Ohio Adequacy Determination of State Municipal Solid Waste Permit Program

ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4826-7]

Ohio Adequacy Determination of State Municipal Solid Waste Permit

Program

AGENCY: Environmental Protection Agency (Region 5).

ACTION: Notice of tentative determination on application of Ohio for

full 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 will comply with the

revised Federal Criteria (40 CFR part 258). RCRA section 4005(c)(1)(C)

requires the United States Environmental Protection Agency (USEPA) to

determine whether States have adequate permit programs for MSWLFs, but

does not mandate issuance of a rule for such determinations. The USEPA

has drafted and is in the process of proposing the State/Tribal

Implementation Rule (STIR) that will provide procedures by which the

USEPA will approve, or partially approve, 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 MSWLF 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 MSWLF permit programs can use the site-specific flexibility

provided by the revised Federal Criteria to the extent the State/Tribe

MSWLF permit program allows such flexibility. The USEPA notes that

regardless of the approval status of a State/Tribe and the permit

status of any facility, the revised Federal Criteria apply to all

permitted and unpermitted MSWLF facilities.

Ohio applied for a determination of adequacy under section 4005 of

RCRA. At the same time, Ohio proposed modifications to current

regulations that will facilitate full approval of its solid waste

program. The rules contained in the proposed revisions to the Ohio

Administrative Code (OAC), Chapter 3745-27, add definitions and

requirements that are no less stringent than portions of the revised

Federal Criteria. The specific revised Federal Criteria that Ohio will

incorporate are identified in the Ohio Solid Waste Program Application

for U.S. EPA Authorization, October 1993. The USEPA reviewed Ohio's

application and has made a tentative determination that the combination

of Ohio's existing MSWLF permit program and the incorporation of

certain portions of the revised Federal Criteria will be adequate to

assure compliance with the revised Federal Criteria. The Ohio

application for program adequacy determination is available for public

review and comment.

The USEPA has also received the proposed revisions to the

regulations for review. See Proposed Municipal Solid Waste Landfill

Regulations, OAC-3745-27, Ohio Environmental Protection Agency (OEPA),

December 23, 1993. Review of the finalized OEPA regulations will occur

prior to the USEPA's final determination of program adequacy. If the

OEPA regulations, when fully promulgated and effective, are essentially

unchanged from proposed and are comparable to the revised Federal

Criteria, the USEPA may approve the Ohio solid waste program.

Although RCRA does not require USEPA to hold a hearing on any

determination to approve a State/Tribal MSWLF permit program, the USEPA

Region 5 may schedule an opportunity for a public hearing on this

tentative determination. Details appear below in the ``DATES'' section.

DATES: All comments on Ohio's application for a full determination of

adequacy must be received by USEPA Region 5 by the close of business on

March 1, 1994. If there is sufficient public interest, USEPA Region 5

will hold a public hearing on March 1, 1994, starting at 1 p.m. at the

offices of the Ohio Environmental Protection Agency, Conference Room

1A, located at 1800 Watermark Drive in Columbus, Ohio. Ohio will

participate in the public hearing, if held, by USEPA Region 5 on this

subject. Written comments on Ohio's application should be submitted to

USEPA Region 5 at the address specified below during the public comment

period. In addition, oral and/or written comments can be submitted

during the public hearing, if held.

Persons requesting that USEPA Region 5 hold a public hearing and/or

wishing to be notified of the public hearing, if held, should contact

the USEPA Region 5 contact given below in the ``FOR FURTHER INFORMATION

CONTACT'' section, within 30 days of the date of the publication of

this notice. Such persons contacting the USEPA will be notified

directly if the public hearing will be held or not held, at least 2

weeks prior to March 1, 1994.

ADDRESSES: All written comments should be sent to the USEPA Region 5

Office.

Copies of Ohio's application for full adequacy determination are

available from 9 a.m. to 4 p.m. during normal working days at the

following addresses for inspection and copying: Ohio Environmental

Protection Agency, Library, 1800 Watermark Drive, Columbus, Ohio 43266-

0149, Attn: Ms. Ruth Ann Evans; and USEPA Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604, Attn: Mr. Andrew Tschampa, mailcode

HRP-8J.

FOR FURTHER INFORMATION CONTACT: USEPA Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604, Attn: Mr. Andrew Tschampa, mailcode

HRP-8J, telephone (312) 886-0976.

