Monday
June 12, 1995
Part HI
e$
40 CFR Parts 2!
Criteria for
Disposal Faclllti
Identification
Waste; Requirements
State Hazard
Rule
and
Environmental
Protection Agency
57, 261, and 271
Classification of Solid Waste
and Practices;
Listing of Hazardous
nts for .Authorization of
Waste Programs; Proposed
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30964
Federal Register / Vol. 60. No. 112 7 Monday, June 12. 1995 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 257, 261, and 271
R1N2050-AE11
Criteria for Classification of Solid .
Waste Disposal Facilities and
Practices; Identification and Listing of
Hazardous Waste; Requirements for .
Authorization of State Hazardous
• Waste Programs
AGENCY: Environmental Protection .
_Agency.
'ACTION; Proposed rule. _
SUMMARY: The Environmental Protection
Agency (EPA) is proposing revisions to
the existing Criteria for solid waste
disposal facilities and practices. The
proposed revisions would establish
specific standards for non-municipal
solid waste disposal facilities that
receive conditionally exempt small
quantity generator (CESQG) wastes. EPA
is also proposing revisions to
regulations for hazardous wastes
generated by CESQGs. Today's proposal
will clarify acceptable disposal options
'under Subtitle D of the Resource
Conservation and Recovery Act (RCRA)
by specifying that CESQG hazardous
waste may be managed at municipal
solid waste landfills subject to part 258
and at non-municipal solid waste
facilities subject to the facility standards
being proposed today.
The Agency is obligated to issue this
proposal by Section 4010(c) of RCRA.
and is Issuing it today in partial
settlement of a lawsuit brought by the
. Sierra Club to enforce the statutory
mandate. The Agency generally believes
that the facilities subject to today's ,
proposal present a relatively small risk
when compared to other conditions or
situations, and that in a time of limited
resources, EPA prefer to address higher
priorities first. However, to satisfy its
statutory and judicial obligations,
today's proposal will clarify acceptable
Subtitle D disposal options for non-
municipal solid waste facilities that
accept CESQG hazardous wastes. EPA
has worked with the States, in their
capacity as co-regulators, in developing
standards that are flexible and efficient.
To that end, EPA is proposing only the
minimum standards described by the ,
statute, and is offering maximum
flexibility for states and facilities in
meeting those standards. Indeed, in
addition to proposing a flexible scheme
modeled after the current part 258
Standards for municipal solid waste
facilities, EPA is seeking comment on an
option which would set a performance
standard—that covered facilities be
operated in a manner that is protective
of human health and 'the environment.
Under this approach, States would have
maximum flexibility in developing
standards appropriate to facilities under
their jurisdiction. '
DATES: Comments on this proposed rule
must be submitted on or before August
11,1995. Both written and electronic
comments must be submitted on or
before this date. '
ADDRESSES: Commentors must send an
original and two copies of their
comments to: RCRA Information Center ,
(5305), U.S. Environmental Protection
Agency, 401M Street, SW. Washington,
D.C, 20460. All comments must be
identified by docket number F-flS-
NCEP H-'FFK An original and two
copies of Confidential Business
Information (CBI) must be submitted
under separate cover to: Document •
Control Officer (5305), Office of Solid
Waste, U.S. Environmental Protection
Agency, 401M Street. SW. Washington,
D.C. 20460.
Public comments and relevant
documents are available for viewing in
the EPA RCRA Information Center (RIC).
located in Room M2616, at the EPA
address above. The RIC is open for
viewing from 9 to 4 Monday through
Friday, except federal holidays. The
public must make an appointment to
review docket materials. Call (202) 260-
S327 for appointments. Materials may
be copied for S0.15 per page.
FOR FURTHER INFORMATION CONTACT: For
specific information on aspects of this
proposed rule, please contact Paul
Cassidy of the Industrial Solid Waste
Branch of the Office of Solid Waste at .
1-703-308-7281. For a paper copy of
the Federal Register notice or for
general information, please contact the
RCRA Hotline at 1-800-424-9346 or at
1-703-412-9810.
SUPPLEMENTARY INFORMATION:
Official Record for Proposed Rule
Both the Federal Register notice and
the supporting material will be available
in electronic format on the Internet
system through the EPA Public Access ,
Server © gopher.epa.gov. The official
record for this proposal, as well as the
public version available through
Internet will be kept in paper .form.
, Accordingly. EPA will transfer all
comments received electronically into
arid will place the paper copies in the
official record, which will include all
comments submitted directly in writing.
The official record for this rulemaking is
the paper copy maintained at the
address in ADDRESSES.
Electronic Filing of Comments
Comments may also be submitted
electronically by sending electronic .
mail to RCRA-Docket ©epamai.epa.gov.
All electronic comments must be
submitted as an ASCII file avoiding the
use of special characters and any form
of encryption. Comments also will be . .
accepted on disks in WordPerfect 5.1
file format or ASCH file format..
1. Through Gopher Go to: x
gopher.epa.gov. From the main menu,
choose "EPA Offices and Regions".
Next, choose "Office of Solid Waste and
Emergency Response (OSWER)".
Finally, choose "Office of Solid Waste".
2. Through FTP: Go to: ftp.epa.gov. .
Login: anonymous,
Password: Your Internet Address '
Files are located in /pub. All OSW files
are in directories beginning with
"OSW".
3. Through Telnet: Go to:
gopher.epa.gov. Choose the EPA Public
Access Gopher. From the main (Gopher)
menu, choose "EPA Offices and
Regions." Next, choose "Office of Solid
Waste and Emergency Response
(OSWER)." Then, choose "Office of
Solid Waste."
4. Through MOSAIC: Go to: http://
www.epa.gov. Choose the EPA Public
Access Gopher. From the main (Gopher)
menu, choose "EPA Offices and
Regions". Next, choose "Office of Solid
Waste and Emergency Response
(OSWER)". Finally, choose "Office of
Solid Waste".
5. Through dial-up access: Dial 919-
558-O335. Choose EPA Public Access
Gopher. From the main (Gopher) menu,
choose "EPA Offices and Regions".
Next, choose "Office of Solid Waste and
Emergency Response (OSWER)".
Finally, choose "Office of Solid Waste".
Supporting Documents
All of the main and secondary
supporting documents that were used in
the development of this proposal have
been placed in the docket. EPA is
making the main supporting documents
(listed below) available in electronic
•.format on the Internet System through
the EPA Public Access Server at '.
gopher.epa.gov. A paper copy of these
main supporting documents is available
for-purchase through the National
Technical Information Service (NTIS),
U.S. Department of Commerce,
Springfield. VA 22161. The phone
number at NTIS is (703) 487-4650.
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Federal Register /. Vol. 60. No. 112 /Monday, June 12. 1995 / Proposed Rules 30965
Main Supporting Documents
1. Background Document for the
CESQG Rule, U.S. EPA, 1995, PB95-
208930. :
2. Damage Cases: Construction and
Demolition Waste Landfills, U.S. EPA,
Office of.Solid Waste, Prepared by ICF,
February 1995, PB95-208922.
3. Construction and Demolition Waste
Landfills, U.S. EPA, Office of Solid
Waste, Prepared by ICF, February, 1995,
PB95-208906.
4, List of Industrial Waste Landfills
" and Construction and Demolition Waste
Landfills, U.S: EPA, Office of Solid
Waste, Prepared by Eastern Research
Group, September 30,1994; PB95-
.208914.
5. Generation and Management of
CESQG Waste, U.S. EPA. Office of Solid
Waste, Prepared by ICF, July 1994,
PB95-208898.
6. Cost and Economic Impact Analysis
of the CESQG Rule', Prepared by ICF,
February, 1995, PB95-208948.
How to Access the Net
1. Through Gopher: Go to:
gopher.epa.gov. From the main menu,
choose "EPA Offices and Regions".
Next, choose "Office of Solid Wasje and
Emergency Response (OSWER)". Next,
choose "Office of Solid Waste". Then,
choose "Non-Hazardous Waste—RCRA
Subtitle D". Finally, choose
1 "Industrial".
2. Through FTP: Go to: ftp.epa.gov.
Login: anonymous
Password: Your Internet Address
Files are located in directories/pub/
gopher. All OSW files are in
directories beginning with "OSW".
3: Through MOSAIC: Go to: http://
www.epa.gov. Choose the EPA Public
Access Gopher. From the main (Gopher)
menu, choose "EPA Offices and
Regions". Next, choose "Office of Solid
Waste and Emergency Response
(OSWER)". Next, choose "Office of
Solid Waste". Then, choose "Non-
Hazardous Waste—RCRA Subtitle D".
Finally, choose "Industrial".
4. Through dial-up access: Dial 919-
558-0335. Choose EPA Public Access
Gopher. From the main (Gopher) menu,
choose "EPA'Offices and Regions".
Next, choose "Office of Solid Waste and ,
Emergency Response (OSWER)". Next,
.choose "Office of Solid Waste". Then,
choose "Non-Hazardous Waste—RCRA
Subtitle D". Finally, choose
"Industrial".
Preamble Outline
1. Authority . ,
II. Background
A. Current Solid Waste Controls Under the
Resource Conservation and Recovery Act
(RCRA) Non-Hazardous Waste
Management: Municipal Wastes
B. Sierra Club Lawsuit
ill. Summary of Today's Proposed Regulatory
Approach
IV. Characterization of CESQG Waste.
Industrial D Facilities That May Receive
CESQG Wastes, and Existing State
Programs Related to CESQG Disposal
A. CESQG Waste Volumes. Generators and
Management
B. Facilities That May Receive CESQG
Waste
C Existing State Programs
V. Discussion of Today's Regulatory Proposal
A, Non-Municipal Solid Waste Disposal "
Facilities That Receive CESQG
Hazardous Waste
B. Decision to Impose or Go Beyond the
Statutory Minimum Components
C Decision to Establish Facility Standards
Under Part 257 and Revisions to Part 261
D. Request for Comment on the Use of an
Alternative Regulatory Approach in
Today's Rule •
E. Highlights of Today's Statutory
, • Minimum Requirements for Non-
Municipal Solid Waste Disposal
Facilities That May Receive CESQG
Hazardous Wastes
1. Applicability
2. Specific Location Restrictions
3. Specific Ground-Water Monitoring and
Corrective Action Requirements
•4. Recordkeeping Requirements
F. Other Issues Relating to Today's
• Proposal • •
. 1. Owner/Operator Responsibility and
Flexibility in Approved States
2. CESQG's Responsibilities Relating to the
Revisions in Section 261.5, Paragraphs
(f)and(g)
VI. Implementation and Enforcement. •
A. State Activities Under Subtitle C
B. State Activities Under Subtitle D
C. Relationship Between Subtitles C and D
D. Enforcement '
' VII. Executive Order No. 1286&-^Regulatory
Impact.Analysis
A. Cost Impacts • ,
B. Benefits
VIII. Regulatory Flexibility Act
IX. Paperwork Reduction Act '
X. Environmental Justice Issues
XI. Unfunded Mandates Reform Act
XII. References
I. Authority
These regulations are being proposed
under the authority of sections 1008,
2002 (general rulemaking authority),
3001(d)(4), 4004 and 4010 of RCRA, as
amended. Section 3001(d)(4) authorizes
EPA to promulgate standards for
generators who do not generate more
than 100 kilograms per month of
hazardous waste. Section 4010(c) directs
EPA to revise Criteria promulgated
under sections lOOffand 4004 for
facilities that may receive hazardous
household wastes (HHW) or small
quantity generator (SQG) hazardous
waste. .•...-•
U. Background
A. Current Solid Waste Controls Under
\\he Resource Conservation and
Recovery Act (RCRA) Non-Hazardous
Waste Management: Municipal Wastes
As added by the Hazardous and Solid
Waste Amendments (HSWA) of 1984.
iiection 4010(c) requires that the
Administrator revise the existing part
'.157 Subtitle D Criteria used to classify
facilities as sanitary landfills or open
dumps by March 31,1988. for facilities
that may receive household hazardous
waste or hazardous waste from small
quantity generators. The required
revisions are those necessary to protect'.
human health .and the environment and
yvhich take into account the practicable
capability of such facilities. At a
minimum, the revised Criteria must
include ground-water monitoring as
necessary to detect contamination,
location restrictions, and provide for
corrective action, as appropriate.
On October 9,1991, EPA promulgated
revised Criteria for Solid Waste Disposal
Facilities accepting household
hazardous wastes. These revisions
fulfilled the part of the statutory
mandate found in RCRA section 4010
for all facilities that receive household
hazardous wastes. (Any facility
receiving any household waste is
subject to the revised Criteria, which
were relocated at 40 CFR part 258 for
purposes of clarity). Revisions to the
part 257 Criteria for other Subtitle D
disposal facilities that may receive
conditionally exempt small quantity
generator (CESQG) hazardous wastes
were delayed as the Agency had little
information concerning the potential or
actual impacts that these types of
facilities may have on human health
and the environment. CESQGs are those
that generate no more than 100
kilograms of hazardous waste or no
more than one kilogram of acutely
hazardous waste in a month and who
accumulate no more than 1000
kilograms of hazardous waste or no
more than one kilogram of acutely
hazardous waste at one time.
B. Sierra Club Lawsuit
The Sierra Club, on October 21,1993,
filed suit against the EPA in the United
States District Court for the District of
Columbia, seeking to compel the EPA to
promulgate revised Criteria for.
norummicipal facilities that may receive'
small quantity generator hazardous
waste, •
As a result of the October 21,1993
la\ysuil,-the EPA and the Sierra Club
reached agreement on a schedule
coipcenaing revised Criteria for nori-
municipal facilities that may receive
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30966' Federal Register / Vol. 60, No. 112 / Monday. June 12. 1995 / Proposed Rules
CESQG wastes. This schedule requires
that the EPA Administrator sign a
proposal by May 15,1995 and a final '
rule by July 1,1996. Today's proposed
amendments to 40 CFR parts 257 and
261 respond directly to the Sierra Club
challenge to EPA's revised Criteria for
MSVVLFs.
m. Summary of Today's Proposed
Regulatory Approach
Today's proposal would add the
statutory minimum requirements for
non-municipal solid waste disposal
facilities that receive CESQG hazardous
waste. Any.non-municipal solid waste
disposal facility that does not meet the
proposed requirements may not receive
CESQG hazardous waste. Sections 257.5
through 257.30 are being proposed to
address the facility standards for
owners/operators of non-municipal
solid waste disposal facilities that
receive CESQG hazardous wastes. The
requirements being proposed in §§ 257.5
through 257.30 are substantially the
same as the statutory minimum
requirements developed for 40 CFR part
258. The location restrictions are
proposed to be effective 18 months after
publication of the final rule while the
ground-water monitoring and corrective
action requirements are proposed to be
effective 24 months after publication of
the final rule.
The Agency decided to use the
previously promulgated MSWLF.
Criteria in part 258 as the basis for
today's proposal for a number of
reasons. The Agency believes that the
part 258 Criteria are being used as
mandatory standards by some States for
non-municipal solid waste disposal
facilities. Furthern? re, additional States
are incorporating as mandatory
requirements standards that are
substantially similar to the part 258
Criteria. The Agency also believes that
the part 258 Criteria, particularly the
ground-water monitoring and corrective
action requirements, are an appropriate
.set of performance standards and
minimum requirements that can be
applied at non-municipal solid waste
disposal facilities that receive CESQG
hazardous waste to protect human
health and the environment. In
addition, EPA is requesting comment on
an alternative approach which is solely
a performance standard without the
national'minimum requirements in part
258.
Today's proposal also amends the
existing language of §261.5 clarifying
acceptable Subtitle D management
options for CESQGs. The existing
language in §'261.5, paragraphs (f)(3)
and (g)(3) allows for a CESQG hazardous
waste to be managed at a hazardous
waste facility (either in interim status or
permitted), a reuse or recycling facility,
or a non-hazardous solid waste facility
that is permitted, licensed, or registered
by a State to manage municipal or
industrial waste. Today's proposal
would continue to allow CESQG waste
to be managed at a hazardous waste
facility or at a reuse or recycling facility.
Today's proposal, however, will require
• that if CESQG waste is managed in a
Subtitle D disposal facility, it must be
managed in a MSWLF that is subject to
part 258 or a non-municipal solid waste
disposal facility that is subject to the
facility standards being proposed in
§§ 257.5 through 257.30;
A complete discussion of the rationale
of today's proposed approach, specifics
of the proposed changes, and related •
issues is presented in Reference #1. .
As previously discussed, today's
proposal responds to both the statutory
language in RCRA section 4010(c) and
to the Sierra Club lawsuit. In responding
initially to the statutory language of
section 40lO(c), EPA elected to regulate
municipal solid waste landfills first, due
to the comparatively higher risks
presented by these types of facilities. As
will be discussed later in today's
preamble, the subject of today's
proposal—non-municipal solid waste •
disposal facilities that receive CESQG
waste—presents a small risk relative to
risks presented by other environmental
conditions or situations. Given this
lower risk, the Agency would have
elected not to issue this proposal at this
time. In a time of limited resources,
common sense dictates that we deal
with higher priorities first, a principle
on which EPA, members of the
regulated community, and the public
can agree. The Agency requests
comment from members of the public
and regulated community on whether
they agree with the Agency's position
that this rulemaking is a low priority.
However, given the D.C. Circuit's
reading of RCRA section 4010(c), Sierra
Club v. EPA, 992 F.2d 3337,347 (D.C.
Cir. 1993), and the schedule established
as a result of the litigation initiated by
Sierra Club in district court, the Agency
believes it must issue this proposal now
(although there are higher priorities
within the Agency). Faced with having
to issue this proposal for a class of
facilities that do not generally pose risks
as high as municipal solid waste
landfills, the Agency isjaroposing
alternatives that address only the .
statutory minimum requirements in ah
attempt to reduce the economic burden
on the regulated community.
IV. Characterization of CESQG Waste,
Industrial D Facilities That May
Receive CESQG Wastes, and Existing
State Programs Related to CESQG ,
Disposal
A. CESQG Waste Volumes, Generators,
and Management .
In preparation for this rulemaking,
EPA sought to characterize the CESQG
universe. EPA examined several '
national, state, and local studie.s that
contained information on CESQGs, and"
summarized this information into five ,-
categories: (1) Number of . .
establishments, (2) waste volumes, (3)
major waste generating industries, (4)
major waste types, and (5) waste
management practices. All of this
information is contained in Reference
#2. Reference #7 also presents an earlier
comprehensive overview of the CESQG
universe. The Agency, is interested in'
receiving data on the current
management practices for CESQG
wastes likely to be covered by this . ..
rulemaking.
B. Facilities That May Receive CESQG
Waste '.
1. Manufacturing Industries With On-
Site CESQG Disposal
The first type of facility that may
receive CESQG waste is a.manufacturing
facility that co-disposes its industrial
non-hazardous process waste on-site
with its CESQG hazardous wastes.
The Agency's 1987 "Screening Survey
of Industrial Subtitle D Establishments"
was used as the starting point in the
Agency's evaluation of the number of
potential establishments that operated
land-based units for their industrial
non-hazardous waste (Reference#3). The
Screening Survey projected that only
605 establishments managed their
CESQG waste on-site in a land-based
unit (605 establishments represents
approximately 5% of the total 12,000
establishments that managed industrial
Waste on-site in land-based units).
The Agency has conducted meetings
and conference calls with some
industries to ascertain the current status
of CESQG hazardous waste generation
and management. The results of those
meetings and conference calls are
summarized in Reference #1.
In regard to industrial waste facilities,
the Agency believes that on-site co-
disposal of industrial wastes with some
amount of CESQG waste is a very •
. limited practice. The Agency believes
that industrial waste disposal facilities
that may still be disposing of CESQG
waste on-sife, will elect to send their
CESQG waste off-site to a municipal
landfill, a hazardous waste landfill or
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Federal Register /Vol. 60. No. 1127 Monday, June 12. 1995 / Proposed Rules
30967
off-site for treatment or recycling. These
options would be cheaper for industrial
waste facilities vs. continuation of
CESQG on-sitb disposal and compliance
with today's proposed standards (i.e.,
ground-water monitoring and corrective
action). .
The Agency wishes to emphasize that
this proposal does not change the
manner in which waste is determined to
be hazardous. Generators of wastes have
an obligation-to determine through
testing or their knowledge of the waste
•if a waste is a hazardous waste (40 CFR
262.11). The generator must then
determine if any hazardous waste he
generates is regulated hazardous waste,
or conditionally exempt small quantity
generator hazardous waste (40 CFR
261.5).
The Agency is requesting comment on
the prevalence of manufacturing
industries that manage CESQG
hazardous wastes bn-site along with
volume estimates. The Agency is also "
interested in obtaining comments on the
Agency's assumption that on-site
disposal of CESQG hazardous waste at
industrial waste facilities has decreased
overall and will not continue in the
future.
2. Commercial Off-Site Facilities
The second type of facility that in
. some cases receive CESQG waste is a
commercial off-site facility that .disposes
of only industrial non-hazardous wastes
with some amount of CESQG hazardous
wastes being co-disposed at the facility.
Based on information from the groups
listed below, the Agency estimates that
there are only 10-20 commercial off-site
facilities that receive only non-
hazardous industrial wastes. (Off-site
commercial facilities that receive
household hazardous waste are subject
to the part 258 Criteria.) However; in-
meetings with the Environmental
Industry Associations (EIA) (formerly
known as the National Solid Waste
Management Association) and Browning
Ferris Industries, the Agency was told
that as a general matter CESQG disposal
is prohibited at these 10-20'facilities as
a result of permitting conditions and
.due to decisions at the corporate level
of the individual companies not to
, accept CESQG waste.
