[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Notices]
[Pages 34982-34984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16422]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5253-7]


Massachusetts: Final Adequacy Determination of State/Tribal 
Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of full program adequacy for the 
Commonwealth of Massachusetts's Municipal Solid Waste Landfill 
Permitting 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, 42 U.S.C. 6945(c)(1)(B), 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 hazardous waste will comply with the revised 
Federal MSWLF Criteria (40 CFR Part 258). RCRA Section 4005(c)(1)(C), 
42 U.S.C. 6945(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 for interaction between 
the State/Tribe and the owner/operator regarding site-specific permit 
conditions. Only those owners/operators located in State/Tribes with 
approved permit programs can use the site-specific flexibilities 
provided by 40 CFR 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 landfill criteria shall apply to all permitted and 
unpermitted MSWLF facilities.
    The Commonwealth of Massachusetts (Commonwealth or Massachusetts) 
applied for a determination of adequacy under Section 4005(c)(1)(C) of 
RCRA, 42 U.S.C. 6945(c)(1)(C). Region I reviewed Massachusetts's MSWLF 
permit program adequacy application and made a determination that all 
portions of Massachusetts's MSWLF permit program are adequate to assure 
compliance with the revised Federal MSWLF Criteria. After consideration 
of all comments received, EPA is today issuing a final determination 
that the Commonwealth's program is adequate.

EFFECTIVE DATE: The determination of adequacy for the Commonwealth of 
Massachusetts shall be effective on July 5, 1995.

FOR FURTHER INFORMATION CONTACT: EPA Region I, John F. Kennedy Federal 
Building, Boston, MA 02203, Attn: Mr. John F. Hackler, Chief, Solid 
Waste and Geographic Information Section, mail code HER-CAN 6, 
telephone (617) 573-9670.

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 under 40 CFR Part 258. Subtitle D also requires in Section 
4005(c)(1)(C), 42 U.S.C. 6945(c)(1)(C), 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 the STIR. EPA interprets the requirements for 
states or tribes to develop ``adequate'' programs for permits, or other 
forms of prior approval and conditions (for example, license to 
operate) 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. Second, the 
State/Tribe must have the authority to issue a permit or other notice 
of prior approval and conditions 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, 42 U.S.C. 6974(b). Finally, 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 STIR. 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. Commonwealth of Massachusetts

    On August 13, 1993, Region I received Massachusetts's final MSWLF 
permit program application for adequacy determination. On May 5, 1994, 
EPA published in the Federal Register the first tentative determination 
of adequacy for all portions of Massachusetts's program. Further 
background on the tentative determination of adequacy appears at 59 FR 
23202 (May 5, 1994). 

[[Page 34983]]

    Along with the tentative determination, EPA announced the 
availability of the application for public comment. In addition, a 
public hearing was tentatively scheduled. However, because there were 
no requests for a hearing, a hearing was not held.
    In an effort to seek additional public comments, EPA extended the 
public comment period for the tentative determination of adequacy for 
Massachusetts's municipal solid waste landfill permitting program by 
publishing on September 21, 1994, a second tentative determination of 
adequacy for all portions of Massachusetts's program. Further 
background on the tentative determination of adequacy appears at 59 FR 
48427 (September 21, 1994).

