[Federal Register Volume 65, Number 113 (Monday, June 12, 2000)]
[Rules and Regulations]
[Pages 36792-36795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14164]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[FRL-6710-3]
State of West Virginia: Final Program Determination of Adequacy
of State Municipal Solid Waste Landfill Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
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SUMMARY: This document approves the portions of the West Virginia
Municipal Solid Waste Management Permit Program which did not receive
Environmental Protection Agency (EPA) approval in the Federal Register
document published on March 29, 2000 (65 FR 16523-16528). EPA published
a document in the Federal Register on March 29, 2000 (65 FR 16523-
16528), giving final approval to the portions of West Virginia's Solid
Waste Management Rule which had been tentatively approved in the March
8, 1996 document (61 FR 9451-9454). This
[[Page 36793]]
action approves those portions of West Virginia's solid waste permit
program which were not previously approved by EPA.
DATES: This final determination of program adequacy for the State of
West Virginia shall become effective August 11, 2000 unless adverse
comments are received on or before July 12, 2000.
ADDRESSES: Comments should be sent to the following address where the
full West Virginia application supporting program adequacy is on file
and may be reviewed: EPA Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103-2029, or alternatively at West Virginia Division of
Environmental Protection (WVDEP), 1356 Hansford Street, Charleston,
West Virginia 25301-1401.
FOR FURTHER INFORMATION CONTACT: U.S. EPA Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103-2029, Attn: Mr. Michael C. Giuranna,
mailcode 3WC21, telephone (215) 814-3298. The contact for the State of
West Virginia Division of Environmental Protection is Mr. Larry Atha,
1356 Hansford Street, Charleston, West Virginia 25301-1401, telephone
(304) 558-6350.
SUPPLEMENTARY INFORMATION:
A. Background
On October 9, 1991, EPA promulgated revised criteria for Municipal
Solid Waste Landfills (MSWLFs) (40 CFR part 258). Section 4005(c)(1)(B)
of the Resource Conservation and Recovery Act (RCRA), as amended by the
Hazardous and Solid Waste Amendments, requires states to develop permit
or other similar programs that incorporate the federal criteria under
40 CFR part 258. Section 4005(c)(1)(C) of RCRA requires that EPA
determine the adequacy of state MSWLF permit programs to ensure that
facilities comply with the revised federal criteria. To fulfill this
requirement, the Agency promulgated the State Implementation Rule (SIR)
on October 23, 1998 (63 FR 57025) which provides procedures by which
EPA will approve or partially approve state landfill permit programs.
EPA interprets the requirements for states or tribes to develop
``adequate'' programs for permits, or other forms of prior approval, as
imposing several minimum requirements. First, each state must have
enforceable standards for new and existing MSWLFs that are technically
comparable to EPA's revised MSWLF criteria. Next, the state 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 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 must show that it has sufficient compliance monitoring and
enforcement authorities to take specific action against any owner or
operator who fails to comply with an approved MSWLF program.
EPA Regions determine whether state programs are ``adequate'' based
on the criteria outlined above.
B. State of West Virginia
In September 1998, West Virginia submitted its revised Solid Waste
Management Rule (the Rule), which incorporated all of the provisions of
40 CFR part 258. After a thorough review, EPA determined that the Rule
met the requirements of 40 CFR part 258 and on July 1, 1999, West
Virginia submitted the Rule with proper documentation as required by
the SIR to EPA and requested approval under 40 CFR part 258. Upon
review of this submittal, EPA found that West Virginia is in compliance
with all provisions of the SIR and that West Virginia has demonstrated
that the State's MSWLF permit program adequately meets the location
restrictions, operating criteria, design criteria, groundwater
monitoring and corrective action requirements, closure and post-closure
care requirements, and financial assurance criteria in the revised
federal criteria. In addition, the State of West Virginia also
demonstrated that its MSWLF permit program contains specific provisions
for public participation, compliance monitoring, and enforcement.
EPA issued final partial approval for all of subparts B, C and D
and portions of subparts A, E and F of 40 CFR part 258, in the Federal
Register of March 29, 2000 (65 FR 16523-16528). These portions of West
Virginia's Municipal Solid Waste Landfill Permit Program had received
tentative approval in a Federal Register document published on March 8,
1996 (61 FR 9451-9454). EPA is today publishing this document approving
the remaining elements of West Virginia's MSWLF permit program that are
analogous to the subpart G, Financial Assurance Criteria, of 40 CFR
part 258 and the remaining portions of subparts A, E and F listed
below.
1. Subpart A--General-- The definitions listed in 40 CFR 258.2;
2. Subpart E--Groundwater Monitoring and Corrective Action--The
requirements of 40 CFR 258.51, Groundwater Monitoring Systems; 40 CFR
258.54, Detection Monitoring Program; and 40 CFR 258.55, Assessment
Monitoring Program;
3. Subpart F--Closure and Post Closure Care--The criteria in 40 CFR
258.60, Closure Criteria, pertaining to the time allowed to apply the
final cover.
