[Federal Register Volume 59, Number 10 (Friday, January 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1022]


[[Page Unknown]]

[Federal Register: January 14, 1994]


=======================================================================
-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
ENVIRONMENTAL PROTECTION AGENCY
[FRL-4826-7]
 

Ohio Adequacy Determination of State Municipal Solid Waste Permit 
Program
AGENCY: Environmental Protection Agency (Region 5).

ACTION: Notice of tentative determination on application of Ohio for 
full program adequacy determination, public hearing and public comment 
period.

-----------------------------------------------------------------------

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 will comply with the 
revised Federal Criteria (40 CFR part 258). RCRA section 4005(c)(1)(C) 
requires the United States Environmental Protection Agency (USEPA) to 
determine whether States have adequate permit programs for MSWLFs, but 
does not mandate issuance of a rule for such determinations. The USEPA 
has drafted and is in the process of proposing the State/Tribal 
Implementation Rule (STIR) that will provide procedures by which the 
USEPA will approve, or partially approve, 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 MSWLF permit programs provide interaction between the 
State/Tribe and the owner/operator regarding site-specific permit 
conditions. Only those owners/operators located in States/Tribes with 
approved MSWLF permit programs can use the site-specific flexibility 
provided by the revised Federal Criteria to the extent the State/Tribe 
MSWLF permit program allows such flexibility. The USEPA notes that 
regardless of the approval status of a State/Tribe and the permit 
status of any facility, the revised Federal Criteria apply to all 
permitted and unpermitted MSWLF facilities.
    Ohio applied for a determination of adequacy under section 4005 of 
RCRA. At the same time, Ohio proposed modifications to current 
regulations that will facilitate full approval of its solid waste 
program. The rules contained in the proposed revisions to the Ohio 
Administrative Code (OAC), Chapter 3745-27, add definitions and 
requirements that are no less stringent than portions of the revised 
Federal Criteria. The specific revised Federal Criteria that Ohio will 
incorporate are identified in the Ohio Solid Waste Program Application 
for U.S. EPA Authorization, October 1993. The USEPA reviewed Ohio's 
application and has made a tentative determination that the combination 
of Ohio's existing MSWLF permit program and the incorporation of 
certain portions of the revised Federal Criteria will be adequate to 
assure compliance with the revised Federal Criteria. The Ohio 
application for program adequacy determination is available for public 
review and comment.
    The USEPA has also received the proposed revisions to the 
regulations for review. See Proposed Municipal Solid Waste Landfill 
Regulations, OAC-3745-27, Ohio Environmental Protection Agency (OEPA), 
December 23, 1993. Review of the finalized OEPA regulations will occur 
prior to the USEPA's final determination of program adequacy. If the 
OEPA regulations, when fully promulgated and effective, are essentially 
unchanged from proposed and are comparable to the revised Federal 
Criteria, the USEPA may approve the Ohio solid waste program.
    Although RCRA does not require USEPA to hold a hearing on any 
determination to approve a State/Tribal MSWLF permit program, the USEPA 
Region 5 may schedule an opportunity for a public hearing on this 
tentative determination. Details appear below in the ``DATES'' section.
DATES: All comments on Ohio's application for a full determination of 
adequacy must be received by USEPA Region 5 by the close of business on 
March 1, 1994. If there is sufficient public interest, USEPA Region 5 
will hold a public hearing on March 1, 1994, starting at 1 p.m. at the 
offices of the Ohio Environmental Protection Agency, Conference Room 
1A, located at 1800 Watermark Drive in Columbus, Ohio. Ohio will 
participate in the public hearing, if held, by USEPA Region 5 on this 
subject. Written comments on Ohio's application should be submitted to 
USEPA Region 5 at the address specified below during the public comment 
period. In addition, oral and/or written comments can be submitted 
during the public hearing, if held.
    Persons requesting that USEPA Region 5 hold a public hearing and/or 
wishing to be notified of the public hearing, if held, should contact 
the USEPA Region 5 contact given below in the ``FOR FURTHER INFORMATION 
CONTACT'' section, within 30 days of the date of the publication of 
this notice. Such persons contacting the USEPA will be notified 
directly if the public hearing will be held or not held, at least 2 
weeks prior to March 1, 1994.

ADDRESSES: All written comments should be sent to the USEPA Region 5 
Office.
    Copies of Ohio's application for full adequacy determination are 
available from 9 a.m. to 4 p.m. during normal working days at the 
following addresses for inspection and copying: Ohio Environmental 
Protection Agency, Library, 1800 Watermark Drive, Columbus, Ohio 43266-
0149, Attn: Ms. Ruth Ann Evans; and USEPA Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, Attn: Mr. Andrew Tschampa, mailcode 
HRP-8J.

