[Federal Register Volume 60, Number 148 (Wednesday, August 2, 1995)]
[Notices]
[Pages 39385-39387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19002]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5270-4]
Maryland: Final Determination of Adequacy of the State's
Municipal Solid Waste Landfill Permitting Program
AGENCY: Environmental Protection Agency (Region III).
ACTION: Notice of Final Determination of Partial Program Adequacy for
the State of Maryland's Application.
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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 state/tribal areas
with approved permit programs can use the site-specific flexibility
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 will apply to all permitted and
unpermitted MSWLF facilities.
The State of Maryland, through the Maryland Department of the
Environment (MDE), applied for a determination of adequacy under
section 4005 of RCRA. EPA has reviewed Maryland's MSWLF permit program
application and proposed a determination on March 21, 1995, that
Maryland's MSWLF permit program is adequate to ensure compliance with a
major portion of the revised MSWLF Criteria, as described below. EPA is
today issuing a final determination that the State of Maryland's
program is adequate for partial approval.
EFFECTIVE DATE: The determination of adequacy for the State of Maryland
shall be effective immediately.
FOR FURTHER INFORMATION CONTACT: U.S. EPA Region III, 841 Chestnut
Building, Philadelphia, Pennsylvania 19107, Attn: Mr. Andrew Uricheck,
mailcode (3HW50), telephone (215) 597-7936.
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 that incorporate the Federal Criteria under 40 CFR
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, as imposing 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 state/tribal programs are
``adequate'' based on the criteria outlined above.
B. State of Maryland
On August 26, 1993, MDE submitted an application for adequacy
determination for its MSWLF permit program. On March 21, 1995, EPA
published a tentative determination of adequacy for most of the
Maryland program, as described in detail below. Further background on
the tentative determination of adequacy appears at Vol. 60, No. 54
Federal Register 14938-14941, March 21, 1995.
A public comment period began on March 21, 1995, and ended on May
19, 1995. As announced in the notice of tentative determination, a
public hearing was held on May 17, 1995, in Baltimore, MD. Few people
requested the opportunity to speak or offered public comments at the
public hearing.
In the State's application for an adequacy determination, Maryland
documented non-regulatory revisions to many portions of their existing
program which had not fully met the Federal requirements in EPA's 40
CFR Part 258. EPA tentatively determined in the March 21, 1995 Federal
Register that these changes, as described below, allowed Maryland's MSW
landfill permitting program to be eligible for EPA approval as ensuring
compliance with 40 CFR Part 258. Those portions of the Maryland
municipal solid waste landfill permitting program proposed to be
eligible for partial approval are as follows:
Subpart A--General
The existing Maryland requirements fully comply with 40 CFR Section
258.1, Purpose, Scope, and Applicability. MDE permit application
checklists and internal guidance have been revised to fully incorporate
the requirements of Sec. 258.2, Definitions and Sec. 258.3,
Consideration of other Federal laws.
Subpart B--Location Restrictions
1. The existing Maryland requirements fully comply with
Sec. 258.11, Floodplains.
[[Page 39386]]
2. MDE permit application checklists and internal guidance have
been revised to incorporate the requirements of Sec. 258.10, Airport
Safety; Sec. 258.12, Wetlands; Sec. 258.13, Fault areas; Sec. 258.14,
Seismic Impact Zones; Sec. 258.15, Unstable Areas; and Sec. 258.16,
Closure of Existing Landfill Units.
Subpart C--Operating Criteria
1. The existing Maryland requirements fully comply with:
Sec. 258.20, Hazardous Waste Exclusion; Sec. 258.21, Daily Cover;
Sec. 258.22, Disease Vectors Control; Sec. 258.24, Air Criteria;
Sec. 258.25, Access requirements; and Sec. 258.27, Surface Water
Requirements.
2. MDE permit application checklists and internal guidance have
been revised to incorporate the requirements of: Sec. 258.23, Explosive
Gas Control; Sec. 258.26, Run-On/Run-Off Control Systems; Sec. 258.28,
Liquids Restrictions; and Sec. 258.29, Record Keeping.
