EfA
Monday
Jury 1, 1996
i I
F i
Part V
Environmental
Protection Agency
40 CFR Part 257, et al.
Criteria for Classification of Solid Waste
Disposal Facilities and Practices;
Identification and Listing of Hazardous
Waste; Requirements for Authorization of
State Hazardous Waste Programs; Final
Rule
I § 1
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«..
34252 Federal Register / Vol. 61, No. 127 / Monday, July 1. 1996 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY .
40 CFR Parts 257,261, and 271
IFRL-6528-41
FUN2050-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; Final rule.
SUMMARY: The Environmental Protection
Agency today is promulgating revisions
to the existing criteria for solid waste
disposal facilities and practices. These '
revisions were developed in response to
the 1984 Hazardous and Solid Waste
Amendments to the Resource
Conservation and Recovery Act (RCRA).
Today's final revisions establish that
only,those non-municipal non-
hazardous waste disposal units that
meet specific standards may receive
conditionally exempt small- quantity
generator (CESQG) hazardous wastes.
Today's final revisions establish
standards pertaining to location
restrictions, ground-water monitoring
and corrective action. _
The EPA is also finalizing revisions to
regulations for hazardous,wastes ',' -',
Eenerated by CESQGs. Today's final
language will clarify acceptable* disposal
options under Subtitle D of RCRA by
specifying that CESQG- hazardous waste
may be managed at municipal solid '
waste landfills subjectto Part 258 and
at nonmunicipal non-hazardous waste
disposal units subject to today's revised
Criteria. -
* EFFECnVE'DATES: January 1,1998", except
§§ 257;2Xthrough 257,28 which-are
effective July 1.-1998, and §§ 26l.5(f);
261.5(g) and 271.1 which are effective
January 1,1997, but which have a
compliance date of January 1,1998. The
information collection requirements
contained in §§ 257.24,257.25, and
257.27 have not been approved by the
Office of Management and Budget
(OMB) and are not effective until OMB
has approved them.
ADDRESSES: The public docket for this,
rulemaking (docket number F-96-
NCEF-FFFFF) is located at the U.S.
Environmental Protection Agency,
Crystal Gateway Building, 1235
Jefferson Davis Highway, First Floor,
Arlington, Virginia. The public docket is
available for viewing from 9 a.m. to 4
pan., Monday through Friday, excluding
federal holidays. Appointments may be
made by calling (703) 603-9230. Copiesi
"COSt $0.15/page. , '..::;..'
FOR FURTHER INFORMATION CONTACT: For:
specific information on aspects..of.the:f,;:.';
final rule, please contact Paui'Gassidy of
the Industrial Solid Waste Branch of this
Office of Solid Waste at 1-703^308-
7281. For a paper copy of the Federal ;
Register notice or for general.: "' .';.
information, please contact theRCRA. ..
Hotlirfe at 1-800-424-9346 or at t-703-
412^9810. '-';'.- v
. SUPPLEMENTARY INFORMATION:-
. Regulated Entities ...
Entities potentially regulated by this.:
action are owners/operators of non- ;'.'
municipal non-hazardous waste ,.' '
disposal units that may receive
conditionally exempt small quantity
generator (CESQG) hazardous waste.
Regulated categories and entities . .
include: -: .. .;-." .... . : .
Category
Construction and
demolition waste
disposal firms.
Industrial manufactur-
ing plants.
Examples of regu-
lated entities
Owners/operators' oil
construction-and
demolition waste
disposal units that
may receive ' ' '.
CESQG hazardous
waste.
Owners/operators of
. non-municipal noiv
hazardous waste
disposal units that
may receive
CESQG hazardous
"waste'. '' ;.-, *"v
This table-is not intended to be, -
exhaustive, but rather provides a guide;
for readers regarding entities likely to l>e
regulated by tiiis action. This table lists
the type of entities that EPA is now : .
aware could potentially be regulateSlby
this action.. Other types bf entities not
listed in the table could also be
regulatedl To determine whether your
non-municipal non-hazardous waste
disposal unit- is regulated by this action,
you should carefully examine the v" "
applicability section of this final'Tule .
(i.e., section 257.5). If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed in the preceding FOR ;
FURTHER INFORMATION CONTACT section:.
This Federal Register notice will be '.
available in electronic formation the
Internet system through the EPA Public
Access Server @ gopher.epa.gov: - ;
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 Waste and
Emergency Response (OSWER)". Next,
choose "Office of Solid Waste". Then,
choose "Non-Hazardous WasteRCRA
Subtitle D". Finally, choose
"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 WasteRCRA Subtitle D".
Finally, choose "Industrial".
4. Through dial-up access: Dial 919-
558-0335. Choose EPA Public Access ,
Gopherl 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 WasteRCRA
Subtitle D". Finally, choose
"Industrial". '
Preamble Outline
I. Authority
n. Background
_ A. Current Solid Waste Controls un'der the
Resource Conservation and Recovery Act
(RCRA)Non-Hazardous Waste
Management Municipal Wastes
B. Sierra Club Lawsuit
' C. Summary of Proposal Rule
'.HI. Summary of Regulatory Approach of
: Today's Final Rule
IV. Major Issues
A. Non-Municipal Non-Hazardous Waste ;
Disposal Units that May Receive CESQG
Hazardous Wastes
B. Decision to Impose or Go Beyond the
Statutory Minimum Components
C Decision to Use the Part 258 Criteria
Language or General Performance
Language
V. Summary of Today's Final Rule
VL Specifics of Today's Final Rule
A. Section 257.5Applicability
: B. Sections 257.7-257.13Location
'.' Restrictions
C. Sections 257.21-257.28Ground-Water
Monitoring and Corrective Action
D. Section 257.30Recbrdkeeping
Requirements
E. Special Requirements for. Hazardous
Waste Generated by Conditionally-.
Exempt Small Quantity Generators
1. Changes to Section 261.5
2.-CESQG Wastes
; 3^'Screening Procedures
Vn. Implementation of Today's Final Rule
VEtL Executive Order No. 12866 .
IX. Regulatory Flexibility Act
'- X. Submission to Congress and the General
Accounting Office
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Federal Register / Vol. 61. No. 127 / Monday, July 1, 1996 / flutes and Regulations 34253
XL Paperwork Reduction Act
XQY Environmental Justice
Xm. -Unfunded Mandates Reform Act
I. Authority
Today's rule is being promulgated
under the authority of sections 1008,";
2002 (general rulemaking anthoritv),
3001(d)(4)/4004 and 4010 of RCRA, as
amended. Sectibrr.3001(d}(4) authorizes
EPA to promulgate standards-for .
generators who do notgenerate.more".
than 100 kilograms per month, of
hazardous waste. Section-40-10(c) directs
EPA to revise-Criteria promulgated - ~
under sections 1008 and 4004. for
facilities that may receive- hazardous .
household wastes (HHW) .or small-
quantity generator (SQG) hazardous
waste. .
n. Background .
A. Current Solid Waste Controls Under .
the Resource Conservation and :
Recovery Act (RGRA}--Non-Hazardous
Waste Management: Municipal Wastes
As added by the Hazardous and Solid
Waste Amendments (HSWA) of;1984,;
section 4010(c) requires that the; .
Administrator revise the existing Part
257 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 .
which take into aceount.the practicable
capability of such facilities. Ata
minimum, the revised Criteriaimust
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. Those 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 v
were relocated at 40. CFR part 258 foi
purposes of clarity}. Revisions to the.
Part 257;Criteria for other Subtitle D
disposal facilities that jmay receive-
conditionally exempt small quantity,,.
generator (CESQG) hazardous wastes
were- delayed as the Agency ha:d little
information concerning the potential or
actual impacts-that these types-of-
facilities may nave on human health.."
and tile environment . ;
B. Sierra ClubLawsuit :
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 non-
municipal facilities that may receive
small quantity generator hazardous
.waste.
As.a result of the October 21; 1993 .
lawsuit; the. EPA^and the Sierra Club.
reached agreement on a schedule
concerning revised Criteria for non-
.municipal facilities that may receive -.
CESQG .wastes;--This: schedule requires;
that the EPA Administrator signal ?. -
proposal by May 15,1995 and a ftna^
rule by July 1,1S96. On May 15,1995,
me-Administrator signed proposed- . --,-'
standards fomon-municipal non-'..
hazardous waste disposal units that may
receive CESQG hazardous wastes. These
proposed standards were published-in
the Federal Register on June 12,1995
(see 60 FR 30964).
G. Summary of Proposed Regulatory,
Approach
The .June 12,1995 proposal stated that
any non-municipal non-hazardous
waste disposaLunit' that meets the
proposed requirements mayxeceive
CESQG hazardous waste; if such units
do: not meet the proposed requirementsy:
they may not receive CESQG waste.
Sections 257.5-through 2S7.3& were
proposed, to address-appropriate fecility
standards for owners/operators, of non-
municipal npn-hazardous~waste
disposal units that receive'CESQG.
hazardous wastes.- The requirements
proposed in §§257.5 through 257.30 ..-
were substantially the same as:40 GFJR
part 258. The location restrictionswere
proposed to.be effective-18 months-after
publication of the fnyil rule, while the
ground-water monitoring and- corrective.
action requirements were proposed.to
be effective 24 months-after publication
ofthefinalrule. .
The June 12; 1995 proposal also
proposed to amend 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) --,-
allowsifpr a CESQG hazardous waste to-
be managed-at .a hazardous waste
facility (either in interinrstatus or-.
permitted), a reuse orrecycling facility, .
or a nonrhazardous-.soh'd waste facility,-
that is permitted, licensed, or registered
by a State to manage municipal or
1 Proposed-phrase "Non-municipal solid-waste »
disposal facility" has been.replaced in the final rate;
with the phrase "nbn-municipalaioikhazardous. «
vraste'disposal unit". See-Secfion VtfAZ ottoday'sJ:
preamble for an explanation. '
industrial waste. The June 12 proposal .
proposed to continue to allow CESQG
waste to be managed at a hazardous.
waste facility or at a reuse or recycling
facility; however, if CESQG wasteis ,
managed in. a Subtitle D disposal .
facility, it must be managed in a .
MSWLF that is subject to-part 258 or a
non-municipal non-rhazardous- waste -. .'.
disposal unit that would be subject- to-
the facility standards in §§ 257.5
through 257,30.
ummary of Regulatory Approach
of Today's Final Rule '.'.':.
Based on comments received on the
proposed regulatory approach, .the EPA
is today finalizing a rule that is almost ..
identical to the ^proposed" requirements
for non-municipal Jion-hazardous waste
disposal units fliat receiveCESQG
hazardous wastes. Commentors clearly
did not fevor imposing additional:
requirements, beyond those proposed, ~.-
based on the lack of risks presented by '. :.
non-municipal' non-hazardous waste
disposal units that receive GESQG"
hazardous wastes..Furthermore,
commentors were somewhat.divided onr. -
whether to use the part 258 .
requirementsa>r general perfonnance
standards in writing the -requirements.'
The EPA has electecNo use the part 258
requirements.
- Elsewhere in today's fi-nnl rule, and '. .:
again based on comments .that agreed
with the EPA?s proposed regulatory
approach, for GESOjGs, EPA-is finalizing
. the proposed changes to the special- :- ,
requirementyfor GESQGs (i.e., § 261,5)..
. to clarify the obligation-that the
x generators of GESQG wastes nave to:
ensure proper -management of such '
wastes. CESQGs-:are those that generate
no more than 100 kilograms of .'"
hazardous waste or no more than tmei
kilogram of acutely hazardous waste in
a month and who accumulate. no more
than 1000 kildgramsof-hazardous waste
or no more than one kilogram of acutely
hazardous waste at one time.
As previously-discussed, .todaySs final
rule responds to the statutory language .
in RCRA section 4010(c). in responding
initially to the statutory language of
section 4010(c)».-EPA elected toregulate
municipal solid wasteiandfills first, due
to the comparatively higher risks' '
presented by these types rf facilities. As
discussed in-tiie proposedirule, the
subject of today's final rule non-
municipal non-hazardous waste
disposal units'that receive CESQGs..-
waste -present a small risk relative to
risks-presented by..pther,ensironmental
conditionsor sitn'ations. Given-this
lower risk, the Agencyrwould have -:
eleeted'not to issuethis final rulfcat this*
time. In a time of limited resources,
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34254 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations
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. However, given the D.C
Circuit'-s reading of RCRA section
4010(c), Sierra Club v. EPA, 992 F.2d
337,347 (D.C. Cir. 1993), and a schedule
established as a result of litigation, the
Agency must issue this' final rule now.
Faced with having to issue this final
rule for a class of facilities that do not
generally pose risks as high as
municipal solid waste landfills, the
Agency is finalizing requirements that
address only the statutory minimum
requirements in an attempt to reduce
the economic burden on the regulated
community. _
A complete discussion of the main
issues associated with today's final rule
is presented in the next section of
today's preamble while a discussion of
today's requirements is presented later '
in today's preamble. *
IV. Major Issues
A. Non-Municipal Non-Hazardous
' Waste Disposal Units That May Receive
CESQG Hazardous Waste
The proposed rule was written to
.provide that only those non-municipal
non-hazardous waste disposal units
which meet the requirements in
§§ 257.5 through 257.30 "may receive"
CESQG waste, as required by RCRA
section 4010(c). Any non-municipal
non-hazardous waste disposal unit that
did not meet the proposed requirements
may not receive CESQG hazardous
wastes. The proposal was written to
apply to non-municipal non-hazardous
waste disposal units that receive CESQG
waste for storage, treatment, or disposal.
including such units as surface
impoundments, landfills, land
application units and waste piles, The
regulatory definition of the term
"disposal" cover all placement of
wastes on the land. See 40 CFR 257.2.
Several commentors addressed the
Agency's interpretation of the statutory
language "may receive". One
commentor supported the Agency's
decision to limit the proposed
regulatory requirements to only those
non-municipal-non-hazardous waste
disposal units that receive CESQG
wastes. Another commentor. however.
stated that a closer reading of Section
4010(c) reveals that Congress was not
only concerned about modifying the
criteria for "facilities that may receive
hazardous household wastes or
hazardous wastes from small quantity
generators* * *" but also for "facilities
potentially receiving such wastes?'
According to the commentor, the "may
receive" clause of the first sentence in . .
Section 4010(c) merely refers to whether
a.facility may legally receive. CESQG '
waste for disposal. The "potentially
receiving such wastes" clause of the
third sentence of Section 4010(c) refers
' to the actual potential for such facilities
to receive CESQG wastes. The potential
for CESQG waste to be disposed of at - -
. many types of industrial D landfills is
hign, even with the proposed prohibition
under § 261.5. It is the "potentially
receiving" clause that s'pecifically
commands the Agency to promulgate
provisions for all industrial facilities
that'could potentially receive CESQG
wastes. .-'.-'.
EPA disagrees with the commentor's
interpretation of the statutory language
m RCRA section 4010(c). More
specifically, for a number of reasons, the
Agency does not believe that the
statutory-language cited by the .
commentor evidences congressional.
intent that the revised criteria being
promulgated today should address
disposal of solid waste in all industrial
disposal facilities. First, EPA believes
that the commentor errs by focusing
only on the "facilities potentially ;
receiving" language in the last sentence
of section 4010(c). If one reviews this"
language together with the statutory V
language in RCRA section 401'0(a), it is
clear that Congress did not intend for
the revised criteria being promulgated
today to apply to all industrial landfill!;.
