[Federal Register Volume 62, Number 135 (Tuesday, July 15, 1997)]
[Pages 37907-37909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18406]




Wyoming: Final Determination of Adequacy of the State's Municipal 
Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region VIII).

ACTION: Notice of final determination of full program adequacy for 
Wyoming' 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 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. On January 26, 
1996, EPA proposed a State Implementation Rule (SIR) (40 CFR parts 239 
and 258) that will provide procedures by which EPA will approve, or 
partially approve, state landfill permit programs. The Agency intends 
to approve adequate State MSWLF permit programs as applications are 
submitted. Thus, these approvals are not dependent on final 
promulgation of the SIR. Prior to promulgation of the SIR, adequacy 
determinations will be made based on the statutory authorities and 
requirements. In addition, States may use the draft SIR as an aid in 
interpreting these requirements. The Agency believes that early 
approvals have an important benefit. Approved State permit programs 
provide interaction between the State and the owner/operator regarding 
site-specific permit conditions. Only those owners/operators located in 
States with approved permit programs can use the site-specific 
flexibility provided by Part 258 to the extent the State permit program 
allows such flexibility. EPA Notes that regardless of the approval 
status of a State and the permit status of any facility, the Federal 
Criteria will apply to all permitted and unpermitted MSWLFs.
    The State of Wyoming applied for a determination of adequacy under 
section 4005 of RCRA. EPA reviewed Wyoming' s MSWLF application and 
made a tentative determination that Wyoming's MSWLF permit program is 
adequate to assure compliance with the revised MSWLF Criteria. After 
reviewing all comments received, EPA is today issuing a final 
determination that Wyoming's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Wyoming shall be 
effective on July 15, 1997.

VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466, Phone 


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 MSWLF's 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 proposed a State Implementation Rule (SIR), 
(40 CFR Parts 239 and 258, January 26, 1996). The rule will specify the 
requirements which State programs must satisfy to be determined 
    EPA intends to approve State MSWLF permit programs prior to the 
final promulgation of the SIR. EPA interprets the requirements for 
States to develop ``adequate'' programs for permits or other forms of 
prior approval to impose several minimum requirements. First, each 
State must have enforceable standards for new and existing MSWLFs that 
are technically comparable to EPA's revised MSWLF criteria. Next, the 
State 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 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 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 
    EPA Regions will determine whether a State has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
plans to provide more specific criteria for this evaluation in the 
proposed State Implementation Rule, (SIR). EPA expects States 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 Wyoming

    On November 6, 1992, Wyoming submitted an application for partial 
program adequacy determination for the State's MSWLF permit program. On 
October 8, 1993, EPA published a final determination of partial 
adequacy for Wyoming' s program. Further background on the final 
partial program determination of adequacy appears at 58 FR 52491 
(October 8, 1993). In that action, EPA approved all portions of the 
State's MSWLF permit program except portions of Wyoming's regulations 
incorporating the federal ground water and corrective action 
requirements in 40 CFR 258, subpart E, and the Federal financial annual 
requirement in 40 CFR 258, subpart G.
    On September 30, 1994, the State of Wyoming submitted a revised 
application for partial program adequacy determination. EPA reviewed 
Wyoming' s application and tentatively determined that the following 
portions of the State' s Subtitle D program ensured compliance with the 
Federal Revised Criteria.
    1. Ground-water monitoring and corrective action requirements (40 
CFR 258.50, 258.51, and 258.53 through 258.58).
    2. Financial assurance requirements (40 CFR 258.70 through 258.74).

[[Page 37908]]

