Massachusetts: Adequacy Determination of State/Tribal Municipal Solid Waste Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4880-9]

Massachusetts: Adequacy Determination of State/Tribal Municipal

Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination to fully approve the adequacy

of the Commonwealth of Massachusetts's municipal solid waste permitting

program, 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, 42 U.S.C. 6945(c)(1)(B), 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 hazardous waste will comply with the

revised Federal MSWLF Criteria (40 CFR part 258). RCRA section

4005(c)(1)(C), 42 U.S.C. 6945(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 for

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

flexibilities 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 land fill criteria shall apply to

all permitted and unpermitted MSWLF facilities.

The Commonwealth of Massachusetts has applied for a determination

of adequacy under section 4005(c)(1)(C) of RCRA, 42 U.S.C.

6945(c)(1)(C). EPA Region I has reviewed Massachusetts's MSWLF permit

program adequacy application and has made a tentative determination

that all portions of Massachusetts's MSWLF permit program are adequate

to assure compliance with the revised MSWLF Criteria. Massachusetts's

application for program adequacy determination is available for public

review and comment at the places listed in the ``ADDRESSES'' section

below during regular office hours.

Although RCRA does not require EPA to hold a public hearing on a

determination to approve any State/Tribe's MSWLF permit program, the

Region has tentatively scheduled a public hearing on this

determination. If a sufficient number of persons express interest in

participating in a hearing by writing to the EPA Region I, Solid Waste

Section or calling the contact given below within 30 days of the date

of publication of this notice, the Region will hold a hearing, in

Boston, Massachusetts, on the date given below in the ``DATES''

section. The Region will notify all persons who submit comments on this

notice if it appears that there is sufficient public interest to

warrant a hearing. In addition, anyone who wishes to learn whether the

hearing will be held may call the person listed in the ``CONTACTS''

section below.

DATES: All comments on Massachusetts's application for a determination

of adequacy must be received by the close of business on June 4, 1994.

If there is sufficient interest, a public hearing will be held on June

20, 1994, at 1 p.m., at the Offices of the Massachusetts Department of

Environmental Protection, 10th Floor, One Winter Street, Boston,

Massachusetts. Massachusetts will participate in the public hearing, if

held by EPA on this subject.

ADDRESSES: Copies of Massachusetts's application for adequacy

determination are available during the hours of 8 a.m. to 5 p.m. at the

following addresses for inspection and copying: Massachusetts

Department of Environmental Protection, Division of Solid Waste

Management, One Winter Street, 4th Floor, Boston, MA 02108; USEPA

Region I, Waste Management Division, Solid Waste Section, 90 Canal

Street, Boston, MA 02203, Attn: Fred Friedman, telephone (617) 573-

9687. Written comments should be sent to Mr. John F. Hackler, Chief,

Solid Waste Section, mail code HER-CAN6, EPA Region I, John F. Kennedy

Federal Building, Boston, MA 02203-2211.

FOR FURTHER INFORMATION CONTACT: EPA Region I, John F. Kennedy Federal

Building, Boston, MA 02203, Attn: Ms. Connie Dewire, mail code HER-

CAN6, telephone (617) 573-5719.

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 40 CFR part 258. Subtitle D also requires in section

4005(c)(1)(C), 42 U.S.C. 6945(c)(1)(C) 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.

The EPA intends to approve 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 and conditions (for example, license to

operate) 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. Second, the

State/Tribe must have the authority to issue a permit or other notice

of prior approval and conditions 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, 42 U.S.C. 6974(b). Finally, 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 STIR. 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. Commonwealth of Massachusetts

On August 13, 1993, EPA Region I received Massachusetts's final

MSWLF Permit Program application for adequacy determination. Region I

reviewed the final application and submitted comments to Massachusetts.

Massachusetts addressed EPA's comments and submitted a revised final

application for adequacy determination on August 30, 1993. Region I

received additional clarifying information on the Massachusetts MSWLF

Permit Program on November 2, 1993 and March 23, 1994. Region I has

reviewed Massachusetts's revised application and has tentatively

determined that all portions of Massachusetts's MSWLF program meet all

the requirements necessary to qualify for full program approval and

ensures compliance with the revised Federal Criteria.

The public may submit written comments on EPA's tentative

determination until June 6, 1994. Copies of Massachusetts's application

are available for inspection and copying at the location indicated in

the ADDRESSES section of this notice.

In the Commonwealth of Massachusetts, the jurisdiction for siting

and permitting of solid waste management facilities lies with local

boards of health and the Department of Environmental Protection (DEP),

an agency falling under the Executive Office of Environmental Affairs

(EOEA). The Department of Public Health (DPH) is also given an advisory

role in the siting process. Authority for respective roles of the

boards of health, DEP and DPH is granted by Chapter 111, section 150A

of the Massachusetts General Laws. Region I based its decision of

tentative full approval on the current approach for approving the

construction and operation of MSWLFs in Massachusetts. This approach

includes: (1) A review pursuant to the Massachusetts Environmental

Policy Act (MEPA), a public information process that generally involves

the submission of an Environmental Impact Report, which must be

approved by the Secretary of the Office of Environmental Affairs; (2) a

Site Assignment Process, which focuses on determining whether a

specific location is suitable for a specific type of solid waste

facility (the local board of health is responsible for granting a site

assignment in accordance with the procedures and criteria at 310 CMR

16.00); and (3) a Solid Waste Management Facility Permit, a permit that

must be obtained from DEP's Division of Solid Waste Management after

completing the MEPA process and obtaining a site assignment. The

permitting process regulates the design, operation and maintenance,

closure, post-closure and financial assurance aspects of a facility.

