[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28963]


[[Page Unknown]]

[Federal Register: November 25, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5111-8]

 

North Dakota; Adequacy Determination of the State's Municipal 
Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region VIII).

ACTION: Notice of tentative determination on application of the State 
of North Dakota for full program adequacy determination, public comment 
period, and public hearing.

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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 conditionally exempt 
small quantity generator waste will comply with the revised Federal 
MSWLF Criteria (40 CFR part 258). Section 4005(c)(1)(C) of RCRA 
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 the State/Tribal Implementation Rule 
(STIR) that will allow both States and Tribes to apply for and receive 
approval of a partial permit program. 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. EPA notes that 
regardless of the approval status of a State/Tribe and the permit 
status of any facility, the Federal Criteria will apply to all 
permitted and unpermitted MSWLFs.
    The State of North Dakota applied for a determination of adequacy 
under section 4005 of RCRA. EPA reviewed North Dakota's MSWLF 
application and made a tentative determination that all portions of the 
State's MSWLF permit program are adequate to assure compliance with the 
revised MSWLF Criteria. The State has revised the remainder of its 
permit program to assure complete compliance with the revised Federal 
Criteria and gain full program approval. North Dakota's application for 
full program adequacy is available for public review and comment.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF program, the Region 
has tentatively scheduled a public hearing on this determination. If a 
sufficient number of people express interest in participating in a 
hearing by writing the Region or calling the contact given below within 
30 days of the date of publication of this notice, the Region will hold 
a hearing on the date given in the DATES section. The Region will 
notify all persons who submit comments on this notice if it decides to 
hold the hearing. In addition, anyone who wishes to learn whether the 
hearing will be held may call the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

DATES: All comments on North Dakota's application for a determination 
of adequacy must be received by the close of business on January 12, 
1995. The public hearing is tentatively scheduled for 10 a.m. to 12 
p.m., January 12, 1995, at the North Dakota State Department of Health 
Environmental Training Center, 2639 East Main Avenue, Bismarck, North 
Dakota 58501. Should a public hearing be held, EPA may limit oral 
testimony to five minutes per speaker, depending on the number of 
commenters. Commenters presenting oral testimony must also submit their 
comments in writing by close of business on January 12, 1995. The 
hearing may adjourn earlier than 12 noon if all of the speakers deliver 
their comments before that hour. North Dakota will participate in the 
public hearing held by EPA on this subject.

ADDRESSES: All written comments should be sent to Gerald Allen (8HWM-
WM), Waste Management Branch, U.S. EPA Region VIII, 999 18th Street, 
Suite 500, Denver, Colorado 80202-2466. Copies of North Dakota's 
application for partial adequacy determination are available from 8 
a.m. to 5 p.m. during normal working days at the following addresses 
for inspection and copying: North Dakota State Department of Health and 
Consolidated Laboratories, Attn: Martin Schock, Environmental Health 
Section, 1200 Missouri Avenue, Bismarck, North Dakota 58502-5520, phone 
701-328-5170; and U.S. EPA Region VIII, Environmental Information 
Service Center, 999 18th Street, Suite 144, Denver, Colorado 80202-
2466, phone 1-800-227-8917 or 303-293-1603.

FOR FURTHER INFORMATION CONTACT: Gerald Allen (8HWM-WM), Waste 
Management Branch, USEPA Region VIII, 999 18th Street, suite 500, 
Denver, Colorado 80202-2466, Phone 303/293-1496.

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 MSWLFs comply with the Federal 
Criteria. Subtitle D also requires 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 
the 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 portions of 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 
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 North Dakota