RCRA section 4010(a) required EPA to
conduct a study of the then existing
guidelines and criteria issued under
RCRA sections 1008 and 4004 which
were applicable to "solid waste
management and disposal facilities,
including, but not limited to landfills
and surface impoundments," 42 U.S.C.
§ 6949a(a). This-statutory language does
indeed suggest that EPA was to study a
wide range of solid waste disposal:
facilities, including industrial landfills.
{As the commentor stated, because -the
information on industrial disposal
facilities was quite limited, EPA's report
to" Congress .did'focus on municipal -
landfills.) ,
However, the statutory language in:
section 4010(c) directing EPA to .
promulgate a rule revising the criteria in
40 CFR Part 257 limits the rule's.
applicability only to those facilities
which may receive hazardous
household waste or small quantity
generator .waste. 42 U.S.C. 6949a(c). If
Congress had intended the revised'
criteria under section 4010(c) to apply
to all solid waste disposal facilities,
including industrial landfills and :
surface impoundments, it clearly could
have done so by enacting language'
. similar to that already .used in section
4010(a). . .
' Secondly, the legislative history of '
RCRA section 4010 suggests that
Congress expressly rejected a provision
that would have required rules to be :
promulgated under section 4010(c) to
apply to the entire universe of RCRA
Subtitle. D solid waste disposal facilities.
Indeed, the House version of section . :
4010 would have required EPA to
promulgate revised guidelines and
criteria such that they would be
applicable to"all "solid waste.
management and disposal facilities, .
including, but not limited to landfills
and surface impoundments * * *."
H.R. 2867, section 30, 98th Cong., 1st
Sess. (as introduced in the Senate on
November 9,1983). However, the
Conference Committee instead adopted
a Senate amendment which limited the
" scope of the revised criteria to those :,
faculties that may receive hazardous
household waste or small quantity
generator waste. H. Rept. No. 98-1133,
98th Cong., 2d Sess.1, at 116-117.
Another indication that RCRA section
4010(c) was not intended to cover the
entire universe of solid waste disposal '
facilities is the fact that subsequent to
. the enactment of section 4010(c) (as part
of the Hazardous and Solid Waste
Amendments in 1984), a number of bills
were introduced in Congress which '
would have either authorized or
required EPA to issue additional "
regulations that would address all
disposal facilities receiving industrial
waste as opposed to addressing those
which may receive CESQG waste as '
stated in Section.401p(cj. See, e.g., H.R.
3735, "Waste.Materials Management
Act of" 1989," section 324 (would have
required EPA to promulgate standards
for the management of industrial solid
waste) (Luken Bill); S. 1113, "Waste
Minimization and Control Act of 1989,"
section 204 (would have required EPA.
to promulgate requirements for facilities
that manage different types of industrial
waste) (Baucus Bill). Neither of these
provisions (although neither was ; .
enacted) would have been necessary if
RCRA section 4010(c) required EPA to :
promulgate revised criteria for all types
of industrial disposal facilities. - i
This same commentor cites to
language in both the Report to Congress
(as provided for in RCRA section
4010(b)) and the MSWLF rulemakirig to ;
suggest that EPA acknowledged that all
industrial landfills, even those not '
receiving CESQG waste, should fall
within the scope of today's rule. EPA.
acknowledges that it expressed a
concern about the potential risks that '.
industrial solid waste disposal facilities
might pose; however, EEA indicated
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Federal Register
Rules and Regulations
thatitdid not have the level of
information necessary to 'conduct a
rulemakmg for such disposal facilities.
At the time of issuing the-final MSWLF
rule, EPA indicated that it would
attempt to study these facilities to gain
a better understanding of the-risks that. :
they may pose. See 56 FR 51000 (Get
9,1991).
After investigating available^ ..-
information in more detail, it became..
clear that of all industrial* solid waste
disposal'facilities, only-construction
and demolition and off-site commercial
facilities typically receive CESQG waste.
As discussed in tihe proposed* rule,
recent information and discussions with.
the relevant industries indicate that on-
site industrial disposal faciiities (whidr
make up the vast majority of rndustrial
disposal facilities} generally da not -
receive GESQG waste. However, the
conunentor should be-aware that EPA
has drafted the rule such:that it will
apply to such industrial on-site -facilities
if they receive CESQG waste. See
sections 257.5(a) (1) and (3).
B. Decision To Impose or Go Beyond the.
Statutory Minimum Components
RCRA section 4010(c) requires that
the revised criteria must at a im'Tn'mum
include location restrictions, ground-
water monitoring as necessary to detect
contamination, and corrective action, as
appropriate. The June 12,1995,
proposal discussed how the'Part 258
Municipal Solid Waste Landfill Criteria
went beyond these requirements:. (See
60 FR 30968.) The proposal for non-
municipal non-hazardous waste
disposal units old net, however, go
beyond these statutory minimum
requirements. The Agency presented
data, in the June 12 proposal, which
showed thatihe establishment of
additional facility management
requirements, beyond these types of
- requirements,-, for^on-municipal non-
hazardous waste disposal units that may
receive. CESQG waste was;not
warranted. .'
The Agency received-comments on
both sides of this issue. Some -
commentors felt .that.the statutory
mrm'Tniim components were adequate to
address the potential risks from non-
municipal non-hazardous waste
disposal units that may receive CESQG
wastes. However, other commentors
believed that additional regulatory
controls should have been required.
Commentors stated that the level of
documented releases and environmental
problems do not merit extensive
regulations. Commentors also stated that
the .find regulations should be limited
to the proposed Tequirements as they
felt that those requirements were indeed
adequate given the low risks associated
with the disposal of CESQG waste-in
non-municipal non-hazardous waste
disposal units. Some comraentors
argued that less stringent requirements,:
less than the proposed requirements,
would, have been more- appropriate.
On the- other hand, some commentors
raised the concern that the cumulative
effect ofallowing.small quantities of
hazardous waste to be disposed of in
non-municipal non-hazardous waste.
disposal turits would result ina major
souice.of ground-water pollution.
Commentors further felt that because
MSWU bvmers/operators have-.
upgraded theirnnits to meet the
requirements in Part 258,in orderto
minimize therisk associated.witbiflie
disposal.of.household hazardous wastes
and CESQG wastes, non-municipal non-
hazardous waste disposal units.
disposing of CESQG wastes should be
required to meat the same standards as
in Part 258 (e.g., closure and post-
closure care, financial assurance and
operating requirements). In addition,
one commentor believed that the :
Agency's conclusions,, concerning the "
potentiaLrisks associated with non-
municipal non-hazardous waste
disposal units receiving-CESQG wastes,
were based on outdated and limited,
data. The.conimentorfelt.that the data
cited by EPA failed to justify.the
Agency's conclusion that non-municipal
non-hazardous waste disposal units
pose low risk but rather simply indicate ,
a lack of information on the subject.
The Agency agrees with those . " .
commentors who believe that the. '
proposed requirements are adequate to
address the potential risks from non-
municipal non-Hazardous waste.
disposal units that receive^CESQG
hazardous wastes: In-the June.1995
proposal, the Agency took the position
that only the proposed requirements
were necessary because "construction
and demolition (C&D) waste units, in
general, do not currently pose.
significant risks and that individual
damage cases areJhnited in occurrence"
and that off-site commercial landfills "are
subject to more "stringent- -'
environmental controls". The Agency
requested additional data concerning
C&D units to further assess the potential
risks these types of units may pose as ,
well as additional data on commercial
industrial solid waste units or other
types of units that may be subject to the
proposal.
The Agency did not receive any new
data concerning the potential risks
associated with G&D units or any other
types of units potentially subject to the
proposal.- Thus, EPA has no information
suggesting1 that the facilities subject to
this rule pose any risks beyond those
limited ones discussed in the proposed -
rule. (One commentor submitted
leadiate data on bulky waste landfills
but that data was-previously considered
by the Agency during the development
of the proposal.) In response-to the
commentor that suggested'that the :
cumulative effects^of allowing small
amounts of hazardous waste would
result in a major-source of ground-rwater
pollution the Agency disagrees. -The >
Agency believes that the limited number -
of documented damage cases and cases
; of ground-water contanunaiion,
discussed in tiie proposal to this rule,
do not support the tommentor's concern '
about the raeation.of major sources of
ground-water pollution. As such, the
Agency believes that it should not go
beyond the requiremenls-that were.
proposed. '
For those commentors who expressed
theneed to impose.Federal controls on
C&D unit&beyond the proposed
requirements, in the fann of closure/
pOst-closure standards and/or financial
assurancarequirements, the Agehcjr
wishes to point out that these types of
standards, are prevalent among State
programs for C&D units. Most States (44)
.specify some thickness for, a final cover,
34 States require: post-closure care for '
some period of time while 33 and 32...
States require-finaneial assurance for -.
closure and post-closure care,-
respectively, for C&D units. Given the .
lack of data suggesting-that C&D -_ '
facilities pose the same risks as
MSWIjrs 3^,1 foe feet that most States -
already require additional regulatory
controls,. EPA does not believe it is
appropriate to establish requirements
thatgo beyond the statutoryminiuiuni
requirements of Section 4010(c). "
C. Decision To Use tfie Pait258 Criteria
Language or General Performance.
Language .. '
The June 12,1995 proposal identified
two; options for writing the proposed-
requirenients.. One was to use-.the Part
258 criteria as the baseline for these
requirements/Part 258 is a.combination.
of performance standards and additional
detail to help the owner/operator .
achieve compliance with the .
performance standards..Part 258 also
establishes minknum national criteria
for municipal solid waste landfills, and
as such, a mymnmm national level of
protection. Th6 second option was to
use general performance standards that
could be met by-facility owners/
operators as they implement the ..
standards as weU as to guide States in -
designing new regulatory programs (or
revising existing regulatory programs).
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34256 Federal Register /. Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations
Reasons cited in the proposal for
using the Part 258 Criteria included: (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 necessary for ,
collection of reliable and consistent
ground-water monitoring data and to ..
allow the owner/operator and States to
respond to contamination from the unit;
(3) They contain a substantial amount of
flexibility that allows approved States to
tailor standards to individuafand
classes of facilities; (4) Some States
expressed strong support for using 258
standards as the baseline for solid waste
disposal facilities that receive CESQG
hazardous waste; and (5) While' some
States have standards for non-municipal
facilities that are not identical to the 258
standards, the Agency believed there
was a strong likelihood that many State
programs would be- approvable.
Reasons cited in the preamble in
support of using the general
performance standard approach
included: (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 Tnrm'Tnnrn
requirements (which States can-not
modify) that EPA promulgated because
of the risks posed by MSWLFs; (3) In the
absence of a significant 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; and (4) a general
performance standard would provide
the maximum flexibility for States and
owners to adopt new methodologies and
technologies (e.g., detecting ground-
water contamination using technologies
other than monitoring wells) to meet the
standard at the lowest possible cost.
Comments were received in support
of both approaches. Commentors
supported the use of the Part 258
Criteria because they thought general
performance standards would be
difficult to implement and enforce.
Another commentor stated that Section
4010(c) requires EPA to spell-out the .
requirements that facilities must ' .
implement; he argues that by not
specifying how to. attain the statutory ,
minimum requirements; a performance-,
based approach would fall short of the
. statute. The performance-based
approach would spawu:endless .
uncertainty, requiring the wheel to be
re-invented for each facility. This
uncertainty would fall most heavily on
citizens .whcxare concerned about ,
individual facilities. Other commentors
argued against promulgating general
performance standards and stated that
the Part 258 rules provide a clear,
flexible, common sense approach. Using
Part 258 provides both the regulated
community and the State Agencies a
familiar, well-thought'out scheme that is
easy to administer and implement and
offers sufficient flexibility to address
site-specific conditions in approved
States. The Agency received extensive
comment in lie Part 253 rulemaking
indicating why'general performance
standards were inappropriate for
landfills; those comments are as
relevant today for landfills receiving
CESQG waste. Finally, developing a
significantly different set of rules from
either Part 257 or Part 258.would also
be confusing to the regulated
community because it would create one
set of rules for household wastes (Part
258), one for sites that accept CESQG
wastes (this rule) and'one for all other
non-hazardous wastes (Part 257).
Other commentors supported the use
of general performance standards by
reiterating the reasons provided in the '
proposal in support of such an
approach. Other commentors stated that
due to the nature of the demolition
waste stream being landfilled, they
supported the use of general
performance standards vs. all of theOPart
258 standards. Commentors supported
maximum Stats flexibility to address
local conditions and requirements '
tailored to the perceived risk, not.
automatically adopting the more
restrictive MSWLF regime. Another
commentor stated that the Part 258
ground-water monitoring standards
were developed for MSWLFs and if the
ground-water monitoring program for
non-municipal non-hazardous waste ..".
disposal units is not based on a * .
performance standard that allows for
site-specific design, certain facilities
will be overregulated. Another
commentor stated that'the general
performance standard is preferable as
long'as it provides an adequate
description of the performance
objective. Guidance manuals could be
used to implement the general
performance standards. . '
The Agency agrees with the majority
of commentors who supported the use
of the Part 258 Criteria. The Agency
believes, for all of the reasons discussed
by the commentors; that the use of the
Part 258 criteria is the preferable option
to utilize in the final rule. The Part 258
Criteria are. a clear, flexible set of
regulations that can be tailored by
approved States to address site-specific
conditions'while protecting human
health and the environment. The
ground-water and corrective.action
requirements of today's final rule offer
owners/operators in approved States _
great flexibiliryin establishing a ground-
water monitoring program and in
selecting a corrective measure should
corrective action become necessary. ;
In a sense, the Part 258 Criteria for;'
ground-water monitoring and corrective
action, are general performance
standards. However, the big difference
between the use of the Part 258 Criteria
and the use of a general performance
standard approach is the detail that is _
contained in the Part 258 Criteria, the
same detail would not be a part of a '' .
. general performance standard approach.
Both the Part 258 Criteria and the
general performance standard approach
use performance standards; the general i
performance standard approach would
provide only general standards to be
followed by the owner/operator, while
the Part 258 Criteria would provide
additional detail and guidance to an
owner/operator in trying to comply with
the performance standards contained in '
Part 258. This additional detail in the
Part 258 Criteria is what the Agency
believes commentors were referring to ';
when they stated that "using Part 258
provides both the regulated community
arid the State Agencies a familiar, well-
thought out scheme that is easy to
administer and implement and offers
sufficient flexibility to address site-
specific .conditions". It is this additional;
detail in Part 258 that if not contained
in the general performance standard
approach would create confusion among
.the regulated community'and "spawn
endless uncertainty". . '
The Agency believes that the use of
the detail in the Part.258 Criteria for
ground-water monitoring and. corrective
action, in the form of factors to .consider
vs. design standards, clearly guides an
owner/operator in achieving compliance
. with the performance standards in Part
258 while maximizing the owners/
operators ability to take into account
and use site-specific data. Part 258
guides an owner/operator and State'
Agencies by specifying (1) what factors
should be considered in determining the
number,-depth, and spacing of the wells:
in the'monitoring system, (2) how wells
should be cased, (3) that any statistical
test comply with basic performance
standards, (4) what factors should be .
