95-19002. Maryland: Final Determination of Adequacy of the State's Municipal Solid Waste Landfill Permitting Program  

  • [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]
    BILLING CODE 6560-50-P
    
    

Document Information

Published:
08/02/1995
Department:
Environmental Protection Agency
Entry Type:
Notice
Action:
Notice of Final Determination of Partial Program Adequacy for the State of Maryland's Application.
Document Number:
95-19002
Dates:
The determination of adequacy for the State of Maryland shall be effective immediately.
Pages:
39385-39387 (3 pages)
Docket Numbers:
FRL-5270-4
PDF File:
95-19002.pdf