[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Rules and Regulations]
[Pages 7294-7297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3363]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 258
[FRL-6535-8]
Rhode Island: Determination of Adequacy for the State's Municipal
Solid Waste Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Under the Resource Conservation and Recovery Act, as amended
by the Hazardous and Solid Waste Amendments, States may develop and
implement permit programs for municipal solid waste landfills (MSWLFs)
for review and an adequacy determination by the Environmental
Protection Agency (EPA). This final rule documents EPA's determination
that Rhode Island's MSWLF permit program is adequate to ensure
compliance with Federal MSWLF requirements.
EFFECTIVE DATE: The determination of adequacy for the State of Rhode
Island shall be effective on February 14, 2000.
FOR FURTHER INFORMATION CONTACT: Michael Hill, United States
Environmental Protection Agency, Region 1, One Congress Street, Suite
1100, Mail Code CHW, Boston, MA 02114; telephone number: (617) 918-
1398.
SUPPLEMENTARY INFORMATION:
I. Background
On October 9, 1991, the Environmental Protection Agency (EPA)
promulgated the ``Solid Waste Disposal Facility Criteria: Final Rule''
(56 FR 50978, Oct. 9, 1991). That rule established part 258 of Title 40
of the Code of Federal Regulations (CFR) (40 CFR part 258). The
criteria set out in 40 CFR part 258 include location restrictions and
standards for design, operation, groundwater monitoring, corrective
action, financial assurance and closure and post-closure care for
municipal solid waste landfills (MSWLFs). The 40 CFR part 258 criteria
establish minimum Federal standards that take into account the
practical capability of owners and operators of MSWLFs while ensuring
that these facilities are designed and managed in a manner that is
protective of human health and the environment.
Section 4005(c)(1)(B) of subtitle D of the Resource Conservation
and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste
Amendments of 1984, requires States to develop and implement permit
programs to ensure that MSWLFs will comply with the 40 CFR part 258
criteria. RCRA section 4005(c)(1)(C) requires EPA to determine whether
the permit programs that States develop and implement for these
facilities are adequate.
To fulfill this requirement to determine whether State permit
programs that implement the 40 CFR part 258 criteria are adequate, EPA
promulgated the State Implementation Rule (SIR) (63 FR 57025, Oct. 23,
1998). The SIR, which established part 239 of Title 40 of the CFR (40
CFR part 239), has the following four purposes: (1) It spells out the
requirements that State programs must satisfy to be determined
adequate; (2) it confirms the process for EPA approval or partial
approval of State permit programs for MSWLFs; (3) it provides the
procedures for withdrawal of such approvals; and (4) it establishes a
flexible framework for modifications of approved programs.
Only those owners and operators located in States with approved
permit programs for MSWLFs can use the site-specific flexibility
provided by 40 CFR part 258, to the extent the State permit program
allows such flexibility. Every standard in the 40 CFR part 258 criteria
is designed to be implemented by the owner or operator with or without
oversight or participation by EPA or the State regulatory agency.
States with approved programs may choose to require facilities to
comply with the 40 CFR part 258 criteria exactly, or they may choose to
allow owners and operators to use site-specific alternative approaches
to meet the Federal criteria. The flexibility that an owner or operator
may be allowed under an approved State program can provide a
significant reduction in the burden associated with complying with the
40 CFR part 258 criteria. Regardless of the approval
[[Page 7295]]
status of a State and the permit status of any facility, the 40 CFR
part 258 criteria shall apply to all permitted and unpermitted MSWLFs.
To receive a determination of adequacy for a MSWLF permit program
under the SIR, a State must have enforceable standards for new and
existing MSWLFs. These State standards must be technically comparable
to the 40 CFR part 258 criteria. In addition, the State 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 also must provide for public participation in permit issuance and
enforcement, as required in RCRA section 7004(b). Finally, the State
must demonstrate 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 permit program. EPA
expects States to meet all of these requirements for all elements of a
permit program before it gives full approval to a State's program.
