Monday
June G, 1983
Part IV
Protection Agency
40 CFR Parts 284, 265, and 270
Delay of the Closure Period for
Hazardous Waste Management Facilities;
Proposed Rule
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20798
lt ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 264,2135, and 270
[FRL-3334-2] '[
-. ' . ... t|. .--...-
Delay of the Closure Period lor
Hazardous Waste Management
Facilities
AQENCY: Environmental Protection-
Agency. ' ,-'.
AcnoN^Proposed rule. ..'-'..
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to amend
portions of the closure requirements
under Subtitle C of the Resource
Conservation and Recovery Act (RCRA)
applicable to owners and operators of
certain types of hazardous waste land. '
disposal facilities. The proposed
__ amendments would allow, under limited
circumstances, a landfill or surface'
impoundment to remain open after the
final receipt of hazardous wastes in
order to receive non-hazardous wastes
in that unit. This proposed rule details
the circumstances under which a unit
may remain open to receive non-
hazardous wastes and describes the
conditions applicable to such units.
DATE Comments must be submitted on
or before July 21.1980.
ADDRESS: The public must send an
original and two copies of their
comments to: EPA RCRA Docket (S-201)
fWH-562), 401M Street SW.,
Washington, DC 20460.
Place the docket #F-88-D.CPP-FFFFF
on your comments. For additional
details about the OSW docket see the
"OSW Docket" section in
"Supplementary Information". .
FOR FURTHER INFORMATION CONTACT:
The RCRA Hotline at (800) 424-9346 (toll
free) or (202) 382-3000 in Washington,
DC, or Sharon Frey, Office of Solid
Waste (WH-563), U.S. Environmental
Protection Agency, 401M Street SW.,
Washington, DC 20460, (202) 475-6725.
SUPPLEMENTARY INFORMATION: The
OSW docket is located at: EPA RCRA
Docket (Sub-basement). 401M Street
SW.. Washington, DC 20460.
The docket is open from 9:00 to 4:00
Monday through Friday, excopt for
Federal holidays. The public must make
an appointment to review docket
materials. Call 475-9327 for
appointments. The public may copy
materials at the cost of S.15/page.
Charges under S15.00 are waived.
Preamble) Outline
I. Authority"
U. Background
HI. Synopsis of Proposed Rule
A. Rationale for Proposed Rule '
B. Summary of. Proposed Rule
IV. Section-by-Seqtion Analysis of Proposed
'Rule,' , . . ...
A. Applicability , , ,
B. Part 284 Standards . '
1.'General Conditions for Delay Of
Closure . j | , '': .'*: ' >'
a. Demonstrations for Extensions to
Closure'Deadlines .
. b. Changes to Facility Plans
, c. Exposure Assessment Information
d. Permit Revisions '
2. Surface Impoundments that Do Not
Meet Liner and Leachate Collection
System Requirements
a. Contingent Corrective Measures
Plan ;
b. Alternatives
' (1) Alternative 1Removal, of
Hazardous Wastes i
(. (2) Alternative 2Flushing! I
Hazardous Wastes ' '
' ' (a) Sludge Removal and Flushing
of Liquids .
\ ! (b) Relationship to Mixture Rule
i ' (3) Alternative 3Leaving
Hazardous_Wastes in Place
c. Corrective Action Requirements
(1) Disposal Impoundments ,
(2) Surface Impoundments at Which
Wastes Are Removed
1 (a) Releases at the Time of the
Final Receipt of Hazardous Wastes
(b) Releases after the Final
Receipt of Hazardous Wastes
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; Federal Register
180739
To make § § 264.113(b) and 265.113(b)
. consistentwith the deadlines in
1 . § §264.il3(a) and 265.113(a), the Agency
, ' proposed, on March 19,1985, that
". crosure.be completed within 180 days
after trie, final receipt of hazardous,
wastes .rather than after the final receipt
of wastes (50 FR 11068). The changes to
§ §264;il3(bj and 265.113(b) were
promulgated as proposed on May 2,1986
(51 FR 16422), following public comment.
After-prornulgation of the May 2,1986, ..
amendments,; lawsuits were filed
challenging the requirement that closure
be completed within 180 days after the
final receipt '-ot hazardous waste. The.
litigants, Union Carbide Corporation
(Union Carbide) and the Chemical .
Manufacturers Association (CMA),
contended that this change was
inconsistent (with the Congressional
intent evidenced in the Hazardous and
Solid Waste Amendments (HSWA)
legislative history regarding closure of
surface impoundments, and further that
the change was unnecessary to protect
human health and the environment, and
that it would discourage waste
minimization and other goals Congress
expressed in HSWA.
Union Carbide and CMA were
particularly concerned about the effect
of the amended closure regulations on
surface impoundments that ceased the
receipt of hazardous wastes in
compliance with section 3005Q) of
RCRA.. This section of the statute
... requires that all surface impoundments
: that had interim status on November 8,
. 1984;. either satisfy certain minimum
technological requirements (MTRs) (i.e.,
double liner, leachate collection system,
. and ground-water monitoring
requirements) applicable to new surface
'-, impoundments, receive a variance from
these.requirements, or cease the receipt,
storage or treatment of hazardous waste
,:. by November 8,1988. The May 2,1986,
closure rule would require interim status
surface, impoundments that failed to
meet MTRs by the November 8,1988,
deadline to close within 180 days,
because November 8, by statute, would
be the date of final receipt of hazardous
waste for these units. Union Carbide
and CMA, however, argue that the
legislative history of HSWA explicitly
indicates Congressional intent to allow
disposal surface impoundments that
stop receiving hazardous wastes to
remain open and receive non-hazardous
wastes after this deadline, even if they .
do not retrofit to satisfy the MTRs.
The legislative history of section
3005(j) of RCRA (130 Cong. Rec. S9182
(daily ed. July 25,1984)) contains a brief
discussion that indicates that the
retrofitting requirements do not in
themselves require the closure of an
impoundment that cease's to-receive .
hazardous wastes and that requiring
such closure would not be proper if the.
management of the impoundment were
protective of human health and the
environment. In the preamble to the
May 2,1988, final rule, the Agency
argued that, while the legislative history
evidences thai-fact that section 3005(j)
of RCRA itself does not mandale closure
of an interim status surface ;
impoundment that ceases to receive
hazardous wastes, it leaves.unimpaired
EPA's pre-existing authority to establish
by regulation additional closure
requirements as necessary to protect
human health and the environment. In
other words, EPA concluded that the
statute did not directly address the issue
and did not constrain its discretion to
promulgate closure regulations for
surface impoundments subject to the .
retrofitting requirements. EPA
concluded on a factual and policy-
making basis thai expeditiously closing
hazardous waste surface impoundments
after they stop receiving hazardous
wastes was necessary to ensure
protection of human health and the
environment. The Agency primarily was
concerned that, in certain
circumstances, proper management of .
the facility might be continued which
could lead to an increased possibility of
releases and therefore risks to human
health- and the environment
HI. Synopsis of Proposed Rule
A.-Rationale for Proposed Rule
Since the challenge to the May 2; 1986,
final rule, EPA has been engaged hi
negotiations to settle the suit brought by
Union Carbide and CMA. While no
written settlement of this action has yet
been signed, as' a result of the
discussions EPA now believes that it
may not be necessary to require closure
and termination of the receipt of
nonhazardous wastes al all non-
retfofitted surface impoundments. Under
certain carefully controlled
circumstances it may be possible for a
nonretrofitted surface impoundment to
continue to receive nonhazardous waste
in manner that is protective of human
health and the environment. EPA also
believes that other types of land
disposal units may be able to continue
to accept nonhazardous wastes if they
are similarly controlled. The types of
controls that EPA deems necessary are
discussed in detail in Part IV of this
preamble.
There also are a number of sound
policy reasons why it is desirable to
allow units to delay closure to continue
to receiye.nohhazardous waste, . .
provided that it does, not jeopardize
protection of human health and the
environment. First, the Agency is
concerned tha.t the existing closure
.deadlines could limit incentives for
hazardous waste minimization. This
would be inconsistent with the Ageny's
overall policies and goals as well as
Congressional intent expressed in
HSWA. For example, a generator with
on-site hazardous waste storage,
treatment, or disposal capacity might
refrain from recycling wastes or
modifying production processes to
eliminate the generation of hazardous
wastes, if such actions resulted in
specific units no longer receiving
hazardous wastes. In this case, the
current closure rules would require the
closure of that unit, even if it had
remaining capacity useful for the
management of nonhazardous waste.
Second, the land disposal prohibitions
may require that'owners and operators
of land disposal units stop using the
units for the management of certain
hazardous wastes, e.g., wastes
containing banned solvents. As a
consequence, these requirements might
trigger closure of the units, even if
capacity remains for managing other
hazardous wastes or nonhazardous
wastes in an environmentally protective
manner. Finally, the closure regulations
could act as a disincentive to the
delisting of a waste stream, if such
delisting resulted in a triggering of the
closure requirements.
In all of .these cases, the Agency
recognizes that closure of the unit while
the unit has remaining capacity to
receive nonhazardous wastes could
disrupt facility operations or impose
substantial- economic burdens on the
facility owner or operator. This is
particularly likely in the case of
treatment impoundments (such as
wastewater treatment units) that serve
as an integral part of an industrial waste
management.system, providing
management for both hazardous and
nonhazardous waste streams. The
Agency continues to believe that, in
general, units that cease the receipt of
hazardous wastes should initiate closure
in accordance with Parts 264 and 265
standards. However the Agency
believes that, under certain conditions,
closure activities can be deferred
without increasing the risks to human
health and the environment. For
example, landfills which meet the
permitting requirements to manage
hazardous wastes should pose few
additional risks to human health and the'
environment provided added
nonhazardous wastes are compatible
with previously disposed hazardous
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20740
Federal Register.^- VoL 53,-;jvjp.
6,;-1988 :/ Proposed Rules
wastes. Today's proposal attempts to -
promote these policy goals.while ,
continuing to protect human health and .
the environment by establishing specific
applicability requirements,
environmental controls and, the
continued application of Subtitle C
requirements to units wishing to remain
open after the final receipt of hazardous
wastes to receive nonhazardous wastes.
The Agency therefore is proposing to
allow units-that cease the receipt of
hazardous wastes to delay closure, so
that they may remain open to receive
nonhazardous wastes provided that they
meet the requirements of today's
proposal in addition to current Subtitle
C regulations. EPA considers these
requirements discussed below to be
consistent with the full set of regulatory
and legislative requirements currently in
place for units or facilities that accept
hazardous waste. -
ff. Summary of Proposed Rule
' Today's proposal would allow an
owner or operator of a permitted or
interim status surface impoundment or
landfill in compliance with applicable _
requirements io remain open following
the final receipt of hazardous waste to
receive only non-hazardous wastes, if he
additionally satisfies the specific
conditions being proposed today, and ,
continues to conduct operations in
accordance with all applicable Subtitle
C interim status and permit
requirements. [The requirements
included in today's proposal vary with
the type of unit, with additional
conditions imposed on surface
impoundments that do not meet the Part
264 liner and leachate collection system
requirements. In general, however, the
facility owner or operator would be
required to operate under full permit
requirements of 40 CFR Part 264,
including corrective action
requirements. [Facilities currently in
interim status Which meet the
requirements of today's proposal may
defer closure while the permit
application is being reviewed. In
addition, surface impoundments that did
not meet the liner and leachate
collection system requirements would
be required to [remove all hazardous
..waste, or, if hazardous waste were not
removed, to close at the first indication
of ground-water contamination.
Exhibit 1 shows requirements
applicable to all owners or operators
wishing to delay closure, regardless of
the type of unit involved. The-1 |
requirements for permitted and interim
status facilities are basically the same;
the differences are primarily procedural
in nature. As Exhibit 1 illustrates,
-owners or operators wishing to.keep
units open would be required to seek a
permit modification at least 120 days
prior to the final receipt of hazardous
wastes, or, for interim status facilities,'
to submit an"amended Part B permit
application (or a Part B application if not
previously required) at least 180 days
prior to the final receipt of hazardous
wastes. (Owners or operators of units
that received their final volume of
hazardous wastes before the
promulgation of this rule would be
eligible to keep their units open if they
submitted the appropriate
demonstrations within 90 days after the
notice of the final rule has been
published in the Federal Register.)
.JELLING CODE 6560-50-M
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;-><::;:;^y:vr: .-^'F^de^al'Regisferi/^ofi
1 '".'' 'Exhibit 1 '"''.'.'."
Requirements Applicable to AH Facilities
Wishing to Defer Closure
1988 ^PropfJsi-fJ Ruieg::::.;::.,Jj;,-^Q741
suomit permit Modification'/ .
Revised Part B Application Iwith' g
Demonstrations and Revised Plans
of §§264.113(d)/265.113(d) a
720 Days .(180 Days for Interim Status)
Finai Receipt of
Hazardous Waste
. Non-MTR Impoundments
Comply with §§264.113(e)
i and 265.113(e). See
Exhibits 2, 3, and 4
Receive Non-Hazardous Waste/
Continue to Comply with
Subtitfe C
Notification
of Closure
I
30 Days (150, Days for Interim Status)
Final Receipt of
Non-Hazardous Waste/Closure
Note: If a permit or permit modification is denied at any
time, or interim status terminated for the affected
unit, closure pursuant to §§ 264.113(a) and (b) or
265.113(a) and (b) must be initiated.
BILLING CODE 6S60-50-C
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20742
Federal Register./ VQl.531,:Nq...l08r.,/!.:MQBday^:June :6,»;1988 /!Proposed Rules
The request for a penriit modification
or the amended Part B permit
application must include a number of t ,
, demonstrations, including ones showing
that: (1) The unitlhas the existing de|sigh j |
I capacity to manage non-hazardous' I j i
wpstes; and (2) the non-hazardous ' ' '
wastes are not incompatible with any
remaining wastes in the unit. As part of
the permit modification or the amended
Part B application, the owner or
operator also must submit revised --
facility plans, including the waste
analysis, ground-water monitoring, and
closure and post-closure plans, and, if
necessary, the closure and post-closure
cost estimates and financial assurance
to reflect changes associated with
operating the'unit to receive only non-
hazardous wastes. , !
