[Federal Register Volume 59, Number 131 (Monday, July 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16725]


[[Page Unknown]]

[Federal Register: July 11, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5010-4]

 

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

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination of Full Program Adequacy for 
State of Florida's Municipal Solid Waste Landfill Permit Program.

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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. 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 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 permit programs can use the site-specific flexibility provided 
by part 258 to the extent the State/Tribal permit program allows such 
flexibility.
    Florida applied for a determination of adequacy under section 4005 
of RCRA. EPA reviewed Florida's application and proposed a 
determination that Florida's MSWLF permit program is adequate to ensure 
compliance with the revised MSWLF criteria. After consideration of all 
comments received, EPA is today issuing a final determination that the 
State's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Florida shall be 
effective on July 11, 1994.

FOR FURTHER INFORMATION CONTACT: Patricia S. Zweig, Program 
Coordinator, Office of Solid Waste, Waste Management Division, U.S. 
Environmental Protection Agency, Region IV, 345 Courtland Street, N.E., 
Atlanta, Georgia 30365.

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 a State/Tribal Implementation Rule 
(STIR). The rule will specify the requirements which State/Tribal 
programs must satisfy to be determined adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of STIR. 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) 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.

B. State of Florida

    On July 20, 1993, Florida submitted an application for adequacy 
determination for their municipal solid waste landfill permit program. 
On March 2, 1994, EPA published a tentative determination of adequacy 
for all portions of Florida's program. Further background on the 
tentative determination of adequacy appears at 59 FR 9980-9983 (March 
2, 1994).
    Along with the tentative determination, EPA announced the 
availability of the application for public comment and a public hearing 
which was held by EPA--Region IV on April 25, 1994, in Tallahassee, 
Florida. The public comment period, which originally ended on April 25, 
1994, was extended an additional seven (7) days because of public 
interest. Comments were accepted on the tentative determination through 
close of business on May 2, 1994.