By approving these portions of the West Virginia Municipal Solid
Waste Permit Program, EPA will be in effect granting full program
approval of West Virginia's MSWLF permit program.
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 enforcement
program. As explained in the preamble to the final MSWLF criteria, EPA
expects that any owner or operator complying with provisions of a state
program approved by EPA should be considered to be in compliance with
the federal criteria (see 56 FR 50978, 50995, October 9, 1991).
C. Decision
EPA concludes that West Virginia's application for a full program
adequacy determination meets all of the statutory and regulatory
requirements established by RCRA. Accordingly, West Virginia is granted
approval of the provisions of its municipal solid waste landfill permit
program noted above. This action will take effect 60 days from the date
of publication, if no significant adverse comments are received within
30 days. 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 60 days after publication in the Federal Register. All of the
requirements and obligations in the State's program are already in
effect as a matter of State law. EPA is approving the State regulations
noted above through this immediate final action and is publishing this
rule without a prior proposal to approve the changes because EPA
believes it is not controversial and expects no comments that oppose
this action. EPA is providing an opportunity for public comment now. In
the proposed rules section of today's Federal Register EPA is
publishing a separate document that proposes to approve the State
changes. If EPA receives comments which oppose this approval or
portion(s) thereof, that document will serve as a proposal to approve
such changes. If EPA receives comments that oppose this approval
decision or portion(s) thereof, we will withdraw this approval, or
those portion(s) for which EPA received comments opposing its decision,
by publishing a document in the Federal Register. We will address all
public comments in a subsequent final action based on the proposed
rule.
[[Page 36794]]
The 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.
Compliance With Executive Order 12866--Regulatory Planning and Review
The Office of Management and Budget has exempted today's action
from the requirements of Executive Order 12866.
Compliance With Executive Order 12898--Environmental Justice
EPA is committed to addressing environmental justice concerns and
is assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities. EPA does not
believe that today's action will have a disproportionately high and
adverse environmental or economic impact on any minority or low-income
group, or on any other type of affected community.
Compliance With Executive Order 13045--Children's Health Protection
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) The
Office of Management and Budget determines is ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency. This
rule is not subject to Executive Order 13045 because it is not an
economically significant rule as defined by Executive Order 12866, and
because it does not involve decisions based on environmental health or
safety risks.
Compliance With Executive Order 13084--Consultation and Coordination
with Indian Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies with consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule is not subject to Executive Order 13084 because it does
not significantly or uniquely affect the communities of Indian tribal
governments. West Virginia is not authorized to implement the MSWLF
permit program in Indian country.
Compliance With Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts state law unless the
Agency consults with state and local officials early in the process of
developing the proposed regulation.
This approval does not have federalism implications. It will not
have a substantial direct effect on states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because this rule affects only one
State. This action simply approves portions of West Virginia's MSWLF
permit program that the State has voluntarily chosen to operate. Thus,
the requirements of section 6 of the Executive Order do not apply.
Certification Under the Regulatory Flexibility Act (RFA), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as: (1) A small business as specified
in the Small Business Administration regulations; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this approval on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not impose any new requirements on small entities because small
entities that are owners or operators of municipal sold waste landfills
are already subject to the regulatory requirements under the State laws
which EPA is now approving. This
[[Page 36795]]
action merely approves for the purpose of RCRA 4005(c) those existing
State requirements.
Compliance With the Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each house of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing
today's document and other required information to the U.S. Senate, the
U.S. House of Representatives and the Comptroller General of the United
States prior to publication of today's action in the Federal Register.
Today's action is not a ``major rule'' as defined by section 5 U.S.C.
804(2).
Compliance With the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that section 202 and 205 requirements do not
apply to today's action because this rule does not contain a federal
mandate that may result in annual expenditures of $100 million or more
for State, local, and/or tribal governments in the aggregate, or the
private sector. Costs to State, local and/or tribal governments already
exist under the West Virginia program, and today's action does not
impose any additional obligations on regulated entities. In fact, EPA's
approval of state programs generally may reduce, not increase,
compliance costs for the private sector. Further, as it applies to the
State, this action does not impose a federal intergovernmental mandate
because UMRA does not include duties arising from participation in a
voluntary federal program.
The requirements of section 203 of UMRA also do not apply to
today's action because this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Although
small governments may own or operate municipal solid waste landfills,
they are already subject to the regulatory requirements under the
existing State laws that are being approved by EPA, and, thus, are not
subject to any additional significant or unique requirements by virtue
of this program approval.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
Compliance With the National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
action does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
Authority: This notice is issued under the authority of section
2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended,
42 U.S.C. 6912, 6945 and 6949(a).
Dated:
Bradley M. Campbell,
Regional Administrator, Region III.
[FR Doc. 00-14164 Filed 6-9-00; 8:45 am]
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