3. Construction and Demolition
Landfills .,".'.
The last group of facilities that receive
CESQG wastes are construction and
demolition waste landfills. The
Agency's List of Construction and
Demolition Waste Landfills estimates
approximately 1900 construction and
demolition waste facilities. These
construction and demolition landfills
dispose of construction waste and "
. demolition debris (which generally
refers to waste materials generated as a
. result of construction, renovation, or,
demolition). Many types of wastes are
disposed of in construction and
demolition landfills', such as metals,
wood, concrete, dry wall, asphalt, rocks,
soil, plastics, pipes and glass.
Construction and demolition landfills
may also receive CESQG hazardous
waste materials, which could include
things such as paints, adhesives, and
roofing cements.-Although the general '•
term "construction and demolition
waste" is used to describe all wastes
generated in construction, renovation,
and demolition activities, the specific
types of waste generated are a direct
result of the type of project.
Construction of a new house,
demolition of old buildings as part of a
restoration 'of a downtown area,
renovation of an old office building, and
new highway construction all result in
different types of construction and
demolition waste materials being
generated.
The report entitled "Construction
Waste and Demolition Debris Recycling
..-'. • A Primer" divided construction
and demolition waste activities into five
categories. These five categories and the
typical construction and demolition
waste materials associated with each
category are presented below:
Roadwork Material: Mostly asphalt,
concrete (with or without reinforcing
bar), and dirt ' .
Excavated Material: Mostly dirt, sand.
stones (sometimes contaminated with
site clearance wood waste and buried
pipes)
Building Demolition: Mainly mixed
rubble, concrete, steel beams, pipes.
brick timber and other wastes from
fittings and fixtures -
Construction/Renovation: Mixed waste
including wood, roofing, wall board,
insulation materials, pieces of duct
work and plumbing
Site Clearance: Mostly trees and dirt
with the potential for some concrete.
rubble, sand and steel
Some construction and demolition
waste facilities may be subject to the
requirements being proposed today.
Construction and demolition waste
facilities that receive wastes that are
CESQG hazardous wastes will have to
comply with the proposed chances in
§§257.5 through 257.30. .
CESQG hazardous wastes generated in
construction, renovation, and
demolition are most'likely to be specific
chemicals or products used in these
activities. Listed below are typical
examples of wastes generated by
.construction and demolition activities
that may be CESQG wastes, if the wastes
are hazardous and are generated under
the CESQG limits (<100 kg per month,
or less than 1 kg per month of acute
hazardous waste):
• Excess materials used in
construction, and their containers.
Examples: adhesives and adhesive
.containers, leftover paint and paint
(containers, excess roofing cement and
roofing cement cans. ••
• Waste oils, grease, and fluids.
Examples: machinery lubricants, brake
iiluids,engine oils. -
• Waste solvents or other chemicals
that would fail a characteristic or that
lire listed as a hazardous waste that are'
removed from a building prior to
demolition (e.g., ignitable spent
solvents, spent acids or bases, listed
spent solvents (F001-F005), or listed
unused commercial chemical products
that tire to be discarded).
" ,| Geiieral construction and demolition
debris (e.g.. rubble from building
demolition) would typically be
hazardous waste only if it exhibits one
cjf the four characteristics of hazardous
wasteHgnitability. corrosivity,
reactivity, or toxicity (see subpart C of
40 CFR part 261). To determine if such ,
debris is hazardous, the generator
should use knowledge of the waste or,
test to determine if a representative
simple of the waste exhibits any of the
characteristics. See 40 CFR 262.11. See
also Chapter nine of "Test Methods for
, Evaluating Solid Waste, Physical/
Chemical Methods" (SW-846). Third
Edition, on how to develop a sampling
pi-ogrem. As an example, if a building is
demolished, the generator should use
his knowledge concerning the building
debris, or test a representative sample of
the building debris, to see if the
building debris exhibits a characteristic •
of hazardous waste.
Prior to demolishing a building, the
ovraer or the demolition company may
choose to remove components of the
building that contain concentrated
constituents of concern such as lead
pipe, lead flashing, mercury containing
thermostats and switches, or mercury-
containing lamps (light bulbs)! This may
be done for purposes of avoiding .
coincenn that the entire demolition
nibble may exhibit the characteristic of
to>acity, for recycling and resource
conservation, or as required by state or j
local law. For purposes of resource
conservation, the Agency encourages
removal of items that may be cost-
effectively recycled or reused. It should
be noted that any removed items should
be managed in compliance with
applicable requirements, including, if '
the! items exhibit characteristics, the
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30968
Federal Register /Vol. 60, No. 112 / Monday. June 12. 1995 /Proposed Rules
requirements for CESQGs or the fall
hazardous waste regulations. Also note
that some such items may be, in the
future, covered under streamlined
"universal waste" regulations-that
would minimize the applicable
regulatory requirements. (See final
"universal waste rule," 60 FR 25492,
May 11,1995.)
Literature that was evaluated by the
Agency and summarized in Chapter 2 of
the Agency's report "Construction and
Demolition Waste Landfills" identify a
number of wastes that are referred to •
using such terms as "hazardous,"
="e.xcluded," "unacceptable,"
"problem," "potentially toxic," or •
"illegal." It is not necessarily true that
all of these wastes meet the definition
of "hazardous" under Subtitle C of
RCRA, but they provide an indication of
the types of wastes that may be present
in the construction and demolition
waste stream that are considered by
others to be a potential problem.
A construction and demolition waste
fsnerator should contact their State
olid Waste Program for their guidance
or rules concerning the types of
construction and demolition wastes that
the State considers to be hazardous.
C. Existing State Programs
1. State Requirements Pertaining to
Management of CESQG Hazardous
Wastes
Since the existing controls governing •
the disposal of CESQG waste are under
the Subtitle C program (i.e., §261.5),
State requirements must be at least as
stringent as the Federal requirements.
States may however establish more
stringent controls for CESQGs within
their jurisdiction. Some States require t
that CESQGs obtain a hazardous waste
ID number while other States require
CESQGs to use a manifest for off-site
transportation. Some States require that
all or some portion (e.g., those with
liquid industrial and ignitable wastes) of
CESQG waste be managed at only
permitted Subtitle C facilities. States
that require that CESQG waste be
managed at only Subtitle C facilities
would prohibit CESQG disposal in a
municipal, non-hazardous industrial, or
construction and demolition waste
landfill.
2. State Requirements for Construction
and Demolition Facilities ' . .
EPA conducted a study to determine
the current regulatory standards for
construction and demolition facilities
that are applicable on a State'level. State
regulatory standards for construction
and demolition facilities vary State-by-
State and are generally not as detailed .
nor environmentally stringent as State
standards for municipal solid waste
landfills. Furthermore, States apply
standards more frequently to off-site •
construction and demolition waste
facilities vs. on-site construction and
demolition waste facilities. In general,
the EPA study focussed on the number
of State programs that had requirements
for die statutory minimum components
specified in RCRA section 4010(c). The
numbers, discussed below, correspond
to the number of States that impose the
requirement or standard on off-site '
construction and demolition waste.
facilities. Generally, a smaller number of
States impose requirements on on-site
facilities.
The most common location
restrictions that States apply to C&D
facilities relate to airports and bird
hazards, wetlands and floodplains. A
majority of the States (35) have
restrictions applicable to construction
and demolition facilities being located
within the 100-yr. fioodplain. Twenty-
five (25) States have location restrictions
pertaining to construction and
demolition disposal facilities in
wetlands. Similarly, 21 States have
location restrictions for some or all
construction and demolition facilities
pertaining to airports and bird hazards.'
Fewer States have adopted location
restrictions pertaining to seismic impact
zones, fault areas, or unstable areas.
With regard to ground-water
monitoring and corrective action, 29
States require some or all construction
and demolition facilities to monitor
ground-water and 22 States have
corrective action requirements. For
those States that impose ground-water
monitoring requirements, most States
have requirements that are substantially
less stringent than the Municipal Solid
Waste Landfill Criteria (part 258). With
regard to those States that impose
corrective action requirements. States
usually require that either the permit
applicant submit a corrective action
plan with the permit or require the
facility owner/operator to submit a plan
after a release to ground water is
detected.
V. Discussion of Today's Regulatory
Proposal
A. Non-Municipal Solid Waste Disposal
Facilities That Receive CESQG
Hazardous Waste .
This rule applies to non-municipal
solid waste disposal facilities that
receive CESQG hazardous waste, and
the rule would provide that only such
facilities which meet the requirements
in §§257.5 through 257.30 "may
receive" CESQG.waste, as required by
RCRA section 4010(c). Any non-
municipal solid waste disposal facility
that does not meet the proposed
requirements may not receive CESQG
hazardous wastes. The non-municipal
units that are subject to this rule are
surface impoundments, landfills, land
application units and waste piles that
receive CESQG waste for storage,
treatment, of disposal. This.is based on
the existing applicability of part 257 to .
all solid waste disposal facilities {40 '
CFR 257.1(c)). Disposal is defined at .
§ 257.2 to mean "the discharge, deposit,,
injection, dumping, spilling, leaking, or •
placing of any solid waste or hazardous
waste into or on any land or water so
that such solid waste or hazardous
waste or any constituent thereof may '
enter the environment or be emitted into
the air or discharged into any waster,
including ground waters." This is also •
the statutory definition of "disposal" in
RCRA section 1004(3). The definition
covers any placement of waste on the
land whether it is intended to be
temporary or permanent.
• B. Decision to Impose or Go Beyond the
Statutory Minimum 'Components
RCRA section 4010(c) requires that
these revised Criteria must at a
minimum include location restrictions,
ground-water monitoring as necessary to
detect contamination, and corrective
action, as appropriate. The part 258
Municipal Solid Waste Landfill Criteria
. went beyond the statutory minimum
requirements (see 56 FR 50977) and
included the following additional
requirements: Operational requirements,
design standards, closure and post-
closure care •requirements and financial
assurance standards. The Municipal
Solid Waste Landfill Criteria went
beyond the statutory minimum
components for a variety of reasons.
Some of these reasons included:
—163 case studies that revealed ground-
water contamination at 146 MSWLFs,
along with 73 MSWLFs that had
documented cases of surface water
contamination,
—29 documented cases of uncontrolled
. methane releases at MSWLF causing
fires and explosions at 20 of the 29
facilities.
—A high percentage of National Priority
List (NPL) sites were MSWLFs (184
sites out of 850 as of May 1986), and
—A belief, based on risk modelling, that
some MSWLFs presented
unacceptable risks to human health.
Taken together, these problems
demonstrated a pattern of recurring
problems and potential hazards
associated with MSWLFs best addressed.
•by requiring a comprehensive set of
facility standards.
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statutory minimum components for
non-municipal solid waste disposal '
facilities that receive CESQG hazardous
wastes. Based on the data reviewed
• below, the Agency believes that these
facilities do not pose risks that would
warrant more comprehensive facility
standards.
1. Construction and Demolition Waste
Facilities
The Agency analyzed existing
leachate and ground-water monitoring
data, and damage cases associated with
construction and demolition waste
management to assess potential risks
associated with construction and
demolition waste disposal facilities.
Landfill leachate sampling data and
ground-water monitoring data were
collected from states and from general
literature provided to the Agency by the
National Association of Demolition
Contractors (NADC).
a. Construction and Demolition
Leachate. EPA evaluated representative
construction and demolition waste
leachate values ("Construction and
Demolition Waste Landfills"). (This data
was compiled by NADC). Leachate
sampling data for 305 parameters
sampled for at one or more of 21
construction and demolition landfills '
were compiled into a database.
Of the 305 parameters sampled for, 93
were detected at least once. The highest
detected concentrations of these
parameters were compared to regulatory
or health-based "benchmarks,".or
concern levels, identified for each
. parameter. Safe Drinking Water Act
Maximum Contaminant Levels (MCLs)
or Secondary Maximum Contaminant
Levels (SMCLs) were used as the
benchmarks if available. Otherwise,
health-based benchmarks for a leachate
ingestion scenario were identified; these
were either reference doses (RfDs) for
non-carcinogens, or 10 -« risk-specific
doses (RSDs) for carcinogens.
Benchmarks were unavailable for many
parameters because they have not been
studied sufficiently:
Of the 93 parameters detected in C&D
landfill leachate, 25 had at least one
measured value above the regulatory or
health-based benchmark. For each of
these 25 parameters, the median
leachate concentration was calculated
and compared to its benchmark. The
median value was first calculated
among the samples taken at each
landfill, and then across all landfills at
which the parameter was detected. Due
to anomalies and inconsistencies among
the sampling equipment used at
different times and at different landfills.
non-detects were not considered in
determining median values; i.e.. the
non-detects were discarded before
calculating both individual landfill
concentration medians and medians
across landfills. Thus, the median
leachate concentrations represent the
median among the detected values,
rather than the median among all
ivalines. The median concentration
among all values would in most cases
have been lower than those calculated
here. •
Based on (1) the number of landfills
at which the benchmark was exceeded
and (2) a comparison between the
median detected concentration and the
benchmark, seven parameters emerge as
being potentially problematic. The
Agency identified this list of 7
potentially problematic parameters by
eliminating from the original list of 25
.parameters any parameter that was only
detected a,t one landfill (this was .
determined to be not representative)
imd. furthermore, eliminating any
parameter whose median concentration
did not exceed the benchmark value for
that parameter. The 7 potentially
problematic parameters are as follows:
li,2-Dichloroethane
Methylene chloride
fodmium
Iron
toad
Manganese , ••' :
Total dissolved solids*
i Th« benchmark values for three of the
parameters (total dissolved solids, iron.
and manganese) are secondary MCLs
(SMCLs). Secondary MCLs are set to
protect water supplies for aesthetic
reasons, e.g., taste, rather than for
health-based reasons. The remaining 4
constituents, their calculated medians,
and health-based benchmark values are
a.<> follows:
Constituent • ,
Methylene chloride ;„• • - • " '
Cadmium ...... ' ' """ — ~-.™..™.__.^..
Median con-
centration •
19 (igfl J ....
15.2|ig/J
10.5 iioyi
55 |ig/l ..'. .
Hearth-ba
Value
5 M5J/1 ............
5 iijj/l ... „
5 (1Q/I ... ...
sed values
Source
MCL.,
10-«RSD. .
MCL. .
The next step in evaluating the
significance of these constituent
concentrations-is to apply an exposure
model to develop a relationship
between the constituent concentration
in the environment at an assumed
exposure point and the constituent
concentration in the waste. This is
because constituents released from a
. waste undergo a variety of
environmental fate and transport
processes that result in exposure point
concentrations that are lower than levels
in the waste stream or in leachate.
The Agency assumed a dilution
attenuation factor (DAF) of 100 for the
fate and transport analysis. The value of
100 was selected based on the
development of the Toxicity
Characteristic (40 CFR 261.24). The DAF
is an estimate of the factor by which the
concentration is expected to decrease
between the waste management facility
and a hypothetical downgradient
drinking water well. A multiplier of 100
corresponds to a cumulative frequency
close to the 85th percentile from the
EPACML simulations used to support
the TC rule. In other Words, in this
exposure scenario, an estimated. 15 :
percent of the drinking water wells
closest to unlined municipal landfills
could have contaminated concentrations
above MCLs. Dividing the calculated
median concentration by the DAF of 100
and comparing the new concentration
allows for an estimate as to whether the
new concentration will exceed the '
health-based value at an exposure point
In using the DAF of 100, the resulting
new concentrations are all below their
respective health-based values. The
resulting concentrations as compared to
the health-based values are presented in
this table below.
1
Constituent
i ,
1,2-DicMoro-etn-
tine. •
Melhylene chloride
Caiimium
Letid •
Median con-
centration di-
vided by DAF
.of 100
.19 jig/1 ..
.152 jig/l .
.105 |ig/l .
55 un/I
Health-
based
value
5 fiO/I
5 uo/l
5ng/l
l>. Construction and Demolition
Damage Case Analysis. EPA conducted
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30870 Federal Register / Vol. 60. No. 112 7 Monday. June 12. 1995 / Proposed Rules
a study ("Damage Cases: Construction
and Demolition Waste Landfills") to
determine whether the disposal of C&D
debris in C&D landfills has led to the
contamination of ground or surface
water or damages to ecological
resources. All of the damage case
information EPA evaluated came from
existing information in State files and
literature sources'. EPA was able to
identify only 11 C&D landfills with
evidence of ground water or surface.
•water contamination. EPA found no
documented evidence of existing human
health risks or ecosystem damagesat
construction and demolition landfills
and little documented evidence of off-
site contamination. . .
When the Agency reviewed existing
sources of data for C&D damage cases.
the Agency reviewed existing
Superfund databases (NPL), contacted
EPA regional representatives, 32 States.
county environmental Agencies, and
existing studies or reports providing
background information on C&D
facilities and damages.
When EPA searched for C&D damage.
cases, several criteria were used to
identify where the damages could
reasonably be associated with
construction and demolition facilities
and construction and demolition waste
disposal. First and foremost, the Agency
sought to identify C&D facilities that
accepted predominantly C&D wastes.
Landfills that had received significant
quantities of municipal waste, non-
hazardous industrial waste, or
hazardous waste in the past were
excluded from consideration.
Additionally construction and
demolition sites located near other
facilities or leaking underground storage
tanks that could reasonably be the
source of contamination were excluded.
•as possible C&D damage cases. Lastly,
there needed to be documented
evidence of contamination at the C&D
site.
The 11 damage cases that the Agency
has identified are from New Yprk,
Virginia, arid Wisconsin. Virginia and'
Wisconsin have required groundwater
monitoring since 1988 at C&D facilities.
The facilities in New York were among
9 C&D sites investigated due to public
concerns about possible hazardous
waste disposal and potential human
health and environmental impacts.
A study-of the 11 C&D sites revealed
on-slte ground-water contamination at
all of the facilities and surface water •
contamination at 6 of the 11 sites, with
the main contaminants being metals and
. othef inorganics. At 3 of the 11
facilities, sediment contamination was
also detected. Although most of the
contamination associated with these
damage cases occurred on-site, 2 of the
eleven facilities did have off-site
contamination (both facilities had
sediments and surface water
contamination occurring off-site).
Although most of the 11 sites were
monitoredfor a wide range of organic
and inorganic constituents, virtually all
of the contamination was associated
with inorganics. Constituents that
exceeded State ground-water protection
' standards or Federal drinking water.
criteria most frequently were manganese
(9 sites), iron (8 sites), total dissolved
solids (6 sites), lead (5 sites).
magnesium (4 sites), sodium (4 sites),
pH (3 sites) and sulfate (3 sites). The
other 8 constituents that were detected
in ground water at these 11 sites were
detected at only one or two sites.
" For the 6 sites that had surface water
contamination, the constituents that
exceeded State surface water standards
or Federal Ambient Water Quality
Criteria most frequently were iron (4
sites), zinc (3 sites), lead (2 sites), and
copper (2 sites). The other 5
constituents that were detected in
surface water at these 6 sites were
detected only once. No fish kills or
other observable impacts on aquatic life
were reported in any of the references
that the Agency reviewed.
A look at the most frequently detected
constituents in ground water or surface
water reveals that of the 10 constituents,
7 are a concern due to SMCLs; only
lead, magnesium, and sodium are not.
Magnesium was found to exceed only
an applicable State standard by a factor
of 4 times, while sodium was found to
exceed an applicable State standard by
a factor of 14. Lead was found in ground
. water to exceed the Federal action level
at the tap (15 (ig/1) by a factor of 6. Lead
was also foun'd in surface'water to
exceed the established Federal Ambient
Water Quality Criteria by a factor of 16
to 300 (although for the higher factor the
reported value of lead in the surface
water was "estimated").
c. Construction and Demolition
Ground-Water Monitoring Data. Limited
ground-water monitoring data suggests
that a similar set of parameters that are
detected in C&D leachate and that
appear in damage cases associated with
C&D facilities are also detected in
ground water. Based on the limited
ground-water data, only 19 parameters
had a maximum value exceeding a
health-based benchmark. Of these 19
parameters, 8 exceeded a secondary ,
MCL (TDS, sulfates. Ph. manganese,
chlorides, iron, copper, and aluminum).
For the remaining 11 parameters, 5 are
orgariics (Bis(2-ethylhexyl) phthalate,
methylene chloride, tetrachloroethene,
1,2,4-trichlorobenzene, and 1.1.1-'
trichlorbethane), 5 are inorganics
(arsenic, cadmium, lead, mercury, and
nickel), and 1 is a conventional
parameter (nitrate). Only one
constituent (cadmium) exceeded its •
health-based value by ah order of
magnitude. Some constituents had a
maximum ground-water value just
exceeding its health-based value. It is
important to remember that when
looking at the limited ground-water
monitoring data what is being discussed
ia this paragraph are maximum levels; '
additional sampling events for these
constituents resulted in lower levels or
non-detects.
d. Conclusions for Construction and
Demolition Facilities. While the data on
construction and demolition waste
landfills are limited, the Agency has
reached some conclusions. Based on
evaluation of the data analyzed above,
individual construction and demolition
waste facilities may have caused limited
damage to ground water and surface
water and potentially, may pose a risk
to human health and the environment.