Subpart D--Landfill Design
1. MDE permit application checklists and internal guidance have
been revised to incorporate the requirements of the Sec. 258.40 design
criteria. MDE now requires, as a minimum at all new MSW landfills and
expansions to existing landfills, the bottom liner system described in
Sec. 258.40 (b). This consists of a composite liner composed of an
upper synthetic (plastic) component in direct contact with a lower
component at least two feet thick made of compacted soil (clay). MDE
also allows an alternate design that meets the performance standards
established in Sec. 258.40 (a) and (c). MDE requires that conformance
be demonstrated through the use of mathematical modeling, such as the
Hydrologic Evaluation of Landfill Performance Model (HELP) and
Multimedia Exposure Assessment Model (MULTIMED). MDE has, to date,
submitted several alternate liner systems to EPA under the 40 CFR
Sec. 258.40(e) Liner Petition Process, which were subsequently
approved, thereby demonstrating to EPA that this process is
successfully in place. Submittal to EPA for such alternate liner
approvals will no longer be required upon EPA final approval of this
portion of the State's program.
Subpart E--Ground-Water Monitoring and Corrective Action
1. The previously existing Maryland requirements for groundwater
sampling and corrective action were in need of substantial upgrading to
meet the 40 CFR Part 258 requirements. Using existing authorities, MDE
is requiring all current landfill operators to amend their existing
ground-water monitoring plans to meet the requirements of Subpart E in
terms of monitoring frequency and coverage, including the pollution
parameters listed in Appendices I and II of 40 CFR Part 258. For
proposed facilities and changes to existing facilities, MDE has amended
their application forms and checklists to require the preparation and
implementation of a monitoring program which incorporates the complete
EPA requirements (Secs. 258.50 thru 258.55).
2. In the assessment of corrective measures, selection of remedies,
and implementation of corrective actions, MDE will use the EPA
regulations (Secs. 258.56; 258.57; 258.58) to guide their enforcement
actions.
Subpart F--Closure and Post-Closure Care
1. Closure Criteria (Sec. 258.60)--Maryland now requires flexible
membrane caps, where appropriate, in accordance with the EPA
regulations, and is implementing the closure periods required.
C. Public Comments
EPA Region III received the following written and/or verbal public
comments on its tentative determination of full program adequacy
approval of the Maryland MSW landfill permitting program.
The first commenter questioned if revisions made by MDE to their
existing guidances, checklists and procedures to more fully comply with
the Federal requirements, but made before MDE regulations were revised,
were in compliance with the Maryland Administrative Procedure Act
(MAPA). This issue was specifically addressed in a December 15, 1994
letter from MDE to EPA, in response to a question raised by EPA. MDE,
supported by a statement from their Attorney General's Office, and
referencing several specific existing regulations, took the position
that their existing regulations allow them flexibility to expand their
checklists, procedures, and guidances to require additional information
and/or impose additional conditions on persons applying for a landfill
permit in Maryland. In response to the commenter, MDE reiterated this
position to EPA in a letter dated June 26, 1995. Furthermore, MDE has
formally agreed to incorporate these changes in their regulations as
soon as possible, thereby satisfying another concern expressed by this
commenter.
A commenter objected to MDE's commitment to specify a synthetic
membrane final cover whenever the bottom liner permeability is less
than 1x10-5 cm/sec, since this would be far more stringent than the EPA
requirements. We agree that this is more stringent than the minimum EPA
requirements, but the states are always free to adopt requirements more
stringent than the federal requirements. MDE, in a letter dated June
26, 1995, agreed with this commenter, and has revised their checklists
and proposed regulations to conform to the federal criteria requiring a
final cover of no more permeability than the bottom liner. Thus, a
synthetic cap will not be required under all circumstances, but only
when the bottom liner contains a synthetic liner or at specific sites
where the State believes a more impervious cap is needed to protect
groundwater.
This same commenter stated that the MDE checklists for groundwater
monitoring did not allow the owner/operators to do verification
sampling before having to issue a notification of the finding and
beginning assessment sampling, if a statistical increase is found under
detection monitoring. This again is more stringent than the EPA
requirements. MDE, in the June 26, 1995 letter to EPA, agreed with this
statement also, and has revised their permit review checklists to adopt
the federal criteria more exactly.
