[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Notices]
[Pages 14938-14941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6928]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5175-1]


Maryland Department of the Environment: Partial Program Adequacy 
Determination of State/Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency Region 3.

ACTION: Notice of tentative determination on the Maryland Department of 
the Environment's 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 [[Page 14939]] 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 provide 
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 promulgation of 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 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.
    The Maryland Department of the Environment (MDE) applied for a 
partial determination of adequacy under section 4005 of RCRA. EPA 
reviewed MDE's application and made a tentative determination of 
adequacy for those portions of the MDE's MSWLF permit program that are 
adequate to assure compliance with the revised MSWLF Criteria. These 
portions are described later in this notice. The MDE plans to revise 
the remainder of its permit program to assure complete compliance with 
the revised MSWLF Criteria and gain full program approval. MDE's 
application for partial program adequacy determination is available for 
public review and comment.
    All municipal solid waste landfilled in Maryland 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, the EPA 
Region 3 has scheduled a public hearing on this determination on the 
date given below in the DATES section.

DATES: All comments on MDE's application for a partial determination of 
adequacy must be received by EPA Region 3 by the close of business on 
May 19, 1995. A public hearing will be held on Wednesday, May 17, 1995, 
from 10:00 am until 1:00 pm for the purposes of soliciting public 
comment on this tentative determination.

ADDRESSES: Written comments should be sent to U.S. EPA Region 3, 841 
Chestnut Building, Philadelphia, Pennsylvania 19107, Attn: Mr. 
Christopher B. Pilla, mailcode (3HW50). Copies of MDE's application for 
partial adequacy determination are available from 9 a.m. to 4 p.m. at 
the following addresses for inspection and copying: Maryland Department 
of the Environment, 2500 Broening Highway, Baltimore, Maryland 21224, 
Attn: Mr. Edward Dexter, telephone 410-631-3364; and U.S. EPA Region 3, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107, Attn: Mr. 
Andrew R. Uricheck, mailcode (3HW50), telephone 215-597-7936. The 
hearing will he held at the Maryland State Office Complex at 300 West 
Preston Street, Baltimore, Maryland. MDE will attend the public 
hearing.

FOR FURTHER INFORMATION CONTACT: U.S. EPA Region 3, 841 Chestnut 
Building, Philadelphia, Pennsylvania 19107, Attn: Mr. Andrew R. 
Uricheck, mailcode (3HW50) and 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 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 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 when promulgated, will address the potential 
problems posed by the dual State/Tribal and Federal regulatory controls 
following the October 1993 effective dates of the Federal rule. 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 July 28, 1993, EPA proposed to modify the effective date 
of the landfill criteria for certain classifications of landfills (50 
FR 40568).
    EPA intends to approve portions of 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/ 
[[Page 14940]] 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.
    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 it intends to 
propose to make submission of a schedule mandatory in STIR.

B. State of Maryland

    On August 26, 1993, MDE submitted a complete application (dated 
July 15, 1993) for a partial program adequacy determination. In 
response to EPA comments on their initial application, MDE submitted 
additional information, including letters dated October 4, 1994, and 
December 15, 1994. EPA reviewed MDE's application and this additional 
information and has tentatively determined that the following portions 
of the State/Tribe's municipal solid waste landfill permitting program 
will ensure compliance with the revised Federal Criteria.

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.
    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 landfill, 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 
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--Groundwater 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 258 requirements. Using existing authorities, MDE is 
requiring all current landfill operators to amend their existing 
groundwater 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 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 has committed to 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 will require flexible 
membrane caps, where appropriate, in accordance with the EPA 
regulations, and is implementing the closure periods required.
    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, MDE must revise the following aspects of 
its permit program:
    (1) Post-Closure Care Requirements (Sec. 258.61)--MDE must amend 
its existing regulations extending the post- [[Page 14941]] closure 
care period of closed landfills from a minimum of five 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 also 
needs to specifically require leachate collection and treatment, and 
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. 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.

    MDE submitted a schedule indicating that it will be able to 
complete these revisions by September 1995. To allow Maryland to begin 
exercising some of the flexibility allowed in States with adequate 
permit programs, EPA is proposing to approve those portions of 
Maryland's program that can be implemented today.

    EPA reviewed MDE'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 EPA's tentative determination until May 
19, 1995. Copies of MDE's application are available for inspection and 
copying at the locations indicated in the ADDRESSES section of this 
notice.

    EPA Region 3 will hold a public hearing on its tentative decision 
on Wednesday, May 17, 1995 from 10 a.m. to 1 p.m. at 300 West Preston 
Street in Baltimore, Maryland. Comments can be submitted as transcribed 
from oral comments presented at the hearing, or in writing at the time 
of the hearing.

    Public comment is specifically requested on the issue of MDE's 
authority to implement and enforce immediately the portions of 40 CFR 
258 proposed for approval in this Notice, using authorities in existing 
statutes and regulations, to revise internal guidances and permit 
checklists. MDE has committed to, and EPA concurs, in MDE also making 
revisions to its existing regulations to explicitly include the 40 CFR 
258 requirements.

    EPA will consider all public comments on its tentative 
determination received during the public comment period and at the 
public hearing. Issues raised by those comments may be the basis for 
EPA's reconsideration of this tentative determination of adequacy for 
MDE's program. EPA will make a final decision on whether or not to 
approve MDE'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: March 9, 1995.

Peter H. Kostmayer,

Regional Administrator.

[FR Doc. 95-6928 Filed 3-20-95; 8:45 am]

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