«EPA United States Office of Solid Waste EPA 530-K-94-001 Environmental Protection and Emergency Response May 1994 Agency (5305) Municipal Solid Waste Landfill Permit Programs: Printed on paper that contains at least 50% recycled paper. program; J Summarize EPA's requirements for approval of permit programs; and J Outline the process for applying for permit program approval. ------- Preface A j / he U.S. Environmental Protection Agency (EPA) is / striving to improve the quality of municipal solid -*. waste management practices across the country. We recognize that we cannot achieve our goal alone. Federal, tribal, state, and local governments, as well as the private waste management industry, all have key roles in this effort. Who Is Affected? ~r -j~ nder tribal, state, or local law, owners and operators of / / municipal solid waste landfills must comply with the ^—' respective tribal, state, or local regulations. Under federal law, specifically Subtitle D of RCRA, owners and operators also must comply with the new federal MSWLF criteria. For purposes of the new federal MSWLF criteria, "municipal solid waste landfills (MSWLFs)" means land disposal facilities that receive household solid waste and which continued operation after October 9, 1991. MSWLFs may be owned or operated by the federal, tribal, state, or local governments; by private companies or individuals; or by utilities or special authorities. (See references listed at the end of this document or call the solid waste staff at the EPA Regional Office for your tribe if you have specific questions on the applicability of the federal landfill regulations.) Why Should a Tribe Seek EPA Approval of Its Permit Program? ^^^ ~j * ermits issued under a landfill permitting program i-— specify the requirements and conditions with which -*- MSWLF owners and operators must comply. This allows the permit to address the concerns and needs that are specific to the particular facility being permitted. Requirements and conditions can be written into the permit that are tailored to the specific facility. This is a much more flexible approach than having a single set of uniform requirements that all facilities must meet. There is no federal permitting program for implementation of the federal MSWLF criteria on tribal land. However, the criteria are written so that MSWLF owners and operators can implement them in either of two ways: ------- 1. An approved permitting program. Owners/operators comply with an EPA-apprqyed tribal MSWLF permitting program. Approval means that EPA .reviewed the tribal permitting program and found that it is adequate to ensure compliance with the federal criteria. The tribe would issue a permit to the owner and operator, specifying general and facility-specific requirements that the facility must meet in order to be in compliance with the federal criteria. The owner and operator would carry out the requirements of the permit issued by the EPA-approved tribal permitting program. Tribes that both regulate and own or operate landfills may need to address conflict of interest concerns in regulating these facilities. Where a tribe operates an EPA-approved permitting program, the tribe will be able to use its permitting process to avail landfill owners and operators of additional flexibility provided in the federal criteria. This flexible approach can be beneficial to the owner/operator, to the tribe, and to the tribal community. 2. No approved permitting program. If the tribe does not have an EPA approved permit program, owners and operators self- implement the federal criteria while also complying with all relevant tribal regulations. However, the owner and operator would not be able to take advantage of the flexibility available within approved tribes. A Tribe with an approved MSWLF permit program can provide flexibility,in the standards for landfill operations. ------- Three Options for Regulating MSWLFs on Tribal Lands J Develop a MSWLF permit program and apply for program approval. One option available to tribes is to develop a MSWLF permit program that ensures compliance with the federal MSWLF criteria. The tribe then can choose to submit an application to EPA for review. EPA will evaluate a tribe's MSWLF permit program to decide if it is adequate to ensure compliance. A complete program will include requirements for designing and operating a landfill, as well as all of the required elements of a permit program discussed later in this booklet. However, if the tribe has a permit program that does not address all of the federal MSWLF criteria, the tribe may be eligible to apply for approval of a partial program. Sections of regulation not included in partial approval are self-implemented by landfill owners and operators. If a tribe wants to obtain permit program approval in the future but does not have ordinances in place now, it may want to begin developing environmental codes and, eventually, a MSWLF permit program. When an adequate program is in place, an application may be submitted to EPA for review. J Develop an agreement with a state for joint regulation of MSWLFs on tribal lands. Under this option, the tribe would work with a state to develop a jointly implemented MSWLF permit program. Cooperating with a state may require fewer resources than developing a tribal program, but it also may result in relinquishing some tribal authority to the state. J Decide