State of Florida; Final Determination of Adequacy of State/Tribal Municipal Solid Waste Landfill Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5010-4]

State of Florida; Final Determination of Adequacy of State/Tribal

Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination of Full Program Adequacy for

State of Florida's Municipal Solid Waste Landfill Permit Program.

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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. 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 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.

Florida applied for a determination of adequacy under section 4005

of RCRA. EPA reviewed Florida's application and proposed a

determination that Florida's MSWLF permit program is adequate to ensure

compliance with the revised MSWLF criteria. After consideration of all

comments received, EPA is today issuing a final determination that the

State's program is adequate.

EFFECTIVE DATE: The determination of adequacy for Florida shall be

effective on July 11, 1994.

FOR FURTHER INFORMATION CONTACT: Patricia S. Zweig, Program

Coordinator, Office of Solid Waste, Waste Management Division, U.S.

Environmental Protection Agency, Region IV, 345 Courtland Street, N.E.,

Atlanta, Georgia 30365.

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 facilities 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 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.

EPA intends to approve 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/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 Florida

On July 20, 1993, Florida submitted an application for adequacy

determination for their municipal solid waste landfill permit program.

On March 2, 1994, EPA published a tentative determination of adequacy

for all portions of Florida's program. Further background on the

tentative determination of adequacy appears at 59 FR 9980-9983 (March

2, 1994).

Along with the tentative determination, EPA announced the

availability of the application for public comment and a public hearing

which was held by EPA--Region IV on April 25, 1994, in Tallahassee,

Florida. The public comment period, which originally ended on April 25,

1994, was extended an additional seven (7) days because of public

interest. Comments were accepted on the tentative determination through

close of business on May 2, 1994.

C. Public Comment

EPA Region IV received written and oral comments during the public

comment period and public hearing on the tentative determination of

adequacy for Florida. In addition to comments supporting EPA's

determination, several issues and concerns were raised, which are

outlined and responded to below.

1. Liner design--Comments received during the public comment period

presented the following issues regarding Florida's liner designs for

municipal solid waste landfills: (1) Florida fails to require adequate

liner design criteria which complies with minimum federal requirements

and that would reduce leaks and improve leak detection capabilities,

(2) Florida's liner designs contemplate the allowance of a double

geomembrane liner without a low permeable clay component, (3) many of

the assumptions that Florida made in their required MuitiMed modelling

efforts were not actually indicative of conditions in Florida or did

not present actual ``worst-case'' conditions, as is required when

states submit alternative liner designs for EPA review, and (4)

Florida's liner design demonstration was based on a point of compliance

nearly 500 feet from the landfill boundary (almost five (5) times the

distance allowed by state law).

EPA was charged with reviewing state municipal solid waste landfill

permitting programs to determine if they meet the standards presently

set forth in the federal criteria for municipal solid waste landfills,

which are found at parts 257 and 258 of Chapter 40 of the Code of

Federal Regulations (40 CFR 257 and 258). Florida's regulations

incorporate ten (10) liner designs to be used in landfills in the

state. Nine (9) of the liner designs are single composite systems which

incorporate--from top to bottom--a leachate collection system, a

flexible synthetic membrane and a layer of compacted soil (the federal

standard liner system is also a composite requiring the same

components, in the same order). The tenth of Florida's designs is a

double liner system, which incorporates--from top to bottom--a leachate

collection system, a flexible synthetic membrane, a second leachate

collection/detection system, a second flexible synthetic membrane and a

layer of compacted soil. The state of Florida has presented information

to satisfactorily demonstrate that each of the liner systems prescribed

in their regulations will meet the federal performance standard.

EPA performed an extensive review of Florida's liner requirements

and found them to be comparable to the federal criteria at 40 CFR part

258. In addition, EPA Region IV retained an independent contractor to

evaluate Florida's liner systems and conferred with an EPA landfill

liner expert. After thorough review of all submitted information, the

contractor also found Florida's liner systems to be comparable to the

federal criteria.

EPA's expert was called upon in the matter of Florida's assumption

of 1 cm\2\/acre defect density in the flexible membrane portion(s) of

their liner system. According to the EPA expert, with appropriate

quality assurance/quality control (QA/QC) during installation of the

flexible membranes, the referenced defect density is achievable and has

been extensively documented. The federal criteria at 40 CFR part 258

contain no specific QA/QC provisions. It is assumed that QA/QC will be

ensured prior to disposal of wastes in landfill units. As Florida's QA/

QC requirements are quite extensive and as it is the state alternative

liner designs and not QA/QC that is being evaluated for comparability,

it is appropriate to assume that Florida will ensure that QA/QC

requirements are met during installation of municipal solid waste

landfill liner systems in their state.