Individual C&D facilities may also affect
usability of drinking water due to
aesthetic impacts. However, the Agency
believes that C&D facilities, in general,
do not currently pose significant risks
and that individual damage cases are
limited in occurrence. The/small
number of damage cases and the
leachate concentration data reviewed
above support these conclusions.
Ground-water monitoring and corrective
action at these facilities will ensure that
any releases and potential risks at
individual facilities will be identified
and corrected in a timely fashion to
protect human health and the,'
environment. Location restrictions will
ensure that non-municipal solid waste
disposal facilities that receive CESQG
waste will be located in acceptable
areas, thereby, providing further .
protection of human health and the
environment. Because construction and
demolition waste facilities, in general.
do not currently pose significant risk.
the Agency has concluded that the
statutory minimum requirements will
ensure protection of human health and ,
the environment.
2. Off-Site Commercial Landfills
As for the 10-20 commercial off-site
facilities that accept only industrial
wastes, the Agency understands that
• corporate policy has been to subject
these types of facilities to stringent
environmental controls. In addition.
State regulations also apply to these
types of facilities. A facility of this type
generally employs a liner, has closure
and post-closure care requirements and
financial assurance standards. These
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Federal Register / Vol. 60, No. 112 /Monday. June 12. 1995 / Proposed Rules
30971
State and corporate controls go beyond
the statutory minimum controls and
therefore the Agency believes that there
is no need, on the Federal level, to
impose additional standards beyond the
statutory minimum. ' - •
3. Request for Additional Data and
Comments Concerning Statutory
Minimum or More Comprehensive
Facility Requirements
The leachate and ground-water
monitoring data and the damage cases
analyzed represent a small number of
facilities relative to the construction and
demolition facility universe. The
Agency solicits any additional data .
concerning C&D facilities to further
assess the potential risks they may pose,
as well as additional data on
commercial industrial solid waste
facilities or other types of facilities that
may be subject to today's proposal.
. The Agency also requests comment on
whether the requirements being
proposed today should go beyond the
statutory minimum components.
Requirements beyond the statutory
minimum components could include all
•or any of the following components:
Operational criteria, design standards,
closure and post-closure care
requirements, and financial assurance
standards. The Agency is requesting that
commentors provide data that
documents the need to go beyond the
statutory minimum components. The
Agency is also requesting that
commentors be specific as to whether
any additional controls should be
identical to the pan 258 Criteria for
municipal landfills or should require a
different standard and what that
standard should be. " ','.,
C. Decision to Establish Facility
Standards Under Part 2$7.and
Revisions to Part 261 " - . '
The Agency proposes today to
establish facility standards for non- -
municipal solid waste disposal facilities
that receive CESQG hazardous wastes.
Section 4010(c) states that the Agency
should revise the existing part 257
Criteria for facilities that "may receive"
CESQG waste. Clearly, today's proposal
responds to the statutory language. The
Agency is proposing to establish facility
standards, in'a separate section of part
257, for non-municipal solid waste
disposal facilities that receive CESQG
hazardous waste. By providing that only
those facilities meeting the new
standards "may receive" CESQG waste,
the Agency believes it will satisfy the
statutory mandate of RCRA section
4010. • .
The Agency is also proposing
revisions to the language in § 261.5 •
(Special requirements for hazardous
waste generated by conditionally • .
exempt small quantity generators).
These revisions will clarify the types of
. acceptable treatment, storage, or
disposal facilities that can be used to
manage CESQG hazardous waste while
making it clear that CESQGs are
responsible for ensuring that their
CESQG hazardous wastes destined for
storage, treatment, or disposal are sent
to acceptable facilities. This will help
ensure that CESQG waste is not sent to
facilities that do not meet the new part
257 regulations (i.e., to facilities that
"may not receive" CESQG waste.'
Acceptable facilities are either interim
status or permitted Subtitle C facilities;
municipal solid waste facilities
permitted, licensed, or registered by a
State and subject to part 258 or an
approved State program; non-municipal
solid waste disposal facilities that are
permitted, licensed, or registered by a
State and subject to the new part 257
regulations or an approved State
program; or solid waste management
facilities that are permitted, licensed, or
registered by a State (i.e., municipal
solid waste combustor). EPA encourages
CESQGs to consult with their State solid
waste agency to determine which
facilities are acceptable. Today's
proposed changes to § 261.5 make no
changes to the provisions allowing
CESQGs to send their hazardous waste
for beneficial use,.reuse, legitimate
recycling or reclamation.
D. Request for Comment on the Use of
, an Alternative Regulatory Approach, in
Today's Rule
The Agency previously discussed its
proposed approach to impose only the
statutory minimum requirements on
non-municipalsolid waste facilities that
receive CESQG hazardous waste. The
Agency has identified two options for
writing the statutory minimum •
components. One option is to use the
part 258 Criteria as the baseline for
these requirements. The second option'
would be to specify general performance
standards to be met by facility owners/
operators as they implement the
standards, as well as to guide States in
designing new regulatory programs (or
revising existing regulatory programs).
There are several reasons why the
Agency is considering using the part
258 Criteria, (1) Part 258 Criteria
provide sufficient detail so that an
individual owner/operator can self-
implement them without State
interaction in those instances where
States do not seek approval of their
permitting program'as required in RCRA
section 4005(c). (2) EPA believes that
the national minimum requirements are
ni!ces<;ary to collect reliable and
consistent ground-water monitoring
data and to respond to contamination
from the unit. (3) They contain a
substantial amount of flexibility that
allows approved States to tailor
standards to individual and classes of
facilities. Also, EPA and State success in
accomplishing 42 State program
approvals demonstrates that a variety of
State approaches are consistent with the
port 2!>8 Criteria. As an example. States
hsive established different design
standards based on State-specific or site-
. specific factors that comply with the -
part 2!i8 criteria. The Agency.expects
•States to likewise use this same
fleixibility in tailoring their ground-
water monitoring programs. (4) Some
States have expressed strong support for
using ;J58'standards as the baseline for
solid waste disposal facilities that
receive CESQG hazardous waste. (5)
While some States have standards for
non-municipal facilities that are not
identical to the 258 standards, the
Agency believes there is a strong
likelihood that many state programs
would be approvable.
Reasons cited in support of using the
general performance standard approach
include: (1) Although the part 258
standards contain substantial flexibility
for States to tailor the programs to their
conditions, the part 258 standards put
certain limits on State flexibility to
design a program tailored to local
conditions; (2) The part 258 standards
also include certain national minimum
requirements (which States can not
modify) that EPA promulgated because
of ithe risks posed by MSWLFs.
However, since EPA has found that
facilities that receive CESQG waste may
pose substantially less risk than
MJiWLFs,'these national'minimum
standards may be overly stringent at
certain facilities; (3) In the absence of a;
;significaht Federal program, over half of
the States have adopted location
standards, ground-water monitoring
requirements, and corrective action
requirements that are significantly less
extensive than the part 258 standards. If
.a State believes that its existing program
satisfies the general RCRA performance
standard—protects human health and
the environment, taking into account
the practicable capability of these
facilities—it could seek approval of
their existing programs and avoid
substantial regulatory or legislative
changes;; and (4) a general performance
standard would provide the maximum
flexibility for States and owners to
adopt new methodologies and
technologies (e.g., detecting
groundwater contamination from the
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Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 i
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surface, not from wells) to meet the
standard at the lowest possible cost.
In order to give the regulated
community a better idea of how the
ground-water monitoring and corrective
action requirements could be written
using a general performance standard
approach, the Agency has developed the
following examples of general
performance language for each of the
main elements of a ground-water and
corrective action program.
For § 257.22, ground-water
monitoring systems, the regulatory
language for the general performance
approach could require that the owner/
- operator install a ground-water
monitoring system capable of detecting
contamination that would consist of a
sufficient number of wells, installed at
appropriate locations and depths, to
yield ground-water monitoring samples
from ine uppermost aquifer that
represent both the quality of background
ground-water and the quality of ground-
water passing the point of compliance. ,
However, this section would not specify
how the monitoring wells should be
cased or the proper depth and spacing
of the wells. The part 258 approach
establishes the point of compliance for
units under today's proposed
rulemaking to no more than 150 meters
from the edge of a unit boundary.
However, a general performance
standard could be written to allow states
to set the point of compliance at other
protective locations. The Agency
specifically requests comment on
whether a flexible approach to
establishing the point of compliance is
particularly well suited to low-risk
facilities such as those addressed by this
, rulemaking. and if so. which factors .
should be considered in making a
, determination at these facilities.'
The Agency also is currently ' ,
evaluating a performance-based
approach to locating the point of
compliance for clean-up of releases in
the hazardous waste.program as part of
the corrective action rule development
in subpart S of 40 CFR part 264.-The
states are participating in the subpart S
Tulemaking as co-regulators. Point of
compliance options under consideration
include: The unit boundary, the facility
boundary, use of a buffer zone and
anywhere in the plume of
contamination beyond the unit .
boundary. We are contemplating that
the subpart S approach-could provide a
basis for flexible, site-specific decision
making for waste management facilities
covered by today's rule.
For § 257.23, ground-water sampling
and analysis requirements, the
regulatory language for the general
performance language could require that
the owner/operator establish a ground-
water monitoring program that includes
consistent sampling and analysis
procedures that ensure monitoring
results that provide an accurate :
representation of background ground-
water quality and down-gradient
ground-water quality. The Agency
would also state that the sampling and
analysis procedures should also ensure
that appropriate sampling and analytical
methods are used and that ground-water
quality data is based on appropriate
statistical procedures. However, the
regulatory language would not require •
that any specific statistical test be used
nor would the regulatory language
require that general performance
standards be met as a condition of using
an alternative statistical test.
For § 257.24, detection monitoring
program, the regulatory language for the
general performance language could
require that the owner/operator
establish a list of indicator or detection
parameters that are monitored for and
that enable the owner/operator to detect
contamination. The Agency would also
state that the monitoring frequency
should be determined based on site .
specific factors and that the owner/
operator must also establish a process
for assessing any potential
contamination, based on the statistical
procedures established in § 257.23.
However, EPA's regulatory language
would not specify any factors that an
owner/operator should consider in
selecting his/her indicator/detection
monitoring parameters nor would the
regulatory language specify the siter
specific factors that would need to be
• evaluated'by the owner/operator in
determining .the frequency of
monitoring.
For §257.25, assessment monitoring
program, the regulatory language for the
general performance standard approach •
could require that'the owner/operator
establish a process'for assessing any
potential contamination based on (1)
additional monitoring for hazardous
constituents that are expected to be
present at the facility and (2) the
establishment of background standards
and health-based standards for the
constituents that are monitored. The
Agency would also state that the process
must allow for a comparison, based on
die statistical procedures established in
§ 257.23, of those background and
health-based standards in order to
determine when a health-based standard
has been exceeded and to allow for the
assessment of corrective measures when
it is determined that an exceedance has
occurred.jHowever, the regulatory
language would not specify any steps
that must be complied with as part of
the process in assessing the monitoring
program.
For § 257.26, assessment of corrective
action, the regulatory language for the
general performance standard approach
could require that the owner/operator
assess the potential range of corrective
measures that could be used to meet the
performance standard established in
§ 257.27. However, the regulatory
language would not list any factors that
should be considered by the owner/ •;
operator in assessing any potential
remedy. It may allow the States
flexibility to use a different risk
assumption than those in part 258 to
establish, triggers for corrective action. -
For § 257.27, selection of remedy, the
regulatory language for the general
performance standard approach could
require that the owner/operator select
the most appropriate remedy that (1)
controls the source of releases to the
maximum extent possible. (2) attains the
health-based standard(s) developed in
the assessment monitoring program, and
(3) protects human health and the
environment. The Agency would also
state that the owner/operator would also
need to establish a time period for
initiating and completing the selected
remedy. However, the regulatory
language would not list any factors that
an owner/operator should consider in
selecting the remedy, in establishing a
schedule for initiating and completing
the remedy, or in deciding that
remediation is not necessary.
For § 257.28, implementation of the
corrective action program, the .
regulatory language for the general
performance standard approach could
require that the owner/operator
mplement the selected remedy, based
on the schedule established in § 257.27.
and attain compliance with the health-
based standards established in § 257.25.
The Agency would also state that the
implementation of the corrective action
program should include a consideration
of interim measures that may need to be
considered during corrective action and
a consideration of alternative corrective
measures if, after implementation of the
selected remedy, the health-based
standards in §257.25 are not being
achieved. However, the regulatory
language would not list any factors that
an owner/operator should consider in
developing interim measures or in the
selection of an alternative remedy.
The Agency believes that the general
performance standard approach has
some advantages. The approach would
offer more flexibility to States to
determine how best to run their State
program for non-municipal-solid waste
facilities that receive CESQG hazardous
waste, while allowing States to tailor
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30973
. regulations based on anticipated risks.
In the absence of a State program,
owners/operators would have to
• determine how to comply based on risk.
However, the Agency is concerned that
such a performance standard approach
may result in greater uncertainty for
owners/operators.
While the Agency has not proposed
the general performance standard
approach in today's proposal, the -
Agency believes that the performance
standard approach provides some
' interesting options/advantages for
owners/operators and State-agencies.
Therefore, the Agency is requesting
• comments on the use of general
performance standards in lieu of the
approach used in today's proposal.
E. Highlights of Today's Statutory
Minimum Requirements for Non-
Municipal Solid Waste Disposal
Facilities That May Receive CESQG
Hazardous Waste
For today's proposed regulatory
language, the Agency has used the part
258 Criteria as a baseline. The highlights
of the part 258 requirements are . . . -
presented in this section of today's
preamble. The flexibility that was
developed for the part 258 Criteria has
been incorporated into today's proposal
for the location restrictions and the
ground-water monitoring and corrective
action requirements. The Agency
solicits comments from the regulated
community on whether these standards
would provide sufficient flexibility for
construction and demolition waste
facilities. Commentors are requested to
review the proposal with an eye.towards
identifying those areas in the proposal '
that they believe do not contain
sufficient flexibility and would unduly
hinder or place unnecessary burdens on
construction and demolition waste
facilities or other facilities potentially
affected by the rule. The Agency
requests that if commentors identify a
provision that is lacking in flexibility,
that the commentors clearly identify
alternative rule language that provides
the necessary flexibility.
1. Applicability and Effective Date
Today's proposal establishes new
sections in part 257 (i.e., §§ 257.5
through 257.30) that apply to any non-
municipal solid waste disposal facility
that receives CESQG hazardous wastes.
Today's proposal does not apply to
municipal solid waste landfills subject
to part 258 or hazardous waste facilities
subject to regulations under Subtitle C
of RCRA. .--•."•
Owners/operators of non-municipal
solid waste disposal facilities whose
facilities do not meet the proposed
requirements may not receive CESQG
hazardous waste. Owners/operators of
such facilities would continue to be
subject to the requirements in §§ 257.1-
257.4.
Owners/operators of non-municipal
solid waste disposal facilities that
jeceive CESQG hazardous waste after
the effective date (i.e., 18 months after
the date of publication of the final rule
in the Federal Register) must comply
with the requirements in §§257.5 -
through 257.30.
Certain facilities may implement
screening procedures to effectively
eliminate the receipt of CESQG
hazardous wastes. If an owner/operator
has a question concerning applicability
of the rule, he/she is encouraged to
contact his/her State Agency to
•determine that the screening procedure
ensures that the facility does not receive
CESQG hazardous waste.'
2. Existing Part 257 Requirements
All types of non-hazardous waste
facilities, except municipal solid waste
landfills, must comply with the current
requirements in 40 CFR part 257. In
developing today's proposal for non-
municipal solid waste disposal facilities
that receive CESQG wastes, the Agency
decided to retain some of .the existing
part 257 requirements. Owners/
operators of non-municipal solid waste
disposal facilities that receive CESQG
hazardous waste continue to be subject
to the following existing requirements
in §§257.1-257.4: §§257.3-2
(Endangered Species), 257.3-3 (Surface
Water), 257.3-5 (Application to food-
chain crops), 257.3-6 (Disease), 257.3-
7 (Air), and 257.3-8 (a), (b). and (d)
(Safety). The Agency saw no reason to
eliminate these requirements because
non-municipal solid waste facilities
have been subject to these requirements
since 1979: A non-municipal solid
waste disposal facility that becomes
subject to the CESQG requirements in
§§ 257.5 through 257.30 would no
longer be subject to the following
existing requirements in §§ 257.1-257.4:
§§257.3-1 (Floodplains), 257.3-4,
(Ground water), and 257.3-8(c) (bird
hazards to aircraft) because §§ 257.5
through 257.30 would contain separate
standards, for each of these areas.
As stated earlier, RCRA section 4010
requires that the Agency establish
revised Criteria for non-municipal solid
waste disposal facilities that receive
CESQG wastes that include, at a
minimum, ground-water monitoring,
corrective action, and location
restrictions. These requirements have
been included in new §§ 257.5 through
257.30. Each of these requirements is
discussed below and in more detail in
Reference #1. ,
3. Specific Location Restrictions
the requirements in §§ 257.7 through
257.12 will establish location
restrictions for any non-municipal solid
waste disposal facility that receives
CKSQG hazardous wastes. The location
restrictions are for airport safety,
floodplains, wetlands, fault areas, "
seismic impact zones, and unstable
anaas. The location restrictions being
proposed today for non-municipal solid
waste disposal facilities that receive .
CESQG hazardous wastes are identical •
to the location restrictions that were
promulgated under Part 258 for
municipal solid waste landfills. A
•detailed discussion of the municipal
solid waste landfill location restrictions
can be found at 56 FR 51042-51049 and
in reference #1. '. •
a. Airport Safety
Today's Proposed Language Regarding
Airport Safety (§257.7)
Today's proposal uses the identical
airport safety language that was
established for MSWLFs. Today's '
proposal will require that new, existing.
and lateral expansions of non-municipal
solid waste disposal facilities that
receive CESQG hazardous waste
demonstrate that the facility does not
pose a bird hazard to aircraft. For
exiisting facilities that become subject to
today's rule, only the demonstration
requirement is different from the current
airport safety standard in § 257.3-8(c).
The demonstration requirement is being
proposed because today's airport safety
requirement is written to be self-
implementing and the demonstration
documents compliance and may protect
the! owner/operator from a citizen suit.
For new and lateral expansions of non-
miinicipal solid waste disposal
facilities, the notification to the FAA
and the affected airport is a new
provision. This provision is being
proposed in order for the Agency to be
consistent with existing FAA Order
#52!Q0.5A (see Reference #9—page
51043). This FAA Order establishes that
any disposal site that attracts or sustains
hasiardous bird movements from ,
feeding, watering or roosting areas may
be incompatible with airport operations.
b. Floodplains
Today's Proposed Language Regarding
Floodplains (§257,.8)
Today's proposal uses the identical
language from the MSWLF Criteria.The
demonstration requirement for new,
existing, and lateral expansions of non-
municipal solid waste disposal facilities
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Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / Proposed Rules
Is the only change to the existing part
257 language and is being proposed due
to the self-implementing nature of
today's proposal and to document
compliance on the part of the owner/
operator.
c. Wetlands
Today's Proposed Language Regarding
Wetlands (§257.9)
• Today's proposal establishes
requirements applicable for new and
lateral expansions of non-municipal.
solid waste,disposal facilities regarding
the siting in wetland locations. These '
requirements are identical to the
requirements established for MSWLFs.
The Agency has determined that new
and lateral expansions of non-municipal
solid waste disposal facilities, similar to
MSWLFs, maybe sited in wetlands only
under very certain conditions.
Therefore, the demonstration
requirements that are in the MSWLF
Criteria are being proposed today. These
demonstration requirements will ensure
that if a non-municipal solid waste
disposal facility needs to be located in
a wetland, protection of State water
quality standards and protection of the
wetland will be achieved. Furthermore,
today's proposal is consistent with the
Agency's goal of achieving no net loss
of the nation's wetlands.
d. Fault Areas . ,
Today's Proposed Language Regarding
Fault Anas (§257.10)
Today's proposal for non-municipal
solid waste disposal facilities that
receive CESQG hazardous waste • .
contains a location restriction regarding
fault areas. These requirements are
identical to the requirements
e'stablished.for MSWLFs*.- Today's . •
proposal bans the siting' of new nori-. .
municipal solid waste disposal facilities
or lateral expansions of these facilities
in areas that are susceptible to faulting
(i.e., areas located within 200 feet of a
fault that has had displacement in
recent times) based on the fault area
provision established in part 258.- The
Agency believes that locating a new
facility or lateral expansion in a location
that has experienced faulting has
inherent dangers. If a facility is located
near a fault and displacement occurs,
release of solid waste and hazardous
constituents will occur. The Agency,
however, believes that some flexibility
should be incorporated into the
proposal for approved States and, as
such, today's proposal allows approved
States to site a new non-municipal solid
waste disposal facility or lateral •
expansion within 200 feet of an active
fault if the owner/operator demonstrates
that such an action will be protective of
human health and the environment
• Existing non-municipal solid waste
disposal facilities that receive CESQG .
hazardous wastes would not be subject
to today's proposed fault area
restriction.
The Agency requests comments on
the necessity of requiring a fault area
. restriction for new non-municipal solid
waste disposal facilities or lateral
expansions of these types of facilities
that receive CESQG hazardous waste.
e. Seismic Impact Zones
today's Proposed Language Regarding
Seismic Impact Zones (§ 257.11)
Today's proposal for non-municipal
solid waste disposal facilities that
receive CESQG hazardous waste
contains a location restriction regarding
seismic impact zones. These
requirements are identical to the
requirements established for MSWLFs.
