[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4993]


[[Page Unknown]]

[Federal Register: March 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4845-5]

 

Delaware: Final Determination of Adequacy of the State's 
Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region III).

ACTION: Notice of final determination of full program adequacy for the 
State of Delaware's application.

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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.
    The State of Delaware through the Delaware Department of Natural 
Resources and Environmental Control (DNREC) applied for a determination 
of adequacy under section 4005 of RCRA. EPA has reviewed Delaware's 
MSWLF application and proposed a determination on November 15, 1993, 
that Delaware's MSWLF permit program is adequate to ensure compliance 
with the revised MSWLF Criteria. As no comments or opposition to EPA's 
tentative determination were received, EPA is today issuing a final 
determination that the State of Delaware's program is adequate.

EFFECTIVE DATE: The determination of adequacy for the State of Delaware 
shall be effective March 4, 1994.

FOR FURTHER INFORMATION CONTACT: USEPA Region III, 841 Chestnut 
Building, Philadelphia, Pennsylvania 19107, Attn: Mr. Christopher 
Luksic, mailcode (3HW53), telephone (215) 597-2842.

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, as imposing 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.

B. State of Delaware

    On October 7, 1993, Delaware submitted an application for adequacy 
determination for Delaware's MSWLF permit program. On November 15, 
1993, EPA published a tentative determination of adequacy for all 
portions of Delaware's program. Further background on the tentative 
determination of adequacy appears at 58 FR 60199-60201, November 15, 
1993.
    A public comment period began on November 15, 1993, and ended on 
December 27, 1993. In this notice of tentative determination, EPA 
announced that if there was sufficient public interest, a public 
hearing would be held on December 27, 1993. EPA Region III received no 
public comment or request for a public hearing, therefore, a public 
hearing was not held.
    In the State's final application for adequacy determination, 
Delaware proposed revisions to those portions of their existing 
regulations which did not meet the Federal requirements in EPA's 40 CFR 
part 258. EPA tentatively determined in the November 15, 1993 Federal 
Register that once adopted as final regulation, Delaware's proposed 
regulations would ensure compliance with 40 CFR part 258. Delaware has 
made the regulatory changes specified in the November 15, 1993 Federal 
Register, and as listed below; the revised Delaware Regulations 
Governing Solid Waste (DRGSW) became effective on November 24, 1993.

Subpart A--General

    Section 258.2  Definitions--Where appropriate, the State has 
adopted key terms and definitions which will more clearly ensure 
compliance with the 40 CFR part 258 Criteria. These key definitions 
have been included in section 3 of the DRGSW.

Subpart B--Location Restrictions

    Section 258.10  Airport Safety--The State has amended Section 
5.A.3. of the DRGSW to require that the Federal Aviation Administration 
(FAA) and affected airport(s) are notified of a proposed landfill 
located within 5 miles of an airport.
    Section 258.11  Floodplains--Delaware has included the requirements 
and terms of this section in Section 5.A.4.a. of the DRGSW.
    Sections 258.13  Fault Areas, 258.14 Seismic Impact Zones, and 
258.15 Unstable Areas--The State has included the requirements and 
terms of these sections in Sections 5.A.4.h., 5.A.4.i., and 5.A.4.j., 
respectively, of the DRGSW.
    Section 258.16  Closure of Existing MSWLF Units--Delaware has 
certified that no currently operating landfills are sited in areas 
impacting airport safety (Sec. 258.10), floodplains (Sec. 258.11), or 
unstable areas (Sec. 258.15), as defined in these sections.

Subpart C--Operating Criteria

    Section 258.20  Excluding Receipt of Hazardous Waste and 
Sec. 258.26 Run-on/Run-off Control Systems--The State has amended 
Sections 5.I.2.l. and 5.F.2. of the DRGSW, to include the respective 
requirements of these sections.
    Section 258.23  Explosive Gas Control--The State has amended 
Section 5.E.4. of the DRGSW to require the specific response actions of 
this section when critical levels of explosive gas are exceeded.

