[Federal Register Volume 59, Number 71 (Wednesday, April 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8873]


[[Page Unknown]]

[Federal Register: April 13, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4862-8]

 

Missouri; Final Program Determination of Full Adequacy of State/
Tribal Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of full program adequacy for 
Missouri'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. EPA intends to approve adequate State/Tribal MSWLF 
permit programs as applications are submitted. Thus, these 
determinations will be made based on the statutory authorities and 
requirements. In addition, State/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 40 CFR part 258. To the 
extent the State/Tribal permit program allows such flexibility, 40 CFR 
part 258 will apply to all permitted and unpermitted MSWLF facilities.
    Missouri applied for a determination of adequacy under section 4005 
of RCRA. EPA reviewed Missouri's application and proposed a 
determination that Missouri's MSWLF permit program is adequate to 
ensure compliance with 40 CFR part 258. After consideration of all 
comments received, EPA is today issuing a final determination that 
Missouri's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Missouri shall be 
effective on April 13, 1994.

FOR FURTHER INFORMATION CONTACT: Althea M. Moses, 726 Minnesota Avenue, 
Mail Code: WSTM/RCRA/STPG, Kansas City, Kansas, 64105; telephone: (913) 
551-7649.

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 40 CFR 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.
    The EPA intends to approve State/Tribal MSWLF permit programs prior 
to the promulgation of the STIR. EPA interprets the requirements for 
States or Tribes to develop ``adequate'' programs for permit 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 40 CFR part 258. 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 the evaluation when it 
proposes the STIR. 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.