This same commenter noted that the ASTM standard for a minimum
sampling well diameter is two inches, while the MDE requirement is four
inches. He stated that the installation and operation of a four-inch
diameter well was obviously more expensive than a two-inch well, and
his company has successfully been using two-inch wells. EPA does not
prescribe a minimum well diameter. MDE's response was that state
procedures allow a permittee to request a variance to the four-inch
diameter requirement, and, in fact, they have granted such variances to
the commenter's company in the past.
A commenter also criticized the requirement to analyze groundwater
samples for the extensive parameter lists contained in Appendices I and
II, and the prohibition of field filtering groundwater samples. Both of
these issues are beyond the scope of this determination, as they
address the 40 CFR 258 regulations as issued. This commenter also noted
that his company was working with EPA Headquarters over its concerns on
the field-filtering ban. We encourage this effort as the more
appropriate means to affect a change in the EPA requirements.
A commenter objected to the MDE requirement that four samples be
taken to establish background groundwater quality conditions. EPA
requirements do not establish a specific number of
[[Page 39387]]
samples to be taken, only that the number is appropriate to the
statistical method of analysis chosen. MDE responded in the June 26,
1995 letter to EPA that they agree, and have revised their permit
review checklists to more specifically reference the federal criteria.
As a State's regulations and statutes are amended to comply with
the federal MSWLF landfill regulations, unapproved portions of a
partially approved MSWLF permit program may be approved by the EPA. The
State may submit an amended application to EPA for review and an
adequacy determination will be made using the same criteria as for the
initial application. This adequacy determination will be published in
the Federal Register and will summarize the Agency's decision and the
portion(s) of the State MSWLF permit program affected. It will also
provide a 30-day public comment period. The adequacy determination will
become effective sixty (60) days following publication if no adverse
comments are received. If EPA receives adverse comments on its adequacy
determination, another Federal Register notice will be published either
affirming or reversing the initial decision while responding to the
public comments.
To ensure compliance with all of the revised Federal Criteria and
to obtain full EPA approval, MDE must revise the following aspects of
its permit program. Consequently, these portions of the Maryland
program are not being proposed for approval:
(1) Post-Closure Care Requirements (Sec. 258.61)--MDE must amend
its existing regulations extending the post-closure care period of
closed landfills from a minimum of 5 years to 30 years, with the
flexibility to increase or decrease that period as necessary or
demonstrated. The extension of the period required for financial
assurance will require legislative action. The State must also
specifically require leachate collection and treatment, as well as gas
and groundwater monitoring, as post-closure care requirements. MDE has
committed to make these changes.
(2) Subpart G--Financial Assurance Criteria (Secs. 258.70--
258.74)--Maryland's only existing financial assurance requirements are
limited to the posting of a $5000 per acre closure bond, and even this
requirement exempts, by statute, local governments, who currently
operate most MSW landfills in Maryland. To comply with Federal
requirements, MDE has committed to prepare a major revision to its
regulations, adopting the financial assurance requirements in 40 CFR
part 258 for closure, post-closure care, and corrective action. It is
believed that these revisions will require an act by the Maryland
legislature to revise the statute exempting local governments from
financial assurance requirements. MDE has committed to submit the
required legislation for consideration at the next General Assembly
session.
Maryland has submitted a revised schedule, in a letter to EPA dated
June 26, 1995, for completing the necessary changes to the laws,
regulations, and/or guidance to comply with the remaining 40 CFR part
258 requirements. This schedule commits to revising the remaining
portions of the MDE program not currently proposed for approval and
have them in effect by December 20, 1996. Maryland will submit an
application for full program approval to EPA when these revisions are
effective.
D. Decision
Taking into consideration the public comments received as a result
of our tentative determination, and several revisions made to the MDE
program as a result thereof, we conclude that the State of Maryland's
application for adequacy determination meets all of the statutory and
regulatory requirements established by RCRA. Accordingly, Maryland is
granted a determination of adequacy for partial approval of its
municipal solid waste permit program, for those portions of their
program as described above.
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 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 Maryland's program are currently in
effect as a matter of State 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 does not find it necessary 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 Section
2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended;
42 U.S.C. 6912, 6945 and 6949(a)(c).
Dated: July 25, 1995.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 95-19002 Filed 8-1-95; 8:45 am]
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