[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5612]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4848-2]

 

Michigan: Final Partial Program Determination of Adequacy of 
State Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of partial program adequacy for 
Michigan'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 (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 a State/Tribal Implementation Rule (STIR) that will provide 
procedures by which the USEPA will approve, or partially approve, 
State/Tribal landfill permit programs. The Agency intends to approve 
adequate State/Tribal MSWLF permit programs as final 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 States/Tribes with approved permit programs can 
use the site-specific flexibility provided by 40 CFR part 258 to the 
extent the State/Tribal 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 MSWLF Criteria 
will apply to all permitted and unpermitted MSWLF facilities.
    Michigan applied for a partial program determination of adequacy 
under section 4005 of RCRA. The USEPA reviewed Michigan's application 
and made a tentative determination of adequacy for those portions of 
the State's MSWLF permit program that are adequate to ensure compliance 
with the revised Federal MSWLF Criteria. After consideration of all 
comments received, the USEPA is today issuing a final determination for 
those portions of the State's program that are adequate. The State 
plans to revise the remainder of its permit program to ensure complete 
compliance with the revised Federal MSWLF Criteria, and gain full 
program approval.

EFFECTIVE DATE: The determination of adequacy for Michigan shall be 
effective on March 10, 1994.

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 Criteria for 
MSWLFs (40 CFR part 258). Subtitle D of the Resource Conservation and 
Recovery Act (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 
under part 258. 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 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.
    USEPA 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 40 CFR part 258;
    (2) Changes to a limited, narrow part(s) of the State/Tribal 
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 40 CFR part 258.
    The requirements of the STIR, if promulgated, will ensure that any 
mixture of State/Tribal and Federal rules that take effect will be 
fully workable and leave no significant gaps in environmental 
protection. These practical concerns apply to individual partial 
approvals granted prior to the promulgation of the STIR rule. 
Consequently, USEPA reviewed the program approved today and concluded 
that the State/Tribal and the Federal requirements mesh reasonably well 
and leave no significant gaps. 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 that have been approved. Federal rules 
covering any portion of a State/Tribe's program that have not received 
USEPA's approval apply directly to owners and operators.
    As provided in the revised Federal Criteria, USEPA's national 
Subtitle D standards took effect on October 9, 1993. On October 1, 
1993, the 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. 
Consequently, any portions of the revised Federal MSWLF Criteria which 
are not included in a State/Tribal MSWLF program by October 9, 1993, 
would apply directly to owners and operators of large MSWLFs, and 
portions not included by April 9, 1994, would apply directly to owners 
and operators of certain small MSWLFs. 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).
    The USEPA will review State/Tribal requirements to determine 
whether they are ``adequate'' under section 4005(c)(1)(C) of RCRA. 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 USEPA'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 must also 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 that fails to comply with an 
approved MSWLF program.
    The USEPA Regional offices 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 STIR. 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 program. The USEPA is 
requesting States/Tribes seeking partial program approval to provide a 
schedule for the submittal of all remaining portions of their MSWLF 
permit programs. The USEPA notes that it intends to propose to make 
submission of a schedule mandatory in the STIR.

B. State of Michigan

    On October 6, 1993, Michigan submitted an application to obtain a 
partial program adequacy determination for the State's MSWLF permit 
program. On December 22, 1993, the USEPA published a tentative 
determination of partial program adequacy for the Michigan program. 
Further background information on the tentative determination appears 
in 58 FR 67786 (December 22, 1993). In its application, Michigan 
demonstrated that the State's permit program adequately meets the 
general requirements, location restrictions, operating criteria, design 
criteria, groundwater monitoring and corrective action requirements, 
and closure and post-closure care requirements in the revised Federal 
Criteria. The State's existing permit program will ensure full 
compliance with all of the revised Federal Criteria except the 
provisions in 40 CFR 258.53(b) which ban the field-filtering of 
groundwater samples, and financial assurance requirements found in 40 
CFR 258.70.
    Michigan demonstrated that the State's MSWLF permit program has the 
authority to issue permits incorporating the requirements of the 
revised Federal Criteria for all MSWLFs in the State. The USEPA 
determined that Michigan's permit program contains provisions for 
public participation, compliance monitoring, and enforcement.
    Michigan's permitting process includes a procedure for ensuring 
that public comments made during review of MSWLF permit applications 
and corrective action remedy selection are considered. The procedures 
require the Michigan Department of Natural Resources (MDNR) to notify a 
municipality and its residents of the receipt of a permit application 
for a proposed MSWLF facility or plans to select a corrective action 
remedy. The public is notified through a local newspaper of the 
opportunity to request a public hearing on a proposed facility or 
remedy if there is significant interest. In addition, the MDNR ensures 
that all permit and license documents are available for public review 
and comment. Formal notification of a decision is made to a 
municipality with an explanation of the reasons for the decision within 
10 days after the final decision is made.
    Along with the tentative determination, the USEPA announced the 
availability of the application for public comment and a public hearing 
on the application. A 45-day public comment period was held until 
February 4, 1994. In this notice of tentative determination, the USEPA 
announced that a public hearing would be held if a sufficient number of 
people requested a hearing. The Agency received several public comment 
letters in response to the tentative determination. No requests for a 
public hearing were received, therefore, a hearing was not held.

