[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14283]


[[Page Unknown]]

[Federal Register: June 13, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-4997-5]

 

Ohio: Final Determination of Adequacy of State Municipal Solid 
Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of full program adequacy for 
Ohio'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 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 a State/Tribal 
Implementation Rule (STIR) that will provide procedures by which the 
USEPA will approve, or partially approve, State/Tribal MSWLF 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 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 rule revisions that would 
facilitate full approval of its solid waste program. The proposed rule 
revisions added definitions and requirements that were no less 
stringent than portions of the revised Federal Criteria. The USEPA 
reviewed Ohio's application and tentatively determined that Ohio's 
existing MSWLF permit program, along with the incorporation of certain 
portions of the revised Federal Criteria, would be adequate to assure 
compliance with the revised Federal Criteria. Ohio successfully 
incorporated the needed portions of the revised Federal Criteria into 
its MSWLF permit program and the revised regulations are now fully 
effective. Review of the finalized Ohio Environmental Protection Agency 
(OEPA) regulations occurred prior to the USEPA's final determination of 
program adequacy. After consideration of all comments received during 
the public comment period, the USEPA is today issuing a final 
determination that the State's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Ohio shall be 
effective on June 13, 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 Federal MSWLF 
Criteria (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 that facilities comply 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 authority to take specific action against any owner or 
operator who fails to comply with an approved MSWLF permit 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 permit program.
    As provided in the revised Federal Criteria, the 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). For certain small landfills that accept less than 100 
tons of waste per day, the Federal landfill criteria were not 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 to obtain a MSWLF 
program adequacy determination. On January 14, 1994, the USEPA 
published a tentative determination of adequacy for all portions of the 
Ohio program. Further background information on the tentative 
determination of adequacy appears in 59 FR 2406 (January 14, 1994).
    The current Ohio regulations, contained in the Ohio Administrative 
Code (OAC-3745-27), are considered equivalent to the revised Federal 
Criteria. In its application, Ohio demonstrated that the State's 
revised permit program would adequately meet all elements of the 
revised Federal Criteria. The USEPA reviewed the finalized OEPA 
regulations prior to making today's final determination of program 
adequacy. The revised Ohio regulations were officially adopted on May 
2, 1994, by the Director of the Ohio Environmental Protection Agency 
(OEPA), and the effective date of the requirements which fully 
incorporate the revised Federal Criteria was June 1, 1994. The USEPA 
recognizes the complexity of the rulemaking process in Ohio, and feels 
that an effective date of June 1, 1994, for revised State rules 
incorporating the Federal Criteria is adequate. The revised OEPA 
regulations apply to all existing units designated by the landfill 
owner or operator, as well as all new units.
    Along with the tentative determination, the USEPA announced the 
availability of the application for public comment and the date of a 
public hearing on the application. A public hearing was held at the 
offices of the Ohio Environmental Protection Agency in Columbus, Ohio, 
on March 1, 1994.