    On June 25, 1993, North Dakota submitted an application for partial 
program adequacy determination for the State's MSWLF permit program. On 
October 5, 1993, EPA published a final determination of partial 
adequacy for North Dakota's program. Further background on the final 
partial program determination of adequacy appears at 58 FR 51821 
(October 5, 1993).
    EPA approved the following portions of the State's MSWLF permit 
program:
    1. Location restrictions for airport safety (40 CFR 258.10 (a), 
(c), and (d)), flood plains (40 CFR 258.11), wetlands (40 CFR 258.12), 
fault areas (40 CFR 258.13), seismic impact zones (40 CFR 258.14), and 
unstable areas (40 258.15).
    2. Operating criteria for cover material (40 CFR 258.21), disease 
vector control (40 CFR 258.22), explosive gases control (40 CFR 
258.23(a)), air criteria (40 CFR 258.24), access requirements (40 CFR 
258.25), run-on-run-off control systems (40 CFR 258.26), surface water 
(40 CFR 258.27), and liquids restrictions (40 CFR 258.28).
    3. Design Criteria requirement for composite liners (40 CFR 
258.40(b)).
    4. Ground-water monitoring for applicability and duration of 
monitoring (40 CFR 258.50 (a) and (e)); ground-water monitoring systems 
including casing, number, depth, and spacing of wells (40 CFR 258.51 
(c) and (d)); and ground-water sampling and analysis including 
documentation procedures, frequency, and ground-water elevation 
measurements (40 CFR 258.53 (a), (c), and (d)).
    5. Closure and post-closure care requirements including final cover 
design (40 CFR 258.60 (a) and (b)), final cover description (40 CFR 
258.60(c)(1)), waste inventory and schedule (40 CFR 258.60(c) (3) and 
(4)), beginning and completion of closure (40 CFR 258.60 (f) through 
(j), post-closure care period (40 CFR 258.61 (a) and (b)), and post-
closure plan and land use (40 CFR 258.61 (c)(1) and (c)(3)).
    6. Financial assurance requirements including applicability (40 CFR 
258.70) and allowable mechanisms (40 CFR 258.74).
    EPA did not approve the following portions of the State's MSWLF 
permit program:
    1. North Dakota will revise its regulation and add a ``FAA 
notification'' requirement to comply with Part 258.10(b) (airport 
safety).
    2. North Dakota will revise its regulations to incorporate the 
Federal operating requirements for the exclusion of hazardous waste (40 
CFR 258.20), explosive gases control including monitoring and 
detection/remediation (40 CFR 258.23 (b) and (c)), and recordkeeping 
(40 CFR 258.29).
    3. North Dakota will revise its regulations to incorporate the 
Federal design criteria relative to protection of ground-water (40 CFR 
258.40 (a), (c), and (d)).
    4. North Dakota will revise its regulations to incorporate the 
Federal ground-water monitoring requirements, including no-migration 
demonstrations, scheduling, and alternative schedules (40 CFR 258.50(b) 
through 258.50(d)); number, depth, and location of wells, and the use 
of multiunit ground-water systems (40 CFR 258.51 (a) and (b)); ground-
water sampling analytical methods (40 CFR 258.53(b)); background and 
statistical procedures (40 CFR 258.53 (e) through (i)); detection 
monitoring (40 CFR 258.54); assessment monitoring (40 CFR 258.55); 
assessment of corrective measures (40 CFR 258.56); selection of remedy 
(40 CFR 258.57); and, implementation of the corrective action program 
(40 CFR 258.58).
    5. North Dakota will revise its regulations to incorporate the 
Federal closure and post-closure care requirements, specifically final 
cover estimate (40 CFR 258.60(c)(2)); State notifications (40 CFR 
258.60 (d) and (e)); post-closure contact (40 CFR 258.61(c)(2)); and 
State notifications (40 CFR 258.61 (d) and (e)).
    6. North Dakota will revise its regulations to incorporate 
financial assurance requirements for closure, post-closure, and 
corrective action (40 CFR 258.71 through 258.73).
    On August 25, 1994, the State of North Dakota submitted an 
application for full program adequacy determination. EPA reviewed North 
Dakota's application and tentatively determined that all portion of the 
State's Subtitle D program will ensure compliance with the revised 
Federal Criteria.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve a State/Tribe's MSWLF program, the Region has 
tentatively scheduled a public hearing on this determination. If a 
sufficient number of people express interest in participating in a 
hearing by writing the Region or calling the contact within 30 days of 
the date of publication of this notice, the Region will hold a hearing 
on January 12, 1995 at the North Dakota Department of Health 
Environmental Training Center, 2639 East Main Avenue, Bismarck, North 
Dakota 58501 at 10:00 a.m.
    At a meeting planned for late December 1994, the North Dakota State 
Health Council is expected to approve changes concerning proposed 
amendments to the North Dakota Administrative Code, Article 33-20, 
Solid Waste Management and Land Protection rules.
    At another meeting planned for mid-April 1995, the North Dakota 
State Health Council is expected to approve changes concerning proposed 
amendments to the North Dakota Administrative Code, Article 33-16, 
Standards for Quality of Ground-water Rules.
    If the State takes the necessary actions to bring the ground-water 
protection (design), ground-water monitoring, and corrective action 
portions of their rules into full compliance with Federal Criteria, EPA 
is proposing full program approval for the State of North Dakota. If 
the State of North Dakota does not take the above actions, EPA will not 
approve their ground-water protection, ground-water monitoring, and 
corrective action requirements, and a partial program approval will be 
issued.
    North Dakota has not asserted jurisdiction over ``Indian Country'' 
in its application for adequacy determination. Accordingly, this 
approval does not extend to lands within ``Indian Country'' in North 
Dakota. Until EPA approves a State or Tribal MSWLF permitting program 
in North Dakota for any part of ``Indian Country,'' as defined in 18 
U.S.C. 1151, the requirements of 40 CFR part 258 will, after October 9, 
1993, automatically apply to that area. Thereafter, the requirements of 
40 CFR part 258 will apply to all owners/operators of MSWLFs located in 
any part of ``Indian Country'' that is not covered by an approved State 
or Tribal MSWLF permitting program.
    EPA will consider all public comments on its tentative 
determination received during the public comment period and during any 
public hearing held. Issues raised by those comments may be the basis 
for a determination of inadequacy for North Dakota's program. EPA will 
make a final decision on whether or not to approve North Dakota's 
program and will give notice of it in the Federal Register. The notice 
will include a summary of the reasons for the final determination and a 
response to all major comments.
    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).
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 economic 
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 of the Solid Waste Disposal Act as amended; 42 
U.S.C. 6912, 6945, and 6949(a).

    Dated: November 14, 1994.
Jack McGraw,
Acting Regional Administrator.
[FR Doc. 94-28963 Filed 11-23-94; 8:45 am]
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