[Federal Register Volume 60, Number 21 (Wednesday, February 1, 1995)]
[Notices]
[Pages 6088-6091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2437]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5148-1]
Wyoming; Partial Program Adequacy Determination of the State's
Municipal Solid Waste Permit Program
AGENCY: Environmental Protection Agency (Region VIII).
ACTION: Notice of tentative determination on partial program
application of Wyoming for partial 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
[[Page 6089]] 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 Wyoming applied for a partial determination of
adequacy under section 4005 of RCRA. EPA reviewed Wyoming's MSWLF
application and made a tentative determination for those portions of
the State's MSWLF permit program that are adequate to assure compliance
with the revised MSWLF Criteria. These portions are described later in
this notice. The State plans a future revision for the remainder of its
permit program to assure complete compliance with the revised Federal
Criteria and gain full program approval. Wyoming's application for
partial 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 below 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 Wyoming's application for a determination of
adequacy must be received by the close of business on March 13, 1995.
The public hearing is tentatively scheduled for 10:00 a.m. to 12:00
p.m., March 13, 1995, at the Wyoming Department of Environmental
Quality, Herschler Building, 1st Floor Conference room #1299, 122 West
25th Street, Cheyenne, Wyoming 82002. 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 March 13,
1995. The hearing may adjourn earlier than 12 noon if all of the
speakers deliver their comments before that hour. Wyoming will
participate in the public hearing held by EPA on this subject.
ADDRESSES: Copies of Wyoming's application for partial adequacy
determination are available from 8 a.m. to 4:30 p.m. during normal
working days at the following addresses for inspection and copying:
Wyoming Department of Environmental Quality, Attn: Carl Anderson,
Herschler Building, 4th floor, 122 West 25th Street, Cheyenne, Wyoming
82002; and USEPA Region VIII, Environmental Information Service Center,
999 18th Street, suite 144, Denver, Colorado 80202-2466, phone 1-800-
227-8917 or 303-293-1603. All written comments should be sent to Gerald
Allen (8HWM-WM), Waste Management Branch, USEPA Region VIII, 999 18th
Street, suite 500, Denver, Colorado 80202-2466.
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 propose in the STIR to allow partial approvals if:
(1) The Regional Administrator determines that the State/Tribal permit
program largely meets the requirements for ensuring compliance with
part 258; (2) changes to a limited narrow part(s) of the State/Tribal
permit program are needed to meet these requirements; and (3)
provisions not included in the partially approved portions of the
State/Tribal permit program are a clearly identifiable and separable
subset of part 258.
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 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 [[Page 6090]] determination of adequacy appears at 58 FR 52491
(October 8, 1993).
EPA approved the following portions of the State's MSWLF permit
program:
1. Location restrictions for airports, flood plains, wetlands,
fault areas, seismic impact zones, and unstable areas (40 CFR 258.10
through 258.15).
2. Operating criteria for the exclusion of hazardous waste, cover
materials, disease vector control, explosive gases, air criteria,
access requirements, run-on/run-off control systems, surface water
requirements, liquids restrictions, and record keeping requirements (40
CFR 258.20 through 258.29).
3. Design criteria requirements (40 CFR 258.40).
4. Closure and post-closure requirements (40 CFR 258.60 through
258.61).
EPA did not approve the following portions of the State's MSWLF
permit program:
1. Wyoming will revise its regulations to incorporate the Federal
ground-water monitoring and corrective action requirements in 40 CFR
258.50, 258.51, and 258.53 through 258.58.
2. Wyoming will develop new regulations to incorporate the
financial assurance requirements in 40 CFR 258.70 through 258.72 and
258.74. Wyoming will revise its regulations to incorporate the
financial assurance requirements in 40 CFR 258.73.
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 will ensure 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)
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 precipitation.
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. 1993).
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.''
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 Sec. 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 will continue to maintain an open dialogue with all
interested parties to discuss whether alternative ground-water
monitoring requirements should be established and will continue to
accept information on alternatives. At this time, the Agency is
investigating this issue and cannot 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 71 active MSWLF's , 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 are 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 is not seeking approval
for this portion of their program at this time. When EPA promulgates
final revisions to the MSWLF Sec. 258.1(f) criteria and provides enough
latitude for states to tailor these requirements for small, arid
landfills, then the State of Wyoming will need to update their rules.
It is the State of Wyoming's position that when EPA promulgates final
rule revisions to the MSWLF criteria in Sec. 258.1(f), Wyoming will
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.
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 March 13, 1995, at the Wyoming Department of Environmental Quality,
Herschler Building, 1st Floor Conference room 1299, 122 West 25th
Street, Cheyenne, Wyoming 82002 at 10 a.m.
In its application for adequacy determination, Wyoming has not
assertedjurisdiction over Indian Country, as defined in 18 U.S.C. 1511.
[[Page 6091]] Accordingly, this approval does not extend to lands
within Indian Country in Wyoming, including lands within the exterior
boundaries of the Wind River Reservation. Until EPA approves a State or
Tribal MSWLF permitting program in Wyoming for any part of Indian
Country, 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 Wyoming's program. EPA will make
a final decision on whether or not to approve Wyoming'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 12286
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: January 11, 1995.
Jack McGraw,
Acting Regional Administrator.
[FR Doc. 95-2437 Filed 1-31-95; 8:45 am]
BILLING CODE 6560-50-F