B. State of Missouri

    On September 17, 1993, Missouri submitted an application for 
adequacy determination for Missouri's municipal solid waste landfill 
permit program. On November 19, 1993, EPA published a tentative 
determination of adequacy for all portions of Missouri's program. 
Further background on the tentative determination of adequacy appears 
at 58 FR 61090 (November 19, 1993).
    Along with the tentative determination, EPA announced the 
availability of the application for public comment and the date of a 
public hearing on the application. The public hearing was held on 
January 4, 1994. Additionally, Missouri Department of Natural Resources 
(MDNR), Solid Waste Program provided a public availability session 
immediately following that public hearing to discuss issues relating to 
specific sites and enforcement actions.
    The EPA received the following comments on its tentative 
determination of full program adequacy for Missouri's MSWLF permit 
program. Several comments not directly relating to the program adequacy 
tentative determination, e.g., those relating to a specific facility 
and enforcement action by MDNR, were deferred to MDNR's public 
availability session that followed the public hearing. EPA's response 
to the comments relating to the tentative determination follows each 
comment below:
    One commenter asked if the STIR had been finalized.
    EPA response: EPA is in the process of proposing a State/Tribal 
Implementation Rule that will provide procedures by which the EPA will 
approve, or partially approve, State/Tribal landfill permit programs. 
The STIR is currently used as a guidance document by states, tribes and 
the EPA regions in interpreting and complying with the requirements of 
40 CFR part 258.
    One commenter asked how changes in the federal regulations will 
impact an approved state.
    EPA response: The states will be provided a mechanism and time 
frames for upgrading their programs to comply with federal regulations.
    Another commenter asked how changes in an approved state's 
regulations will impact the state's approval.
    EPA response: A state that changes its regulations and becomes more 
stringent is required under the Memorandum or Agreement that is part of 
the application, to keep EPA's regional office informed. A state that 
enacts less stringent requirements may endanger its approval or partial 
approval.
    One commenter asked if EPA provides funding to the state under 
subtitle D.
    EPA response: EPA provides funding for certain training and 
demonstration grants. However, these funds may not be expended for 
staff salaries or costs to operate the state agency's basic permit 
program.
    One commenter asserted that the state has traditionally been 
responsive to the environmental needs under the regulations and has 
been in the forefront as far as staying in step with technology. For 
example, liquids and hazardous wastes were banned from Missouri solid 
waste landfills before it became a federal requirement and therefore 
the contaminant levels in leachate produced by Missouri landfills are 
less than in other states.
    EPA response: EPA is aware that Missouri imposed this requirement 
before it was required by the federal regulations. EPA's approval of 
MDNR's program is not intended to prevent the state from taking 
advantage of technological advancements or imposing more stringent 
requirements.
    One commenter asked, with regard to the MDNR inspection and 
enforcement program, when offenses are committed over and over again 
for a particular facility why the offender is given repeated chances to 
comply and not considered an habitual violator.
    EPA response: EPA deferred this response to the MDNR staff at the 
hearing, who stated that under the state of Missouri's rules a landfill 
operator must have some sort of formal enforcement action, e.g., 
abatement order or court order, taken against it before they would be 
classified an habitual violator. Additionally, EPA responded that the 
application by the state described the requisite elements of an 
inspection and compliance program that are required for state program 
approval.
    One commenter asked what sort of activity warrants formal 
enforcement action.
    EPA response: EPA deferred this response to MDNR staff who were 
present at the public hearing, who stated that when an owner/operator 
has significant ongoing violations which it refuses to address at the 
site, it is at this point that formal enforcement action begins.
    One commenter asked what is industrial waste under the regulations.
    EPA response: As defined in 40 CFR 258.2, Definitions, ``Industrial 
solid waste means solid waste generated by manufacturing or industrial 
processes that is not a hazardous waste regulated under subtitle C of 
RCRA.'' The MDNR definition of solid waste as written in the 1993 
revision of RSMo 260.200(25) includes industrial waste. RSMo 
260.200(25) states, ```Solid Waste', garbage, refuse and other 
discarded materials including, but not limited to, solid and semisolid 
waste materials resulting from industrial, commercial, agricultural, 
governmental, and domestic activities, but does not include hazardous 
waste as defined in Secs. 260.30 to 260.432, recovered materials, 
overburden, rock, tailings, matte, slag or other waste material 
resulting from mining milling or smelting;'' EPA finds that these 
definitions as they categorize industrial waste are consistent with 
each other.
    One commenter concerned about the integrity of ground-water testing 
asked whether EPA requires that ground water testing be done by MDNR or 
by independent laboratories.
    EPA response: The regulations at 40 CFR Part 258.53, Ground-water 
sampling and analysis requirements, place the responsibility of ground-
water sampling on the landfill owner or operator. Samples are generally 
analyzed by independent laboratories. The landfill owner or operator 
must place detailed information in the operating record on the sampling 
and analysis plan. This information must include procedures and 
techniques for: (1) Sample collection; (2) Sample preservation and 
shipment; (3) Analytical procedures; (4) Chain of custody; and (5) 
Quality assurance and quality control. This procedure ensures the 
integrity of the sampling and analysis process. MDNR requires that 
landfills either perform their own sampling or contract with a third 
party to sample all monitoring wells for a list of constituents that 
includes all the constituents required by the federal rule, plus six 
additional constituents. The state requirements for sample collection, 
sample preservation and shipment, analytical procedures, chain of 
custody and quality assurance/quality control are identical to the 
federal regulations.
    Several comments were received voicing the concerns about MDNR's 
funding and its ability to operate an effective enforcement program.
    EPA response: EPA deferred this response to MDNR staff at the 
hearing, who stated that they have adequate resources to cover MDNR's 
responsibilities. MDNR added that no state can have an inspector at a 
landfill at all times, but that it conducts quarterly inspections and 
periodic inspections as a result of complaints. EPA responded that 