C. Public Comment

    EPA Region IV received written and oral comments during the public 
comment period and public hearing on the tentative determination of 
adequacy for Florida. In addition to comments supporting EPA's 
determination, several issues and concerns were raised, which are 
outlined and responded to below.
    1. Liner design--Comments received during the public comment period 
presented the following issues regarding Florida's liner designs for 
municipal solid waste landfills: (1) Florida fails to require adequate 
liner design criteria which complies with minimum federal requirements 
and that would reduce leaks and improve leak detection capabilities, 
(2) Florida's liner designs contemplate the allowance of a double 
geomembrane liner without a low permeable clay component, (3) many of 
the assumptions that Florida made in their required MuitiMed modelling 
efforts were not actually indicative of conditions in Florida or did 
not present actual ``worst-case'' conditions, as is required when 
states submit alternative liner designs for EPA review, and (4) 
Florida's liner design demonstration was based on a point of compliance 
nearly 500 feet from the landfill boundary (almost five (5) times the 
distance allowed by state law).
    EPA was charged with reviewing state municipal solid waste landfill 
permitting programs to determine if they meet the standards presently 
set forth in the federal criteria for municipal solid waste landfills, 
which are found at parts 257 and 258 of Chapter 40 of the Code of 
Federal Regulations (40 CFR 257 and 258). Florida's regulations 
incorporate ten (10) liner designs to be used in landfills in the 
state. Nine (9) of the liner designs are single composite systems which 
incorporate--from top to bottom--a leachate collection system, a 
flexible synthetic membrane and a layer of compacted soil (the federal 
standard liner system is also a composite requiring the same 
components, in the same order). The tenth of Florida's designs is a 
double liner system, which incorporates--from top to bottom--a leachate 
collection system, a flexible synthetic membrane, a second leachate 
collection/detection system, a second flexible synthetic membrane and a 
layer of compacted soil. The state of Florida has presented information 
to satisfactorily demonstrate that each of the liner systems prescribed 
in their regulations will meet the federal performance standard.
    EPA performed an extensive review of Florida's liner requirements 
and found them to be comparable to the federal criteria at 40 CFR part 
258. In addition, EPA Region IV retained an independent contractor to 
evaluate Florida's liner systems and conferred with an EPA landfill 
liner expert. After thorough review of all submitted information, the 
contractor also found Florida's liner systems to be comparable to the 
federal criteria.
    EPA's expert was called upon in the matter of Florida's assumption 
of 1 cm\2\/acre defect density in the flexible membrane portion(s) of 
their liner system. According to the EPA expert, with appropriate 
quality assurance/quality control (QA/QC) during installation of the 
flexible membranes, the referenced defect density is achievable and has 
been extensively documented. The federal criteria at 40 CFR part 258 
contain no specific QA/QC provisions. It is assumed that QA/QC will be 
ensured prior to disposal of wastes in landfill units. As Florida's QA/
QC requirements are quite extensive and as it is the state alternative 
liner designs and not QA/QC that is being evaluated for comparability, 
it is appropriate to assume that Florida will ensure that QA/QC 
requirements are met during installation of municipal solid waste 
landfill liner systems in their state.
    Regarding the distance that Florida used for the point of 
compliance in their modelling, states must demonstrate to EPA that 
proposed alternatives meet federal performance standards. The federal 
performance standard for liner designs is that maximum concentration 
limits (MCLs) for listed constituents not be exceeded in the uppermost 
aquifer at the point of compliance, which must be on the landfill 
owner/operator's property and within 150 meters (approximately 500 feet 
of the landfill unit boundary). Although Florida requires that MCLs not 
be exceeded at a maximum distance of 100 feet (which is more 
restrictive than the federal criteria), utilization of the 500 foot 
distance is appropriate for Florida's demonstration that their 
requirements meet the federal performance standards.
    2. Authority for and implications of approving alternative liner 
designs in Florida--Comments were received during the public comment 
period questioning whether EPA is authorized to allow statewide 
alternative liner designs and stating that Region IV's decision on 
Florida's liner designs will have national implications based on the 
presumption that any alternative liner design that EPA approves for 
Florida must likewise be approved in other states, ``given Florida's 
extreme vulnerability to groundwater pollution.'' EPA Headquarters has 
addressed the issue of EPA's authority to approve statewide alternative 
liner designs for municipal solid waste landfills. After review of 40 
CFR part 258, the preamble to part 258 and EPA Headquarters training 
materials on the implementation of part 258, EPA Headquarters prepared 
a memorandum which concluded that the flexibility afforded to an 
approved State/Tribe allows the application of an alternative liner 
design on a State/Tribal-wide basis so long as that design meets the 
performance standard in all locations throughout the State/Tribe.
    Regarding the presumption that alternatives approved for Florida 
will have to be approved for other states, the State/Tribal adequacy 
review process requires EPA to evaluate each state's municipal solid 
waste landfill permit program based on the specifics of individual 
state requirements. Proposed alternatives to any of the federal 
standards are only to be accepted if the state demonstrates that the 
alternative(s) would meet federal performance standards. States 
proposing alternative liner designs are required to present data from 
analysis via the MultiMed fate and transport model, which requires 
information that can only be expressed based on particular state 
conditions (eg., precipitation, hydrologic conditions, etc.). EPA's 
decision to approve or disapprove a state's alternative liner design 
weighs heavily on the results of this state-specific modelling. 
Therefore, approval of an alternative liner design in one state would 
not automatically make the same liner approvable in another state.
    3. Groundwater/Drinking Water--Comments received during the public 
comment period presented the following concerns regarding the effects 
of municipal solid waste landfills on groundwater and drinking water in 
the State of Florida: (1) Florida's present municipal solid waste 
landfill permit program fails to adequately protect high quality 
groundwater and the State should prohibit landfills from being located 
in sensitive areas, such as above underground sources of drinking 
water, and (2) there is the possibility of leachate discharges from 
municipal solid waste landfills contaminating drinking water wells.
    The federal criteria require that groundwater be monitored for 
constituents at a distance no more than 150 meters (approximately 500 
feet) from the landfill unit boundary or at the landfill facility 
property boundary, whichever is less. The point at which groundwater is 
monitored is to be chosen considering several factors, one of which is 
whether the groundwater is used for drinking water. Florida's program 
meets these standards. Florida has made revisions to their requirements 
to include all of the contaminants for which the federal standards 
