[Federal Register Volume 59, Number 9 (Thursday, January 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-860]


[[Page Unknown]]

[Federal Register: January 13, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4826-2]

 

Washington: Partial Program Adequacy Determination of State/
Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on partial program 
application of Washington 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 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 the 
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 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.
    Washington applied for a partial determination of adequacy under 
section 4005 of RCRA. EPA reviewed Washington's application and made a 
tentative determination of adequacy for those portions of the 
Washington's MSWLF permit program that are adequate to assure 
compliance with the revised MSWLF Criteria. These portions are 
described later in this notice. The State/Tribe plans to revise the 
remainder of its permit program to assure complete compliance with the 
revised MSWLF Criteria and gain full program approval. Washington's 
application for partial program adequacy determination is available for 
public review and comment.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF program, the Region 
has tentatively scheduled a public hearing on this determination. If a 
sufficient number of people express interest in participating in a 
hearing by writing the Region or calling the contact given below within 
30 days of the date of publication of this notice, the Region will hold 
a hearing on the date given in the ``DATES'' section. The Region will 
notify all persons who submit comments on this notice if it decides to 
hold the 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 Washington's application for a partial 
determination of adequacy must be received by the close of business on 
March 1, 1994. If a public hearing is held, it will be scheduled for 
March 1, 1994. Washington will participate in the public hearing held 
by EPA on this subject.

ADDRESSES: Written comments should be sent to Steven Sharp, USEPA, M/S 
HW-107, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-6517.
    Copies of Washington's application for partial adequacy 
determination are available 8:30 a.m. to 4:30 p.m. during normal 
working days at the following addresses for inspection and copying: 
Washington State Department of Ecology, 300 Desmond Drive, Lacey, 
Washington, Attn: Mr. Randy Martin (206) 407-6136; USEPA Region X 
Library, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-1289.

FOR FURTHER INFORMATION CONTACT: Steve Sharp, USEPA, M/S HW-107, 1200 
Sixth Avenue, Seattle, WA 98101, (206) 553-6517.

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 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 the 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 to a limited 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 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 has 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 would 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 any approved State/Tribal flexibility. On 
October 1, 1993, the October 9, 1993 effective date was extended for 
certain smaller landfills and for certain landfills receiving waste 
from flood disaster areas (58 FR 51536). The effective date is now 
April 9, 1994, for MSWLFs that accept less than 100 tons of waste per 
day, are not a Superfund National Priority List site, and are either in 
a State that has submitted an application before October 9, 1993 for 
EPA approval, or are located on Tribal lands. The effective date has 
been extended to October 9, 1995, for very small landfills (less than 
20 tons of waste per day) in arid climates that lack a practicable 
alternative for waste disposal or very small landfills that experience 
significant disruption of surface transportation. Certain large 
facilities receiving waste from flood disaster areas also are allowed 
an extension of the compliance date if the State determines that they 
are needed to dispose of flood debris.
    EPA intends to approve portions of 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.
    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.

B. Washington

    On April 9, 1993, Washington submitted an application for partial 
program adequacy determination. This initial application was found to 
be incomplete by EPA as it referred to draft regulations. On October 
15, 1993, Washington submitted a revised application for partial 
program adequacy determination. EPA has reviewed Washington's 
application and tentatively determined that all parts, with the 
exceptions listed below, of Washington's MSWLF permit program will 
ensure compliance with the Federal revised Criteria. Portions not 
ensuring compliance with Federal Criteria:

    1. Definitions of ``Existing MSWLF unit'' and ``Lateral expansion'' 
(40 CFR 258.2).
    2. Washington's design criteria for nonarid landfills (40 CFR 
258.40(a)(2).

Washington's program is not enforceable on indian lands.
    EPA is not approving Washington's design standards for nonarid 
landfills due to the inclusion within this standard of an 
``equivalent'' liner design. While Washington has developed a composite 
design that ensures compliance with 40 CFR 258.40(a)(2), it allows the 
use of alternative designs based on ``equivalent'' demonstrations. EPA 
does not feel that this ensures compliance with the Federal criteria. 
EPA will continue to work with Washington to resolve this issue.
    Washington is using state approved flexibility to develop a program 
that ensures compliance with the Federal criteria while tailoring their 
program to the needs of the State. Washington's ground-water monitoring 
program, while not mirroring the Federal criteria, makes use of the 
available flexibility within the Federal rules to develop an 
alternative detection monitoring system. Washington is using its 
approved State flexibility to establish an alternative list of 
geochemical parameters in lieu of the heavy metals listed for detection 
monitoring in appendix I of the Federal criteria. EPA believes that 
this alternative detection monitoring program ensures compliance with 
the Federal criteria.
    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 while responding to the public comments. The State 
of Washington is continuing to work towards resolution of the issues 
involved for those portions of its program that EPA does not feel are 
adequate to ensure compliance with all of the revised Federal Criteria. 
Unless the State of Washington makes further demonstrations that the 
Agency finds satisfactory, the State has agreed to revise the following 
portions of its permit program:
    1. Washington will revise its definitions of ``existing MSWLF 
unit'' and ``lateral expansion'' to ensure compliance with the Federal 
definitions of the same (40 CFR 258.2).
    2. Washington will revise its regulations for ``standard designs'' 
of nonarid landfills (WAC 173-351-300(2)(a)) to ensure compliance with 
40 CFR 258.40(a)(2).
    Washington submitted a schedule indicating that it will continue to 
work towards resolution of these non-approved portions of its MSWLF 
permit program. If the issues are not resolved by January 15, 1995, the 
State has agreed to initiate the necessary rule changes and have the 
new rules in place by October 9, 1995. To allow the State/Tribe to 
begin exercising some of the flexibility allowed in States/Tribes with 
adequate permit programs, EPA is proposing to approve those portions of 
the State/Tribe's program that are ready for action today.
    EPA reviewed the State/Tribe's schedule and believes it is 
reasonable because resolution of these issues may require multiple 
demonstrations and the State has agreed to a schedule that is realistic 
for the State of Washington's rulemaking process for any rule changes 
required.
    The public may submit written comments on EPA's tentative 
determination until March 1, 1994. Copies of Washington's application 
are available for inspection and copying at the location indicated in 
the ``Addresses'' section of this notice.
    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 Washington's program. EPA will 
make a final decision on whether or not to approve Washington's program 
by June 1, 1994 and will give notice of it in the Federal Register. The 
notice will include a summary of the reasons for the final 
determination and a response 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 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 tentative 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 proposed 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: January 6, 1994.
Gerald A. Emison,
Acting Regional Administrator.
[FR Doc. 94-860 Filed 1-12-94; 8:45 am]
BILLING CODE 6560-50-F