MDNR's program is viewed as adequate.
    One commenter questioned if 60 mil. thickness was the minimum 
requirement for the flexible membrane landfill liners and if it was 
adequate for ground water protection.
    EPA response: The regulations at 40 CFR Sec. 258.40 (b) state that 
``* * * the uppermost component of the composite liner must consist of 
a minimum 30-mil flexible membrane liner.'' Also, those regulations 
state that the ``flexible membrane liner components consisting of high 
density polyethylene (HDPE) shall be at least 60 mil. thick.'' Appendix 
E of 40 CFR part 258 states, ``Based on EPA's experience with these 
liner materials, these are the minimum thicknesses necessary to ensure 
adequate liner performance, including being able to withstand the 
stress of construction and to ensure that adequate seams can be made.''
    One commenter asked what MDNR is going to do about enforcing 
leachate treatment requirements.
    EPA response: EPA deferred this response to MDNR staff at the 
hearing, who stated that MDNR conducts quarterly inspections and 
periodic inspections as a result of complaints. EPA considers this an 
adequate enforcement response.
    A commenter asked whether the state has a requirement for the 
number of personnel to work at landfills of a certain size?
    EPA response: EPA deferred this response to MDNR staff at the 
hearing, who stated that Missouri requires that owner/operators of a 
landfill employ a sufficient number of personnel to ensure that the 
landfill will be properly operated in accordance with their approved 
operating plans and will not cause a public nuisance or health hazard. 
The owner/operator is also required to have at least one certified 
solid waste technician. These individuals are provided training by MDNR 
in the proper operation and construction of landfills. The department 
does not require additional personnel based on the amount of waste 
received.
    A commenter asked what constitutes a random inspection by MDNR.
    EPA response: EPA deferred this response to MDNR staff. According 
to MDNR waste received at a landfill should be inspected by an 
individual who has been trained to recognize hazardous and 
polychlorinated biphenyl (PCB) wastes. The loads can be spot-checked, 
e.g., every third truck. This inspection is a supplement to an 
inspection of waste by equipment operators at the working face to 
ensure that hazardous and other prohibited wastes are not deposited at 
any sanitary landfills.
    A commenter asked what are the time frames in which the public 
should be notified of an application or public hearing.
    EPA response: EPA deferred this response to MDNR staff at the 
hearing, who stated that the public is required to be informed by a 
governmental body at least 24 hours in advance of a public meeting 
(section 610.020, RSMo.). The MDNR Solid Waste Management Program 
(SWMP) attempts to inform the public of impending hearings at least 30 
days in advance of any public hearing.
    A commenter stated that she would like to know prior to the public 
hearing what is acceptable in a public hearing on a permit or 
application. She wanted to be informed prior to the hearing whether 
there are certain issues which will not be addressed in the public 
hearing and if there is a certain format in which issues are to be 
addressed.
    EPA response: EPA deferred this response to MDNR staff at the 
public hearing. They stated that at a public hearing on a permit MDNR 
is only allowed to consider comments that relate to the technical 
suitability of a site. The department cannot legally consider adjacent 
property values, traffic impacts, land use compatibility, or other non-
technical considerations. Missouri law is designed to consider these 
concerns at the local level before receipt of an application by the 
department. The department allows citizens to comment on any issue 
related to a landfill permit application. However, because of time 
constraints of a public hearing, the department tries to focus on 
comments that the department has the statutory authority to address.
    A commenter asked how long the public comment period is on a permit 
application.
    EPA response: EPA deferred this response to MDNR staff present at 
the public hearing, who stated that there is not a statutory time frame 
for public comment on a proposed sanitary landfill. The SWMP allows a 
period of at least 30 days and extending the public comment period 
through two weeks from the date of the public hearing. However, 
comments received by the program that have a direct impact on the 
technical review of a project are accepted and considered up to the 
date of a permit decision.
    One commenter recommends that there should be some kind of 
requirement on the distance a landfill may be located from a residence.
    EPA response: EPA deferred this response to MDNR staff present at 
the public hearing, who stated that the department does not have the 
statutory ability to regulate the distance from a landfill to an 
adjacent property owner's building. However, there is a requirement 
that the disposal area of a sanitary landfill cannot be any closer than 
fifty feet (50') from the boundary of the landfill property. 
Additionally, the federal regulations do not contain a buffer zone 
between a disposal area and adjacent residences.
    One commenter asked what citizens who are dissatisfied with the 
operation of a landfill should do.
    EPA response: If there are concerns having to do with the operation 
of the landfill itself, it is appropriate to contact MDNR. EPA added, 
if the issues involve problems off the site, they are generally outside 
the jurisdiction of the department. These are issues which fall under 
the jurisdiction of the local government.
    Two commenters at the public hearing, when asked by MDNR staff at 
the public hearing whether or not they supported approval of Missouri's 
landfill permit program, stated that because the state is better 
equipped than EPA to run a well regulated program, they supported 
approval of MDNR's program. However, the commenters were concerned that 
MDNR be made aware of problems they saw in its enforcement program, and 
improving its program.
    EPA response: EPA believes that the responses of the MDNR staff at 
the public hearing, and the fact that MDNR held a public availability 
session immediately following the hearing, demonstrates MDNR's 
willingness to improve its enforcement and public involvement 
obligations under an approved program. Whatever deficiencies may be 
alleged in enforcement at a particular site, EPA concludes that overall 
MDNR is committed to enforcement at each permitted facility and to 
undertake meaningful public involvement in its permitting.

C. Decision

    After reviewing the public comments, I conclude that Missouri's 
application for adequacy determination meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Missouri 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 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 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 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.
William A. Spratlin,
Acting Regional Administrator.
[FR Doc. 94-8873 Filed 4-12-94; 8:45 am]
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