FOR FURTHER INFORMATION CONTACT: USEPA Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, Attn: Mr. Andrew Tschampa, mailcode 
HRP-8J, telephone (312) 886-0976.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, the USEPA promulgated revised Federal 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 
revised Federal Criteria. Subtitle D also requires in section 4005 that 
the USEPA determine the adequacy of State MSWLF permit programs to 
ensure compliance with the revised Federal Criteria. To fulfill these 
requirements, 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.
    The USEPA intends to approve State/Tribal MSWLF permit programs 
prior to the promulgation of the STIR. The USEPA 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 the 
revised Federal 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, the USEPA 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 who fails to comply with an approved MSWLF program.
    The USEPA will determine whether a State/Tribe has submitted an 
adequate program based on the interpretation outlined above. The USEPA 
plans to provide more specific criteria for this evaluation when it 
proposes the State/Tribal Implementation Rule. The USEPA expects 
States/Tribes to meet all of these requirements for all elements of a 
MSWLF permit program before it gives full approval to a MSWLF permit 
program.
    As provided in the revised Federal Criteria, USEPA's national 
Subtitle D standards took effect on October 9, 1993. On October 1, 
1993, USEPA published a final ruling which modified the effective date 
of the landfill criteria for certain classifications of landfills (58 
FR 51536). Thus, for certain small landfills that accept less than 100 
tons of waste per day, the Federal landfill criteria will not be 
effective until April 9, 1994, instead of October 9, 1993. The exact 
classifications of landfills and details on the effective date 
extensions are contained in the final rule. See 58 FR 51536 (October 1, 
1993).

B. State of Ohio

    On October 9, 1993, Ohio submitted an application for program 
adequacy determination. The USEPA has reviewed Ohio's application and 
has tentatively determined that the combination of the State's existing 
permit program and the incorporation of certain portions of the revised 
Federal Criteria will ensure full compliance with all of the revised 
Federal Criteria.
    The Ohio regulations, contained in OAC-3745-27, currently contain 
the following elements that are considered equivalent to the revised 
Federal Criteria:

    1. Consideration of other Federal laws (USEPA approval is for 
current Ohio requirements that are comparable to 40 CFR 258.3);
    2. Location restrictions for floodplains, fault areas, seismic 
impact zones, and unstable areas (USEPA approval is for current Ohio 
requirements that are comparable to 40 CFR 258.11, 258.13, 258.14, and 
258.15);
    3. Operating criteria for daily cover material, disease vector 
control, air criteria, access restrictions, and liquids restrictions 
(USEPA approval is for current Ohio requirements that are comparable to 
40 CFR 258.21, 258.22, 258.24, 258.25, and 258.28);
    4. Design criteria (USEPA approval is for current Ohio requirements 
that are comparable to 40 CFR 258.40);
    5. Financial assurance criteria for closure, post-closure care, and 
allowable mechanisms (USEPA approval is for current Ohio requirements 
that are comparable to 40 CFR 258.70, 258.71, 258.72, and 258.74).
    In addition, the proposed modifications to the OEPA Municipal Solid 
Waste Landfill Regulations contain the following elements that are 
considered equivalent to the revised Federal Criteria:

