[Federal Register Volume 60, Number 73 (Monday, April 17, 1995)]
[Notices]
[Pages 19251-19254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9380]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5192-7]


Wyoming; Final Determination of Partial Program Adequacy of the 
State's Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region VIII).

ACTION: Notice of final determination of partial program adequacy of 
Wyoming'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 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 whether 
States have adequate ``permit'' [[Page 19252]] 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. After reviewing all comments received, 
EPA today is granting final approval to Wyoming's partial program. All 
but one element of the Federal Criteria are included in this approval.

EFFECTIVE DATE: The determination of adequacy for Wyoming shall be 
effective on April 19, 1995.

FOR FURTHER INFORMATION CONTACT: Gerald Allen (8HWM-WM), Waste 
Management Branch, U.S. EPA 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 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 [[Page 19253]] 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 2581.(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 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 MSWLFs, 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 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 
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 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 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.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. EPA also 
tentatively scheduled a public hearing for March 13, 1995, to be held 
if a sufficient number of people expressed interest in participating. 
After no one expressed interest, the Agency cancelled the public 
hearing.
    EPA has reviewed Wyoming's application and has determined that all 
portions of the State's MSWLF permit program (with the exception of 
Wyoming's Type II landfills not being required to comply with ground-
water monitoring and corrective action as defined in 258.1(f) until 
October 9, 1996) will ensure compliance with the revised Federal 
Criteria. In its application, Wyoming demonstrated that the State's 
permit program adequately meets the location restrictions, operating 
criteria, design criteria, ground-water monitoring and corrective 
action requirements, closure and post-closure care requirements, and 
financial assurance criteria in the revised Federal Criteria. In 
addition, the State of Wyoming also demonstrated that its MSWLF permit 
program contains specific provisions for public participation, 
compliance monitoring, and enforcement.
    In its application for adequacy determination, Wyoming has not 
asserted jurisdiction over Indian Country, as defined in 18 U.S.C. 
1511. 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.
    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).

C. Public Comment

    The EPA received no public comments on the tentative determination 
of adequacy for Wyoming's MSWLF permit program.

D. Decision

    Since we received no public comments, I conclude that Wyoming's 
application for partial program adequacy determination meets all the 
statutory and regulatory requirements established by RCRA. Accordingly, 
Wyoming is granted a determination of adequacy for all portions of its 
MSWLF permit program with the exception of Wyoming's Type II landfills 
not being required to comply with ground-water monitoring and 
correction action as [[Page 19254]] defined in 258.1(f) until October 
9, 1996.
    Today's action takes effect on April 19, 1995. EPA believes it has 
good cause under section 553(d) of the Administrative Procedures Act, 5 
U.S.C. 553(d), to put this action into effect less than thirty 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 that the regulated community must begin to comply with. 
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 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: April 4, 1995.
Jack McGraw,
Acting Regional Administrator.
[FR Doc. 95-9380 Filed 4-14-95; 8:45 am]
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