II. State of Rhode Island
On March 18, 1994, Rhode Island submitted a complete application
for a determination of adequacy of its MSWLF permit program to EPA. EPA
reviewed the application and requested additional information about
program implementation. Rhode Island provided this information. As a
result of the review process, Rhode Island identified certain
deficiencies in its MSWLF permit program regulations, and it proposed
revisions to make the program consistent with the Federal minimum
criteria under 40 CFR part 258. On March 23, 1995, EPA provided Rhode
Island with its comments regarding the application and acknowledged
that Rhode Island had proposed to revise the MSWLF permit program
regulations. Rhode Island provided EPA with these proposed revisions,
subject to public comment, on August 28, 1995. On September 25, 1995,
EPA informed Rhode Island that it had: (1) Completed its review of the
proposed revisions: and (2) determined that upon their adoption as
written, EPA would publish a tentative full determination of adequacy
for the State's MSWLF permit program in the Federal Register. Before
publication of this notice, however, Rhode Island further amended its
MSWLF permit program regulations. It made these amendments in order to
satisfy certain State law requirements and conform the regulations to
certain Rhode Island Department of Environmental Management (RIDEM)
recycling requirements, and because of a RIDEM reorganization. The
revised MSWLF permit program regulations became effective on January
30, 1997. EPA reviewed these regulations and requested additional
information about program implementation, which Rhode Island provided.
Based on its review, EPA tentatively determined that all portions
of Rhode Island's MSWLF permit program meet all the requirements
necessary to qualify for full program approval and ensure compliance
with the 40 CFR part 258 criteria. EPA published the tentative
determination as a proposed rule in the Federal Register on October 5,
1999 (64 FR 53976).
By finding that Rhode Island's MSWLF permit program is adequate,
EPA does not intend to affect the rights of Federally recognized Indian
Tribes in Rhode Island, nor does it intend to limit the existing rights
of the State of Rhode Island. In addition, nothing in this action
should be construed as making any determinations or expressing any
position with regard to Rhode Island's audit law (R.I. Gen. Laws
sections 42-17.8-1 to 8-8). The action taken here does not express or
imply any viewpoint on the question of whether there are legal
deficiencies in this or any other Federally authorized, delegated, or
approved program resulting from the effect of Rhode Island's audit law.
RCRA section 4005(a) provides that citizens may use the citizen
suit provisions of RCRA section 7002 to enforce the 40 CFR part 258
criteria independent of any State enforcement program. EPA expects that
any owner or operator complying with provisions in a State program
approved by EPA should be considered to be in compliance with the 40
CFR part 258 criteria.
III. Public Comment
During the public comment period on EPA's tentative determination
of adequacy for Rhode Island's MSWLF permit program, EPA received nine
letters and no requests for a public hearing. All nine of the letters
involved concerns about the Central Landfill in Johnston, Rhode Island.
EPA is aware of these concerns and is participating on a committee with
RIDEM, citizens, state legislators, state representatives, town
counselors, the mayor of Johnston, and the landfill operator to address
these issues. EPA is satisfied that progress is underway to address
these issues. None of the commentors questioned the adequacy of Rhode
Island's MSWLF permit program in regard to meeting all of the statutory
and regulatory requirements established by RCRA.
IV. Decision
After evaluating Rhode Island's MSWLF permit program, EPA, Region I
concludes that the program meets all of the statutory and regulatory
requirements established by RCRA. Accordingly, the State of Rhode
Island is granted a determination of adequacy of all portions of its
MSWLF permit program.
V. Regulatory Assessments
A. Compliance With Executive Order 12866: Regulatory Planning and
Review
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), EPA must
determine whether any proposed or final regulatory action is
``significant'' and therefore subject to Office of Management and
Budget (OMB) review and the requirements of the Executive Order. The
order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
OMB has exempted today's action from Executive Order 12866 review.