Today's proposal bans the siting of new
non-municipal solid waste disposal
facilities or lateral expansions of these
facilities in seismic impact zones based
on the seismic impact zone provision in
part 258. Existing non-municipal solid
waste'disposal facilities that receive
CESQG hazardous wastes would not be
subject to today's proposed seismic zone
restriction. Seismic activity manifests
itself in the form of ground shaking and
fracturing. These activities can, like
faulting, result in the release of solid
waste and hazardous constituents. The
Agency has incorporated the flexibility
found-in the MSWLF Criteria in today's
proposal. As such, if owners/operators
of new non-municipal solid waste
disposal facilities that receive CESQG
hazardous waste or lateral expansions of
such facilities can demonstrate to the
Director of ah approved State that the
facility and any containment devices '
used in the construction of the facility
are designed to withstand the effects of
seismic activity, then such a facility
may be located in a seismic impact
zone. ' •
f. Unstable Areas
Today's Proposed Language Regarding
Unstable Areas (§257.12)
Today's proposal for non-municipal
solid waste disposal facilities that
receive CESQG hazardous waste
contains a location restriction regarding
unstable areas. These requirements are
identical to the requirements .
established for MSWLFs. Today's
proposal applies to existing non-
municipal solid waste facilities, new
non-municipal.solid waste facilities,
and lateral expansions of these types of
facilities and is based on the unstable
area provision in part 258. These
facilities that receive CESQG waste must
demonstrate that engineering measures
have been incorporated into the facility
design to ensure that the integrity of the
structural components will not be
disrupted. The rationale for requiring
this location restriction is the same as
that provided for fault areas and seismic
activity zones: Waste placed in locations
susceptible to mass movement or placed
in areas with poor foundation
conditions can result in the release of
solid waste and hazardous constituents. •
The Agency, therefore, believes' that
these unstable areas should be avoided'
and locating in an unstable area should
only be allowed after a successful
demonstration by the owner/operator
that the structural integrity of the
facility will not be disrupted. •
In summary, six location restrictions
are being proposed: airport safety,
floodplains,-wetlands, fault areas,
seismic impact zones, and unstable
areas. Existing non-municipal solid
waste disposal facilities that receive
CESQG hazardous wastes are only
required to comply with the airport ..
safety, flobdplain, and unstable area
location restrictions. New or lateral
expansions of non-municipal solid
waste disposal facilities that receive
CESQG hazardous wastes must comply
with all six location restrictions prior to •
accepting waste for disposal.
EPA is proposing that existing non-
municipal solid waste disposal facilities
that cannot make the required
demonstrations pertaining to airports,
floodplains, or unstable areas by 18,
months after publication of the final
rule must stop receiving CESQG ,
hazardous wastes. This 18-morth period
is much shorter than the 5-year period
that was given to MSWLFs under 40
CFR 258.16. EPA provided five years to.
MSWLFs because there was concern
about capacity shortages if existing
owners/operators of MSWLFs had to
close in the short term. For this
proposal, existing non-municipal solid "
waste disposal facilities only have to
comply with three location restrictions:
airport safety, floodplains, and unstable
areas. Two of these three restrictions
being proposed are technically identical
to the existing Part 257 standards that .
existing non-municipal solid waste
disposal facilities have been subject to
since 1979 (i.e., airport safety and
floodplains). The new requirements for
these two location restrictions are the
demonstrations documenting . ,
compliance with these provisions and a
notification to the FAA if a new or
lateral expansion of an existing non-
municipal solid waste disposal facility
wants to site within a five-mile radius .
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1995 / Proposed Rules
30975
of an airport runway end. TKe last
location restriction applicable to -
existing facilities is the unstable area
restriction. The Agency believes that 18
: months is sufficient time for a owner/
operator to demonstrate that the
. integrity of the facility will not be
• disrupted. Furthermore, the Agency
does not believe that capacity concerns
apply to the types of facilities that may
potentially become subject to today's
proposal. .
With the effective date 18 months
after the date of publication of the final
rule, existing non-municipal solid waste
disposal facilities that receive CESQG
hazardous waste will need to make the
necessary demonstrations during this
18-month period. In the event that an
existing non-municipal solid waste
facility can not make the
demonstrations, the existing facility
may not receive CESQG hazardous •
wastes after this 18-month period. If the
existing non-municipal solid waste '
disposal facility fails to make the
necessary demonstrations within 18
months and thereafter stops receiving
CESQG hazardous waste, it can
continue to stay open and operate;
however, it must comply with the
existing standards in §§ 257.1-257.4 vs:
the requirements being proposed today
in §§ 257.5 through 257.30.
3. Specific Ground-Water Monitoring
and Corrective Action Requirements
The requirements in §§ 257.21-257.28
will establish ground water monitoring
and .corrective action requirements for
any non-municipal solid waste disposal
facility that receives CESQG hazardous
wastes. Sections 257.21 through 257.28
establish the criteria for determining an
.acceptable ground-water monitoring
system, :the procedures for sampling and
analyzing ground-water samples, the
steps and factors to be used in
proceeding from an initial detection
monitoring phase, up to, and including
-corrective action for clean-up of .
contaminated ground water.
As stated earlier, the ground-water
monitoring and corrective action
requirements being proposed today for
non-municipal solid waste disposal
facilities that receive CESQG hazardous
wastes are based on the ground-water •
monitoring and corrective action
requirements that were promulgated
under part 258 for municipal solid
waste landfills. As such the areas of
flexibility that exist within the MSWLF
Criteria will also apply to non-.
municipal solid waste disposal facilities
that receive CESQG hazardous waste. A
detailed discussion of the MSWLF
Criteria regarding ground-water
monitoring and corrective action
requirements can be found at 56 FR
51061-51093 and in reference "#l.
Today's proposal is substantively
identical to the Part 258 MSWLF
Criteria. The two' areas of difference
, concern when the ground-water and
corrective action requirements become
effective and the time period during
which ground-water monitoring must be
conducted after the active life of the
, facility. A summary of the applicability
of the ground-water monitoring and
corrective action requirements and each
provision is presented below.
a. Applicability of Ground-water and
Corrective Action Requirements
Today's Proposed Language Regarding
Applicability of the Ground-Water
Monitoring and Corrective Action
Requirements (§257.21)
Today's proposal establishes ground-
water monitoring and corrective action
requirements (discussed separately
below) for non-municipal solid waste
disposal facilities that receive CESQG
hazardous wastes. Existing non-
municipal solid waste disposal facilities
subject to this rule must be in
compliance with the ground-water
monitoring requirements within 2 years
after the date of publication of the final
rule. The Agency is proposing a shorter
effective date for today's proposal than
for the MSWLF Criteria because these
ground-water requirements can be
phased-in over a much shorter time
frame.
The MSWLF Criteria were phased in
over a three to five year period based on
a lack of qualified well drillers. The
Agency has decided on a two year
effective date for a variety of reasons.
First, 24 States prohibit hazardous waste
from being managed in a construction/
demolition waste facility (see Chapter 4
Reference #6). Construction and
demolition waste disposal facilities in
these 24 States will not.be impacted
because they, under State law, cannot
receive hazardous waste.,These 24
States account for 1060 of the
approximate total of 1900 construction
and demolition waste landfills. Further,
8 States require ground-water
monitoring and corrective action that is
similar to Part 258. These 8 States
account for an additional 111
construction and demolition facilities.
Therefore, a total of 1,171 construction
and demolition waste facilities in 32
States will not be affected by this
proposal. A total of 718 construction
and demolition waste landfills in 17
States (New Hampshire has noT
construction and demolition landfills) .
will be affected after this proposal is
finalized. Some States from the
remaining 17 States have existing State
regulations that allow them to impose
ground-water monitoring requirements
on a case-by-case basis; There are a total
of 5 States that may impose ground-
water monitoring requirements at their
construction and demolition waste
landfills (a total of 84 construction and
demolition landfills exist in these 5
States).if only 718 construction and
demolition waste owners/operators may
have to have ground-water monitoring
wells installed, the Agency believes that
there aie a sufficient number of firms
that are qualified to install wells within
2ypars." . "^
The Agency is concerned that some
States (3 States have a total of 491 '
construction and demolition waste
landfilk out of the 718 total that may be
affected) may have difficulty in ensuring
thalt all existing non-municipal solid
waiite disposal facilities that may
receive CESQG waste have ground-
water monitoring in place within 2
years and has allowed a one-year
extension for an approved State. In an
approved State, the Director can
establish an alternative schedule that
allows 50% of existing non-municipal '
solid waste disposal facilities to be in
compliance within 2 years of the final
rule and all non-municipal solid waste
facilities that receive CESQG waste to be
in compliance with the ground-Water
monitoring requirements within 3 years
•'of the final rule. Similar to the MSWLF
Criteria, today's proposal list a series of
factors that the Director of an approved
Stat« should consider in establishing an
alterative schedule.
Today's proposal establishes that the
ground-water monitoring program must
be conducted through the active life of
the facility plus 30 years. Today's
proposal does not contain provisions
beyond the statutory minimum
components and, therefore, no closure
or post-closure care standards are being
proposed. The Agency believes,
however, that ground-water
contamination resulting from the
operation of a facility may not appear
until, after the active life of the facility.
The Agency is therefore concerned that
ground-water monitoring be conducted
for some period of time after the active
life of the facility. As such, today's
proposal establishes the requirement
that ground-water monitoring be
conducted for 30 years after the active
life. The term active life has also been
changed from the definition in the
MSWLF Criteria. Today's proposal
defines active life to be the period of
operation beginning with the initial
receipt of solid waste and ending at the
final receipt of solid waste. In the
MSWLF Criteria the term active life was
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Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / Proposed Rules
defined to mean the period of operation
beginning with the initial receipt of
solid waste and ending at completion of
closure activities in accordance with
§258.60 (i.e., closure and post-closure
care activities). The change in the
definition of the term active life was
necessary to reflect the fact that today's
proposal does not contain closure or
post-closure care requirements.
The Agency selected the 30 year
continuance of ground-water monitoring
after the final receipt of waste because
30 years is consistent with the period of
time that ground-water monitoring is
done after the final receipt of waste at
MSWLFs. Following the approach that
was selected for MSWLFs, the Agency
has allowed the Director of an approved
State to decrease or increase the 30 year
period of lime that ground-water
monitoring must be done after the final
receipt of waste. Any reduction in the
period of time may be granted only after
a demonstration by the owner/operator
that a shorter period of time is sufficient
to protect human health and the
environment and the Director of an
approved State approves such a
demonstration.
The Agency requests comments on
the 2-year effective date and the 30-year
period of time after the active life that
ground-water monitoring must be'
conducted. Commentors should submit
data that supports a shorter or longer
effective date and data concerning the
necessity of the 30-year ground-water
monitoring period.
The flexibility that an approved State/
Tribal Director has in suspending the
ground-water monitoring requirements
for MSWLFs has been provided for non-
municipal solid waste disposal facilities
that receive CESQG hazardous waste in
today's proposal (Reference #9,56 FR •
51061-51062). The provision is . "
proposed for the same reason that it was
finalized in the MSWLF Criteria.-The
Agency believes that certain
hydrogeologic settings may preclude the
migration of hazardous constituents
from the non-municipal solid waste
disposal facility to the ground-water.
This provision is in the applicability
section of today's ground-water
monitoring requirements.
•The Agency is also proposing to
provide to approved States the
flexibility to determine alternative
ground-water monitoring requirements
for small, dry non-municipal solid
waste disposal facilities that receive
CESQG waste. The Agency had
previously issued an exemption to
small, dry municipal solid waste
landfills from some of the requirements
in the MSWLF Criteria (Reference #9.56
FR 509B9-50991). Although the D.C.
Circuit vacated this exemption in the
Sierra Club v. EPA opinion, 992 f.2d at
345, the Court left it to the Agency's
discretion to allow for alternative types
of ground-water monitoring based upon
factors such as size, location, and • .
climate. Concurrent with this proposal,
the Agency is proposing that approved
States be allowed to determine
alternative ground-water monitoring
requirements for small, dry MSWLFs.
The Agency sees no reason to limit this'
flexibility to MSWLFs and, therefore, is
proposing that approved States may
allow alternative monitoring
requirements for small, dry non-
municipal solid waste disposal facilities
that are receiving CESQG waste if the'
facilities meet the definition of small
and dry proposed in § 257.21(i).
Additional information concerning the
alternative ground-water monitoring
requirements for MSWLFs will be
published soon in a FR notice.
In order to be considered small, the
non-municipal solid waste disposal
facility must dispose of less than 20 tons
of non-municipal waste daily. The 20
tons per day is proposed in order to be
consistent with the small landfill
exemption under the municipal solid
waste landfill Criteria. However, the
Agency recognizes that the size
distribution, potential risks/practical
capability and other factors differ for
• these facilities. The Agency is accepting
comments on whether this number
should be different for non-municipal
solid waste facilities.
b. Overall Performance of the Ground-
Water Monitoring System - '.
Today's Proposed Language Regarding
Ground-Water Monitoring Systems
.(§25.7.22) .
Today's proposal contains the same
performance .language in the MSWLF
Criteria and, as such, will provide
owners and operators a performance-
based approach to establishment of a
monitoring system that will ensure
detection of contamination.
Today's proposal continues to allow
State Directors the discretion to
establish an alternative monitoring
boundary and multi-unit monitoring.
The establishment of an alternative
boundary provides flexibility to owners/
operators and in some cases can serve
to reduce corrective action costs by
allowing the owner/operator the
advantage of a limited dilution and
attenuation zone. The establishment of
multi-unit monitoring allows for local
conditions to be taken into account .
where individual monitoring systems
cannot be established.
c. Ground-Water Sampling and
Analysis Requirements . .
Today's Proposed Language Regarding
Sampling and Analysis (§25733)
Today's proposal contains the same ,
sampling and analysis procedures that
are in the MSWLF Criteria*. The
sampling and analysis requirements.
ensure accurate ground-water
monitoring results and allow for an . • .
accurate representation of both the
background ground-water quality and
the quality of ground water at thev
monitoring wells placed downgradient
from the facility. Owners/operators need
to ensure that consistent sampling and
analysis procedures are in place in order
to determine if a statistically significant
increase in the level of a constituent has
occurred indicating the possibility of •
ground-water contamination.
In the promulgated Criteria for
municipal solid waste landfills, the
Agency required that ground-water
samples not be field-filtered prior to
laboratory analysis. (See § 258.53(b)).
The preamble discussion for this ,
requirement can be found at 56 FR
51074. October 9; 1991. The Agency has
been actively working on the issue of
sample filtration due to concerns
expressed by some members of the
scientific community. The Agency
expects to issue, in the near future, a
proposal addressing additional
flexibility on this issue.'This proposal
would include any potential revision to
the prohibition on field filtering as
specified in proposed § 257.23. Thus,
any rule language change to the part 258
Criteria on this issue will be addressed
in the final rule language for non-
municipal solid waste facilities that
receive CESQG wastes.
d. Detection Monitoring Program
Today's Proposed Language Regarding
Detection Monitoring Requirements
(§257-24)
Today's proposal establishes the same
series of steps for ground-water
monitoring as developed in the MSWLF
Criteria. The Agency believes that
monitoring for a limited set of
parameters and determining if there is a
statistically significant increase for any
of these parameters is an essential first
step in evaluating the possibility of a
release from a non-municipal solid
waste disposal facility that receives
CESQG wastes. Today's proposed
detection monitoring program contains
the same areas of flexibility that exist
within the MSWLF Criteria. This
flexibility can be used by the Director of
an approved State to delete any
parameter from appendix I (appendix I
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of part 258) where the Director believes
that the constituent is not expected to be
in or derived from the waste in the unit.
Furthermore, the Director of an
approved .State can establish an
alternative list of inorganic indicator
parameters for the metals in appendix I
of part 258. Also, today's proposal
allows the Director of an approved State
to allow for annual ground-water
monitoring vs. semiannual based on a
series of factors spelled-out in (he
proposal.
e. Assessment Monitoring Program
• Today's Proposed Language Regarding
Assessment Monitoring Requirements
(§257.25)
Today's proposal establishes the same
assessment monitoring program as in
the MSWLF Criteria. The assessment
monitoring program is essential in that
an owner/operator must determine what
constituents have entered the ground
water and understand the extent of the
contaminated plume to develop an
efficient and effective corrective action
program. The purpose of assessment
monitoring is to evaluate, rather than
detect, contamination. The Agency
believes that a second phase of '
monitoring is essential for evaluating
the nature and extent of contamination.
The Agency also believes that the
flexibility that exists in- the MSWLF
Criteria is sufficient to deal with the
types of non-municipal facilities that
receive CESQG hazardous waste and
has, therefore, retained all of the
flexibility in today's proposal.
f. Corrective Action Program
Today's Proposed Language Regarding
Corrective Action Program §§257.26-
257.28)
Today's proposal establishes the same
corrective, action steps as in the MSWLF
Criteria.,The steps that have been
proposed today are those that are
necessary for a successful corrective
action program. Today's proposal allows
the owner/operator to successfully
remediate a ground-water '
contamination problem in a swift
manner yet provides flexibility for
selecting and implementing the
corrective remedy. The proposed
language contains performance
objectives that must be considered in
the evaluation, selection, and • .
implementation of a remedy. The
Agency also believes that the flexibility
that exists in the MSWLF Criteria is
sufficient to deal with the types of non-
municipal facilities that receive .CESQG
hazardous waste and has, therefore,
retained all of the flexibility in today's
proposal.
4. Recordkeeping requirements
(§257.30)
• Similar, to the recordkeeping
requirement contained in the MSWLF
Criteria, today's proposal requires that
owners/operators of non-municipal
solid waste disposal facilities that
receive CESQG waste maintain a
historical record of the facility. EPA is
proposing this requirement to ensure
the availability of basic information that
will demonstrate compliance with the
remainder of today's proposed
requirements. Owners/operators would
be required to maintain location
restriction demonstrations and ground-
water monitoring demonstrations,
certifications, findings, reports, test
results and analytical data in today's
proposed operating record.
The goal of today's proposal is to have
the owner/operator maintain such
demonstrations in a single location that
is easily accessible. The Director of an
approved State has the flexibility to
establish alternative locations for
recordkeeping and alternative schedules
for recordkeeping and notification
requirements. - ,
F. Other Issues Relating to Today's
Proposal
1. Owner/Operator Responsibility and
Flexibility in Approved States
The regulatory structure of the part
258 MSWLF Criteria is based on an
owner/operator achieving compliance
through self-implementation with the
various requirements while allowing
approved States the flexibility to -
consider local conditions in setting
appropriate alternative standards that
still achieve compliance with the basic
goal of the part 258 Criteria. This
flexibility that exists for approved States
under part 258 has been retained in
today's proposal and can be used by
approved States in determining facility
specific requirements. Individual areas
of flexibility have been discussed in the
previous sections detailing today's
location restrictions, ground-water
' monitoring and corrective action
requirements.
Owners/operators, due to the self-
implementing nature of this proposal,
would be required to comply with the
promulgated standards, as of the
appropriate effective date, regardless of
the status of the States approval
determination. If an owner/operator is
located in a State that has not been
approved under Subtitle D, then the
owner/operator would have to comply
with the promulgated standards,
without the benefit of the flexibility
allowed to be granted by the Director of
an approved State. Owners/operators of
ncn-municipal solid waste disposal
facilities located in approved States,
, .that become subject to today's proposed
requirements when finalized, may be
subject: to alternate requirements based
on the approved State standards.
2. CESQG's Responsibilities Relating to
the Revisions in §261.5. Paragraphs (f)
and(g) •'..-;
Today's proposal would allow that
CESQG waste go to either a hazardous
waste facility, a reuse or recycling .
facility, a municipal solid waste landfill
subject to part 258, a non-municipal
solid waste disposal facility that is /
subject to the requirements being'
proposed in §§.257.5 throughT257.30 or
a solid waste management facility that
is permitted, licensed, or registered by
a State to manage municipal or non-
numicipal waste. The Agency believes
thsit it is appropriate to establish facility
standards for non-municipal solid waste
disposal facilities that receive CESQG
waste while at the same time specifying
acceptable disposal options that are
available to CESQGs in order to ensure
that their waste is properly managed.
Tho Agency believes that proposing
both regulatory changes together
clarifies the obligations of both CESQGs
and owners/operators of disposal
facilities to ensure proper management
of CESQG hazardous waste and will
lead to better management of these
waiites. By regulating the generators, as
well as the receiving facilities, today's
propose! also helps to fulfill the
statutory mandate that only facilities
meeting the location, ground-water
monitoring, and corrective action
requirements (i.e.. §§ 257.5 through
257.30) "may receive" CESQG waste.
See RCRA Section 40IO(c).
