[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Notices]
[Pages 9451-9454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5533]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5437-9]
West Virginia Division of Environmental Protection: Partial
Program Adequacy Determination of State Municipal Solid Waste Landfill
Permit Program
AGENCY: Environmental Protection Agency Region III.
ACTION: Notice of Tentative Determination on the West Virginia Division
of Environmental Protection Application for a Partial Program Adequacy
Determination, Public Hearing and Public Comment Period.
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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. On January 26, 1996, EPA published in the Federal
Register a proposed State/Tribal Implementation Rule (STIR) that
provides procedures by which EPA will approve, or partially approve,
State/Tribal landfill permit programs. The EPA 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 the final promulgation of STIR,
adequacy determinations will be made based on the statutory authorities
and requirements. In addition, States/Tribes may use the proposed STIR
as an aid in interpreting these requirements. The EPA 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 landfill criteria will apply to all
permitted and unpermitted MSWLF facilities.
[[Page 9452]]
The West Virginia Division of Environmental Protection (WVDEP)
applied for a partial determination of adequacy under section 4005 of
RCRA. EPA reviewed WVDEP's application and made a tentative
determination of adequacy for those portions of the WVDEP's MSWLF
permit program that are adequate to assure compliance with the revised
MSWLF Criteria. These portions are described later in this notice. The
WVDEP plans to revise the remainder of its permit program to assure
complete compliance with the revised MSWLF Criteria and gain full
program approval. WVDEP's application for partial program adequacy
determination is available for public review and comment.
All municipal solid waste landfilled in West Virginia must be
disposed in a landfill which meets these criteria. This includes all
ash from municipal solid waste incinerators which is determined to be
non-hazardous.
Although RCRA does not require EPA to hold a public hearing on a
determination to approve any State/Tribe's MSWLF program, EPA Region
III is offering the opportunity for a public hearing on this
determination on the date given below in the DATES section.
DATES: All comments on WVDEP's application for a partial determination
of adequacy must be received by EPA Region III by the close of business
on April 30, 1996. If, and only if, sufficient interest in having a
public hearing is requested by April 10, 1996, a public hearing to
receive oral and written testimony on EPA's tentative determination
will be held on Tuesday, April 30, 1996 from 7:00 pm until 10:00 pm.
The hearing, if held, will be at the Capital High School Auditorium,
1500 Greenbrier Street, Charleston, WV. WVDEP will attend the public
hearing.
Written or verbal requests for a public hearing must be received by
the EPA contact listed below by April 10, 1996. EPA will determine by
April 12, 1996 if a public hearing is warranted. After that date, any
interested party may contact the EPA persons listed below to find out
whether or not a public hearing will be held.
ADDRESSES: Copies of WVDEP's application for partial adequacy
determination are available from 9 a.m. to 4 p.m. at the following
addresses for inspection and copying: West Virginia Division of
Environmental Protection, 1356 Hansford Street, Charleston, WV 25301,
Attn: Mr. William Rheinlander, telephone 304-558-5929; and U.S. EPA
Region III, 841 Chestnut Street Building, Philadelphia, Pennsylvania
19107, Attn: Mr. Andrew R. Uricheck, mailcode (3HW60), telephone 215-
597-7936. All written comments on this tentative determination must be
sent to U.S. EPA Region III, 841 Chestnut Street Building,
Philadelphia, Pennsylvania 19107, Attn: Mr. John Humphries, mailcode
(3HW60).
FOR FURTHER INFORMATION AND TO REQUEST A PUBLIC HEARING, CONTACT: U.S.
EPA Region III, 841 Chestnut Street Building, Philadelphia,
Pennsylvania 19107, Attn: Mr. Andrew R. Uricheck, mailcode (3HW60) or
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 to ensure that MSWLFs 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 EPA has proposed in
the Federal Register the State/Tribal Implementation Rule (STIR). The
Rule specifies the requirements which State/Tribal programs must
satisfy to be determined adequate.
EPA proposed 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 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. These
requirements will address the potential problems posed by the dual
State/Tribal and Federal regulatory controls following the October 9,
1993 effective date of the Federal regulations. On that date, Federal
rules covering any portion of a State/Tribe's program that had not
received EPA approval became enforceable through the citizen suit
provisions of RCRA 7002. Owners and operators of MSWLFs subject to such
dual programs must understand the applicable requirements and comply
with them. In addition, those portions of the Federal program that are
in effect must mesh well enough with the approved portions of the
State/Tribal program to leave no significant gaps in regulatory control
of MSWLF's. Partial approval would allow the EPA to approve those
provisions of the State/Tribal permit program that meet the
requirements and provide the State/Tribe time to make necessary changes
to the remaining portions of its program. As a result, owners/operators
will be able to work with the State/Tribal permitting agency to take
advantage of the Criteria's flexibility for those portions of the
program which have been approved.