    1. General requirements and definitions (USEPA approval would be 
for proposed Ohio requirements that are comparable to 40 CFR 258.1 and 
258.2);
    2. Location restrictions for airport safety and wetlands (USEPA 
approval would be for proposed Ohio requirements that are comparable to 
40 CFR 258.10 and 258.12);
    3. Closure of existing MSWLFs (USEPA approval would be for proposed 
Ohio requirements that are comparable to 40 CFR 258.16);
    4. Operating criteria for excluding the receipt of hazardous waste, 
explosive gases control, run-on/run-off control systems, and surface 
water requirements (USEPA approval would be for proposed Ohio 
requirements that are comparable to 40 CFR 258.20, 258.23, 258.26, and 
258.27);
    5. Recordkeeping requirements (USEPA approval would be for proposed 
Ohio requirements that are comparable to 40 CFR 258.29);
    6. Groundwater monitoring applicability, systems, sampling and 
analysis, detection monitoring program, assessment monitoring program, 
assessment of corrective measures, selection of remedy, and 
implementation requirements (USEPA approval would be for proposed Ohio 
requirements that are comparable to 40 CFR 258.50, 258.51, 258.53, 
258.54, 258.55, 258.56, 258.57, and 258.58);
    7. Closure and post-closure care requirements (USEPA approval would 
be for proposed Ohio requirements that are comparable to 40 CFR 258.60 
and 258.61);
    8. Financial assurance criteria for corrective action (USEPA 
approval would be for proposed Ohio requirements that are comparable to 
40 CFR 258.73).
    The elements of the revised Federal Criteria to be incorporated 
into the Ohio permit program (1-8 above) are contained in the proposed 
regulations currently under promulgation by the OEPA. See Proposed 
Municipal Solid Waste Landfill Regulations, OAC-3745-27, Ohio 
Environmental Protection Agency, December 23, 1993.
    For purposes of implementation of the revised Federal Criteria, 
Ohio is incorporating a ``unit concept'' into its current landfill 
permitting process. Currently, large areas of unprepared land are 
permitted for a MSWLF facility as opposed to discrete areas or units 
prepared for actual waste placement. Landfill owners and operators will 
be designating ``existing units'' at MSWLF facilities according to a 
specific procedure and guidelines established by the proposed OEPA 
regulations. The procedure involves a clear delineation of the limits 
of waste placement, design components, significant boundaries, and what 
the owner or operator designates as an existing unit or new unit(s) at 
a MSWLF facility as of April 1994. The guidelines require that all 
areas designated as an existing unit are geographically contiguous and 
the unfilled areas of the existing unit meet, at a minimum, specific 
design requirements which are equivalent to the revised Federal 
Criteria. The revised OEPA regulations, when effective, will then apply 
to existing units, which have been designated by the landfill owner or 
operator, as well as all new units.
    The revised Federal Criteria require a final cover system with an 
erosion layer underlain by an infiltration layer comprised of at least 
18 inches of earthen material with a permeability less than or equal to 
any bottom liner system or no greater than 10-5 cm/sec, whichever 
is less. Ohio's final cover design allows for a composite liner 
involving a flexible membrane liner and a geocomposite clay liner in 
lieu of 18 inches of recompacted clay. The geocomposite component of 
the final cover must be demonstrated to have a permeability less than 
or equal to 18 inches of recompacted clay with a permeability of 
10-6 cm/sec, which exceeds the Federal Criteria. The use of an 
alternative final cover design to achieve an equivalent reduction in 
infiltration is allowed pursuant to 40 CFR 258.60(b).
    In addition, the revised Federal Criteria require unfiltered 
groundwater samples to be used in laboratory analysis. Currently, Ohio 
regulations require sampling and analysis procedures which ensure 
monitoring results that provide an ``accurate representation'' of 
groundwater quality. This requirement can be interpreted to require 
unfiltered samples. The USEPA intends to revisit this issue during a 
proposed rulemaking. If the proposed rulemaking upholds the ban on 
field filtering, the State will be required to incorporate the 
provisions of 40 CFR 258.53(b) into its policy regarding groundwater 
sampling and analysis procedures.
    The Ohio program will differ from the revised Federal Criteria with 
respect to the general effective date of the requirements. The planned 
effective date of the currently proposed Ohio regulations, which 
incorporate the Federal Criteria, is April 1994. The rulemaking process 
in Ohio is extensive, involving the widespread circulation of draft 
regulations to all interested parties, public comment periods and 
hearings, and legislative review and approval, a process which takes a 
minimum of 8 to 12 months. The USEPA understands that State law cannot 
be retroactive and feels that an effective date of April 1994 for 
revised State rules incorporating the Federal Criteria will be 
adequate. However, as stated previously, the effective date of the 
revised Federal Criteria remains October 9, 1993, unless a facility 
qualifies for the extension granted to certain small MSWLFs. See 58 FR 
51536 (October 1, 1993). All landfill owners and operators in Ohio were 
notified directly by USEPA that MSWLFs will be regulated under both 
existing State rules as well as the revised Federal Criteria contained 
in 40 CFR part 258 from October 9, 1993, until the date that the 
revised Ohio rules are fully promulgated and effective.
    As previously discussed, the USEPA has a final draft of the 
proposed OEPA regulations. If the OEPA regulations, when fully 
promulgated and effective, remain unchanged from proposed and 
adequately incorporate the revised Federal Criteria listed above, the 
USEPA may approve the Ohio solid waste program.
    The public may submit written comments on USEPA's tentative 
determination until March 1, 1994. The USEPA will consider all public 
comments on its tentative determination that are received during the 
public comment period and during any public hearing, if held. Issues 
raised by those comments will be the basis for a final determination of 
adequacy for Ohio's program. The USEPA will make a final decision on 
whether or not to fully approve Ohio's program by April 29, 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 revised Federal 
Criteria in 40 CFR part 258 independent of any State/Tribal enforcement 
program. As the USEPA explained in the preamble to the final revised 
Federal Criteria, theUSEPA expects that any owner or operator complying 
with the provisions in a State/Tribal program approved by the USEPA 
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 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 7, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-1022 Filed 1-13-94; 8:45 am]
BILLING CODE 6560-50-F