The Agency does not believe that
today's proposed change to §261.5 will
result in a larger obligation for any
CESQG. The Agency knows that the
majority of CESQG waste is managed
off-site. For the CESQG waste managed
off-Kite, recycling is the predominant
form of management. The Agency
assumes that for the small amount of
CESQG waste that is currently being
sent off-site to a MSWLF, no additional.
obligation would be imposed on a
CESQG by today's proposal because the
MSWLF where the CESQG waste is
being seat is subject to part 258. For
construction and demolition waste •
generators who wish to send their
CESQG waste to a non-municipal solid
waste disposal facility subject to the •
proposed requirements in §§;257.5
through 257.30, the only additional
obligation would be that associated with
a phone call to the appropriate State
Agency to determine if the non-
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municipal solid waste disposal facility
is subject to §§257.5 through 257.30
and thus could legally accept CESQG
waste. Furthermore, as stated.
previously, some States require that
disposal of CESQG waste occur only at
permitted Subtitle C facilities and
CESQGs in these States would not face
any burden as a result of this rule due
to the more stringent State standard that
. the CESQG is currently subject to.
Today's proposal does not change the
generator's obligation to first determine
If the waste is hazardous and, secondly,
to determine if the waste is below the
quantity levels established for a CESQG.
If a generator is a CESQG. today's
proposal continues an existing
obligation on the generator to ensure
that acceptable management of the
CESQG hazardous waste occurs.
A CESQG may elect to screen-out or
segregate out the CESQG hazardous
wastes from his non-hazardous waste
and then manage the CESQG hazardous
portion in a facility meeting the
requirements of proposed §26i.5(f)(3)
and (g)(3). The remaining non-
hazardous waste is not subject to today's
proposed §§ 257.5 through 257.30;
however, it must be managed in a
facility that complies with either the
part 258 Criteria or the existing Criteria
in §§257.1-257.4.
On the other hand, a CESQG may
elect not to screen-out or segregate the
CESQG hazardous waste preferring
instead to leave it mixed with the mass
of non-hazardous waste. If the CESQG
elects this option, the entire mass of
material must be managed in a Subtitle
C facility or a Subtitle D facility that is
subject to part 258 or the proposed
requirements in §§ 257.5 through
257.30.
VI. Implementation and Enforcement '
A. Slate Activities Under Subtitle C
1. Hazardous and Solid Waste
Amendments to RCRA
. Today's proposal changes the existing
requirements in § 261.5. paragraphs
(0(3) and (g)(3) pertaining to the special
requirements for CESQGs. 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 sections 3008.7003 and 3013 of
RCRA, although authorized States have
primary enforcement responsibilities.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (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
facility which the State was authorized
to permit. When, new more stringent,
Federal requirements were promulgated
or enacted, the State was obliged 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, under section 3006(g) of
RCRA. 42 U.S.C. 6926(g), hew
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time they take effect
in unauthorized .States. EPA is directed
to carry, out these requirements and
prohibitions in previously authorized
States, including the issuance of permits
and primary enforcement, until the
State is granted HSWA authorization to
do so. While States must still adopt
HSWA-related provisions as State law to
retain final authorization, the HSWA
provisions apply in authorized States in
the interim. ,
The amendments to § 261.5,
paragraphs (0(3) and (g)(3). are
proposed pursuant to section 3001 (d)(4)
of RCRA, which is a provision added by
HSWA. Therefore, the Agency is
proposing to add the requirement to
Table 1 in § 27l.l(j) which identifies the
Federal program requirements that are
promulgated pursuant to HSWA and
that take effect in all States, regardless
of their authorization status. States may
apply for either interim or final
authorization for the HSWA'provisions
identified in Table 1, as discussed in the
following section of the preamble. •
2. Effect on. State Authorizations
As noted above, EPA will implement
today's rule in authorized States until
they modify their programs to adopt the
§ 261.5 rule change and the
modification-is approved by EPA.
: Because the rule is proposed pursuant.'
to HSWA. a State submitting a program
modification' may apply to receive either
interim or final authorization under
section 300B(g)(2) or 3006(b),
respectively, on the basis of
requirements that are substantially
equivalent orequivalent to EPA's. The
procedures and schedule for State
program modifications for either interim
or final authorization are described in
40 CFR 271.21. It should be noted that
all HSWA interim authorizations will
expire January 1,2003.'(See § 271.24(c)
and 57 FR 60125 (December18,1992)).
40 CFR 271.21(e)(2) provides that
States that have final authorization must
modify their programs to reflect Federal
program changes, and must
subsequently submit the modifications
to EPA for approval. The deadline by
which the State must submit its •
application for approval for this
proposed regulation will be determined
by the date of publication of the final .
rule in accordance with § 271.21 (e).
These deadlines can be extended in
certain cases (40 CFR 271.21(e)(3)).
Once EPA approves the modification, .
. the. State requirements become Subtitle
C RCRA requirements.
EPA is aware that a number of States
have more stringent requirements for
the disposal of waste generated by
CESQGs. In particular, some States do
not allow the disposal of this waste into
any Subtitle D landfill. For these States.
today's proposed rule would clearly be
considered less stringent than the
applicable provisions in these States'
authorized programs. Section 3009 of
RCRA allows States to adopt or retain
provisions that are more stringent than
the Federal provisions. Therefore,
regarding today's proposed rule, EPA
believes that States which do not allow
the disposal of wastes generated by
CESQGs into Subtitle D landfills under
their existing authorized Subtitle C
program would not be required to revise
their programs and obtain authorization
for today's proposed rule. Of course this
situation would only apply in those
cases where a State is not changing its
regulatory language. Further, the
authorized State requirements in such
States, since they would be more
stringent than today's proposed rule,
would continue to apply in that State,,
even though today's rule is proposed
pursuant to HSWA authority.
For a State to not be required to
submit an authorization revision
application for today's proposed rule,
.the State must have provisions that are '
authorized by EPA and that are more
• stringent than all the provisions in the
new Federal rule. For those States that
would not be required to revise their
authorization, EPA strongly encourages
the State to inform their EPA Regional
Office by letter that for this proposed
rule, it is not required to submit a.
revision application pursuant to 40 CFR
271.21(e), because in accordance with
RCRA section 3009 the authorized State
provision currently in effect is more
stringent than the requirements
contained in today's proposed rule.
Otherwise. EPA would conclude that a .
revised authorization application is
required.
Other States with authorized RCRA
programs may already have adopted
requirements under State law similar to
those in today's proposal. These State
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30979
regulations have not been assessed
against the Federal regulations being
proposed today to determine whether
they meet the tests for authorization.
Thus,.a State is not authorized to
implement these requirements in lieu of
EPA until the State program
modification is approved. Although
revisions to 40 CFR parts 257 and 261 .
are being proposed, for the purpose of
. authorization under Subtitle C, only the
proposed changes to § 261.5 would be
assessed against the Federal program. Of
course, States with existing standards
may continue to administer and enforce
their standards as a matter of State law.
In implementing the Federal program
EPA will work with States under
cooperative agreements to minimize
duplication of efforts. In many cases
EPA will be able to defer to the States
in their efforts to implement their
programs, rather than take separate
actions under Federal authority.
States that submit their official
applications for final authorization less
than 12 months after the effective date
of these standards are not required to
include standards equivalent to these
•standards in their application. However,
the State must modify its program by
the deadlines set forth in § 271.21(e).
States that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their applications. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting its
final authorization application.
B. State Activities Under Subtitle D
States are the lead Agencies in
implementing Subtitle D rules. The
Agency ii.tends to maintain the State's
lead in. implementing the Subtitle D
program. RCRA requires States to.adppt
and implement, within 18 months of the
publication of a final rule, a permit
. program or other system of prior ,
approval and conditions to ensure that
non-municipal solid waste disposal
. facilities comply with today's standards.
EPA is required to determine-whether
States have developed adequate
programs. States will need to review
their existing programs to determine
where their programs need to be . ,
. upgraded and to complete program
changes, if changes are necessary. The
process that the Agency will use in
evaluating the adequacy of State
programs will be set forth in a separate
rulemaking, the State/Tribal Permit
Program Determination of Adequacy.
For the purpose of determining
adequacy and granting approval under
Subtitle D, only the proposed technical
changes in §§ 257.5 through 257.30 will
be evaluated by the Agency. The State
will need to meet other procedural and
administrative requirements identified
in the State/Tribal Permit Program
Determination of Adequacy. The
approval process to be used for non-
municipal solid waste disposal facilities
is the same process that the Agency
used for determining the adequacy of
State programs for the Municipal Solid
Waste Landfill criteria. In States already
approved for the part 258 MSWLF
Criteria, changes required by this
rulemaking will constitute a program
revision.
The Agency believes that for many
approved States, changes required by
this rulemaking will affect the technical
criteria only and should warrant limited
changes to the approved application.
For example, if non-municipal solid
waste disposal facilities subject to this
rule are already subject to an approved
State MSWLF program (i.e., the non-
municipal, solid waste disposal facilities
are currently subject to the part 258
location restrictions, ground-water.
monitoring, and corrective action), the
State may only be required to submit
documentation that the non-municipal
solid waste disposal facilities are subject
to their approved program. States are
encouraged to contact their appropriate
EPA Regional office to determine the
specifics of the approval process.
In States that have not been approved
for the MSWLF Criteria, these revisions
can be incorporated into an application
for overall program approval of part 258
and §§ 257.5 through 257.30. States that
currently restrict CESQG disposal to
Subtitle C facilities (and States that may
choose to adopt that restriction) or
approved States which currently restrict
CESQG disposal to part 258 municipal
solid waste landfills will not need to
seek further EPA approval of their
Subtitle D program. RCRA section
4005(c)(l)(B) requires States to adopt
and implement permit programs to
ensure that facilities which receive
CESQG waste will comply with the
revised Criteria promulgated under
section 4010(c). However, the Agency
sees no need for approved States that
already require CESQG waste to be .-
disposed of in either Subtitle C facilities
or facilities subject to the part 258
MSWLF Criteria to adopt and
implement, a permit program based
upon the standards being proposed
today.
RCRA section 7004(b)(l). requires the
Administrator and the States to
encourage and provide for public
participation in the development,
revision, implementation, and
enforcement of this regulation, and once
it is promulgated, the State programs
implemented to enforce it. EPA
provides for public participation by
seeking public comment on this
proposal and its decisions on whether
State programs are adequate under
RCRA section 4005(c)(l)(c). In
developing and implementing permit
programs, States must provide for
public participation in accordance with
the provisions of 40 CFR part 256,
subpartG. • ' -
C: Relationship Between Subtitle C •
'' '•
Today's proposal has an effective date
of 18 months after publication of the
filial rule for the location restrictions
with the ground-water monitoring and
corrective action requirements
becoming effective 2 years after the date
of publication of the final rule. The
Af ;ency is proposing that the revisions
to § 261.5(f){3) and (g)(3) have the same
effective date as the proposed changes
in §§ 257.5 through 257.30 (i.e., 18
months after the date of publication of
th<3 final rule). Owners/operators of
fatalities that receive CESQG hazardous
wtiste will be subject to the
requirements in §§ 257.5 through
257.30. CESQGs will be subject to the
proposed requirements in § 261.5.
Today's proposed 18-month effective
date coincides with the period of time
that States have, under Subtitle D, to
adopt and implement a program to
ensure that owners/operators' are in
compliance with .the proposed changes
to §§257.5 through 257.30.
D. Enforcement
1. Hazardous Waste Enforcement
Today's proposal amends § 261,5.
paragraphs (f)(3) and (g)(3), and as such
any,CESQG who mismanages their
CESQG hazardous waste on-site or '
delivers the CESQG hazardous waste to
an inappropriate Subtitle D facility
becomes subject to the full set of •
Subtitle C hazardous waste regulations.
2. Subtitle D Enforcement
States that adopt programs meeting
the; standards in §§ 257.5 through 257.30
may enforce them in accordance with
State authorities. Under RCRA secti9n
70CI2, citizens may seek enforcement of
the standards in §§ 257.5 through 257.30
independent of any State enforcement
program. Section 7002 provides that any
person may commence a civil action on
his own behalf against any person who •
is alleged to be in violation of any
permit, standard, regulation, condition.
requirement, prohibition, or order that
has become effective pursuant to RCRA.
Once the self-implementing provisions
in
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effective, they constitute the basis for '
citizen enforcement. Federal
enforcement by EPA can be done only
in States that EPA has determined have .
inadequate programs. EPA has no
enforcement authorities under Section
4005 in approved States. EPA does, .
however, retain enforcement authority
under section 7003 to protect against
imminent and substantial endangerment
to health and the environment in all
States. A more complete discussion of
the Subtitle D enforcement issue can be
found in the MSWLF Criteria.
VII. Executive Order No. 12866—
' Regulatory Impacts Analysis
Under Executive Order No. 12866,
EPA must determine whether a new
regulation is significant. A significant
regulatory action is defined as an action
likely to result in a rule that may:
1. Have an annual effect on the
economy of S100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or tribal governments or
communities;
2. Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
3. Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issues .
arising out of legal mandates, the
President's priorities, or the principles
set forth in Executive Order 12866.
Pursuant to the terms of the Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action" k. :ause it raises novel legal or
policy issues arising out of legal
mandates, the President's priorities, or
the principles set forth in the. Executive
Order. Changes made in response to
OMB suggestions or recommendations
will be documented in the public
record.
A. Cost Impacts
The Agency estimates that of the total
1900 construction and demolition waste
facilities, 718 would be potentially
affected. The national annual low-end
cost is estimated to be S10.0M. This
low-end cost assumes that all CESQG
hazardous waste is separated at the
point of generation for the construction
industry. It assumes there will be no
CESQG waste generated by the
demolition industry. The CESQG .
portion is disposed of at hazardous
waste facilities while the remaining
non-hazardous waste portion is
disposed of in non-upgraded
construction and demolition waste
facilities. The costs include the
separation costs at the point of
generation, costs of transporting/
disposing the hazardous portion at a
Subtitle. C facility, and the costs of
screening incoming wastes at all of the
construction and demolition waste
facilities. There are hundreds of
thousands of construction and
demolition sites active in the U.S. each
year. EPA assumes that demolition
rubble will not be CESQG waste and
affected by this rule. Therefore,
separation costs are likely to occur only
at construction sites and the 3,742
industrial facilities with on-site non-
hazardous waste landfills. The Agency
requests comment on the labor and
capital necessary to conduct separation
at these facilities. The Agency also
requests comment on how frequently
CESQG hazardous waste is currently '
being separated at construction sites at
these industrial facilities. Jn addition,
the Agency requests comment on the
transportation costs to bring small
amounts of hazardous wastes from
construction sites to a treatment and
disposal facility. ~
The national annual high-end cost is
estimated to be S47.0M. This high-end ,
cost assumes that generators will not -~
separate out CESQG waste from 30% of
construction and. demolition wastes and
that this fraction will be sent to
upgraded construction and demolition
waste facilities that elect to comply with
today's proposed requirements. Under ,
this scenario, the Agency assumed that
most medium to large size construction
and demolition waste facilities (162)
will upgrade. The costs include
•separation costs at the point of
generation for waste not going to an
upgraded landfill, costs of screening
i incoming wastes at 80% of the affected
construction and demolition waste
facilities which do not upgrade and.
costs for 20% of the affected •
construction and demolition wastes
facilities to upgrade. Upgrade costs
include ground-water monitoring and
corrective action.
This rule allows States and individual
owners/operators to choose among
compliance options. States and owners/
operators may determine that facility
screening is a successful method to
prevent the receipt of CESQG hazardous
wastes. Other States and owners/
operators may determine that upgrading
is necessary or there is a market for
upgraded landfill capacity for generators
and, as such, some facilities may
upgrade. If more States and owners/
operators elect to use screening then the
. estimated cost of this proposal would be
closer to the lower-bound estimate.
The full analysis that was used to
; determine the range of costs for this
rulemaking is presented in the Cost and
Economic Impact Analysis of the
CESQG Rule.
B. Benefits
The Agency believes that the
requirements being proposed for non-
municipal solid waste disposal facilities
will result in more Subtitle D facilities .
providing protection against ground-'
water contamination from the disposal
of small amounts of hazardous waste.
Today's action will force some non- ;
municipal solid waste disposal facilities
to either upgrade and install ground- '
water monitoring and perform ;
corrective action if contamination is >
detected, or stop accepting hazardous
waste. Today's action will also cause
some generators of CESQG wastes to
separate out these small quantities of *
hazardous waste and send them to more
heavily regulated facilities (i.e., Subtitle
C facilities or MSWLFs). These are the
direct benefits of today's proposal,
however, additional benefits will be
realized due to this proposal.
Today's proposal will ensure that any
ground-water contamination that is
occurring at facilities that continue to
accept small quantities of hazardous
waste will be quickly detected and
corrective action can be initiated sooner.
To the extent that existing non-
municipal facilities that receive CESQG
hazardous waste upgrade their facilities
to include ground-water monitoring and
to the extent that new facilities will be '
sited in acceptable areas with ground-
water monitoring, public confidence in
these types of facilities will be
increased. Having public confidence
increased would result in these types of
facilities being easier to site in the
future. ' •
VIII. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980 requires Federal agencies to
consider "small entities" throughout the
regulatory process. Section 603 of the
RFA requires an initial screening
analysis to be performed to determine
whether small entities will be adversely
affected by the regulation. If affected
small entities are identified, regulatory.
alternatives must be considered to
mitigate the potential impacts. The
Agency believes that it is unlikely that
any industry will face significant
impacts under the low-end scenario.
To help mitigate these impacts, EPA
is proposing the minimum regulatory
requirements allowed under the statute
(which are still protective of human
health and the environment). As a
result, EPA believes that the lower-
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30981
bound scenario, where demolition firms
separate-out their CESQG waste and
continue to send the non-hazardous
portion to landfills not subject to the
revised Part 257 standards, is the most
. likely scenario and that small entities
will not be significantly impacted.
. The Agency's full analysis of the
impacts on small entities can be found
in the Cost and Economic Impact
Analysis of the CESQG Rule.
K. Paperwork Reduction Act .
The information collection
requirements in today's proposed rule
have been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork reduction
Act, 44 U.S.C. 3501 et seq. Submit
comments on these requirements to the
Office of Information and Regulatory
Affairs, OMB, 726 Jackson Place, NW.
Washington, DC 20503, marked
"Attention: Desk Officer for EPA." The
final rule will respond to any OMB
comments or public comments on the
information collection requirements.
X. Environmental Justice Issues
Executive Order 12898 requires
Federal Agencies, to the greatest extent
practicable, to identify and address*
disproportionately high adverse human
health or environmental effects of its
activities on minority and low-income
populations.
The Agency does not currently have
.data on the demographics of
populations surrounding the facilities
affected by today's proposal (i.e.,
construction-and demolition landfills).
The Agency does not believe, however,
that today's proposed rule will
adversely impact minority or low-
income populations. The facilities
affected by the proposal currently pose
limited risk to surrounding populations'
(see section V.B.I.d of today's
preamble). In addition, today's proposal
would further reduce this risk by
requiring the affected facilities to either
stop accepting CESQG hazardous waste
or to begin ground-water monitoring
and, if applicable, corrective action.
Thus, today's proposal would further
reduce the already low risk for
populations surrounding construction
and demolition landfills, regardless of
the population's ethnicity or income
level. Minority and low-income
populations would not be adversely
affected.
.XI.' Unfunded Mandates Reform Act
Under section 202 of the Unfunded
Mandates Reform Act of 1995 (the Act), '
Pub. L. 104-4, which was signed into
law on March 22,1995, EPA generally
must prepare a written statement for
rules with Federal mandates that may
result in estimated costs to State, local,
.and tribal governments in the aggregate,
or to the private sector, of $100 million •
or more in any one year. When such a
statement is required for EPA rules,
under section 205 of the Act EPA must
identify and consider alternatives,
including the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
EPA must select that alternative, unless
the Administrator explains in the final
rule why it was not selected or it is
inconsistent with law. Before EPA
establishes regulatory requirements that
may significantly or uniquely affect
small governments, including tribal
governments, it must develop under
section 203 of the Act a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
EPA has determined that the proposal
.discussed in this notice does not
include a Federal mandate that may
result in estimated costs of $100 million
or more to Sta'te, local, or tribal
governments in the aggregate, or to the
private sector, in any one year. EPA has
estimated that the annual costs of the
proposed rule on generators of CESQG
wastes and those entities which own or
operate CESQG disposal facilities.
including the private sector, States,
local or tribal governments, range from
S10.0M to S47.OM.
In addition to compliance costs for
.those-who own or operate CESQG
facilities. States will have a cost of
developing permit programs or other
systems of prior approval to ensure that
CESQG facilities comply with the
proposal, once it is promulgated.
Adoption and implementation of such
State permit programs is required under
RCRA section 4005(c)(l)(B). 42 USC
6945(c)(l)(B). Forty-two states already
have adopted and implemented permit
programs to ensure compliance with the
MSWLF rule (40 CFR part 258) which
EPA has'approved as "adequate." The
Agency has estimated that the costs for
a state to develop an application for
approval of an MSWLF permit program
to be approximately $15,000. Because
these state permit programs already .
contain ground water monitoring.
corrective action, and location standards
for MSWLFs that are quite similar to
those in this proposal, EPA believes that
the additional costs for states to revise
their permit programs to reflect the
CESQG requirements are not expected
to be significant. Also, because of the
reduced level of regulatory requirements
contained in this CESQG proposal as
compared to the MSWLF Part 258
criteria, state costs for preparing
applications for approval of a GESQG
permit program should be considerably
leiis.than that $15,000 figure.