Owners or opera tors" wishing to
remain open following the final receipt
of hazardous waste also must continue
to comply with all.Part 284 permit
requirements (or Part 265 requirements
until a permit has been issued),
including ground-water monitoring and
corrective action requirements and
closure and post-closure care
requirements. In addition, if the
Regional Administrator determines that
continued operation of the unit or
facility will pose a substantial risk to
human health and the environment, the
unit would not be eligible to delay
closure. Data collected pursuant to
RCRA section 3019 and any other
relevant information may be used by the
Regional Administrator to make a
determination of whether a substantial
risk exists.[Finally,'units must be closed
hr accordance | with the approved closure
plpn and tl^e Sjiibpart G regulations
applicable to l|.azardous waste
management units. Owners or operators
must notify the JAgency at least 30 days
prior to the final receipt of non-.
hazardous wastes at that unit (or at
least 150 days for interim status units
without approved closure plans] and
initiate closure activities in accordance
with Subpart G regulations;
If a request to modify the permit to
manage only non-hazardous wastes-is
denied, the permit is revoked at any
time, a $CRA permit is denied for
interim status Facilities or .interim status
is otherwise terminated,' the owner or
operator must Initiate closure following
f the final receip'tj'of hazardous waste.
; Closure must be' conducted in i
accordance with the approved closure-
plan and the deadlines- currently in ' '
§ 264.113 (a) and (b)' or § 265.113 (a)!and
(b).
. Today's proposal includes an
additional set of requirements
applicable to surface impoundments that
do not satisfy the liner and leachate
collection systeip requirements specified
under HSWA or have not received a
waiver from these requirements, but
wish to remain open for non-hazardous
waste management. For these
impoundments, the Agency is proposing
a" combination of source control.
accelerated corrective, measures, and
strict limitations on continued
operations following the detection of a
release to ground water. The Agency
believes that compliance with these
additional requirements and limitations
when coupled with cessation of the
receipt of hazardous wastes at these '
impoundments, will ensure the
protection of human, health and the
environment. Exhibits 2, 3, and 4 show
the-additional requirements applicable
to surface impoundments that do not
meet the liner and leachate collection
system.requirements. These
requirements, which are in addition to
the requirements shown in Exhibit 1 and
discussed above, are briefly summarized
below.
In addition to these general
requirements, aljl owners arid operators
of surface impoundments subject to
section! SOOSfj^that do not satisfy the ,
liner and leachate collection system
requirement (Exhibits 2, 3, and 4] must
provide a contingent corrective .
measures plan with their request to
modify the permit (or, for interim status
facilities, in their amended Part B permit
application). This plan will ensure that
corrective measures can be
implemented promptly in the event of a
release. (The contents of a contingent
corrective measures plan are discussed
in IV.B.2.a of today's preamble.)
BtUJNQ CODE 6560-50-M
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-Federal Register*/. Vol. 53, .
Monday; June 6, 1988 / Proposed Rules, M_
: :..'. ..' " : .'.",-,'v. . Exhibit 2 '' "..''.: ' .' ;;.',
Surface Impoundment/Waste Removal Alternative with
Release Detected Before/At Time of Final Receipt of
Hazardous Wast4 |
Submit Permit Modification/Revised
Part B Application with Demonstrations
and Revised Plans of §§264.113(d)/
265.113(d) and-Contingent Corrective
Measures Plan
720 Days (180 Days for interim Status)
Final Receipt of Hazardous |
'-; ,':-: .'; ;';-!;.;'f^Waste . '. ..-*; I
. ' .-" :'" ".. -^ ,V'.'^
;' 90 Days
Removal/Dfsplacement of |
Hazardous Waste I
i
r
Implement |
Corrective Action 1
'i
r-
Receive Non-
: Hazardous Waste
1
No
Substantial
Progress for
Corrective
Action
Closure
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M^^
ibif 3
Surface impoundment/Waste Removal Alternative with
>. Release Detected After Fmt^ .Receipt1 of Hazardous Waste
Submit Permit Modification/Revised
Part B Application with Demonstrations
and Revised Plans of §§264.113(d)/ '
265.113(d) and Contingent Corrective
; Measures Plan' . . .
720 Days (180_Daysfor Interim Status)
Rnal Receipt of Hazardous
Waste
90 Days ,.
Removal/Displacement of
Hazardous Waste
Receive Non-Hazardous Waste
Release
> Detected
Implement Corrective Action While
Receiving Non-Hazardous Waste
I
Corrective
Action not in Place
Within 1 Year and/
or No Substantial
Progress
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Federal
^§fes:^/-::v"^
-53.: ^lO^^^A^^^^^p^iyga;Rtile^'" V
20745
^ \w Exhibit. 4
Surface Impoundment/Hazardpus Wastes Remain Alternative
Submit Permit Modification/
Revised Part B Application with
Demonstrations and Revised Plans
of §§264.113(d)/265.113(d) and
Contingent Corrective Measures
Closure
if
release
detected
Plan
12.0 Days (180 Days for Interim Status)
Fihar Receipt o^
Hazardous Waste
Receive Non-Hazardous
.Waste
Closure and
Corrective Action
Closure
release
detected
BILLING COOE 6660-50-C
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,V^JU;'?2Q^^^.../.\.Fjid^ iigJBSr/yPrppbsed-Rules . " v .
., With the submission of these initial.-...
c demonstrations and contingent
corrective measures plan, the owner or
operator must indicate whether he
t Intends to' remove wastes' from'the,
' impoundment or not. As summarized
below and in Exhibits 2,3, and 4, this
4 decision will determine both eligibility
of the impoundment to delay closure .
and the specific additional requirements
applicable to the impoundment.
Selection of an alternative will depend .,'
In part on whether a release has been
* detected from the impoundment.
If a release has been detected at an
impoundment at or before the time of
the final receipt of hazardous waste, the
unit will be eligible to delay closure only
if (1) the hazardous wastes are removed
as discussed below and (2) corrective
measures are implemented prior to the
receipt of non-hazardous wastes (see
Exhibit 2). Waste removal may be j
" accomplished By either removing all
hazardous liquids and sludges or, if
removal of afl hazardous wastes is
infeasible or impracticable, by removing
the sludges and displacing the
'hazardous liquids and suspended solids
with non-hazardous wastes. Owners or
operators who do not intend to remove
the hazardous wa'stes from the
impoundment (i.e., disposal
impoundments] are not eligible to delay
closure if a release has been detected at
or before the final receipt of hazardous
wastes.-
' If releases are detected after the final"
receipt of hazardous wastes, owners or
' operators of units that have removed -'
sludges and removed or displaced the
hazardous liquids may continue to..
operate the unit to receive non-
hazardous wastes provided that
corrective measures are implemented,
within bne year from-the date of the- '
release (see Exhibit 3). Owners or
operators who do not remove all
hazardous wastes prior toVeceiving only
non-hazardous wastes (i.e., disposal
impoundments in Exhibit 4) must
promptly initiate closure within 30 days
of detection of the release in accordance
with the deadlines in § 264.il3(a) and
(b) or § 265.113(a) and (b) if a release is
subsequently detected.
Regardless of when the release is
detected, the owner or operator must
begin closure if he fails to make
substantial progress in implementing the
corrective measures and achieving the
ground-water protection standard (or
background levels for facilities that have
no established ground-water protection
standard). Substantial progress will be
determined on a case-by-case basis..In
general, however, the achievement of.
substantial progress will b'e measured
by.whethier-jhe owner or' operator has=
met significant deadlines in the
compliance schedule, permit, or '. ;; -
enforcement-order that establishes
tin) eframes for achieving the facility's
ground-water protection.standard or
background levels, if applicable. The
Agency also is proposing procedural
requirements for triggering closure of the
unit if the Agency determines that the
owner or operator fails to demonstrate
' substantial progress. This is discussed
further in Section IV.B.2.d of today's
proposal. -''; " '- '>'' : .-:-.-
Today's proposal applies only when
an owner or operator of-a unit wishes to
remain open following the final receipt
of hazardous wastes to receive only
non-hazardous wastes and meets all of
the conditions in today's rule. Today's
rule does not affect requirements
applicable to owners or operators
allowed to receive hazardous waste .
who wish to suspend operations
1 temporarily and receive additional
hazardous wastes in the future: The
existing requirements in § 264.113(a) and
(b) and § 265.113 (a) and (b) already
include provisions for extending the
deadlines for initiating and completing
closure under these circumstances. The
current Subpart G regulations also do
not preclude jan owner or operator from
receiving non-hazardous wastes during
the closure period as part of the closure
activities provided that it does not
.interfere with .closure activities. Today's
proposal also does riot affect these -...--.
requirements. .".. .-. . :/'';.";'--;....'
IV. Section-by-Section Analysis of
Proposed Rule . ...
-The following sections' of this
preamble address the major issues and
present the Agency's rationale for the
specific regulations proposed today. The
preamble is'arranged in a section-by- . ..
' section sequence" for ease of reference.- - :
Section A addresses the applicability of
today's proposal. Section B discusses
the Part 264 technical requirements
applicable to permitted facilities, while
the Part 270 procedural requirements
applicable to, permitting are addressed
in Section C. ^Section D discusses the
conforming changes to Parts 264 and 265
interim status standards. The
requirements proposed in Parts 264 and
265 are subst|antively identical, but have
slightly different procedural
requirements.
A. Applicability
Today's prbposal is restricted to
permitted and interim status landfill and
surface impoundment units that: (1) Are
in compliance with applicable-permit or
interim status requirements;. (2) cease to
receive hazardous wastes; and (3) will,
'subsequently receive only non-' "'-'
hazardous waste. For a .unit to qualify as
no longer-receiving-hazardous wastes,
no additional hazardous wastes or .
wastes that generate a hazardous, waste,
shall be placed in the unit.1 Today's
proposal does not extend the option to
delay-closure to units that lost interim
status pursuant to section 3005(e) (2) or
(SjofRCRA.
. Today's proposal also does not extend
the option to delay closure to manage
only non-hazardous wastes to storage
units (i.e., storage or treatment tanks,
container storage areas, or waste piles),
incinerators, or land treatment units. If
owners or operators of such units wish
to receive non-hazardous wastes after
the final receipt of hazardous wastes,
they must comply with the current
closure requirements, including
decontamination procedures. The
Agency believes that the activities
necessary to close storage units (i.e.,
tanks, container storage areas, waste
piles) and incinerators are compatible
with the future'use of the unit because
by definition these units were always
intended to only handle wastes on a
temporary basis. Further, the Agency
believes that requiring these units to
conduct closure prior to receiving only-
non-hazardous wastes will not impose
an undue burden on owners or
operator's.
. The Agency is also not proposing in
...today's rjile to allow land treatment
units the option of delaying closure
following the final receipt of hazardous
'waste. The Agency is not currently
aware of any likely situations when the
delay of closure to receive only non-
hazardous wastes would.be desirable or
practical. However, EPA requests public
comment on whether the option to. delay
closure should be applicable to land
treatment units, If there are reasons to
allow owners or operators of these units
the option to remain open following the
final receipt of hazardous wastes to
receive only non-hazardous wastes, they
would become subject to the
requirements proposed in §§ 264.113(d)
or 265.113(d), including demonstrations
that the management of non-hazardous
wastes in the land treatment unit will
not be incompatible with any prior
hazardous waste management
1 For example, when a non-listed rinsewater from
an electroplating operation is discharged into a
surface impoundment, a listed wastewater
treatment sludge from electroplating operations is
formed in the impoundment. While the waste that
enters the impoundment is non-hazardous, a listed
hazardous waste is generated and thus received in
the impoundment. Therefore, this unit would not
qualify as a unit no longer receiving hazardous
wastes...- .-.-.-' '-'.'*"'..: '.---.;
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operations. Owners, or operators also
would continue to be subject to all
applicable Parts 264 or. 265 requirements
under Subpart M, including the '
treatment demonstration requirements
Sri § 264.272. )' , | '. ; :. ., . '
EPA also requests comments on
whether the closure delay option offered
to landfills and surface impoundments
should be extended to other hazardous
waste, units. We also request comment
on.the types of requirements that would ,
,.be appropriate for other types of units
seeking to delay closure in order to
change to non-hazardous waste
operations after the final volume of
hazardous waste has been received..
B. Part 264 Standards
The Agency is proposing to amend
§ 264.il2(d) and § 264.113 (a), (b), and
(c), and. to add new paragraphs (d) and
(ej to § 264,113.
As previously discusse'd, the current -
Part 264 standards require a facility
owner or operator to treat, dispose of or
remove all hazardous wastes within 9O
days (264.113(a)) and to complete
closure activities within 180 days
(264.113(b)} of the last receipt of
hazardous wastes. Further, 264.112{d)
establishes that the date that the owner
or operator expects to begin closure, and
therefore must notify EPA, is no later
than 30 days after the receipt of-the last
known volume of hazardous wastes..
Today's amendments will provide an
additional justification for an extension
of the closure, period to allow for'
; management of only non-hazardous
wastes. Additionally, a conforming
change is being made to | 264.112(d} to .
address final closure of units that
qualify for this, new closure extension.
The changes to § 264.113 supplement
the existing general facility and
technology-specific Part 264 standards
by adding a separate set of requirements
for owners or operators of hazardous
waste management units that will delay
closure in order to remain open to
manage solely non-hazardous waste
streamfs). These requirements are
proposed to provide assurance that
public health and the environment will
be adequately protected at these units
during the period prior to closure. All
owners or operators wishing to delay
closure are required to apply for a
modification,of their facility operating
permits. This permit modification
request must be accompanied by certain
demonstrations and amended facility
plans. Procedures for requesting a
permit modification to delay closure,
including timing requirements, are
discussed in Section IILC of this
preamble. Additional requirements are "
proposed in § 264.113(e) for surface
impoundments that do not meet the liner
and leachate collection system
requirements in Part 264. Surface .
impoundment units will be subject to
proposed:||: 264^113 (d) and (ej) whereas
landfill units will be subject to proposed
§ 264.113(d) only. The owner qr operator
must also continue to comply with
existing Part 264 permit requirements.
1. General Conditions for Delay of
Closure. ' ' ',.'.'_ ; ' -
.Today's proposed rule imposes
additional requirements on units
wishing to remain open after the final
receipt of hazardous wastes. These
requirements supplement existing .
Subtitle C requirements. Under today's
proposal an owner or operator must
comply with all other applicable Part
264 requirements, including ground-
water monitoring and corrective action
requirements. Additional requirements
are discussed below and in Section
IV.B.2. A discussion of deadlines for
complying with these requirements is in
Section IV.C.
a. Demonstrations for Extensions to
Closure Deadlines. Proposed §§ 264.113
(d) and (e] specify the conditions which
must be met to delay closure to manage
only non-hazardous wastes. First, the
owner or operator must request a permit
modification and, under § 264.113(d)(l)
make a series of demonstrations.
Sections 264.113(d)(l) (i) and (ii) propose
that the owner or operator demonstrate
that the unit has existing .design .
capacity to receive non-hazardous .
wastes, and that there is a reasonable
likelihood that the unit will receive non-
hazardous wastes within one year after
the final receipt of hazardous wastes.
