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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5097-2]

The State of New Jersey; Partial Program Adequacy Determination

of State Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on Partial Program

Application of the State of New Jersey for Partial 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 has been approving and intends to continue

approving 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 Jersey applied for a partial determination of

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

application and certain amendments and revisions thereto, and made a

tentative determination that all portions of New Jersey's MSWLF permit

program are adequate to assure compliance with the revised MSWLF

Criteria, except for Subpart E relating to Ground-Water Monitoring and

Corrective Action. New Jersey plans to revise the remainder of its

permit program to assure complete compliance with the revised MSWLF

Criteria and gain full program approval. New Jersey's application for

partial program adequacy determination is 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 an opportunity for a public hearing on this tentative

determination. Details appear below in the DATES section.

DATES: All comments on New Jersey's application for a partial adequacy

determination must be submitted by the close of business on December

14, 1994.

One public hearing will be held at the Public Meeting Room on the

first floor of the offices of the New Jersey Department of

Environmental Protection (NJDEP), 401 East State Street, Trenton, New

Jersey on December 14, 1994. The hearing is scheduled for 7 p.m. until

10:00 p.m. New Jersey will participate in the public hearing held by

EPA on this subject.

ADDRESSES: Copies of New Jersey'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 NJDEP at the Public Access Room, 401 East State Street,

Trenton, New Jersey. Written comments should be sent to Conrad Simon,

Director Air and Waste Management Division, U.S. Environmental

Protection Agency, 26 Federal Plaza, New York, New York 10278.

FOR FURTHER INFORMATION CONTACT: Lorraine Graves, U.S. EPA Region II,

Mail Stop 2AWM, Room 1006, 26 Federal Plaza, New York, New York, 10278,

telephone (212) 264-9638.

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 propose in STIR to allow partial approvals if: (1)

The Regional Administrator determines that the State/Tribal permit

program largely meets the requirements for ensuring compliance with

part 258; (2) changes limited to a narrow part(s) of the State/Tribal

permit program are needed to meet these requirements; and (3)

provisions not included in the partially approved portions of the

State/Tribal permit program are a clearly identifiable and a separable

subset of part 258. These requirements, if promulgated, will address

the potential problems posed by the dual State/Tribal and Federal

programs that came into effect in October 1993 in those States/Tribes

that only have partial approvals of their MSWLF programs. On that date,

Federal rules covering any portion of a State/Tribe's program that had

not received EPA approval became enforceable. Owners and operators of

MSWLFs subject to such dual programs must be able to understand which

requirements apply and comply with them. In addition, the pieces of the

Federal program that are in effect must mesh well enough with the

approved portions of the State/Tribal program to leave no significant

gaps in regulatory control of MSWLF's. Partial approval will allow the

Agency to approve those provisions of the State/Tribal permit program

that meet the requirements and provide the State/Tribe time to make

necessary changes to the remaining portions of its program. As a

result, owners/operators will be able to work with the State/Tribal

permitting agency to take advantage of the Criteria's flexibility for

those portions of the program which have been approved.

As provided in the October 9, 1991 municipal landfill rule, EPA's

national Subtitle D standards took effect on October 9, 1993.

Consequently, any remaining portions of the Federal Criteria that are

not included in an approved State/Tribal program apply directly to the

owner/operator without the flexibility that would be present in an

approved State/Tribal program.

EPA has been approving and intends to continue approving 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. Various

components of authority and capability were submitted by New Jersey in

its application for partial program approval, and the revisions and

amendments thereto.

EPA also is requesting States/Tribes seeking partial program

approval to provide a schedule for the submittal of all remaining

portions of their MSWLF permit programs. EPA notes that it intends to

propose to make submission of a schedule mandatory in STIR.

Not all States/Tribes will have existing permit programs through

which they can ensure compliance with all provisions of the revised

Federal Criteria. Were EPA to restrict a State/Tribe from submitting

its application until it could ensure compliance with the entirety of

40 CFR part 258, many States/Tribes would need to postpone obtaining

approval of their permit programs for a significant amount of time.