    On April 17, 1995, EPA published an additional final determination 
of partial adequacy for Wyoming's program. Further background on this 
final partial program determination of adequacy appears at 60 FR 19251 
(April 17, 1995).
    The October 9, 1991, Final Rules for the MSWLF criteria included an 
exemption for owners and operators of certain small MSWLF units from 
the design (subpart D) and ground-water monitoring and corrective 
action (subpart E) requirements of the Criteria. See 40 CFR 258.1(f). 
To qualify for the exemption, the small landfill had to accept less 
than 20 tons per day, on an average annual basis, exhibit no evidence 
of ground-water contamination, and serve either:
    (i) A community that experiences an annual interruption of at least 
three consecutive months of surface transportation that prevents access 
to a regional waste management facility, or
    (ii) A community that has no practicable waste management 
alternative and the landfill unit is located in an area that annually 
received less than or equal to 25 inches of precitation. In January 
1992, the Sierra Club and the Natural Resources Defense Council (NRDC) 
filed a petition with the U.S. Court of Appeals, District of Columbia 
Circuit, for review of the Subtitle D criteria. The Sierra club and 
NRDC suit alleged, among other things, that EPA acted illegally when it 
exempted these small landfills from the ground-water monitoring 
requirement. On May 7, 1993, the United States Court of Appeals for the 
District of Columbia circuit issued an opinion pertaining to the Sierra 
Club and NRDC challenge to the small landfill exemption. Sierra Club v. 
United States Environmental Protection Agency, 992 F.2d 337 (DC Cir. 
    In effect, the Court noted that while EPA could consider the 
practicable capabilities of facilities in determining the extent or 
kind of ground-water monitoring that a landfill owner/operator must 
conduct, EPA could not justify the complete exemption from ground-water 
monitoring requirements. Thus, the Court vacated the small landfill 
exemption as it pertains to ground-water monitoring, directing the 
Agency to ``* * * revise its rule to require ground-water monitoring at 
all landfills.''
    On September 27, 1993, the EPA Administrator signed the final rule 
extending the effective date of the landfill criteria for certain 
classifications of landfills (proposed rule 58 FR 40568, July 28, 
1993). Thus, for certain small landfills that fit the small landfill 
exemption as defined in 40 CFR 258.1 (I), the Federal Criteria were 
effective on October 9, 1995, rather than on October 9, 1993. The final 
ruling on the effective date extension was published in the Federal 
Register October 1, 1993.
    EPA's final rule of October 1, 1993, as required by the Court, 
removed the October 9, 1991, small landfill exemption whereby owners 
and operators of MSWLF units that meet the qualifications outlined in 
40 CFR 258.1 (f) are no longer exempt from ground-water monitoring 
requirements in 40 CFR 258.50 through 258.55. The final rule does, 
however, provide for an extension for all of the MSWLF criteria 
requirements for a period up to two years for all MSWLF units that meet 
the small landfill exemption in 258.1(f) for ground-water monitoring 
and corrective action as follows: October 9, 1995, for new units; and 
October 9, 1995, through October 9, 1996, for existing units and 
lateral expansions.
    The U.S. Court of Appeals in its decision did not preclude the 
possibility that the Agency could establish separate ground-water 
monitoring standards for the small, dry-remote landfills that take such 
factors as size, location, and climate into account.
    The Agency continued to maintain an open dialogue with all 
interested parties to discuss whether alternative ground-water 
monitoring requirements should be established and continued to accept 
information on alternatives. The Agency investigated this issue and 
could not be certain that practicable alternatives for detecting 
ground-water contamination will exist for MSWLF units that would 
qualify for the exemption under Sec. 258.1(f). The October 9, 1993 
final rule does not link the effective date of ground-water monitoring 
for landfills that qualify for the small/arid and remote exemption to 
promulgation of alternative ground-water monitoring requirements.
    Under Wyoming rules, the State's 59 active MSWLFs, by definition, 
consist of Type I and Type II landfills. Type II landfills, which make 
up the vast majority of landfills in Wyoming, fit the same definition 
as those defined as small/arid and remote landfills under 
Sec. 258.1(f). The State's Type I landfills are those that are not Type 
II landfills. Type II landfills currently comply with State ground-
water monitoring and corrective action rules.
    Since the State's Type II landfills were not required to comply 
with ground-water monitoring and corrective action criteria as defined 
in Sec. 258.1(f) until October 9, 1996, the State did not seek approval 
for this portion of their program. It was the State of Wyoming's 
position that once EPA promulgated final rule revisions to the MSWLF 
criteria in Sec. 258.1(f), Wyoming would revise its application for 
full program approval to bring Type II landfills into compliance with 
part 258 criteria for ground-water monitoring and corrective action.
    On August 10, 1995, the EPA published a proposed rule to solicit 
comments on a two-year delay, until October 9, 1997, of the general 
compliance date of the MSWLF criteria for qualifying small MSWLFs. This 
will allow EPA time to finalize the proposed alternatives. The final 
ruling on the delay of the compliance date was published in the Federal 
Register on October 6, 1995.
    On September 25, 1996, the EPA administrator signed a final rule 
revising the criteria for MSWLFs by re-establishing an exemption from 
ground-water monitoring for owners and operators of certain small 
landfills. This action codifies section 3 of the Land Disposal Program 
Flexibility Act of 1996 (LDPFA, P.C. 104-119, March 26, 1996), which 
provides explicit authority for this ground-water monitoring exemption. 
The LDPFA directed the Administrator of the EPA to provide additional 
flexibility to the Director of Approved States for the owners and 
operators of landfills that receive 20 tons or less of municipal solid 
waste per day. The additional flexibility pertains to alternative 
frequencies of daily cover, frequencies of methane monitoring, 
infiltration layers for final cover, and means for demonstrating 
financial assurance. The additional flexibility will allow the owners 
and operators of small municipal solid waste landfills (MSWLFs) the 
opportunity to reduce the cost of MSWLF operation and be protective of 
human health and the environment. This proposal recognizes, as did 
Congress in enacting LDPFA, that these decisions are best made at the 
State and local level and, therefore, offers this flexibility to 
approved States. It is anticipated that revisions to criteria for 
MSWLFs which would allow additional flexibility to owner and operators 
of small MSWLFs will be published in the FR as a direct final rule in 
May of 1997 unless EPA receives adverse comments.
    On January 17, 1997, the State of Wyoming submitted a letter 
requesting full program adequacy determination based upon the passage 
of the LDPFA and subsequent publication of final rules on September 25, 
1996 in the Federal Register (61 FR 50410, September 25, 1996). EPA has 
reviewed Wyoming's letter and their previous application and has 