These demonstrations are consistent
with the demonstrations currently
required in § §264:113'(a) and (b) to
extend the closure deadlines if an owner
or operator wishes to suspend
hazardous waste management
operations temporarily and recommence
"receiving hazardous wastes at a later
time. " . '
Design capacity as specified in these
sections refers to the operational design
capacity included within the facility's
Part A application. Since a primary
purpose of the proposed rule is to allow
facility owners and operators with
existing waste disposal capacity to use
this capacity effectively, the Agency
does not believe that facilities should be
allowed to expand their design capacity
to accommodate even greater amounts
of wastes.
In addition, to ensure that use of the
unit to manage non-hazardous waste is
protective of human health and the
environment, the Agency is proposing to
require in § 264.113(d)fl}pii> that owners
or operators must demonstrate that . .
treatment, storage, or disposal of non-
' hazardous waste (including the
interaction between non-hazardous
wastes that may be co-managed) will
not pose.any potential threats to human
health and the environment as a result
of past and existing hazardous waste-
management operations. In this
demonstration, owners or operators
would be required to consider fully any
potentially detrimental effects
concerning the design, operation,
closure, and post-closure of the unit due
to the addition of non-hazardous wastes.
Potentially detrimental effects include
those due to the incompatibility of non-
hazardous wastes and constituents with
the hazardous wastes that previously
had "been disposed of in the unit. For
example, detrimental effects might occur
if a neutral pH metallic sludge (listed as
F006) remained at the bottom of a'unit
that received non-hazardous waste
containing relatively high, acid levels.
The elevated levels of acid in the non-
hazardous waste would tend to
solubilize the metals in the F006 sludge,
resulting in a leachate with potentially
significant levels of toxic metals.
Potential problems that may affect a
unit's ability to comply with Subtitle C
requirements also must be addressed^
For example, at a landfill the impacts of
adding non-hazardous wastes may
include subsidence, settlement of the
cap, or leachate or methane gas
" generation.
:. , In many cases, especially for
wastewater treatment impoundments,
both hazardous and non-hazardous
waste streams will have been previously
' managed simultaneously in the unit and
compatibility of operations should be
relatively easy to demonstrate to the .
Ag'ency. On the other hand, EPA does
not believe, for example, that receipt of
municipal solid waste at a landfill
previously used to manage hazardous.
waste would ever be considered
. compatible given the potential for the
generation and migration of methane
gas, subsidence, and settling of the cap.
As discussed below, the proposal
requires that the unit continue to comply
with all RCRA Subtitle C permit
conditions. Because a unit or facility
that delays closure is handling non-
hazardous wastes, such Facilities may be
subject to State laws regulating the
management of municipal or industrial
solid wastes. Therefore, the Agency
expects owners and operators to
conduct management of the non-
hazardous wastes in a manner
consistent with any applicable State and
local requirements for facilities that
. handle non-hazardous wastes.
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S. kX&$3^os.)^<'f*M^8y;: June^^lSjB^.;:/; Korio8ed:Rules7
Finally, §§ 284.113(d)(l) (iv) and (v}
require owners and operators to'
j demonstrate that closure of the unit is
incompatible with its continued
, operation and that the unit is (and will
continue to be) in compliance with all
applicable permit requirements. These
requirements are'consistent with current
requirements for approval to extend the
closure period under §§ 264.113 (a) and
(b). In reviewing compliance with : . "
applicable regulations, the Agency.is
concerned that ground-water, systems
pursuant to § 264.97 be in place. The
Agency in particular would expect
facilities delaying closure under today's
proposal to have monitoring wells in
place as required by Subpart F.
b. Changes to Facility Plans. The
Agency is proposing in § 264.113(d)(2) to
require as a condition of delaying
.closure that owners or operators submit,
with their permit modification, a request
to make the appropriate changes'to the
waste analysis, groundrwater
monitoring and response, and closure
and post-closure plans, and associated
changes to the closure and post-closure
cost estimates and financial assurance
required elsewhere in Part 264. Just as
facility plans must be revised to reflect
substantial changes in the types of
hazardous wastes handled or the
hazardous waste management practices
employed, the Agency believes that
selected plans for the facility, and, in . .
particular, the waste analysis plan,
ground-water monitoring plan, and \
closure and post-closure plans and cost
estimates, may have to'bemodified to
reflect the changes associated with
operation of the unit to receive" only non-
hazardous wastes. ..''
The ground-water monitoring plan ":
may alsojneed to be revised to account
for the presence of any hazardous
constituents, such as those published in
Appendix Vin of Part 261 or Appendix
IX in Part 264, in the non-hazardous
waste. In addition, at some facilities it
maybe necessary to revise the ground-
water monitoring plan to address the
installation of additional wells for those
units that will be remaining open to
receive only non-hazardous wastes in
order to detect releases from those units.
Revisions to the closure and post-
closure plans may be necessary if the
activities to be conducted differ from
those previously planned (e.g.,
procedures for handling wastes at
closure or the date of final closure, if
required under § 264.112(b)(7)]. To the"
extent that revisions to the closure or
post-closure care plans increase the cost
estimates, the cost estimates and the
amount of financial assurance required
in §§ 264.143 and 264,145 also must be:
, increased. ; , -;..; . .- :». c ..
c. Exposure Assessment Information.
Under proposed § 264.113(d)(4), owners.
jor operators [of landfills anil surface
impoundments m'ust include the human
' exposure assessment required under .
RCRA section 3019(a). Facilities will not
be eligible to delay closure to receive
non-hazardous waste if the Regional
Administrator determines that the unit
. poses a substantial risk to human
health. Suchta determination will be
based on data from the human exposure
assessement,- as well as on any other
relevant information. Upon
determination that a unit poses a
substantial risk to human health, the
unit will be required to close follcfwing
the final receipt of hazardous wastes
pursuant to the current deadlines in.
Subpart G. ; - -
d. Permit Revisions. Finally, the
Agency is proposing in § 264.113(d)(5) to
require that the request to.modify the
permit include revisions as appropriate
to affected conditions of the permit to
account for the management of only ,
non-hazardous waste in a unit '
previously managing hazardous waste.
Because some hazardous constituents
may remain in a .unit even in cases
where hazardous wastes have been
flushed or removed, the Agency believes
that it is important for the protection of.
human health arid the environment that
information concerning the management.
of non-hazardous waste be included in
the permits of facilities seeking to delay
closure under today's proposal. In '.
addition, this requirement is consistent
with the Agency's intent that units
delaying closure continue to be subject
to the permitting requirements of. ..
Subtitle C. Receipt of non-hazardous .
waste under today's proposal, therefore,
would be considered analogous to
adding a hazardous waste stream to a
facility during its normal operating life.
Permit revisions that the Agency would
consider necessary include revisions to
the exposure Information required under
§ 270.10(j) to account for the potential
danger to the | public due to the
continued presence of hazardous
constituents in the unit following the
final receipt of hazardous waste. A list
of the non-hazardous wastes to be
managed as required for hazardous
waste under §§ 270.17(a) and 270.21(a),
and revised descriptions of the
processes to be used in the unit for
treating, storing, and disposing of
wastes as required under § 270.13(h)(i) '
would also be required. Other required
revisions might include an updated .
demonstration of financial assurance as.
required'under § 270.14(b)(15) and a '
' revised ground-water monitoring plan'as
required under § 270.14(c)(5).and
- discussed in Section IV.B.X.b above.
i 2'. Surface impoundments that Do Not
Meet Liner and Leachate Collection
System Requirements
Congress.has recognized that surface
impoundments may pose certain waste
management problems as evidenced by
the.provisions of RCRA section 3005(j),
which state that interim status surface
impoundments in existence on
November 8,1984, must either satisfy
the MTRs applicable to new units (i.e.,
be designed with double liners, leachate
collection systems, and ground-water
monitoring), receive a waiver from these
requirements, or stop-the receipt,
storage, or treatment of hazardous
wastes by November 8,1988. These
requirements are discussed in the March
;28,1988 Federal Register (See 51 FR
. 10707).
.'"' Because of this additional concern for
surface impoundments that do not meet
the MTRs, and Agency believes that
controls beyond those already discussed
above must be imposed on these units
as a condition of delaying closure to
receive only non-hazardous wastes
where.some hazardous wastes are to
remain in the unit. For surface
impoundments that othrewise satisfy the
permit requirements (including
compliance with Subpart F ground-
water monitoring) but do not meet liner
and leachate collection system.
requirements, EPA believes .that
additional controls are necessary to
ensure that such units delaying'elosure
under.today's proposed rule afford a
level of protection consistent with that
of units that are retrofitted to meet these
requirements. Although these units are
no longer receiving additional .
hazardous wastes, hazardous wastes
(e.g., sludges) from previous operations . -
may be presentjn the unit. Because of
the potential presence of hazardous
wastes in these impoundments,
continued operation of the units for any -
waste management is concern due to the
likelihood of leakage, especially from
unlined units. Therefore, today's rule
proposes that all surface impoundments
that do not comply with double liner
and leachate collection system
requirements in Part 264 applicable to
new units and RCRA section 3005{j)
must submit not only the required
demonstrations and the modified facility
plans.discussed above, but also comply
with additional requirements in
§ 264.113(e) to ensure protection of
human health and the environment.
These requirements are discussed
'below.- '''.'-, i-.-c-.: , :- " .X::.-.
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%|a^alf:Re£st^^
; -&.:Coiitingent Corrective Measures, r
P/O/J; In addition to the demonstrations
and requirements described in IV.B.1
' above, proposed § 264.113(e)(l) requires
owriers or operators of surface .-
impoundments that do not satisfy liner
: and leachate bollection'system
:' requirements to submit a contingent
corrective measures plan with the
:, request to modify the permit as a
condition of delaying closure unless a
corrective action plan has already been
submitted under § 264.99.1 (The' - -
requirements for initiating corrective
actfon are discussed further in today's
. preamble at IV.B.2.C below.) Requiring
this plan in advance of a release will
ensure that if ;a leak does occur,
corrective measures can be
implemented quickly to prevent further
contamination of ground water, contain
existing contamination, and lead to
j steady progress in achieving the ground-
I water protection standard at the unit.. ' |
The-Agency:expects such a plan to'. '' :
1 include.as many elements of a full
corrective action program as possible ~
and to be sufficiently detailed with
respect to actual remedial activities to
ensure rapid implementation in the
event of a release. Because the exact
extent and type of release will not be
known; the contingent corrective
measures plan should describe a range
of possible remedies that may be
appropriate under several likely release
scenarios. While the'Agency recognizes
. that it would be impossible to plan for
"all contingencies, EPA believes that, ;
." using data on the types of constituents :
' atthe facility, hydrogeologic conditions,1"
. "location of-ground-Water'monitoring
wells,.and available remedial . . '-'
. -technologies, it is possible to develop a
[.fairly detailed set of'alternative - '-' '
'/measures., "-.i-.--.-i.vS A''...".''"
ij :The plan should include an' '" ""''' "'-";
' extrapolation of future contaminant
movement, .a discussion of the likely
contaminants-of concern, and a '
.- description of those corrective measures
that can be installed-quickly to address
inter alia releases of different types of
constituents or releases at variable rates
and plumes of different size and depth.
The plan should also identify potential
interim measures such as alternate
water supplies, stabilization and repair
of side walls, dikes, and liners, or
reduction of head, if appropriate. The
range of corrective measures should be
described in detail, including the
equipment and the physical components
- required. For example, the plan should
describe the type and placement of the
containment measures to be used (e.g.,
slurry walls', low permeability barriers,
etc.), the number and types of wells and
how they will be used (e.g., diversion "
wells or wells for collecting the flow), :
and' the proposed treatment technologies
(e.g., carbon adsorption, ion exchange," '
ch'e'micarpr'ecipitation.' etc.). The plan'' '
should'also identify any site-specific
problems which .could affect a corrective.
measures program, such as underground
utilities and migration of the1 plume
under structures.
. The Agency.believes that much of the
data for the contingent corrective
measures plan should be readily - .: ,
available to owners or operators.
Information on constituents, plume.
direction, location of wells, and
potential human and environmental
exposures is included with the Part B
permit application. Additional
information may also be available as a
result of actions taken or'ongoing to-
comply.with corrective action
requirements, under either Subpart F or a
. RCRA section 3008(h) corrective action
order or permit conditions pursuant to'
.RCRA section 3004(u).
The preparation of the contingent
corrective measures plan does not
relieve the owner or operator of any
existing or future requirements of a
corrective action program or schedules
of compliance in a RCRA section 3008(h)
corrective action order. The measures
identified in the contingent corrective
measures plan are anticipated to be
complementary to any long-term
corrective measures that may be- .
determined- to be required following
more in-depth-analysis of'the release ' ':
arid remedy evaluation. Changes to the
contingent.plan may be made under
applicable permit modification
requirements. .". . ' .'- :.'
' . b. Alternatives. Today's proposal'in
section. 284.113(e) offers owners or
operators of surface impoundments that
do riot satisfy the double, liner and
leachate- collection requirements three
alternatives for delaying closure to
receive non-hazardous wastes. These
options offer flexibility to-owners or
operators to account for different types
of management practices. However,
regardless of the option chosen, the
combined requirements are designed to
assure that impoundments that do not
meet double liner and leachate
collection system requirements ensure
protection of human health and the
environment. As part of the
demonstrations required in the request
to modify the permit to delay closure, an
owner or operator of a surface
impoundment eligible to delay closure
must include a plan for complying with
one of the three alternatives described
below. .-' ''' ; ':"
(1) Alternative 1Removal of .
Hazardous Wastes. Under the first
alternative, proposed in section
264.li3(e)(2)(i), an owner or operator of
a surface.impoundment must remove all
hazardous liquids arid hazardous
sludges from the impoundment prior to
the receipt of nonhazardous waste. In
addition, in the event of a release to
ground water, the facility would have to
comply with the corrective action
requirements discussed in Section'
IV.B.2.C below.
- The Agency recognizes that for lined
units, it may be necessary to leave some
wastes, immediately above the liner to
avoid impairing the integrity of the liner.
Therefore, the Agency is proposing to
allow sludges to remain immediately
above the liner only to the extent
necessary to maintain the integrity of
the liner. In cases where the unit is
unlined, the hazardous waste must be
removed down to the underlying and
adjacent soil. This degree of removal
will maintain the structural uniformity
of the bottom of the unit. The amount of
hazardous sludge that must be removed
will be determined on a case-by-case
basis, taking into consideration the
physical and chemical characteristics of
the sludge, technology available to
remove the sludge, and liner material.2
The Agency will not consider the
economic practicability of sludge
removal in determining the amount of
sludge that must be removed. At the
time of final closure, the impoundment '
will still be subject to Subpart G closure
requirements. If the unit chooses to
"clean close", additional sludge removal
may be required to jneet clean closure
standards. This final determination will
be made at the time of final closure.