Subpart D--Design Criteria

    Section 258.40  Design Criteria--The State has adopted EPA's 
performance standard for landfill design as specified in 
Sec. 258.40(a)(1), (c) and (d) by amending Section 5.B.2. of the DRGSW 
to include these requirements.

Subpart E--Groundwater Monitoring and Corrective Action

    Section 258.51  Groundwater Monitoring Systems--The State has 
adopted EPA's relevant point of compliance (150 meters), within which 
the downgradient monitoring wells must be located. Sections 5.G.2.b. 
and 5.G.4.g. of the DRGSW includes this requirement.
    Section 258.53  Groundwater Sampling and Analysis Requirements--The 
State now requires, through amended DRGSW Section 5.G.3.a., that 
unfiltered groundwater samples be obtained except where turbidity 
cannot be controlled through careful well construction, development, 
and sampling. In addition, the State has adopted the data evaluation 
requirements found in subsections (e), (g), (h) and (i) of this 
section; these requirements are found in Section 5.G.4. of the DRGSW.
    Section 258.54  Detection Monitoring--The State has adopted the 
requirements of this section into Sections 5.G.3.b. and 5.G.3.c. of the 
DRGSW, including the requirement that the owner/operators sample 
groundwater at least semi-annually for Appendix I parameters. Based on 
the results of groundwater and leachate monitoring, the State may 
modify the required list of groundwater monitoring parameters. In 
addition, the State has amended its regulations at Section 5.D.4.c. of 
the DRGSW to require leachate sampling with monthly analyses for 
indicator parameters and semi-annual analyses for Appendix II 
constituents.
    Section 258.55  Assessment Monitoring--The State will proceed 
directly from Detection Monitoring to Corrective Measures Assessment.
    Section 258.56  Corrective Measures Assessment--The required list 
of parameters for groundwater monitoring was expanded in the corrective 
measures assessment to include those Appendix II constituents deemed 
appropriate from the leachate monitoring data (See Section 5.G.6. of 
the DRGSW). During the corrective measures process there will be an 
opportunity for public input at the time of permit modification. A 
permit modification is required when corrective measures are deemed 
necessary.
    Section 258.57  Selection of Remedy, and Sec. 258.58 Implementation 
of Corrective Action--The State has adopted into regulation, the 
requirements of these sections into Section 5.G.8. of the DRGSW.

Subpart F--Closure And Post-Closure Care

    Section 258.60  Closure Criteria--The State has amended their 
regulations at Section 5.H.2.b. to require that a geomembrane cover be 
used as part of a capping system where a MSWLF has been constructed 
with a geomembrane liner.

Subpart G--Financial Assurance Criteria

    Section 258.70  Applicability and Effective Date--The State has 
amended their regulations to automatically remove the current financial 
assurance exemption for the Delaware Solid Waste Authority (DSWA), 
which currently manages all of Delaware's municipal solid waste. On 
April 9, 1995, the DSWA will be subject to the Federal financial 
assurance requirements adopted at Section 4.A.6.a. of the DRGSW.
    Section 258.73  Financial Responsibility for Corrective Action--The 
State has adopted into regulation, at Sections 4.A.11.f. and 4.A.11.g. 
of the DRGSW, the requirements of this section.

C. Decision

    Lacking public comment or opposition to EPA's tentative 
determination, I conclude that the State of Delaware's application for 
adequacy determination meets all of the statutory and regulatory 
requirements established by RCRA. Accordingly, Delaware is granted a 
determination of adequacy for all portions of its municipal solid waste 
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/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 Delaware's program are currently in 
effect as a matter of State law. EPA's action today does not impose any 
new requirements with which the regulated community must begin to 
comply, nor do these requirements become enforceable by EPA as federal 
law. Consequently, EPA does not find it necessary to give notice prior 
to making its approval effective.

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 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: February 24, 1994.
William T. Wisniewski,
Acting Regional Administrator.
[FR Doc. 94-4993 Filed 3-3-94; 8:45 am]
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