require monitoring. Florida also requires periodic sampling of leachate 
generated by the landfill to determine which contaminants would be of 
concern in the event of a release to the subsurface. This analysis is 
not required by the federal criteria. Further, as previously mentioned, 
Florida requires monitoring of groundwater and corrective action if 
groundwater is found to be contaminated at a distance not to exceed 100 
feet from the landfill unit boundary or at the landfill facility 
property boundary, whichever is less. Again, Florida's 100 foot 
distance is more stringent than the federal criteria.
    Regarding landfills being sited in the vicinity of drinking water 
intakes, the federal criteria for locating municipal solid waste 
landfills are very general and include restrictions (but not 
necessarily prohibitions) to locating municipal solid waste landfills 
in floodplains, wetlands, fault areas, seismic impact zones, unstable 
areas and areas in close vicinity to airports. The State of Florida's 
regulations have been deemed adequate in that they meet the minimum 
federal requirements. The federal criteria at 40 CFR part 258 do not 
address drinking water intakes with respect to locating landfills. 
Further, EPA cannot require Florida to adopt more stringent 
requirements to receive approval of their program.
    4. Health/Risk Assessment--Comments were received during the public 
comment period presenting the concern that Florida's municipal solid 
waste landfill permit program fails to adequately assess the adverse 
impact on human health resulting from exposure to landfill leachate in 
drinking water. It was suggested that Florida be required to evaluate 
human health effects from chronic exposure to contaminants released 
from municipal solid waste.
    Addressing this issue was beyond the scope of EPA's review of 
Florida's municipal solid waste landfill permitting program. However, 
the types of complex health studies that are referenced are generally 
conducted as research projects by organizations and health scientists 
trained in this field. Such work is ongoing in federally-funded 
laboratories, universities and other research organizations. On 
occasion, these studies are conducted in community populations that are 
known to have been exposed to environmental contaminants over an 
extended period of time and that claim to have a high level of health 
problems believed to be associated with the contamination. With the 
multiple stresses and health problems that typically exist in a 
community, it is extremely difficult to prove a causal association with 
a specific environmental exposure. Such health studies are complex, 
difficult to interpret and often inconclusive. Therefore, a requirement 
for health evaluations are not typically included, per se, in 
regulatory permit programs but rather these programs use toxicity and 
risk assessment information to develop the technical permit 
requirements that would be health protective. Florida's municipal solid 
waste landfill program was developed in a manner which satisfactorily 
meets the above requirements.
    5. Public Participation--Comments were received during the public 
comment period petitioning for ``corrective action to redress 
inadequate public participation in development of Florida's Solid Waste 
Management Plan.''
    Under EPA's rules for public participation, a state, in its 
development of rules for a Subtitle D program, has the option of 
following the requirements of the state's administrative procedures 
act, if one exists. Florida does have an administrative procedures act 
and the State complied with its requirements in the rulemaking process. 
Accordingly, Florida has complied with EPA's rules for public 
participation. In addition, EPA has provided public participation 
opportunities in its review of whether the Florida program is adequate 
when compared to the criteria of 40 CFR Part 258.
    6. Environmental Justice--Comments were received during the public 
comment period suggesting that there should be an evaluation of the 
environmental justice implications of Florida's municipal solid waste 
landfill permitting rules prior to approval of Florida's program. There 
is concern that (1) Florida's program was ``developed with grossly 
inadequate provisions for participation by persons most threatened by 
toxic pollution of their water supplies'' and (2) Florida's present 
program fails to provide equal protection to people obtaining drinking 
water from private wells (low-income communities were specifically 
referenced).
    Review of Florida's practices with respect to environmental justice 
was beyond the scope of this adequacy determination. In an effort to 
address questions of environmental justice, EPA--Region IV established 
the Office of Environmental Justice in 1993. In March 1994, President 
Clinton issued an Executive Order that is designed to focus federal 
attention on the environmental and human health conditions in minority 
communities. EPA's primary objectives with respect to environmental 
justice are: (a) ensure that all EPA Region IV environmental programs 
do not adversely impact minority populations and persons living at or 
below the poverty level, (b) address complaints from communities 
regarding subjection to a disproportionate burden of the pollution 
generated by industry and municipalities and (c) provide for outreach 
programs that will bring minority communities, environmental groups, 
and government together on relevant environmental issues. Guidelines 
for implementing these objectives and the requirements of the Executive 
Order within EPA programs are presently being developed at the Regional 
and Headquarters levels.
    7. Mandated Recycling--Comments were received during the public 
comment period suggesting that Florida be required to mandate 
separation of recyclables and toxic contaminants from municipal solid 
waste prior to disposal in landfills. The federal operating criteria 
for municipal solid waste landfills include procedures for excluding 
the receipt of regulated hazardous waste, which require implementation 
of ``a program at the facility for detecting and preventing the 
disposal of regulated hazardous wastes and polychlorinated biphenyls 
(PCB) wastes''. The state's program must incorporate, at a minimum: 
random inspections of incoming loads, records of inspections, training 
facility personnel to recognize prohibited wastes and notification of 
the proper authorities if a regulated hazardous waste or PCB is 
discovered at the facility. Florida's program meets the federal 
requirements for exclusion of regulated hazardous substances in 
municipal solid waste landfills. However, there presently are no 
federal regulations which mandate recycling. Therefore, requiring 
separation of recyclables from municipal solid waste streams prior to 
disposal is a decision which must be made on the state and/or local 
level.
    The State of Florida's rules for municipal solid waste landfills 
are not enforceable at municipal solid waste landfills located on 
Indian Lands in the State of Florida.

D. Decision

    After reviewing the public comments, I conclude that Florida's 
application for adequacy determination meets all of the statutory and 
regulatory requirements established by RCRA. Accordingly, Florida 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 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 with which the regulated community must 
begin to comply. 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 rule 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 rule, 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 30, 1994.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 94-16725 Filed 7-8-94; 8:45 am]
BILLING CODE 6560-50-P