As provided in the October 9, 1991 municipal landfill rule, EPA's
national Subtitle D standards took effect in October 1993 in any State/
Tribe that lacks an approved program. Consequently, any remaining
portions of the Federal Criteria which are not included in an approved
State/Tribal program by October 1993 would apply directly to the owner/
operator. On April 7, 1995, EPA issued a Federal Register Notice
extending the effective date of the 40 CFR Part 258, subpart G
requirements relating to Financial Assurance until April 9, 1997.
EPA intends to approve portions of State/Tribal MSWLF permit
programs prior to the promulgation of the final 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
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.
EPA also is requesting States/Tribes seeking partial program
approval to provide a schedule for the submittal of all remaining
portions of their MSWLF permit programs. EPA notes that the proposed
STIR makes submission of a schedule mandatory.
[[Page 9453]]
B. State of West Virginia
In a letter dated June 17, 1994, WVDEP submitted a complete
application to EPA Region III for a partial program adequacy
determination. In response to EPA review comments on their application,
WVDEP submitted additional information in letters dated April 10, 1995
and October 12, 1995. EPA reviewed WVDEP's application and this
additional information and has tentatively determined that the
following portions of the State's municipal solid waste landfill
permitting program will ensure compliance with the revised Federal
Criteria. EPA has also assessed the impact of the ruling in Federal
District Court of West Virginia on September 28, 1995, in Valero
Terrestrial Corporation, et al. v. Callaghan, Civil Action No.
5:93CV189 (N.D.W.V.), and the Court's subsequent clarification issued
December 12, 1995, and has determined, in conjunction with the State,
that the portions of the State's program proposed herein for approval
by EPA have not been adversely impacted. Public comment is invited on
this issue.
As noted in the detailed discussions which follow, portions of the
West Virginia program currently fulfill the Federal requirements, and
other portions will fulfill the Federal requirements after the State's
revision of its guidelines and/or permit application forms, which they
are required to complete prior to receiving final EPA partial approval.
Lastly, portions of the West Virginia program which do not currently
meet the Federal requirements and can only be revised through their
regulation revision process, which includes State Legislature action,
are not being proposed for EPA approval at this time. The State has
committed to submitting an application for full program approval to EPA
by September 1, 1996, after these regulatory changes have been made.
Portions of the West Virginia Program tentatively proposed for
approval at this time:
Subpart A--General
The existing WVDEP requirements fully comply with 40 CFR Sections
258.1, Purpose, Scope, and Applicability and 258.3, Consideration of
other Federal laws.
Subpart B--Location Restrictions
1. The existing WVDEP requirements fully comply with Sec. 258.11,
Floodplains; Sec. 258.12, Wetlands; Sec. 258.13, Fault Areas; and
Sec. 258.16, Closure of Existing MSWLF Units.
2. WVDEP permit application checklists and internal guidance will
be revised to incorporate the requirements of Sec. 258.10, Airport
Safety; Sec. 258.14, Seismic Impact Zones; and Sec. 258.15, Unstable
Areas.
Subpart C--Operating Criteria
1. The existing WVDEP requirements fully comply with: Sec. 258.20,
Hazardous Waste Exclusion; Sec. 258.21, Daily Cover; Sec. 258.22,
Disease Vectors Control; Sec. 258.23, Explosive Gas Control;
Sec. 258.24, Air Criteria; Sec. 258.25, Access requirements;
Sec. 258.26, Run-On/Run-Off Control Systems; Sec. 258.27, Surface Water
Requirements; and Sec. 258.29, Recordkeeping Requirements.
2. WVDEP permit application checklists and internal guidance will
be revised to incorporate the leachate recirculation restrictions of
Sec. 258.28, Liquids Restrictions.
Subpart D--Landfill Design
1. WVDEP regulations now require, as a minimum, at all new MSW
landfills and expansions to existing landfills, the bottom liner system
described in 40 CFR 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). WVDEP also allows an alternate liner design. WVDEP permit
application checklists and internal guidance will be revised to require
applications requesting approval of any alternate liner design to
demonstrate that they comply with the performance standards established
in Sec. 258.40 (a) and (c). WVDEP will require 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).
