Michigan: Final Partial Program Determination of Adequacy of State Municipal Solid Waste Landfill Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4848-2]

Michigan: Final Partial Program Determination of Adequacy of

State Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination of partial program adequacy for

Michigan'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 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 (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 a State/Tribal Implementation Rule (STIR) that will provide

procedures by which the USEPA will approve, or partially approve,

State/Tribal landfill permit programs. The Agency intends to approve

adequate State/Tribal MSWLF permit programs as final 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 40 CFR part 258 to the

extent the State/Tribal 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 MSWLF Criteria

will apply to all permitted and unpermitted MSWLF facilities.

Michigan applied for a partial program determination of adequacy

under section 4005 of RCRA. The USEPA reviewed Michigan's application

and made a tentative determination of adequacy for those portions of

the State's MSWLF permit program that are adequate to ensure compliance

with the revised Federal MSWLF Criteria. After consideration of all

comments received, the USEPA is today issuing a final determination for

those portions of the State's program that are adequate. The State

plans to revise the remainder of its permit program to ensure complete

compliance with the revised Federal MSWLF Criteria, and gain full

program approval.

EFFECTIVE DATE: The determination of adequacy for Michigan shall be

effective on March 10, 1994.

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 Criteria for

MSWLFs (40 CFR part 258). Subtitle D of the Resource Conservation and

Recovery Act (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

under part 258. 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 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.

USEPA 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 40 CFR part 258;

(2) Changes to a limited, narrow part(s) of the State/Tribal

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 40 CFR part 258.

The requirements of the STIR, if promulgated, will ensure that any

mixture of State/Tribal and Federal rules that take effect will be

fully workable and leave no significant gaps in environmental

protection. These practical concerns apply to individual partial

approvals granted prior to the promulgation of the STIR rule.

Consequently, USEPA reviewed the program approved today and concluded

that the State/Tribal and the Federal requirements mesh reasonably well

and leave no significant gaps. Partial approval would allow the Agency

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 that have been approved. Federal rules

covering any portion of a State/Tribe's program that have not received

USEPA's approval apply directly to owners and operators.

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

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

1993, the 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.

Consequently, any portions of the revised Federal MSWLF Criteria which

are not included in a State/Tribal MSWLF program by October 9, 1993,

would apply directly to owners and operators of large MSWLFs, and

portions not included by April 9, 1994, would apply directly to owners

and operators of certain small MSWLFs. 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).

The USEPA will review State/Tribal requirements to determine

whether they are ``adequate'' under section 4005(c)(1)(C) of RCRA. 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 USEPA'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 must also 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 that fails to comply with an

approved MSWLF program.

The USEPA Regional offices 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 STIR. 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 program. The USEPA is

requesting States/Tribes seeking partial program approval to provide a

schedule for the submittal of all remaining portions of their MSWLF

permit programs. The USEPA notes that it intends to propose to make

submission of a schedule mandatory in the STIR.

B. State of Michigan

On October 6, 1993, Michigan submitted an application to obtain a

partial program adequacy determination for the State's MSWLF permit

program. On December 22, 1993, the USEPA published a tentative

determination of partial program adequacy for the Michigan program.

Further background information on the tentative determination appears

in 58 FR 67786 (December 22, 1993). In its application, Michigan

demonstrated that the State's permit program adequately meets the

general requirements, location restrictions, operating criteria, design

criteria, groundwater monitoring and corrective action requirements,

and closure and post-closure care requirements in the revised Federal

Criteria. The State's existing permit program will ensure full

compliance with all of the revised Federal Criteria except the

provisions in 40 CFR 258.53(b) which ban the field-filtering of

groundwater samples, and financial assurance requirements found in 40

CFR 258.70.

Michigan demonstrated that the State's MSWLF permit program has the

authority to issue permits incorporating the requirements of the

revised Federal Criteria for all MSWLFs in the State. The USEPA

determined that Michigan's permit program contains provisions for

public participation, compliance monitoring, and enforcement.

Michigan's permitting process includes a procedure for ensuring

that public comments made during review of MSWLF permit applications

and corrective action remedy selection are considered. The procedures

require the Michigan Department of Natural Resources (MDNR) to notify a

municipality and its residents of the receipt of a permit application

for a proposed MSWLF facility or plans to select a corrective action

remedy. The public is notified through a local newspaper of the

opportunity to request a public hearing on a proposed facility or

remedy if there is significant interest. In addition, the MDNR ensures

that all permit and license documents are available for public review

and comment. Formal notification of a decision is made to a

municipality with an explanation of the reasons for the decision within

10 days after the final decision is made.