. considered in establishing .an initial list
of monitoring parameters and
frequency, {5).what factors should be
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considered-in selecting any. potential-
remedy under corrective action, and (6)
what factors should be considered in
developing interim measures under a
corrective action program. The Agency
does not believe that the use of the
detail in the Part 258 .Criteria will result
in "facilities being overregulated".EPA
.also believes that this detail is necessary
to protect human health and the
environment. .
V.. Summary of Today's Final Rule
Today's final rule specifies that non-
municipal nonrhazardous waste
disposal units that do not meet the
requirements (i.e., location restrictions,
ground-water .monitoring and corrective
action) in sections 257.5 through 257.30
may -not receive CESQG hazardous '
waste. The ground-water monitoring.
and corrective action requirements
being finalized today are substantially
the same as-those that were proposed.
The location restrictions have 'been
changed from the proposal with the
.major change being that in the proposal
6 location restrictions -were proposed,
but in today's final rule only 2 location
. restrictions are being finalized
{floodplains and wetlands). Differences
betweerrthe final requirements; and
those that were proposed are discussed
in the appropriate sections of today's
preamble.
The location restrictions will be
effective 18 months "after publication of
the final rule^-The location restrictions
being-finalized today are the'floodplains
and wetlands restrictions. The
floodplains restriction is applicable to
new tmits, existing .units, and lateral
expansions of existing units that receive
CESQG waste. Only new units and
lateral expansibns..of existing units that
receive. CESQG hazardous waste must "
comply with-the wetlands/location
restriction. ' "
The ground-water monitoring and '
corrective action requirements will be
effective 24 months after publication of
the final rule. Any existing unit, new
unit, or lateral expansion of an existing
unit that receives CESQG hazardous.
waste after the effective date will be
required to comply with the final
ground-water monitoring and corrective
action requirements. The ground-water
monitoring provisions are being'
finalized to ensure that units that
receive CESQG hazardous waste will
have monitoring systems- in place that
will enable the detection of any '..
contamination of ground-waters along
with appropriate sampling and analysis
procedures to allow for. the statistical
analysis of monitoring results. The "
corrective action requirements will
allow for the evaluation, selection, and
implementation of an- appropriate
remedial technology to clean-up any
contamination of ground-waters.
Today's final rule also amends the
existing language of § 261.5.clarifying
acceptable Subtitle D management
options.for CESQGs. The language in
§ 261.5, paragraphs (f)(3) and (g)(3)
currently allows 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 nonrhazardons. waste disposal unit
that is permitted,, licensed, or registered
by a State to manage municipal or
industrial waste. Today's final rule
would continue to allow.CESQG waste
to be managed at a hazardous waste
facility or at a reuse or recycling facility.
Today's final rule will require that if
CESQG waste is managed in a Subtitle
D disposal .facility,-itmay be managed .
in a MSWLF that is subject to Part 258
or managed in & non-municipal non-
hazardous waste disposal unit that is
subject to .the standards being finalized
in §§ 257.5 through- 257.30.
VI. Specifics of Today's Final Rule
A. Section 257.5Applicability:
1. Applicability
EPA proposed that any owner/
operator of a non-municipal non-
hazardous waste disposal unit that
wanted to receive CESQG hazardous
waste-would have to .comply with the .
proposedrequirementsin £§257.5-
257.30 prior to the actual receipt of the
CESQG waste. The proposal stated that
owners/operators- of non-municipal nonr
hazardous waste disposal units-thai do
not meet the proposed criteria may;n6t
receive CESQG hazardous waste.
The proposal further stated that
owners/operators of non-municipal non-
hazardous waste disposal units that. '
receive CESQG hazardous waste-after
the effective date-would-have to comply
. with the location restrictions (§§ 257.7-
257.12) within 18 months after the date-
of publication of the final rule and with
the ground-water monitoring and
corrective action requirements
(§§ 257.21-257.28) within 24 months
after the date of publication of the final
rule.
The Agency is. finalizing the . .
applicability of the final rule as .
proposed and retaining the effective
dates as proposed. The Agency received
no specific comments iiLregard to the
effective dates with the exception of one
comment that stated that the eommentor
had no problem with the two-year'
effective date for the ground-water
monitoring and corrective action
requirements. ^
2. Definitions
EPA proposed a number of definitions
for terms in the proposal and received .
limited comments. One commentor"...
thought-that the term "non-municipal
solid waste-.disposal facility" should be
more appropriately called "non-
municipal non-hazardous waste
disposatfadh'ty'V The commentor .
stated that by discussing only "solid ,
waste" facilities; hazardous waste ''
facilities'are not excluded because they
are a subset of "solid waste".
Furthermore, this commentor thought
the term "non-municipal solid waste
landfill" should ajso more appropriately
be called a "non-municipal nbrt-.
hazardous waste disposal facility". This
same commentor also expressed a
concern that the terms "facility" and
"unit" as used hi §§ 257.7 through 257.9
were used.interchangeably and that
some clarification and/or consistency
was necessary.
The EPA agrees.that.the term ."non-
municipal solid waste disposal facility"
could be confusing and that the term
"non-municipal non-hazardous waste .
disposal facility" more clearly defines
the types of facilities potentially subject
to today's final rule. The EPA also
agrees that the terms "facility" and
"unif'.werfrused interchangeably and
that the term "unit" is more appropriate
to use in defining what is potentially
subject to today's final rule. Therefore,
in today's preamble and in the. final rule
language the term non-municipal .non-
hazardous waste disposal unit is used.
Correspondingly, the terms "existing
facility" and "newJacility" have been
changed in the final rule to refer to
"exiting unit" and "new unit". Existing
unit refers to any non-municipal non-
hazardous-waste disposal .unit that is
receiving CESQG hazardous waste as of
the effective date (i.e^.18 months after
the final, rule is published in the Federal
Register): A new unit is any non-
municipal non-hazardous waste
disposal unit that has not received
CESQG hazardous waste prior to the
effective date (i.e., 18.months after the
final rule is published in the Federal
Register).
Today's applicability section {§ 257.5)
- has also been changed to clarify the
situation where a non-municipal noitr
hazardous waste, disposal unit decides
to receive CESQG hazardous waste .after
the effectiv&date of today's rule. The
applicability section (section ' '
257".5(a)(5))~has been changed to clarify
that any pon-murucapatnon-hazardous,
waste disposal unit that first receives.
CESQG hazardous waste after the date
IS-months after the date of publication
of this final rule in the Federal Register
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must be in compliance with all the
requirements prior to the receipt of the
CESQG hazardous waste.
One additional change from the
proposed rule language concerns the
definition of the term State/Tribal
Director. In the proposal the term State/
Tribal Director was defined to mean the
chief administrative of the State/Tribal
agency responsible for implementing
the State/Tribal permit program for
Subtitle D regulated facilities. The
remainder of the proposed rule
language, however, consistently used
the term State Director. This was done
as a means of efficiency and the Agency
did not imply any other substantive
effect on the character, authority, and/'
or rights of Tribes. The final rule will
include Indian Tribes in the definition
of the term "State" (as was-proposed)
and Tribal Director in the definition of
"State Director". This change is being
made to be consistent with the proposed
changes to Fart 258 language in the
proposed State/Tribal Permit Program
Determination of Adequacy (See 61FR
2584, January 26,1996). The State/
Tribal Permit Program Determination of
Adequacy contains a complete
discussion of the opportunities that are
available to Indian Tribes to apply for
program approval.
B. Sections 257.7-257.13Location
Hestrictions
EPA proposed a set of location
restrictions for new and existing units
that receive CESQG waste which
mirrored restrictions already established
for MSWLFs. 40 CFR 258.10 to 258.16.
However, in response to comment
received on the proposal, EPA has
modified the proposed location
restrictions in a number of ways,
Because units receiving CESQG waste
pose a smaller risk to human health and
the environment than do MSWLF
facilities and for the reasons discussed
below, EPA believes that the restrictions
being promulgated today satisfy the
statutory standard contained in RCRA
Section 4010(c). 42 U.S.C. § 6949a(c).
"l. Airport Safely
EPA proposed that new, existing, and
lateral expansions of existing non-
municipal non-hazardous waste
disposal units, that receive CESQG
hazardous waste, demonstrate that the
unit does not pose a bird hazard to
aircraft. The proposed airport safety
provision was the same as the current
Part 257 requirement; only the
demonstration requirement to the
affected airport .and .to the FAA for new
and lateral expansions of existing units
was new.
Several cpmmentors objected to the
airport safety provision in Section 257.7
and requested that the provision be
removed. Commeritors stated that units
that accept CESQG wastes will be nori-
putrescible operations that do not
provide a source of food or nesting for
birds. One commentor stated that actual
observations of over 30 sites across the
country'support the conclusion that
birds are virtually nonexistent at C&B
units. Lastly, one commentor referenced
the recent FAA report titled "Draft
Report to Congress on Potential- Hazards
to Aircraft by Locating Waste Disposal
Sites in Vicinity of Airports", wherein,
the FAA stated that recent FAA
sponsored research has shown that non-
putrescible waste.landfills (i.e.;
construction and demolition waste
landfills,. . .) do not attract wildlife
that could create a wildMe/aircraft
strike hazard.
In response to commentors concerns,
the Agency has eliminated the airport
safety provision from today's final
rulemaldng. The Agency's original
requirement under Part 257 was
designed to regulate units that dispose
of putrescible. wastes; based on the fact
that units potentially subject to today's
final rule do not receive putrescible
wastes (e.g., C&D units), the Agency sees
no reason to have this requirement-as
part of today's final rule.
2. Floodplains
EPA proposed that new, existing, and
lateral expansions of existing non-
municipal non-hazardous waste
disposal units, that receive CESQG
hazardous wastes, located in the 100-
year floodplain 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.
No comments were received on the
substance of the floodplain provision;
therefore, the Agency is finalizing the -
floodplain provision as it was proposed.
3. Wetlands
The Agency proposed that new-
facilities and lateral expansions of
existing non-municipal non-hazardous
waste disposal units, that receive
CESQG hazardous wastes, not be
located in a wetland unless specified
demonstrations can be met by the
owner/operator. The demonstrations
were to ensure that if a non-municipal
non-hazardous waste disposal unit
needed to be located in a wetland,
protection of state water quality -
standards and protection of the wetland
will be achieved. Furtherniore, the
proposal was consistent with the
Agency's goal of achieving no net loss
of the nation's wetlands.
No comments were received on the '
substance of the wetlands provision,
therefore, the Agency is finalizing the
wetlands provision as it was proposed.'
4. Fault Areas
EPA proposed that new'and lateral
expansions of existing non-municipal
non-hazardous waste disposal units,
that receive CESQG hazardous waste,
not be located within 200 feet of a fault'
that has had displacement in Holocene
time unless the owner/operator
demonstrates that'an alternative setback
distance of less than 200 feet will not '
affect the structural integrity of the unit.
during displacement and will be
protective of human health and the
environment.
One commentor questioned the need
for a fault area restriction because this
location provision is premised on the
fact that if movement along a fault
occurs, the structural integrity of the
engineering features will be disrupted.
Given the low risks imposed by many 6f
the facilities potentially subject to the
rule and the fact the Agency is not
regulating the design features (i.e.,
liners, leachate collection systems) of
these facilities, imposing siting
restrictions is not warranted.
The Agency agrees that the fault area
restriction is designed to guard against
disruptions to the engineering features
that provide structural integrity to the
unit. Because of the low-risks posed by
non-municipal non-hazardous waste
units that receive CESQG waste, EPA
did not propose any liner requirements
or other provisions bearing on the
structural integrity of the units. Thus,
the Agency agrees that imposing this ,
restriction is not warranted, and as ' '
such, the fault area restriction is not a
part of today's final rule.
5. Seismic Impact Zones
EPA proposed that new and lateral
expansions of existing non-municipal
non-hazardous waste disposal, units,
that receive CESQG hazardous waste,
not be located in seismic impact zones .
unless the owner/operator demonstrates
that,all containment structures-are
designed to resist the maximum
horizontal acceleration in lithified earth
material for the site. . .' !
No specific comments were received
on this provision. However, this
provision like the fault area provision, >
was designed to guard against
disruptions to liners, leachate collection
systems, and surface .water control.
systems, therefore, EPA considers that
the logic of the comments on fault area .
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34259
restrictions applies to this restriction as
well, and as such, the Agency sees no '
reason to include this location
restriction as part of today's final
rulemaking.
6..Unstable Areas
EPA proposed that new, existing and
lateral expansions of existing non-
municipal non-hazardous waste
disposal units, that receive CESQG
hazardous waste, locatedin an unstable .
area 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.
As with the seismic impact zone
restriction, no specific comments were
received on this part of the proposal.
However, forthe same reasons as
discussed above under the fault area
and seismic impact zone restrictions,
this location restriction is also hot part
of today's'final rule.
7. Deadline for Making.Demonstrations
EPA proposed that existing non-
municipal non-hazardous waste
disposal units, thatreceive CESQG
hazardous wastes, that could not make
the demonstrations pertaining to '
airports, floodplains, or unstable areas,
would not be allowed to-accept GESQG
hazardous waste for disposal 18 months
after the date of publication of the final
rule. .
No specific comments were received
on this provision of the proposal. As the
final rule only applies to existing units
.located in floodplains, this provision
has been changed to require that only
existing units in floodplains will not be
allowed to accept CESQG hazardous
waste for,disposal 18 months after the
date .of publication of the final rule.
C. Sections 257.21-257.28Ground-
Water Moiutoring and Corrective Action
1. Applicability
The Agency proposed a number of
requirements under the heading
"applicability." The Agency proposed
that the ground-water monitoring
requirements could be suspended by the
Director of an approved State if the
owner/operator could demonstrate that
there was no potential for migration of
hazardous constituents from the facility
to the uppermost aquifer during the
. active life plus 30 years.
The Agency also proposed the
existing .units had to be in compliance
with the groundwaterjmonitoring
requirements within 2 years after the
date of publication of the final rule in '
the Federal Register. EPA proposed that
new facilities meet the-ground-water'
monitoring requirements when waste is
.first placed in the unit. The Director of
an approved State could specify an
alternative schedule for compliance for
existing units. The proposed alternative
schedulecalled for 50% of existing
units to be in compliance within 2 years
and for all existing units to be in
compliance within 3 years.
The Agency also proposed that
ground-water monitoring be conducted
throughout the active Me plus 30 years.
The director of an approved State could
decrease the 30 year period.
Lastly, the Agency proposed to grant
the Director of an approved State the
flexibility to establish and use an
alternative list of indicator parameters
for some or all of the constituents listed
in Appendix I (appendix I to Part 258)
and to allow small, dry, remote non-
municipal non-hazardous waste
disposal units to use an alternativeform
of detecting ground-Water
contamination! '
The Agency received no adverse
comment on most of these provisions.
The flexibility for small, dry, remote
non-municipal units was considered an
example of increased flexibility by a
commentor. The .Agency has slightly
altered the regulatory language for the
proposed flexibility for small, dry,
remote non-municipal non-hazardous
waste'disposal units that may be '.
allowed to use alternative forms of .
detecting groundTwater contamination.
The proposed language required/in two
places, that an owner or operator had to
submit zesults or seek approval of
corrective measures within 60 days.