C. Comments

    The USEPA received public comment concerning the tentative 
determination of full program adequacy for Ohio's MSWLF permit program. 
One commenter suggested that the USEPA approve the State's existing 
groundwater sampling and analysis procedures with regard to the field 
filtration requirement currently set forth in 40 CFR 258.53. 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. Because 
this is currently interpreted to require unfiltered samples, the USEPA 
is approving this provision of the State's program. However, the USEPA 
intends to revisit this issue during a proposed rulemaking. If the 
proposed rulemaking upholds the ban on field filtering, the State has 
agreed to continue to incorporate the provisions of 40 CFR 258.53(b) 
into its policy regarding groundwater sampling and analysis procedures.
    One commenter expressed concern about the adequacy of OEPA's MSWLF 
permit program because it lacked provisions against what the commenter 
referred to as ``strategic lawsuits against public participation.'' The 
commenter described such lawsuits as preventing an individual or group 
from communicating their views to the government on public issues. The 
revised Federal Criteria require a State/Tribe to provide for public 
participation in permit issuance and enforcement as required in section 
7004(b) of RCRA. The Ohio MSWLF permit program provides three 
opportunities for public involvement during the permitting process. 
This process is delineated in the Ohio Revised Code(ORC), section 
3734.05(a)(2)(d)-(f). The Ohio MSWLF program further provides a 
verified complaint procedure, delineated in ORC section 3745.08, for 
members of the public who are or will be aggrieved or adversely 
affected by a violation of the Ohio solid waste regulations. In 
addition, members of the public may commence civil action against any 
person, the State, or a political subdivision alleged to be in 
violation of the Ohio regulations by utilizing citizens' suit 
provisions delineated in ORC section 3734.101(A). It is the opinion of 
the USEPA that the provisions detailed above and further explained in 
Ohio's application fulfill the requirements of section 7004(b) of RCRA.
    The same commenter also expressed concern regarding the adequacy of 
various other aspects of the Ohio MSWLF program, such as staff and 
financial resources for effective implementation, organizational 
structure of the OEPA to support the program, and administrative costs 
associated with the MSWLF permitting process. In its application for 
program approval, Ohio described an organizational structure with 
staffing and financial resources that the State feels will be 
appropriate to effectively support the permitting and enforcement 
activities associated with its MSWLF permitting program. The USEPA 
feels that Ohio demonstrated that it will be able to provide adequate 
resources to effectively administer and support its MSWLF permit 
program. Regarding the administrative costs associated with the MSWLF 
permitting process, this issue lies outside the scope of the revised 
Federal Criteria.
    Another commenter expressed concern regarding the proper 
implementation of the location restrictions for wetland areas contained 
in the revised Federal Criteria (40 CFR 258.12) by the Ohio MSWLF 
permit program. The commenter acknowledged that the Ohio regulations 
incorporating the Federal Criteria for wetlands location restrictions 
were adequate, however, concern was expressed regarding implementation 
of this provision in actual practice. The commenter specifically 
referenced a site located in Richland County, Ohio, where a permit is 
under consideration by the OEPA for a proposed landfill which is 
adjacent to the Fowler Woods State Nature Preserve. A portion of the 
proposed site would displace existing wetlands and be located 
immediately adjacent to sensitive wetland areas of the nature preserve 
area. He referred to the application of the wetland restrictions, 
particularly in this situation, as being arbitrary and subject to 
political influence. Another commenter noted that the application of 
the wetland restrictions in this case is inconsistent with the intent 
of the revised Federal Criteria.
    The USEPA agrees with the commenter's opinion that the Ohio 
regulations, as written, incorporate the wetland restrictions 
adequately to ensure compliance with the wetlands restrictions 
contained in the revised Federal Criteria (40 CFR 258.12). In addition, 
the USEPA shares the concern of the commenter that all portions of the 
revised Federal Criteria are implemented appropriately and uniformly in 
actual practice. Since Ohio has properly adopted into regulation the 
location restrictions for wetland areas contained in the revised 
Federal Criteria, the USEPA has no reason to not approve this portion 
of the Ohio MSWLF permit program. However, Ohio has been formally 
advised of the concerns of the commenter as well as USEPA regarding the 
proper implementation of the location restrictions for wetlands.
    Finally, one commenter expressed concern with the practice of 
allowing the applicant for a MSWLF permit to demonstrate compliance 
with the regulations using its own contractors or consultants. The 
commenter noted the absence of independent or State controlled field 
analysis of reports and data to confirm the accuracy of the 
information. The commenter also suggested that the State should choose 
a consultant or contractor to perform the required demonstrations of 
compliance with the regulations for individual MSWLF permit 
applications.
    The USEPA shares the concern of the commenter that all information 
and data submitted to the State which serve to support MSWLF permitting 
decisions be performed properly and accurately. The USEPA is aware of 
the State's practice of extensively reviewing all submitted information 
and data to ensure compliance with all applicable regulations. It is 
the opinion of the USEPA that the procedures outlined in the Ohio 
application for adequacy determination will support the effective 
implementation of the revised Federal Criteria. The issue of requiring 
independent or State chosen contractors and consultants to provide data 
and information to support permitting decisions lies beyond the scope 
of the revised Federal Criteria.

D. Decision

    After reviewing the public comment, I conclude that Ohio's 
application for adequacy determination meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Ohio is 
granted a determination of adequacy for all portions of its MSWLF 
permit program.
    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 independent of any State/Tribal enforcement program. As the 
USEPA explained in the preamble to the final revised Federal Criteria, 
the USEPA 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).
    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 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 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 sections 
2002, 4005, and 4010(c) of the Solid Waste Disposal Act, as amended; 
42 U.S.C. 6912, 6945, 6949a(c).

    Dated: June 3, 1994.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 94-14283 Filed 6-10-94; 8:45 am]
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