As. specified in proposed
§ 264.113(e)(4)(i), the hazardous wastes
(liquids and sludges) must be removed
no later than 90 days after the final
receipt of hazardous wastes. The
Regional Administrator may approve a
request for a longer period of time based
on need (e.g., additional time is required
because of adverse weather conditions
or specific operating practices), and a
demonstration that an extension vC'ill not
pose a threat to human health and the
environment. (The requirement to
remove wastes as a condition of
delaying closure applies only to the
2 The draft RCRA Guidance Document.
"Minimum Technology Guidance on Single Liner
Systems for Landfills, Surface Impoundments, and
Waste PilesDesign, Construction, and Operation." '
issued may 24,1985, for example, suggests, that a
minimum of 18 inches of protective soil or
equivalent is appropriate to protect liners from
damage when mechanical equipment is used to
remove sludge or contents of the impoundment. .
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-7
# 6rjt988 V- iErioposed Rules
hazardous wastes in the impoundment.)
"The deadline arid the criteria for
requesting an extension tb the 90-day
deadline are consistent Tvith 1he current
provisions in § 284.113(a) for removing
all hazardous wastes at closure and for '
requesting an extension-to that deadline.
The Agency -wishes to ensure that
owners or operators -of surface
impoundments that do not satisfy the
double liner and leachate collection
system requirements and who choose to
.remove hazardous wastes -do so within
the same time frames were-they to close
tneirwnils followfngthe final receipt of
hazardous wastes, ' " .
{2) Alternative 2Flushing Hazardous
Wastes (a) Sludge Removal and
Flushing of Liquids. The-second
alternative, proposed in
§ 264.113(eJ(2)(ii), would allow an owner
or operator to delay closure if he ,
removed the hazardous -sludges as
required in Alternative 1 (e.g.. dredging
or pumping) and removed the liquid"-
hazardous wastes and suspended solids
from the unit by flushing the unit with
the non-hazardous influent. This
alternative is available only where the
owner or operator can demonstrate that
iMs-mfeasible or impracticable to
remove all of the hazardous waste from
the impoundment as discussed in
Alternative 1. The owner or operator
also would be required to demonstrate
that the liquid wastes and suspended
solids remaining in the unit did not
exhibit a characteristic of hazardous
wastes identified in Subpart C -of Part
2ffiL AsuuAUernative 1, the owner or .
, operator also must comply with
. correcfive action requirements;. " - .'. .-
discussed below! .'.' _ .,
The Agency believes' that units '
employing biological treatment methods
may be able to demonstrate that it is - ,.
infeaaible or impracticable to remove all
of the .hazardous wastes as discussed in
Alternative a. In a biological treatment -
. impoundment, theiiazardous wastes of
concern include the sladge feat has
settled to the bottom of the unit and the
liquid phase. If the hazardous liquids are
removed by draining the impoundment,
the following problems could arise. First,
in many cases the facility's wastewater
treatment system would be shut down,
which could force the facility to stop
some of its operations for a significant
period of time while the removal
activities were completed. Second, the
microorganisms'which had been
acclimated to the facility's-wastes
would be destroyed and the facility
would have to reacdimate a new ,
f biomass. . . .
Under Alternative 2. at least 95
,-. .percent of the liquid and suspended
hazardous, wastes must be displaced by
flushing with .non-jiazardous influent
The owner or operator must ,
demonstrate that 95 percent of-the
liquid, as .measured by volume, has been
displaced! The Agency would consider a
tracer study to be an appropriate means
. of making mis demonstration. For
example, in some impoundments,
depending on the-waste types and the
environment, a radioisotope {e.g.,
deuterated marker compounds} or an
j easily detected and identifiable "
chemical compound could be introduced
into the impoundment, allowing the
wastes remaining in the impoundment to
be measured. Use. of chemical dyes to
trace the floTJv of wastes also may be
appropriate methods in some
circumstances. .''
As specified in § 264.113(e){4}{ii), the .
owner or operator must begin flushing
the impoundment and removing
hazardous sedges no later than 15 days
after fee final receipt of hazardous
wastes and complete the 95 percent
displacement and removal of hazardous
wastes no .later than 90 days after the
final receipt of hazardous wastes. This
' deadline is consistent with the deadline
.in-§. 284-U3(a) for removing hazardous
wastes at closure. For multi-unit
treatment impoundments, 95 percent of
the hazardous wastes in the last unit in
the train must be displaced no later than
90 days after the final volume of
. hazardous wastes has been received at
the first unit 'The Regional . .
Administratorjnay grant an extension to
'the -30-day deadline if the owner or.
operator can demonstrate that the
retention-thae necessary io flush ihe -
unit or remove all of the sludge
necessitates-a longer-time period and
that an extension wnl not pose.a Areat
to human health'and the environment
The Agency .recognizes that the
retention time necessary to complete the
95 percent displacement will vary
significantly among units, depending on
site-specific factors such assize, depth,
average flow rate, and the type of
treatment that is being conducted (e.g^
aerobic, anaerobic, aeration, settling,
facultative). The Agency believes that a
90-day deadline should be sufficient for
all but the largest impoundments or for
multi-unit treatment impoundments.
Data on the average retention time for a
number of different sizes and types of
impoundments suggest that only very
large impoundments (e.g., 200-acre
impoundments) or treatment train.
impoundments comprised of several
units are likely to have retention times
of over 90 days. Most of the;
impoundments-examined had average
retention times ofless than 50 days.,
suggesting that displacement and sludge
removal could be completed within the
proposed deadline. For units that cannot
complete the displacement within the
90-day deadline, the Agency would hav^
the authority to extend the deadline. To.
support an extension, .EPA would expect
an owner or operator to submit data on
. the size of the unit, the type of treatment
being conducted, the average flow rate
(&gi millions of gallons per day), and
documentation supporting the claim that
the unit's retention time and me time
; required to remove the sludge would
exceed 90 days.;
The Agency recognizes that the 90-
day deadline also may be insufficient
for treatment facilities composed of
. multiple impoundments. For example, a
treatment system comprised of an
equalization pond, two anaerobic ponds,
and an aerobic pond could .have a
combined retention time exceeding 90
days. In this case, the Agency would
entertain, a request for an extension of
.the 90-day deadline.' - ,
' The Agency considered proposing that
the flushing process be completed
within 180 days to allow owners or
operators of very large impoundments
sufficient time to remove the sludges
and complete the flushing process. The
Agency was concerned that owners or
operators not delay the flushing process,
and, as a result, is proposing that the
flushing begin no later than 15 days after
the final receipt of hazardous wastes
and be completed no later than 90 days
after the final Teceipt The Agency is
requesting comments on whether 90
days is an adequate amount of time to
complete the sludge removal and
flushing process for most facilities and
data on retention times of
impoundments to support an alternative
deadline, if appropriate. .
{b) Relationship to-Mixture Rule.
EPA's "mixture rule" for the definition
of hazardous -wastes raises an
interesting issue for facilities that treat
.hazardous wastes in a series of
connected surface impoundments.
Under the requirements of 40 CFR
261.3(aH2)(ivJ, where a listed hazardous
waste mixes with a non-hazardous
waste, the entire mixture is considered
to be the listed waste and must be
handled as hazardous. Such mixing
might occur in a surface impoundment
that is delaying closure to receive non-
hazardous wastes under any of the three
alternatives described above. If the
impoundment in which the mixing
occurred was the first impoundment in a
treatment train, the material it
discharged to "'downstream"
impoundments would be considered a
hazardous-waste. The "'downstream"
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ues
, impoundments would Have to retrofit to
continue .to receive this mixed
hazardous waste stream after November
8,1988. .... . .... - .
Retrofitting, however; might not be
required in all circumstances, the key
question would be whether in fact any
mixing of nonrhazardous and hazardous
wastes occurs in the first impoundment.
in the series. The Agency has; stated, in
somewhat analogous circumstances*
that no mixing occurs in a wastewater .
.treatment unit that .manages a non-
hazardous liiquid waste even if that
"' liquid generates a hazardous sludge that
settles to the bottom of the same unit,
unless the sludge is in some way
physically dredged up and mixed with
the liquid. EPA believes it would be
. appropriate to, ap'ply the same principle
here. There should be even less
opportunity for mixing here because in
many cases much of the original -
hazardous sludge will be removed, and
in all cases no additonal quantities of,.
hazardous sludge will be generated.
Consequently, if there is no further
.disturbance of remaining hazardous
w.aste in an impoundment delaying
closure^ EPA will presume-that no
mixing occurs and that the non-_.
hazardous waste does not become IT"
hazardous waste. Subsequent surface
impoundments would be able to accept
this non-hazardous Waste if'they met the
requirements proposed today.
Final closure activities,.of course, may
. -disturb and mix the wastes and as'
.. previously'discussed,; the hazardous ,.
waste rules apply at final closure. . .
:'. Sludges within all impoundments ', . :
> continue., to be considered hazardous-
wastes unless delisted. : . ;. v
(3) Alternative 3Leaving Hazardous
Wastes in Place. The third alternative.
proposed in § 264.113{e)(3) allows : ' ..
... owners or operators of disposal .
impoundments who do not intend to i -
remove all hazardous wastes, including
liners and contaminated soils, at
closure, but instead will leave some
hazardous wastes in place, to delay
_closure under only limited
circumstances. Because hazardous
wastes are not removed prior to the
receipt of non-hazardous wastes, the
Agency is proposing more stringent
requirements for disposal
impoundments than for impoundments
at which hazardous wastes are
removed. For disposal impoundments,
the Agency is limiting the availability of
the option to delay closure to those
impoundments that do not have a . .
statistically significant increase over
background values of detection
monitoring parameters or constituents or
have not exceeded the facilityls groundr..
water-protection standard at the point of
compliance on the date of the final
receipt of hazardous wastes. This '
determination will be based on the most
recent monitoring data as required in
1 Part 264 Subpart F. In addition, if a.
release is detected after the final receipt
of hazardous wastes, the owner or
operator must promptly initiate closure
of the disp'osal impoundment in .
accordance with the approved closure
plan no later than 30 days after the
detection of the release and comply with
the corrective action requirements
including those discussed below. ;
. c. Corrective Action Requirements.-
All units that delay closure will remain
subject to all applicable corrective
action requirements. In addition, owners
or operators of surface impoundments
that do not meet the double liner and
leachate collection system requirements
must submit a contingent corrective
measures plan as a condition of
delaying closure. The Agency is
proposing in |264.113(e) additional,
conditions .that apply if there is a
statistically significant increase over . ^
background values of detection
monitoring parameters or constituents
for interim status units or if a release
that exceeds the facility's grotcattwater
protection standards at the point of
compliance is detected at these
impoundments. This determination will
be made based on the unit's most recent
monitoring data as required under Part
264 Subpart F. The purpose of the
contingent corrective measures plan and
.the corrective action requirements hi
§ 264<113(e) is'to ensure that if a release ,
is'detected, interim corrective measures,
at a minimum, are instituted quickly.
As mentioned earlier, the corrective :
action requirements proposed in
§ 284.113(e) have no effect on an -
'owner's or operator's obligations to
comply with all of the requirements in
Part 264. Subpart F. Rather, the
requirements in today's proposal are in
addition to the corrective action
requirements specified in Subpart F to
ensure that the. delay of closure to
receive only non-hazardous wastes at
surface impoundments that do not meet
the .double liner and leachate collection
system requirements does not
compromise the protection of human
health and the environment. Moreover,
the Regional Administrator retains the
authority to require additional
corrective measures as deemed
necessary in the final corrective action
plan. Finally, today's proposal will not
affect future changes to Subpart F that
are currently under consideration. For
example, if the Agency revises the
methods for setting the ground-water
protection standards, disposal
impoundments that exceed their ground-
water protection-standard as a result of
such regulatory amendments would still
be required "to close. If necessary,
conforming amendments will be made to"
today's rule to be consistent with any
future changes to Subpart F.
The Agency is concerned that basing
the evidence of a release from a unit on
contamination of ground water alone
may overlook releases that have
occurred but have not yet been detected
by.the ground-water monitoring system.
The Agency is also concerned about
contamination to media besides ground
water, e.g., soil contamination or
leaching of hazardous constituents to
surface water. While the unit remains
subject to all corrective action
requirements for all media, the initial
determinations of whether expedited
corrective action is required 'under
today's proposal for delayed closure are
based on ground-water monitoring data.
The Agency is requesting comments on
the approach of basing the evidence of a
release on ground-water monitoring
results only and whether other options
may be appropriate.
The Agency is proposing more
stringent corrective action requirements
for disposal impoundments because 'of
the greater risks associated at units
where hazardous wastes have not been
removed. The Agency is also imposing
more stringent requirements on
impoundments that are leaking on the
.date of the final receipt of hazardous
w.aste to ensure that these units do not
exacerbate any threats to human health ,
and the environment. These
requirements are discussed in detail
below.. . .
(1). Disposal Impoundments. As
discussed above, § 264.il3(e)(8)
proposes that disposal impoundments
must not have detected a release to
ground water as a condition of delaying
closure to receive only nonhazardous
waste. Any disposal impoundment -
having a statistically significant
increase over background values of
monitoring parameters or constituents or
exceeding the ground-water protection
standard on the date 'of the final receipt
of hazardous waste, based on the most
recent ground-water monitoring data as
required under Part 264, Subpart F, is
not eligible for delayed closure. If a
statistically significant increase in
background values is detected, or if the
ground-water protection standard is
exceeded, corrective action must be
conducted as required under Subpart F " "
and the unit must be closed in
accordance with the approved closure
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"plan -and ofher requirements -m Subparts
CandlC.
12.) Surface Impoundments At Which
.Wastes Are Removed*. .The Agency is
proposing in % 2B4.113(e) {5J. M and {7}
the corrective action requirements
Imposed on owners or -operators who
intend to remove hazardous wastes from
' their impoundments as a condition of
delaying closure. These sections vary
depending on whether or not a release
^.has been detected by the date of the
" final receipt of hazardous wastes. These
regulationa are discussed below.
. {a] ReJeases at ihe Time of the Final -
* Receipt ofHazafdoas Wastes -(Exhibit 2
in 'Section HI.B of this preamble). The
Agency is proposing hi J 264.113{e) (S)
and t5) to require owners or operators of
surface impoundments intending to
remove hazardous wastes to cease the
receipt of all wastes if they have
detected contamination statistically
greaterthan background levels of
detection monitoring parameters or, .
constituents, or-inexcess-of their
ground-water protection standard at the
point of compliance. The most recent
monitoring data .required under Snbpart
F will be used to make this'
determination by the date of the .final .
receipt of hazardous wastes. An
exception -would be granted to owners
or operators xvho remove hazardous ,
wastes from the impoundment by
flushing with non-hazardous wastes. In >
this rasa, the impoundment may
continue to receive non-hazardous
. waste-only -to complete the flushing . , ,
process iaaccordance with the > ' . . ,,
timeframes established in ,..,:' '-
'
. .
