Virginia: Partial Program Determination of Adequacy of the Commonwealth's Municipal Solid Waste Landfill Permit Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4856-4]

Virginia: Partial Program Determination of Adequacy of the

Commonwealth's Municipal Solid Waste Landfill Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Partial Program Determination of Adequacy for the

Commonwealth of Virginia's Amended 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 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 governing 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

statutory authorities and requirements. In addition, States/Tribes may

use the draft STIR as an aid in interpreting these requirements. The

Agency believes that approvals prior to the finalization of the STIR

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 flexibility 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 landfill criteria will apply to all

permitted and unpermitted MSWLF facilities.

The Commonwealth of Virginia, through the Virginia Department of

Environmental Quality (VADEQ), has submitted an amended application for

a partial program determination of adequacy under section 4005 of RCRA.

EPA has reviewed Virginia's MSWLF application, dated December 22, 1993,

and today is issuing a determination of adequacy for those portions of

the Virginia MSWLF permit program that are adequate to ensure

compliance with the revised MSWLF Criteria. The portions of Virginia's

program which are subject to this approval are described later in this

notice. Virginia plans to further revise their program to assure

complete compliance with the revised EPA Criteria and apply for full

program approval in the near future. Virginia's original and amended

applications for partial program adequacy determination are available

for public review and comment at the locations listed below. Comments

in writing must be submitted to the EPA office listed below by May 2,

1994 to be considered.

EFFECTIVE DATE: This adequacy determination summarizes the Agency's

decision and the portion(s) of the state MSWLF permit program affected,

and provides an opportunity to comment for a period of 30 days. This

determination of adequacy for Virginia shall be effective May 31, 1994,

if no adverse comments are received. If EPA receives adverse comments

on its adequacy determination, another Federal Register notice will be

published either affirming or reversing the initial decision while

responding to the public comments.

ADDRESSES: Copies of Virginia's original and amended application for

partial adequacy determination are available from 9 a.m. to 4 p.m.

during normal working days at the following addresses for inspection

and copying: Virginia Department of Environmental Quality, 629 East

Main Street, Richmond, Virginia 23240-0009, Attn: Dr. Walt Gulevich;

and U.S. EPA Region III, 841 Chestnut Street, Philadelphia,

Pennsylvania 19107; Attn: Mr. Andrew Uricheck, mailcode 3HW53. All

written comments must be sent to the EPA Region III office.

FOR FURTHER INFORMATION CONTACT: U.S. EPA Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania 19107, Attn: Mr. Andrew R.

Uricheck, mailcode (3HW53), telephone (215) 597-7936.

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 40 CFR part 258. RCRA 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 the State/Tribal

Implementation Rule (STIR). The rule will specify the requirements

which State/Tribal programs must satisfy to be determined adequate.

In the proposed STIR, EPA provides for partial program approval 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 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(s) of 40 CFR part 258. These requirements when

promulgated will address the potential problems posed by the dual

State/Tribal and Federal programs that became effective in October 1993

in those States/Tribes that only have partial approvals of their MSWLF

programs. Owners and operators of MSWLFs subject to such dual programs

needed to understand which requirements apply and comply with them. In

addition, the Federal program that is in effect must mesh with the

approved portions of the State/Tribal program to leave no significant

gaps in regulatory control of MSWLFs. Partial approval allows 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 which have been approved.

As provided in the October 9, 1991 municipal landfill rule, EPA's

national Subtitle D standards took effect on October 9, 1993.

Consequently, portions of the Federal Criteria that are not included in

an approved State/Tribal program apply directly to the owner/operator

without the flexibility afforded to approved States/Tribes. On October

1, 1993, the October 9, 1993 effective date was extended for certain

smaller landfills and for certain landfills receiving waste from flood

disaster areas (58 FR 51536). The effective date is now April 9, 1994,

for MSWLFs that accept less than 100 tons of waste per day, are not a

Superfund National Priority List site, and are either in a State that

has submitted an application to EPA for approval before October 9,

1993, or are located on Tribal lands. The effective date has been

extended to October 9, 1995, for very small (less than 20 tons of waste

per day), remote landfills in arid climates that lack a practicable

alternative for waste disposal or experience significant climate

related disruption of surface transportation. Certain large facilities

receiving waste from flood disaster areas are also allowed an extension

of the compliance date if the State determines that these facilities

are needed for the disposal of flood debris. Most of these extensions

do not apply to facilities in Virginia. In addition, any state

regulations more stringent in scope or timing would prevail over the

Federal requirements.

EPA intends to approve portions of 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)(1) of RCRA. 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 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.

EPA also is requesting States/Tribes seeking partial program

approval to provide a schedule for the submittal of all remaining

portions of their MSWLF permit programs. EPA notes that it intends to

propose to make submission of a schedule mandatory in STIR.

