the Federal

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

final determination and a response to all significant comments.

Section 4005(a) of RCRA, 42 U.S.C. 6945(a), provides that citizens

may use the citizen suit provisions of Section 7002 of RCRA, 42 USC

6972, to enforce the Federal 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 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 Section

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

Dated: September 30, 1994.

John P. DeVillars,

Regional Administrator.

[FR Doc. 94-25466 Filed 10-14-94; 8:45 am]

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