Along with the tentative determination, the USEPA announced the

availability of the application for public comment and a public hearing

on the application. A 45-day public comment period was held until

February 4, 1994. In this notice of tentative determination, the USEPA

announced that a public hearing would be held if a sufficient number of

people requested a hearing. The Agency received several public comment

letters in response to the tentative determination. No requests for a

public hearing were received, therefore, a hearing was not held.

C. Public Comment

The USEPA received several public comments concerning the tentative

determination of partial program adequacy for Michigan's MSWLF permit

program.

Four commenters requested that USEPA consider and include several

recommendations in the determination of adequacy for Michigan's MSWLF

permit program. These recommendations included the following operating

criteria, design standards, and location restrictions:

1. Mandatory weight scales at all MSWLFs.

2. Mandatory primary and secondary liners (double composite) and

leachate collection systems for all MSWLFs.

3. Mandatory set-back distances of 1-2 miles from a residential

drinking water well or inland lake or stream, and 5 miles from a Great

Lake, including Lake St. Clair, for all new MSWLFs.

4. Mandatory 50-foot isolation distance from the uppermost aquifer

for all new MSWLFs.

The revised Federal Criteria contain minimum requirements for

municipal solid waste landfills. The USEPA encourages States to

consider local conditions and circumstances in adopting requirements

that are equal to or more stringent than the revised Federal Criteria.

As a result, certain portions of the Michigan MSWLF program are already

more stringent than the Federal Criteria. However, the USEPA does not

have the authority to require States to adopt additional requirements

well beyond the minimum standards set forth in 40 CFR part 258. During

the MSWLF permitting process in Michigan, opportunities are provided

for public input into the siting and development of permit conditions

for all MSWLF sites. The USEPA encourages concerned citizens to

actively participate in the planning and development of solid waste

management facilities early in the permitting process. As discussed in

the previous section, the State's permitting process is designed to

facilitate the consideration of site-specific comments and suggestions

(1-4 above) during the early planning stages of MSWLF facilities.

One commenter suggested that the USEPA should grant full approval

to the groundwater sampling and analysis portion of Michigan's

application, because the State allows filtered groundwater samples for

metals analyses. The revised Federal Criteria require unfiltered

groundwater samples to be used in laboratory analysis. Currently,

Michigan requires field-filtering for groundwater samples that are to

be analyzed for metals unless the Director of MDNR determines field-

filtering is not appropriate. The USEPA intends to revisit this issue

during a proposed rulemaking. If the USEPA determines the ban should be

upheld, Michigan will be required to come into compliance with the

provisions of 40 CFR 258.53(b). In the meantime, the State will not be

given approval of this requirement.

One commenter requested that the provisions for the emergency

disposal of materials posing a threat or nuisance to the public or the

environment be removed from the Michigan MSWLF permit program.

Discussions with the State indicated that this provision has not been

used to date and is intended only for extremely limited situations in

which the Director of the MDNR is petitioned and must specifically

grant approval for the activity. The USEPA is satisfied that the

existence or use of this provision does not undermine the effectiveness

of Michigan's program.

One commenter suggested that the reintroduction of leachate back

into any MSWLF unit, as currently allowable under Michigan rules, be

prohibited. The USEPA notes that the revised Federal Criteria allow for

the reintroduction of leachate or gas condensate derived from a MSWLF

unit in 40 CFR 258.28. The revised Federal Criteria require that MSWLF

units in which leachate or gas condensate is recirculated must be

designed with a composite liner and leachate collection system. In

addition, Michigan rules require that the Director of the MDNR must

specifically approve a plan for the recirculation of any liquids

derived from the MSWLF unit in an operating license for the facility.

Several commenters requested that owners and operators of MSWLFs

should be required to maintain a perpetual care fund for post-closure

care and corrective action for as long as the waste poses a risk to the

environment. Michigan did not apply for approval of financial assurance

requirements in its application for partial program approval. This

matter will be addressed when Michigan applies for full program

approval. Interested parties concerned with financial assurance

requirements for MSWLFs are encouraged to participate in the upcoming

legislative or regulatory action currently under consideration by the

MDNR on this issue.