B. Commonwealth of Virginia

On February 3, 1993, Vol. 58, No. 21 FR at 6955, EPA issued its

initial final determination of partial program approval for the

Commonwealth of Virginia. On December 22, 1993, Virginia submitted an

amended application for a further partial program adequacy

determination. In the December 22, 1993 submittal, Virginia included

their revised Municipal Solid Waste regulations which became effective

on March 15, 1993. EPA has reviewed Virginia's most recent application

and has determined that the following portions of the Commonwealth's

Subtitle D program will ensure compliance with the Federal revised

Criteria.

1. Definitions for active life, active portion, existing unit,

fault, lateral expansion, run-on, saturated zone, seismic impact zone,

unstable area, and uppermost aquifer in 40 CFR 258.2, 258.13, 258.14,

and 258.15, respectively;

2. Location restrictions for the post-facto demonstrations for

airport safety, floodplains and unstable areas, and the prohibition of

location in wetlands without demonstration in 40 CFR 258.10, 258.11,

258.15 and 258.12, respectively;

3. Operating requirements for the following: exclusion of hazardous

waste; daily cover; explosive gases control; and recordkeeping in 40

CFR 258.20, 258.21, 258.23 and 258.29, respectively;

4. Composite liner requirement consisting of an upper component of

a minimum of 30-mil flexible membrane liner (or 60-mil high density

polyethylene) installed in direct and uniform contact over a lower

component of at least a two-foot layer of compacted soil with a

hydraulic conductivity of not more than 1 x 10-7 cm/sec contained

in 40 CFR 258.40; or the option of demonstrating that an alternate

liner system meets the performance standard described in 258.40(a)(1);

5. Groundwater sampling and monitoring requirements, including the

structure and parameter coverage listed in Appendices I and II, that

are consistent with the federal Criteria under 40 CFR 258.53 and

258.54; and

6. Criteria pertaining to a length of the post-closure period as 30

years, and the level of detail as specified in 40 CFR 258.61.

The portions of the Virginia program listed above being proposed

for approval at this time, are in addition to those portions previously

approved by EPA in its initial partial approval notice dated February

3, 1993. With this approval, only the Financial Assurance Subpart G (40

CFR 258.70 through 258.74) remains unapproved in Virginia.

Virginia's MSWLF permit program has the authority to issue permits

that incorporate the requirements of the revised Federal MSWLF Criteria

to all MSWLFs in the Commonwealth of Virginia. In addition, the EPA has

determined that Virginia's permit program provides for public

participation, compliance monitoring, and enforcement.

As a state's regulations and statutes are further amended to comply

with the full federal MSWLF landfill regulations, unapproved portions

of a partially approved MSWLF permit program may be approved by the

EPA. The Commonwealth may submit an amended application to EPA for

review and a further adequacy determination. Any future 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. An opportunity for the public to comment during a

period of 30 days will be provided. The adequacy determination will

become effective May 31, 1994 if no adverse comments are received. If

EPA receives adverse comments on its adequacy determination, another

Federal Register notice will be published either affirming or reversing

the initial decision while responding to the public comments.

To ensure compliance with all of the revised Federal MSWLF Criteria

for obtaining final full program approval, Virginia intends to revise

their financial assurance regulations to include Subpart G of the

Federal Criteria. The 1993 session of the Virginia General Assembly

amended section 10.1-1410.C. of the Virginia Waste Management Act to

remove the exemption for the local governing bodies from the financial

assurance requirements. The effective date of the amendment was July 1,

1993. On July 7, 1993, the Department initiated the rulemaking

procedures to amend its Financial Assurance Regulations. Virginia has

submitted a schedule indicating that they expect the Virginia Waste

Management Board to promulgate amended regulations by November, 1994,

with an effective date in January, 1995. Virginia intends to apply for

final full program approval after promulgating these regulations which

will include the Financial Assurance requirements found in 40 CFR

258.70 through 258.74. To allow the Commonwealth to exercise some of

the flexibility allowed in states with adequate permit programs, EPA

proposes to approve all of those portions of the Commonwealth's program

that are currently in compliance with the Federal program.

EPA reviewed the Commonwealth's schedule and believes it is

reasonable because EPA's financial assurance requirements do not take

effect until April 9, 1995. With a January, 1995 effective date, the

Commonwealth's regulations will be implemented three months ahead of

the Federal regulations. In addition, the Commonwealth has removed the

financial assurance exemption for local governments.

The public may submit written comments on EPA's tentative

determination until May 2, 1994. Copies of Virginia's original and

amended application are available for inspection and copying at the

location indicated in the ``Addresses'' section of this notice. EPA

will consider all significant public comments on its determination

received during the public comment period.

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).

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 section

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

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

Dated: March 18, 1994.

Stanley L. Laskowski,

Acting Regional Administrator.

[FR Doc. 94-7707 Filed 3-30-94; 8:45 am]

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