B. Compliance With Executive Order 12875: Enhancing the
Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to OMB a
description of the extent of EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition,
[[Page 7296]]
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's action implements requirements specifically set forth by
the Congress in sections 4005 (c)(1)(B) and (c)(1)(C) of subtitle D of
RCRA, as amended, without the exercise of any discretion by EPA.
Accordingly, the requirements of section 1(a) of Executive Order 12875
do not apply to today's action.
C. Compliance With Executive Order 13045: Children's Health Protection
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, Apr. 23,
1997) applies to any rule that: (1) Is determined to be ``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, EPA 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 EPA. EPA interprets
Executive Order 13045 as applying only to those regulatory actions that
are based on health or safety risks, such that the analysis required
under section 5-501 of the Order has the potential to influence the
regulation. Today's action is not subject to Executive Order 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks.
D. 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 by consulting, Executive Order 12875
requires EPA to provide to OMB, in a separately identified section of
the preamble to today's action, 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 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.''
Today's action implements requirements specifically set forth by
Congress in sections 4005 (c)(1)(B) and (c)(1)(C) of subtitle D of
RCRA, as amended, without the exercise of any discretion by EPA.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to today's action.
E. 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'' are 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 final rule 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 determines that the State of Rhode Island's
MSWLF permit program is adequate. Thus, the requirements of section 6
of the Executive Order do not apply.
F. Compliance With the Regulatory Flexibility Act
EPA has determined that this determination of adequacy will not
have a significant adverse economic impact on a substantial number of
small entities. The MSWLF revised criteria in 40 CFR part 258 provide
directors of States with approved programs the authority to exercise
discretion and to modify various Federal requirements. Directors of
approved States may modify certain of these Federal requirements to
make them more flexible on either a site-specific or State-wide basis.
In many cases, exercise of this flexibility results in a decrease in
burden or economic impact upon owners or operators of MSWLFs. Thus,
with EPA's determination that the Rhode Island MSWLF permitting program
is adequate, the burden on MSWLF owners and operators in that State
that are also small entities should be reduced. Moreover, because small
entities that own or operate MSWLFs are already subject to the
requirements in 40 CFR part 258 (although some small entities may
already be exempted from certain of these requirements, such as the
groundwater monitoring and design provisions (40 CFR 258.1(f)(1)),
today's action does not impose any additional burdens on them.
G. 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 this rule 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 the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
H. 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
[[Page 7297]]
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 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 UMRA section 205
do not apply when they are inconsistent with applicable law. Moreover,
UMRA 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 of 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 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.
Today's action contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. It implements mandates specifically
and explicitly set forth by the Congress in sections 4005(c)(1)(B) and
(c)(1)(C) of subtitle D of RCRA, as amended, without the exercise of
any policy discretion by EPA. In any event, EPA does not believe that
this determination of the State program's adequacy will result in
estimated costs of $100 million or more to State, local, and tribal
governments in the aggregate, or to the private sector, in any one
year. This is due to the additional flexibility that the State can
generally exercise (which will reduce, not increase, compliance costs).
Moreover, this determination will not significantly or uniquely affect
small governments including Tribal small governments. As to the
applicant, the State has received notice of the requirements of an
approved program, has had meaningful and timely input into the
development of the program requirements, and is fully informed as to
compliance with the approved program. Thus, any applicable requirements
of section 203 of the Act have been satisfied.
I. 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 final rule 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.
J. 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
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 258
Environmental protection, Adequacy, Administrative practice and
procedure, Municipal solid waste landfills, Non-hazardous solid waste,
State permit program approval.
Authority: 42 U.S.C. 6912, 6945, 6949(a).
Dated: January 20, 2000.
Mindy Lubber,
Acting Regional Administrator, Region I.
[FR Doc. 00-3363 Filed 2-11-00; 8:45 am]
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