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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5127-4]

New Mexico; Final Determination of Adequacy of State/Tribal

Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination on Application of New Mexico for

Full Program Adequacy Determination.

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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 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/Tribal permit programs provide 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.

New Mexico applied for a determination of adequacy under Section

4005 of RCRA. EPA reviewed New Mexico's application and proposed a

determination (58 FR 181, 48312, September 20, 1994), that New Mexico's

MSWLF permit program is adequate to ensure compliance with the revised

MSWLF criteria. EPA is today issuing a final determination that New

Mexico's program is adequate.

EFFECTIVE DATE: The determination of adequacy for New Mexico shall be

effective on December 23, 1994.

FOR FURTHER INFORMATION CONTACT: Andrew Tayrien, Environmental

Engineer, Solid Waste Section, US EPA Region 6, Dallas, Texas 75202,

(214) 665-8546.

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 facilities 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 for New Mexico's municipal solid waste landfill permit

program. On September 20, 1994, EPA published a tentative determination

of adequacy for all portions of New Mexico's program. Further

background on the tentative determination of adequacy appears at 58 FR

181, 48312 (September 20, 1994). A 30-day public comment period was

held until October 20, 1994. In this notice of tentative determination,

EPA announced that a public hearing would be held if a sufficient

number of people requested a hearing. The Agency received one comment

letter in response to the tentative determination. No requests for a

public hearing were received, therefore, a hearing was not held.

C. Public Comments

EPA received the following comment on the tentative determination

of all portions of adequacy for New Mexico's MSWLF permit program.

One commenter representing a private solid waste management company

recommended that EPA ``condition the award of full program approval

upon the deletion of Sections 108(a) and (b) of the New Mexico solid

waste disposal regulations.'' Essentially, this commenter takes

exception with the household waste disposal exemption provided in these

sections of the New Mexico solid waste management regulations (EIB/

SWMR-4).

EPA believes that the regulations in EIB/SWMR-4 are consistent with

Subtitle D. EPA addresses the issue of backyard disposal in the

criteria for classification of solid waste disposal facilities and

practices, codified in 40 CFR Part 257. In the final rule for the Part

257 Criteria, September 13, 1979 Federal Register (Criteria for

Classification of Solid Waste Disposal Facilities and Practices, Vol.

44, No. 179, 53441), EPA states that ``EPA does not believe that

Congress intended the Subtitle D classification scheme to be

implemented at the household level. RCRA Section 1004(27) refers to

wastes from `community activities.' In addition, the legislative

history indicates at several points that `municipal' wastes are of

concern under Subtitle D. The Act's emphasis on `community' or

`municipal' waste, indicates that the Congress intended to focus on

solid waste management at that level rather than at the household

level. EPA believes that `backyard' practices should be controlled

through State or local nuisance and public health laws.'' It is

important to note that 40 CFR Section 257.3-7 prohibits the open

burning of residential, commercial, institutional or industrial solid

waste except for the infrequent burning of agricultural wastes in the

field. 40 CFR Section 257.3-7 further requires that these infrequent

acts of burning not violate applicable requirements developed under a

State Implementation Plan approved or promulgated by the Administrator

pursuant to Section 110 of the Clean Air Act.

D. Decision

EPA concludes that New Mexico's application for adequacy

determination meets all of the statutory and regulatory requirements

established by RCRA. Accordingly, New Mexico is granted a determination

of adequacy for all portions of its municipal solid waste permit

program. New Mexico's solid waste program does not apply and cannot be

enforced in Indian country in the State. 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).

Today's action takes effect on the date of publication. EPA

believes it has good cause under section 553(d) of the Administrative

Procedure Act, 5 U.S.C 553(d), to put this action into effect less than

30 days after publication in the Federal Register. All of the

requirements and obligations in the State's/Tribe's program are already

in effect as a matter of State/Tribal law. EPA's action today does not

impose any new requirements that the regulated community must begin to

comply with; nor do these requirements become enforceable by EPA as

federal law. Consequently, EPA finds that it does not need to give

notice prior to making its approval effective.

COMPLIANCE WITH EXECUTIVE ORDER 12291: The Office of Management and

Budget has exempted this notice from the requirements of Section 3 of

Executive Order 12291.

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: December 6, 1994.

William B. Hathaway,

Acting Regional Administrator.

[FR Doc. 94-31616 Filed 12-22-94; 8:45 am]

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