C. Public Comment

    The USEPA received several public comments concerning the tentative 
determination of partial program adequacy for Michigan's MSWLF permit 
program.
    Four commenters requested that USEPA consider and include several 
recommendations in the determination of adequacy for Michigan's MSWLF 
permit program. These recommendations included the following operating 
criteria, design standards, and location restrictions:

    1. Mandatory weight scales at all MSWLFs.
    2. Mandatory primary and secondary liners (double composite) and 
leachate collection systems for all MSWLFs.
    3. Mandatory set-back distances of 1-2 miles from a residential 
drinking water well or inland lake or stream, and 5 miles from a Great 
Lake, including Lake St. Clair, for all new MSWLFs.
    4. Mandatory 50-foot isolation distance from the uppermost aquifer 
for all new MSWLFs.
    The revised Federal Criteria contain minimum requirements for 
municipal solid waste landfills. The USEPA encourages States to 
consider local conditions and circumstances in adopting requirements 
that are equal to or more stringent than the revised Federal Criteria. 
As a result, certain portions of the Michigan MSWLF program are already 
more stringent than the Federal Criteria. However, the USEPA does not 
have the authority to require States to adopt additional requirements 
well beyond the minimum standards set forth in 40 CFR part 258. During 
the MSWLF permitting process in Michigan, opportunities are provided 
for public input into the siting and development of permit conditions 
for all MSWLF sites. The USEPA encourages concerned citizens to 
actively participate in the planning and development of solid waste 
management facilities early in the permitting process. As discussed in 
the previous section, the State's permitting process is designed to 
facilitate the consideration of site-specific comments and suggestions 
(1-4 above) during the early planning stages of MSWLF facilities.
    One commenter suggested that the USEPA should grant full approval 
to the groundwater sampling and analysis portion of Michigan's 
application, because the State allows filtered groundwater samples for 
metals analyses. The revised Federal Criteria require unfiltered 
groundwater samples to be used in laboratory analysis. Currently, 
Michigan requires field-filtering for groundwater samples that are to 
be analyzed for metals unless the Director of MDNR determines field-
filtering is not appropriate. The USEPA intends to revisit this issue 
during a proposed rulemaking. If the USEPA determines the ban should be 
upheld, Michigan will be required to come into compliance with the 
provisions of 40 CFR 258.53(b). In the meantime, the State will not be 
given approval of this requirement.
    One commenter requested that the provisions for the emergency 
disposal of materials posing a threat or nuisance to the public or the 
environment be removed from the Michigan MSWLF permit program. 
Discussions with the State indicated that this provision has not been 
used to date and is intended only for extremely limited situations in 
which the Director of the MDNR is petitioned and must specifically 
grant approval for the activity. The USEPA is satisfied that the 
existence or use of this provision does not undermine the effectiveness 
of Michigan's program.
    One commenter suggested that the reintroduction of leachate back 
into any MSWLF unit, as currently allowable under Michigan rules, be 
prohibited. The USEPA notes that the revised Federal Criteria allow for 
the reintroduction of leachate or gas condensate derived from a MSWLF 
unit in 40 CFR 258.28. The revised Federal Criteria require that MSWLF 
units in which leachate or gas condensate is recirculated must be 
designed with a composite liner and leachate collection system. In 
addition, Michigan rules require that the Director of the MDNR must 
specifically approve a plan for the recirculation of any liquids 
derived from the MSWLF unit in an operating license for the facility.
    Several commenters requested that owners and operators of MSWLFs 
should be required to maintain a perpetual care fund for post-closure 
care and corrective action for as long as the waste poses a risk to the 
environment. Michigan did not apply for approval of financial assurance 
requirements in its application for partial program approval. This 
matter will be addressed when Michigan applies for full program 
approval. Interested parties concerned with financial assurance 
requirements for MSWLFs are encouraged to participate in the upcoming 
legislative or regulatory action currently under consideration by the 
MDNR on this issue.
    As a State/Tribe's regulations and statutes are amended to comply 
with the Federal MSWLF Criteria, unapproved portions of a partially 
approved MSWLF permit program may be approved by the USEPA. The State/
Tribe may submit an amended application 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. This adequacy 
determination will become effective sixty (60) days following 
publication if no adverse comments are received. If USEPA receives 
adverse comments on its adequacy determination, another Federal 
Register notice will be published either affirming or reversing the 
initial decision while responding to public comments.
    To ensure compliance with all of the revised Federal Criteria, 
Michigan needs to adopt the financial assurance requirements of 40 CFR 
258.70. If the Agency upholds the ban on field-filtering, the State 
will be required to come into compliance with the provisions of 40 CFR 
258.53(b).
    Michigan plans to complete any revisions and amendments to its 
MSWLF permit program by October 1995. Michigan began the process of 
revising financial assurance requirements by issuing draft revisions 
for comment on August 11, 1993. Comments on the initial draft have been 
received and a second draft is currently being compiled. To allow the 
State to begin exercising some of the flexibility allowed in States/
Tribes with adequate permit programs, the USEPA is approving those 
portions of Michigan's program that are ready for action today.
    The USEPA cautions Michigan that it currently plans to propose in 
the STIR that all partial approvals will expire in October 1995 for 
States/Tribes that have not received final approval for all provisions 
of 40 CFR part 258 unless the State/Tribe can demonstrate to the 
Regional Administrator that it has sufficient cause for not meeting the 
deadline. If the Regional Administrator believes sufficient cause 
exists, the expiration date may be extended. The extension and new 
expiration date would be published in the Federal Register. Expiration 
of a partial approval would mean that the Federal Criteria would apply, 
and the flexibility provided for approved States/Tribes by the Federal 
Criteria would no longer be available in the State/Tribe. The USEPA 
urges Michigan to work diligently to make the necessary revisions to 
those portions of its permit program that are not being proposed for 
approval today.