Non-hozardous wastes may-not be -.
received at a unU with a. release ;'
statistically 'greater than background. ;
levels or exceeding the ground-water
protection standard on the date of the
final receipl;of hazardous waste until "
corrective measures havabeen
implementediThese measures must be
consistent with an approved contingent
corrective measures plan or-with '
provisions ot an approved corrective
action plan -otherwise required in
Subpart F. The specific corrective
measures that must be implemented to
allow a facility to receive nonhazardous
wastes will be specified on a case-by-
case basis in the plan. However, if an
owner or operator can demonstrate that
the release is not statistically greater
than background levels or does not
exceed the facility's ground-water
protection standard, he may continue to
receive non-hazardous wastes.
The Agency intends that the
corrective measures to be implemented
be more than studies of the extent of
contamination or development of .. .
remedial alternatives. Rather,'the ' ".
Agency would expect containment and/
or remediation activity,, consistent .with
the activities Described in the contingent
corrective measures plan, to be.
undertaken. For example, installing ,' .
removal -wellsland a slurry wall and
starting the pumping and treating of
contaminated ground -water might
satisfy the-requirement that corrective
measures be implemented. -
The Agency; recognizes that stopping
thereceipt of all wastes until corrective
measures have been implemented could
adversely iaffect .the operations of some
types of fatalities. The, Agency believes
that in most cases, however, the delay
should not "be extensive. Pirst, marry of
the units that may have to stop the
receipt of wastes because a release has
been detected at the time of the final
receipt of hazardous wastes will have "
already triggered trompliance monitoring
and/or be engaged in-a corrective action
program under Subpart F prior to . -
today's proposaL'Tn fact, remedies may
already be under review for such units.
Therefore, there should not be an
extensive delay before the unit is placed
. on a compliance -schedule for-corrective
action and thej-unit can receive.non-
hazardous wastes. Second, because
these units have detected releases, the
Agency expects that in most.cases these
facilities will have a high priority for
approval,of corrective action plans. At
the sarae §me,| prohibiting the continued
receipt of non-hazardous waste until
£G«y«cfive,'measures have begun should
provide an Incentive for-owners'or
operators to implement ^corrective
measures as soon -as possible after the'
approval of a corrective action plan. -
' The Agency considered allowing units
that are leaking on the -date of the final. .
receipt of'hazardous wastes to receive
nbn-hazardons'wastes if 'the Owner or
operator-makes -a demonstration that the
receipt of non-hazardous wastes will not
exaceifeate'thrieats to human health -and
the environment or impede fee
effectiveness of the corrective measures,
and that these corrective measures will
be implemented within one year from
the final receipt of hazardous waste. It-
has been argued that, particularly for
owners or operators who will remove
the hazardous [wastes by flushing with
non-hazardous influent, allowing the
further receipt [of non-hazardous wastes
at these units after flushing has been .
completed may not increase the
environmentalirisks. According to the
argument, allowing the continued
receipt of non-hazardous wastes will
further dilute certain types of
constituents in the impoundment and
thus may decrease the potential for
threats to human health and toe
environment. ' f
The Agency: is not proposing this
approach for a number of reasons. First, '
because hazardous wastes remain in the.
unit, it would be .necessary to evaluate
the impacts of allowing the receipt of
non-hazardous wastes on the
effectiveness of the corrective action
program. Because the units in question
do not satisfy .liner and leachate
collection system requirements,, the
Agency must.be assured that .the
requirements applicable to these units
provide adequate protection of human
health and the environment [This is a
particular concern for facilities awaiting
permit approval where characterization
of ground-water flows, hydrogeologic
conditions, the extent of the plume, etc.,
may not yet have been subject to the
rigorous review that occurs during
permitting.) The Agency is not
convinced thatit will be possible to
effectively evaluate such impacts. The
Agency also is uncertain about'what
criteria should be used to evaluate the
impacts of the continued receipt of non-
hazardous -wastes on the effectiveness
of corrective action. Finally, the Agency
is. concerned that the effort required to
evaluate these demonstrations will be
time-consumifig and not an effective use
of Agency resources.
The Agency is requesting comments
on whether impoundments not meeting
liner and leachate collection system
. requirements that are leaking on the
date of the final receipt of hazardous
wastes should oe allowed to receive
non-hazardous wastes prior to the
, institution of a corrective-action
program. Particularly, the Agency is
soliciting information on the impacts of
hydraulic head on the effectiveness of
corrective action, the types of data
necessary to make these determinations,
deadlines for making these
demonstrations, and whether this option
should be available to all impoundments
or only impoundments that have already
received permits.
(b) Releases After the Final Receipt of
Hazardous Wastes {Exhibit 3 in Section
III.B of this preamble). Today's rule
proposes in § 264.113(e)(7) to allow an
owner or operator of an impoundment
that does not meet liner and leachate
collection system requirements and
whose hazardous wastes have been
removed to continue operating the unit if
a release is detected after the date of the
final receipt of hazardous wastes under
limited circumstances. After the
detection of a release, the unit only be
allowed to continue to receive non-
hazardous waste only if corrective
measures -consistent with the approved
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-20753
contingent corrective measures plan are
implemented within, one year of the
detection of the release, or approval of
. the contingent corrective meas'tires plan,
whicheyer-is later, and if the continued"
.receipt o|non-hazardous waste will not
'pose a threat to human health and the
environment. Again, the conditions for
demonstrating that corrective measures
have been established will be specified
on a case-by-case basis in the corrective
_ action plan. {As discussed earlier, the
Regional-Administrator retains the ' -"
' authority ta require additional :
-corrective.measures in the final ^ .
^corrective action plan.) - - .
Again, while 'a demonstration that
corrective measures have been put in
place must be more than the completion
of studies, the implementation of interim
measures (e.g., installing slurry walls
and initiating a pump and .treat program)-
may be sufficient. If the Regional
Administrator determines that the .'
continued receipt of non-hazardous
waste during this one-year period is
posing a threat to human health or the.
. environment, he has the authority to
either require that corrective measures
be implemented in less than one year or
to require that the receipt of non-'
hazardous wastes cease until corrective
' measures are implemented.
While it is; the Agency's policy that
corrective action be undertaken
promptly, it recognizes that at large
units or facilities a longer time could be
. needed to completely assess the nature "
and extent of the contamination and, /:":'
'specify remedies or that delays hi: ' fv
-, cleanup;activities could be cause'd by '']'-'
timing issues beyond the control of the -
owner or operator (e.g., availability of ''
. cleanup contractors, weather '
conditions). The Agency considered
giving the Regional Administrator the '
authority to, grant extensions to the one- :
year, deadline for implementing
corrective measures. However, the
Agency wished to avoid additional
administrative burdens' and delays in
getting corrective measures ''.
implemented and still believes that one
year should provide adequate time. The
Agency is requesting comments on this
one-year deadline and suggestions on
other alternatives.
d. Evaluating Progress of Corrective
Action. In § 264.113(e)(10), the Agency is
proposing that impoundments that have
removed all hazardous wastes and have
been allowed to delay closure to receive
non-hazardous waste in accordance
with the requirements in § 264.113 (d)
and (e)(2) must initiate closure if the
owner or operator fails to make
substantial progress in implementing
corrective action and achieving the
facility's ground-water protection :
standard or background levels if the
facility has hot yet established a ground-
water protection standard.
. The Agency is not proposing'to define
"substantial progress" in today's rule. -
Rather, the 'Agency believes that this
determination should be made on a
case-by-case basis based on an
evaluation of the progress of the
corrective action program towards
achieving the ground-water protection
standard (or background levels if
applicable). In addition, the Regional
Administrator will evaluate the effect of
the continued receipt of non-hazardous
waste on the effectiveness' of the
corrective measures being taken in
determining whether substantial
progress towards the ground-water -
protection standards has been achieved.
In general,' the Agency would consider
the failure to comply with significant
deadlines in the schedule of compliance,
. the permit, or other enforcement orders
: that establish timeframes for achieving
the facility's ground-water protection
.standard as cause for closure. The
Agency does not intend failure to
comply with procedural or reporting
requirements that do not affect the
progress of corrective action to be cause
for closure; on the other hand,
compliance with deadlines for
procedural or reporting requirements
, alone, will not be considered a
; demonstration of substantial progress.
; A determination of whether the unit
-has demonstrated substantial progress '
"-in its corrective action program would'
r be based, id part, on the results of the
'semi-annual reports required under
I 264.113(e)(9). Proposed § 264'.113(e)(9):
requires the owner or. opera tor to submit
reports to the Regional Administrator ..
that describe the progress of the
,- 'corrective measures, including results of
ground-water monitoring and the effect
' of the receipt of non-hazardous wastes
on the effectiveness of the corrective
action. The amount of time allowed for
demonstrating that substantial progress
toward achieving the ground-water
protection standard has been achieved,
will be a site-specific decision that is
dependent upon the nature, extent, and
magnitude of the contamination, as well
as the nature of the remedial measures.
Today's rule also establishes an
accelerated set of procedures for
initiating closure if the pwner or
operator fails to demonstrate substantial
progress in achieving the ground-water
protection standard. The objective of
these accelerated procedures is to
reduce delays in initiating closure, while
still providing adequate due process to
the owner or operator and adequate
notice to the public. " .
Under proposed § 264.113(a)(ll), the
Regional Administrator must notify the
owner or operator in writing that he has
failed to make substantial progress and
that he will be required to close the unit
in accordance with the deadline in
§ 264.113 (a) and (b). The Regional
Administrator must provide the owner
or operator a detailed statement of
reasons for his determination and also
publish a newspaper notice of this
decision and provide a 20-day comment
period. If the Regional Administrator
does not receive written comments on
the decision to require closure of the
unit, the decision will be final five days
after the close of the comment period.
The Regional Administrator will then
notify the owner or operator that he
.must submit a revised closure plan, if
necessary, within 15 days of'the final
notice and commence closure in
accordance with the deadlines in
§ 264.113 (a) and (b). If written
comments are received, the Regional
Administrator will make a final \
determination no later than 30 days '
after, the end of the comment period and
notify the owner or operator and the
public of the decision by newspaper
notice.
Because the Agency is concerned that
closure be commenced as quickly as -
possible once it is determined that the
unit is not demonstrating substantial :
progress towards achieving the ground-
water protection standard to ensure
.protection of human health and the
.environment, today's proposal does not
provide for adminisbative appeals of
the Regional Administrator's decision to
.require closure. The proposed rule,
however, does include a formal
comment period (in addition to informal
negotiations prior to the final Agency
decision). In addition, the decision to
require closure would constitute a final
Agency decision and is therefore subject
to judicial appeal. The Agency does not
believe that disallowing administrative
appeals will violate the due process
rights of the owner or operator.
3. Notification of Closure
Section 264.112(d)(l) currently
requires an owner or operator to notify
the Regional Administrator at least 60
days prior to the expected date of
closure, defined in § 264.112(d}f2) as no
later than 30 days after the final receipt
of hazardous waste. EPA proposes to
add subsection (ii) to §264.112(d)(2) to
specify that for units that have delayed
closure after the final receipt of
hazardous waste, the' "expected date of
closure" is no later than 30 day after
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the final receipt -of non-hazardous - .
' wastes. .Therefore, an owner or operator
who has delayed closure after the fin.al
^receipt of hazardous waste to receive _ ..'
'>, '"only non-Lazardous waste must Tiotify^' «.
' the Regional Administrator at least 60''. ..
days prior to the final receipt of non- -
hazardous waste."
C. Part 270 Permit Modification
Requirements
Jor.facilUies with jRCRA permits,' the
request io modify the permit .to .extend
the .closure period would be considered
under the current regulations to be a
major' modification subject to public
notice and comment and procedures in
Part 124. The demonstrations discussed
earlier must be submitted to the Agency
for approval with a request to modify
* the permit at least 120 days prior to the
final receipt of hazardous "waste, or
within 90 days after-the final rule is
published in' the Federal Register as.
. required in § 270.41, whichever is later.
If, subsequent fo approval of the
permit .modifications, an owner or
operator changes the types of non-
hazardous wastes that are handled iii
the unit, he must again request a
modification to the permit .and
demonstrate that the addition of these
new non-hazardous wastes is also -
compatible with the hazardous and non-
hazardous wastes in the unit and past,
. current and future operations.
On September 23,1987, the Agency
proposed amendments 1o -the Part 270
procedures for modifying permits. >.
Today's-rule proposes-a conformmjg
,.- <« change to'the September 23; 1987, .' ._
proposal to make the procedures for, '. .
.modifying a permit for delayed closure
xxmsisternVwith that scheme.The'
Agency ra proposing to classify an
, extension fb the closure-period to'
recelve-uon-hazardous waste following.
, final receipt -of hazardous waste as a
Class 2 modification and-to add it to
Appendix I of § 270.42, "Classification of
Permit Modifications." In order-to
requestihis Class 2 modification, the
owner or operator must submit the
demonstrations and changes to facility
plans required in 5 264.133 {d) and (e)
and described inJV.B.l in this preamble.
If these proposed amendments to Part
270 do not become final, an extension of
the closure period to receive non-
hazardous waste will continue to be
classified as a major permit
modification.
While it has not proposed changes to
Part B application requirements, the
Agency wishes to make clear that Part B
applications submitted in order to delay
closure under today's rule will be
required to contain, for the non-
, hazardous wastes to be received, all of
the elements required'in a Part B
application! for a'facility continuing to-
receive hazardous waste. Such
1 information 'would include closure and
^post-closure plans revised to account for
' "noh-hazarct'pus wastes, 'revised
documentation of financial assurance
'under §§564.143and 264.145, and a
revised ground-water monitoring
program. The Agency considers it
appropriate to have such information
submitted in the'Part fl application
because facilities delaying closure will.
continue to be considered' hazardous .
