[Federal Register Volume 59, Number 131 (Monday, July 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16725]
[[Page Unknown]]
[Federal Register: July 11, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5010-4]
State of Florida; Final Determination of Adequacy of State/Tribal
Municipal Solid Waste Landfill Permit Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of Final Determination of Full Program Adequacy for
State of Florida's Municipal Solid Waste Landfill Permit 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, 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 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.
Florida applied for a determination of adequacy under section 4005
of RCRA. EPA reviewed Florida's application and proposed a
determination that Florida's MSWLF permit program is adequate to ensure
compliance with the revised MSWLF criteria. After consideration of all
comments received, EPA is today issuing a final determination that the
State's program is adequate.
EFFECTIVE DATE: The determination of adequacy for Florida shall be
effective on July 11, 1994.
FOR FURTHER INFORMATION CONTACT: Patricia S. Zweig, Program
Coordinator, Office of Solid Waste, Waste Management Division, U.S.
Environmental Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365.
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 facilities comply with the federal
criteria under 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 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 Florida
On July 20, 1993, Florida submitted an application for adequacy
determination for their municipal solid waste landfill permit program.
On March 2, 1994, EPA published a tentative determination of adequacy
for all portions of Florida's program. Further background on the
tentative determination of adequacy appears at 59 FR 9980-9983 (March
2, 1994).
Along with the tentative determination, EPA announced the
availability of the application for public comment and a public hearing
which was held by EPA--Region IV on April 25, 1994, in Tallahassee,
Florida. The public comment period, which originally ended on April 25,
1994, was extended an additional seven (7) days because of public
interest. Comments were accepted on the tentative determination through
close of business on May 2, 1994.
C. Public Comment
EPA Region IV received written and oral comments during the public
comment period and public hearing on the tentative determination of
adequacy for Florida. In addition to comments supporting EPA's
determination, several issues and concerns were raised, which are
outlined and responded to below.
1. Liner design--Comments received during the public comment period
presented the following issues regarding Florida's liner designs for
municipal solid waste landfills: (1) Florida fails to require adequate
liner design criteria which complies with minimum federal requirements
and that would reduce leaks and improve leak detection capabilities,
(2) Florida's liner designs contemplate the allowance of a double
geomembrane liner without a low permeable clay component, (3) many of
the assumptions that Florida made in their required MuitiMed modelling
efforts were not actually indicative of conditions in Florida or did
not present actual ``worst-case'' conditions, as is required when
states submit alternative liner designs for EPA review, and (4)
Florida's liner design demonstration was based on a point of compliance
nearly 500 feet from the landfill boundary (almost five (5) times the
distance allowed by state law).
EPA was charged with reviewing state municipal solid waste landfill
permitting programs to determine if they meet the standards presently
set forth in the federal criteria for municipal solid waste landfills,
which are found at parts 257 and 258 of Chapter 40 of the Code of
Federal Regulations (40 CFR 257 and 258). Florida's regulations
incorporate ten (10) liner designs to be used in landfills in the
state. Nine (9) of the liner designs are single composite systems which
incorporate--from top to bottom--a leachate collection system, a
flexible synthetic membrane and a layer of compacted soil (the federal
standard liner system is also a composite requiring the same
components, in the same order). The tenth of Florida's designs is a
double liner system, which incorporates--from top to bottom--a leachate
collection system, a flexible synthetic membrane, a second leachate
collection/detection system, a second flexible synthetic membrane and a
layer of compacted soil. The state of Florida has presented information
to satisfactorily demonstrate that each of the liner systems prescribed
in their regulations will meet the federal performance standard.
EPA performed an extensive review of Florida's liner requirements
and found them to be comparable to the federal criteria at 40 CFR part
258. In addition, EPA Region IV retained an independent contractor to
evaluate Florida's liner systems and conferred with an EPA landfill
liner expert. After thorough review of all submitted information, the
contractor also found Florida's liner systems to be comparable to the
federal criteria.
EPA's expert was called upon in the matter of Florida's assumption
of 1 cm\2\/acre defect density in the flexible membrane portion(s) of
their liner system. According to the EPA expert, with appropriate
quality assurance/quality control (QA/QC) during installation of the
flexible membranes, the referenced defect density is achievable and has
been extensively documented. The federal criteria at 40 CFR part 258
contain no specific QA/QC provisions. It is assumed that QA/QC will be
ensured prior to disposal of wastes in landfill units. As Florida's QA/
QC requirements are quite extensive and as it is the state alternative
liner designs and not QA/QC that is being evaluated for comparability,
it is appropriate to assume that Florida will ensure that QA/QC
requirements are met during installation of municipal solid waste
landfill liner systems in their state.