not to develop a program. Tribes, unlike states, are not required to develop MSWLF permit programs. If a tribe does not wish to develop an EPA-approved permit program, landfill owners and operators will implement the federal MSWLF criteria themselves. Tribes still may develop and enforce their own environmental codes to regulate municipal solid waste landfills, but owners/operators must continue to comply with the federal criteria. The chart on the following page summarizes the different program options. ------- Program Development Options Option Apply for full or partial program approval Cooperate with the state Decide not to develop a MSWLF permit program for EPA approval Requirements Advantages/Benefits Permit program Tribe can provide flexibility to MSWLF Tribal solid waste owners/operators code that ensures compliance with all or most (partial program) federal MSWLF requirements Enforcement authority Resources and expertise to run permit program Also required for partial program approval Provisions not included in the partial program are a clearly separable subset of 40 CFR Part 258 (federal MSWLF criteria) Two-year schedule for revisions necessary to obtain full approval Permit program (tribe Tribe and state can and/or state) pool resources and Cocle(s) to ensure expertise compliance with federal MSWLF requirements Formal agreement between state and tribe No action Owners and operators comply with the federal MSWLF criteria on their own Limitations/ Problems Requires sufficient financial resources, personnel, and technical expertise Could require relinquishing some tribal authority Tribe has no authority to provide flexibility to MSWLF owners/ operators ------- EPA encourages tribes to consult with EPA regional solid waste staff in deciding whether to apply for program approval. A list of EPA contacts is provided at the end of this booklet. What Are the Requirements for Program Approval? /f the tribe decides to apply for EPA approval, it must meet certain requirements. First, the tribal permit program must ensure compliance with the federal MSWLF criteria. Second, it must demonstrate the authority to implement and enforce the tribal MSWLF permit program. The authority may come from relevant statutes, regulations, or enforceable guidance documents. EPA's criteria for evaluating permit programs are based on the draft State/Tribal Implementation Rule (STIR), which EPA plans to promulgate in 1995. These requirements do not describe bow to implement the technical landfill criteria, nor do they require specific permitting procedures or enforcement actions. Instead, they emphasize the elements of authority needed to enforce the technical criteria. Each of these requirements is discussed below. Ensuring Compliance with the Federal MSWLF Criteria The federal MSWLF criteria establish technical standards in six areas that MSWLF owners and operators must meet: _l Location J Operation -J Design U Ground-water monitoring and corrective action -J Closure and post-closure care -i Financial assurance ------- To obtain approval, tribal permit programs must ensure that landfill owners and operators comply with all of the federal MSWLF technical standards. However, the tribe's technical standards do not have to mirror the federal requirements. That is, a tribe can develop its own technical standards based on local needs and conditions as long as these standards provide the same level of protection as the federal criteria. In reviewing the tribal application for program approval, EPA will evaluate whether the technical MSWLF standards are adequate to ensure compliance with federal standards. For example, the federal MSWLF criteria have operating criteria that require owners/operators to cover disposed solid waste with six inches of earthen material at the end of each working day. Approved tribes may specify alternative daily cover as long as the alternative meets the performance standards specified in the federal criteria. Implementing and Enforcing a MSWLF Permit Program In evaluating a tribal permitting program, EPA will determine whether the tribe has the authority (in statutes, regulations, or enforceable guidance) and organization to implement and enforce the tribe's technical MSWLF requirements. The tribe must show that the program includes authority and procedures for: J Permitting J Compliance monitoring J Enforcement J Public participation ------- Permitting A tribe seeking approval is required to have a permit program or another system of prior approval and conditions. A "system of prior approval and conditions" may mean any authorization, license, or equivalent control document issued under authority of the tribe (or state/tribe in the case of a joint state/tribal program) to regulate municipal solid waste landfills. We use the term "permit" throughout this booklet only for convenience. The tribe must show that it has the authority to issue enforceable permits to ensure that landfill owners and operators comply with the requirements of the tribe's MSWLF regulations. The tribal permit program must contain a strategy to ensure that all existing MSWLFs will obtain a permit. This strategy may include putting existing landfills on a schedule to receive a permit, scheduling review of existing permits, scheduling closure of landfills that are unlikely to come into compliance with the MSWLF requirements, or a combination of these approaches. In addition, the permit program must require that all new landfills obtain a permit prior to construction. The tribe also must have the authority to collect from the facility owner or operator any information needed to issue a permit. Approved tribal permitting programs must require all new landfills to be permitted. 