«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.

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 	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:

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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.

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 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.

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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

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 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

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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

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 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.
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 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.

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  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.
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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.)
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  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
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