' -waste facilities. This-is consistent with
the Agency's position that facilities
delaying-closure .-must continue-to
comply with the permitting requirements
of Subtitle C. ,
D. Conforming Changes
The Agency is proposing conforming
changes- to, the interim status, standards
in Part 265 thatparallel the technical
requirements 'in Part'264 for deferring
closure to receive only non-hazardous
wastes. The interim status requirements
are substantially the same as those for
permitted units. Today's rule also
proposes conforming changes to
§§ 264.13 fe) and (b) and 265.13 (a) and
(b) and to § § 264.142{a](3} and
264.142(a)(ft) and 265.142(a)(3) and
-265.142(a)(4). These differences are
highlighted below. -
1. Conforming Changes to Part 265
Interim Status Requirements,
" 'a. Initial Demonstrations. Proposed
§ 265.113 (d}{lj requires owners or
operators :6f interim status units, to
. submit amended Part B applications, or'
Part B applications if one was not -
. previously requfred, with the revised
. facility plans and required
. .demonstrations.-Parts applications are
, required'because the Agency does not
believe that a .facility starald be -allowed
to remain open to receivy non-
hazafdous waste while remaining in
interim.status. The Agency is
particularly concerned that units that do
not satisfy the double liner and leachate
collection [system requirements and
remain open under today's proposal be
subject to the stricter provisions of Part
. 264, especially the stricter ground-water
protection requirements of Subpart F to
sufficiently protect human health .and
the environment. Plans and
demonstrations must be submitted at
least 180 days prior to the final receipt
of hazardous wastes. This 180-day
deadline is consistent with the deadline
in § 265.112(d) for notifying the Regional
Administrator of closure and submitting
the closure plan for review and
approval. Owners or operators who
already have received their final volume
of hazardous wastes or will receive it-in *
the near future will be eligible to delay
closure if they submit their Part B
application and the required . ;
demonstrations no later than 90 days
after notice of today's final rule ig
' published in the .Federal Register, |
As discussed above, under today's
proposal, facility owners and operators
would be. required to operate under the
full permit requirements of 40 CFR Part
264. However, .because the Agency
cannot guarantee that a Part B permit
will be issued prior to the .final receipt of
hazardous wastes, the Agency is
proposing to allow the owner or
operator to remain open after the final
receipt of hazardous wastes to receive
only non-hazardous wastes prior to
issuance of the permit. During this'
period the owner or operator must
comply with .all of the applicable
requirements in § 265.113 (d) and (e) and
continue to conduct operations in j
accordance with all other applicable
Part 265 requirements. If the Agency
subsequently denies the permit, the Part
265 closure requirements, including the .
closure deadlines of i 265.113 (a) and
(b), be.come effective immediately.
We recognize that there may be
concern about allowing interim status
facilities to delay, closure while a
decision on a permit application and
delay of closure is pending. However,
the Agency.is.convinced that the
applicability criteria in §265.113(d)
together with the technical requirements
hi §265J.13(ei) for delaying closure and
other Part 285 requirements are ,
sufficient to preclude any increases in
threats to Human health and the
environment during the permit review
period. In the case of surface
impoundments that choose to or must-
remove wastes to delay .closure, the
- required activities are consistent with
current Subpart G closure requirements.
Therefore, even if the request to delay
closure and/or an operating permit is
denied,' the owner or operator will have
begun the closure process by removing
the hazardous wastes 'from the
impoundment, m addition, a facility
awaiting a determination of a request to
delay closure remains subject to all Part
265 requirements and applicable
enforcement authorities, including
RCRA section 3008(h) corrective action
orders.
b. Corrective Action. The Agency is
. proposing slightly different triggers for
corrective action requirements for
interim status units than for permitted
units. For interim status facilities that
have not yet established a ground-water
protection standard, the Agency is
proposing that'the .corrective action
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requirements.in § 265.113(e) be triggered
by a statistically significant increase in
hazardous constituents over background
levels or decrease in pH over -,
background levfels. The Agency-has
chosen background as the baseline to
measure the presence of a release to
ensure that interim status
impoundments that do not satisfy liner
and leachate collection system
requirements and wish to delay closure
to receive only nori-hazarp'us wastes
remain protective of human health and
the environment. This approach is
consistent with the current triggers in
Part 265, Subpart F for implementing the
ground-water quality assessment plan. '
Interim status impoundments that do
.riot meet the liner and leachate
collection system requirements and do
not remove hazardous .wastes will be
.allowed to remain open to receive only
non-hazardous waste if no statistically
significant increase in contamination
above .background levels (or decrease in
pH levels) as specified in accordance
with Subpart F has been detected. If
background levels are exceeded at any
time after the request to defer closure
. has been granted, the owner or operator
of a disposal impoundment that does not
satisfy the liner and leachate collection
system requirements must initiate
closure of the unit in accordance with
the approved closure plan. Similarly,
(impoundments not in compliance with
liner and leachate collection system
requirements that remove hazardous
wastes prior to receiving only non-
hazardous wastes are subject to
accelerated corrective action
requirements consistent with the Part
*284 requirements described above.
Again, as discussed earlier, these
corrective measures requirements are in
addition to requirements in Subpart F or
those included in a RCRA section
3008(h) corrective action order.
c. Applicability to New Interim Status
Units. The requirements in today's
proposal also apply to owners or
operators of units that receive interim
status as a result of new regulations
(e.g., additional listings of hazardous
wastes). For example, HSWA section
3C95(|) requires that surface
impoundments'that receive interim
status after November 8,1984, because
of new regulations, such as the
promulgation of additional listings or
characteristics for the identification of
hazardous wastes, must satisfy the
MTRs within four years of the
promulgation that subjected the unit to
RCRA Subtitle C. These owners or
operators will be given sufficient notice -
that they will become subject to Subtitle
C requirements; therefore requiring that
the Part B application be submitted no
later than 180 days prior to the final
receipt of hazardous wastes'as a
condition of delaying closure to'receive
only non-hazardous waste should not
impose an undue burden. '.'...
2. Other Conforming Changes to Parts
264 and 265
The Agency is proposing a conforming
change to §§264.13 (a) and (b) and
265.13 (a) and (b) to require that the
waste analysis plan be revised to
account for the presence of any non-
hazardous wastes managed pursuant to
§§ 264.113 (d) and (e) and 265.113 (d)
and (e). Today's rule also revises
§ § 264.142(a} (3) and (4) and 265.142(a) '
(3) and (4) to specify that an owner or
operator may not account for salvage
value or incorporate a zero cost in the
closure .cost estimate for handling non-
hazardous waste at closure, consistent
with the current limitations in §§264.142
and 265.142 for hazardous wastes.
V..State Authorization
A. Applicability of Rules in Authorized
States'
, Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under RCRA .
sections 3008, 7003rand 3013, although
authorized States have primary
enforcement responsibility.
. Prior to HSWA, a State with final
authorization administered its
hazardous waste program entirely in
lieu of EPA administering the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities in a State
where the State was authorized to
permit. When new, more stringent
Federal requirements were promulgated
or enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State'adopted
the requirements as State law.
In contrast, undsr section 30C3f-»l of
RCRA, 42 U.S.C. 6928(2), new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is
directed to carry out those requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements and prohibitions apply in
authorized States in the interim.
' #. Effect of Proposed Rule, on State
Authorizations \
Today's rule proposes standards that
would not be effective in authorized
States since the requirements would not
be imposed'pursuant to HSWA. Thus,
the requirements will be-applicable only.
In those States that do not have interim
or final authorization. In authorized
States, the requirements will not be
applicable until the .State revises its
program to adopt equivalent
requirements under State law.
In general. 40 CFR 271.21(e)(2)
requires States that have final
authorization to modify their programs
to reflect Federal program changes and
to subsequently submit the
modifications to EPA for approval. It
should be noted, however, that
authorized States are only required to
modify their programs when EPA
promulgates Federal standards that are
more stringent or broader in scope ihr.n
.__ the existing Federal standards. Sectiotr
"3009 of RCRA allows States to impose'
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program. States are not required to.
; modify their programs. See 40 CFR
271.1(i). The standards proposed today
are less stringent than or reduce'the
.. scope, of the existing Federal.
requirements. Therefore, authorized
States would not be required to modify
their programs to adopt requirements
equivalent or substantially equivalent to
the provisions listed above. If the State
does modify its program, EPA must
approve the modification for the State
requirements to become Subtitle C
RCRA requirements. States should
follow the deadlines of 40 CFR
271.21(e){2) if they desire to adopt this
less stringent requirement.
VI. Executive Order 12231
This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Ordar
12291. The regulatory amendments beir^
proposed today ara designed to reduce
the burden of the RCRA regulations and
are not likely to result in a significant
increase in costs. Thus, this proposal is
not a major rule; no Regulatory Impact
Analysis has been prepared.'
VII. Paperwork Reduction Act
The information collection
requirements contained in this rale have
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16a:/--'Moniky;' June"; 6F1988 '/' Pro"pbs6d;"Rules :. '-''.-'v
been submitted to the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et
seg,\. Comments on these requirements
should be submitted to the Office of
Information and Regulatory Affairs,
OMB, 726 Jackson Place, NW.,
Washington, DC 20608, marked:
AttentionDesk Officer for EPA.
Should EPA promulgate a final rule, the
Agency will respond to comments by .
OMB or the public regarding the. ; .
information,collectiori provisions of .this
rule. .- 1 -..'-.
VIII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 801 et seg.), Federal
agoncie's must, in developing
regulations, analyze their impact'on
small entities (small businesses, small
government jurisdictions, and small'
organizations). The amendments '.. \
proposed today are more flexible than
the existing regulations and thus result
in no additional costs. The viability of
small entities, thereby, should not be ,
adversely affected.
Accordingly, I certify that this
regulation will not have a significant
impact on a substantial number of small
entities.
List of Subjects
40 CFR Part 264 :. ~. '
Hazardous waste. Insurance, ' ,.
Packaging and containers, Reporting
and recordkeeping requirements, J . .r
Security measures, Surety bonds. .
40CFRPart 265 . ; >;
Hazardous waste. Insurance,
Packaging and containers. Reporting
and recordkeeping requirements.. ,
Security measures. Surety bonds. Water
supply., ;.-, .., ...
JOCFRPartZTO u'v "
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation, Hazardous waste,
Reporting and recordkeeping
requirements. Water pollution control.
Water supply.
Dated: May 27.1988.
Leo M. Thomas.
Administrator.
For the reasons set out in the
preamble, it is proposed that 40 CFR .
Chapter I be amended as follows:
PART 264-lSTANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
'[STORAGE, AND DISPOSAL ''*'
\'FACILITIES; V i .
' 1. The authority citation for Part 26,4
continues to' read as follows:
Authority: Sections 1006, 2002(a), 3004, and
.3005 of the Solid Waste Disposal Act. as
amended by the Resource Conservation and .
Recovery Act -of 1978, as amended (42 U.S.C.
6905,6912(a),?9924, and 6925. : . ..
" ' 2."Ih' § 264:i3-paragraphs (aj'fl), (a)(3)
introductory text, (a)(3)(i), and (b)(lj are
'revised to read as follows: . '" '
§264.13- General waste analysis.
; (a)(l) Before an owner or operator -
' treats,, stores, or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 264.113(d),
he must obtain a detailed chemical and
. physical analysis of a representative.
sample of the wastes. .
*.,* * * *
, , (3) The analysis must be repeated as
necessary to ensure that it is accurate
and up-to-date. At a minimum, the '
analysis must be repeated:
(i}'When the owner or-operator is
notified, br has reason to believe, that
the process or operation generating the
hazardous wastes or non-hazardous
wastes if applicable under § 264.113(d)
has changed; and ' . .'.'
' (1) The par'ame'ters -for-which each
hazardous; waste or non-hazardous
waste if applicable under §.264.113(d)
will be analyzed and the rationale for
the selection of these parameters (Le.,
how analysis'for these parameters will
provide sufficient information on the
'' waste's properties to comply with
paragraph (a) of this section);
* * * **.. .
3. In § 264:112, paragraph (d){2) is'
revised to read as follows:
§ 264.112 Closure plan; amendment of
plan. .
(2) The date when he "expects to
begin closure" must be either:
(i) No later than 30 days after the date
on which any hazardous waste
management unit receives the known
final volume, of hazardous wastes, or if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, ho
later than one year after the date on
which the unit received the most recent
volume, of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate -to the ,
Regional Administrator that the .
hazardous waste management unit or
facility, has' the capacity to receive (
additionai.hazardpiis.wastes arid h6 has
- taken all steps to prevent threats to
human health and the environment,
including compliance with all applicable
permit requirements, the Regional
Administrator may approve an
extension to this one-ye.ar limit; or
(ii) For units meeting the requirements
of § 264.113(d), no later than 30 days .
after the date on- which the hazardous .
.waste management unit receives the .
known final volume of non-hazardous
wastes,-or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume ,of non-
hazardous wastes. If the owner or
operator-can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous-wastes and he has taken, and
will continue to take, all stegs to prevent
threats-to hu'man heaith_and the
environment, including compliance with
all applicable permit requirements, the
Regional Administrator may approve an
extension to this one-year limit.
* * *' * *
'4. Section 264.113 is amended by
revising paragraphs (a) introductory
text. (a3(l)pi)(A), (b) introductory text
(b)(l)(ii)(A3, arid (c) and adding (d) and
(e) to'read as follows: ;
§264.'113 Closure; time allowed for
closure. .-,-
(a) Within 90 days after receiving the
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
. applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, the owner or operator must
treat, remove from the unit or facility, or
dispose of on-site, all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator complies with all applicable
requirements for requesting a
modification to the permit and
demonstrates that:
(1)V* *
{ii')(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes or non-hazardous wastes if the
owner or opera'tor complies with
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20757
- paragraphs' (d} and (e) of this section;
and .-'' "
* *. *.;*'' »''.....-.
(b) The owner or opera tor must '
complete partial and.final closure
activities in accordance with the
approved closure plan and within 180
days afterreceiving the final volume of
hazardous wastes, or the final volume of
non-hazardous1 wastes if the owner or
operator complies.with. all'applicable
requirements in paragraphs (d) and (e)
of this-section, at the hazardous waste
management unit or facility. The
Regional Administrator may approve ah
extension to the closure period if the
owner'or operator complies with all
applicable requirements for requesting a
modification to the permit and
demonstrates that:
W,* * * ' ~ '
(ii)(A) The .hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes or hqri-hazardous wastes if the
owner or operator complies with
paragraphs (d) arid (e) of this section;
and ':'"
*.*'+"** *
(c) The demonstrations referred to in
paragraphs fa)(lj.and,'(b)(l) of this
section must be made as follows: (1) The
demonstrations in paragraph (a)(l) of
this section must be made at least 30
days prior to the expiration of the 90-
day period in paragraph (a) of this
section; and (2) the demonstration in
paragraph {b)(l) of this section must be
made at least.30 days prior to the .
expiration of the 180-day period in.. - '.
paragraph (b) of this section, unless the
owner or operator is otherwise subject
to the deadlines in paragraph'(d) of this
section. : / . ' .