8 ------- Compliance Monitoring^ The tribe must have ,the authority to monitor facilities to determine whether they are complying with the technical requirements of the . federal MSWLF criteria. Specifically, the tribe must show that: Li The tribe has the authority to: • Collect relevant information from owners or operators; • Conduct monitoring or testing to ensure compliance; and, • Enter any site subject to the permit program or in which records relevant to the operation of regulated facilities or activities are kept. j The permit program includes processes to: • Inspect facilities to determine whether they are complying with their permits; • Verify the accuracy of information supplied by the owner ^ or operator; • Verify the adequacy of the methods used by the owner or operator to develop the information; • Ensure consideration of information submitted by the public; and, • Supply adequate evidence to be used in enforcement proceedings. Enforcement To obtain program approval, the tribe must have the authority to take enforcement actions against any owner or operator who does not comply with the requirements of the MSWLF permit program. Specifically, the tribe must have the authority to use an administrative or court order or a lawsuit to stop activities that threaten human health or the environment. The tribe also must be able to sue to stop violations of program regulations and recover civil penalties. ------- Public Participation To be approved, the tribal permit program must ensure the public's right to be involved in permitting decisions and enforcement actions taken against violators of the MSWLF permit program requirements. The permit program must provide for: J Public review of and comment on permit documents; -J Consideration of public comments; •J Public notification of final permitting decisions; and -J Citizen participation in the civil enforcement process. How Does a Tribe Apply? f-r-i o apply for approval of its MSWLF permit program, a / tribe must provide the documentation listed below in an -*- application to EPA. This documentation should support the application and show that the permit program meets the requirements for approval. -I A transmittal letter requesting program approval; -I A narrative description of the permit program; -J A legal certification asserting the tribe's jurisdiction; J A map or legal description of the Indian lands over which the tribe asserts jurisdiction; -1 Copies of all applicable tribal statutes, regulations, and guidance; and J Copies of any agreements between the tribe and state for implementing the MSWLF permit program on Indian lands. 10 ------- As part of the legal certifieation mentioned above, the tribe must demonstrate its ability to regulate and take enforcement actions against activities of Indians" and non-Indians on Indian and fee lands. The tribe can make this demonstration by explaining how such activities would have a serious and substantial effect on the health and welfare of the tribe. For more information on documentation and EPA approval procedures, contact the appropriate EPA Regional solid waste staff for a copy of the STIR Manual for states and tribes. A good first step is to meet with, or telephone, the EPA Regional Office before writing the first draft of your application. For Further Information or more information on the federal MSWLF regulations and program application procedures, see: "Criteria for Solid Waste Disposal Facilities: A Guide for Owners/Operators." EPA/530-SW-91-089 "Safer Disposal for Solid Waste: The Federal Regulations for Landfills." EPA/530-SW-91-092 Solid Waste Disposal Facility Criteria, 56 PR 50978 - 51119, October 9, 1991 (also found at 40 CFR Part 258, revised as of October 1993) "Solid Waste Disposal Facility Criteria: Technical Manual." EPA 530-R-93-017 "State/Tribal Implementation Rule Manual." (Contact EPA Regional solid waste staff for a copy.) 11 ------- EPA Regional Solid Waste Contacts U.S. EPA Region 1 Waste Management Division (HI-CAN 6) JFK Building Boston, MA 02203 (617) 573-9656 U.S. EPA Region 2 Air & Waste Management Division (2AWM-SW) 26 Federal Plaza New York, NY 10278 (212) 264-0002 U.S. EPA Region 3 RCRA Solid Waste Program (3HW53) 841 Chestnut Street Philadelphia, PA 19107 (215) 597-7936 U.S. EPA Region 4 Waste Management Division (4WD-RCRA-FF) 345 Courtland Street, NF. Atlanta, GA 30365 (404) 347-2091 U.S. EPA Region 5 Waste Management Division (H-7J) 77 West Jackson Blvd. Chicago, IL 60604 (312) 353-4686 U.S. EPA Region 6 RCRA Programs Branch First Interstate Bank Tower 1445 Ross Avenue, Suite 1200 Dallas, TX 75202 (214) 655-6655 U.S. EPA Region 7 Waste Management Division 726 Minnesota Avenue Kansas City, KS 66101 (913) 551-7666 U.S. EPA Region 10 Hazardous Waste Division (HW-114) 1200 Sixth Avenue Seattle, WA 98101 (206) 553-2857 U.S. EPA Region 8 Hazardous Waste Management Branch (HWM-WM) 999 18th Street, Suite 500 Denver, CO 80202-2466 (303) 293-1661 EPA Region 9 Hazardous Waste Management Division (H-3-1) 75 Hawthorne Street San Francisco, CA 94105 (415) 744-2074 12 ------- |