D. Decision

    After reviewing the public comments, I conclude that Michigan's 
application for partial program adequacy determination meets all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
Michigan is granted a partial program determination of adequacy for the 
following areas of its municipal solid waste permit program:

    1. General requirements, definitions, and consideration of other 
Federal laws (40 CFR 258.1, 258.2, and 258.3);
    2. Location restrictions for airport safety, floodplains, wetlands, 
fault areas, seismic impact zones, unstable areas, and closure of 
existing units (40 CFR 258.10, 258.11, 258.12, 258.13, 258.14, 258.15, 
and 258.16);
    3. Operating criteria for excluding hazardous waste, daily cover 
material, disease vector control, explosive gases control, air 
criteria, access restrictions, run-on/run-off control systems, surface 
water requirements, liquids restrictions, and recordkeeping 
requirements (40 CFR 258.20, 258.21, 258.22, 258.23, 258.24, 258.25, 
258.26, 258.27, 258.28, and 258.29);
    4. Design criteria (40 CFR 258.40);
    5. Groundwater monitoring applicability, systems, detection 
monitoring, assessment monitoring program, assessment of corrective 
measures, selection of remedy, and implementation requirements (40 CFR 
258.50, 258.51, 258.54, 258.55, 258.56, 258.57, and 258.58); and
    6. Closure and post-closure care requirements (40 CFR 258.60 and 
258.61).
    Section 4005(a) of RCRA provides that citizens may use the citizen 
suit provision of section 7002 of RCRA to enforce the revised Federal 
Criteria independent of any State/Tribal enforcement program. As the 
USEPA explained in the preamble to the revised Federal Criteria, the 
USEPA expects that any owner or operator complying with provisions in 
an approved State/Tribe program should be considered to be in 
compliance with the revised Federal Criteria. See 56 FR 50978, 50995 
(October 9, 1991).
    Today's action takes effect on the date of publication. The USEPA 
believes it has good cause under section 553(d) of the Administrative 
Procedures 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 the approved portions of the State's 
program are already in effect as a matter of State law. The USEPA'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 the USEPA as Federal law. Consequently, the USEPA 
finds that it does not need 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 action, 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: March 3, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-5612 Filed 3-9-94; 8:45 am]
BILLING CODE 6560-50-F