These deadlines-have been removed to
allow for increased,flexihi]ity. The
deadlines have been replaced-with
language that allows the Director of an
approved State to establish a schedule
forthe owner or operator for the.above
mentioned activities. This change is also
being done to be consistent with the
rule language that was proposed for
MSWLFs, allowing small, dry, remote
MSWLFs to .use alternative forms of
detectingground-water contamination.
See 60 FR 40799, August 10,1995. The
proposed language allowing for.
alternatives to be used for small, dry,
remote MSWLFs was the basis for the
proposed language to allow small, dry,
remote non-municipal, nonhazardous
waste disposal units to also, use
alternative forms of detecting ground-
water monitoring. See 60 FR 30976,
June 12,1995.
The length of the ground-water
monitoring period (i.e., active life plus
30 years)-generated soine disagreement
In regard to the length of the ground-
water monitoring period, two
commentors concurred with the
Agency's decision to impose the
ground-water monitoring period
through the active life plus 30 years.
The commentors believed that the time
frame was consistent with other similar
rules, and based upon lie flexibility in
the rule, was not overly burdensome to
units in comparison to the
environmental protection it affords.
Several commentors requested that
the Agency reduce the ground-water
monitoring period to a shorter time
period or to a time period based on an
individual unit's performance standard.
In regard to a performance standard, one
commentor argued a performance
standard could be used by an owner/ .
operator to demonstrate that an
alternative time period is appropriate.
One example suggested was that the
performance standard be based on a
specified number of years without
significant changes in ground-water
quality. No specific number of years was
provided.
In regard to a shorter period of time,
commentors generally agreed that the 3Q
years was not reflective of the low risks
posed by units that may potentially
receive CESQG wastes. One commentor
requested 10 years for existing and 15
years for new units. .Another commentor
stated that a shorter period was
necessary because most States have a
post-closure period that ranges from 5-
10 years. A third commentor stated that
applying an extremely burdensome 30
years period places an economic burden
on'operators that is not remotely
balanced by any .real environmental
benefit This commentor suggested a 5-.
year period and thatthe rules could be
extended if problems are discovered
during the 5 years. Lastly, one
commentor questioned what incentive
existed to monitor groundwater for 30
years beyond the final.receipt of waste.
This commentor considered it
unreasonable to expect that the
value; . .
After a consideration of the'
comments, the Agency has elected to
retain the requirementthat ground-
water monitoring be conducted for 30
years after the active liie-of-the unit for
the same reasons that were discussed in
the proposal. The Agency believes .that-
there is sufficient flexibility within :
§ 257.21(e) for an approved State to
decrease the 30-year period. The final
regulation allows the Director of an
approved State to reduce the length of
the monitoring period if the owner/
operator demonstrates that a shorter
period is adequate to protect Iraman
health and the environment. The
Agency expects that States will reduce
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34260 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations
the length of the monitoring period if an
owner/operator can demonstrate, for
example, that no adverse changes in
ground-water quality have been
detected for some period of time less
than 30 years. Furthermore, although
some commentors expressed concern
over the length of the 30-year period,
the Agency-did not receive any data
supporting any such reduction in the
length of the monitoring period.
Today's final rule continues to .
provide flexibility for an approved State
to suspend the ground-water monitoring
requirements in hydrogeologic settings
that may preclude the migration of
hazardous constituents from the'unit to
the ground water*
2. Ground-Water Monitoring Systems
The Agency proposed a number of
.requirements under the proposed
section "ground-watermonitoring
systems". The Agency proposed that
ground-water monitoring systems
consist of a sufficient number of wells,
installed at appropriate locations'and
depths to yield ground-water samples
from the uppermost aquifer that
represent tile quality of background
ground water and .the quality of ground
water passing the'relevant point of'
compliance. The dowrigradient
monitoring system was to be installed at
the relevant point of compliance, as
allowed by tie Director of an approved
State, or at the waste management unit
boundary in unapproved States. 'The
relevant point of compliance specified
by the Director of an approved State was
proposed to be no more than 150 meters
from the waste management'unit
boundary and located on land owned by
the owner/operator. Furthermore, -the"
proposal allowed for multi-unit
monitoring under specific conditions. '"'
The only area to receive comments
was the point of compliance. A number'
of commentors expressed concern
regarding the 150 meter limit for the ,
point of compliance. One commentor
requested EPA to either allow a site- -
specific decision regarding .the point of
compliance or allow the use of a point,
of compliance within the facility
boundary. A second commentor
requested that EPA not specify, a
specific distance but rather authorize a
site-specific identification of a
compliance point based on the location
for the potential for exposure. For
example, if a unit is located a
considerable distance from, a drinking
water well, having the point of
compliance 150 meters from the unit
boundary may be needlessly stringent.
A third commentor stated that a flexible
approach to establishing the point of
compliance is well suited to low-risk .
facilities.
After a consideration of the ".
comments, the Agency has decided to
retain the proposed language regarding
the point of compliance. The firial rule
will require that .the downgradient
monitoring wells be installed at the
waste management unit boundary in
unapproved States or at the relevant
point of compliance, as allowed by the
Director of an approved State. The
relevant point of compliance can be up
to 150 meters from the waste
management .unit boundary. The
Agency retained the 150 meter limit
because the Agency believes it is
essential to seta maximum distance
limit for the point of compliance that
would limit ground-water
contamination, yet still provide
flexibility to owners/operators of .non-
municipal non-hazardous waste
disposal units that receive CESQG '
wastes. A point of compliance set some
distance much farther from the imit
boundary would result in a situation
where ground-water contamination,
when first detected, would-be more , .
wide-spread and result in-higher" .
corrective action costs to remedy the
situation. ...
The Agency realizes .that the point of
compliance-can have significant
implications associated with the scope,
magnitude.and cost of ground-water
remedial actions. Because of these
implications, the point of compliance
continues to be .an area of discussion
and debate. At this point in time, the
Agency is finalizing the point of
compliance language for. Subtitle D
units as described in the proposal for
this rule. However, the Agency is
addressing the point of compliance
issue in an Advance Notice of Proposed
Rulemaking .{ANPR) (See 61 FR 19432,
May 1,1996) as part of developing
regulations concerning ."Corrective
Action for Releases from Solid Waste
Management Units-at Hazardous Waste
Management Facilities" (subpart S of 40
CFR part 264). The Agency intends to
use the .ANPR to invite comments on a
number of issues, including the point of
compliance pertaining to corrective
action under Subtitle C of RCRA, It is
possible that future regulations, which
address new point of compliance
approaches for Subtitle C facilities,
could 'also address Subtitle D units
subject to today's final rule.
3. Ground-Water Sampling and Analysis
Requirements
The proposal required the use of.
consistent sampling and analysis
procedures that would be designed to
ensure monitoring results that provide .
an accurate representation of ground-
water quality- at the background and
downgradient monitoring wells. The
Agency received no substantial
comments on this section of .the
proposal; therefore, the sampling and
analysis requirements are being
finalized as proposed. Comments
concerning sampling and analysis
requirements are addressed in the -
comment response document associated
with this final rule.
4. Detection Monitoring Program '
The proposal addressed numerous
.requirements associated with detection
monitoring, the first phase of ground-
water monitoring: The. majority of the
proposed requirements pertained to
which constituents had to be monitored
for and the required frequency of
monitoring. The proposal required that
those constituents identified in
Appendix I of part 258 were to be
monitored for during the detection
monitoring phase of ground-water
monitoring and that the frequency of
monitoring .was to be at least semi-
annual. The proposal also specified the
areas of flexibility that existed for an
owner/operator during detection
monitoring.
The Agency received no comments on
the frequency of .monitoring during the
detection monitoring period, and as
such, the final rule requires at least
semi-annual monitoring during ;
detection monitoring. The final rule also
continues to allow the" Director of an
approved State to specify an'alternatlve
frequencyof monitoring .during the
active Me plus 30 years (no less than
annual "during,the active life). "
The Agency did receive some .
comments regarding the constituents to
be'monitored for during detection ['
monitoring. A commentor raised the
issue of developing a new list of ground-
water parametere for facilities that
accept CESQG wastes. Another
cpmmentdr stated that MSWLFs contain
a much largeriportion of waste that is
biodegradable and therefore creates its
own chemical degradation byproducts.
Unless EPA has data that shows that
leachates from non-municipal non- .
hazardous waste facilities are similar to
municipal solid waste landfills, the
Agency should not be imposing similar,
requirements. 'According to the
commentor, .the ground-water .. \
monitoring program should require
testing only for constituents that are '
related to-the waste accepted at the
facility, not a list of constituents that
could be found at any facility that may
accept CESQG wastes. Lastly, the
commentor .stated that the monitoring
parameters should be representative of-
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Federal Register / Vol. 61, Nol27 /Monday, July 1, 1996 / Rules and Regulations 34261 -
those constituents that are most mobile
in the ground-water environment so that
early detection, is accomplished without
undue cost of over regulation.'
' After a. consideration of the.
comments, the Agency has decided, to '
retain the requirements as proposed in
the detection monitoring section of the
proposal. The Agency believes that
developing a new list of ground-water
. constituents for facilities thai accept -
CESQG wastes would cause undue .
confusion for the regulated community;.
However, EPA has provided some
flexibility for approved.States in regard
. to testing for constituents that are
related to the wastes accepted at the ;
unit. Today's final rule provides
flexibility to the Director .ofan approved
State to remove from.the detection
monitoring list of constituents, any -
constituent that ismot reasonably
expected to be in or derived from the- - '
waste contained in-.the unit.
Furthermore, the Director of an;
approved Statemay establish an
alternative list of indicator parameters
in lieu of some or all of the constituents
in appendix I of part 258, if the
alternative indicator parameierfs) - "
provides areliable indication of releases
from the unit to the ground water!
The June 1995 proposal allowed the
Director of an approved Stateto develop
only an alternative list of inorganic
indicator parameters; the organic '
parameters'in appendix I of part 258;
were to be monitored'for and nn '
substitutions were allowed. However, in
today's final rule,: the Agency has...
provided additional flexibility in that
the Director, of an approved State can.
establish an alternative .list of indicator
parameters-for some or all of the
constituents in appendix I of part 258
including the organic constituents. The
Agency has provided this area of
. increased flexibility because'an.
alternative list of indicator parameters,
approved by the Director of an approved
State, could be appropriate in specific
circumstances, "and the Agency
continues to believe thatthe risks posed
by non-municipal non-hazardous waste
disposal units that may elect to receive
CESQG wastes is relatively small when
compared to MSWLFs. Non-municipal.
non-hazardous waste units that elect to
receive CESQG Wastes will be mostly.
C&D units. The Agency stated in the
proposal for this rulemaking, that these
.types of units, in-general, dp not pose
a significant risk. As such, the Agency.
believes that Directors of approved State!
' programs can exercise-additional"
flexibility in establishing the. - -
appropriate list of Selection monitoring
constituents or indicator parameters.
regarding the appropriate parameters to
monitor for during detection!
monitoring. This area of flexibility will
allow the Director of an. approved. State
to tailor the detection monitoring list to
those wastes accepted at the' facility
and/or those that are expected to be a -
concern due to mobility. One.. '
eommenter expressed concern that the
detection monitoring'list (Appendix I to
Part 258) for today's final rule should :
not be-identical to the detection
monitoring list dev.eloped-for municipal-
solid waste landfills! The Agency,
however, believes; that kachates from
non-municipal units are somewhat
similar, in that some of same types of
organics andinorganics can appear in
non-municipal leachates but at lesser :
concentrations, and..as:such, saw no
reason to create.-a separate and°new "
detection monitoring list."
5. AssessmentMonitoring Program
The proposal would have required
that once a statistically-significant
increase.over background was detected
during detection monitoring, a full.;
assessment of .any impacts on ground-
water quality had to be undertaken! The-
purpose, of assessment monitoring, was
to sample for a larger list of constituents.
to determine which were present) The
assessment monitoring program also
required the establishment ofcground-
water protection? standards.
The Agency received no comments on
this proposed assessment monitoring.:-;. -.
requirements; therefore, the assessment ;.
monitoring'program requirements are
being-finalized as proposed. .. .-
6. Assessment of Corrective Meastoes,-
.SelectionofRemedy.'and ' ' .
Implementation of the Corrective-Action
Program. '
The proposal requiredTthat once a
statistically significant increase was-;-
detected over.the.ground-water ..--. ,.
protection.standard for any constituent-
detected during assessment monitoring,
the owner/operator was requlred-io :.
assess available correetisre measures:
Available corrective measures were -
those that could meet the. performance
standards, established under the
proposed selection of remedy-. .
requirements; Lastly, the proposal .
would have-required that once a .. '
corrective measure waaselected,the
owner/operator would be-reqaired to- .
implement the selected remedy.
. The Agency-received no comments on
the proposed corrective .action
requirements; therefore, .the. corrective .
action requirements are beingfinalized
as proposed.
D. Section 257.30Recordkeeping
Requirements . .
EPA proposed that owners/operators
of non-municipal'non-hazardous waste
disposal units record and retain, various.
pieces of information in an operating .
record. The operating record was
proposed to be at the facility or at an
. alternative location as approved by the .
Director of-an'approved State, The -
following type of information was %
proposed to be retained: any location
restriction demonstration and any >
demonstration, certification, finding,
monitoring, testing, or analytical data. .
required as part of complying with the.;
ground-water monitoring and:corrective
action requirements.
No comments were received on the. :v .:
-substance-of theTecordkeeping:r
requirements; therefore; the-Agency is:
finalizing the recordkeepMg..- .. .
requirements provision as it was
proposed.
E. Special Requirements for Hazardous
Waste Generated by Conditionally
Exempt SmalLQuantityiGeneraiors -
1-Change&tp Section 26:L5
The proposal would have amended -
the existing language of § 261.5 by-,
establishing acceptable-Subtitle D
management-options for.CESQG'waste.-r
The existing language ur§ 261.5^',..
paragraphs (fl(3) and (g)(3), allows for a
CESQG hazardous;waste-to beinanaged
atahazardous waste facih'ty; (either iiu
interim statu&,or permitted),-a reuse or
recycling faeilityi or a non-hazardous.- ..
solid waste facffity that is permitted,
licensed, or-reg^stered by a State to
manage municipal orindustrial wastes;-
The proposed rule would hkye' ;'-' '
continued to:allow CESQG waste to be
'managed at a hazardous waste facility,
or at a reuse orrecycling facility;
however, the proposal would have -.
required that if CESQG waste was to be
managed at a SubtitiaD disposal
facility, it must be managed in a...
MSWLF that is subject to Part 258 or a
non-municipal non-hazardous waste
disposal unit that is subject to the -
standards that were proposed for units
. receiving CESQG waste.
Commentors supported-the proposed
rule changes to paragraphs (f)(3) and ...
(g)(3) in § 261-.5 regarding waste ... .
generated by CESQGs. Commentors ;.
stated that ttie.continuation of the '
'CESQG rules was.:very important as
these rules werejdeyeloped to ease the
burden of small generators. -Other -
commentors ateo supported the
proposed generator changes for various
reasons: ^proposed changes will help
CESQGs ensure that their wastes are
properly managed, CESQGs may
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34262 Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 /.Rules and Regulations.
investigate the recycling or reuse of
their waste streams', or use of
alternative, less-hazardous materials-in
their operations, and the proposed
changes are a wise-policy decision.
