[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