The Massachusetts regulations require, at 310 CMR 19.021, the

repermitting of all landfills existing as of the effective date of July

1, 1990, unless they choose to close prior to July 1, 1992.

Furthermore, the regulations at 310 CMR 19.022(1) require the

completion of closure of all unlined areas of landfills by July 1,

1995. A recent amendment of MGL c. 111, s. 150A makes the 1995 closure

date applicable only to privately owned landfills.

The design standard for new and lateral expansions of landfills

currently in effect in Massachusetts includes a composite liner system

which features: a subgrade layer which must ensure a minimum of four

foot separation between the top of bedrock or the maximum high

groundwater table and the bottom of the lowermost low permeability

layer; a two foot, low permeability, soil/admixture layer having a

maximum in-place saturated hydraulic conductivity of 1x10-7 cm/sec; a

minimum 30-mil flexible membrane liner (60-mil minimum for high density

polyethylene) in direct contact with the underlying soil/admixture; a

drainage/protection layer; and a leachate collection system.

Alternative liner designs must meet the performance standard for ground

water protection systems found at 310 CMR 19.110 and do so in a manner

which meets or exceeds the design standard of that section.

The current siting criteria carefully restrict new or expanding

landfills from being located in settings that may conflict with the

Location Criteria specified in 40 CFR 258.10, 258.11, 258.12, 258.13,

258.14 and 258.16. By currently restricting landfills to such settings,

Massachusetts has protected all state drinking water resources, whether

surface water or groundwater, from the potential impact of leachate -an

approach which EPA has determined to be an alternate to the 40 CFR part

258 requirements, but still as protective as the Federal requirements

at 40 CFR part 258. In addition, the Commonwealth's requirements are no

less stringent than the requirements set forth at 40 CFR part 258.

The Massachusetts MSWLF Permitting Program features an unique

approach to landfill assessment which includes four parts. The first

part is an Initial Site Assessment (ISA), which examines the general

history of the site, the types and amounts of waste landfilled, the

size of the site and other historical information concerning the site.

The second part is a Comprehensive Site Assessment (CSA) to

characterize the nature and extent of any contamination that may exist.

The CSA, which is used to develop a suitable closure strategy,

involves, in its final step, a two-phased risk assessment approach to

determine whether corrective action is warranted. The first phase of

the risk assessment is called a qualitative risk assessment. The

following three pieces of information are analyzed in this phase: the

existence of contamination above standards or approved levels; the

existence of potential public health or environmental receptors; and

the existence of pathways which would serve to link contamination to

receptors. If all three are determined to exist in any media (air,

surface water, ground water or soil), the second phase in the risk

assessment process, the quantitative risk assessment, is invoked as is

a round of sampling for all the 40 CFR part 258, appendix II

constituents. The third part of the landfill assessment is a Corrective

Actions Alternatives Analysis (CAAA), which is conducted to determine

the type of cap and any additional remediation measures which will be

needed to properly close the sanitary landfill. The fourth and final

part of the landfill assessment process is a Corrective Action Design

(CAD), in which the landfill cap and any additional remediation

measures are designed.

Massachusetts covers the landfill assessment requirements in more

detail in its Guidance on Conducting Qualitative Risk Assessments at

Solid Waste Landfills and Guidance for Disposal Site Risk

Characterization and Related Phase II Activities. The revised Landfill

Assessment and Closure Guidance Manual (LAC Manual) is applicable to

all existing MSWLFs and to all MSWLF permit applications effective July

1, 1993. Massachusetts will implement its MSWLF permit program through

enforceable permit conditions. To ensure compliance with the Federal

criteria, Massachusetts has revised its current permit requirements

through the existing Supplement to Landfill Assessment and Closure

Manual. These revisions occur in the following areas:

1. The adoption of the EPA approved method 8260 to test ground

water.

2. Addition of the provision on minimum distance of ground water

monitoring well from landfill boundary.

3. Compliance with the protocols for testing and analyzing ground

water for constituents listed in appendix II to part 258.

4. Compliance with the procedures for notifying the DEP about

explosive levels of landfill gas.

5. Compliance with the protocols for conducting inspections to

detect presence of hazardous waste and procedures for reporting results

of such inspections.

6. Compliance with the minimum design standard for alternative

landfill cover.

The Massachusetts Department of Environmental Protection will

update the permits of existing municipal solid waste landfills

scheduled to remain open after the effective date of 40 CFR part 258,

to assure compliance with current state requirements. The Commonwealth

of Massachusetts is not asserting jurisdiction over Tribal land

recognized by the United States government for the purpose of this

notice. Tribes recognized by the United States government are also

required to comply with the terms and conditions found at 40 CFR part

258.

EPA will consider all public comments on its tentative

determination received during the public comment period and during any

public hearing held. Issues raised by those comments may be the basis

for a determination of inadequacy for Massachusetts's program. EPA will

make a final decision on approval of the Commonwealth of

Massachusetts's program and will give notice of the final determination

in the Federal Register. The notice shall include a summary of the

reasons for the final determination and a response to all significant

comments.

Section 4005(a) of RCRA, 42 U.S.C. 6945(a) provides that citizens

may use the citizen suit provisions of section 7002 of RCRA, 42 U.S.C.

6972 to enforce the Federal MSWLF criteria set forth 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 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 sections

2002, 4005 and 4010(c) of the Solid Waste Disposal Act as amended,

42 U.S.C. 6912, 6945 and 6949a(c-c).

Dated: April 25, 1994.

John P. DeVillars,

Acting Regional Administrator.

[FR Doc. 94-10713 Filed 5-4-94; 8:45 am]

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