[[Page 37909]]

determined that all portions of the State's MSWLF permit program will 
ensure compliance with the revised Federal ground water and corrective 
action requirements in 40 CFR part 258, subpart E. In its application, 
Wyoming demonstrated that the State's permit program adequately meets 
the location restrictions, operating criteria, design criteria, ground-
water monitoring and corrective action requirements, closure and post-
closure care requirements, and financial assurance criteria in the 
revised Federal Criteria. In addition, the State of Wyoming also 
demonstrated that its MSWLF permit program contains specific provisions 
for public participation, compliance monitoring, and enforcement.

C. Public Comment

    The EPA received no public comments on the tentative determination 
of adequacy for Wyoming's MSWLF permit program.

D. Decision

    Since we received no public comments, I conclude that Wyoming's 
application for adequacy determination meets all the statutory and 
regulatory requirements established by RCRA. Accordingly, Wyoming is 
granted a determination of adequacy for all portions of its MSWLF 
permit program.
    In its application for adequacy determination, Wyoming has not 
asserted jurisdiction over ``Indian Country'', as defined in 18 U.S.C. 
1511. Accordingly, this approval does not extend to lands within the 
exterior boundaries of the Wind River Reservation. The requirements of 
40 CFR part 258 apply to all owners/operators of MSWLFs located in 
Indian Country not covered by an approved MSWLF permitting program. 
MSWLF owner/operators seeking flexibility in the application of 40 CFR 
part 258 in Indian Country should contact Region VIII for further 
    In excluding Indian Country from the scope of this approval, EPA is 
not making a determination that the State either has adequate 
jurisdiction or lacks jurisdiction over sources in Indian Country. 
Should the State of Wyoming choose to seek program approval within 
Indian Country, it may do so without prejudice. Before EPA would 
approve the State's program for Indian Country, EPA would have to be 
satisfied that the State has authority, either pursuant to explicit 
Congressional authorization or applicable principles of Federal Indian 
law, to enforce its laws against existing and potential pollution 
sources within the area for which it seeks program approval and that 
such approval would constitute sound administrative practice.
    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 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 program approved by EPA should be considered to be in compliance 
with the Federal Criteria. See 56 FR 50978, 50995 (October 9, 1991).
    This action takes effect on July 15, 1997. EPA 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 thirty 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. EPA's action today does not impose any new 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 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.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this action and other required information to the U.S. 
Senate, the U.S. House of Representatives and the Comptroller General 
of the General Accounting Office prior to publication of this action in 
today's Federal Register. This action is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

    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: June 10, 1997.
Kerrigan Clough,
Acting Regional Administrator.
[FR Doc. 97-18406 Filed 7-14-97; 8:45 am]