This delay in determining the adequacy of the State/Tribal permit

program while the State/Tribe revises its statutes or regulations could

impose a substantial burden on owners and operators of landfills

because the State/Tribe would be unable to exercise the flexibility

available to States/Tribes with permit programs which have been

approved as adequate.

As a State's/Tribe's regulations and statutes are amended to comply

with the federal MSWLF landfill regulations, unapproved portions of a

partially approved MSWLF permit program may be approved by the EPA. The

State/Tribe may submit an amended application to EPA for review and an

adequacy determination will be made using the same criteria as for the

initial application. This adequacy determination will be published in

the Federal Register summarizing the Agency's decision and the

portion(s) of the State/Tribal MSWLF permit program affected and

providing an opportunity to comment for a period of 30 days. The

adequacy determination will become effective sixty (60) days following

publication if no adverse comments are received. If EPA receives

adverse comments on its adequacy determination, another Federal

Register notice will be published either affirming or reversing the

initial decision and responding to the public comments.

B. State of New Jersey

On March 3, 1994, the State of New Jersey submitted an application

for partial determination of adequacy of its solid waste landfill

permit program. Certain revisions and amendments were submitted on July

21, 1994 and September 6, 1994. The application addressed all

components of 40 CFR part 258 and discussed New Jersey's enforcement

authority, provisions for citizen participation, and the current status

of the universe of landfills within the State. EPA reviewed New

Jersey's application and tentatively determined that the State's

program meets all requirements necessary to qualify for a determination

of partial approval of adequacy to ensure compliance with the Federal

Criteria with the exception of Subpart E--Ground-Water Monitoring and

Corrective Action. Upon appropriate adoption of revisions to its

existing ground-water regulations, it is expected that New Jersey will

become eligible for full approval which will include subpart E. On

September 6, 1994, New Jersey provided a schedule as called for in its

application, which indicates that all proposed regulatory revisions are

expected to be adopted by October, 1995, at which time the revised

regulations will be fully effective.

The New Jersey Department of Environmental Protection has the

responsibility for implementing and enforcing solid waste management

regulations, including a permit program, inspection authority and

enforcement activities. The State has determined that at present, 12

regional and 2 municipal sanitary landfills are subject to all

components of the Federal Criteria. Twenty-two other existing sole

source landfills as well as those landfills that closed prior to the

effective date of the Federal Criteria, while not subject to the

provisions of 40 CFR part 258, are still subject to the laws and

regulations of the State of New Jersey, including those pertaining to

closed and unpermitted landfills. New Jersey has identified a

significant number of such sites, which may be classified as ``open

dumps'' pursuant to 40 CFR part 257 and which are subject to regulation

and enforcement by New Jersey under existing state law.

To ensure compliance with all of the revised Federal Criteria, New

Jersey needs to revise existing regulations concerning groundwater

monitoring and corrective action so that the revised regulations are

aligned with part 258, subpart E. As noted previously, New Jersey has

submitted a schedule indicating that such regulatory revisions will be

effective by October, 1995. To allow Jersey to begin exercising some of

the flexibility allowed in States/Tribes with adequate permit programs,

EPA is proposing to approve those portions of New Jersey's program that

are ready for action today. These include criteria for location,

operation, closure and post-closure care, and financial assurance.

The public may submit written comments on EPA's tentative

determination until December 14, 1994. Copies of New Jersey's

application including revisions and amendments are available for

inspection and copying at the location indicated in the ADDRESSES

section of this notice.

The EPA will hold a public hearing on its tentative decision. The

hearing will be held on December 14, 1994 at the Public Hearing Room,

NJDEP, 401 E. State St, Trenton, NJ. Comments can be submitted orally

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

determination of inadequacy for New Jersey's program. EPA expects to

make a final determination by January 27, 1995 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: October 12, 1994.

Herbert Barrack,

Acting Deputy Regional Administrator.

[FR Doc. 94-26816 Filed 10-27-94; 8:45 am]

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