SUPPLEMENTARY INFORMATION:

A. Background

On October 9, 1991, the USEPA promulgated revised Federal 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

revised Federal Criteria. Subtitle D also requires in section 4005 that

the USEPA determine the adequacy of State MSWLF permit programs to

ensure compliance with the revised Federal Criteria. To fulfill these

requirements, 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.

The USEPA intends to approve State/Tribal MSWLF permit programs

prior to the promulgation of the STIR. The USEPA 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 the

revised Federal 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, the USEPA 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 who fails to comply with an approved MSWLF program.

The USEPA will determine whether a State/Tribe has submitted an

adequate program based on the interpretation outlined above. The USEPA

plans to provide more specific criteria for this evaluation when it

proposes the State/Tribal Implementation Rule. The USEPA expects

States/Tribes to meet all of these requirements for all elements of a

MSWLF permit program before it gives full approval to a MSWLF permit

program.

As provided in the revised Federal Criteria, USEPA's national

Subtitle D standards took effect on October 9, 1993. On October 1,

1993, USEPA published a final ruling which modified the effective date

of the landfill criteria for certain classifications of landfills (58

FR 51536). Thus, for certain small landfills that accept less than 100

tons of waste per day, the Federal landfill criteria will not be

effective until April 9, 1994, instead of October 9, 1993. The exact

classifications of landfills and details on the effective date

extensions are contained in the final rule. See 58 FR 51536 (October 1,

1993).

B. State of Ohio

On October 9, 1993, Ohio submitted an application for program

adequacy determination. The USEPA has reviewed Ohio's application and

has tentatively determined that the combination of the State's existing

permit program and the incorporation of certain portions of the revised

Federal Criteria will ensure full compliance with all of the revised

Federal Criteria.

The Ohio regulations, contained in OAC-3745-27, currently contain

the following elements that are considered equivalent to the revised

Federal Criteria:

1. Consideration of other Federal laws (USEPA approval is for

current Ohio requirements that are comparable to 40 CFR 258.3);

2. Location restrictions for floodplains, fault areas, seismic

impact zones, and unstable areas (USEPA approval is for current Ohio

requirements that are comparable to 40 CFR 258.11, 258.13, 258.14, and

258.15);

3. Operating criteria for daily cover material, disease vector

control, air criteria, access restrictions, and liquids restrictions

(USEPA approval is for current Ohio requirements that are comparable to

40 CFR 258.21, 258.22, 258.24, 258.25, and 258.28);

4. Design criteria (USEPA approval is for current Ohio requirements

that are comparable to 40 CFR 258.40);

5. Financial assurance criteria for closure, post-closure care, and

allowable mechanisms (USEPA approval is for current Ohio requirements

that are comparable to 40 CFR 258.70, 258.71, 258.72, and 258.74).

In addition, the proposed modifications to the OEPA Municipal Solid

Waste Landfill Regulations contain the following elements that are

considered equivalent to the revised Federal Criteria:

1. General requirements and definitions (USEPA approval would be

for proposed Ohio requirements that are comparable to 40 CFR 258.1 and

258.2);

2. Location restrictions for airport safety and wetlands (USEPA

approval would be for proposed Ohio requirements that are comparable to

40 CFR 258.10 and 258.12);

3. Closure of existing MSWLFs (USEPA approval would be for proposed

Ohio requirements that are comparable to 40 CFR 258.16);

4. Operating criteria for excluding the receipt of hazardous waste,

explosive gases control, run-on/run-off control systems, and surface

water requirements (USEPA approval would be for proposed Ohio

requirements that are comparable to 40 CFR 258.20, 258.23, 258.26, and

258.27);

5. Recordkeeping requirements (USEPA approval would be for proposed

Ohio requirements that are comparable to 40 CFR 258.29);

6. Groundwater monitoring applicability, systems, sampling and

analysis, detection monitoring program, assessment monitoring program,

assessment of corrective measures, selection of remedy, and

implementation requirements (USEPA approval would be for proposed Ohio

requirements that are comparable to 40 CFR 258.50, 258.51, 258.53,

258.54, 258.55, 258.56, 258.57, and 258.58);

7. Closure and post-closure care requirements (USEPA approval would

be for proposed Ohio requirements that are comparable to 40 CFR 258.60

and 258.61);

8. Financial assurance criteria for corrective action (USEPA

approval would be for proposed Ohio requirements that are comparable to

40 CFR 258.73).

The elements of the revised Federal Criteria to be incorporated

into the Ohio permit program (1-8 above) are contained in the proposed

regulations currently under promulgation by the OEPA. See Proposed

Municipal Solid Waste Landfill Regulations, OAC-3745-27, Ohio

Environmental Protection Agency, December 23, 1993.