Given the agreement that commentors
had with the proposed changes to
§ 261.5, the Agency has decided to
largely finalize the requirements as
proposed.
One small change has been made in
today's final rule language, however, in
paragraphs (fj{3) and (g)(3). This small
conforming change deals with final
regulatory language that was developed
in the universal waste rule (see -60 FR
25541, May 11,1995). Universal wastes.
are the following hazardous wastes that
are subject to the universal waste rule:
batteries as described in 40 CFR 273.2,
pesticides as described in 40 CFR 273.3,
and thermostats as described in 40 CFR
273.4. The conforming changes are
found in today's final rule language in
paragraphs (f)(3){vii) and (g)(3)(vii). The
conforming changes in today's final rule
allow a CESQG to manage universal
wastes in a facility that is a universal
waste hauler or destination, provided
that facility is subject to the universal
* waste requirements in 40 CFR Part 273.
See 60 FR 25492, May 11,1995..The
possibility that some CESQG waste
could be considered a universal waste
was discussed in the proposal to this
final'rule. See 60 FR 30968, June 12,
1996.
RCRA Section 3010(b) states'that .
regulations respecting requirements.
applicable to the generation,
transportation, treatment, or disposal of
hazardous waste that are promulgated
under Subtitle C shall take effect six
months after the date of promulgation.
Tho Administrator is authorized to
establish a shorter effective date. 42
U.S.C. 6930(b).
The revisions to 40 CFR Section 261.5
and 271.1 are being promulgated, in
part, under RCRA section 3001(d)(4),
and thus, are subject to the six month
effective date provision in section
3010(b). In the proposed rule, EPA
stated that it intended to make these
revisions to the Subtitle C regulations
effective 18 months after their,
publication so as to coincide with the '
effective dates of the Subtitle D
provisions. See 60 FR 30979. In the final
rule, EPA is making the Subtitle C
provisions effective in six months in
accordance with RCRA section 3010(b).
However, to ensure that there, will be '
consistency in implementation of both
the Subtitle C and D provisions, as
suggested in the proposal, EPA has ~-
chosen to delay the compliance date for
the Subtitle C provisions until 18 .
months after today's date; Thus,
although the Subtitle C revisions go into
effect in six" months, those who generate
CESQG waste will have to comply'with
the revised disposal standards in section
261.5 (f)) and (g) only when the Subtitle
D revised location restrictions for
CESQG waste go into effect in 18
months. The final rule language for
section 261.5 and 271.1 reflect this.
delayed compliance date. . . ;
2. CESQG Wastes
Comments were received concerning
various aspects related to the ,
requirements for CESQGs:. Comments
were also received requesting that the
Agency provide a clearer picture of
what constitutes a CESQG waste. Lastly,
other commentors stated that the final
rule needed to.have a screening
requirement in place for facilities that
elect not to receive CESQG wastes-.
In regard to the comments concerning
the need to better identify-what is a
CESQG waste, the proposal identified
examples of CESQG wastes, particularly
for the construction and demolition
waste industry: See 60 FR 30967, June
12,1995. CESQG hazardous wastes
generatedin the construction,
renovation, and demolition waste
industry are more likely to be_ specific
chemicals or products used in these
activities. Building demolition debris
can be a CESQG waste if based on
generator knowledge or a representative
sample of the entire building debris, the
building debris is determined to be a
hazardous waste (i.e., it exhibits one of
the four characteristics of a. hazardous
waste}, and if hazardous, is under the
waste-quantity cutoff limit for a CESQG
waste (See 60 FR 30967, June 12,1995).
Commentors requested a
comprehensive listing of C&D wastes
which may be typically hazardous. The.'
Agency's supporting document
"Construction and Demolition Waste
Landfills" identified a number of wastes
that were considered potentially
"hazardous" by various sources. The
Agency continues'to believe, as stated in'
the proposal, that not all of the wastes
identified in the report are hazardous as
determined under Subtitle C; however,
the listing provided in the supporting
document provides an indication of the
types of wastes that may be present in
the construction and demolition waste
industry "that could be a concern. .Given
that the Subtitle C and D regulations are
generally implemented by the States,-
the Agency believes that owners/ .
operators should work with their State
Agencies to determine what specific
rules or guidance applies with regard to
the types of wastes that, their State "
Agency considers to be hazardous..
3. Screening Procedures
Comments were also received :
requesting that the Agency acknowledge
the use of existing screening procedures.;
With regard to the comments .
concerning the need to acknowledge .the,
use of existing screening procedures and
the need to have a screening procedure
in place for facilities that elect not to
receive CESQG wastes, the proposal did
not require non-municipal non-
hazardous waste disposal units to
screen incoming wastes in order to
assure that they Were not receiving
CESQG .wastes. Rather, it left it up to the
owner/operator to assure, through what
ever means he/she determined, that the
facility was .not receiving CESQG waste. ;
This could include certifications by
waste haulers that their wastes destined !
for the facility will not contain CESQG ;
wastes,' written prohibitions in contracts
between waste haulers and the .owner/
operator stating that the facility, does not
receive CESQG waste for disposal, and/
or random.screening procedures at the
facility. Commentors were concerned
that CESQG wastes would find then-
way into C&D landfills that elect not to
upgrade and comply with today's final '
requirements, particularly given that the '
proposal did not require the use of a
formal screening procedure to prove
that the facility was not receiving
CESQG wastes. Specifically, one
commentor stated that without a
stringent method of restricting wastes
and documenting.these efforts, C&D
" landfills that do not meet the proposed
requirements may become low-cost
alternatives for .the unscrupulous. Two
other commentors stated that, the
proposed rule, as written, lacked an
affirmative demonstration on the part of
a facility that elected not to comply with
the proposed requirements, that the
facility was in reality not receiving ;
CESQG waste for disposal. The
commentor argued that "without a
screening method at facilities that elect
not to comply, the proposed rule is-
insufficient to satisfy the mandate of
RCRA Section 4010(c)". Several of these
commentors suggested the use of the
screening procedure specified in the
Part 258 Criteria for municipal .solid
waste landfills. ,
;. Other commentors acknowledged'that
screening exists today for C&D facilities
and that it is successful. Screening is
done at most C&D facilities and, thus,.
regulatory criteria made applicable to
such facilities should take into account'
screening practices that significantly
reduce the risks that C&D facilities
present to human health and the
environment. These commentors
wanted EPA to expressly acknowledge
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Federal Register /Vol. 61. No. 127 / Monday, July 1, 1996 / Rules and Regulations 34263
that screening programs reduce risks at
C&D facilities or to develop a regulatory
approach that allows C&D.facilities with
established screening programs ta be
exempted from a- majority of the -
proposed criteriau>r EPA should
develop relaxed regulatory crite.ria that
take into account such risk-reduction -
operational practices.
The proposal explained that owners/
operators implementing a screening
procedure, should contact their State
Agency to determine that the screening
procedure ensures-that-the facility does
not receive CESQG. wastes. Responding
.to this statement,x>ne commentor said
that the Agency should not delegate this
obligation to .the states because doiag^o
will lead to unwarranted lawsuits
againstowners/operators that do not
want to accept CESQG wastes and
confusion at the state level caused by
widely divergent screening.
requirements that may or may not be
acceptable.
In response to the comments about
the need for screening requirements as
part of today's final rule,, the Agency is
concerned that the establishment of
specific and/or detailed screening
. standards would limit flexibility that
owners/operators and State Agencies
have in developing an appropriate
screening method, if one is considered
necessary. Under the rule as proposed
and promulgated, if an owner/operator
of a non-municipal non-hazardous
waste disposal unit elects notto receive
CESQG wastes, and therefore, does not
upgrade to meet the requirements in
today's final rule, he/she is not legally
allowed to accept CESQG wastes. See 40
CFR 257.5(a)(3). If ;the owner/operator
does accept CESQG-wastes, then he/she
would be in violation of today's final
rule and would be-subject to
enforcement actions. See 40. CFR
257.5(a)(l}..CESQGs that send their
CESQG waste to landfills that are not
subject to today's requirements for non-.
municipal units would, likewise, -be :
subject to enforcement actions.
Owners/operators that elect not to .
upgrade and therefore not receive
CESQG ^hazardous wastes, may on their
own'elect to develop a screening .. . .
procedure that is effective in screening
out GESQG materials. Owners/operators
who elect to develop a screening
procedure are encouraged to work with
'their State Agency to determine what
screening procedures, may at.a State
level be required, recommended or in
guidance. The Agency believes that the
adoption of a Federal screening program
as. a condition of not receiving CESQG
hazardous waste, will limit the -.-
flexibility that both States and owners/
operators can exercise in developing a
successful screening program. The
Agency does not want to interfere in the
development of acceptable screening
programs that, based on comments
received on this rule, can be developed
and are being used in the field..
VII. Implementation of Today's Final
Rule
A. State Activities Under Subtitle C
(Regulation of CESQGs of Hazardous
Waste} . ....-,
1. Hazardous and Solid Waste -',
-. Amendments to RCRA
Today's.final rule changes the existing
requirements-ui §:261.5, paragraphs. .
(f)(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),new .
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time they take effect
in unauthorized. States. EPA is directed
to1 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 (f)(3j and (g)(3), are finalized
pursuant to section 3001(d)(4) of RCRA,
.which is a provision added.by HSWA.
Therefore, the Agency has added the
requirements to Table 1 in § 271.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: .
2. Effect on State Authorizations
As noted above, EPA will implement
today's rule (i.e., the revision to §261.5)
in authorized States until they modify
theirprograms to adopt theSection :.
261.5 rule change and the modification '
is approved by EPA.-Because the rule
has been finalized pursuant to-HSWA*
a State submitting a program " .
modification may apply to receive .either
interim or final authorization under.
Section 3006(g}(2) or 3006(b),
respectively, on the basis of
requirements that are substantially
equivalent or equivalent toJSPA's. Tfc....
procedures and schedule &r State
program modifications for either interim
or final authorization are described in,
40 CFR271.21.lt should be noted that .
all HSWA interim authorizations will
expire January 1,-2003. (See §271;24Cc>
and 57' FR 60129 (December 18,1992)).
40 CER 271.21(e)(2) provides that
States that have final euthorization.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 modify its -
program to.adopt these regulations and
submit its application for approval is .
specified in 40 CFR"27l,2lfe). These
deadlines can be extendedin certain .
' cases (40 CFR 271.21(e)(3}); Once EPA .
approves the modification, the State
requirements act in lieu of Subtitle C
RCRA requirements.
: States with authorized RCRA
programs may already have .adopted-
requirements under State law similar tp
those in today's rule. These State
regulations have not been assessed
against the Federal regulations being
finalized 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 finalized, for .the purpose of
authorization under Subtitle C, only the
final 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 min-i-mi^g
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34264 ' Federal.Register ./ Vol. 61, No. 127 / Monday^ July 1,. 1996 / Rules, and Regulations
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 § 271.2l(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.
3. States With More Stringent Programs
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 (i.e., some States
do riot allow permitted MSWLFs to
accept CESQG hazardous waste). For
those States, today's final rule would
clearly be considered less stringent than
the applicable provisions in these
States' authorized programs. Section
3003 of RCRA allows States to adopt or
retain provisions that are more stringent
than tho Federal provisions. Therefore,
regarding today's final 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
authorized regulatory language. Further,
the authorized State requirements in
such States, since they would be more
stringent than today's final rule, would
continue to apply in that State, even
though today's rule is proposed
pursuant to HSWA author!t v.
For a State to not be required to
submit an authorization revision
application for today's final rule, the
State must have provisions that are
authorized by EPA and that are more
stringent than the analogous Subtitle C
provisions in today's rule. For those
States that would not be required to
revise their authorization, EPA
encourages States to inform their EPA
Regional Office by letter that for this
final rule, they are notrequired 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 final
rule. Otherwise, EPA might conclude
.that a revised authorization application
is required.
B. State Activities Under Subtitle D
(Regulation of Receiving Non-Municipal
Non-Hazardous Units) '
States are the lead entities in
implementing and enforcing Subtitle D
rules. The Agency intends to maintain
the State's lead in implementing the
Subtitle D program. RCRA Section 4005
requires States to adopt 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 non-
hazardous waste disposal units
receiving CESQG waste comply with
today's standards. The statute requires
EPA to determine whether States have
developed adequate permit programs,
States will need to review their existing
'programs to determine where their
programs need to be revised and to
complete program changes, if changes
are necessary. The process for
evaluating the adequacy of State
programs has been set forth in a separate
proposal, the State/Tribal Permit
Program-Determination of Adequacy.
See 61FR 2584, January 26,1996.
For the purpose of determining
adequacy and granring-approyal under
Subtitle D for today's rule, only the
proposed technical changes in §§ 257.5
through 257.30^will be'evaluated by the
Agency. The State may need to meet
other procedural and administrative
provisions identified in the State/Tribal
Permit Program Determination of
Adequacy. EPA policy on approval of -
permit programs for non-municipal nbn-
hazardous waste -disposal units
receiving CESQG waste is the same
process that the Agency used for
determining the adequacy of State
programs for the Municipal Solid Wayte
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 State, program..
For example, if non-municipal non-
hazardous waste disposal units subject
to this rule are already subject to an '
approved State MSWLF program (i.e.,
the non-municipal non-hazardous waste
disposal units receiving CESQG waste
are currently subject to the Part 258
location restrictions, ground-water
monitoring, 'and corrective action
criteria), the State may only be required
to submit documentation that the non-
municipal non-hazardous waste
disposal units receiving CESQG waste
are subject to their approved program.
In most cases, the Agency anticipates
that a streamlined approval process
would be appropriate. States are
encouraged to contact their appropriate
EPA Regional office to determine the
specifics of the approval process.
In the proposed State/Tribal permit
program determination of adequacy, the
Agency originally proposed that a
streamlined approval process would not
be vised for permit programs that related
to additional classifications other than
MSWLFs. See 61 FR 2599, January 26, '
1996. As suggested above, the Agency is
re-evaluating its proposed position and
a final determination will be made in
the final State/Tribal permit program.
determination of adequacy.
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. For -
purposes of today's rule, 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 w;aste 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 finalized -
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, .in the State permit
programs which implement it. EPA - .
provides for public participation in its
decisions on whether State permit
programs are adequate under RCRA
Section 4005(c)(i)(c). In developing and
implementing permit programs, States. ;
must provide for public participation in
accordance with the provisions of 40
CFR Part 239 (specifically § 239.6). ;
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Federal Register / Vol. 61. No. 127 / Monday. July 1. 1996 / Rules, and Regulations 3.4265.
Permit programs have been .defined -in
the proposed State/Tribal Permit
Program Determination of Adequacy to
include'other systems of prior approval
and conditions, including licenses or
registrations;-
C. Summary of Comments andEPA
Response '
Several commenters supported EPA's
. approach in the proposal toward States-
with.approverf Subtitle D programs that
have CESQG disposal restrictions.in .
their Subtitle D programs. .In particular,
the commenters supported EPA's
statement that States which require
. CESQG waste to be disposed of in either
Subtitle C'facilities.or facilities subject
to the part 258 MSWLF Criteria do not
need EPA approval for a permit program
based on today's final (Subtitle D)
standards. However, the, cornmenters
. believed that for these States, the
absence of a required EPA approval
should be extended to the Subtitle-C
program;. .