Indian tribes are not required to
. develop permit programs for approval
by EPA, but the Agency believes tribal
governments are authorized to ' . •
development such permit programs and
have them approved by EPA. EPA has
estimated that it will cost a tribal
government approximately $7,000 to
prepare an application for approval of a
MSWLF program. Because of the
reduced regulatory provisions of the
CESQG proposal, EPA expects that the
costs which a tribal government might
face in developing a permit program for
CESQG facilities should be less than
$7,000.
EPA is also proposing to revise the
requirements for generators of CESQG
hazardous waste. These amendments to
4C CFR 261.5 (f)(3) and (g)(3) are
proposed pursuant to RCRA section
3001 (d)(4), which is a provision added
by HSWA. The § 261.5 amendments are
alifo more stringent than current Federal
hazardous waste regulations. Subtitle C
regulatory changes carried out under
HSWA authority become effective in all
states ut the same time and are
implemented by EPA until states revise
their programs. States are obligated to
, revise their hazardous waste programs
and seek EPA authorization of these
program revisions, unless their
. programs already incorporate more
Stringent provisions. The Agency
believes approximately 24 states already
have more stringent CESQG hazardous
waste provisions and would not have to
take action because of these regulatory
change's. About 26 states would have to
revise their hazardous waste programs
and seek authorization. States generally
incorporate a number of hazardous
wciste program revisions and seek
authorization for them at one time. The
Agency estimates the State costs
associated with Subtitle C program
revision/authorization activity are
approximately $7.320 per state. Since
thiis estimate, covers several separate.
program components at one time, the
cost for revisions only to § 261.5 in the •
remaining 26 States would be
substantially less.
As to section 203 of the Act, EPA has
• determined that the requirements being
proposed today will not significantly or
uniquely affect small governments,
including tribal governments. EPA •
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30982 Federal Register / Vol. 60, No. 112 / Monday. June 12. 1995 / Proposed Rules
recognizes that small governments may
own or operate solid waste disposal
facilities that receive CESQG waste.
However, EPA currently estimates that
the majority of construction and '
demolition landfills, which are the
primary facilities likely to be subject to
any final rule, are owned by the private
sector. Moreover, EPA is aware that a
number of states already require
owners/operators of C&D landfills to
meej regulatory standards that are
similar to those being proposed today.
Thus, EPA believes that the proposed
rule contains no regulatory
requirements that significantly or
uniquely affect small governments.
EPA has, however, sought meaningful
and timely input from the private sector,
states, and small governments on the
development of this notice. Prior to
issuing this proposed rule, EPA met
with members of the private sector as
discussed earlier in the preamble. In
addition, EPA met twice with an
"Industrial D" Steering Committee of
the Association of State and Territorial
Solid Waste Management Officials
(ASTSWMO) to discuss the contents of
today's proposal. The Agency provided
a draft of the proposed rule to the
ASTSWMO Steering Committee and
incorporated comments that were
received.
Finally, included in this proposal is a
provision that would allow certain
small CESQG landfills which are
located in either arid or remote
locations and which service small
communities to utilize alternative
methods of ground water monitoring..
Prior to developing this provision,
which is also being proposed in a
separate notice applicable to small
MSWLF facilities that are in arid or-
remote locations, EPA held a series of
public meetings. These meetings were
held in June 1994 in Texas, Utah,
Alaska, and Washington, DC. EPA
received comment from a variety of
parties, including States and small
governments. Through these meetings
and publication of this notice, EPA
expects that any applicable
requirements of section 203 of the Act
will have been satisfied prior to
promulgating a final rule.
•XII. References
1. Background Document for the •
CESQG Rule. U.S. EPA, 1995 . .
2. Generation and Management of
CESQG Waste, U.S. EPA. Office of Solid
Waste,-Prepared by ICF, July 1994. .
3. Screening Survey of Industrial
Subtitle D Establishments, Draft Final
Report, U.S. EPA, Office of Solid Waste,
Prepared by Westat, December 29,1987.
4. Construction Waste and Demolition
Debris Recycling . . .A Primer, The
Solid Waste Association of North .
America (SWANA), October 1993.
Publication #: GR-REC 300
5. List of Industrial Waste Landfills
and Construction and Demolition Waste
Landfills, U.S. EPA, Office of Solid
Waste, Prepared by Eastern Research
•Group, September 30,1994.
6. Construction and Demolition Waste
Landfills, U.S. EPA, Office of Solid
Waste, Prepared by ICF, May. 1995.
7. National Small Quantity Hazardous
Waste Generator Survey, U.S. EPA,
Office of Solid Waste, Prepared by Abt
Associates, Inc.. February 1985.
8. Damage Cases: Construction and
Demolition Waste Landfills, U.S. EPA,
Office of Solid Waste, Prepared by ICF.
May, 1995.
9. Solid Waste Disposal Facility
Criteria. 56 FR50977, October 9.1991
10. Cost and Economic Impact
Analysis of the CESQG Rule, Prepared
by ICF, 1995.
List of Subjects
40 CFB Part 257
Environmental protection, Reporting
and recordkeeping requirements, Waste
disposal.
40 CFR Part 261
Hazardous materials. Recycling,
Waste treatment and disposal.
40CFRPart271
Administrative practice and
procedure, Hazardous-materials
transportation. Hazardous waste,
Indian-lands, Intergovernmental
relations, Penalties, Reporting and
recordkeeping requirements. Water
pollution control, Water supply.
Dated: May 15,1995.
Carol M. Browner,
Administrator.
For reasons set out in the preamble,
Title 40 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 257—CRITERIA FOR
CLASSIFICATION OF SOLID WASTE
DISPOSAL FACILITIES AND
PRACTICES
1. The authority citation for part 257
is revised to read as follows:
Authority: 42 U.S.C 6907(a)(3). 6912(a)(l),
6944(a) and 6949(c), 33 US.C. 1345 (d) and
M-. •
2. Sections 257.1 through 257.4 are
designated as Subpart- A—Classification
of Solid Waste Disposal Facilities and
Practices.
3. Section 257.1, paragraph (a) is
revised to read as follows:
§257.1 Scope and purpose. . .
(a) Unless otherwise provided, the
criteria in §§ 257.1-257.4 are adopted
for determining which solid waste
disposal facilities and practices pose a
reasonable probability of adverse effects
on health or the environment under •
sections 1008(a)(3) and 4004(a) of the
Resource Conservation and Recovery
Act (The Act). Unless otherwise
provided, the criteria in §§257.5-257.30
are adopted for purposes of ensuring
that non-municipal solid waste disposal
facilities that receive conditionally . \
exempt small quantity generator
tCESQG) waste do not present risks to'
human health and the environment
taking into account the practicable
capability of such facilities in
accordance with section 4010(c) of the
Act.
(1) Facilities failing to satisfy either
the criteria in §§ 257.1-257.4 or
§§ 257.5-257.30 are considered open
dumps, which are prohibited under
section 4005 of the Act.
(2) Practices foiling to satisfy either
the criteria in §§ 257.1-257.4 or
§§257.5-257.30 constitute open
dumping, which is prohibited under :
sectiojn 4005 of the Act. .
• * • '• • ,
4. Part 257 is amended by adding a
new subpart B to read as follows:
Subpart B—Disposal Standards for the
Receipt of Conditionally Exempt Small
Quantity Generator (CESQG) Wastes at
Non-Municipal Solid Waste Disposal
Facilities . ,
•Sec. • '
257.5 Facility standards for owners/
operators of non-municipal solid waste
disposal facilities that receive , ' ,
Conditionally Exempt Small Quantity
Generator (CESQG) waste.
Location Restrictions
257.7 Airport safety. '
257.8 Floodplains. ' . .
257.9 Wetlands
257.10 Fault areas. .
257.11 Seismic impact zones.
257.12 Unstable areas.. ;
257.13 Deadline for making
demonstrations.
Ground-water Monitoring and Corrective
Action
257.21 Applicability.
257.22 Ground-water monitoring systems.
257.23 Ground-water sampling and analysis
requirements.
257.24 Detection monitoring program.
257.25 Assessment monitoring program.
'257.26 Assessment of corrective measures.
257.27 Selection of remedy.
257.28 Implementation of the corrective
action program.
Recordkeeping Requirement
257.30 Recordkeeping requirements.
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Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 /Proposed Rules
30983
Supart B—Disposal Standards for the
Receipt of Confidentiality Exempt
Smalt Generator (CESQG) Wastes at
Non-Municpal Solid Waste Disposal
Facilities .
§ 257.5 Facility standards for owners/
operators of non-municipal solid waste
disposal facilities that receive Conditionally
Exempt Small Quantity Generator (CESQG)
waste.
, (a) Applicability. (1) The requirements
in this section apply to owners/
operators of any non-municipal solid
waste disposal facility that receives
CESQG hazardous waste, as defined in
40 CFR 261.5. Any owner/operator of a
non-municipal solid waste disposal
facility that receives CESQG hazardous
waste continues to be subject to the
requirements in §§ 257.3-2, 257.3-3,
257.3-5, 257.3^6, 257.3-7, and 257.3-6
(a), {b). and (d). .
(2) Any non-municipal solid wasfe
disposal facility that does not meet the
requirements in §§257.7 through 257.12
by [Insert date 18 months after date of
publication of the final rule in the
Federal Register] and the requirements
in §§ 257.21 through 257.28 by [Insert :,
date 24 months after date of publication
of the final rule in the Federal Register]
may not receive CESQG hazardous
waste. Such a non-municipal solid ,
waste disposal facility continues to be
subject to the requirements in §§ 257.1-
257.4.
(b} Definitions. Active life means the
period of operation beginning with the
initial receipt of solid waste and ending
at the final receipt of solid waste.
. Existing facility means any non-
municipal solid waste disposal facility
that is receiving CESQG hazardous
waste as of the appropriate dates
•specified in § 257.5(a)(l)..
Lateral expansion means a horizontal
expansion of the waste boundaries of an
existing non-municipal solid waste
disposal facility.
New facility means any non-
municipal solid waste disposal facility
that has not received CESQG hazardous
waste prior to [Insert date 18 months
after date of publication of the final rule
in the Federal Register].
State means any of the several States,
the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands, and Indian Tribes.
State/Tribal Director means the chief
• administrative officer of the State/Tribal
agency responsible for implementing
the State/Tjribal permit program for
Subtitle D regulated facilities.
Uppermost aquifer means the geologic
formation nearest the natural ground
.surface that is an aquifer, as well as,.
lower aquifers that are hydraulically
interconnected with this aquifer within
the facility's property boundary.
.Waste management unit boundary
means a vertical surface located at the
hydraulically downgradient limit of the
unit. This vertical surface extends down
into the uppermost aquifer.
Location Restrictions - . . .
f257.7 Airport Safety
(a) Owners or operators of new
facilities, existing facilities, and lateral
expansions that are located within '.
10,000 feet (3,048 meters) of any airport
runway end used by turbojet aircraft or
within 5,000 feet (1.524 meters) of any
airport runway end used by only piston-
type aircraft must demonstrate that the
units are designed and operated so that
the unit does not pose a bird hazard to
aircraft. . • .
(b) Owners or operators proposing to
site new facilities and lateral expansions
located within a five-mile radius of any
airport runway end used by turbojet or
piston-type aircraft must notify the
affected airport and the Federal
Aviation Administration (FAA).
(c) The owner or operator must place
the demonstration in paragraph (a) of
this section in the operating record and
notify the State Director that it has been
placed in the operating record.
(d) For purposes of this section:
(1) Airport means public-use airport
open to the public without prior
permission and without restrictions
within the physical capacities of
available facilities.
(2) Bird hazard means an increase in
the likelihood of bird/aircraft collisions
that may cause damage to the aircraft or
injury to its occupants. . •
§257.8 Ftoodplalns.
(a) Owners or operators of new
facilities, existing facilities, and lateral
expansions located in 100-year
floodplains must demonstrate that the
unit will not restrict the flow of the 100-
year flood, reduce the temporary Water
storage capacity of the floodplain, or
result in washout of solid waste so as to
pose a hazard to human health and the
environment. The owner or operator
must place, the demonstration in the
operating record and notify the State
Director that it has been placed in the
operating record.
(b) For purposes of this section:
(l) Floodplain means the lowland and .
relatively flat areas adjoining inland and
coastal waters, including flood-prone
areas of offshore islands, that are
inundated by the 100-year flood.
(2) 100-year flood mesas a flood that
has a 1-percent or greater chance of
recurring in any given year or a flood of
a magnitude equalled or exceeded once
in 100 years on the average over a
significantly long period.
(3) Washout means the carrying away
of solid waste by waters of the base
flood.
,5257.8 Wetlands.
(a) Owners or operators of new ..
facilities; and lateral expansions shall
not locate such facilities in wetlands,
unless the owner Or operatpr. can make
the following demonstrations to the
Director of an approved State:
. (1) Where applicable under section
404 of the Clean Water Act or applicable
State wetlands laws, the presumption
that a practicable alternative to the
proposed landfill is available which
does not involved wetlands is clearly
rebutted:
(2) The construction and operation of
the MSWLF unit will not:
(i] Cause or contribute to violations of
any applicable State water quality .
standard,
(ii) Violate any applicable toxic
effluent standard or prohibition under
section 307 of the Clean Water Act,
(iii) Jeopardize the continued
existence of endangered or threatened
species or result in the destruction or
adverse modification of a critical
habitat, protected under the Endangered
Species Act of 1973, and
(iy) Violate any requirement under the
Marline Protection, Research, and
Sanctuaries Act of 1972 for the
protection of a marine sanctuary;
(3) The facility will not cause or
contribute to significant degradation of
wetlands. The owner/operator must
demonstrate the integrity of the facility
and its ability to protect ecological
resoiorces by addressing the following
factors: ,
(i) Erosion, stability, and migration
potential of native wetland soils, muds •
and deposits used to support the
facility; •
(ii) Erosion, stability, and migration
potential of dredged and fill materials
used, to support the facility;
(iii;) The volume and chemical nature
of the waste managed in the facility;
(iv) Impacts on fish.' wildlife, and
other aquatic resources and their habitat
from release of the waste;
(v) The potential effects of
catastrophic release of waste to the
wetland and the resulting impacts on
the environment; and • . .
(vi) Any additional factors, as
necessary, to demonstrate that
ecological resources in the wetland are
sufficiently protected.
(4) To the extent required under
section 404 of the Clean Water Act or
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30984 Federal Register / Vol. 60. No. 112 / Monday, June 12. 1995 / Proposed Rules
applicable State wetlands laws, steps
have been taken to attempt to achieve
no net loss of wetlands (as defined by
acreage and function) by first avoiding
impacts to wetlands to the maximum
extent practicable as required by
paragraph (a)(l) of this section, then
minimizing unavoidable impacts to the
maximum extent practicable, and finally
offsetting remaining unavoidable
wetland impacts through all appropriate
and practicable compensatory
mitigation actions (e.g.. restoration of
existing degraded wetlands or creation
' of man-made wetlands); and
(5) Sufficient information is available
to make a reasonable determination
with respect to these demonstrations.
(b) For purposes of this section,
wetlands means those areas that are
defined in 40 CFR 232.2(r).
§257.10 Fault areas.
(a) Owners or operators of new
facilities and lateral expansions>hall
not locate such facilities within 200 feet
(60 meters) of a fault that has had
displacement in Holocene time unless
the owner or operator demonstrates to
the Director of an approved State that an
alternative setback distance of less than
.200 feet (60 meters) will prevent.damage
to the structural integrity of the facility
and will be protective of human health
and the environment.
(b) For the purposes of this section:
(1) Fault means a fracture or a zone
of fractures in any material along which
strata on one side have been displaced
with respect to that 'on the other side.
(2) Displacement means the relative •'
movement of any two sides of a fault
measured in any direction.
(3) Holocene means the most recent
epoch of the Quaternary period, .. •
extending from the end of the
' Pleistocene Epoch to the present. .
§257.11 Seismic Impact zones.
(a) Owners or operators of new
facilities and lateral expansions shall
not locate such facilities in seismic
impact zones, unless the owner or
operator demonstrates to the Director of
an approved State that all'containment
structures are designed to resist the
maximum horizontal acceleration in
lithified earth material for the site. The
owner or operator must place the
demonstration in the operating record
and notify the State'Director that it has
been placed in the operating record.
(b) For the purposes of this section:
(1) Seismic impact zone means an
area with a ten percent or greater'
probability that the maximum
horizontal acceleration in lithified earth
material, expressed as a percentage of
the earth's gravitational pull (g), will
exceed O.lOg in 250 years.
(2) Maximum horizontal acceleration
in lithified earth material means the ,
maximum expected horizontal .
acceleration depicted on a seismic
hazard map, with a 90 percent or greater
probability that the acceleration will not
be exceeded in 250 years, or the
maximum expected horizontal
acceleration based on a site-specific
seismic risk assessment.
(3) Lithified earth material means all
rock, including all naturally occurring
and naturally formed aggregates or
masses of minerals or small particles of
older rock that formed by crystallization
of magma or by induration of loose
sediments. This term does not include
man-made materials, such as fill,
concrete, and asphalt, or unconsolidated
earth materials, soil, or regolith lying at
or near the earth surface. .
$257.12 Unstable areas.
(a) Owners or operators of hew
facilities, existing facilities, and lateral
expansions located in an unstable area
must demonstrate that engineering
measures have been incorporated into
the facility design to ensure that the
• integrity of the structural components of
the facility will not be disrupted. The
' owner or operator must place the
demonstration in the operating record
and notify the State Director that it has
been placed in the operating record. The
owner or operator must consider the
following factors, at a minimum, when
determining whether an area is
unstable:
(1) On-site or local soil conditions
that may result in significant differential
settling; • •. ' •
(2) On-sit'or local geologic or .
geomprphologic features; and
. (3).On-site or local human-made
features or events (both surface and
subsurface).
(b) For purposes of this section:
(1) Unstable area means a location
that is susceptible to natural or human-
induced events or forces capable of
impairing the integrity of some or all of
the landfill structural components •
responsible for preventing releases from
a landfill. Unstable areas can include
poor foundation conditions, areas
susceptible to mass movements, and
karst terranes. •
(2) Structural components means
liners, leachate collection systems, final
covers, run-on/run-off systems, and any
other component used in the
construction and operation of the
facility that is necessary for protection
of human health and the environment.
(3) Poor foundation conditions means
those areas where features exist which
indicate that a natural or man-induced
event may result in inadequate -
foundation support for the structural .
components of the facility.
(4) Areas susceptible to mass
movement means those areas of
influence (i.e., areas characterized as
having an active or substantial
possibility of mass movement) where
the movement of earth material at.
beneath, or adjacent to the facility,
because of natural or man-induced
events, results in the downslope
transport of soil and rock material by
means of gravitational influence. Areas
of mass movement include, but are not
limited to, landslides, avalanches,
debris slides and flows, soil fluction,
block sliding, and rock fall.
(5) Karst terranes means areas where
karst topography, with its characteristic
surface and subterranean features, is
developed as the result of dissolution of
limestone, dolomite, or other soluble
rock. Characteristic physiographic
features present in karst terranes
include, but are not limited to,
sinkholes, sinking streams, caves, large
springs, and blind valleys.
§257.13 Deadline for making •
demonstrations.
'(a) Existing facilities that cannot make
the demonstration specified in
§§257.7(a) pertaining to airports.
257.8(a) pertaining to floodplains, or
257.12(a) pertaining to unstable areas by
(Insert date 18 months after date of
publication of the final rule in the
Federal Register] must not accept
CESQG hazardous waste for disposal.
Ground-Water Monitoring and .
Corrective Action
§257.21 Applicability.
(a) The requirements in this section
apply to facilities identified in
§ 257.5(a), except as provided in
paragraph (b) of this section.
(b) Groundrwater monitoring
requirements under §§ 257.22 through
257.25 may be suspended by the
Director of an approved State for a
facility identified in §257.5(a) if the
owner or operator can demonstrate that
there is no potential for migration of
hazardous constituents from that facility
' to the uppermost aquifer during the •
active life of the unit plus 30 years. This
demonstration must be certified by a
qualified ground-water scientist and
approved by the Director of an approved
State, and must be based upon:- '
(1) Site-specific field collected
measurements, sampling, and analysis
of physical, chemical, and biological
processes affecting contaminant fate and
transport, and
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Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / Proposed Rules
30985
• (2) Contaminant fate and transport ;*
predictions that maximize contaminant
migration and consider impacts on
human health and environment.
(c) Owners and operators of facilities
identified in § 257.5(a) must comply
with the ground-water monitoring
requirements of this section according
to the following schedule unless an ,; '
alternative schedule is specified under
paragraph (d) of this section:
/ (1) Existing facilities and lateral
expansions must be in compliance with
the ground-water monitoring
requirements specified in §§ 257.22-
257.25 by [Insert date 2 years after date
• of publication of the final rule in the
Federal Register]
(2) New facilities identified in
' § 257.5(a) must be in compliance with
the ground-water monitoring
requirements specified in §§ 257.22-
257.25 before waste can be placed in the
unit.
(d) The Director of an approved State
may specify an alternative schedule for
the owners or operators of existing
facilities and lateral expansions to
comply with the ground-water
monitoring requirements specified in
§§257.22-257.25. This schedule must
ensure that 50 percent of all existing
facilities are in compliance by (Insert
' date 2 years after date of publication of
the final rule in the Federal Register]
and ell existing facilities are in
compliance by (Insert date 3 years after
date of publication of the final rule in.,
the Federal Register]. In setting the
compliance schedule, the Director of an
approved State must consider potential
risks posed by the unit to human health
and the environment. The following
factors should be considered in
determining potential risk: .