Regarding the distance that Florida used for the point of
compliance in their modelling, states must demonstrate to EPA that
proposed alternatives meet federal performance standards. The federal
performance standard for liner designs is that maximum concentration
limits (MCLs) for listed constituents not be exceeded in the uppermost
aquifer at the point of compliance, which must be on the landfill
owner/operator's property and within 150 meters (approximately 500 feet
of the landfill unit boundary). Although Florida requires that MCLs not
be exceeded at a maximum distance of 100 feet (which is more
restrictive than the federal criteria), utilization of the 500 foot
distance is appropriate for Florida's demonstration that their
requirements meet the federal performance standards.
2. Authority for and implications of approving alternative liner
designs in Florida--Comments were received during the public comment
period questioning whether EPA is authorized to allow statewide
alternative liner designs and stating that Region IV's decision on
Florida's liner designs will have national implications based on the
presumption that any alternative liner design that EPA approves for
Florida must likewise be approved in other states, ``given Florida's
extreme vulnerability to groundwater pollution.'' EPA Headquarters has
addressed the issue of EPA's authority to approve statewide alternative
liner designs for municipal solid waste landfills. After review of 40
CFR part 258, the preamble to part 258 and EPA Headquarters training
materials on the implementation of part 258, EPA Headquarters prepared
a memorandum which concluded that the flexibility afforded to an
approved State/Tribe allows the application of an alternative liner
design on a State/Tribal-wide basis so long as that design meets the
performance standard in all locations throughout the State/Tribe.
Regarding the presumption that alternatives approved for Florida
will have to be approved for other states, the State/Tribal adequacy
review process requires EPA to evaluate each state's municipal solid
waste landfill permit program based on the specifics of individual
state requirements. Proposed alternatives to any of the federal
standards are only to be accepted if the state demonstrates that the
alternative(s) would meet federal performance standards. States
proposing alternative liner designs are required to present data from
analysis via the MultiMed fate and transport model, which requires
information that can only be expressed based on particular state
conditions (eg., precipitation, hydrologic conditions, etc.). EPA's
decision to approve or disapprove a state's alternative liner design
weighs heavily on the results of this state-specific modelling.
Therefore, approval of an alternative liner design in one state would
not automatically make the same liner approvable in another state.
3. Groundwater/Drinking Water--Comments received during the public
comment period presented the following concerns regarding the effects
of municipal solid waste landfills on groundwater and drinking water in
the State of Florida: (1) Florida's present municipal solid waste
landfill permit program fails to adequately protect high quality
groundwater and the State should prohibit landfills from being located
in sensitive areas, such as above underground sources of drinking
water, and (2) there is the possibility of leachate discharges from
municipal solid waste landfills contaminating drinking water wells.
The federal criteria require that groundwater be monitored for
constituents at a distance no more than 150 meters (approximately 500
feet) from the landfill unit boundary or at the landfill facility
property boundary, whichever is less. The point at which groundwater is
monitored is to be chosen considering several factors, one of which is
whether the groundwater is used for drinking water. Florida's program
meets these standards. Florida has made revisions to their requirements
to include all of the contaminants for which the federal standards
require monitoring. Florida also requires periodic sampling of leachate
generated by the landfill to determine which contaminants would be of
concern in the event of a release to the subsurface. This analysis is
not required by the federal criteria. Further, as previously mentioned,
Florida requires monitoring of groundwater and corrective action if
groundwater is found to be contaminated at a distance not to exceed 100
feet from the landfill unit boundary or at the landfill facility
property boundary, whichever is less. Again, Florida's 100 foot
distance is more stringent than the federal criteria.
Regarding landfills being sited in the vicinity of drinking water
intakes, the federal criteria for locating municipal solid waste
landfills are very general and include restrictions (but not
necessarily prohibitions) to locating municipal solid waste landfills
in floodplains, wetlands, fault areas, seismic impact zones, unstable
areas and areas in close vicinity to airports. The State of Florida's
regulations have been deemed adequate in that they meet the minimum
federal requirements. The federal criteria at 40 CFR part 258 do not
address drinking water intakes with respect to locating landfills.
Further, EPA cannot require Florida to adopt more stringent
requirements to receive approval of their program.
4. Health/Risk Assessment--Comments were received during the public
comment period presenting the concern that Florida's municipal solid
waste landfill permit program fails to adequately assess the adverse
impact on human health resulting from exposure to landfill leachate in
drinking water. It was suggested that Florida be required to evaluate
human health effects from chronic exposure to contaminants released
from municipal solid waste.