EPA believes that its approach toward.
States with programs that are more
stringent than this final rule is the same
for both ihe Subtitle C .and Subtitle D
programs. Those States with approved
Subtitle D or authorized Subtitle C
program that do not allow CESQG waste
to be disposed of in a landfill addressed
by today's technical standards do not
need approval by EPA-for that program.
EPA's position is detailed in sections
VH.A. and VILB. abovei EPA believes.
that since the-existing approved State
requirements are more stringent than. .'
the provisions in today's rule,.in such
States, program revisions are not. .
necessaryfor the State .programs to:
remain atleast equivalentto the Federal .
rules.
Other coinmenteis raised! the
possibility of State self-certification for
State authorization for both the RCRA
Subtitle C and D'programs, particularly
where the State.aJready has rules that
are equivalent to today's rule in its
waste management programs. The
commenters argaed that this self- .
certification will result in significant
resource savings
streamlining the Subtitle C
authorization process. . .
EPA believes that the authorization
process for the Subtitle C portion of
today's final rule will be very
straightforward because today's rule
only, added twp new provisions to the
hazardous wastff regulations. EFA will
work-with States andEPA regions to
ensure.that the Subtitle C authorization
process for this rule will be completed
swiftly, EPA believes that it can take
such certifications into account .to a..
large degree, thereby, greatly reducing
review time. Further; EPA believes that
many States will not require revisions to
their authorized programs because their
authorized programs are currently more.
stringent than today's rule.
on allowing State self-certification, EPA.
is currently examining this issue for
Subtitle C authorization as part of the
HWIR-Mediarulemaking (see 61.FR
18780, April 29,1996). In the proposed
Phase IV LDR rule, EPA proposed an
abbreviated authorization process for
new minor rule changes (see-60 FR-
43686, August 22,1995). Although, this.
authorization proposal did not address
the rule, changes in.the June 12, .1995
proposal, EPA iacprnmitted to
D. Owner/Operator Responsibilities
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.
today's final rule andrcan be used by.
approved States in determining facility
specific requirements. Owners/operators
of non-municipal non-hazardous'waste-
disposal units that are receiving CESQG
_ wastes as of the effective dates of
' today's final rule, due to the self-
imple^mentihg.-nature of this final rule,
would be required to comply withthe .
promulgated standards regardless of the
status of the States approval "
determination under Subtitle D. If an
owner/operator of a non-nmnicipal non-
hazardous waste disposal unit is
receiving CESQG waste.and is located in
a State that has.not been approved
under Subtitle D for-these revised
'criteria, 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 non-municipal
non-hazardous waste disposal units that
receive CESQG waste and are located in
approved States 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 final rule allows that CESQG
waste go to either a hazardous waste
facility, a reuse or recycling iacility, a
municipal solid waste landfilLsubject to
Part 258,-a non-municipal solid waste-
disposal facility that is subject .to: the
requirements being proposed in §§ 257.5
through 25 7.30 or a solid waste
management facility (i.e., incinerator)
that is permitted; licensed, or registered
by a State to manage municipal or nonr
. municipal waste. Today's final rule doss
not mandate that CESQG waste go to a
MSWLF or to a non-municipal non-
hazardous waste disposal unit subject to
today's final requirements. These are
just two of the options as to where
CESQG hazardous waste can be send for
management.
The Agency does not believe .that
today's final rule'amendmenl 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-site, 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, this practice
can continue to occur, as long as '
allowed under State regulations, as all
MSWLFs where CESQG waste could be
sent are subject.to Part 258. Hazardous.
waste regulations applicable to CESQGs
. require that CESQG hazardous waste be
managed in a unit permitted, licensed,
or registered by the State to mianage
municipal or industrial -waste. Those
CESQGs,.including construction and.
demolition waste generators, who wish
to send their CESQG waste to a non-
municipal non-hazardous waste ' '
disposal unit and are uncertain whether
the unit has the appropriate permit,
license, or registration should contact
his/her. Statei Agency to ascertain if the"
non-municipal non-hazardous waste
disposal unit in question, can legally
accept CESQG waste.- -.
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. compliance with today's final
amendments to § 261.5(f)(3) and (g)(3).-
The remaining non-hazardous waste
would not be subject to the final
requirements in § 261.5; howeyer.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
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34266 .Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and.Regulations
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 or Subtitle D iarility as per
today's final language in § 261.5.
E.Enfotc'ement '
1. Hazardous Waste Enforcement
Today's final rule 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
art inappropriate Subtitle D facility
becomes subject to enforcement actions
which could include loss of CESQG
status for any CESQG waste that is
improperly disposed of.
2. Subtitle D Enforcement
States that adopt programs meeting
the standards in §§257.5 through 257.30
may enforce them in accordance with
Stats authorities. Under RCRA Section
7002, 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/her 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.
Onco the self-implementing provisions
in §§ 257.5 through 257.30 become *
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. ...
Vm. Executive Order 12866
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 pf 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 aeency;
3. Materially alter the oudgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issuess
arising out of legal mandates, the
President's priorities, or the principltes
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" because 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 \
In the Cost and Economic Impact
Analysis (May, 1995) accompanying,-the
proposed rule, the Agency estimated the
total annual costs to the economy
resulting from ihe proposed rule ranged
from $10.0 million to $47.0 million.
The national 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 fee
construction and demolition waste
facilities. . '
The national annual 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
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.
Upon receipt and incorporation of
public comments, the Agency prepared
a revised Cost and Economic .Impact
Analysis (June, 1996). In the revised
analysis, the Agency estimates the total
annual costs to the economy for today's
final rule will range from $12.65 to
$51.0 million dollars. These costs fall
upon approximately three types of.
facilities: 600 manufacturing-sector.
CESQGs, at an average annual cost of
$280 per facility; 10,000 construction:
sector CESQGs, at an average cost of
$930 per facility; and 700 construction/
demolition waste landfills, at an average
cost of $4500 per facility.
One commentor suggested that EPA
had understated the.costs of compliance
with the new regulation. The .
commentor supported this conclusion
based on several contentions:
(1) .The commentor maintained that
EPA's estimates of total construction
and demolition wastes were flawed
because some data sources were
inappropriate, including European data.
Although EPA agrees that U.S. ,data
would be preferable, the European
information provided an important and
relevant insight for our analysis. EPA
believes that many aspects of ~
construction technology are similar-
from one developed western country to
another. EPA also notes that the costing
methodology used in the analysis rests
mostly on costs per facility, rather than
costs per ton. ' - . ,
. (2) The commentor suggested that.
EPA underestimated the labor required
for screening hazardous waste at
construction/demolition waste landfills.
Data that EPA has collected from ;
construction/demolition landfill owner/
operators, however, indicates that
screening programs are already in affect
at most of these facilities; EPA has
collected information on the number of
hours required for screening wastes per
year per landfill, and believes that the
nationwide estimate of one additional
hour of labor per day per landfill is
reasonable.
(3) The commentor also suggested that
EPA had underestimated the amount of
labor which would be required to
separate wastes at construction sites.
The Cost and Economic Impact Analysis
estimated one labor hour'per week per
company for separating hazardous
wastes. Since a company can have
multiple, job-sites operating
simultaneously, the commentor
indicated that it would be more
reasonable to estimate one hour per job-
site, rather than per company. EPA
agrees, and notes that the wording in the
original analysis was -incorrect; the
estimate was actually labor hours per
establishment, where each
establishment represents a group of job
sites. Therefore, EPA has used the
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Federal. Register / VoL 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34267
costing, methodology that the
' commentor recommends,
(4) Finally, lite commentor disputes
EPA's estimate of the hourly labor cost
for screening wastes at the landfill and
separating wastes at the generator site.
EPA re-examined the labor costs,
consulting with the Bureau of Labor
Statistics and a standard construction
industry costing guide. As a result, EPA
agrees with .this comment and has
adjusted the labor figure by 27% {from
$13.60 per hour, to $17.32 per hour).
Further discussion of the cost analysis
can be found in Cost and Economic
topact Analysis of the CESQG Rule,
June 1996, available in the docket.
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 faculties or MSWLFs). These are the
direct benefits of today's proposal,
however, additional benefits will be
realized due to this proposal.
Today's final rule wifl require that
any ground-water contamination that is
occurring at units that continue to
receive CESQG hazardous waste will be
quickly detected, and therefore,
corrective action can-be initiated sooner
avoiding a more costly corrective action.
To the extent that, existing non-
municipal non-hazardous waste
disposal unitsThatieceive CESQG
hazardous waste upgrade their, units to
include ground-water monitoring, and
to the extent that new'facilities will be
located outside of floodplains and
wetlands, public confidence in these
types of units-will be increased. Having
a higher, level of confidence should
result in these types of units being
easier to site in the .future.
Finally, to the extent that.CESQGs
separate out the small volumes of
hazardous waste, the resulting mass of
clean non-hazardous waste would have
a better potential to be recycled.
K. Regulatory Flexibility Act .
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 etseq., Pub. L.. 96-
354), as amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 ("SBREFA"), EPA must consider
whether a regulatory action will have a
significant adverse-impact on small
entities. For a rule promulgated after -
June 27,1996, EPA must either certify
that the regulation will not have a.
significant impact .on a substantial.
number of small entities or prepare a
contains an evaluation of five factors. 5
U.S.C. 604{a). Because EPA promulgated
this rule prior to June 28,1996, the
. revised requirements of SBREFA for an
expanded regulatory flexibility analysis
if a certification is not made do not.
apply. At the same time, however," EPA
has conducted an analysis to determine
whether the rule will have a significant
impact on small entities. On the basis of
that analysis,.EPA certifies that this rule
will not have a significant impact on a
substantial number of small entities.
The factual basis for this certification is
as follows. : .-- . .
EPA anticipates that this rule will
increase costs for two' classes of , '
facUities. CESQG generators that still
handle their CESQG waste on site are
expected to send their CESQG waste to
Subtitle C facilities, at a maximum per-
facility cost of $570 per year.
Construction waste-generators will incur
maximum additional per-firm costs of
$1,469 per year, for separation,
transportation, and disposal of
hazardous -wastes. In each case, EPA's
analysis shows that the. impacts are less
than one percent of .annual revenues, for
all sizes and types of companies.
This determination is based on EPA's.
projection of the response of CESQG
waste generators and disposal facilities
to today's rule. EPA performed a high
end analysis, predicated on an
assumption.that C&D landfills upgrade.
to meet these standards. In this scenario,
cost .impacts-would be higher. EPA does
not expect C&D landfills to upgrade,
however, since they would be unlikely
to recover the high costs of upgrading. -
The analysis of effects on small" entities
is predicated on an assumption that the
owners of C&D lanHfillQ act rationally,
i.e., they choose not to upgrade but
rather choose to stop accepting CESQG
wastes.
Moreover, EPA has modified the
proposed rule in a number of ways so
that cost to small entities may be
decreased. For example, EPA has -
included a provision which authorizes
Directors of approved state programs ;to
establish an alternative list of indicator
parameters not only for the inorganic
constituents but also for the organic
constituents to be monitored for in the
detection monitoring phase of ground
water monitoring. Thus,:owner/--
operators of non-municipal, non-
hazardous waste disposal units in
approved states may have lower ground
water monitoring costs.
In addition, EPA has removed four
location restrictions (airports, fault
areas, seismic impact zone, and unstable
areas) from the final rule for the reasons
set forth in Section VLB of today's
preamble. Costs for small entities that
own non-municipal, non-hazardous
waste disposal-units that must comply
with this rule would thus be reduced
because no demonstrations.to establish'
that these location restrictions have '
been met would need to be made.
X. Submission to Congress and the
General Accounting Office
Under section 801(a)(l)(A) of the
Administrative Procedure Act (APA) as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996, EPA submitted a report containing
this rule and other required information
to the U.S. Senate, the U.S. House of
Representatives and the. Comptroller'
General of the General Accounting
Office prior to publication of the rule-in
today's Federal Register. This rule is
. not a "major rule" as defined by section
804(2) of the APA as amended. .
XL Paperwork Reduction Act
The information collection
requirements in this 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. An Information Collection
Request (ICR) document has been
prepared by EPA (ICR &o. 1745101) and"
a Copy may be obtained from Sandy
Farmer, XDPPE Regulatory Information
Division, U.S. Environmental Protection
Agency (2136), 401M St., S.W.
Washington, DC 20460 or by calling
(202) 260-2740. The information
requirements are not effective until -
OMB approves them. ;._
The information to be..collected under
this rulemaking would be used
primarily by the States to regulate and
ensure that non-municipal non-
hazardous waste disposal units that may
receive CESQG wastes are complying
with.the.finalrequirements. The
information collected would be used by
the State Director to confirm compliance
on the part of the owner/operator with
the finalrequirements. All information-
will be reported to the States or.kept in
an operating record at the facility. EPA
will not collect information from any of
the facilities subject to today's
requirements, except'in airy potential
enforcement case.
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34268 Federal Register / Vol; 61, No. 127 / Monday. July 1. 1996 / Rules and Regulations
The total annual public recordkeeping
and reporting burden is estimated to be
12,100 hours with an average of 67
hours per respondent. Burden, means ,
the total time, effort, or financial
resources expended by persons to
generate, maintain, retain, or disclose or
provide information to or for a Federal.
agency. This includes the time needed
to review instructions; develop, acquire,
install and utilize technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and
information, and disclosing and
providing information; adjust the
existing ways to comply -with, any
previously applicable instructions and
requirements; train personnel tb.be able
to respond to a collection of
information; search data sources;
complete and review collection of . -
information; and transmit or otherwise
disclose the information.
An, Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
' in 40 CFR Part 9 and' 48 CFR Chapter
Send comments on the Agency's need
for this information, the accuracy of the
provided burden estimates, and any.
suggested methods for Tmnrmiw'ng
respondent burden, including through
the use' of, automated collection
techniques to the Director, OPPE
Regulatory Information Division, U.S. ;
Environmental Protection Agency.
(2136), 401 M St., S.W., Washington, DC
20460 or to the Office of Ihf ormation .
and Regulatory Affairs, Office' of
Management and Budget, 725 17th St.,
N.W., Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
Include the ICR number in any
correspondence.
XII. Environmental Justice
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 final rule (i.e.,
construction and demolition landfills).
The Agency does not believe, however,
that today's final rule will adversely
impact minority or low-income
populations. The facilities affected by
the final rule pose limited risk to
surrounding populations. In addition/
today's final rule 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 final rule will further
reduce the already low risk for
populations surrounding construction
and demolition landfills, regardless of
the population's ^ftmlcuy or income
leveL Minority and low-income
populations will not be adversely
affected.
XIIL Unfunded Mandates Reform Act
Under section 202 of the Unfunded
Mandates Reform Act of 1995 (the Act),
Public Law 104r-4, which was signed
into law on March 22,1995, EPA
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 govemments,-.including tribal
governments, it must develop under.
section 203 of-the Act a smafi
government agency plan.. The plan musit
provide for notifying potentially ; -
affected small governments, giving theiji
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 today's final
rule does not include a Federal mandate
that may result in estimated costs of
$100 million or more to State, local, or
tribal governments in the aggregate, or
to the private sector, in any one year.