Regarding the distance that Florida used for the point of

compliance in their modelling, states must demonstrate to EPA that

proposed alternatives meet federal performance standards. The federal

performance standard for liner designs is that maximum concentration

limits (MCLs) for listed constituents not be exceeded in the uppermost

aquifer at the point of compliance, which must be on the landfill

owner/operator's property and within 150 meters (approximately 500 feet

of the landfill unit boundary). Although Florida requires that MCLs not

be exceeded at a maximum distance of 100 feet (which is more

restrictive than the federal criteria), utilization of the 500 foot

distance is appropriate for Florida's demonstration that their

requirements meet the federal performance standards.

2. Authority for and implications of approving alternative liner

designs in Florida--Comments were received during the public comment

period questioning whether EPA is authorized to allow statewide

alternative liner designs and stating that Region IV's decision on

Florida's liner designs will have national implications based on the

presumption that any alternative liner design that EPA approves for

Florida must likewise be approved in other states, ``given Florida's

extreme vulnerability to groundwater pollution.'' EPA Headquarters has

addressed the issue of EPA's authority to approve statewide alternative

liner designs for municipal solid waste landfills. After review of 40

CFR part 258, the preamble to part 258 and EPA Headquarters training

materials on the implementation of part 258, EPA Headquarters prepared

a memorandum which concluded that the flexibility afforded to an

approved State/Tribe allows the application of an alternative liner

design on a State/Tribal-wide basis so long as that design meets the

performance standard in all locations throughout the State/Tribe.

Regarding the presumption that alternatives approved for Florida

will have to be approved for other states, the State/Tribal adequacy

review process requires EPA to evaluate each state's municipal solid

waste landfill permit program based on the specifics of individual

state requirements. Proposed alternatives to any of the federal

standards are only to be accepted if the state demonstrates that the

alternative(s) would meet federal performance standards. States

proposing alternative liner designs are required to present data from

analysis via the MultiMed fate and transport model, which requires

information that can only be expressed based on particular state

conditions (eg., precipitation, hydrologic conditions, etc.). EPA's

decision to approve or disapprove a state's alternative liner design

weighs heavily on the results of this state-specific modelling.

Therefore, approval of an alternative liner design in one state would

not automatically make the same liner approvable in another state.

3. Groundwater/Drinking Water--Comments received during the public

comment period presented the following concerns regarding the effects

of municipal solid waste landfills on groundwater and drinking water in

the State of Florida: (1) Florida's present municipal solid waste

landfill permit program fails to adequately protect high quality

groundwater and the State should prohibit landfills from being located

in sensitive areas, such as above underground sources of drinking

water, and (2) there is the possibility of leachate discharges from

municipal solid waste landfills contaminating drinking water wells.

The federal criteria require that groundwater be monitored for

constituents at a distance no more than 150 meters (approximately 500

feet) from the landfill unit boundary or at the landfill facility

property boundary, whichever is less. The point at which groundwater is

monitored is to be chosen considering several factors, one of which is

whether the groundwater is used for drinking water. Florida's program

meets these standards. Florida has made revisions to their requirements

to include all of the contaminants for which the federal standards

require monitoring. Florida also requires periodic sampling of leachate

generated by the landfill to determine which contaminants would be of

concern in the event of a release to the subsurface. This analysis is

not required by the federal criteria. Further, as previously mentioned,

Florida requires monitoring of groundwater and corrective action if

groundwater is found to be contaminated at a distance not to exceed 100

feet from the landfill unit boundary or at the landfill facility

property boundary, whichever is less. Again, Florida's 100 foot

distance is more stringent than the federal criteria.

Regarding landfills being sited in the vicinity of drinking water

intakes, the federal criteria for locating municipal solid waste

landfills are very general and include restrictions (but not

necessarily prohibitions) to locating municipal solid waste landfills

in floodplains, wetlands, fault areas, seismic impact zones, unstable

areas and areas in close vicinity to airports. The State of Florida's

regulations have been deemed adequate in that they meet the minimum

federal requirements. The federal criteria at 40 CFR part 258 do not

address drinking water intakes with respect to locating landfills.

Further, EPA cannot require Florida to adopt more stringent

requirements to receive approval of their program.

4. Health/Risk Assessment--Comments were received during the public

comment period presenting the concern that Florida's municipal solid

waste landfill permit program fails to adequately assess the adverse

impact on human health resulting from exposure to landfill leachate in

drinking water. It was suggested that Florida be required to evaluate

human health effects from chronic exposure to contaminants released

from municipal solid waste.