Subpart E--Groundwater Monitoring and Corrective Action
1. The existing West Virginia requirements for groundwater sampling
program are in need of substantial upgrading to meet the 40 CFR part
258 requirements. The primary deficiency is the need to require the
extensive pollutant parameter coverage of Appendices I and II in 40 CFR
part 258 in groundwater sampling programs. Existing WVDEP requirements
meet the requirements of 40 CFR 258.50, Applicability, and Sec. 258.56,
Assessment of Corrective Measures.
2. WVDEP permit applications and/or guidelines will be revised to
incorporate the requirements of 40 CFR 258.53, Groundwater Sampling and
Analysis; Sec. 258.57, Selection of Remedy; and Sec. 258.58,
Implementation of the Corrective Action Program.
Subpart F--Closure and Post-Closure Care
1. Post-Closure Care Requirements (Sec. 258.61)--Existing West
Virginia statute requires the Federal standard of a 30-year post-
closure care period.
Not all existing States/Tribes permit programs ensure compliance
with all provisions of the revised Federal Criteria. Were EPA to
restrict a State/Tribe from submitting its application until it could
ensure compliance with the entirety of 40 CFR Part 258, many States/
Tribes would need to postpone obtaining approval of their permit
programs for a significant period of time. This delay in determining
the adequacy of the State/Tribal permit program, while the State/Tribe
revises its statutes or regulations, could impose a substantial burden
on owners and operators of landfills because the State/Tribe would be
unable to exercise the flexibility available to States/Tribes with
approved permit programs.
As State/Tribal 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/Tribe may submit an amended application to EPA for review, and an
adequacy determination will be made using the same criteria used for
the initial application. This adequacy determination will be published
in the Federal Register which will summarize the Agency's decision and
the portion(s) of the State/Tribal MSWLF permit program affected. It
will also provide for a minimum 30 day public comment period. This
future adequacy determination will become effective 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 of its municipal solid waste landfill
permitting program, the West Virginia Division of Environmental
Protection must revise the following additional portions of its
program:
1. Subpart A--General--Include the definitions listed in
Sec. 258.2, Definitions.
2. Subpart E--Groundwater Monitoring--Adopt the requirements of 40
CFR 258.51, Groundwater Monitoring Systems; Sec. 258.54, Detection
[[Page 9454]]
Monitoring Program; and Sec. 258.55, Assessment Monitoring Program.
3. Subpart F--Final Closure--Adopt the criteria in 40 CFR
Sec. 258.60, Closure Criteria, pertaining to the time allowed to apply
the final cover.
4. Subpart G--Financial Assurance Criteria--The major revision
needed in WVDEP's permitting requirements is its adoption of the 40 CFR
Part 258 Financial Assurance requirements. This includes Sec. 258.70,
Applicability; Sec. 258.71, Financial Assurance for Closure;
Sec. 258.72, Financial Assurance for Post-Closure Care; Sec. 258.73,
Financial Assurance for Corrective Action, and Sec. 258.74, Allowable
Mechanisms. Current WVDEP regulations contain neither the applicability
nor scope of the Federal requirements. A statutory change in West
Virginia law is needed to implement portions of this Federal criteria.
WVDEP has submitted a schedule indicating that it will commit to
complete these above regulatory revisions by September 1, 1996. To
allow West Virginia to begin exercising some of the flexibility allowed
in States with adequate permit programs, EPA is proposing to approve
now those portions of the WVDEP's program not required to need
regulatory revision, and which therefore can be implemented prior to
September 1996.
EPA reviewed the State's schedule and believes it is reasonable,
considering the complexity of the rule changes, number of steps in the
State rulemaking process, and the need for legislative action.
Comments are solicited on this tentative determination until April
30, 1996. Copies of WVDEP's application are available for inspection
and copying at the locations indicated in the ADDRESSES section of this
notice.
EPA Region III will hold a public hearing if, and only if,
requested (see DATES section of this notice) on this tentative
decision, on April 30, 1996 from 7:00 p.m. to 10:00 pm at the Capital
High School in Charleston, West Virginia. Comments can be submitted at
the hearing, if held, as transcribed from oral comments presented, or
in writing at the time of the hearing.
EPA will consider all written public comments on its tentative
determination received during the public comment period, as well as
those presented at the public hearing. Issues raised by those comments
may be the basis for EPA's reconsideration of this tentative
determination of adequacy for WVDEP's program. EPA will make a final
decision on whether or not to approve WVDEP's program and will provide
notice 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 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 according to EPA Headquarters 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(c) of the Solid Waste Disposal Act, as amended;
42 U.S.C. 6912, 6945 and 6949(a)(c).
Dated: February 28, 1996.
Stanley L. Laskowski,
Deputy Regional Administrator.
[FR Doc. 96-5533 Filed 3-7-96; 8:45 am]
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