For purposes of implementation of the revised Federal Criteria,

Ohio is incorporating a ``unit concept'' into its current landfill

permitting process. Currently, large areas of unprepared land are

permitted for a MSWLF facility as opposed to discrete areas or units

prepared for actual waste placement. Landfill owners and operators will

be designating ``existing units'' at MSWLF facilities according to a

specific procedure and guidelines established by the proposed OEPA

regulations. The procedure involves a clear delineation of the limits

of waste placement, design components, significant boundaries, and what

the owner or operator designates as an existing unit or new unit(s) at

a MSWLF facility as of April 1994. The guidelines require that all

areas designated as an existing unit are geographically contiguous and

the unfilled areas of the existing unit meet, at a minimum, specific

design requirements which are equivalent to the revised Federal

Criteria. The revised OEPA regulations, when effective, will then apply

to existing units, which have been designated by the landfill owner or

operator, as well as all new units.

The revised Federal Criteria require a final cover system with an

erosion layer underlain by an infiltration layer comprised of at least

18 inches of earthen material with a permeability less than or equal to

any bottom liner system or no greater than 10-5 cm/sec, whichever

is less. Ohio's final cover design allows for a composite liner

involving a flexible membrane liner and a geocomposite clay liner in

lieu of 18 inches of recompacted clay. The geocomposite component of

the final cover must be demonstrated to have a permeability less than

or equal to 18 inches of recompacted clay with a permeability of

10-6 cm/sec, which exceeds the Federal Criteria. The use of an

alternative final cover design to achieve an equivalent reduction in

infiltration is allowed pursuant to 40 CFR 258.60(b).

In addition, the revised Federal Criteria require unfiltered

groundwater samples to be used in laboratory analysis. Currently, Ohio

regulations require sampling and analysis procedures which ensure

monitoring results that provide an ``accurate representation'' of

groundwater quality. This requirement can be interpreted to require

unfiltered samples. The USEPA intends to revisit this issue during a

proposed rulemaking. If the proposed rulemaking upholds the ban on

field filtering, the State will be required to incorporate the

provisions of 40 CFR 258.53(b) into its policy regarding groundwater

sampling and analysis procedures.

The Ohio program will differ from the revised Federal Criteria with

respect to the general effective date of the requirements. The planned

effective date of the currently proposed Ohio regulations, which

incorporate the Federal Criteria, is April 1994. The rulemaking process

in Ohio is extensive, involving the widespread circulation of draft

regulations to all interested parties, public comment periods and

hearings, and legislative review and approval, a process which takes a

minimum of 8 to 12 months. The USEPA understands that State law cannot

be retroactive and feels that an effective date of April 1994 for

revised State rules incorporating the Federal Criteria will be

adequate. However, as stated previously, the effective date of the

revised Federal Criteria remains October 9, 1993, unless a facility

qualifies for the extension granted to certain small MSWLFs. See 58 FR

51536 (October 1, 1993). All landfill owners and operators in Ohio were

notified directly by USEPA that MSWLFs will be regulated under both

existing State rules as well as the revised Federal Criteria contained

in 40 CFR part 258 from October 9, 1993, until the date that the

revised Ohio rules are fully promulgated and effective.

As previously discussed, the USEPA has a final draft of the

proposed OEPA regulations. If the OEPA regulations, when fully

promulgated and effective, remain unchanged from proposed and

adequately incorporate the revised Federal Criteria listed above, the

USEPA may approve the Ohio solid waste program.

The public may submit written comments on USEPA's tentative

determination until March 1, 1994. The USEPA will consider all public

comments on its tentative determination that are received during the

public comment period and during any public hearing, if held. Issues

raised by those comments will be the basis for a final determination of

adequacy for Ohio's program. The USEPA will make a final decision on

whether or not to fully approve Ohio's program by April 29, 1994, and

will give notice of it 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 revised Federal

Criteria in 40 CFR part 258 independent of any State/Tribal enforcement

program. As the USEPA explained in the preamble to the final revised

Federal Criteria, theUSEPA expects that any owner or operator complying

with the provisions in a State/Tribal program approved by the USEPA

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 this tentative approval will not have a significant 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 section

4005 of the Solid Waste Disposal Act as amended; 42 U.S.C. 6946.

Dated: January 7, 1994.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 94-1022 Filed 1-13-94; 8:45 am]

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