As a State/Tribe's regulations and statutes are amended to comply

with the Federal MSWLF Criteria, unapproved portions of a partially

approved MSWLF permit program may be approved by the USEPA. The State/

Tribe may submit an amended application for review and an adequacy

determination will be made using the same criteria as for the initial

application. This adequacy determination will be published in the

Federal Register summarizing the Agency's decision and the portion(s)

of the State/Tribal MSWLF permit program affected and providing an

opportunity to comment for a period of 30 days. This adequacy

determination will become effective sixty (60) days following

publication if no adverse comments are received. If USEPA receives

adverse comments on its adequacy determination, another Federal

Register notice will be published either affirming or reversing the

initial decision while responding to public comments.

To ensure compliance with all of the revised Federal Criteria,

Michigan needs to adopt the financial assurance requirements of 40 CFR

258.70. If the Agency upholds the ban on field-filtering, the State

will be required to come into compliance with the provisions of 40 CFR

258.53(b).

Michigan plans to complete any revisions and amendments to its

MSWLF permit program by October 1995. Michigan began the process of

revising financial assurance requirements by issuing draft revisions

for comment on August 11, 1993. Comments on the initial draft have been

received and a second draft is currently being compiled. To allow the

State to begin exercising some of the flexibility allowed in States/

Tribes with adequate permit programs, the USEPA is approving those

portions of Michigan's program that are ready for action today.

The USEPA cautions Michigan that it currently plans to propose in

the STIR that all partial approvals will expire in October 1995 for

States/Tribes that have not received final approval for all provisions

of 40 CFR part 258 unless the State/Tribe can demonstrate to the

Regional Administrator that it has sufficient cause for not meeting the

deadline. If the Regional Administrator believes sufficient cause

exists, the expiration date may be extended. The extension and new

expiration date would be published in the Federal Register. Expiration

of a partial approval would mean that the Federal Criteria would apply,

and the flexibility provided for approved States/Tribes by the Federal

Criteria would no longer be available in the State/Tribe. The USEPA

urges Michigan to work diligently to make the necessary revisions to

those portions of its permit program that are not being proposed for

approval today.

D. Decision

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

application for partial program adequacy determination meets all of the

statutory and regulatory requirements established by RCRA. Accordingly,

Michigan is granted a partial program determination of adequacy for the

following areas of its municipal solid waste permit program:

1. General requirements, definitions, and consideration of other

Federal laws (40 CFR 258.1, 258.2, and 258.3);

2. Location restrictions for airport safety, floodplains, wetlands,

fault areas, seismic impact zones, unstable areas, and closure of

existing units (40 CFR 258.10, 258.11, 258.12, 258.13, 258.14, 258.15,

and 258.16);

3. Operating criteria for excluding hazardous waste, daily cover

material, disease vector control, explosive gases control, air

criteria, access restrictions, run-on/run-off control systems, surface

water requirements, liquids restrictions, and recordkeeping

requirements (40 CFR 258.20, 258.21, 258.22, 258.23, 258.24, 258.25,

258.26, 258.27, 258.28, and 258.29);

4. Design criteria (40 CFR 258.40);

5. Groundwater monitoring applicability, systems, detection

monitoring, assessment monitoring program, assessment of corrective

measures, selection of remedy, and implementation requirements (40 CFR

258.50, 258.51, 258.54, 258.55, 258.56, 258.57, and 258.58); and

6. Closure and post-closure care requirements (40 CFR 258.60 and

258.61).

Section 4005(a) of RCRA provides that citizens may use the citizen

suit provision of section 7002 of RCRA to enforce the revised Federal

Criteria independent of any State/Tribal enforcement program. As the

USEPA explained in the preamble to the revised Federal Criteria, the

USEPA expects that any owner or operator complying with provisions in

an approved State/Tribe program should be considered to be in

compliance with the revised Federal Criteria. See 56 FR 50978, 50995

(October 9, 1991).

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

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 30 days after publication in the Federal Register. All of the

requirements and obligations in the approved portions of the State's

program are already in effect as a matter of State law. The USEPA'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 the USEPA as Federal law. Consequently, the USEPA

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 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 action, 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: March 3, 1994.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 94-5612 Filed 3-9-94; 8:45 am]

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