Addressing this issue was beyond the scope of EPA's review of
Florida's municipal solid waste landfill permitting program. However,
the types of complex health studies that are referenced are generally
conducted as research projects by organizations and health scientists
trained in this field. Such work is ongoing in federally-funded
laboratories, universities and other research organizations. On
occasion, these studies are conducted in community populations that are
known to have been exposed to environmental contaminants over an
extended period of time and that claim to have a high level of health
problems believed to be associated with the contamination. With the
multiple stresses and health problems that typically exist in a
community, it is extremely difficult to prove a causal association with
a specific environmental exposure. Such health studies are complex,
difficult to interpret and often inconclusive. Therefore, a requirement
for health evaluations are not typically included, per se, in
regulatory permit programs but rather these programs use toxicity and
risk assessment information to develop the technical permit
requirements that would be health protective. Florida's municipal solid
waste landfill program was developed in a manner which satisfactorily
meets the above requirements.
5. Public Participation--Comments were received during the public
comment period petitioning for ``corrective action to redress
inadequate public participation in development of Florida's Solid Waste
Management Plan.''
Under EPA's rules for public participation, a state, in its
development of rules for a Subtitle D program, has the option of
following the requirements of the state's administrative procedures
act, if one exists. Florida does have an administrative procedures act
and the State complied with its requirements in the rulemaking process.
Accordingly, Florida has complied with EPA's rules for public
participation. In addition, EPA has provided public participation
opportunities in its review of whether the Florida program is adequate
when compared to the criteria of 40 CFR Part 258.
6. Environmental Justice--Comments were received during the public
comment period suggesting that there should be an evaluation of the
environmental justice implications of Florida's municipal solid waste
landfill permitting rules prior to approval of Florida's program. There
is concern that (1) Florida's program was ``developed with grossly
inadequate provisions for participation by persons most threatened by
toxic pollution of their water supplies'' and (2) Florida's present
program fails to provide equal protection to people obtaining drinking
water from private wells (low-income communities were specifically
referenced).
Review of Florida's practices with respect to environmental justice
was beyond the scope of this adequacy determination. In an effort to
address questions of environmental justice, EPA--Region IV established
the Office of Environmental Justice in 1993. In March 1994, President
Clinton issued an Executive Order that is designed to focus federal
attention on the environmental and human health conditions in minority
communities. EPA's primary objectives with respect to environmental
justice are: (a) ensure that all EPA Region IV environmental programs
do not adversely impact minority populations and persons living at or
below the poverty level, (b) address complaints from communities
regarding subjection to a disproportionate burden of the pollution
generated by industry and municipalities and (c) provide for outreach
programs that will bring minority communities, environmental groups,
and government together on relevant environmental issues. Guidelines
for implementing these objectives and the requirements of the Executive
Order within EPA programs are presently being developed at the Regional
and Headquarters levels.
7. Mandated Recycling--Comments were received during the public
comment period suggesting that Florida be required to mandate
separation of recyclables and toxic contaminants from municipal solid
waste prior to disposal in landfills. The federal operating criteria
for municipal solid waste landfills include procedures for excluding
the receipt of regulated hazardous waste, which require implementation
of ``a program at the facility for detecting and preventing the
disposal of regulated hazardous wastes and polychlorinated biphenyls
(PCB) wastes''. The state's program must incorporate, at a minimum:
random inspections of incoming loads, records of inspections, training
facility personnel to recognize prohibited wastes and notification of
the proper authorities if a regulated hazardous waste or PCB is
discovered at the facility. Florida's program meets the federal
requirements for exclusion of regulated hazardous substances in
municipal solid waste landfills. However, there presently are no
federal regulations which mandate recycling. Therefore, requiring
separation of recyclables from municipal solid waste streams prior to
disposal is a decision which must be made on the state and/or local
level.
The State of Florida's rules for municipal solid waste landfills
are not enforceable at municipal solid waste landfills located on
Indian Lands in the State of Florida.
D. Decision
After reviewing the public comments, I conclude that Florida's
application for adequacy determination meets all of the statutory and
regulatory requirements established by RCRA. Accordingly, Florida is
granted a determination of adequacy for all portions of its municipal
solid waste permit program.
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).
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 the State's/Tribe's program are already
in effect as a matter of State/Tribal 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 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 rule 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 rule, 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, 6949a(c).
Dated: June 30, 1994.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 94-16725 Filed 7-8-94; 8:45 am]
BILLING CODE 6560-50-P
