[Federal Register Volume 59, Number 62 (Thursday, March 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7706]


[[Page Unknown]]

[Federal Register: March 31, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4856-3]

 

Washington; Final Partial Program Determination of Adequacy of 
State/Tribal Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final partial program determination of adequacy on 
Washington'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 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 governing 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 
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 for 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 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 program 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 
MSWLF permit program that are adequate to ensure compliance with the 
revised MSWLF Criteria. After reviewing all comments received, EPA 
today is granting final approval to Washington's partial program.

EFFECTIVE DATE: The determination of adequacy for Washington shall be 
effective March 31, 1994.

FOR FURTHER INFORMATION CONTACT: Steve Sharp, U.S. EPA, M/S: HW-107, 
1200 Sixth Avenue, Seattle, Washington 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 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 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 approval 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. As provided in the October 9, 1991, 
municipal landfill rule, EPA's national Subtitle D standards took 
effect on October 1993. On October 1, 1993, EPA 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 be effective on April 9, 1994 instead of 
October 9, 1993. Consequently, any portions of the Federal Criteria 
which are not included in an approved State/Tribal program by October 
1993 would apply directly to the owner/operators of large MSWLFs, and 
portions not included by April 9, 1994, would apply directly to owners 
and operators of 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 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, EPA 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 which have been approved.
    EPA will review State/Tribal requirements to determine whether they 
are ``adequate'' under section 4005(c)(1)(C) of RCRA. 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)(1) 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 
submissions of a schedule mandatory in the STIR.

B. State of Washington

    On April 9, 1993, Washington submitted an application to obtain a 
partial program adequacy determination for the State's municipal solid 
waste landfill permit program. 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. On January 13, 1994, EPA published a tentative 
determination of adequacy for Washington's program. Further background 
on the tentative partial program determination of adequacy appears at 
59 FR 1945 (January 13, 1994).
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. EPA also 
tentatively scheduled a public hearing for March 1, 1994, to be held if 
a sufficient number of people expressed interest in participating. 
After no one expressed interest, the Agency canceled the public 
hearing.
    EPA has reviewed Washington's program and determined that all 
parts, with the exceptions listed below, of the State's MSWLF permit 
program will ensure compliance with the revised Federal Criteria.
    In addition, the State of Washington demonstrated that its MSWLF 
permit program contains specific provisions for public participation, 
compliance monitoring, and enforcement. EPA notes that Washington has 
not asserted jurisdiction over Indian Lands and its program is not 
enforceable on these lands.
    EPA is not approving all portion's of Washington's permit program 
today. To ensure compliance with all the Federal Criteria, Washington 
needs to revise the following two portions of its permit program.
    1. Definitions of ``Existing MSWLF unit'' and ``Lateral expansion'' 
(40 CFR 258.2).
    2. Design criteria for non-arid landfills (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. As explained in the notice of 
tentative determination, EPA has reviewed this schedule and concluded 
that it is reasonable.
    EPA received one comment on its tentative determination of adequacy 
of Washington's permit program. The commenter did not dispute the 
adequacy determination and recommended expeditious approval.
    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.

C. Decision

    After reviewing the public comments, I conclude that Washington's 
application for partial program adequacy determination meets all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
Washington is granted a partial program determination of adequacy for 
all areas of its municipal solid waste landfill permit program with the 
exceptions of 40 CFR 258.2 (definitions of ``Existing Unit'' and 
``Lateral expansion'') and 40 CFR 258.40(a)(2) (design criteria for 
non-arid landfills).
    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 the State's/Tribe's program are already 
in effect as a matter of State/Tribal law. EPA's action today does not 
impose any new requirements that the regulated community must begin to 
comply with. Nor do these requirements become enforceable by EPA as 
federal law. Consequently, EPA 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 final 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: March 24, 1994.
Chuck Clarke,
Regional Administrator.
[FR Doc. 94-7706 Filed 3-30-94; 8:45 am]
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