Addressing this issue was beyond the scope of EPA's review of

Florida's municipal solid waste landfill permitting program. However,

the types of complex health studies that are referenced are generally

conducted as research projects by organizations and health scientists

trained in this field. Such work is ongoing in federally-funded

laboratories, universities and other research organizations. On

occasion, these studies are conducted in community populations that are

known to have been exposed to environmental contaminants over an

extended period of time and that claim to have a high level of health

problems believed to be associated with the contamination. With the

multiple stresses and health problems that typically exist in a

community, it is extremely difficult to prove a causal association with

a specific environmental exposure. Such health studies are complex,

difficult to interpret and often inconclusive. Therefore, a requirement

for health evaluations are not typically included, per se, in

regulatory permit programs but rather these programs use toxicity and

risk assessment information to develop the technical permit

requirements that would be health protective. Florida's municipal solid

waste landfill program was developed in a manner which satisfactorily

meets the above requirements.

5. Public Participation--Comments were received during the public

comment period petitioning for ``corrective action to redress

inadequate public participation in development of Florida's Solid Waste

Management Plan.''

Under EPA's rules for public participation, a state, in its

development of rules for a Subtitle D program, has the option of

following the requirements of the state's administrative procedures

act, if one exists. Florida does have an administrative procedures act

and the State complied with its requirements in the rulemaking process.

Accordingly, Florida has complied with EPA's rules for public

participation. In addition, EPA has provided public participation

opportunities in its review of whether the Florida program is adequate

when compared to the criteria of 40 CFR Part 258.

6. Environmental Justice--Comments were received during the public

comment period suggesting that there should be an evaluation of the

environmental justice implications of Florida's municipal solid waste

landfill permitting rules prior to approval of Florida's program. There

is concern that (1) Florida's program was ``developed with grossly

inadequate provisions for participation by persons most threatened by

toxic pollution of their water supplies'' and (2) Florida's present

program fails to provide equal protection to people obtaining drinking

water from private wells (low-income communities were specifically

referenced).

Review of Florida's practices with respect to environmental justice

was beyond the scope of this adequacy determination. In an effort to

address questions of environmental justice, EPA--Region IV established

the Office of Environmental Justice in 1993. In March 1994, President

Clinton issued an Executive Order that is designed to focus federal

attention on the environmental and human health conditions in minority

communities. EPA's primary objectives with respect to environmental

justice are: (a) ensure that all EPA Region IV environmental programs

do not adversely impact minority populations and persons living at or

below the poverty level, (b) address complaints from communities

regarding subjection to a disproportionate burden of the pollution

generated by industry and municipalities and (c) provide for outreach

programs that will bring minority communities, environmental groups,

and government together on relevant environmental issues. Guidelines

for implementing these objectives and the requirements of the Executive

Order within EPA programs are presently being developed at the Regional

and Headquarters levels.

7. Mandated Recycling--Comments were received during the public

comment period suggesting that Florida be required to mandate

separation of recyclables and toxic contaminants from municipal solid

waste prior to disposal in landfills. The federal operating criteria

for municipal solid waste landfills include procedures for excluding

the receipt of regulated hazardous waste, which require implementation

of ``a program at the facility for detecting and preventing the

disposal of regulated hazardous wastes and polychlorinated biphenyls

(PCB) wastes''. The state's program must incorporate, at a minimum:

random inspections of incoming loads, records of inspections, training

facility personnel to recognize prohibited wastes and notification of

the proper authorities if a regulated hazardous waste or PCB is

discovered at the facility. Florida's program meets the federal

requirements for exclusion of regulated hazardous substances in

municipal solid waste landfills. However, there presently are no

federal regulations which mandate recycling. Therefore, requiring

separation of recyclables from municipal solid waste streams prior to

disposal is a decision which must be made on the state and/or local

level.

The State of Florida's rules for municipal solid waste landfills

are not enforceable at municipal solid waste landfills located on

Indian Lands in the State of Florida.

D. Decision

After reviewing the public comments, I conclude that Florida's

application for adequacy determination meets all of the statutory and

regulatory requirements established by RCRA. Accordingly, Florida is

granted a determination of adequacy for all portions of its municipal

solid waste permit 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).

Today's action takes effect on the date of publication. EPA

believes it has good cause under section 553(d) of the Administrative

Procedure Act, 5 U.S.C. 553(d), to put this action into effect less

than 30 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 with which the regulated community must

begin to comply. 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 rule 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 rule, 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, 6949a(c).

Dated: June 30, 1994.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 94-16725 Filed 7-8-94; 8:45 am]

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