EPA has estimated that the annual coslts
of today's final rule on generators of
GESQG wastes and those entities which
own or operate CESQG disposal
facilities, including the private sector,
States, local or tribal governments, range
from $12.65-48.9M.
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 units comply with the final rule.
. Adoption and implementation of such
State permit programs is required under ;
RCRA section 4005(c)(l)(B). 42 USC
6945(c)(l)(B). The Agency has estimated
that the costs for a state to develop an
applicationfor 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 final rule, ;
EPA believes that the additional costs
for states to reviseiheir 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 final rule as compared to
the MSWLF Part 258 criteria, state costs
for preparing applications for approval
of a CESQG permit program should be
considerably less than that $15,000
figure.
Indian tribes are not required to
by EPA, but the Agency believes tribal .
governments are authorized to
development such permit programs and
have them approved by EPA. This issue
is discussed in the proposal STIR. See
61FR 2584, January 26,1996. 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 final rule, EPA expects that the.
costs which a tribal government might
face in developing a permit program for
CESQG units should be less than '
$7,000. .''
EPA has also finalized.amendmehts to
the requirements for generators of
CESQG hazardous waste. These ^
amendments to 40 CFR 261.5 (fj(3) and
(g)(3) are finalized pursuant*) RCRA
Section 3001 ,(d)(4), which is a provision
added by HSWA. The § 261.5 .
amendments are also more .stringent .
than current Federal hazardous waste
regulations. Subtitle C regulatory
changes carried out under HSWA .
authority become effective in all'states .
at 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 stringentprovisions.- -
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 changes. About 26
states would have to revise their '
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Federal Register / Vol. 61, No. 127 / Monday. July 1. 1996 / Rules and Regulations 34269
hazardous waste programs and seek
authorization. States generally -
incorporate a number of hazardous
waste 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
this estimate covers several separate
program components at one time, the
cost for revisions only to Section 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
finalized today will not significantly or
uniquely affect small governments,
including tribal governments. EPA
recognizes that small governments may
own or operate waste disposal units that
receive CESQG waste. However, EPA
continues to estiifiate that the majority
of construction and demolition landfills,
which are the primary facilities to be
subject to this 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 meet regulatory standards
that are similar to those being finalized
today. Thus, EPA believes that today's'
final 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 final rule by
seeking comments on the proposed
CESQG rule and-by attempting to
adequately address issues and concerns
expressed by these entities in their
comments. Furthermore, the Agency
highlighted, in the June 12,1995
proposal, those actions that it took to get
meaningful-and timely input from these
entities prior to proposal.
List of Subjects
40 CFR Part 257
Environmental protection, Reporting
and recordkeeping requirements, Waste
disposal. . .
40 CFR Part 261
Hazardous materials, Recycling,
Waste treatment and disposal. ;
40 CFR Part 271
Administrative, practice and
procedure, Hazardous materials
transportation, Hazardous waste,
Indian-lands, Intergovernmental
relations/Penalties, Reporting and
recordkeeping requirements. Water
pollution control, Water supply.
Dated: June .21,1996.
Carol M. Browner,
Administ&itor. "-' -
For reasons set out in the preamble,
title 40, Chapter I of the Code .of Federal
Regulations is amended as set forth
below: '
PART 257CRITERIA 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. 69p7(a)(3), 6912(a)(l),
6944(a) and 6949(c), 33 U.S.C. 1345 (d) and
(e).
§§ 257.1 through 257.4 [Redesignated as
SubpartA]
2. Section&257.1 through 257.4 are
designated as Subpart AClassification
of Solid Waste Disposal Facilities and
Practices.
3. Section 257.1(a) is revised to read
as follows:
§257.1 Scope and purpose.
(a) Unless otherwise provided, the
criteria in §§ 257.1 thrdugh'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 through 257.30 are adopted for
-purposes of ensuring that non-
municipal non-hazardous waste ,
disposal units that receive conditionally
exempt small quantity generator
(CESQG) waste do not present risks'to
human health and the environment
taking into account the practicable
capability of such .units in accordance '
with Section 4010(c) of the Act. :
(1) Facilities foiling to satisfy either
the criteria in §§ 257.1 .through 257.4 or
§§ 257.5 though 257.30 are considered
open dumps, which are prohibited - .
under section:4005 of the Act.
(2) Practices failing to satisfy either
the criteria .in §§257.1 through 257.4 or
§§257.5 through 257.30 constitute open
dumping, which is prohibited under
section 4005 of the Act
4. Part 257 iaamended by adding a
new Subpart B to read as follows:
Subpart BDisposal Standards for the
Receipt of Conditionally Exempt Smalt
Quantity Generator (CESQG) Wastes at
Non-Municipal Non-Hazardous Waste
Disposal Units ...
Sec.
257.5 DisposaLstandards for owners/
operators of noa-municipal non-
. hazardous waste disposal units that
receive Conditionally Exempt Small
Quantity Generator (CESQG) waste
Location Restrictions
257.7 Reserved
257.8 Flopdplains.
. 257.9 Wetlands
257.10 Reserved -
257.11 Reserved
257.12 Reserved.
257.13 .Deadline for making
demonstrations.
Ground-Water Monitoring and Corrective
Action .
257.21 Applicability.
2S7-.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. :
Subpart BDisposal Standards for the
Receipt of Conditionally Exempt Small
Quantity Generator (CESQG) Wastes at
Non-Municipal Non-Hazardous Waste
Disposal Units
§257.5 Disposal standards for owners/
operators of non-municipal non-hazardous
waste disposal units 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 non-
hazardous waste disposal unit that
receives CESQG hazardous waste,, as
defined in 40 CFR 261.5. Non-municipal
non-hazardous waste disposal units that
meet the requirements of this section
may receive CESQG wastes. Any.owner/
operator of a non-municipal non- '
hazardous waste .disposal unit that
receives CESQG hazardous waste
continues Jo be subject to the
requirements in §§257.3-2,257.3-3,
257.3-5, 257.3-6,257.3-7-, and 257.3-8
(a),(b),and(d).
. (2) Any non-municipal non-hazardous
waste disposal unit that is receiving
CESQG hazardous waste as of January 1,
1998,.must be in compliance with the
requirements in §§257.7 through 257.13
and § 257.30 by January 1; 1998, and the
requirements in §§257;21 through
257.28 by July 1,1998.
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34270 - -Federal Register / Vol. 61, No. 127,7 Monday. July 1. 1996 / Rules and Regulations
(3) Any non-municipal non-hazardous
waste disposal unit that does not meet
the requirements in this section may not
receive CESQG wastes.
(4) Any non-municipal non-hazardous
waste disposal unit that is not receiving
CESQG Hazardous waste as of January
1,1998, continues to he subject to the
requirements in §§ 257.1 through 257.4.
(5) Any non-municipal non-hazardous
waste disposal unit that first receives
CESQG hazardous waste after January 1,
1998, must be in compliance with
§§257.7 through 257.30 prior to the .
receipt of CESQG hazardous waste.
(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 unit means any non-
municipal non-hazardous waste
disposal unit that is receiving CESQG
hazardous waste as of January l, 1998.
Faci/itymeans all contiguous land
and structures, other appurtenances,
and improvements on the land used for
the disposal of non-municipal non-
hazardous waste.
Lateral expansion means a horizontal
expansion of the waste boundaries of an
existing non-municipal non-hazardous
waste disposal unit
New unit means any non-municipal
non-hazardous waste disposal unit that
has not .received CESQG hazardous
waste prior to January 1..1998.
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 Director means the chief
administrative officer of the lead State/
Tribal agency responsible for
implementing the State/Tribal 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 hydraubcaliy
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
§257.7 [Reserved]
§257.8 /Floodplalns.
= (a) Owners or operators of new units,
existing units, 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:
(1) "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" means a flood
that has a 1-percent or greater chance of
recurring in anygiven 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
baseflood.,
§257.9 Wetlands.
(a) Owners or operators of new units
and lateral expansions shall not locate
such' units in wetlands, unless the
owner or operator 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 wetiands'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 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 resultin the destruction or
adverse modification of a critical
habitat, protected under the Endangered
Species Act of 1973; and
(iv) Violate any requirement under th«
Marine Protection, Research; and
Sanctuaries Act of1972 for the
protection of a marine sanctuary;-
(3) The unit will notcause or
contribute to significant degradation of
wetlands. The owner/operator must ]
demonstrate the integrity of the unit and
its ability to protect ecological resources;
by addressing the following factors^ ""
(i) Erosion, stability, and migration
potential of native wetland soils, muds
and deposits used to support the unit;
(ii) Erosion," stability, and migration
potential of dredged and fill materials
used to support the unit;
(iii) The volume and chemical nature
of the waste managed in the unit;
(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 resultingimpacts 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
applicable State. Wetlands laws, steps
have been taken to attempt to achieve
no netloss 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
minimising unavoidable impacts to the
maximum extent practicable, and finally
offsetting remaining unavoidable
wetland impacts throughall.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 [Reserved]
§257.11 [Reserved]
§257.12 [Reserved]
§257.13 Deadline for making
demonstrations.
Existing units that cannotmake the
demonstration specified in § 257.8(a)
pertaining to floodplains by January 1,
. 1998, must not accept CESQG
hazardous waste lor disposal. '
Ground-water monitoring and
' corrective action.
§257.21 Applicability.
(a) The requirements in this section
apply to units identified in § 257.5(a),
except as provided in paragraph (b) of
this section.
' (b) Ground-water monitoring
requirements under §§257.22 through
257.25 may be suspended by the
Director of an approved State for a unit
identified in § 257.5(a) if the owner or
operator can demonstrate that there is .
no potential for migration of hazardous
constituents from that unit 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 arid
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Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules and Regulations 34271
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
(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 units and lateral
expansions must be in compliance with
the ground-water monitoring
requirements specified in §§ 257.22 .
through 257.25 by July 1,1998.
(2) New. units identified in § 257.5{a)
must be in compliance with the ground-
water monitoring requirements
specified in §§ 257.22 through 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 units
and lateral expansions to comply with
the ground-water monitoring
requirements specified in §§ 257.22
through 257.25. This schedule must
ensure that 50 percent of all existing
units are in compliance by July i, 1998,
and all existing units are in compliance
by July 1,1999. 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 arid
environmental receptors;
(2) Design of the unit;
(3) Age of the unit;
(4) The size of the unit; and
(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 unit, 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 peripd of time is adequate to
protect human health and the
environment and the Director approves
the demonstration.
(f) 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 of 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 H'of Part 258 constituents;
§ 257.25(d)(l), pertaining to placement
of notice (appendix n of 40 CFR 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 40 CFR Part 258;
§ 257.25(g), pertaining to notification
SSI above ground-water protection
standard; §§257.25(g)(l)(iv) arid
257.26(a), pertaining to assessment of
corrective measures; § 257.27(a),
pertaining to selection of remedy and
notification of placement in record;
§ 257.28(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 of approved States can;
use the flexibility in paragraph (i) of this
section for any non-municipal non-
hazardous waste disposal- unit'that
.receives CESQG waste, if the non-
municipal non-hazardous waste
disposal unit: ;
(1) Disposes of less than 20 tons of
non-municipal waste, daily, based on an
annual average; and
(2) Has no evidence of^grpund-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 non-hazardous waste ..
disposal unit that meets the criteria in
paragraph (h) of this section must place
in the operating record information
demonstrating this. .
(i) Directors of approved States may
allow any non-municipal non-
hazardous waste disposal unit meeting
the criteria in paragraph (h) 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
non-hazardous 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
Appendixl (Appendix I of 40 CFR Part
258. Alternative indicator parameters
approved by the Director of an approved
State under this section must ensure
detection of contamination from the
non-municipal non-hazardous waste.
disposal unit
(2) If contamination is detected
through the use of any alternative to the
ground-water monitoring system :.
prescribed in, §§257.22 through 257.25, .
the non-municipal non-hazardous waste
disposal unit owner or operator must
perform expanded monitoring to
determine whether the detected
contamination is an actual release from
the non-municipal solid waste disposal
unit and, if so, to determine the nature
and extent of the contamination. The
Director of the approved State shall
establish a schedule for the non-
municipal non-hazardous waste
disposal unit owner or operator to ' .
submit results from expanded
monitoring in a manner that ensures "
protection of human health and the
environment.
(i) If expanded monitoring indicates
that contamination from the non-
municipal .non-hazardous 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, expanded monitoring indicates
that contamination from the non- '
municipal non-hazardous waste
disposal-unit is present in the .
unsaturated zone or on-the surface, the
Director of an approved State shall
establish a schedule for the owner or
operator to submit a description of any
necessary corrective measures. The
schedule shall ensure corrective
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34272 Federal .Register / Vol. 61, No. 127V Monday, July 1, 1996 / Rules and Regulations,
measures, where necessary, are
undertaken in a timely manner.that
protects human health and the
environment. 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
allow alternatives to a ground-water
monitoring system prescribed in
§§ 257.22 through 257.25, including
alternative indicator parameters, the
Director of an approved State shall
consider at least the following factors:
(i) The geological and hydrogeoiogical
characteristics of the siter
(ii) The impact of manmade and'
naturalfeatures on the effectiveness of*
an alternative technology;
(iii) Climatic factors that may
influence the selection, use, and
reliability of-altemative ground-water-
monitoring procedures; anoV
(iv) The effectiveness of indicator
parameters in detecting a release.
. (4) The Director of an approved State
can require an owner or operator.to
comply with the requirements -of
§§257.22 through 257.25, where it is'
determined by the Director that using
alternatives to ground-water monitoring
approved under this paragraph are
inadequate to detect contamination and,
if necessary, to assess thenatuire and
extent of contamination. ,
§257.22 Ground-water monitoring ;,
(a) A ground-water moniloring:system
must be installedthat 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
§257.5(b))that:
(1) Represent the;quality of ,
background ground water that has not
beerr 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 . ._
(li) Sampling at other wells will
provide an indication of background '
ground-water quality that is as
representative or more representative
than 1hat 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
unapproved Stater. The downgradient
monitoring system must be installed at
the relevant point of compliance
.spe'dfie'dby 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.
The relevant point of compliance
specifiedby the Director of an approved
State shall be no more .than 150 meters
from the waste management unit .
boundary and shall be located on land
owned-by the owner of the facility, m
determining the relevant point of
compliance the State Director shall
consider at least the following factors:
the hydrogeologic characteristics: of the,
unit 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 at existing units,, the down-
gradient monitoring system may be
installed at the closest practicable
distance hydraulically down-gradient
from the:relevantpoint 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.apprbved 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 eacfe 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 aceepted-at the
units.
(e) Monitoring wells must be cased in
a manner mat 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, and '
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 ta design specifications
throughout the life of the monitoring
program. ,
(a) 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 £11 materials .. ,
overlying the uppermost aquifer,- . -
.materials.comprising the uppermost.
aquifer, and materials comprising the
confining unit defining the lower
boundary of the uppermostaquifer;
including, but'not limited to:' . .
thicknesses, stratigraphy, lithology, .
hydraulic conductivities, .porosities and
effective porosities. . .
(2) Certified by a qualifiedrground-
water scientist or approved by the'
Director of an approved State. Within 14
days of this certification, the owner or
operator .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 incompliance 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:
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Federal Register / Vol. 81, No. 127.7 Monday. July 1, 1996 / .Rules and Regulations 34273.
