[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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] BILLING CODE 6560-50-F