C. Public Comment

    EPA received written comments on the tentative determination of 
adequacy for Massachusetts's MSWLF permit program. One commentor 
supported full approval of the Commonwealth's program. The commentor 
stated that the Massachusetts Part 258 program ``satisfies all of the 
federal Criteria, and * * * the Commonwealth has demonstrated its 
ability and willingness to equitably and effectively administer a Part 
258 program.'' In particular, the commentor believes that the 
alternative liner designs authorized by Massachusetts's regulations are 
consistent with the criteria set forth in 40 CFR 258.40(a)(1).
    The same commentor also noted that full approval should be granted 
upon the condition that the Commonwealth's regulations are revised to 
ensure consistency with the 40 CFR Part 258 standards. Specifically, 
the commentor recommended the following amendment to 310 CMR 19.080: 
``No variance will be approved if such approval would result in the 
imposition or recognition of a requirement less stringent than 
comparable federal requirements.''
    EPA agrees that a state program must be implemented consistently 
with the federal requirements of Part 258. However, EPA believes that 
Massachusetts's laws, regulations, and guidance documents will ensure 
that Massachusetts's permit program is as stringent as the federal 
requirements. For example, to account for local site-specific 
conditions, Part 258 allows the Director of an approved state some 
flexibility. The Director may approve the use of alternate daily cover 
material when an owner/operator demonstrates that the alternate meets 
the performance standard of 40 CFR 258.21(b). EPA's tentative adequacy 
determination for the Massachusetts MSWLF program was based on the 
condition that the variance provisions of 310 CMR 19.080 will be 
implemented in accordance with the flexibilities and performance 
standards set forth in the Federal Criteria, and will not result in 
less stringent requirements. The Commonwealth's existing variance 
provision, 310 CMR 19.080(2)(b), requires a demonstration to ensure 
that ``substitute measures will provide the same or greater degree of 
protection to public health, safety and the environment as the 
application of the regulation(s) from which a variance is requested.'' 
EPA believes the requirement that substitute measures provide the same 
or greater degree of protection is consistent with the specific 
flexibilities and performance standards contained in the Federal 
Criteria.
    Another group of commentors expressed their concern that 
Massachusetts's MSWLF program does not go far enough to protect low 
income communities and communities of color against bearing a 
disproportionate burden of environmental harm. While the commentors 
noted that ``the Commonwealth's program does provide an effective 
framework for public participation and for minimizing disproportionate 
siting of landfills,'' they believe ``the siting process would not 
require consideration of background health problems, undue 
environmental burdens, and cumulative environmental risks in 
determining the suitability of future landfill sites.'' Specifically, 
the commentors recommended that the Massachusetts MSWLF program: (1) 
Consider the nature of residential neighborhoods near a proposed site; 
(2) require some consideration of background or disproportionate health 
and environmental burdens in making siting decisions; and (3) increase 
opportunities for public involvement specifically from communities that 
suffer disproportionate or undocumented environmental burdens.
    EPA shares the commentors' concerns that low income communities and 
communities of color be adequately protected in the siting and 
permitting of municipal solid waste landfills. EPA believes, however, 
that the Federal MSWLF Criteria and the guidelines set forth in the 
STIR will serve to adequately protect public health in all communities. 
Massachusetts has demonstrated that its program is no less stringent 
than the criteria for program approval set forth in 40 CFR part 258 and 
in the STIR. In addition, Massachusetts has voluntarily included in the 
narrative portion of its application a commitment to implement its 
MSWLF permitting program in accordance with the principles of 
environmental justice. Although, not specifically required by its 
regulations to consider the nature of residential neighborhoods near a 
proposed site and background or disproportionate health and 
environmental burdens in making siting decisions, the MADEP may always 
consider these factors in the siting process and has historically done 
so in other siting decisions. In addition, the Massachusetts 
Environmental Protection Act (MEPA) requires extensive public review of 
a proposed solid waste site before it can be approved. With regard to 
public involvement, the Massachusetts program provides for public 
notice to boards of health, abutters and the general public, allows for 
public comment from any interested party and requires public hearings.
    The final commentor expressed concern that unlined landfills in 
Massachusetts are not being closed quickly enough. The Federal Criteria 
do not establish a deadline for the closure of unlined landfills. 
Nevertheless, EPA is also concerned that any landfills which may pose a 
threat to public health or the environment be closed as soon as 
practicable. EPA is satisfied that Massachusetts is making satisfactory 
progress in this area.

D. Decision

    After evaluating the Massachusetts program, Region I concludes that 
the Commonwealth of Massachusetts's MSWLF permitting program meets all 
of the statutory and regulatory requirements established by RCRA. 
Accordingly, the Commonwealth of Massachusetts is granted a 
determination of adequacy for all portions of its municipal solid waste 
permit program.
    The Massachusetts MSWLF permitting program is technically 
comparable to, no less stringent than, and equally as effective as the 
revised Federal Criteria. The revised Landfill Assessment and Closure 
Guidance Manual (LAC Manual) is applicable to all existing MSWLFs and 
to all MSWLF permit applications effective July 1, 1993. Massachusetts 
will implement its MSWLF permit program through enforceable permit 
conditions. To ensure compliance with the Federal Criteria, 
Massachusetts has revised its current permit requirements through the 
existing Supplement to Landfill Assessment and Closure Manual. These 
revisions occur in the following areas:
    1. The adoption of the EPA approved method 8260 to test ground 
water;
    2. The addition of the provision on the minimum distance of ground 
water 

[[Page 34984]]
monitoring wells from the landfill boundary;
    3. Compliance with the protocols for testing and analyzing ground 
water for constituents listed in Appendix II to Part 258;
    4. Compliance with the procedures for notifying the Department of 
Environmental Protection about explosive levels of landfill gas;
    5. Compliance with the protocols for conducting inspections to 
detect the presence of hazardous waste and procedures for reporting 
results of such inspections; and
    6. Compliance with the minimum design standard for alternative 
landfill cover.
    The Massachusetts Department of Environmental Protection will 
update the permits of existing municipal solid waste landfills 
scheduled to remain open after the effective date of 40 CFR Part 258, 
to assure compliance with current state requirements. The Commonwealth 
of Massachusetts is not asserting jurisdiction over Tribal land 
recognized by the United States government for the purpose of this 
notice. Tribes recognized by the United States government are also 
required to comply with the terms and conditions found at 40 CFR part 
258.
    Region I notes that Massachusetts's receipt of federal financial 
assistance subjects the Commonwealth to the statutory obligations of 
Title VI of the Civil Rights Act of 1964. EPA Region I is committed to 
working with the Commonwealth to support and ensure compliance with all 
Title VI requirements. Furthermore, the narrative portion of the 
Commonwealth's application expresses Massachusetts's voluntary support 
of environmental justice principles in the management of the Subtitle D 
program. Although this is not a criterion for program approval, Region 
I acknowledges Massachusetts's support of environmental justice 
principles.
    Section 4005(a) of RCRA, 42 U.S.C. 6945(a) provides that citizens 
may use the citizen suit provisions of Section 7002 of RCRA, 42 U.S.C. 
6972 to enforce the Federal MSWLF Criteria set forth 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 the publication in the Federal Register. All of the 
requirements and obligations in the Commonwealth's program are already 
in effect as a matter of state law. EPA's action today does not impose 
any new requirements that the regulated community must begin to comply 
with. 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 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 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 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 and 6949a(c-c).
    Dated: June 25, 1995.
John P. DeVillars,
Regional Administrator.
[FR Doc. 95-16422 Filed 7-3-95; 8:45 am]
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