(1) Sample collection;
(2) Sample preservation and
shipment;
(3) Analytical procedures;
(4) .Chain of custody control; and
(5) Quality assurance and quality
control.
(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-
fieid-filtered prior to laboratory
analysis.'
(c) 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 grounds-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).
if) The number of samples collected to
establish ground-water quality data
must be consistent with the appropriate
statistical procedures determined :.
pursuant to paragraph (g) of this section.
The sampling procedures shall be those
specified under § 257,24(b) for detection
monitoring, § 257.25 (b) and (d) for
assessment monitoriug, 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 eacK 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
paragraph (h). of this section. 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 paragraph (h) of this
section.
(h) Any statistical method chosen
under paragraph (g) of this section 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 than 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. . *
(4) If a tolerance interval or a
' predictional 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/aata base, the data
distribution, and the range of the '
concentration values for each
constituent of concern.
(5) The statistical method shall
account for data below the limit of
detection with one or more statistical
procedures that are protective of human
health'and the environment. Any
practical quantitation 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
that are available te the facility.
(6) If necessary, the statistical method
shall include procedures to control or
correct for seasonal aad spatial
variability as well as temporal'
correlation in the data. '
(i) -The owner or operator must
determine whether or not there.is a
statistically significant increase over
background values for .each parameter or
constituent required in the particular
ground-water monitoring program that
applies to the unit, as determined under
§§257.24(a)or257.25(a).
(!) m determining whether a '
statistically significant increase has
occurred, the owner or operator must
.compare the ground-water quality of
each parameter or constituent at each
monitoring well designated pursuant to
§ 257.22(a){2) to the background value of
that constituent, according to the.
statistical procedures and performance
standards specified under paragraphs (g)
and (h) of this section.
(2) 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.
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' ' /
34274 Federal Register / Vol. 61, No. i27./ Monday, July 1, 1996 / Rules and Regulations
§257.24 Detection monitoring program.
(a) Detection, monitoring is required at
facilities identified in § 257.5(a) at aU
ground-water monitoring wells defined
under §§ 257.22 (a)(l) and (a)(2). At a
minimum, a detection monitoring
programmust include the monitoring.
forme constituents listed in appendix I
of 40 CFR Part 258-
(1) The Director of an approved State
may delete any, of the appendix I
(Appendix I of,40 CFR Part 258)
m onitoring parameters for a unit if it
can be shown that the removed ,
constituents are not reasonably expected
to be containedJa or derived,from the -
waste contained in-the unit
(2) The Director of an approved State
may establish an alternative list of .
indicator parameters for a unit, in lieu-
of some or all of the constituents in
appendix I to 40 CFRPart258, ifthe
afternative'parameters provide a reliable
indicatiorLof 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
menaced at the unit;
(ij) 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
recctioirproducts in the ground water;
and
(iv) The concentration or values and
coefficients of variation of monitoring
parameters or constituents in the
groundwatec background.
(b) The monitoring frequency for all
constituents listed in appendix I to 40
CFR Part 258, 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
unit 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 40 CFR, Part 258)
constituents, or the alternative list
approved in accordance with paragraph
. (a)l2) 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
sampling events. -The Director of an
approved State may specify an
appropriate alternative frequency for
repeated sampling and analysis for
appendix I (Appendix I .of 40 CFR Part
258) constituents, or the alternative list
approved in. accordance with paragraph
(aj(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:
(I) 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-1h'e 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), that
there is a statistically significant
increase over, background for one or
more of the constituents listed in
appendix I to 4O CERPart 258, or in the
alternative list approved imaccordance
with paragraph (a)(2) of this section, at
any, monitoring well at the boundary.
specified under,§257.22(a)(2), the
owner or operator:
(1) Must, within 14 daysrof this
finding, place a notice in. the operating
record indicating which constituents
have shown statistically significant
changes from background levels, and,
notify the State 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-
fS) 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.isnot inade.-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 ormore of the
constituents listed in appendix I of 40
CFRPart 258 or in the alternative Kst
approved in accordance with
§257.'24(a)(2). -
(b) Within 90 days of triggering an
assessment monitoring program, and
annually thereafter, the owner or
operator must sample and analyze the
ground water for all constituents
identified in appendix H of 40 CFR Part
258. A mrniTntiTn of one sample from
each downgradient well must be
, collected and analyzed during each
sampling event. Forany constituent ''.
detected in the downgradient wells as
the result of the complete appendix n .
(Appendix n of 40 CFR Part 258)
analysis, a mi-nfmuni of four-
independent samples from, each well
(background and downgradient) must be
collected and analyzed to establish
background for the hew constituents.
The Director of an approved State may
specify an appropriate subset of wells to
be sampled and analyzed for appendix i
E (Appendix fl of 40 CFR Part 258}
constituents during assessment.
monitoring. The Director of an approved '
State may delete any of the appendix H.
(Appendix H of 40 CFR Part 258)
monitoring parameters for a unit if it
can be shown that the removed
constituents are not reasonably expected -
to be in or 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 n
(Appendix H of 40 CFR part 258)
constituents, or the alternative list
approved in accordance with paragraph '
(b) of this section, during the active life
plus 30 years considering the following
.factors: ' ;
(1) Lithology of the aquifer and
unsaturated zone;
(2) Hydraulic conductivity of the. .
aquiferand 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 and 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 n of 40 CFR .part
258) constituents that have been '. ,
detected and notify the- State Director
that this notice has been placed in 'the
operating record; i
(2) Within 9.0 days, and on at least a
semiannual basis thereafter, resample
all wells specified by §257.22(a) to this
section, conduct analyses for all
-------
constituents in appendix I (Appendix I
of .40 CFR part 258) to-this part or in the
alternative list approved in accordance
with §257.24(a)(2), and'for those
constituents in appendix n to 40 CFR
part 258 that are detected in response to
paragraph (b) of this section, and record
their concentrations in the facility
. operating record. At least one sample
from each well (background and
dowrigradient) 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 30
years for the constituents referred .to in
this paragraph. The-alternative
frequency for appendix! (Appendix I of
40 CFR part 258) 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 be 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 (h) or (i) of
this section. '
(e) If the concentrations of all .
appendix JH (Appendix n of 4O CFR part
-258) 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 n of part 258)
constituents are above background
values, but all concentrations are below
the groundrwater protection standard
established under paragraphs (h) or (i) '
of this section, using the statistical
procedures in § 257.23(g), the owner or
operator must contimie.assessment
monitoring in accordance with this
section. .
(g) If one or more appendix H
(Appendix IT of CFRpart.258)
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 H of 40 CFR part
258) constituents that have exceeded the
ground-water protection standard and
Monday, July l, 1996 / Rules and Regulations 34275
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 subparagraph
(h)(i) of this section orhealth based
levels identified under paragraph (i)(l)
of this section, 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:
(1) The level is derived in a manner
consistent with Agency guidelines for
assessing the health risks of
environmental pollutants (51FR 33992
34006, 34014,34028, September 24,
1986);
(2) The level is based on scientifically
valid studies conducted in accordance
with the Toxic Substances Control Act
Good Laboratory Practice Standards (40
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: .
(l)(i) Must characterize the nature and
extent of the release by installing
additional monitoring wells as
.necessary; .
(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 paragraph (d)(2) of this
section;
(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 off-site if indicated by
sampling of wells in accordance
paragraph (g)(l) of this section; and
(iv) Must initiate an assessment of
corrective measures as required by
§ 257.26 within 90 days; or
(2) May demonstrate that a source
other than the non-municipal nbn-
hazardous waste disposal 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 arid
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 this § 257.25, and may
return to detection monitoring if the
appendix H (Appendix n of 40 CFR part
258) constituents are at or below
background as specified in paragraph (e)
of this section. Until a successful
demonstration is made, the owner or
operator must comply with § 257.25(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 H of 40 CFR part 258)
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
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 expbsure)
within the 1x10-* to lxlO~« range; and
(4) For systemic toxicants, the level
represents aconcentration. to which the
human population (including sensitive
subgroup's) 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, systemic 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 siterspecific exposure^or
potential exposure to ground'water.
§257.26 Assessment of corrective
measures.
(a) Within 90 days of finding that any
of the constituents listed in appendix n
(Appendix n of 40 CFR Part 258) have
been detected at a statistically
significant level exceeding the ground-
water protection standards defined
under § 257.25 (h) or (i), the bwner 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
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34276 Federal Register / Vol. 61,.No. 127 / Monday, July 1, 1996 / Rules and Regulations
the assessment monitoring program as1
specified in § Z57S.5.
(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: .
tl) The performance, reliability; ease -
of implementation; and potential - "
impacts of appropriate potential ...
remedies, including safety .impacts, ,
cross-media impacts, arid-control of
exposure to any residual contamination;
(2) The time required to.begov and
complete the remedy;.
(3J The costs o£remedy ;
implementation; and ' ,,
(4) The institutional requirements .
such as State orJocal permit
requirements or other enviromnentalxir"'
public health requirements that may ...
substantially affect implementation of
thoremedy(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.
§25727 Selection of .remedy.
(a) Based on the results of the
corrective measures assessment
conducted under § 257.26, the owner or
operator must selecta remedy that, at a
TTifahniiTTi, 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 ihe
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.
§§ 257.25 (h) or (i);
(3) Control the source(s) of-ieleases -so
as to reduce or eliminate, to the..'
maximum extent practicable, further
releases ofappendix n (Appendix n of
40 CFRpart 258) constituents into the
environment that may pose a threat to
human health or the environment; and-
(4) Comply withstandards 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 thatthe'remedy will
prove successful based.on consideration
of the following:
(i) Magnitude of reduction of existing,
risks;
(ii) Magnitude of residual risks in
terms1 of likelihood of further releases .
due to waste remaining following
implementation of a-remedy;
(iii) 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 re-
disposal or containment;
(v) Tune 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, re-disposal, .
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 const derstion^of the
following factqrsi-
(i) The extent to which containment
practices-will reduce further releases;
(ii) The extent to which treatment
technologies may be used.. ..- . .
-' (3)Theeaseordifficulty'pf
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;'
(iii) Need to coordinate.with and ., ,
obtain necessary approvals and permits;
from other agencies; *
(iv) Availability of necessary
equipment aid specialists; and :.-
(v) Ayailableicapacity and location oif.
needed treatment, storage, and disposal..
services.
. (4) Practicable capability of the- owner
or operator, including a consideration of
the teehnical-and economic--capability.
. (5) The degree to which community
concerns .are addressed by a potential.,; '
rsmedy(s).>-
(d) The owner or operator shall, .
specify as part of the selected-remedy a
, schedulefs) for initiating and --.-
completing remedial activitieSi Such, a -
schedule must requirKtiiesitatiation'of. "
remediakactivities within, a reasonable -
period of time taking into.consideratioh
the factors set forth in paragraphs (d)(l)
through (d)(«) 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;
i (2) Practical capabilities of remedial '
technologies hi 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 tof 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 environme'nt-.-from exposure to
contamination prior to completiqn.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 darn age to wildlife, '
crops, vegetation, and physical- ;
structures caused by exposure to waste
constituent;
(v)-The;hydrogeologic .characteristic of'
the unit and surrounding land; . :
(vi) Groundrwater removal and
treatment costs; and .
(vii) The cost and availability of./
alternative water supplies.
(7) Practicable capability of-the .owner
droperator. : '
(8) Other relevant iactors.
(e) The Director of-an approved .State .
may determine that remediation of a-
release of an appendix n -(Appendix H
of 40 CFR part 258) 'constituent-from the
unit is not necessary if the owner or ".
operator demonstrates to the Director of
the approved state that: .. '
(1) The groundrwater is additionally
contaminated by substances thathave;
originated from a source other than the ;
unit and those substances are present in
. concentrations such, that cleanup of the
release fronvthe unit-wouldprovide'.no
significant reduction;-in risk to'actual or
. potential receptors;-or v
. (2) The constituents) is present in-
ground.water.thafc .
(i) Is not currently or reasonably
expected to be a source of drinking .. ,
; water;and . - .... -
(ii) Is nothydraulicallyfconhected - *
with waterei-to'-wMch'the hazardous ~
constituents are migrating or are likely
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Federal Register / Vol. 61, No! 127 / Monday, July 1, 1996 / Rules and Regulations 34277
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 ; .
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 minimizefurther 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 fee
environment. -
§ 257.28 implementation of the corrective
action program.
(a) Based on the schedule established
under § 257.27(d) for initiation and
completion of remedial activities the
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 acfcton.remedy; and "
(iil) 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
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 j i .»;. ,*
(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 other 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, tie 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 fofremovaTor 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 under '.
§ 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 groundVwater 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 § 257.22(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 H (Appendix n of Part 258)
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 H of 40 CFR part 258)
constituents 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-
water.
(3) All actions required to complete
the remedy :have been satisfied.
(f) 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) 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 Recordkeeping requirements.
(a) The owner/operator of a non-
municipal non-hazardous waste
disposal unit 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 Director when the documents
from paragraph (a) of this section have
been placed or added to the operating
record, and all information contained in
the operating record must be furnished
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34278 Federal Register / .Vol. 61, No. .127 / Monday, July 1/..1996 / Rules and Regulations
upon request to the State Director or be
made available at all reasonable times
for inspection by the State Director.
(c) "Hie Director ofan approved State
can set alternative schedules for
recordkeeping and notification
requirements as specified in paragraphs
(a) and CD) of this section, except for the
notification requirements in
§257.25(g)(l)(iii). "
PART 261IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
5. The authority citation for Part 261
continues to read .as follows:
Authority: 42 U.S.C. 6905,6912(a)r6921,
6922, and 6938.
Subpart AGeneral
, 6. Section 261.5 is amended by
revising paragraphs (f){3) and (g)(3) to
read as follows:
§261.5 Special requirements for
hazardous waste generated by conditionally
exempt small quantity generators.
* * * * *
to* * * . \
(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;
(ii) In interim status under parts 270
and 265 of this chapter;
,(iii) Authorized to manage hazardous
waste by a State with-ahazardous 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
non-hazardousr waste and; if managed in
a non-municipal non-hazardous.waste
disposal unit after January i, 1998, 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; or
Ivii) For universal :waste' managed
under part 273 of this chapter, a
universal waste handler or destination
facility subject to the requirements of
part-273 of this chapter.
(g)* * *
(3) A conditionally exempt small
quantity generator may either treat or
dispose of his 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;
(iii) Authorizedlio 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
non-hazardous waste and, if managed in.
a non-municipal non-hazardous waste
disposal unit after January i, 1998, 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; or.'"
(vii) For universal waste managed
under part 273 of this chapter, a
universal waste handler or destination,
facility subject to the requirements of
part 273 of this-chapter.
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. 6905, 6912(a), and
6926.
8. In- §271/1, paragraph (j), Table 1 is
.amended by adding the following "entry
in chronological .order by publication
date: ' . .. :
Purpose and scope.
0) **.
TABLE 1.REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Promulgaiion
= data
Title of, regulation
Federal Register ref-
-erence
Effective date
July 1,1996 Revisions to Criteria'applicable to solid waste facilities that may accept CE-SQG 61 FR 34278 January 1,1998:
hazardous wastes, excluding MSWLFs. , . ..
tFR Doc. 96-16585 FUed 6-26-96; 11:51 am]
BILUNQ CODE 85WMO-P
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