(d) The Regional Administrator may
allow an owner, or operator to receive
only non-hazardous wastes in a landfill
or surface impoundment unit after the
final receipt of. hazardous wastes at that
unit if:
. (1) The owner or operator requests a
permit modification in compliance with
all applicable requirements in Parts 270
and 124 of this title and in the permit
modification request demonstrates that:
(i) The unithas the existing design
capacity as indicated on the Part A
application to receive non-hazardous
wastes; and l
_ (ii) There is a reasonable likelihood
lhat the owner or operator or another
person will racaive non-hazardous
wastes in the unit within one .year after
the final receipt of hazardous wastes;
and
(iii) The nori-hasardous wastes will
'not be incompatible with any remaining
wastes in-.the unit, or with the facility
design and operating requirements of
the unit or facility under this Part; and
(iv) Closure of the hazardous waste
. management'unit would be incompatible
with continued operation of the unit or
facility; and' '. - ':> ..! ''' I "
.(v) The owner or operator is operating
and will continue to1 operate in
compliance with all applicable permit
requirements; and
(2) The request to modify the permit
includes an amended waste analysis
plan, ground-water monitoring and"
response program, and closure and post-
closure plans, and updated cost
estimates and demonstrations of
financial assurance for closure and post-
closure care as necessary to reflect any
changes due to the presence of
hazardous constituents in the non-
hazardous wastes, and changes in
closure activities, including the expected
year of closure if applicable under"
§ 2S4.112(b](7), as a result of the'reeeipf
of nori-hazardous wastes following the
final receipt of hazardous wastes; and :
. (3) The request to modify the permit
and the demonstrations referred to in
paragraph (d){l) and (d)(2) of this
section are submitted to the Regional
Administrator no later than 120 days
prior to the date on which, the owner or
operator of the facility receives the
known final volume of hazardous
wastes at the unit, or no later than 90
days after Federal Register notice of this
regulation, whichever is later; and
(4) The request to modify the permit is
accompanied by the human, exposure
assessment required undar RCRA --
section 3019, and the Regional
Administrator does not determine,
based on this information or information-
from other sources, that the unit poses a
substantial risk to Human health and the
environment; and
. (5) The request to modify the permit
includes revisions, as appropriate, to
affected conditions of the permit to
account for the management of only
non-hazardous wastes in a unit which
previously managed hazardous wastes.
(e) In addition to the requirements in
paragraph (d) of this section, an owner
or operator of a hazardous waste
surface impoundment that is not in
compliance with the liner and loachaU'
collection system requirements in 42
U.S.C. 3C04foKl) and:3G05(ij(l} or 42
U.S.C. 3004(o) (2) or (3) or 3005(jj (2), (3),
(4] or (13) must:
(1) Submit with the request to modify
the permit:
(ij A contingent corrective measures
plan, unless a corrective action plan has
already been submitted under § 204.99;
and
(ii) A plan for demonstrating
compliance with one of the options
described in paragraphs (e)(2) and (e}{3)
of this section; and
(2) Remove all hazardous wastes from
the unit by either: " .-_ -
'.:' (i) ReijnoVjing all hazardous liquids,' i
Vahdremjoving all hazardous sludges to
the extent practicable without impairing
the integrity of the liner(s); or
(ii) Where removal in accordance with
paragraph (e)(2)(i) of this section is
infeasible or impracticable, displacing at
least 95 percent of the liquid and
suspended solid hazardous wastes (as
measured volumetrically) by flushing
with non-hazardous wastes, removing
. all hazardous sludges to the extent
practicable without impairing the
integrity of the liner(s), if applicable,
and demonstrating that the liquids and
suspended solids remaining in the unit
do not exhibit a characteristic of .
hazardous waste identified in Subpart C
of Part 261; or
(3) Leave the hazardous wastes in
place following the final receipt of
hazardous wastes.and comply with.the
requirements in paragraph (e)(3).of this
section if a release is detected" that is a
statistically significant increase over
background values for detection
monitoring parameters or constituents
specified in the permit, or exceeds tiie
facility's ground-water protection
standard at the point of compliance, if
applicable, as specified under Subpart F
of this part.
(4) The activities referred to in
paragraph (e){2) of this section must be
completed as follows:.
(i) For units meeting the requirements
of paragraph (e)(2)(i) of this section, no
later than 90 days after the final receipt
of hazardous- wastes; or
(ii) For units meeting the requirement
of paragraph (e)(2)(ii) of this section, the
process of displacing and removing the
hazardous wastes must begin no later
than 15 days after the final receipt of
hazardous wastes and be completed no
later than 90 days after the final receipt
of hazardous wastes.
(iii) The Regional Administrator may
approve an extension to the deadlines in
paragraph (e)(4)(i) or (ii} of. this section i?
the owner or operator demonstrates that
the removal or displacement of
hazardous wastss will, of necessity,
Jaka longer than iht> ailcritsd periods} to
complete and ihat an extension will not
pose a threat to human health and the
environment.
(5) If a release that is a statistically
significant increase over background
values for'detection monitoring
parameters or cohstitutents specified in
the permit or that exceeds the facility's
ground-water protection,standard at the
point of.compliance, if applicable,;has
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yJuHd # I98S /Proposed Rules
xbeen detected in accordance with the
requirements in Subpart F of this part
prior to the final receipt of hazardous
wastes at a surface impoundment.
subject to the requirements in paragraph
(e)(2)(i) of this section, the owner or
operator'must cease the receipt of all
wastes at the unit until corrective action
measures in accordance with an
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section have been . ;;
implemented.. . - .... -:--,
(6} If a release that is a statistically
significant increase over background '
.values for detection monitoring
parameters or constituents specified in
the permit or that exceeds the facility's
ground-water protection standard at the
point of compliance, if applicable, has
been detected in accordance with the
requirements in Subpart F of this part
prior to the final receipt of hazardous .
wastes at a surface impoundment
subject to the requirements in paragraph
' (e)(2)(U) of this section, the owner or .
operator must cease the receipt of all
wastes following the displacement of
hazardous wastes as specified in
paragraphs (e)(2)(ii) and (e)(4)(ii) of this
section until corrective action measures
in accordance with the approved
contingent corrective measures plan
required in paragraph [e)(l) of this
section have been implemented.
(7) If a release that is a statistically
significant increase over background-
values for detection monitoring
parameters or constituents specified in
the permit or that exceeds the facility's.
ground-water protection standard at the;,
point of compliance, if applicable, is-
detected in accordance with the . .
requirements in Subpart F of this part,
after the final receipt of hazardous
wastes at-a surface impoundment -. -.-
subject to the requirements in paragraph ,
(e}(2) otthis section; the owner or
operator of the unit, must implement ''
corrective action measures in
accordance with the approved
contingent corrective measures plan
required by paragraph (e)(l) of this .
section noJater than one year after
detection of the release, or approval of
the contingent corrective measures plan.
whichever is later. The Regional
Administrator may require the owner or
operator to implement corrective
measures in less than one year or to
cease the receipt of wastes until
corrective measures have been
implemented if necessary to protect
human health and the environment.
(8) If a release that is a statistically
significant increase over background- -
values for detection monitoring
parameters or constituents specified in
the permit or that exceeds the facility's
grounoVwater protection standard at the
point of compliance,.if applicable, is-
detected in accordance with the
requirements of .Subpart F of this pdrt.at
a surface impoundment subject to tfie'
requirements in paragraph (e)(3) of this
section, thejowner or operator must .
. conduct corrective action in accordance
with the requirements' in Subpart Fof
this part and-begin closure of the unit no
laterthan:3p"days after the detection of
the'release in accordance.with the
approved, closure plan and the "deadlines
;'in paragraphs (a) and (b) of this section.
(9) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data,, and evaluate the effect
. of the continued receip|t of non- '
hazardous wastes on the effectiveness
.of the corrective action. - -
(10) The Regional Administrator may
require the owner or operator of a
surface impoundment subject to the
requirements in paragraph (e)(2) of this
section to commence closure of the unit
if the ownerjor operator fails to make
substantial progress in implementing
corrective action and achieving the
facility's ground-water protection
standard or background levels if the
facility has not yet established a ground-,
.water protection standard. . . -
-. (11) If the Regional Administrator .
determines that substantial progress has
not been made .pursuant to paragraph
(e)(ib) of this section he shall: *
-. '- (i) Notify the owner or operator in
writing that substantial progress has not
been made and he-must begin closure in
accordance with the deadlines in -
paragraphs (a) and (b) of this, section
.and provide a detailed statement of
reasons-for this determination, and
(ii) Provide the owner or operator and
the public, through a newspaper notice,'
the opportunity to submit written
comments on the decision no later than
20 days after the date of the notice.
(iii) If the Regional Administrator
receives no written comments, the
decision will become final five days
after the close of the comment period.
The Regional Administrator will notify
the owner or operator that the decision
is final, and that a revised closure plan..
if necessary, I must be submitted within
15 days of the final notice and that '
closure must begin in accordance with
the deadlines in paragraphs (a) and (b)
of this sectioh. :
(iv) If the Regional Administrator
receives written comments on the "
decision, he shall make a final decision
within 30 days after the end of the
comment period, and provide the owner
or operator in writing and the public
thrpugh'a newspaper notice.'.a detailed
. statement1 of "reasons for the'-final
' decision. If the Regional Administrator
determines-that'substantial progress has
not been made; closure must be initiated
in accordance with the deadlines in
paragraphs (a)-and (b) of this section.
(v) The final determinations made by
the Regional Administrator under
paragraphs (d)(ll) (iii) and (iv) of this
section are not subject to administrative
appeal. -
5. In §'284.142; paragraphs (a)(3) and
(a)(4) are revised to read'as follows;
§ 264.142 '-Cost estimate for closure.
(a) * ' *
(3j The closure cost estimate may nol
incorporate any salvage value that may
be realized with the sale of hazardous
wastes, or non-hazardous wastes-if
applicable under § 264.113(d),'facility
structures or equipment, land, or other
assets associated with the facility at the1
time of partial or final closure.
(4) The owner or operator may not
incorporate a zero cost for hazardous
wastes, or non-hazardous wastes if
applicable under § 264,-113{d), that might
have economic value.
PART 2SSJNTERIM STATUS
; STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
6. The authority citation for Part 265
continues to read as follows:
. Authority: Section 1006, 2002(a). 3004, 3005.
and 3015 of-the Solid Waste Disposal Act, as
. amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
6905. 6912(a), 6924, 6925, and 6935). .
7. In § 265.13,.paragraphs (a)(l), (a}{3)
introductory, text, {a}(3){ij, and (b)(l) are
revised to-read as follows:
§ 265.13 Genera! v/aste analysis.
(a)(l) Before an owner or operator
treats, stores or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 265.113(d).
ho must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
* t * * »
(3) The analysis must be repeated as
necessary to ensure that it is accurate
and up-to-date. At a minimum, the
analysis must be repeated:
(i) When the owner or operator is '
notified, or has reason to believe, that
the process or operation generating the
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* J"ne
/ Proposed Rules
'20759
hazardous wastes or .non-hazardous-
wastes" if applicable under § 265.113(d.)
has changed; and
*****
(b)*
(1) The parameters for which each
hazardous waste or non-hazardous
waste if applicable under § 265.113(d)'-
will be analyzed and the rationale for ,
the selection ,of these parameters (i.e.,
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
* * * * *
8. In §. 265.112, paragraph (d)(2) is
revised to read as follows:
§ 265.112 Closure pianr amendment of
plan.
* * * ' * *
(d)***
(2) The date when he "expects to
'begin closure" must be either:
(i) Within 30 days after the date on
which any hazardous waste
management unit receives the known
final volume of hazardous wastes or, if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes', no
later than one year after the date on
which the unit received the-most recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
hazardous waste management unit or
facility has the capacity to receive
additional hazardous wastes and he has-
taken, and will continue to .take, all
steps to prevent threats to human health
and the environment, including * ''
compliance with all applicable interim
status requirements, the Regional
Administrator may approve an
extension to this one-year limit; or
(ii) For units meeting the requirements
of § 265.113(d], no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management Unit will receive additional
non-hasardous.wastes, no later than one
year after the date on which the unit '
received the most recent volume of non-
hazardous wastes. If the onwer or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment, including compliance with
all applicable jinterim status
requirements, the Regional.
Administrator may approve an
extension to this one-year limit.
****'-..*
9. Section 265.113 is amended by
revising paragraphs {a] -introductory,
text, (a)(l)(ii3(A), (b) introductory text,
(b)(lJ(iiKA), and (c) and adding (dj and
(e) to road as follows:
§265.113 Closure; time allowed for
closure.
(a) Within 90 days after receiving the
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, or within 90 days after approval
of the closure plan, whichever is later,
the owner or operator must treat,
remove from the unit or facility, or
dispose of on-site, all .hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator demonstrates that:
«,* * * - ''.-.
(ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes or non-hazardous wastes if the
facility owner or operatoFcompiies with
paragraphs (d) and (e) of this section;
and
*****
(b) The owner or operator must
complete partial and final closure
. activities in accordance with the
approved closure plan and within 180
days after receiving the final volume of
. hazardous wastes, or the final volume of
non-hazardous wastes if the owner or
operator complied with all applicable
requirements in paragraphs (d) and (e)
of this section, at the hazardous waste
management unit or facility, or 180 days
after approval of the closure plan, if that
.is later. The Regional Administrator may
approve an extension to the closure
period if the owner or operator :
demonstrates that:-
1 (I)***
(ii3(AJ The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes or non-hazardous wastes if the
facility owner or operator complies with
paragraphs (d) and' (e) of this section;
and
* * ' * * *
(c) The demonstrations referred to in
paragraphs (a)(l) and (b)[l) of this
section must be made as follows: (1) The
demonstrations in paragraph (a)(l) of
this section must be made at least 30
days prior to the expiration of the 90- .
day period in paragraph (a] of this
section; and (2) the demonstration in
paragraph {b)(l} of this section must be
made at least 30 days prior to the
expiration of the 180-day period in
paragraph (b) of this section, unless the
owner or operator is otherwise subject
to the deadlines in paragraph (d) of this
section.