(1) Proximity of human and
' environmental receptors;
(2) Design of the unit;
(3) Age of the unit;
(4) The size of the unit;
(5) Resource value of the underlying
aquifer, including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of
. users; and
(iii) Ground-water quality and *
quantity.
(e) Once established at a facility,
ground-water monitoring shall be
conducted throughout the active life
plus 30 years. The Director of an
approved State may decrease the 30 year
• period if the owner/operator
demonstrates that a shorter period of
time is adequate to protect human
health and the environment and the
Director approves the demonstration.
(i) For the purposes of this section, a
qualified ground-water scientist is a
scientist or engineer who has received a
baccalaureate or post-graduate degree in
the natural sciences Or engineering and
has sufficient training and experience in
ground-water hydrology and related
fields as may be demonstrated by State
registration, professional Certifications,
or completion of accredited university
programs that enable that individual to
make sound professional judgments
regarding ground-water monitoring,
contaminant fate and transport, and
corrective-action.
• (g) The Director of an approved,State
may establish alternative schedules for
demonstrating compliance with
§257.22(d)(2), pertaining to notification
of placement of certification in
operating record; §257.24(c)(l),
pertaining to notification that
statistically significant increase (SSI)
notice is in operating record; § 257.24(c)
(2) and (3), pertaining to an assessment
monitoring program; § 257.25(b),
pertaining to sampling and analyzing.
appendix II of Part 258 constituents;
§ 257.25(d)(l), pertaining to placement
of notice (appendix n of Part 258
constituents detected) in record and
notification of notice in record;
§ 257.25(d)(2), pertaining to sampling
for appendix I and n of Part 258;
§ 257.25(g), pertaining to notification-
(and placement of notice in record) of
SSI above ground-water protection
standard; §§257.25(g)(lj(iv) and
257.26(a), pertaining to assessment of
corrective measures; § 257.27{a).
pertaining to selection of remedy and
notification of placement in record;
§ 257.5-2.8(c)(4). pertaining to
notification of placement in record
(alternative corrective action measures);
and §257.28(f), pertaining to
notification of placement in record
(certification of remedy .completed).
(h) Directors oif approved States may
• allow any non-municipal solid waste
disposal unit meeting the criteria in
paragraph (i) of this section to:
(1) Use alternatives to the ground-
water monitoring system prescribed in •
§§ 257.22 through 257.25 so long as the
alternatives will detect and, if
necessary, assess the nature or extent of
contamination from the non-municipal
solid waste disposal unit on a site-
specific basis; or establish and use, on
a site-specific basis, an alternative list of
indicator parameters for some or all of
the constituents listed in Appendix I
(appendix I of part 258 of this chapter). .
Alternative indicator parameters
approved by the Director of an approved
State or Tribe under this section must
ensure detection of contamination 'from
the non-municipal solid waste disposal
unit.
(2) If contamination is detected
through the use of any alternative to the
ground-water monitoring system
proscribed in §§ 257.22 through 257.25,
the non-municipal solid waste disposal
unit owner or operator must perform
expanded monitoring to determine
whether the detected contamination is
an actual release from the non-
miinicipal solid waste disposal unit
and; if so, to determine the nature and
extent of the contamination. The non-
numicipal solid waste disposal unit
owner or operator must submit the ••
results from expanded monitoring to the
Director of the approved State within 60
days from the time of detection.
(i) If detection indicates that
contamination from the non-municipal
solid waste disposal unit has reached
the saturated zone, the owner or
operator must install ground-water
monitoring wells and sample these
wells in accordance with §§257.22
through 257.25.
(ii) If detection indicates that
contamination from the non-municipal
solid waste disposal unit is present in
the! unsaturated zone or on the surface,
the, owner or operator must, within 60
days from the time expanded
monitoring is completed, submit for
approval by the Director of an approved
State adequate corrective measures to
prevent further contaminant migration,
and where appropriate, to remediate
contamination. The proposed corrective
measures are subject to revision and
approval by the Director of the approved
State. The owner or operator must
implement the corrective measures
according to a schedule established by
the Director of the approved State. '
(3) When considering whether to
. How alternatives to a ground-water
monitoring system prescribed in
§§ S57.22 through 257.25, including
alternative indicator parameters, the
Director of an approved State shall
consider at least the following factors:
(]') The geological and hydrogeological
characteristics of the site; /
(ii) The impact of manmade and
natural features on the effectiveness of
an alternative technology;
(iii) Climatic factors that may
influence the selection, use, and
reliability of alternative ground-water
monitoring procedures; and
(iv) the effectiveness of indicator
parameters in detecting a release.
(4) Tfae Director of an approved State
can require an owner or operator to
comply with the requirements of
§§ 2!57.22 through 257.25, where it is
determined by the Director that using
alternatives to ground-water monitoring
approved'under this subsection are
inadequate to detect contamination and.
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30986 Federal Register / Vol. 60, No. 112 / Monday. June 12. J995 / Proposed Rules
if necessary, to assess the nature and
extent of contamination.
(i) Directors of approved States can
use the flexibility in paragraph (h) of
this section for any non-municipal solid
waste disposal facility that receives
CESQG waste, if the non-municipal
solid.waste disposal facility:
(1) Disposes of less than 20 tons of
non-municipal waste daily, based on an
•annual average, •and, • •
(2) Has no evidence of ground-water
contamination, and either,
(3) Serves a community that
experiences an annual interruption of at'
least three consecutive months of
surface transportation that prevents
access to a regional waste management
facility, or
(4) Serves a community that has no.
practicable waste management
alternative and the non-municipal solid
waste disposal facility is located in an
area that annually receives less than or
equal to 25 inches of precipitation.
(5) Owners/operators of any non-
municipal solid waste disposal facility
that meets the criteria in paragraph (i)
of this section must place in the
operating record information
demonstrating this.
S 257.22 Ground-water monitoring
•ystemc.
(a) A ground-water monitoring system
must be installed that consists of a
sufficient number of wells, installed at
appropriate locations and depths, to
yield ground-water samples from the
uppermost aquifer (as defined in
§257.21(b))that: • •
(1) Represent the quality of
background ground water that has not
. been affected by leakage from a unit. A
determination of background quality
may include sampling of wells that are.
not hydraulically upgradient of the
waste management area where:
(i) Hydrogeologic conditions do not
allow the owner or operator to
determine what wells are hydraulically
upgradient; or
(Ti) Sampling at other wells will'
provide an indication of background
ground-water quality that is as
representative or more representative
than that provided by the upgradient
wells; and
(2) Represent the quality of ground
water passing the relevant point of
compliance specified by the Director of
an approved State or at the waste
management unit boundary in an
unapprove'd State. The downgradient
monitoring system must be installed at
the relevant point of compliance
specified by the Director of an approved
State or at the waste management unit
•boundary in an unapproved State that
ensures detection of ground-water -
contamination in the uppermost aquifer.
from the waste management unit
boundary and.shall be located on land
owned by the owner of the facility. In
determining the relevant point of
compliance the State Director shall.
consider at least the following factors:
The' hydrogeologiccharacteristics of the
facility and surrounding land, the
volume and physical and chemical
'characteristics of the leachate, the
quantity, quality and direction of flow
of ground water, the proximity and
withdrawal rate of the ground-water
users, the availability of alternative ,
drinking water supplies, the existing
quality of the ground water, including
other sources of contamination and their
cumulative impacts on the ground
water, and whether the ground water is
currently used or reasonably expected to
be used for drinking water, public
health, safety, and welfare effects, and
practicable capability of the owner or
operator. When physical obstacles
preclude installation of ground-water
monitoring wells at the relevant point of
compliance et existing units, the down-
gradient monitoring system may be
installed at the closest practicable
distance hydraulically down-gradient.
from the relevant point of compliance
specified by the Director of an approved
State that ensures detection of
groundwater contamination in the
uppermost aquifer. •
(b) The Director of an approved State
may approve a multi-unit ground-water
monitoring system instead of separate
ground-water monitoring systems for
each-unit when the facility has several
units, provided the multi-unit ground-
water monitoring system meets the .
requirement of § 257.22(a) and will be as
protective of human health and the
environment as individual monitoring
systems for each unit, based on the
following factors:
(1) Number, spacing, and orientation
of the units; ' <
(2) Hydrogeologic setting;
(3) Site history;
(4) Engineering design of the .units,
and
(5) Type of waste accepted at the
units. -
(c) Monitoring wells must be cased in
a manner that maintains the integrity of
the monitoring well bore hole. This
casing must be screened or perforated
and packed with gravel or sand, where
•necessary, to enable collection of
ground-water samples. The annular
space (i.e., the space between the bore
hole and well casing) above the
sampling depth must be sealed to
prevent contamination of samples and
the ground water.
(1) The owner or operator must notify
the State Director that the design,
installation, development.&nd
decommission of any monitoring wells,
piezometers and other measurement,
sampling, and analytical devices
documentation has been placed in the- •
operating record; and .; ..
(2) The monitoring wells, •
piezometers, and other measurement,
sampling, and analytical devices must
be operated and maintained so that they
perform to design specifications
throughout the life of the monitoring
program.
(of) The number, spacing, and depths
of monitoring systems shall be:
(1) Determined based upon site-
specific technical information that must
include thorough characterization of:
(i) Aquifer thickness, ground-water
flow rate, ground-water flow direction
including seasonal and temporal
fluctuations in ground-water flow; and
(ii) Saturated and unsaturated
geologic units and fill materials
overlying the uppermost aquifer,
materials comprising the uppermost
aquifer, and materials comprising the
confining unit defining the lower
boundary of the uppermost aquifer;
including, but not'limited to:
Thicknesses, stratigraphy, lithotagy,
hydraulic conductivities, porosities and
effective porosities.
(2) Certified by a qualified ground-
water scientist or approved by the
Director of an approved State. Within 14
days of this certification, the owner or
r perator must notify the State Director
that the certification has been placed in
the operating record.
§ 257.23 Ground-water sampling and
analysis requirements.
(a) The ground-water monitoring'
.program must include consistent
sampling and analysis procedures that
are designed to ensure monitoring
results that provide an accurate •
representation of ground-water quality
at the background and downgradient
wells installed in compliance with
§ 257.22(a). The owner or operator must
notify the State Director that the * -
sampling and analysis program
documentation has been placed in the
operating record and the program must
include procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and
shipment; '
(3) Analytical procedures;
(4) Chain of custody control; and
(5) Quality assurance and quality •
control. .
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Federal Register / Vol. 60. No. 112 / Monday. June 12, I99£j / Proposed Rules' 3O987
{b) The ground-water monitoring
program must include sampling and
analytical methods that are appropriate
for ground-water sampling and that
accurately measure hazardous
constituents and other monitoring
•parameters in ground-water samples.
Ground-water samples shall not be
field-filtered prior to laboratory
analysis. : •
(cf The sampling procedures and
frequency must be protective of human
health and the environment.
(d) Ground-water elevations-must be
measured in each well immediately
prior-to purging, each time ground water
is sampled; The owner or operator must
determine the rate and direction of
ground-water flow each time ground
water is sampled. Ground-water
elevations in wells which monitor the
same waste management area must be
measured within a period of time short
enough to avoid temporal variations in
ground-water flow which could
preclude accurate determination of
ground-water flow rate and direction.
(e) The owner or operator must
establish background ground-water
quality in a hydraulically upgradient or
background well (s) for each of the
monitoring parameters or constituents
required in the particular ground-water
monitoring program that applies to the
unit, as determined under § 257.24(a), or
§ 257.25(a). Background ground-water
quality may be established at wells that
are not located hydraulically upgradient
from the unit if it meets the
requirements of §257.22(a)(l).
(f; The number of samples collected to
establish ground-water quality data
must be consistent with the appropriate
statistical procedures determined
pursuant to paragraph (gj of this section.
The sampling procedures shall be those
specified under §25 7.24 (b) for detection
monitoring, § 257.25(b) and (d) for
assessment monitoring, and §257.26(b)
for corrective action.
< (g) The owner or operator must
specify in the operating record one of
the following statistical methods to be
used in evaluating ground-water .
monitoring data for each hazardous
constituent. The statistical test chosen
shall be conducted separately for each
hazardous constituent in each well.
(1) A parametric analysis of variance
(ANOVA) followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must •
include estimation and testing of the
contrasts between each compliance
well's mean and the background mean
levels for each constituent.
(2) An analysis of variance (ANOVA)
. based on ranks followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must
include estimation and testing of the
contrasts between each compliance
well's median and the background
median levels for each constituent.
(3) A tolerance or prediction interval
. procedure in which an interval for each
constituent is established from the
distribution of the background data, and
the level of each constituent in each
compliance well is compared to the
upper tolerance or prediction limit.
(4) A control chart approach that gives
control 'limits for each constituent.
(5) Another statistical test method that
meets the performance standards of
§ 257.23(h). The owner or operator must
place a justification for this alternative
in the operating record and notify the
State Director of the use of this
alternative test. The justification must
demonstrate that the alternative method
meets the performance standards of
§257.23(h).
(h) Any statistical method chosen
under §257.23(g) shall comply with the
following performance standards,, as
appropriate: ' - •'
(1) The statistical method used to
evaluate ground-water monitoring data
shall be appropriate for the distribution
of chemical parameters or hazardous
constituents. If the distribution of the
chemical parameters or hazardous
constituents is shown by the owner or
operator to be inappropriate for a
normal theory test, then the data should
be transformed or a distribution-free
theory test should be used. If the
distributions for the constituents differ,
more than one statistical method may be
needed.
(2) If an individual well comparison
procedure is used to compare an
individual compliance well constituent
concentration with background
constituent concentrations or a ground-
water protection standard, the test shall
be done at a Type I error level no less
than 0.01 for each testing period. If a
multiple comparisons procedure is
used, the Type I experiment wise error
rate for each testing period shall be no
less lhan 0.05; however, the Type I error
of no less than 0.01 for individual well
comparisons must be maintained. This ..
•performance standard does not apply to
tolerance intervals, prediction intervals,
or control charts. '
(3) If a control chart approach is used
to evaluate ground-water monitoring
data, the specific type of control chart
and its associated parameter values
shall be protective of human health and
the environment. The^parameters shall •
be determined after considering the
number of samples in the background
data base, the data distribution, and the
range of the concentration values for
each constituent of concern.
l[4) If a tolerance interval or a
pnsdictional interval is used to evaluate
ground-water monitoring data, the
levels of confidence and, for tolerance
intervals, the percentage of the
population that the interval must
contain, shall be protective of human
health and the environment. These
parameters shall be determined after
considering the number of samples in
the background data base, the data "
: distribution, and the range of the
concentration values for each
constituent of concern.
(5) Tlie statistical method shall
account for data below the limit of
detection with one or more statistical.
procedures that are protective of human
heEilth and the environment. Any
practical qwarititation limit (pql) that is
used in the statistical method shall be
the lowest concentration level that can
be reliably achieved within specified
limits of precision and accuracy during
routine laboratory operating conditions
thalt are available to the facility.
((>) If necessary, the statistical method
shall include procedures to control or
con-eel for seasonal and spatial
variability as well as temporal
correlation in the data.
(i) The owner or operator must
determine whether or not there is a
statiistiqilly significant increase over \
background values for each parameter or
constituent required in the particular
ground-water monitoring program that
applies «o the unit, as determined under
§§257.24(a)or257.25(a).
(A) In determining whether a
statistically significant increase has,
occurred, the owrie- or operator must
compare the ground-water quality of
each parameter or constituent at each
monitoring well designated pursuant to
§ 257.22l[a)(2) to the background value of
that constituent, according to the
stati stical procedures and performance •
standards specified under paragraphs (g)
and (h) of this section.
(B) Within a reasonable period of time
after completing sampling and analysis/
the owner or operator'must determine
whether there has been a statistically
significant increase over background at
each monitoring well.
§25754 Detection monitoring program.
(a).Detection monitoring is required at
facilities identified in § 257.5(a) at all
ground-water monitoring wells defined
undey §§257.22(a)(l) and (a){2). At a
minimum, a detection monitoring
program must include the monitoring
for thie constituents listed in appendix I
of part 258 of this chapter.
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30988 • Federal Register / Vol. 60. No. 112 / Monday. June. 12, 1995 / Proposed Rules
(1) The Director of an approved State
may delete any of the appendix I
(Appendix I of part 258 of this chapter)
monitoring parameters fora-unit if it
can be shown that the removed
constituents are not reasonably expected
tb be contained in or derived from the
waste contained in the unit.
(2) The Director of an approved State
may establish an alternative list of-
inorganic indicator parameters for a"
unit, in lieu of some or all of-the heavy
metals (constituents 1-15 in appendix I
to part 258 of this chapter), if the
alternative parameters provide a reliable
indication of inorganic releases from the
unit to the ground water. In determining
alternative parameters, the Director
shall consider the following factors:
(i) The types, quantities, and
concentrations of constituents in waste
managed at the unit;
(ii) The mobility, stability, and
persistence of waste constituents or
their reaction products in the
unsaturated zone beneath the unit;
(iii) The detectability of indicator
parameters, waste constituents, and
reaction products in the ground water;
and
(iv) The concentration or values and
coefficients of variation of monitoring
parameters or constituents' in the
groundwater background.
(b) The monitoring frequency for all
constituents listed in appendix I to part
258 of this chapter, or in the alternative
list approved in accordance with
paragraph (a)(2) of this section, shall be
at least semiannual during the active life
of the facility plus 30 years. A minimum
of four independent samples from each
well (background and downgradient)
must be collected and analyzed for the
appendix I (appendix I of part 258 of
this chapter) constituents, or the -
c alternative list approved in accordance
with paragraph (a) (2) of this section,
during the first semiannual sampling
event. At least one sample from each
well (background and downgradient)
must be collected and analyzed during
subsequent semiannual samptirfg
events. The Director of an approved
State may specify an appropriate
alternative frequency for repeated
sampling and analysis for appendix I
(appendix I of part 258 bf this chapter)
constituents, or the alternative list
approved in accordance with paragraph
(a){2) of this section, during the active
life plus 30 years. The alternative .
frequency during the active life shall be
no less than annual. The alternative
. frequency shall be based on
consideration of the following factors^—-
(1) Llthology of the aquifer and
unsaturated zone;
(2) Hydraulic conductivity of the
aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between
upgxadient edge of the unit and
downgradient monitoring well screen
(minimum distance of travel); and
(5) Resource value of the aquifer.
(c) If the owner or operator
determines, pursuant to § 257.23(g) of
this part, that there is a statistically
significant increase over background for
one or more of the constituents listed in
appendix I to part 258 of this chapter,
or in the alternative list approved in
accordance with paragraph (a)(2) of this
section, at any monitoring well at the
boundary specified under § 257.22(a)(2),t
the owner or operator: . '
. (l) Must, within 14 days of this
finding, place a notice in the operating
record indicating which constituents
have shown statistically significant
changes from background levels, and
notify the State/Tribal Director that this
notice was placed in the operating
record; and
(2) Must establish an assessment
monitoring program meeting the
requirements of §257.25 within 90 days
except as provided for in paragraph
(c)(3) of this section.
(3) The owner/operator may
demonstrate that a source other than the
unit caused the contamination or that
the statistically significant increase
resulted from error in sampling,
analysis, statistical evaluation, or
natural variation in ground-water
quality. A report documenting this
demonstration must be certified by a
qualified, ground-water scientist or
approved by the Director of an approved
State and be placed in the operating
record. If a successful demonstration is'
made and documented, the owner or .
operator may continue detection
monitoring as specified in this section.
If, after 90 days, a successful
demonstration is not made, the owner or
operator must initiate an assessment
monitoring program as required in
§257.25.
§ 257.25 Assessment monitoring program.
(a) Assessment monitoring is required
whenever a statistically significant
increase over background has been
detected for one or more of the
constituents listed in appendix I of part
258 of this chapter or in the alternative
list approved in .accordance with
§257.24(a)(2).
(b) Within 90 days of triggering an
assessment monitoring program, and , '
annually thereafter, the owner of --•
• •operator must sample and analyze the
ground water for all constituents
identified in appendix II of part 258 of
this chapter. A minimum of one sample
from each downgradient well must be
collected arid analyzed during each
sampling event. For any constituent
detected in the downgradient wells as
the result of the complete appendix II
(appendix II of part 258 of this chapter)
analysis, a minimum of four
independent samples from each well
(background and downgradient) must be
collected and analyzed to establish ,
.background for the new constituents. •
The Director of an approved State may
specify an appropriate subset of wells to
be sampled and analyzed for appendix
II (appendix n of part 258 of this
chapter) constituents during assessment
monitoring. The Director of an approved
State may delete any of the appendix D
(appendix n of part 258 of this chapter)
monitoring parameters for a unit if it
can be shown' that the removed
constituents are not reasonably expected
to be in pr derived from the waste •
contained in the unit. '
(c) The Director of an approved State
may specify an appropriate alternate
frequency for repeated sampling and .
analysis for the full set of appendix II
(appendix II of part 258) constituents
required by § 257.25(b). during the
active life plus 30 years considering the
following factors:
(1) Lithology of the aquifer and
unsaturated zone;
(2) Hydraulic conductivity of the
aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between
upgradient edge of the unit and
downgradient monitoring well screen
(minimum distance of travel);
(5) Resource value of the aquifer; and
(6) Nature (fate ->nd transport) of any
constituents detected in response to this
section. • .