(d) The Regional Administrator may
allow an owner or operator to receive
only non-hazardous wastes in a landfill
or surface impoundment unit after the
final receipt of hazardous wastes at that
unit if:
(1) The owner or operator submits an
amended Part B application, or a Part B
application, if not previously required,
and demonstrates that:
(i) The unit has the existing design
capacity as-indicated on the Part A
application to receive non-hazardous
wastes; and
(ii]'There is.a reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
wastes in the unit within one year after
the final receipt of hazardous wastes;
and . -
(iii) The non-hazardous waste will not
be incompatible with any remaining
wastes in the unit or with the facility
design and operating requirements of
the unit or facility under this Pdrt; and '
(iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
(v].The owner or operator'is operating
and will continue to operate in
compliance with all applicable interim
status requirements; and
(2) The Part B application includes an
amended waste analysis plan, ground-
water monitoring and response program,
and closure and post-closure plans, and
updated cost estimates and
demonstrations of financial assurance
for closure and post-closure care as
necessary, to reflect any'changes due to
the presence of hazardous constituents
in the non-hazardous wastes, and
changes in closure activities, including
the expected year of closure if
applicable under § 265.112(b)f7), as a
result of the receipt of non-hazardous
wastes following the final receipt of
hazardous wastes; and
(3) The Part B application snd the
demonstrations referred to in paragraph
(d)(l) and (d)(2) of this section are
submitted to the Regional Administrator
no later than 180 days prior to the date
on which the facility owner or operator
receives the known final volume of
hazardous wastes, or no later than 90
days after Federal Register notice of this
regulation, whichever is later; and
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Federal-Register / Vol. 53,' No. i08./.Mpndiay,,;J.une.'6,..19.83. / Proposed Rules
(4) The Part B application is
accompanied by the human exposure
assessment required under RCRA
section 3019, and the Regional
Administrator does not determine,
based on this information or information
from other sources^ that the unit pose's a
substantial risk'to human health and the
environment; and
(5) The Part B application is amended,
as appropriate, to account for the
management of only non-hazardous
wastes in a unit which previously
managed hazardous wastes.
(e) In addition to the requirements in
paragraph (d) of this section, an owner
or operator of a hazardous waste
surface impoundment that is not in
compliance with the liner and leachate
collection systems requirements in 42
V-S.C. 3Q04(o)(l) and 300S(j](l) or 42
U.S.C. 3004 (o) (2) or (3) or 3005(j) (2), (3),
(4) or (13) must:
(1) Submit with" the Part B application:
(i) A contingent corrective measures
plan; and
(ii) A plan for demonstrating
compliance with one of the options
described in paragraphs (e)(2) and (e)(3)
of this section; and
(2) Remove all hazardous wastes from
the unit byeithen
(i) Removing all hazardous liguids and
removing all hazardous sludges to the
. extent practicable without impairing the
integriCy of the liner(s), if applicable; or
(ii) Where removal in accordance with
paragraph (e)(2)(i) of this section is
infeasible or impracticable, displacing at
least 95 percent of the liquid and
suspended solid hazardous wastes (as .
measured volumetrically) by flushing
with non-hazardous wastes, removing
all hazardous sludges to the extent
practicable without impairing the
integrity of the liner(s), if applicable,
and demonstrating that the liquids and
suspended solids remaining in the unit
do not exhibit a characteristic of
hazardous waste identified hi Subpart C
of Part 281; or
(3) Leave the hazardous wastes in
place following the final receipt of
hazardous wastes and comply with the
requirements in paragraph (e)(3) of this
section if a release from the unit is
detected that is a statistically significant
increase (or decrease in the case'of pH)
over background levels.
(4) The activities referred to in
paragraph (e)(2) of this seclion must be
completed as follows:
(i) For units meeting the requirements
of paragraph (e)(2)(i) of this section, no
later than 90 days after the final receipt
of hazardous wastes; or
(ii) For units meeting the requirement
of paragraph (e)(2)(ii) of this section, the
process of displacing and removing the
hazardous wastes must begin no later
than 15 days after the final receipt of
hazardous wastes and be completed no
later than 90 days after the final receipt
of hazardous wastes. | . N,
(iii) The Regional Administrator may
approve an extension to the deadlines in
paragraph (e)(4) (i) or (ii) of this section
if the owner or operator demonstrates
. that the removal or displacement of
hazardous wastes will, -of necessity,
take longer than the allotted periods to
complete and that extension will not
pose a threat to human health and the
. environment.
(5) If a release that js a statistically
significant increase (or decrease in-the ,
case of pH) in hazardous constituents
over background levels has been
detected in accordance with the
requirements 'in Subpart F of this Part
prior to the final receipt of hazardous
wastes at a surface impoundment
subject to. the requirements in paragraph
(e)(2)(i) of this section; the owner or
operator must cease the receipt of all
wastes at the unit until corrective
measures in accordance with an
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section have been
implemented.^-
(6) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels has been
detected in accordance with the
requirements in Subpart F of this part
prior to the final receipt of hazardous
wastes at a surface impoundment
subject to the; requirements ,in paragraph.
(e)(2)(ii) of this section, the owner or
operator must cease the receipt of all
wastes following the displacement of
hazardous wastes as specified in
paragraph (e)(2)(ii) of this section until .
corrective action measures hi
accordance with the approved
contingent corrective measures plan
required by paragraph (e)(l) of this
section have been implemented.
(7) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
Subpart F on this part after the final
receipt of hazardous wastes at a surface
impoundment subject,to the
requirements in paragraph (e](2) of this
section, the owner or operator of the
unit must implement corrective
measures in accordance with the
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section no later than one .
year after detection of the release, or
approval of the contingent corrective
measures plan, whichever is later. The
' Regional Administrator may require the
owner or operator to implement
corrective measures in less than one
year or to cease receipt of wastes until .
corrective measures have, been
Implemented if necessary to protect
human health and the environment.
(8) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
Subpart F of this part at a surface
impoundment.subject to the
requirements in paragraph (e)(3) of this
section, the owner or operator must
conduct corrective action in accordance
with the requirements in Subpart F of
this part and begin closure of the unit no
later than 30 days after the detection of
the release in accordance with the
approved closure plan and the deadlines
in paragraphs (a) and (b) of this section.
(9) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of the continued receipt of non-
hazardous wastfis-on the effectiveness
of the 'corrective action.
(10} The Regional Administrator may
require the owner or operator of a
surface impoundment subject to the
requirements in paragraph (e}(2) of this
section to commence-closure of the unit
if the owner or operator fails to make
substantial progress in implementing-
corrective action and achieving the
facility's background levels.
(11) If the Regional Administrator
determines that substantial progress has
not been made pursuant to paragraph
(e)(10) of this section he shall
(i) Notify the owner or operator in
writing that substantial progress has not
been made and he must begin closure in
accordance with the deadline hi
paragraphs (a) and (b) of this section
and provide a detailed statement of
reasons for this determination, and
(ii) Provide the owner or operator and
the public, through a newspaper notice,
the opportunity to submit written
comments or. the decision no later than
20 days after the date^f the notice.
(iii) If the Regional Administrator
receives no written comments, the
decision will become final five days
after the close of the comment period.
The Regional Administrator -will notify
the ownsr or operator that the decision
is final, and that a revised closure plan,
if necessary, must be submitted within
15 days of the final notice and that
closure must begin in accordance with
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29760 FederalRegistey /VoL 53. No. iOS./.Monday,. June 8.. 1983 / Proposed Rules
(4) The Part B application is
accompanied by the human exposure
assessment required under RCRA
section 3019, and the Regional
Administrator does jnot determine, I t
based on this information or informajtion
from other sources0 that the unit poses a
substantial risk to human health and the
environment; and
(5) The Part B application is amended,
as appropriate, to account for the
management of only non-hazardous
wastes in a unit which previously
managed hazardous wastes.
(e) In addition to the requirements in
paragraph (d); of this section, an owner
or operator of a hazardous waste
surface impoundment that is not in
compliance with the liner and leachate
collection systems requirements in 42
U.S.G. 3004(o){l) and 3005{j)(lJ or 42
.U.S.C. 3004 (o) (2) or (3) or 3005(j) (2], (3),
(4) or. (13) must:
(1) Submit with the Part B application:
(i) A contingent corrective measures
plan; and
(ii) A plan for demonstrating
compliance with one of the options
describediin paragraphs (e){2) and (e){3)
of this section; and
(2) Remove all hazardous wastes from
the unit by either:
(i) Removing all hazardous liguids and
removing all hazardous sludges to the
extent practicable without impairing the
integrity ^f the liner(s), if applicable; or
(ii) Where removal in accordance with
paragraph (e}(2)(i) of this section is
infeasible or impracticable, displacing at
least 95 percent of the liquid and
suspended solid hazardous wastes (as
measured volumetrically) by flushing
with non-hazardous wastes, removing
all hazardous sludges to the extent
practicable without impairing the
integrity of the liner(s), if applicable,
and demonstrating that the liquids and
suspended solids remaining in the unit
do not exhibit a characteristic of
hazardous waste identified in Subpart C
of Part 261; or
(3) Leave the hazardous wastes in
place following the final receipt of
hazardous wastes and comply with the
requirements in paragraph (e)(!3) of this
section if a release from the unit is
detected that is a statistically significant
increase (or decrease in the casa of pH)
over background Scveis.
(4) The activities referred to in
paragraph (e)(2) of this section must bs
completed as follows:
(i) For units meeting the requirements
of paragraph (e)(2)(i) of this section, no.
later than 90 days after the final receipt
of hazardous wastes; or
(ii) For units meeting the requirement
of paragraph (e)(2)(ii) of this section, the
process of displacing and removing the.
hazardous wastes must begin no later
than IS days'after the final receipt of
hazardous wastes and be completed no
later than Sptilays after the final receipt
of hazardous wastes.; ;
(iii) The Regional Administrator may
approve an extension to the deadlines in
paragraph (e)(4) (i) or (ii) of this section
if the owner or operator demonstrates
. that the removal or displacement of
hazardous wastes will, of necessity,
take longer than the allotted periods to
complete and that extension will not
pose a threat to human health and the
environment.
(5) If a release thatjs a statistically
significant increase (or decrease in-the
case of pH) in hazardous constituents
over background levels has been
detected in accordance with the
requirements in Subpart F of this Part
prior to the final receipt of hazardous
wastes at a surface impoundment
subject to. the requirements in paragraph
(e)(2)(i) of this section/ the owner or
operator must cease the receipt of all
wastes at the unit until corrective
measures in accordance with an
approved contingent corrective
measures plan required by-paragraph
[e}(1] of this section have been
implemented.
(6) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levsls has been
detected in accordance with the
requirements in Subpart F of this part
prior to the final receipt of hazardous
wastes at a surface impoundment
subject to the requirements in paragraph
(e)(2)(ii) of this section, the owner or
operator must cease the receipt of all
wastes following the displacement of
hazardous wastes as specified in
paragraph (e)(2)(ii) of this section until
corrective action measures in
accordance with the approved
contingent corrective measures plan
required by paragraph (e)(l) of this
section have been implemented.
(7) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
Subpart F on this part after the final
receipt of hazardous wastes at a surface
impoundment subject tc the
requirements in paragraph (e)(2) of this
section, the owner or operator of the
unit must implement corrective
measures in accordance with the
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section no later than one
year after detection of the release, or
approval of the contingent corrective
measures plan, whichever is later. The
Regional Administrator may require the
owner or operator to implement
corrective measures in less than one
- year or to cease receipt of wastes until ,
corrective measures have been
implemented if necessary to protect .
human health and the environment.
(8) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
Subpart F of this part at a surface
impoundment subject to the
requirements in paragraph (e){3) of this
section, the owner or operator must
conduct corrective action in accordance
with the requirements in Subpart F of
this part and begin closure of the unit no
later than 30 days after the detection of
the release in accordance with the
approved closure plan'and the deadlines
in paragraphs (a) and (b) of this section.
(9) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of the continued receipt of non-
_ hazardous wastes on the effectiveness
of the'corrective action.
(jOj The Regional Administrator may-
require the owcer or operator of a
surface impoundment subject to the
requirements in paragraph (e](2) of this
section to commence closure of the unit
if the owner or operator fails to make
substantial progress in implementing
corrective action and achieving the
facility's background levels.
(11) If the Regional Administrator
determines that substantial progress has
not been made pursuant to paragraph
(e)(10) of this section he shall
(i) Notify the owner or operator in
writing that substantial progress has not
been made and he must begin closure in
accordance with the deadline in
paragraphs (a) and (b) of this section
and provide a detailed statement of
reasons for this determination, and
(ii) Provide the owner or operator and
the public, through a newspaper notice,
the opportunity to submit written
comments en the decision no later than
20 days after the date of the notice.
(iii) If the Regional Administrator
receives no written comments, the
decision will become final five -days
after the close of the comment period.
The Regional Administrator will notify
the owner or operator that the decision
is final, and that a revised closure plan,
if necessary, must be submitted within
15 days of the final notice and that
closure must begin in accordance with
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Federal Register / Vol. 53, No. 108 / Monday. June 6. 1988 / Proposed Rules
20761
the deadlines in paragraphs (a) and (b)
of this section.
(iv) If the Regional Administrator
receives written comments on the
decision, he shall make a final decision
, withirl 30 days after thb end of the
comment,period, and provide the owner
of operator in writing and the public
through a newspaper notice, a detailed
statement of reasons for the final
decision. If the Regional Administrator
determines that substantial progress has
not been made, closure must be initiated
in accordance with the deadlines in
paragraphs (a) and (b) of this section.
(v) The final determinations made by
the Regional Administrator under
paragraphs (d)(il) (iii) and (iv) of this
section are not subject to administrative
appeal.
10. In § 265.142. paragraphs (a}(3) and
(a)(4) are revised to read as follows:
§ 265.142 Cost estimate for closure.
(a) « *
(3) The closure cost estimate may not
incorporate any salvage value that may
be realized with the sale of hazardous
wastes, or nori-hazardous wastes if
applicable under § 255.113(d), facility
structures or equipment, land, or other
assets associated with the facility at the
time of partial ior final closure.
(4) The owner or operator may not
incorporate a zero cost for hazardous
'wastes, or non-hazardous wastes if
applicable under § 265.113(d), that might
have economic value.
* *- *; | * *
PART 270EPA ADMif^STERED
PERMiT PROQRAPVJS: THE
HAZARDOUS WASTE PERM'cT
PROGRAM i
I
11. The authority citation for Part 270
continues to read as follows:
Authority: Sections 1006. 2002.3005, 3007,
3019 and 7004 of the Solid Waste Disposal .
Act, as amended by the Resource
Conservation and^gecovery Act of 1908, as
'amended (42 U2?&'f>?05, 5912, 6925. 6939,
and 6794).i,' jj'"pfe-jet.
:' 4pi|" '.
12. In § 270.4t';tli'i|j!ist of permit
modifications ifj:9s!jppeRdix I.D.I is
amended by adding the following:
Modifications
Ciass
0. Closure:
1. Cfianges to'ihs closure plan: "
(g) Extension of the Closure psrioa to ailovi
a land/ill or surface impoundment u;.-it ;o
receive non-iiazardous wastes s;:a,r !ina!
receipt of hazardous wastas ur.isr
S§ 264.113W) and (e),...1
[FR Doc. 88-12530 Filed &-3-8S: 8:45 am]
BILLING COCE eSSO-SO-M '
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