(d) After obtaining the results from
the initial or subsequent sampling
events required in paragraph (b) of this
section, the owner or operator must:
(1) Within 14 .days, place a notice in
the operating record identifying the
appendix II (appendix II of part 258 of
this chapter) constituents that have been
detected and notify the State Director
'that this notice has been placed in the
. operating record;
(2) Within 90 days, and on at least a
semiannual basis thereafter, resample
all wells specified by § 257.22(a),
conduct analyses for all constituents in
appendix I (appendix I of part 258 of
this chapter) to this part or in the :
alternative list approved in accordance
with § 257.24(a)(2), and for those
-eonstituentsjn^ppendixll.to-part 258
that are detected in response to
paragraph (b) of this section, and record
their concentrations in the facility
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' Vol. 60,
No.
112 /
Monday,
June 12,
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operating record. At least one sample
from each well (background and
downgradient) must be collected and
. analyzed during these sampling events.
' The Director of an approved State may
specify an alternative monitoring
frequency during the active life plus 3D
years for the constituents referred to in
this paragraph. The alternative
frequency for appendix I (appendix I of
part 258 of this chapter) constituents, or
the alternative list approved in
accordance with § 257.24{a)(2), during
the active life shall be no less than
• annual. The alternative frequency shall
oe based,on consideration of the factors
specified in paragraph (c) of this
section; ,
(3) Establish background
concentrations for any constituents
detected pursuant to .paragraphs (b) or
(d}(2) of this section; and
(4) Establish ground-water protection
standards for all constituents detected
pursuant to paragraph (b) or (d) of this
section. The ground-water protection
standards shall be established in
accordance with paragraphs (b) or (i) of
this section.
• (e) If the concentrations of all
appendix n (appendix n of part 258 of
this chapter) constituents are shown to
be, at or below background values, using
the statistical procedures in § 257.23(g),
for two consecutive sampling events,
the owner or operator must notify the
State Director of this finding and may
return to detection monitoring.
(f) If the concentrations of any
appendix n (appendix IF of part 258 of
this chapter) constituents are above
background values, but all
concentrations are below the ground- .
water protection standard established
, under paragraphs (h) or (i) of this
section, using the statistical procedures
in § 257.23(g), the owner or operator
must continue assessment monitoring in
accordance with this section. "
(g) If one or more appendix n
(appendix II of part 258 of this chapter)
constituents are detected at statistically
significant levels above the ground-
water protection standard established
under paragraphs (h) or (i) of this
section in any sampling event, the
owner or operator must, within 14 days
of this finding, place a notice in the
operating record identifying the
appendix n (appendix U of part 258 of
this chapter) constituents that have
exceeded the ground-water protection
standard and notify the State Director
and all appropriate local government
officials that the notice has been placed
in the operating record. The owner or
operator also: . ; '
(1) (i) Must characterize the nature
and extent of the release by installing
additional monitoring wells as
necessary; j ; ..'.-, •
. (ii) Must install at least one additional
monitoring well at the facility boundary
in the direction of contaminant •
migration and sample this well in
accordance with § 257.25(d)(2);
(iii) Must notify all persons who own
the land or reside on the land that
directly overlies any .part of the plume
of contamination if contaminants have
migrated offrsite if indicated by
sampling of wells in accordance with
§257.25{g)(l);and
(iv) Must initiate an assessment of
corrective measures as required bv
§257.26 within 90 days; or
. (2) May demonstrate that a source
other than a MSWLF unit caused the
contamination, or that the statistically
significant increase resulted from error
in sampling, analysis, statistical v
evaluation, or natural variation in
ground-water quality. A report
documenting this demonstration must
be certified by a qualified ground-water
scientist or approved by the Director of
an approved State and placed in the
operating record. If a successful
demonstration is made the owner or
operator must continue monitoring in
accordance with the assessment
. monitoring program pursuant to
§ 257.25. and may return to detection
monitoring if the appendix n (appendix
H of part 258 of this chapter)
constituents are at or below background
as specified in § 257.25(e). Until a
successful demonstration is made, the
owner or operator must comply with
§ 25 7.25(g) including initiating an .
assessment of corrective measures.
(h) The owner or operator must
establish a ground-water protection
standard for each appendix n (appendix
O of part 258 of this chapter) constituent
detected in the ground-water. The
ground-water protection standard shall
be:
(1) For constituents for which a
maximum contaminant level (MCL) has
been promulgated under section 1412 of
the Safe Drinking Water Act (codified)
under 40 CFR part 141. the MCL for that
constituent;
(2) For constituents for which MCLs
have not been promulgated, the
background concentration for the
. constituent established from wells in
accordance with § 257.22(a)(l); or
(3) For constituents for which the
background level is higher than the
MCL identified under paragraph (h)(l)
of this section or health based levels
identified under § 257.25(i)(l). the
background concentration..
(i) The Director of an'approved State '
may establish an alternative ground-
water protection standard for
constituents for which MCLs have not
been established. These ground-water
protection standards shall be
appropriate health based levels that
satisfy the following criteria: •
(ll) Tine-level is derived in a manner
consistent with Agency guidelines for
assessing the health risks of
environmental pollutants (51 FR 33992,
34006.34014.34028, September 24,
198iB);
(2) The level is based on scientifically
valid studies conducted in accordance
with the Toxic Substances Control Act
Good Laboratory Practice Standards (40
CFR part 792) or equivalent;
(3) For carcinogens, the level
represents a concentration associated
with an excess lifetime cancer risk level
(due. to continuous lifetime exposure)
with the 1 x 10-4 to 1 x 10-6 ^ . flnd
14.) For systemic toxicants, the level
represents a concentration to which the
human population (including sensitive
subgroups) could be exposed to on a
daily basis that is likely to be without
appreciable risk of deleterious effects
during a lifetime. For purposes'of this
subpart, i;ystemic toxicants include
toxic chemicals that cause effects other
than cancer or mutation.
(j) In establishing ground-water
protection standards under paragraph (i)
of this section, the Director of an
approved State may consider the
following:
(1) Multiple contaminants in the
ground water; '
(2) Exposure threats to sensitive
environmental receptors; and .
(3) Other site-specific exposure or
potential exposure to ground water.
§257J26 Assessment of corrective
measures.
(a) Within 90 days of finding that any
of the constituents listed in appendix II
(Appeindix II of part 258 of this chapter)
have been detected at a statistically
significant level exceeding the ground-
water protection standards defined
under § 257.25 (h) or (i). the owner or
operator must initiate an assessment of
corrective measures.. Such an
assessment must be completed within a
reasonable period of time.
• (b) The owner or operator must
continue to monitor in accordance with
the assessment monitoring program as
specified in §257.25.
(c) The assessment shall include an
analysis of the effectiveness of potential
corrective measures in meeting all of the
requirements and objectives of the
remedy as described under § 257.27,
addressing at least the following:
(1) The performance, reliability, ease
of implementation, and potential
impacts of appropriate potential
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30990 Federal Register / Vol. 60, No. 112 / Monday. June 12, 1995 / Proposed Rules
remedies, including safety impacts,
cross-media impacts, and control of
exposure to any residual contamination;
(2) The time required to begin and
complete the remedy;
(3j The costs of remedy
implementation; and
(4) The institutional -requirements
such as State or local permit
requirements or other environmental or '
public health requirements that may
substantially affect implementation of
the remedy(s).
(d) The owner or operator must
discuss the results of the corrective
measures assessment, prior to the
selection of remedy, in a public meeting
with interested and affected parties.
$257.27 S«!octlon of remedy-
(a) Based on the results of the
corrective measures assessment
conducted under § 257.26, the owner or
operator must select a remedy that, at a
minimum, meets the standards listed in
paragraph (b) of this section. The owner
or operator must notify the State
Director, within 14 days of selecting a
remedy, that a report describing the ,
selected remedy has been placed in the
operating record and how it meets the .
standards in paragraph (b) of this
section.
(b) Remedies must:
(1) Be protective of human health and
the environment;
(2) Attain the ground-water protection
standard as specified pursuant to
§S257.25(h)or(i);
(3) Control the Eource(s) of releases so
as to reduce or eliminate, to the
maximum extent practicable, further
releases of appendix II (appendix n of
part 258 of this chapter) constituents
. into the environment that may pose a
threat to human health or the
environment: and
(4) Comply with standards for
management of wastes as specified in
§257.28(d).
(c) In selecting a remedy that meets
the standards of § 257.27(b), the owner-
or operator shall consider the following
evaluation factors:
(1) The long- and short-term
effectiveness and protectiveness of the
potential remedy(s), along with the
degree of certainty that the remedy will
prove successful based on consideration
of the following:
(i) Magnitude of reduction of existing
risks;
(ii) Magnitude of residual risks in
terms of likelihood of further releases
due to waste remaining following •
implementation of a remedy;
pii) The type and degree of long-term
management required, including
monitoring, operation, and
maintenance;
(iv) Short-term risks that might be
posed to the community, workers, or the
environment during implementation of
such a remedy, including potential
threats to human health and the
environment associated with
excavation, transportation, and
redisposal or containment:
(v) Time until full protection is
achieved; •
(vi) Potential for exposure of humans;
and environmental receptors to •
remaining wastes, considering the
potential threat to human health and the
environment associated with
excavation, transportation, redisposal,
or containment;
(vii) Long-term reliability of the
engineering and institutional controls;
and
(viii) Potential need for replacement
of the remedy.
(2) The effectiveness of the remedy in
controlling the source to reduce further .
releases based on consideration of the
following factors:
(i) The.extent to which containment
practices will reduce further releases;
(ii) The extent to which treatment
technologies may be used.
(3) The ease or difficulty of
implementing a potential remedy(s)
based on consideration of the following
types of factors:
(i) Degree of difficulty associated with
constructing the technology;
(ii) Expected operational reliability of
the technologies; - .
(Hi) Need to coordinate with and
obtain necessary approvals and permits
from other agencies;
(iv) Availability of necessary
equipment and specialists; and ..
(v) Available capacity and location, of
needed treatment, storage, and disposal
. services.
(4) Practicable capability of the owner
or operator, including a consideration of
the technical and economic capability.
(5) The degree* to which community
concerns are addressed by a potential
remedy(s). .
(d) The owner or operator shall
specify as part of the selected remedy a
scheduled) for initiating and
completing remedial activities. Such a
schedule must require the initiation of
remedial activities within a reasonable
period of time taking into consideration
the factors set forth in paragraphs (d)(l.)
through (d)(8) of this section. The owner
or operator must consider the following
factors in determining the schedule of •
remedial activities:
(1) Extent and nature of
contamination; •'•..'
(2) Practical capabilities of remedial
technologies in achieving compliance
with ground-water protection standards
established under §§ 257.25(g) or (h)
and other objectives of the remedy;
(3) Availability of treatment or
disposal capacity for wastes managed
during implementation of the remedy;
(4) Desirability of utilizing
technologies that are not currently. .
available, but which may offer
significant advantages over already
available technologies in terms of
effectiveness, reliability, safety, or
ability to achieve remedial objectives;
. (5) Potential risks to human health
and the environment from exposure to
contamination prior to completion of
•the remedy;
(6) Resource value of the aquifer
including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of
users; ' '
(iii) Ground-water quantity and
quality; ,-
(iv) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituent;
(v) The hydrogeologic characteristic of
Ihe facility and surrounding land;
(vi) Ground-water removal and
treatment costs; and
(vii) The cost and availability of
alternative water supplies.
(7) Practicable capability of the owner
or operator.
(8) Other relevant factors.
(e) The Director of an approved State
may determine that remediation of a
release of an appendix II (appendix n of
part 258 of this chapter) constituent
from the unit is not necessary if the
owner or operator demonstrates to the
Director of the approved state that:
(1) The ground-water is additionally
contaminated by substances that have
originated from a source other than the
unit and those substances are present in
concentrations such that cleanup of the
release from the unit would provide no
significant reduction in risk to actual or
potential receptors; or ,
(2) The constituent(s) is present in
ground water that:
(i) Is not currently or reasonably
expected to be a source of drinking
water; and '
(ii) Is not hydraulically connected
with waters to which the hazardous
constituents are migrating or are likely
to migrate in a concentration(s) that
would exceed the ground-water
protection standards established under
§ 257.25 (h) or (i); or
(3) Remediation of the release(s) is
technically impracticable; or
(4) Remediation results, in
unacceptable cross-media impacts. .
(f) A determination by the Director of
an approved State pursuant to
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paragraph (e) of this .section shall not
affect the authority of the State to
require the owner or operator to
undertake source control measures or
other measures that may be necessary to
eliminate or minimize further releases
to the ground-water, to prevent
exposure to the ground-water, or to
remediate the ground-water to
concentrations that are technically
practicable and significantly reduce
threats to human health or the
environment.
f 257.28 : Implementation of the corrective
action program.
(a) Based on the schedule established
under § 257.27td) for initiation and
completion of remedial activities die
owner/operator must:
(1) Establish and implement a
corrective action ground-water
monitoring program that:
• (i) At a minimum, meets the
requirements of an assessment.
monitoring program under § 257.25;
(ii) Indicates the effectiveness of the
corrective action remedy; and
(iii) Demonstrates compliance with
ground-water protection standard
pursuant to paragraph (e) of this section.
(2) Implement the corrective action
remedy selected under § 257.27; and
(3) Take any interim measures
necessary to ensure the protection of
human health and the environment.
Interim measures should, to the greatest
extent practicable, be consistent with
the objectives of and contribute to the
performance of any remedy'that may be
required pursuant to § 257.27. The
following factors must be considered by
- an owner or operator in- determining
whether interim measures are necessary:
(i) Time required to develop and r
implement a final remedy;
(ii) Actual or potential exposure of -
nearby populations or environmental
receptors to hazardous constituents;
(iii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(iv) Further degradation of the
ground-water that may occur if remedial.
action is not initiated expeditiously;
(v) Weather conditions that may cause
hazardous constituents to migrate or be
released;
. (vi) Risks of fire or explosion, or
potential for exposure to hazardous
constituents as a result of an accident or
failure of a container or handling
system; and
x(vii) Other situations that may pose
threats to human health and the
environment. • .' :
(b) An owner or operator may
determine, based on information -
developed after implementation of the
remedy has begun or ojher information,
that compliance with requirements of '
'§ 257,27(b) are-not being achieved
through the remedy selected. In such
cases, the owner or operator must
implement other methods or techniques
that could practicably achieve
compliance with the requirements,
unless the owner or operator makes the
determination under § 257.28(c).
(c) If the owner or operator
determines that compliance with
requirements under § 257.27(b) cannot
be practically achieved with any
currently available methods, the owner
or operator must:
(i) Obtain certification of a qualified
ground-water scientist or approval by
the Director of an approved State that
compliance with requirements under
§257.27(b) cannot be practically
achieved with any currently available
methods; -.'.-.
(2) Implement alternate measures to
control exposure of humans or the
environment to residual contamination,
as necessary to protect human health
and the environment; and
(3) Implement alternate measures for
control of the sources of contamination,
or for removal or decontamination of
equipment, units, devices, or structures
that are: '
(i) Technically practicable; and
(ii) Consistent with the overall
objective of the remedy.
(4) Notify the State Director within 14
days that a report justifying the
alternative measures prior to
implementing the alternative measures
has been placed in the operating record.
(d) All solid wastes that are managed
pursuant to a remedy required tinder
§ 257.27, or an interim measure required
under § 257.28(a)(3), shall be managed
in a manner:
. (1) That is protective of human health
and the environment; and
(2) That complies with applicable
RCRA requirements.
(e) Remedies selected pursuant to
§ 257.27 shall be considered complete
when:
(1) The owner or operator complies
with the ground-water protection
standards established under •
§§ 257.25(h) or (i) at all points within
the plume of contamination that lie
beyond the ground-water monitoring.
well system established under
§257l22(a): :
(2) Compliance with the ground-water
protection standards established under
§§ 257.25 (h") or (i) has been achieved by
demonstrating that concentrations of
appendix n (appendix-II of part 258 of
this chapter).constituents have not
exceeded the ground-water protection
standard(s) for a period of three
consecutive years using the'statistical
procedures and performance standards
in § 257.23 (g) and (h). The Director of
an approved State may specify an
alternative length of time during which
the owner or operator must demonstrate
that concentrations of appendix n
(appendix D of part 258 of this chapter)
coristituents have not exceeded the
„ ground-water protection standard(s)
taking into consideration:.
(i) Extent and concentration of the '.
release(s);
(ii) Behavior characteristics of the
hazardous constituents in the ground-
water;
(iii) Accuracy of monitoring or
modeling techniques, including any
seasonal, meteorological, or other
environmental variabilities that may
affect the accuracy; and
(iv) Characteristics of the ground-
watar.
(3) All actions required to complete
the remedy have been satisfied.
(fjl Upon completion of the remedy,
the owner or operator must notify the
State Director within 14 days that a
certification that the remedy has been
completed in compliance with the
requirements of § 257.28(e j has been
placed in the operating record. The
certification must be signed by the
owner or operator and by a qualified
ground-water scientist or approved by
the Director of an approved State.
Recordkeeping Requirements
§257.30 Recordkeeplng requirement*.
(a) The owner/operator of a non1
municipal solid waste disposal facility
must record and retain near the facility
in an operating record or in an
alternative location approved by the
Director of an approved State the
following information as it becomes
available:
(1) Any location restriction
demonstration required under §§ 257.7
through 257.12; and
(2) Any demonstration, certification,
finding, monitoring, testing, or
analytical -data required in §§ 257.21 .
through 257.28.
(b) The owner/operator must notify
the State/Tribal Director when the
' documents from paragraph (a) of this-
section have been placed or added to
the o]perating record, and all
information contained in the operating
record must be furnished upon request
to the State Director or be made
avail.ible at all reasonable times for
inspection by the State Director.
(c) The Director of an approved State
can s«t alternative schedules for
recordkeeping and notification .
requirements as specified in paragraphs
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30992
Federal Register /Vol. 60, No. 112 / Monday, June 12, 1995 / Proposed Rules
(a) and (b) of this section, except for the.
notification requirements in §§ 257.7(b)
and 257.25(g)(l)(iii).
PART 261—IDENTIFICATION AND
. USTING OF HAZARDOUS WASTES
5. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C 6905,6912(a), 6921,
6922, and 6938.
Subpart A—Genera!
6. Section 261.5 is amended by '
revising paragraphs (f)(3) and (g)(3) to
.read as follows:
» *
fi261.5 Special requirements for
hazardous waste generated by conditionally
•x*mpt small quantity generators.
* • * * *
CO " • •
(3) A conditionally exempt small
quantity generator may either treat or
dispose of his acute hazardous waste in
an on-site facility or ensure delivery to
an off-site treatment, storage, or disposal
facility, either of which, if located in the
U.S.,is:
(i) Permitted under part 270 of this
chapter;
(i!) In interim status under parts 270
and 265 of this chapter;
, (iii) Authorized to manage hazardous
waste by a State with a hazardous waste
management program approved under
part 271 of this chapter;
(iv) Permitted, licensed, or registered
by a State to manage municipal solid ,
waste and, if managed in a municipal
solid waste landfill is subject to part 258
of this chapter;
(v) Permitted, licensed, or registered
by a State to manage non-municipal
solid waste and, if managed in a non-
municipal solid waste disposal facility
is subject to the requirements in
§§ 257.5 through 257.30 of this chaper;
• r(vi) A facility which:
(A) Beneficially uses or reuses, or
legitimately recycles or reclaims its
waste; or
(B) Treats its waste prior to beneficial
use or reuse, or legitimate recycling or
reclamation.
(g) • • •
(3) A conditionally exempt small
quantity generator may either treat or
dispose of this hazardous waste in an
on-site facility or ensure delivery to an
off-site treatment, storage or disposal
facility, either of which, if located in the
U.S..is:
(i) Permitted under part 270 of this
chapter; .
(ii) In interim status under parts'270
and 265 of this chapter;
.(Hi) Authorized to manage hazardous
waste by a State with & hazardous waste
management program approved under
. part 271 of this chapter;
• (iv) Permitted, licensed, or registered
by a State to manage municipal solid
waste and, if managed in a municipal
solid waste landfill is subject to part 258
of this chapter,
(v) Permitted, licensed, or registered
by a State to manage non-municipal
solid waste and, if managed in a non-
municipal solid waste disposal facility
is subject to the requirements in
§§ 257.5 through 257.30 of this chapter;
or • , . •' • '
(vi) A facility which:
(A) Beneficially uses or reuses, or
legitimately recycles or reclaims its •
waste; or . "
(B) Treats its waste prior to beneficial
use or reuse, or legitimate recycling or
reclamation.
PART 271— REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
7. The authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 8905. 8912(0), and
8926.
8. In § 271.1, paragraph (j), Table 1 is
amended by adding the following entry'
in chronological order by publication
date:
f 271.1 Purpose und scope.
(j)
TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Promulgation date
Title of regulation
Federal Register reference
Effective date
[Insert date of publication of the Revisions to Criteria applicable to [Insert publication citation of the [Insert date 16 months after date
final rule in FRJ.
solid waste disposal facilities
that may accept CESOG haz-
ardous wastes. excluding
MSWLFs. • j
final rule].
of publication in FR of the final
rule], .
iFRDoc. 95-14065 Filed 6-9-95; 8:45 am].
Sit.t»Kl COOE KW-SO-P
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